Redirect examination of Dennis Fung (part 4)

📄 Redirect examination of Dennis Fung (part 4) — Thursday, April 13, 1995

Address:

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

TRIAL

▲ Day 56 of 167

Witness: Dennis Fung
Examiner: Barry Scheck
Called by: Defense • Date: Thursday, April 13, 1995 • Utterances: 75

Barry Scheck continues cross-examining criminalist Dennis Fung in the civil trial, pressing him on pre-testimony conversations with his partner Andrea Mazzola — specifically whether she told him when they departed the Rockingham estate. Scheck then pivots to challenge Fung's account of how OJ Simpson's blood reference sample, received in a gray manila envelope, ended up stored in a plastic trash bag, exposing that neither Fung nor Mazzola brought such a bag to the scene.

# 1 THE COURT:

All right. Thank you, ladies and gentlemen. Please be seated. Let the record reflect we have been rejoined by all the members of our jury panel. Mr. Dennis Fung is on the witness stand undergoing cross-examination by Mr. Scheck. Good afternoon again, Mr. Fung.

# 2 MR. FUNG:

Good afternoon.

# 3 MR. SCHECK:

May I finish my cross-examination?

# 4 THE COURT:

You may.

# 5 (Brief pause.)

# 6 MR. SCHECK:

Let me show you pages 762 and 763 of the proceedings in August. Ask you to read these pages and let's see if it refreshes your recollection.

# 7 (Brief pause.)

# 8 MR. SCHECK:

After having looked at these pages, does it refresh your recollection that in your conversations with Miss Mazzola--

# 9 THE COURT:

Why don't you rephrase the question.

# 10 MR. SCHECK:

I'm sorry.

# 11 THE COURT:

You said refresh his recollection first about a conversation with Miss Mazzola.

# 12 MR. SCHECK:

All right.

# 13 MR. SCHECK:

Having looked at these pages, is your recollection in any way refreshed with respect to conversations you have had with Miss Mazzola?

# 14 MR. FUNG:

I don't recall having conversations about those particular topics.

# 15 MR. SCHECK:

All right. Are you saying, Mr. Fung, that in your conversations with Miss Mazzola, prior to coming in here to testify, she did not indicate to you that she was with you for the entire time?

# 16 MR. GOLDBERG:

Your Honor, I object.

# 17 THE COURT:

Sustained.

# 18 MR. SCHECK:

Has Miss Mazzola ever told you--

# 19 MR. GOLDBERG:

Your Honor, may we approach?

# 20 THE COURT:

It is hearsay. Sustained.

# 21 MR. SCHECK:

I'm asking what Miss Mazzola said to him.

# 22 THE COURT:

It is hearsay.

# 23 MR. SCHECK:

Not for the truth of the matter asserted; for the fact that it was said to her.

KEY QUOTE

# 24 THE COURT:

Hearsay without further foundation. Proceed.

# 25 MR. SCHECK:

You had conversations with Miss Mazzola prior to testifying here?

# 26 MR. FUNG:

Yes.

# 27 MR. SCHECK:

And in these conversations you discussed what items of evidence were picked up and when?

# 28 MR. FUNG:

That was touched on, yes.

# 29 MR. SCHECK:

And that is part of the way that you made those corrections or those additions, I should say, on the evidence collection sheets?

# 30 MR. FUNG:

Yes.

# 31 MR. SCHECK:

And in those conversations did Miss Mazzola indicate to you that she was with you from the entire time--

# 32 MR. GOLDBERG:

Hearsay, your Honor.

# 33 THE COURT:

Finish the question.

# 34 MR. SCHECK:

That she was with you the entire time after you picked up the last item at Rockingham at about five o'clock until you departed for the next designation (sic)?

# 35 MR. GOLDBERG:

Hearsay.

# 36 THE COURT:

Overruled at this point.

# 37 MR. FUNG:

We never discussed that, no.

# 38 MR. SCHECK:

In your conversations with Miss Mazzola prior to coming here and testifying, did she indicate to you that she believed that you and--that the two of you had left the Rockingham location a few minutes after 5:00?

# 39 MR. GOLDBERG:

Hearsay, your Honor.

# 40 THE COURT:

Overruled. Ladies and gentlemen, I'm allowing these questions and answers for the limited purpose--assuming that the answer--that the implication of the answer--excuse me--the question--let me start again. I'm allowing this evidence for a limited purpose, that is, whether or not this statement was made to Mr. Fung, not whether or not that statement is in fact true. Mr. Scheck.

# 41 MR. SCHECK:

Thank you. May I put the last question to the witness?

# 42 THE COURT:

You may.

# 43 MR. SCHECK:

Mr. Fung, in your conversations with Miss Mazzola prior to your testimony, did she ever indicate to you that she recalled leaving Rockingham a few minutes after 5:00?

# 44 MR. FUNG:

I don't recall having discussed that.

KEY QUOTE

# 45 MR. SCHECK:

Did you ever see any document where Miss Mazzola indicated to you--indicated that she thought the two of you had left Rockingham before 5:20?

# 46 MR. FUNG:

If I can refer to my notes.

# 47 (Brief pause.)

# 48 MR. FUNG:

I don't recall any document, no.

# 49 MR. SCHECK:

In the notes you just looked at, Mr. Fung, those were the crime scene checklist for Rockingham?

# 50 MR. FUNG:

Yes.

# 51 MR. SCHECK:

And that is a document of four pages--well, the first four pages are numbered 1, 2, 3, 4?

# 52 MR. FUNG:

Yes.

# 53 MR. SCHECK:

And on the fourth page of that document there is a line that indicates "Time left scene"?

# 54 MR. FUNG:

Yes.

# 55 MR. SCHECK:

We will get back to that in a minute. That is ordinarily where somebody writes down the time that they left the scene?

# 56 MR. FUNG:

Yes.

# 57 MR. SCHECK:

And Miss Mazzola was the one that was taking notes?

# 58 MR. FUNG:

Yes.

# 59 MR. SCHECK:

Now, Mr. Fung, you have told us that the gray manila envelope with Mr. Simpson's blood sample was placed by you into a trash bag?

# 60 MR. FUNG:

A plastic trash bag.

# 61 MR. SCHECK:

Is that correct?

# 62 MR. FUNG:

That's what I remember.

# 63 MR. SCHECK:

All right. Where did you get the trash bag?

# 64 MR. FUNG:

I asked one of the detectives to find one for me--to find some type of bag that I could put the envelope in.

KEY QUOTE

# 65 MR. SCHECK:

And this was when you returned into Mr. Simpson's house?

# 66 MR. FUNG:

This was after receiving the envelope.

# 67 MR. SCHECK:

Well, when you went back inside to Mr. Simpson's house, after putting the brown paper bags in and the valise in the car, you didn't have a black plastic bag with you?

# 68 MR. FUNG:

I had no idea that I would--

# 69 MR. SCHECK:

Did you have a black plastic bag with you?

# 70 MR. FUNG:

No.

# 71 MR. SCHECK:

Did Miss Mazzola have a black plastic bag with her?

# 72 MR. FUNG:

No.

# 73 MR. SCHECK:

And so you are now saying you went back into the Rockingham location at that time?

# 74 MR. GOLDBERG:

Argumentative as phrased.

# 75 THE COURT:

Sustained. Rephrase the question.

Temperature

tense

Key Quotes (4)

Dennis Fung

I asked one of the detectives to find one for me--to find some type of bag that I could put the envelope in.

Fung admits the blood sample envelope was placed in a bag sourced ad hoc from a detective — undermining chain of custody and suggesting improvised evidence handling.

Dennis Fung

I don't recall having discussed that.

Fung repeatedly claims no memory of key conversations with Mazzola about departure time, weakening the prosecution's timeline.

Barry Scheck

Not for the truth of the matter asserted; for the fact that it was said to her.

Scheck makes a classic hearsay carve-out argument to get Mazzola's out-of-court statements before the jury through Fung.

Lance A. Ito

I'm allowing this evidence for a limited purpose, that is, whether or not this statement was made to Mr. Fung, not whether or not that statement is in fact true.

Ito gives a limiting instruction, partially vindicating Scheck's hearsay argument and allowing the damaging questions to proceed.

Evidence (3)

Informal

Pages 762-763 of August proceedings — used to refresh Fung's recollection about conversations with Mazzola

shown to witness, recollection not refreshed

Informal

Crime scene checklist for Rockingham — four-page document with 'Time left scene' field on page four, completed by Mazzola

discussed, departure time disputed

Informal

Gray manila envelope containing OJ Simpson's blood reference sample

discussed — chain of custody challenged; Fung admits it was placed in a plastic trash bag obtained from a detective

Notable Exchanges (2)

Barry Scheck•Hank Goldberg•Lance A. Ito

Extended battle over whether Fung can be asked what Mazzola told him about departure time. Goldberg repeatedly objects on hearsay grounds; Ito ultimately overrules and gives a limiting instruction allowing the questions.

strategic

Barry Scheck•Dennis Fung

Scheck establishes step by step that neither Fung nor Mazzola had a plastic trash bag when they returned to Rockingham, forcing Fung to admit he obtained one from a detective to store the blood envelope.

revealing

Credibility Attacks (2)

⚔ Dennis Fung

prior inconsistent statement / memory impeachment

Scheck uses August hearing transcript pages to challenge Fung's claimed lack of memory about Mazzola conversations, implying Fung discussed departure times and evidence collection with her before testifying.

⚔ Dennis Fung

chain of custody challenge

Scheck establishes that the gray manila envelope containing Simpson's blood was placed in a trash bag improvised from a detective rather than proper evidence packaging brought by the criminalists, raising contamination and tampering concerns.

Witness Demeanor

(Brief pause.) — after being shown transcript pages 762-763

(Brief pause.) — while consulting notes on the crime scene checklist

Objections

7 objections (3 sustained, 3 overruled)

Proceeding 5673 • 75 utterances • Defense witness

Criminal Trial

Department 103