Sidebar: document admissibility

📄 Sidebar: document admissibility — Wednesday, April 12, 1995

Address:

C:\DEPT103\CRIMINAL\1995\APR\12\SIDEBAR-DOCUMENT-ADMISSIBILITY.DOC

TRIAL

▲ Day 55 of 167

◀ Cross-examination of Dennis Fung (morning, part 1) Cross-examination of Dennis Fung (morning, part 2) ▶

Date: Wednesday, April 12, 1995 • Utterances: 21

The defense (Scheck) sought to question a witness about lab document L-16, for which the original could not be located, as part of a chain-of-custody attack on the LAPD crime lab. Goldberg objected on relevance grounds, noting the witness wasn't responsible for maintaining original documents. Judge Ito required Scheck to first lay proper foundation — noting the document appeared to contain different handwritings — before proceeding with the inquiry.

# 1 (THE FOLLOWING PROCEEDINGS WERE HELD AT THE BENCH:)

# 2 MR. GOLDBERG:

YOUR HONOR, I DON'T SEE ANY RELEVANCE WHATSOEVER IN GETTING INTO THE FACT THAT OUT OF ALL OF THE LAB NOTES WE HAVE THERE IS ONE PAGE WE DON'T HAVE THE ORIGINAL OF, AND THIS WITNESS IS NOT PERSONALLY RESPONSIBLE FOR MAINTAINING THE ORIGINAL DOCUMENTS.

# 3 MR. SCHECK:

WELL, I THINK YOU CAN BRING THAT OUT ON REDIRECT. I AM ONLY INQUIRING. I ASKED FOR THE PRODUCTION OF ALL ORIGINAL DOCUMENTS. YOU COULD NOT FIND THE ORIGINAL FOR THIS AND IT IS MY RECOLLECTION, MR. GOLDBERG, ON DIRECT EXAMINATION YOU SHOWED HIM THIS VERY DOCUMENT.

# 4 MR. GOLDBERG:

NO, I DIDN'T.

# 5 MR. SCHECK:

WELL -- AND YOU ASKED HIM IF IT REFLECTED WHAT HE DID WITH CERTAIN MATERIALS ON JUNE 15TH AND REALLY THE ONLY EXTENT OF -- IT IS UNDATED AND I'M PRACTICALLY CERTAIN YOU BROACHED IT ON DIRECT, BUT EVEN IF YOU DIDN'T, I THINK I HAVE A RIGHT TO GO INTO IT, TO JUST INQUIRE ABOUT WHEN THESE MATERIALS WERE -- WHEN THESE NOTATIONS WERE MADE, BECAUSE I'M INQUIRING INTO THE CHAIN OF CUSTODY OF THESE VARIOUS ITEMS, WHETHER THESE ARE CONTEMPORANEOUS NOTES OR THEY ARE FILLED IN LATER IN AN ATTEMPT TO RECONSTRUCT IN A WAY THAT -- AFTER THE FACT WHAT HAPPENED.

# 6 THE COURT:

THIS APPEARS TO BE DIFFERENT HANDWRITINGS. CAN YOU TELL ME WHAT FOUNDATION WE HAVE FOR THIS?

KEY QUOTE

# 7 MR. SCHECK:

WELL, I KNOW THAT THIS WAS PRODUCED TO THE DEFENSE AS A LAB NOTE.

# 8 THE COURT:

NO, NO. SO YOU HAVEN'T ASKED HIM ANY FOUNDATIONAL QUESTIONS AT THIS POINT.

# 9 MR. SCHECK:

I WILL ASK HIM THAT.

# 10 THE COURT:

ALL RIGHT. YOU CAN ASK HIM DID YOU HAVE ANYTHING TO DO WITH THE PREPARATION OF THIS DOCUMENT?

# 11 MR. SCHECK:

SURE.

# 12 THE COURT:

DO YOU HAVE ANY IDEA WHERE THE ORIGINAL IS?

# 13 MR. SCHECK:

MY APOLOGIES TO THE COURT FOR NOT HAVING THE EXACT REFERENCE, BUT --

# 14 THE COURT:

NO. I HAVE NOT SEEN THIS.

# 15 MR. SCHECK:

-- BUT I CAN REPRESENT TO THE COURT IS THAT WHEN MR. FUNG WAS TESTIFYING AS TO WHICH ITEMS HE TURNED OVER ON JUNE 14TH AND JUNE 15TH, HE LOOKED AT A DOCUMENT TO REFRESH HIS RECOLLECTION. I WAS AT THE WITNESS STAND.

# 16 THE COURT:

THAT DOESN'T MEAN THAT IT HAS BEEN MARKED OR USED.

# 17 MR. SCHECK:

I UNDERSTAND.

# 18 THE COURT:

ALL RIGHT.

# 19 MR. SCHECK:

I THINK IT WAS.

# 20 THE COURT:

BUT I THINK YOU STILL HAVE SOME FOUNDATION.

# 21 MR. SCHECK:

SURE.

Temperature

tense

Key Quotes (3)

Barry Scheck

I'M INQUIRING INTO THE CHAIN OF CUSTODY OF THESE VARIOUS ITEMS, WHETHER THESE ARE CONTEMPORANEOUS NOTES OR THEY ARE FILLED IN LATER IN AN ATTEMPT TO RECONSTRUCT IN A WAY THAT -- AFTER THE FACT WHAT HAPPENED.

States the defense theory explicitly: that lab notes may have been backdated or fabricated after the fact, a core pillar of the contamination/conspiracy narrative.

Lance A. Ito

THIS APPEARS TO BE DIFFERENT HANDWRITINGS. CAN YOU TELL ME WHAT FOUNDATION WE HAVE FOR THIS?

The judge himself observes the document anomaly, lending weight to the defense's concern before Scheck even argues it.

Hank Goldberg

OUT OF ALL OF THE LAB NOTES WE HAVE THERE IS ONE PAGE WE DON'T HAVE THE ORIGINAL OF, AND THIS WITNESS IS NOT PERSONALLY RESPONSIBLE FOR MAINTAINING THE ORIGINAL DOCUMENTS.

Prosecution attempts to minimize the missing original as an administrative anomaly rather than evidence of misconduct.

Evidence (1)

L-16

An undated lab note related to materials handled on June 14th and/or June 15th; original could not be produced; appears to contain multiple handwritings.

challenged — admissibility contested, foundation required before use

Notable Exchanges (2)

Barry Scheck•Hank Goldberg

Scheck claimed Goldberg used L-16 on direct examination to refresh the witness's recollection; Goldberg flatly denied it ('NO, I DIDN'T'). Scheck backed off slightly but maintained he was 'practically certain.'

strategic

Lance A. Ito•Barry Scheck

Ito corrected Scheck for skipping foundational questions and directed him to ask the witness about his involvement in preparing the document and the whereabouts of the original before proceeding.

procedural

Credibility Attacks (1)

⚔ LAPD crime lab / Dennis Fung (implied)

missing original document, possible post-hoc reconstruction of records

Scheck argued L-16 may not be a contemporaneous lab note but rather a reconstruction filled in after the fact, raising the specter that evidence documentation was manipulated.

Objections

1 objections (0 sustained, 0 overruled)

Proceeding 5649 • 21 utterances

Criminal Trial

Department 103