Cross-examination of Dennis Fung (part 2)

📄 Cross-examination of Dennis Fung (part 2) — Thursday, April 13, 1995

Address:

C:\DEPT103\CRIMINAL\1995\APR\13\CROSS-EXAMINATION-OF-DENNIS-FU.DOC

TRIAL

▲ Day 56 of 167

◀ Jury scheduling Sidebar: exhibits and documents ▶

Witness: Dennis Fung
Examiner: Hank Goldberg
Called by: Defense • Date: Thursday, April 13, 1995 • Utterances: 113

Prosecutor Goldberg begins redirect by having Fung flatly deny involvement in any conspiracy with Lange, Vannatter, Fuhrman, or Mazzola. The examination then pivots to resolving a key evidentiary gap from cross: a missing page from the crime scene identification checklist (Defense 1107) was located in Fung's personal notebook, introduced as People's 181, and Fung — drawing on his firearms examiner training — compared staple holes to preliminarily conclude the found page belongs to the original document set.

# 1 (The following proceedings were held in open Court, in the presence of the jury:)

# 2 THE COURT:

Thank you, ladies and gentlemen. Be seated. Mr. Fung, have a seat, please. All right. Back on the record. The record should reflect that we have been rejoined by all the members of our jury. Mr. Scheck, have you concluded your cross-examination of Mr. Fung?

# 3 MR. SCHECK:

Yes, I have, your Honor.

# 4 THE COURT:

All right. Redirect examination. Mr. Goldberg.

REDIRECT EXAMINATION BY MR. GOLDBERG

# 5 MR. GOLDBERG:

Good after--good evening, Mr. Fung.

# 6 MR. FUNG:

Good evening.

# 7 MR. GOLDBERG:

How you doing? Ladies and gentlemen. Mr. Fung, let me see if I have this. Were you involved together with Detective Lange, Detective Fuhrman, Detective Vannatter, Michele Kestler and her husband, whoever that might be, in a conspiracy against this Defendant?

# 8 MR. SCHECK:

Objection, objection.

# 9 THE COURT:

What is the objection? Grounds?

# 10 MR. SCHECK:

I think it is argumentative, compound.

# 11 THE COURT:

Overruled.

# 12 MR. FUNG:

No.

# 13 MR. GOLDBERG:

Were you involved in some kind of a conspiracy with Andrea Mazzola to cover up receiving some item with your bare hands?

# 14 MR. FUNG:

No.

# 15 MR. GOLDBERG:

Were you involved in any conspiracy with Detective Vannatter to allow him to keep a vial overnight so that you could do with it what he pleased?

# 16 MR. FUNG:

No.

# 17 MR. GOLDBERG:

Or with Detective Lange to allow him into the evidence processing room so that he could somehow maybe take the Defendant's shoes and in some way get any DNA that might be on them on the swatches and the controls?

# 18 MR. SCHECK:

Objection, your Honor.

# 19 THE COURT:

Grounds.

# 20 MR. SCHECK:

This is leading, compound, speculative.

# 21 THE COURT:

Sustained on the leading ground.

# 22 MR. GOLDBERG:

Were you involved in any conspiracy whatsoever with Mr. Lange to allow him into an evidence processing room?

# 23 MR. FUNG:

No.

# 24 MR. SCHECK:

Objection, leading.

# 25 THE COURT:

Overruled.

# 26 MR. GOLDBERG:

Or would anyone in this case, Mr. Fung?

# 27 MR. FUNG:

Nobody.

# 28 MR. GOLDBERG:

Now, Mr. Fung, do you recall that on cross-examination an issue came up as to one of the pages from the crime scene identification checklist, the original of which was missing?

# 29 MR. FUNG:

Yes.

# 30 MR. GOLDBERG:

And do you happen to have a Xerox copy of that page now?

# 31 MR. FUNG:

No.

# 32 MR. GOLDBERG:

Not the original, but a Xerox?

# 33 THE COURT:

And we are referring to 1107, correct?

# 34 MR. FUNG:

I don't have one, no.

# 35 MR. GOLDBERG:

And did you find the original of that document?

# 36 MR. FUNG:

Yes, I did.

# 37 MR. GOLDBERG:

How did you do that?

# 38 MR. FUNG:

I opened up my notebook and examined that page and it was there.

KEY QUOTE

# 39 MR. GOLDBERG:

Now, there are two notebooks that are sort of similar that you have seen. One is the notebook that I am holding in my hand; is that correct?

# 40 MR. FUNG:

Yes.

# 41 MR. GOLDBERG:

And then you have a notebook in front of you?

# 42 MR. FUNG:

Yes.

# 43 MR. GOLDBERG:

For the record, your Honor, these are blue notebooks about an inch thick or so.

# 44 THE COURT:

Appear to be.

# 45 MR. GOLDBERG:

Is your notebook your own personal notes that you maintained?

# 46 MR. FUNG:

Yes.

# 47 MR. GOLDBERG:

Okay. So you found the original of that document that was missing in your notebook.

# 48 MR. SCHECK:

Your Honor, I think we should be clear as to which document, which item number for the record.

# 49 THE COURT:

Yes, it is a little obscure.

# 50 MR. GOLDBERG:

Okay.

# 51 MR. GOLDBERG:

It was part of what has been marked the crime scene identification checklist, I believe that is Defense 1107 for identification?

# 52 THE COURT:

Yes?

# 53 MR. FUNG:

That was page 4 of the--

# 54 MR. GOLDBERG:

No, not page 4, another page that talked about giving certain items to Mr. Yamauchi?

# 55 MR. FUNG:

Yes.

# 56 MR. SCHECK:

Your Honor, now that is leading and I would like to know which document--I think the record should be clear as to which document he is talking about.

# 57 THE COURT:

Sustained. Rephrase the question.

# 58 MR. GOLDBERG:

I will introduce it, your Honor. Your Honor, this is a page entitled "Field notes" and it has in the upper left-hand corner the date of 6/14/94 and then lists certain items. Counsel is familiar with it.

# 59 THE COURT:

All right. People's next in order.

# 60 MR. GOLDBERG:

Yes.

# 61 THE CLERK:

181.

# 62 THE COURT:

People's 181.

# 63 (Peo's 181 for id = 1-page document field notes)

# 64 MR. GOLDBERG:

May I approach?

# 65 THE COURT:

You may.

# 66 MR. GOLDBERG:

Sir, showing you People's 181, do you recognize that?

# 67 MR. FUNG:

Yes, I do.

# 68 MR. GOLDBERG:

And what is it?

# 69 MR. FUNG:

This is a page that I used to record the transaction of items when I release them to Mr.--or criminalist Yamauchi.

# 70 MR. GOLDBERG:

Okay. And is that the original?

# 71 MR. FUNG:

Yes, it is.

# 72 MR. GOLDBERG:

Now, generally speaking, the documents that you have in your notebook, are those originals or copies?

# 73 MR. FUNG:

The ones I have in my notebook are generally copies.

# 74 MR. GOLDBERG:

And showing you the notebook that I have in front of me, I think you have seen this before, but are these supposed to be the originals or copies?

# 75 MR. FUNG:

These should be the originals.

# 76 MR. GOLDBERG:

So in some manner the original of that document got into your notebook instead of the notebook that is supposed to contain the originals?

# 77 MR. FUNG:

Yes.

# 78 MR. GOLDBERG:

During the recess, sir, did you have an opportunity to look in your notebook and find the original of page 4?

# 79 MR. FUNG:

Yes.

# 80 MR. GOLDBERG:

Your Honor, at this time I would like to mark as People's next in order, that is exhibit 182.

# 81 THE COURT:

182.

# 82 (Peo's 182 for id = 1-page document)

# 83 MR. GOLDBERG:

A document that has "Page 4" at the top and it has various writing, all typewritten, but it is not filled out.

# 84 (Discussion held off the record between Deputy District Attorney and Defense counsel.)

# 85 MR. GOLDBERG:

Now, sir, you testified that you were a firearms examiner; is that correct?

# 86 MR. FUNG:

Yes.

# 87 MR. GOLDBERG:

And do you also do tool marks?

# 88 MR. FUNG:

I have, yes.

# 89 MR. GOLDBERG:

I would like to show you what has just been marked as People's next exhibit, page no. 4. Will you take a look at that, sir.

# 90 MR. FUNG:

(Witness complies.) Yes.

# 91 MR. GOLDBERG:

And will you take a look a the staple hole in the upper left-hand corner.

# 92 MR. FUNG:

(Witness complies.) Yes.

# 93 MR. GOLDBERG:

I am now going to show you the document that was marked as Defense 1107 for identification. Do you recognize this?

# 94 MR. FUNG:

Yes, I do.

# 95 MR. GOLDBERG:

Sir, can you please visually compare the staple holes on page 4 to the staple holes on the succeeding page.

# 96 (Witness complies.)

# 97 MR. GOLDBERG:

Have you done so?

# 98 MR. FUNG:

Yes.

# 99 MR. GOLDBERG:

And can you form any conclusion about that comparison?

# 100 MR. FUNG:

I can form a preliminary conclusion.

# 101 MR. GOLDBERG:

Which is?

# 102 MR. FUNG:

They appear to have--this appears to be the document that was missing from this set of originals.

KEY QUOTE

# 103 MR. GOLDBERG:

When you say "Preliminary," you won't form a final conclusion at this time; is that right?

# 104 MR. FUNG:

Not at this time, no.

# 105 MR. GOLDBERG:

And why is that, sir?

# 106 MR. FUNG:

I feel the--I would have to go back to the lab and look at it under controlled--a controlled situation with a microscope and other tools.

# 107 MR. GOLDBERG:

And that would be the standard practice for a forensic scientist?

# 108 MR. FUNG:

Yes.

# 109 MR. GOLDBERG:

Your Honor, at this time could we pass those documents, Defense 1107?

# 110 MR. SCHECK:

No, your Honor, we must approach.

# 111 THE COURT:

Overruled.

# 112 MR. SCHECK:

Your Honor, may we approach?

# 113 THE COURT:

With the Court reporter.

Temperature

procedural

Key Quotes (4)

Hank Goldberg

Were you involved together with Detective Lange, Detective Fuhrman, Detective Vannatter, Michele Kestler and her husband, whoever that might be, in a conspiracy against this Defendant?

Goldberg aggressively front-loads the conspiracy denial, forcing Fung to repudiate the entire defense frame in a single answer.

Dennis Fung

Nobody.

Fung's one-word answer denying any conspiracy by anyone is the cleanest rebuttal line of the redirect.

Dennis Fung

I opened up my notebook and examined that page and it was there.

Explains how a supposedly missing document was found — it had simply been misplaced in his personal notebook rather than the originals notebook, a mundane error the defense had framed as suspicious.

Dennis Fung

They appear to have--this appears to be the document that was missing from this set of originals.

Fung uses his forensic examiner skills to match staple holes, offering a scientific basis for authenticating the recovered document.

Evidence (3)

Defense 1107

Crime scene identification checklist from which a page had been reported missing during cross-examination

discussed, compared

People's 181

Field notes page dated 6/14/94 recording transfer of items to criminalist Yamauchi; the original found in Fung's personal notebook

introduced, authenticated

People's 182

Page 4 of the crime scene identification checklist, typewritten but unfilled, found during recess

introduced

Notable Exchanges (3)

Hank Goldberg•Dennis Fung

Goldberg opens redirect with a rapid-fire series of conspiracy denial questions naming each alleged co-conspirator by name; Fung answers each with a flat 'No' or 'Nobody.'

strategic

Hank Goldberg•Dennis Fung•Barry Scheck

Fung uses his firearms examiner background to compare staple holes on the recovered document against Defense 1107, forming a preliminary forensic conclusion — Scheck immediately demands to approach before the documents can be passed to the jury.

revealing

Barry Scheck•Lance A. Ito

Scheck objects multiple times that the record is unclear about which specific document Goldberg is referencing; Ito agrees once, sustaining and asking Goldberg to rephrase.

procedural

Witness Demeanor

(Witness complies.) — repeated notation as Fung examines documents at Goldberg's direction

Objections

7 objections (2 sustained, 4 overruled)

Proceeding 5669 • 113 utterances • Defense witness

Criminal Trial

Department 103