Direct examination of Dennis Fung

📄 Direct examination of Dennis Fung — Thursday, April 13, 1995

Address:

C:\DEPT103\CRIMINAL\1995\APR\13\DIRECT-EXAMINATION-OF-DENNIS-F.DOC

TRIAL

▲ Day 56 of 167

◀ Motion: videotape evidence (part 1) Cross-examination of Dennis Fung (part 1) ▶

Witness: Dennis Fung
Examiner: Barry Scheck
Called by: Defense • Date: Thursday, April 13, 1995 • Utterances: 244

Barry Scheck walks criminalist Dennis Fung through four videotape segments (Defense exhibits 1101-1104) showing two separate departures from the Rockingham estate on June 13th. The session establishes a critical timeline: Detective Vannatter's gray car was absent during Fung's first departure but present during the second — the departure in which Andrea Mazzola was carrying a plastic bag containing the blood vial envelope. Judge Ito himself asked the question that landed hardest, eliciting Fung's confirmation that the envelope with Simpson's blood sample was inside that bag.

# 1 THE COURT:

All right. Good morning again. Mr. Fung, would you take the witness stand again, please.

Dennis Fung, (402) called as a witness on behalf of the Defendant, pursuant to evidence code section 402, having been previously sworn, resumed the stand and testified further as follows:

# 2 THE COURT:

Mr. Fung, you are reminded you are still under oath, sir. We are going to show you a few videotapes. Mr. Scheck, Mr. Harris.

# 3 (Discussion held off the record between Defense counsel.)

# 4 MR. GOLDBERG:

Your Honor, perhaps while we are waiting, I could just make one request. I think probably he should only be shown the tapes as to the specific sequences, the three sequences we have discussed, and not in any particular order, so that he is not misled.

# 5 THE COURT:

No. This is Mr. Scheck's offer on foundation. He can do it however he sees fit.

# 6 (Discussion held off the record between Defense counsel.)

# 7 MR. SCHECK:

Mr. Fung, I would like to show you a segment from the videotape. Let me just make sure the segment is cued.

# 8 (Brief pause.)

# 9 MR. SCHECK:

This is a segment from 101.

# 10 THE COURT:

All right. 101.

# 11 MR. COCHRAN:

1101.

# 12 (A segment of Defendant's exhibit 1101, a videotape, was played.)

# 13 MR. SCHECK:

Stop a second, please.

# 14 MR. SCHECK:

Mr. Fung, I would like you to note carefully the cars that you see as in the tape. This tapes proceeds, okay?

# 15 MR. FUNG:

Cars?

# 16 MR. SCHECK:

The cars that are parked on the sidewalk. All right?

# 17 (No audible response.)

# 18 MR. SCHECK:

First you saw a police car there, a black and white?

# 19 MR. FUNG:

Yes.

# 20 MR. SCHECK:

Okay. Let's proceed.

# 21 (The videotape resumes playing.)

# 22 MR. SCHECK:

Let's stop.

# 23 MR. SCHECK:

You see this second van there?

# 24 MR. FUNG:

The one where the gentleman is--

# 25 MR. SCHECK:

Yes.

# 26 MR. FUNG:

--coming out of? Yes.

# 27 MR. SCHECK:

Okay. Let's proceed.

# 28 (The videotape resumes playing.)

# 29 MR. SCHECK:

Let's stop.

# 30 MR. SCHECK:

Do you see this brown car there?

# 31 MR. FUNG:

Yes.

# 32 MR. SCHECK:

Okay. Let's proceed.

# 33 (The videotape resumes playing.)

# 34 MR. SCHECK:

All right. Do you see that van there?

# 35 MR. FUNG:

Yes.

# 36 MR. SCHECK:

That is not the white Ford Bronco, is it?

# 37 MR. FUNG:

No, it is not.

# 38 MR. SCHECK:

All right. Let's stop for a second.

# 39 MR. SCHECK:

Now, from the--you do not--in walking down that path, you did not see Mr. Simpson's white Ford Bronco, did you?

# 40 MR. FUNG:

No.

# 41 MR. SCHECK:

All right. Let's proceed.

# 42 (The videotape resumes playing.)

# 43 MR. SCHECK:

Now listen carefully to the sound here, sir. Okay. Now, let's get rid of that last part. Did you hear yourself saying, "Okay, let's go back, make one last check" or words to that effect?

# 44 MR. FUNG:

Something like that, yes.

# 45 MR. SCHECK:

Okay. Now, I'm going to show you another videotape that depicts these events that I think is more complete, so I would like you to take a look at that.

# 46 (Discussion held off the record between Defense counsel.)

# 47 MR. SCHECK:

I want to just cue it up, your Honor, and make sure I've got it right.

# 48 (Brief pause.)

# 49 MR. SCHECK:

Okay.

# 50 MS. CLARK:

Which number is this?

# 51 (Discussion held off the record between Defense counsel.)

# 52 MR. HARRIS:

102.

# 53 MR. SCHECK:

102.

# 54 MR. COCHRAN:

1102.

# 55 MR. SCHECK:

1102.

# 56 (At 11:36 A.M. Defendant's exhibit 1102, a videotape, was played.)

# 57 (Discussion held off the record between Defense counsel.)

# 58 MR. SCHECK:

Stop.

# 59 MR. SCHECK:

Now, you see again that black and white police car?

# 60 MR. FUNG:

Yes.

# 61 MR. SCHECK:

And you see there is a space in front of it?

# 62 MR. FUNG:

Yes.

# 63 MR. SCHECK:

Okay. Let's move on.

# 64 (The videotape resumes playing.)

# 65 MR. SCHECK:

Another car, the same car as before?

# 66 (No audible response.)

# 67 MR. SCHECK:

Concentrate if you can, sir, that is with paper bags in--I guess it is your left hand?

# 68 MR. FUNG:

Yes.

# 69 MR. SCHECK:

And that is--what is that in your right hand?

# 70 MR. FUNG:

It was--looked like a box.

# 71 MR. SCHECK:

The evidence kit?

# 72 (No audible response.)

# 73 MR. SCHECK:

Now, you recognize this to be, up through this point, the same clip as we saw before?

# 74 MR. FUNG:

Yes.

# 75 MR. SCHECK:

Okay. Now, you see the walking back?

# 76 (No audible response.)

# 77 MR. SCHECK:

Okay.

# 78 (Discussion held off the record between Defense counsel.)

# 79 MR. SCHECK:

Okay. Umm, why don't we actually continue with that tape at this point. Just back it up a second. Back it up to the very beginning of the segment.

# 80 (Brief pause.)

# 81 (The videotape resumes playing.)

# 82 MR. SCHECK:

Now, after this, you will see that there is a cut in the tape?

# 83 MR. GOLDBERG:

Well, at this point I would object to asking the witness any questions about this incident. There is no foundation that he was there.

# 84 THE COURT:

Overruled at this point. You can show him the tape.

# 85 MR. SCHECK:

Yes.

# 86 (The videotape resumes playing.)

# 87 MR. SCHECK:

Now, take note of that car, sir. Do you see it?

# 88 MR. FUNG:

The gray car?

# 89 MR. SCHECK:

Stop right here for a second.

# 90 MR. SCHECK:

Do you see that car?

# 91 MR. FUNG:

This gray car here, (Indicating)?

# 92 MR. SCHECK:

That gray car.

# 93 MR. FUNG:

Yes.

# 94 MR. SCHECK:

Okay. Let's continue.

# 95 (The videotape resumes playing.)

# 96 MR. SCHECK:

All right. Okay.

# 97 (Discussion held off the record between Defense counsel.)

# 98 MR. SCHECK:

Let me call your attention to a second--would you agree, sir, that that gray car that we just observed was not parked in that location in the first segment that we just reviewed of you and Miss Mazzola going to the truck and then walking back in?

# 99 MR. FUNG:

There was a police car and then a van in the first segment.

# 100 MR. SCHECK:

Right. There was a police car, a space. Do you recall that?

# 101 MR. FUNG:

Yes.

# 102 MR. SCHECK:

And then--but that gray car was not in that first segment, right?

# 103 MR. FUNG:

The first segment that you showed me, yes.

# 104 MR. SCHECK:

Okay. Now, I would like to show you another view of this.

# 105 (Discussion held off the record between Defense counsel.)

# 106 MR. SCHECK:

Okay. This is 1103, your Honor.

# 107 MR. GOLDBERG:

Your Honor, I would still object to showing this witness pictures of Vannatter without any foundation that he saw it.

# 108 THE COURT:

Overruled.

# 109 (At 11:42 A.M. Defendant's exhibit 1103, a videotape, was played.)

# 110 MR. SCHECK:

Now, let's stop for a second. Stop, stop, stop.

# 111 MR. SCHECK:

Now, in that sequence, if you want, we can rewind it, you see Detective Vannatter, right, getting out of that gray car, correct?

# 112 MR. FUNG:

Yes.

# 113 MR. SCHECK:

And in his hands he has a black duffel bag in one hand and what appears to be a clipboard in the other?

# 114 MR. FUNG:

And maybe some other objects also, yes.

# 115 MR. SCHECK:

Yes. And you see that as we go through the shot, please pay attention to the black and white car. Do you see that there?

# 116 MR. FUNG:

Yes.

# 117 MR. SCHECK:

Okay. Now--stop it.

# 118 MR. SCHECK:

Now, would you agree, sir, that that gray car that Detective Vannatter got out of is parked in front of that black and white police car?

# 119 MR. FUNG:

Yes.

# 120 MR. SCHECK:

All right. And that is not--that gray car was not present in the first sequence I showed you of you and Miss Mazzola walking toward the van?

# 121 MR. FUNG:

That's correct.

# 122 MR. SCHECK:

And then coming back and going back inside of Rockingham, right?

# 123 MR. FUNG:

Right.

# 124 MR. SCHECK:

Okay. Now, sir, I would like to show you another tape sequence.

# 125 (Discussion held off the record between Defense counsel.)

# 126 MR. SCHECK:

Now showing you 1104. This is from 1104.

# 127 (Discussion held off the record between Defense counsel.)

# 128 MR. GOLDBERG:

The last tape that we saw was 110--

# 129 THE COURT:

# 130 MR. GOLDBERG:

1103.

# 131 (Discussion held off the record between Defense counsel.)

# 132 MR. SCHECK:

Okay. Now, I would like to show you this sequence. All right.

# 133 THE COURT:

This is 1104?

# 134 MR. SCHECK:

Yes.

# 135 (At 11:45, People's exhibit 1104, a videotape, was played.)

# 136 MR. SCHECK:

This sequence is you and Miss Mazzola--stop right here. Do you recognize who that gentleman is in the Panama hat?

# 137 MR. FUNG:

That is Mr. Wilson; he is a photographer.

# 138 MR. SCHECK:

A photographer. Okay. And this is you and Miss Mazzola now leaving the Rockingham location again?

# 139 MR. FUNG:

Yes, it is.

# 140 MR. SCHECK:

Okay. Oh, yes continue here. Continue here, I'm sorry.

# 141 (The videotape resumes playing.)

# 142 MR. SCHECK:

All right. Stop.

# 143 MS. CLARK:

Can we go back and see that again one more time, please?

# 144 THE COURT:

All right. Mr. Harris.

# 145 (The videotape resumes playing.)

# 146 MR. SCHECK:

Stop.

# 147 MS. CLARK:

No, no, no. All the way back please. Further, please.

# 148 THE COURT:

To the entrance, Mr. Harris. Thank you.

# 149 (The videotape resumes playing.)

# 150 MR. SCHECK:

Okay. Okay.

# 151 (Discussion held off the record between Defense counsel.)

# 152 MR. SCHECK:

Now, you focused on yourself and Miss Mazzola leaving and then there is--and she has a trash bag in her hand, correct?

# 153 MR. GOLDBERG:

Well, it is vague as to which tape, your Honor.

# 154 MR. SCHECK:

This cut right here.

# 155 THE COURT:

Overruled.

# 156 MR. FUNG:

She has got a bag--a plastic bag, yes, a large plastic bag.

# 157 MR. SCHECK:

Okay. All right. Now, I would like to show you--

# 158 MR. GOLDBERG:

Your Honor, I would make a motion to strike the witness' answer because it is still not clear as to which of the two cuts in that tape.

# 159 THE COURT:

Overruled.

# 160 MR. GOLDBERG:

In tape no. 1104.

# 161 THE COURT:

Overruled.

# 162 (Discussion held off the record between Defense counsel.)

# 163 MR. SCHECK:

I'm now going to show you another sequence in this and it is 1103, your Honor.

# 164 (Discussion held off the record between Defense counsel.)

# 165 MR. SCHECK:

Now, I'm going to show you another sequence--just go back a little bit.

# 166 (Discussion held off the record between Defense counsel.)

# 167 MR. SCHECK:

Okay. Let's run it.

# 168 (The videotape resumes playing.)

# 169 MR. SCHECK:

Now, you see--okay. Stop for a second. Now, that is you and Miss Mazzola again leaving Rockingham?

# 170 MR. FUNG:

Yes.

# 171 MR. SCHECK:

And I think you told us that is Mr. Wilson behind you?

# 172 MR. FUNG:

Yes.

# 173 MR. SCHECK:

Okay. Stop.

# 174 MR. SCHECK:

You see the black and white car?

# 175 MR. FUNG:

Yes.

# 176 MR. SCHECK:

Let's move forward. Stop.

# 177 MR. SCHECK:

You see the gray car?

# 178 MR. FUNG:

Yes, I do.

# 179 MR. SCHECK:

All right. Now, that would be Detective Vannatter's car that you saw in the previous shot?

# 180 MR. FUNG:

I don't know if it is his car, but that is the one he was getting out of.

KEY QUOTE

# 181 MR. SCHECK:

Getting out of? All right. Let's proceed.

# 182 (The videotape resumes playing.)

# 183 MR. SCHECK:

Okay.

# 184 MR. SCHECK:

Now, looking at those videotapes, you testified that you, at some point in the afternoon on June 13th, left Rockingham, correct?

# 185 MR. FUNG:

Yes.

# 186 MR. SCHECK:

Now, the segments that we saw depicting you and Miss Mazzola leaving Rockingham, all right, you recall the ones where you are carrying the black box and the paper bags in your left hand?

# 187 MR. FUNG:

Yes.

# 188 MR. SCHECK:

And you then put them in the truck?

# 189 MR. FUNG:

Yes.

# 190 MR. SCHECK:

All right. And then you say to her, "Let's go back for a last check"?

# 191 MR. FUNG:

Yes.

# 192 MR. SCHECK:

All right. And then we see you go back in, correct?

# 193 MR. FUNG:

Yes.

# 194 MR. SCHECK:

All right. And then we have a second set of shots that you saw two clips of you leaving Rockingham again, correct?

# 195 MR. FUNG:

Yes.

# 196 MR. SCHECK:

All right. And this time Miss Mazzola has that plastic bag in her hand?

# 197 MR. FUNG:

Yes.

# 198 MR. SCHECK:

And you are not carrying any bags in your hand?

# 199 MR. FUNG:

That's correct.

# 200 MR. SCHECK:

All right. And then you walk passed towards your truck again?

# 201 MR. FUNG:

Right.

# 202 MR. SCHECK:

All right. Now, in terms of sequence, sir, the first time that you walked out carrying the bags in your hand, all right, that was--that happened before the second time, didn't it?

# 203 MR. FUNG:

It appears so, yes.

# 204 MR. GOLDBERG:

That just calls for speculation of this witness' interpretation of the videotape which is no better than anyone else's.

# 205 THE COURT:

Overruled.

# 206 (Discussion held off the record between Defense counsel.)

# 207 MR. SCHECK:

Your Honor, I think that lays a foundation and we would like to show it to the jury.

# 208 THE COURT:

Well, no. I think Mr. Goldberg is entitled to a little cross-examination or redirect--actually cross-examination as to this issue of foundation.

# 209 MR. SCHECK:

Well, then maybe I will--

# 210 (Discussion held off the record between Defense counsel.)

# 211 MR. SCHECK:

Then I have more questions I would like to ask right now.

# 212 THE COURT:

All right.

# 213 MR. SCHECK:

And in that second tape you saw the gray car had pulled up, correct?

# 214 (No audible response.)

# 215 MR. SCHECK:

You saw the gray car that you saw Detective Vannatter get out of?

# 216 MR. GOLDBERG:

Vague as to which second tape.

# 217 MR. SCHECK:

There were two tapes you saw of you leaving Rockingham you have now told us a second time, correct?

# 218 MR. FUNG:

Could you repeat that one?

# 219 MR. SCHECK:

Sure. You remember the tapes where you and Miss Mazzola are walking down the driveway and Mr. Wilson is behind you?

# 220 MR. FUNG:

Yes.

# 221 MR. SCHECK:

All right. Now, that is--that happened second, correct?

# 222 MR. FUNG:

That is the second tape you showed me.

# 223 MR. SCHECK:

Yes. That is the second time--that is--in terms of leaving Rockingham, okay, I think you just told us that that happened after the first trip, correct?

# 224 MR. FUNG:

That appears to be the second time.

# 225 MR. SCHECK:

Yes. Now, you recall how much time past between the first and second trip?

# 226 MR. FUNG:

No, I do not.

# 227 MR. SCHECK:

Umm--

# 228 THE COURT:

What is in the plastic bag?

KEY QUOTE

# 229 MR. FUNG:

To the best of my recollection the envelope containing the blood vial is in there.

KEY QUOTE

# 230 MR. SCHECK:

Is in the plastic bag that Miss Mazzola is carrying?

# 231 MR. FUNG:

Yes.

# 232 (Discussion held off the record between Defense counsel.)

# 233 MR. SCHECK:

Can we bring the jury in?

# 234 THE COURT:

Mr. Goldberg, do you have any questions?

# 235 (Discussion held off the record between the Deputy District Attorneys.)

# 236 MR. GOLDBERG:

Your Honor, I would like to replay 1104 to ask the witness some questions about the two segments that counsel played.

# 237 THE COURT:

All right. Mr. Harris.

# 238 (Brief pause.)

# 239 MR. SCHECK:

Your Honor, how long would we be with the jury at this point?

# 240 THE COURT:

I'm contemplating going to 6:00 tonight.

# 241 MR. SCHECK:

I'm sorry?

# 242 THE COURT:

I said I'm contemplating going until 6:00 tonight.

# 243 MR. SCHECK:

I guess my question is how long will I have to explore this line with the witness, given it is five to 12:00.

# 244 THE COURT:

Mr. Goldberg just asked permission of the Court to ask some questions of Mr. Fung and I asked Mr. Harris to cue up 1104 because we would like to view that again, so I suspect we are going to break for lunch, come back at 1:30, but I think we are going to go until 6:00 today. Let's see 1104.

Temperature

tense

Key Quotes (4)

Lance A. Ito

What is in the plastic bag?

The judge himself asked the pivotal question during a foundation hearing, cutting to the heart of the defense's blood-planting theory.

Dennis Fung

To the best of my recollection the envelope containing the blood vial is in there.

Fung confirms that the blood reference vial was being carried out of Rockingham during the second departure — the one that occurred after Vannatter had arrived with it.

Dennis Fung

I don't know if it is his car, but that is the one he was getting out of.

Fung hedges on whether the gray car belongs to Vannatter but concedes the visual fact, keeping the chain of inference intact for the defense.

Dennis Fung

It appears so, yes.

Fung acknowledges the ordering of the two departure sequences, a foundation brick for the defense's argument that Vannatter arrived between them.

Evidence (5)

Defense 1101

Videotape segment showing Fung and Mazzola's first departure from Rockingham, carrying evidence kit and paper bags

played and discussed

Defense 1102

More complete videotape of the same first departure sequence

played and discussed

Defense 1103

Videotape showing Detective Vannatter getting out of a gray car carrying a black duffel bag and clipboard

played and discussed

Defense 1104

Videotape showing Fung and Mazzola's second departure from Rockingham, with Mazzola carrying a large plastic bag

played and discussed

Informal

Plastic bag carried by Mazzola during second departure, containing the envelope with Simpson's blood reference vial

identified by Fung in response to judge's question

Notable Exchanges (3)

Lance A. Ito•Dennis Fung

Mid-proceeding, Judge Ito himself interrupted to ask 'What is in the plastic bag?' — Fung answered it held the blood vial envelope, which is the exact piece of evidence the defense argued was brought by Vannatter and potentially planted.

revealing

Barry Scheck•Dennis Fung

Scheck methodically establishes through the tapes that Vannatter's gray car was absent during the first departure and present during the second, with Fung confirming each step before conceding the sequencing.

strategic

Hank Goldberg•Lance A. Ito

Goldberg repeatedly objected — on foundation, vagueness, and speculation grounds — and was overruled each time, leaving the defense's framework unimpeded.

procedural

Light Moments (1)

Lance A. Ito

When Scheck says he's concerned about how much time he has left given it's near noon, Ito replies he's 'contemplating going until 6:00 tonight,' prompting Scheck to ask him to repeat himself.

Credibility Attacks (1)

⚔ Dennis Fung

videotape impeachment / prior inconsistent conduct

Scheck uses the four videotape exhibits to establish a timeline that contradicts the prosecution's narrative about when evidence was collected and secured — specifically, that the blood vial was being transported out of Rockingham during a second departure that postdates Vannatter's arrival with that same vial.

Witness Demeanor

(No audible response.) — recurring throughout; Fung frequently gave silent or non-verbal acknowledgments on camera

Fung asked Scheck to repeat a question about the sequence of departures, suggesting confusion or caution under examination

Objections

7 objections (0 sustained, 6 overruled)

Proceeding 5690 • 244 utterances • Defense witness

Criminal Trial

Department 103