Redirect examination of Dennis Fung (part 7)

📄 Redirect examination of Dennis Fung (part 7) — 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: 203

Barry Scheck continues his devastating cross-examination of criminalist Dennis Fung, focusing on item number discrepancies between Fung's property reports and Collin Yamauchi's lab records (blood vial labeled 17 vs. 18), an erased notation Fung made in July suggesting he tried to reconcile the numbering, and the bombshell discovery that page 4 of the crime scene checklist — the page containing 'time leaving scene' — lacks staple holes, indicating it is not the original page. Scheck directly accuses Fung of destroying the original page 4 to conceal a departure time inconsistent with the 5:20 written on Vannatter's blood envelope.

# 1 MR. SCHECK:

I'm sorry, did you say--did you misspeak and say that you got the sneakers on the 13th?

# 2 MR. FUNG:

I believe I--I--

# 3 MR. SCHECK:

You got the sneakers on the 14th?

# 4 MR. FUNG:

I got the sneakers on the 14th. I got the blood on the 13th.

# 5 MR. SCHECK:

All right. Now, you might have seen this document then, not on June 14th, but June 15th?

# 6 (No audible response.)

# 7 MR. SCHECK:

You said you saw it around the time you were writing up your property report.

# 8 MR. FUNG:

Possibly.

# 9 MR. SCHECK:

So you are not sure whether it is the 14th or the 15th that you saw this document?

# 10 MR. FUNG:

It was when I was writing my property reports. I could check.

# 11 (Brief pause.)

# 12 MR. FUNG:

It was on the 14th.

# 13 MR. SCHECK:

So on the 14th you saw this document?

# 14 MR. FUNG:

Yes.

# 15 MR. SCHECK:

And when you looked at it you decided that you didn't like the order in which Miss Mazzola had put down the receipt of these items?

# 16 MR. FUNG:

I--when I was writing my property report I wanted to save on paperwork, so I changed the order of the item numbers that she had written down.

# 17 MR. SCHECK:

And then on--this is page 8 of the Rockingham report--in your evidence collection sheet, you told us that you went back and you changed what had been--what Miss Mazzola had written as 17 under "Sample item," correct?

# 18 (No audible response.)

# 19 MR. SCHECK:

The top of that page is--there is a reference to the item received by you from Detective Lange, the sneakers?

# 20 MR. FUNG:

Yes. The very top line?

# 21 MR. SCHECK:

Yes.

# 22 MR. FUNG:

Yes.

# 23 MR. SCHECK:

And Miss Mazzola had written "17" there?

# 24 MR. FUNG:

At one point in time, yes, there was a "17" there.

# 25 MR. SCHECK:

And you changed that to an "8"?

# 26 MR. FUNG:

Yes.

# 27 MR. SCHECK:

And then below that indicated "17" for the blood sample?

# 28 MR. FUNG:

Yes.

# 29 MR. SCHECK:

And on direct examination you said you did that on June 15th?

# 30 MR. GOLDBERG:

Misstates the testimony.

# 31 MR. SCHECK:

When did you do it?

# 32 MR. FUNG:

I--it was either the 14th or the 15th. I don't recall.

# 33 MR. SCHECK:

And on the morning of June 14th you gave Collin Yamauchi Mr. Simpson's blood vial?

# 34 MR. FUNG:

On the morning of the--

# 35 MR. SCHECK:

The 14th?

# 36 MR. FUNG:

The 14th?

# 37 MR. GOLDBERG:

The record should reflect that the witness is refreshing his recollection with his book.

# 38 THE COURT:

Yes.

# 39 MR. SCHECK:

May I approach the witness?

# 40 THE COURT:

You may.

# 41 (Brief pause.)

# 42 MR. FUNG:

To the best of my recollection that was when I--it was on the 14th that I released custody to him.

# 43 MR. SCHECK:

And he poured off some blood and gave it back to you?

# 44 MR. GOLDBERG:

No foundation for personal knowledge, also vague.

# 45 THE COURT:

Sustained.

# 46 MR. SCHECK:

Did Mr. Yamauchi then return the blood vial to you on the morning of the 14th?

# 47 MR. FUNG:

After I gave it to him, he did return it to me, yes.

# 48 MR. SCHECK:

Did you actually see him taking blood out of the blood vial on the morning of the 14th?

# 49 MR. FUNG:

I don't recall seeing him doing that.

# 50 MR. SCHECK:

Now, on direct examination you were asked whether or not you recalled what item number you told Collin Yamauchi the blood vial was?

# 51 MR. FUNG:

I don't recall that testimony.

# 52 MR. SCHECK:

Well, do you recall that you were asked that question and you said you didn't remember which item number you told Collin Yamauchi the blood vial was on the morning of June 14th?

# 53 MR. FUNG:

I don't recall what my testimony was at that point.

# 54 MR. SCHECK:

Okay. Do you recall whether or not you told Collin Yamauchi what item number you had designated the blood vial on June 14th?

# 55 MR. FUNG:

I told--or--from records that I have come in contact with, I told him it was 18.

# 56 MR. SCHECK:

When did you first learn that Mr. Yamauchi had recorded the blood vial as being item 18, not 17?

# 57 MR. FUNG:

When did I first learn this?

# 58 MR. SCHECK:

Yes.

# 59 MR. FUNG:

After I had written my property reports I went to tell him that I had changed the item numbers and that is when I found out that he had written the report and put down the item number as 18.

# 60 MR. SCHECK:

And was this a cause for concern, that Mr. Yamauchi had written down no. 18 for the blood vial and not no. 17?

# 61 MR. GOLDBERG:

Vague as to "Concern."

# 62 THE COURT:

Sustained.

# 63 MR. SCHECK:

Was this a cause of concern for you, that Mr. Yamauchi had actually written down no. 18 as the blood vial, not 17?

# 64 MR. FUNG:

As a matter of keeping things clean as far as having to write follow-up reports, yes, it was a concern to me.

# 65 MR. SCHECK:

You said it was a matter of keeping things clean?

# 66 MR. FUNG:

Paperwork wise, yes.

# 67 MR. SCHECK:

Well, weren't you very concerned that if the record showed the blood vial being received after the sneakers, that that might reveal that the blood vial was actually received on the morning of June 14th?

# 68 MR. FUNG:

Not on the afternoon of June 13th.

# 69 MR. SCHECK:

That was not a concern?

# 70 MR. FUNG:

No.

# 71 MR. SCHECK:

Never entered your mind?

# 72 MR. FUNG:

I was more concerned about having to write up a follow-up report.

KEY QUOTE

# 73 MR. SCHECK:

So that thought never entered your mind?

# 74 MR. FUNG:

No.

# 75 MR. SCHECK:

Never a concern that anybody might look at this mislabeling and think that the blood vial had not been transferred to you on the afternoon of the 13th, but actually had been turned over on the morning of the 14th?

# 76 MR. GOLDBERG:

Objection as misleading.

# 77 THE COURT:

Sustained.

# 78 MR. SCHECK:

No concern on your part that the fact that Mr. Yamauchi had labeled it 18, not 17, might lead someone to question whether or not you had actually received the blood vial on the afternoon of the 13th as opposed to the morning of the 14th?

# 79 MR. FUNG:

That did not occur to me.

# 80 MR. SCHECK:

At some time after June 15th did anybody ever question you about how the blood vial had been labeled 18 in Mr. Yamauchi's reports but you put it in your property report as 17?

# 81 MR. FUNG:

In testimony, yes.

# 82 MR. SCHECK:

It arose for the first time in testimony?

# 83 MR. FUNG:

Being questioned about it, yes.

# 84 MR. SCHECK:

No one in the laboratory ever came to you and asked you how something like this could happen, that Mr. Yamauchi had recorded the blood vial as 18, but in your property report you said it was 17?

# 85 MR. FUNG:

I told Mr. Matheson about it. I told Collin that I had done it. The--

# 86 THE COURT:

Collin is who?

# 87 MR. FUNG:

Mr. Yamauchi, I'm sorry. I told Mr. Yamauchi that I had changed the item number, I had flipped them around, and that--that was the conversations that I had.

# 88 MR. SCHECK:

And that conversation happened around when?

# 89 MR. FUNG:

Shortly after I had written the property reports and was going to tell him that I had changed the item numbers.

# 90 MR. SCHECK:

And that was in June?

# 91 MR. FUNG:

Yes.

# 92 MR. SCHECK:

Did anybody come to you in July and question you about the fact that the blood vial had been labeled 18 in Mr. Yamauchi's records but 17 in your property report?

# 93 MR. FUNG:

No.

# 94 MR. SCHECK:

No conversation about that at all in July?

# 95 MR. FUNG:

None that I can recall.

# 96 MR. SCHECK:

No concern on your part in July about the fact that there had been this confusion, as you put it, between 17 and 18?

# 97 MR. FUNG:

It was--

# 98 MR. GOLDBERG:

Misstates the testimony, "Confusion."

# 99 THE COURT:

Overruled.

# 100 MR. FUNG:

It wasn't confusing to me.

# 101 MR. SCHECK:

All right. No concern--did anybody in the month of July cause you to go back over your crime scene checklist records and make changes?

# 102 MR. FUNG:

I may have gone in and added some information that I had remembered and added things that I recalled into the crime scene checklist.

# 103 MR. SCHECK:

Oh, but nothing concerning this question of 17 and 18?

# 104 MR. FUNG:

No.

# 105 MR. SCHECK:

Now, you know, Mr. Yamauchi--you know Mr. Yamauchi, right?

# 106 MR. FUNG:

Yes, I do.

# 107 MR. SCHECK:

Yes. Now, you know, Mr. Fung, that questions have been raised about whether or not all the blood in Mr. Simpson's blood sample can be accounted for.

# 108 MR. GOLDBERG:

That assumes a fact not in evidence, questions have been raised.

# 109 THE COURT:

Sustained. Rephrase the question.

# 110 MR. SCHECK:

All right. Are you aware that the Defense has raised questions about whether or not all the blood in Mr. Simpson's blood sample can be accounted for.

# 111 MR. GOLDBERG:

Irrelevant. It calls for hearsay.

# 112 THE COURT:

Overruled.

# 113 MR. FUNG:

I am aware of that.

# 114 MR. SCHECK:

And before the Defense raised these questions at this trial did anyone in the laboratory ever ask you any questions about whether or not there had been any tampering with Mr. Simpson's blood vial?

# 115 MR. FUNG:

I don't recall anybody asking me if it was tampered with, no.

# 116 MR. SCHECK:

Well, were there any questions asked of you about that subject by Miss Kestler?

# 117 MR. FUNG:

I don't recall her asking me that.

# 118 MR. SCHECK:

Mr. Matheson?

# 119 MR. FUNG:

I don't recall him asking me that.

# 120 MR. SCHECK:

Was there any ever--were you ever asked any questions by an investigator from the District Attorney's office about possible tampering with Mr. Simpson's blood vial?

# 121 MR. FUNG:

No.

# 122 MR. SCHECK:

All right. Now, didn't you go back and look at these records in July to see--to see whether or not you had adequately covered your tracks about the fact that you really--

# 123 THE COURT:

Let's rephrase that question, counsel.

# 124 MR. SCHECK:

All right.

# 125 MR. SCHECK:

Did you look back through these records, these crime scene checklist records, in July with the concern that there might be something there that would reveal that you really didn't receive Mr. Simpson's blood vial on the afternoon of June 13th but you really received it on the morning of the 14th?

# 126 MR. FUNG:

That was not a concern to me because that is not what happened.

KEY QUOTE

# 127 MR. SCHECK:

Okay. I direct your attention to--there is an erasure, is there not, between item 17 and 18 on this document?

# 128 MR. FUNG:

Yes, there is.

# 129 MR. SCHECK:

And what had been there before was a circle and a "7-5-94" and underneath it your initials "D.F."?

# 130 MR. FUNG:

That appears to be what I--what appears to be on the screen, yes.

# 131 THE COURT:

Counsel, if you are showing him potential erasures on the elmo, why don't you show him the original document.

# 132 MR. SCHECK:

All right.

# 133 (Brief pause.)

# 134 MR. SCHECK:

Please take your time in examining that.

# 135 (Brief pause.)

# 136 MR. FUNG:

Okay.

# 137 MR. SCHECK:

Now, in that erased portion you had written "7-5-94" within a circle and within that circle you put your initials "D.F."?

# 138 MR. FUNG:

Yes.

# 139 MR. SCHECK:

And you put a line with an arrow on the top of it and an arrow on the bottom of it?

# 140 MR. FUNG:

Yes.

# 141 MR. SCHECK:

To indicate that these items should be switched, 17 and 18, as written on that piece of paper?

# 142 MR. FUNG:

I don't know why I wrote it, but yes, it is there.

# 143 MR. SCHECK:

So you took a look at that piece of paper and you became concerned about the fact that the sneakers were 17 and the blood vial was 18, right?

# 144 MR. FUNG:

Yes.

# 145 MR. SCHECK:

And that was in July when you were going through these pages that you had that concern?

# 146 MR. FUNG:

Apparently, yes.

# 147 MR. SCHECK:

And then after writing that notation you decided to erase it?

# 148 MR. FUNG:

I did erase it from what is here, yes.

KEY QUOTE

# 149 MR. SCHECK:

And in going through the pages of the crime scene checklist, you saw another document that created a problem for you, didn't you?

# 150 MR. FUNG:

What are you referring to?

# 151 MR. SCHECK:

I'm referring to page 4 of the crime scene checklist.

# 152 MR. FUNG:

What about it?

# 153 MR. SCHECK:

Page 4 of the crime scene checklist has a box indicating "Disposition of evidence"?

# 154 (No audible response.)

# 155 MR. SCHECK:

I should say "Disposition of scene"?

# 156 MR. FUNG:

Yes.

# 157 MR. SCHECK:

May I put this up on the elmo?

# 158 MR. SCHECK:

Okay. Page 4 has a box indicating "Evidence booked to"?

# 159 MR. FUNG:

Yes.

# 160 MR. SCHECK:

"Evidence booked by"?

# 161 MR. FUNG:

Yes.

# 162 MR. SCHECK:

"Disposition of scene"?

# 163 MR. FUNG:

Yes.

# 164 MR. SCHECK:

And most importantly, sir, it has a box indicating "Time leaving scene"?

# 165 MR. FUNG:

I don't know if that is the most important box, but there is a blank there.

# 166 MR. SCHECK:

There is a box there that indicates time leaving scene, doesn't it?

# 167 MR. FUNG:

Yes, there is a box there.

# 168 MR. SCHECK:

And Miss Mazzola had been the one filling out these reports?

# 169 MR. FUNG:

She was filling out the crime scene checklist that day.

# 170 MR. SCHECK:

And Miss Mazzola was under the impression that you had left the Rockingham scene earlier than 5:20, wasn't she?

# 171 MR. GOLDBERG:

Calls for speculation.

# 172 THE COURT:

Sustained.

# 173 MR. SCHECK:

Do you know if Miss Mazzola was under the impression in June that the two of you had left Rockingham before 5:20?

# 174 MR. GOLDBERG:

Calls for hearsay.

# 175 THE COURT:

Overruled.

# 176 MR. FUNG:

I don't know when she thought we left Rockingham.

# 177 MR. SCHECK:

5:20 is the time that you wrote on the gray envelope you received it from Detective Vannatter?

# 178 MR. FUNG:

Yes, it is.

# 179 MR. SCHECK:

If there were something filled in there that said 5:15 as to the time leaving scene, that would be inconsistent with what you wrote on the gray envelope you received from Detective Vannatter?

# 180 MR. GOLDBERG:

Argumentative, your Honor.

# 181 THE COURT:

Overruled.

# 182 MR. FUNG:

If there was that time there, yes, it would.

# 183 MR. SCHECK:

And that is why you destroyed the original page 4, Mr. Fung?

# 184 MR. FUNG:

That is not true.

# 185 MR. SCHECK:

Mr. Fung, I'm going to show you each of the originals of this crime scene checklist. I want you to look at them and I want you to look at the upper left-hand corner of each of the pages and that would include--let me put it in order for you.

# 186 MR. GOLDBERG:

May I approach as well, your Honor?

# 187 THE COURT:

You may.

# 188 (Brief pause.)

# 189 MR. SCHECK:

Why don't you and Mr. Goldberg look at the left-hand corners of all those pages of the crime scene checklist very, very carefully.

# 190 (Brief pause.)

# 191 MR. SCHECK:

One of those pages doesn't have staple holes in it, Mr. Fung?

# 192 MR. FUNG:

That's correct.

# 193 MR. SCHECK:

That is page 4, isn't it?

# 194 MR. FUNG:

Yes, it is.

# 195 MR. SCHECK:

That is because that page 4 is not the original page 4?

# 196 MR. FUNG:

That is apparent to me now, yes.

KEY QUOTE

# 197 MR. SCHECK:

That is because you got rid of the original page 4; isn't that true, Mr. Fung?

KEY QUOTE

# 198 MR. FUNG:

That is not true.

# 199 MR. SCHECK:

That is because it had the wrong time on it; isn't that true?

# 200 MR. FUNG:

If it had wrong time--no, that is not true.

# 201 MR. SCHECK:

Your Honor, I would like to do two more things and I'm finished questioning this witness. What I would like to do is first have printed out on the elmo a copy of the document with the erasure and then I would ask that each of these documents be handed to the jury so they can examine them.

# 202 THE COURT:

All right. Let's print out this document on the elmo.

# 203 (Brief pause.)

Temperature

devastating

Key Quotes (5)

Dennis Fung

I was more concerned about having to write up a follow-up report.

Fung's explanation for why renumbering the blood vial from 18 to 17 was not a concern — an answer Scheck uses to suggest implausible indifference to a chain-of-custody problem.

Dennis Fung

That is apparent to me now, yes.

Fung acknowledges on the stand, seemingly for the first time, that page 4 of the crime scene checklist is not the original — a critical concession implying document substitution.

Barry Scheck

That is because you got rid of the original page 4; isn't that true, Mr. Fung?

Scheck's direct accusation of evidence destruction, made after establishing the missing staple holes — one of the most explosive moments of the cross-examination.

Dennis Fung

I did erase it from what is here, yes.

Fung admits erasing the July notation he made on the crime scene checklist — a notation that showed he had circled and initialed an attempt to switch item numbers 17 and 18.

Dennis Fung

That was not a concern to me because that is not what happened.

Fung's categorical denial that the blood vial was received on the morning of the 14th rather than the afternoon of the 13th — the central factual dispute underlying all the numbering questions.

Evidence (6)

Informal

Rockingham crime scene checklist, page 8 — evidence collection sheet showing item number changes from Mazzola's original entries

discussed, shown on ELMO

Informal

Rockingham crime scene checklist, page 4 — 'disposition of scene' page with 'time leaving scene' box; shown to lack staple holes indicating it is not the original

challenged, physically examined by counsel and witness

Informal

Erased notation on crime scene checklist showing '7-5-94' circled with initials 'D.F.' and arrows indicating items 17 and 18 should be switched

displayed on ELMO, printed out, to be handed to jury

Informal

Gray envelope from Detective Vannatter bearing time '5:20' — used as reference point against the missing page 4 time entry

referenced

Informal

Collin Yamauchi's laboratory report listing OJ Simpson's blood vial as item 18

discussed

Informal

OJ Simpson's blood vial (item 17 per Fung's report, item 18 per Yamauchi's report)

discussed, chain of custody challenged

Notable Exchanges (4)

Barry Scheck•Dennis Fung

Scheck walks Fung through his own erased notation dated 7-5-94, establishing that Fung went back in July to review the records, wrote a notation indicating he wanted to switch item numbers 17 and 18, then erased it — directly contradicting Fung's earlier testimony that the numbering question was only a paperwork concern settled in June.

devastating

Barry Scheck•Dennis Fung•Hank Goldberg

Scheck asks Fung to physically examine the original pages of the crime scene checklist and compare staple holes. Fung concedes that page 4 — the page with the 'time leaving scene' box — does not have staple holes and is therefore not the original.

revealing

Barry Scheck•Dennis Fung

Scheck directly accuses Fung of destroying the original page 4 because it contained a departure time inconsistent with 5:20 on Vannatter's envelope. Fung denies it flatly twice: 'That is not true.'

heated

Lance A. Ito•Barry Scheck

Judge Ito intervenes when Scheck tries to use the ELMO to show erasures to the witness, directing Scheck to show Fung the original document instead.

procedural

Credibility Attacks (4)

⚔ Dennis Fung

prior inconsistent statement / document impeachment

Scheck establishes that Fung changed item numbers in Mazzola's records (sneakers from 17 to 8, blood vial to 17) and that Yamauchi had independently recorded the blood vial as item 18 — creating a discrepancy Fung cannot cleanly explain.

⚔ Dennis Fung

physical evidence of erasure

Scheck presents the erased '7-5-94 D.F.' notation with switching arrows, proving Fung revisited the item number problem in July — months after he claimed the issue was resolved — and then erased the evidence of that review.

⚔ Dennis Fung

physical evidence of document substitution

Scheck has Fung and Goldberg examine staple holes on all pages of the crime scene checklist, establishing that page 4 (containing 'time leaving scene') lacks staple holes and is not the original, then directly accuses Fung of replacing it to conceal an inconsistent departure time.

⚔ Dennis Fung

bias / consciousness of guilt

Scheck repeatedly presses Fung on why he never reported the 17/18 discrepancy to supervisors and why no one in the lab asked him about it before trial, suggesting a cover-up rather than innocent paperwork error.

Witness Demeanor

(No audible response.) — repeated several times when confronted with damaging questions

(Brief pause.) — witness refreshes recollection from notes on date of blood transfer

Fung hedges repeatedly: 'I don't recall,' 'Apparently, yes,' 'I don't know why I wrote it, but yes'

Objections

12 objections (5 sustained, 3 overruled)

Proceeding 5679 • 203 utterances • Defense witness

Criminal Trial

Department 103