Cross-examination of Dennis Fung (part 3)

📄 Cross-examination of Dennis Fung (part 3) — Friday, April 14, 1995

Address:

C:\DEPT103\CRIMINAL\1995\APR\14\CROSS-EXAMINATION-OF-DENNIS-FU.DOC

TRIAL

▲ Day 57 of 167

Witness: Dennis Fung
Examiner: Hank Goldberg
Called by: Defense • Date: Friday, April 14, 1995 • Utterances: 200

Goldberg continues rehabilitating Fung after Scheck's cross-examination, focusing primarily on the blood vial chain of custody. Fung explains he had no independent memory of precisely how the vial moved from Vannatter to the crime scene truck — and that he considered this unremarkable at the time, not anticipating it would become a central accusation. New exhibits are introduced showing the blood vial envelope with Fung's own notation documenting receipt from Vannatter at 1720 on June 13.

# 1 (The following proceedings were held in open Court:)

# 2 THE COURT:

All right. Are we done with this exhibit, Mr. Goldberg?

# 3 MR. GOLDBERG:

Yes, your Honor.

# 4 (Brief pause.)

# 5 MR. GOLDBERG:

Your Honor, I just wanted to approach with this, if I may, with this document, just ask him one more question.

# 6 THE COURT:

One more.

# 7 MR. GOLDBERG:

Sir, with respect to this item number 1107, what is the--on the front of the form?

# 8 MR. FUNG:

The front is the field notes portion.

# 9 MR. GOLDBERG:

I would like to see the other document that's part of 1107. It's the page that has item 17, 18 and 19 written in it.

# 10 (Brief pause.)

# 11 MR. GOLDBERG:

Sir, and what is this form again?

# 12 MR. FUNG:

This is an evidence collection report.

# 13 MR. GOLDBERG:

And did--is this the form that Andrea Mazzola created after you told her that you didn't want the items on that blank sheet of paper that's on the reverse of the field notes?

# 14 MR. FUNG:

Yes.

# 15 MR. GOLDBERG:

Okay. And when you first saw it, what were the order of the items?

# 16 MR. FUNG:

I'm going to refer to my copy. The order of items was that 17 was in the top box where 18 is, 18 was next to it or below it and 19 followed it.

# 17 MR. GOLDBERG:

And how was that problem dealt with? What did you do about that?

# 18 MR. FUNG:

I erased 17 and 18 and changed the numbers.

# 19 THE COURT:

I'm sorry. I think the monitor up here for jurors 1 and 2 is--do we have it on? Mr. Fairtlough? Where is Miss Fitzpatrick? Is it on? All right. Thank you. Mr. Goldberg.

# 20 MR. GOLDBERG:

Now, Mr. Fung, if you write out a report in the crime lab and you make a mistake on that report or there's something on it that you want to change, is there any rule that says that you can't simply, if you have a--if you're in the process of creating a document, throw it away and start all over again?

# 21 MR. FUNG:

There's no rule to that, no.

# 22 MR. GOLDBERG:

Did you ask Andrea Mazzola to do that with respect to this document?

# 23 MR. FUNG:

No.

# 24 MR. GOLDBERG:

So did you decide to maintain this document?

# 25 MR. FUNG:

Yes.

# 26 MR. GOLDBERG:

As a Criminalist III, could you have said--would it have been in your power to have said to Andrea Mazzola--

# 27 MR. SCHECK:

Objection. Leading.

# 28 THE COURT:

Finish the question, but it sounds like it's leading.

# 29 MR. GOLDBERG:

Okay. Do you have the authority as a Criminalist III to tell a Criminalist I, "Clean up this document, write out a new one"?

# 30 MR. FUNG:

Yes, I do.

# 31 MR. GOLDBERG:

Did you do that?

# 32 MR. FUNG:

No.

# 33 MR. GOLDBERG:

Now, you said that you had no recollection of talking to--thank you--no recollection of talking to Criminalist Mazzola specifically about the circumstances under which you got the blood vial; is that correct?

# 34 MR. FUNG:

That's correct.

# 35 MR. GOLDBERG:

And why was it that you--well, do you have a recollection of talking to her about things like the circumstances of collecting--

# 36 MR. SCHECK:

Objection. Leading.

# 37 THE COURT:

Overruled.

# 38 MR. GOLDBERG:

--the blood on the trail at Bundy?

# 39 MR. FUNG:

No.

# 40 MR. GOLDBERG:

Well, do you believe--do you have a recollection of talking to Miss Mazzola about collecting items on the trail at Bundy?

# 41 MR. FUNG:

Yes.

# 42 MR. GOLDBERG:

What about at Rockingham?

# 43 MR. FUNG:

Yes.

# 44 MR. GOLDBERG:

What about the glove and the cap at Bundy?

# 45 MR. FUNG:

Just briefly.

# 46 MR. GOLDBERG:

Okay. And why did you talk about those items but not the vial or why is it that you remember--

# 47 MR. SCHECK:

Objection as to the time when these conversations took place. These questions are vague.

# 48 THE COURT:

Sustained.

# 49 MR. GOLDBERG:

You said you had a conversation that was at some point after the Griffen hearing with Miss Mazzola.

# 50 MR. FUNG:

Yes.

# 51 THE COURT:

That's vague to the jury too.

# 52 MR. GOLDBERG:

Yeah, but they--that's true.

# 53 THE COURT:

Is that October 16th?

# 54 MS. CLARK:

Yeah.

# 55 MR. GOLDBERG:

Yeah, I think it was. Perhaps we could later on have that--the Court take judicial notice of that.

# 56 MR. GOLDBERG:

Sir, was there a hearing in which you were questioned by the Defense about various aspects of things you did on the 13th in collecting evidence with Miss Mazzola?

# 57 MR. FUNG:

Yes.

# 58 MR. GOLDBERG:

All right. And at some point after that hearing, did you have a conversation where you tried to determine who specifically picked up certain items?

# 59 MR. FUNG:

Yes.

# 60 MR. GOLDBERG:

All right. And you have a recollection of talking to her in that conversation about the trail at Bundy and the trail at Rockingham?

# 61 MR. FUNG:

Yes.

# 62 MR. GOLDBERG:

And probably the cap and the glove?

# 63 MR. FUNG:

Yes.

# 64 MR. GOLDBERG:

And why doesn't the issue of the blood vial stand out in your mind?

# 65 MR. SCHECK:

Objection. I don't believe he's competent to talk about why he forgot to tell her something.

# 66 THE COURT:

Overruled.

# 67 MR. FUNG:

Could you repeat the question, please?

# 68 MR. GOLDBERG:

Did you consider the issue of the blood vial to be particularly important in terms of who collected it?

# 69 MR. FUNG:

No.

# 70 MR. GOLDBERG:

And you were asked certain questions on cross-examination about whether or not you were anticipating the kind of accusations about the blood vial. Do you recall those questions that were made during cross-examination?

# 71 MR. FUNG:

Yes.

# 72 MR. GOLDBERG:

Mr. Fung, were you anticipating those kinds of accusations?

# 73 MR. FUNG:

No, I was not.

# 74 MR. GOLDBERG:

Were you surprised?

# 75 MR. FUNG:

A little bit, yes.

# 76 MR. GOLDBERG:

Okay. And in your mind, was the issue of precisely how the blood vial got from Mr. Vannatter, Detective Vannatter out to the crime scene truck all that important to you?

# 77 MR. SCHECK:

Objection. Leading.

# 78 THE COURT:

Overruled.

# 79 MR. FUNG:

No, it was not.

# 80 MR. GOLDBERG:

Did you know that it got out there in some way?

# 81 MR. FUNG:

Yes.

# 82 MR. GOLDBERG:

Did you try to make a mental note in your mind as to specifically what was happening at the time you got the blood vial?

# 83 MR. SCHECK:

Objection. Leading.

# 84 THE COURT:

Overruled.

# 85 MR. FUNG:

I only--my only concern was to note the--who I got the item of evidence from and the time and the date that I got the evidence.

KEY QUOTE

# 86 MR. GOLDBERG:

Did you do that?

# 87 MR. FUNG:

Yes.

# 88 MR. GOLDBERG:

When you received the analyzed evidence envelope or the evidence envelope rather containing the blood, did you make it a point to call out to people, "Hey, everyone, I'm getting the vial. Can everyone gather around so I can have some witnesses"?

# 89 MR. SCHECK:

Objection. Leading, argumentative.

# 90 THE COURT:

Sustained. Sustained.

# 91 MR. GOLDBERG:

I'm sorry, your Honor.

# 92 MR. GOLDBERG:

When you got the blood vial, did you make it a point to try to gather people around you?

# 93 MR. FUNG:

No.

# 94 MR. GOLDBERG:

Did you make it a point to try to get people to notice what was happening so you would have witnesses?

# 95 MR. SCHECK:

Objection. Leading.

# 96 THE COURT:

Sustained. Rephrase the question.

# 97 MR. GOLDBERG:

Did you make any effort to make sure that there were a lot of people around when it happened?

# 98 MR. SCHECK:

Objection. Leading again.

# 99 THE COURT:

Overruled.

# 100 MR. FUNG:

No, I did not.

# 101 MR. GOLDBERG:

Why not?

# 102 MR. FUNG:

That's not part of--I would think it would be unprofessional for me to make a big deal out of collecting a single piece of evidence.

KEY QUOTE

# 103 MR. GOLDBERG:

Did you try to do that with any other piece of evidence, get people to witness you collecting it on the 13th?

# 104 MR. FUNG:

No.

# 105 MR. SCHECK:

Objection.

# 106 THE COURT:

Overruled.

# 107 MR. SCHECK:

Leading.

# 108 THE COURT:

Overruled.

# 109 MR. GOLDBERG:

Now, when you got on the witness stand in this case, did you recall all of the facts and circumstances as to specifically how the item was carried out to the crime scene truck?

# 110 MR. FUNG:

No.

# 111 MR. GOLDBERG:

All right. And when you were suggesting to Mr. Scheck various ways that it could have gotten out to the crime scene truck--

# 112 MR. SCHECK:

Objection. Misstates the evidence. Not suggestions. Testimony.

# 113 THE COURT:

Sustained. Rephrase the question.

# 114 MR. GOLDBERG:

Okay. Maybe I'll read from the transcript, your Honor. I'd like to read first from page--

# 115 MR. SCHECK:

Could you tell us what page?

# 116 THE COURT:

He's about to give us a page.

# 117 MR. GOLDBERG:

Yes. It's page 22457.

# 118 THE COURT:

I take it that's from the 12th?

# 119 MR. GOLDBERG:

It's from the 12th, yes, your Honor.

# 120 THE COURT:

All right.

# 121 MR. GOLDBERG:

Do you recall giving the following answers--

# 122 THE COURT:

Excuse me just a second. Counsel, do you have it?

# 123 MR. SCHECK:

We're cueing it up on the computer.

# 124 MR. GOLDBERG:

It's starting on line 1 all the way down to line 18.

# 125 MR. SCHECK:

Could we have a second, your Honor?

# 126 (Brief pause.)

# 127 MR. SCHECK:

I think we got it.

# 128 THE COURT:

Proceed.

# 129 MR. GOLDBERG:

Sir, did you give the following answers to the following questions? "Question: Now, did you receive the blood vial before 15 and 16 were collected? "Answer: No. I--I received it afterward. "Question: And you just refreshed your recollection by looking at your notes? "Answer: Yes, I did. "Question: And the notes reflect that those items were picked up at 5:00 o'clock? "Answer: Yes. "Question: And since you are telling us that you received this blood vial at 5:20, you have concluded that this was after those two items were collected? "Answer: Yes. "Now--but do you have, as you sit here today, an independent recollection of the order in which you received the items other than looking at your notes? "Answer: No." Do you recall that line of questioning?

# 130 MR. FUNG:

Yes, I do.

# 131 MR. GOLDBERG:

And did you have an independent recollection of the time that you obtained that vial other than what was reflected in your notes?

# 132 MR. FUNG:

No.

# 133 MR. GOLDBERG:

Or the order in which it was collected with respect to other items?

# 134 MR. FUNG:

I don't have--I didn't have an independent recollection and I still don't. No.

# 135 MR. GOLDBERG:

Is that because as far as you were concerned, it wasn't that significant?

# 136 MR. SCHECK:

Objection.

# 137 THE COURT:

Sustained.

# 138 MR. GOLDBERG:

Your Honor, I would like to read another quote from page 22444, and it starts on line 23.

# 139 (Brief pause.)

# 140 MR. GOLDBERG:

I actually should start with line 20.

# 141 THE COURT:

Thank you, counsel.

# 142 MR. GOLDBERG:

Do you recall giving the following answers to the following questions, sir? "Question: And after you received the envelope from Detective Vannatter in the foyer, did you then walk out the door to the crime scene truck? "Answer: I don't know if I did that immediately or if I had other things there I had to do prior to that. "Question: Did you put this envelope in a brown paper bag? "Answer: I don't recall if I did or not. "Question: Did you put it inside your black kit? "No, I don't think I did that. "Question: Did you at some point walk out of the foyer to the crime scene truck holding the gray envelope? "Answer: I don't believe so. "Question: Well, what did you do with it? How did you get it to the crime scene truck? "Answer: It may have been in a paper bag, but I don't recall if I actually did put it in there or it may have been put in the--in a posse box. "Question: Is it possible that you just walked out the door with the envelope in your hand? "Answer: It's possible, but I don't think that that's likely." Do you remember giving those questions to that answer--those answers to those questions?

# 143 MR. FUNG:

Yes.

# 144 MR. GOLDBERG:

And at that point in time, did you have an independent recollection, meaning from your own memory of what happened on the 13th, as to exactly what receptacle, if any, you put the blood vial envelope in?

# 145 MR. FUNG:

No, I did not.

# 146 MR. GOLDBERG:

So where did you come up with the various possibilities that you were speculating about?

# 147 MR. SCHECK:

Objection as to speculation. There's testimony after lunch after these questions.

# 148 THE COURT:

Sustained. Rephrase the question.

# 149 MR. GOLDBERG:

Mr. Fung, where did you come up with those various different possibilities?

# 150 MR. FUNG:

Those were package--packaging items that are in the crime scene--available in the crime scene kit, and I named those types of packaging or packages off.

# 151 MR. GOLDBERG:

Okay. But did you have any memory at that time of putting it in a brown paper bag as opposed to the posse box as opposed to just handling it without putting it in anything?

# 152 MR. FUNG:

No.

# 153 MR. GOLDBERG:

Okay.

# 154 (Brief pause.)

# 155 MR. GOLDBERG:

Your Honor, at this time, I would like to mark as People's next in order two photographs of what appear to depict the packaging of item 17.

# 156 THE COURT:

183 and 184.

# 157 MR. GOLDBERG:

Or does the Court want me to mark them 183-a and 183-b?

# 158 THE COURT:

How about 183 and 184.

# 159 MR. GOLDBERG:

Okay.

# 160 (Peo's 183 and 184 for id = photographs)

# 161 (Brief pause.)

# 162 MR. GOLDBERG:

I just want to approach the witness first before I show it, put it on the elmo if I may.

# 163 THE COURT:

You may.

# 164 MR. GOLDBERG:

Sir, showing you what's been marked as People's 183 and 184 for identification, do you recognize that?

# 165 MR. FUNG:

Yes, I do.

# 166 MR. GOLDBERG:

What does that depict?

# 167 MR. FUNG:

This depicts the front and back of the envelope containing item no. 17.

# 168 MR. GOLDBERG:

I don't know whether the resolution is going to be good enough, Mr. Fung, but you said that you documented somewhere that you received this from Mr. Vannatter, the date and the time?

# 169 MR. FUNG:

Yes.

# 170 MR. GOLDBERG:

Can you point that out for us?

# 171 MR. FUNG:

On the photograph to the right, which is the picture of the rear or the back portion of the envelope, there is writing--well, it's between the yellow seal and the red seal in the middle and it says, "Received from Detective Vannatter," his serial number, 14877, on 6-13-94 at 1720 and it has my signature there.

# 172 MR. GOLDBERG:

And when you wrote that on there, do you know where you got the time from?

# 173 MR. FUNG:

I looked at my watch.

# 174 MR. GOLDBERG:

Your Honor, I have another item from People's 160--

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

# 176 MR. GOLDBERG:

Your Honor, at this time, I have an item that comes from People's 163 and it's 163-i for identification.

# 177 THE COURT:

All right. 163-I. You want to show that to Mr. Scheck first?

# 178 (Brief pause.)

# 179 MR. GOLDBERG:

Sir, showing you People's 163-i for identification, can you tell us what that is?

# 180 MR. FUNG:

This is a LAPD sealed evidence sticker.

# 181 MR. GOLDBERG:

And so is that the type of sticker that you used when you eventually seized this before it was placed into the evidence control unit?

# 182 MR. SCHECK:

Objection. Leading.

# 183 THE COURT:

Sustained. It also assumes facts not in evidence at this point.

# 184 MR. GOLDBERG:

Did you use this type of sticker on this item?

# 185 MR. SCHECK:

Objection. It assumes facts not in evidence.

# 186 THE COURT:

Overruled.

# 187 MR. FUNG:

Yes.

# 188 MR. GOLDBERG:

And can you just point it out for us on the elmo, where that sticker would be? Which one, the yellow or--

# 189 MR. FUNG:

The red--the red sticker in the--it's about two-thirds across the screen.

# 190 MR. GOLDBERG:

And was this item eventually brought into the evidence control unit?

# 191 MR. FUNG:

Yes, it was.

# 192 MR. GOLDBERG:

On what date?

# 193 MR. FUNG:

That was booked into ECU, which is the evidence control unit, on June 16th.

# 194 MR. GOLDBERG:

Okay. Could we circle using the telestrator perhaps the time, the 7:22? 1722, and the date, Mr. Fairtlough?

# 195 MR. GOLDBERG:

And does that date go under the seals?

# 196 MR. FUNG:

The seal appears to cover that writing, yes.

# 197 THE COURT:

Mr. Fung, did Mr. Fairtlough correctly circle the items you're referring to, the date and time?

# 198 MR. FUNG:

Yes, he did.

# 199 MR. GOLDBERG:

Your Honor, at this time, I would like to play another videotape that we have of the events on the 13th at Rockingham. I don't know whether we've discussed that.

# 200 THE COURT:

I don't believe we have. Let me see counsel at sidebar.

Temperature

tense

Key Quotes (4)

Dennis Fung

I would think it would be unprofessional for me to make a big deal out of collecting a single piece of evidence.

Directly reframes the defense's implication that Fung's failure to call witnesses to watch him receive the vial was suspicious — Fung presents it as normal professional conduct.

Dennis Fung

My only concern was to note the--who I got the item of evidence from and the time and the date that I got the evidence.

Establishes that Fung followed his standard protocol for the blood vial even if he lacked vivid memory of the surrounding circumstances.

Dennis Fung

No, I was not. [Surprised?] A little bit, yes.

Fung denies anticipating the defense's blood planting accusations, reinforcing the prosecution's argument that his testimony gaps reflect ordinary inattention, not cover-up.

Dennis Fung

Received from Detective Vannatter, his serial number, 14877, on 6-13-94 at 1720 and it has my signature there.

The contemporaneous notation on the envelope — written at the time, not reconstructed — is the prosecution's anchor for chain of custody on the blood vial.

Evidence (4)

People's 1107

Evidence collection report created by Andrea Mazzola, with items 17/18/19 originally out of order; Fung erased and renumbered them

discussed

People's 183 and 184

Photographs of front and back of the envelope containing item 17 (OJ Simpson's blood vial), showing Fung's handwritten receipt notation from Vannatter at 1720 on 6-13-94

introduced

People's 163-i

LAPD sealed evidence sticker used on the blood vial envelope; shows date/time notation covered by the seal

introduced

Informal

Transcript pages 22457 and 22444 from April 12 testimony — Fung's prior answers about the blood vial's chain of custody, including speculated transport methods (paper bag, posse box, hand-carried)

read into record

Notable Exchanges (3)

Hank Goldberg•Dennis Fung

Goldberg reads lengthy excerpts from Fung's April 12 cross-examination transcript showing Fung speculating about 'paper bag,' 'posse box,' or walking out with the envelope in hand. Fung clarifies he was simply naming available packaging options from the crime scene kit — not recalling actual events.

strategic

Hank Goldberg•Barry Scheck•Lance A. Ito

Goldberg repeatedly attempts leading questions about whether Fung 'made a point' to gather witnesses when receiving the blood vial. Scheck objects each time; Ito sustains the most argumentative version ('Hey, everyone, I'm getting the vial. Can everyone gather around?') but overrules subsequent reformulations.

heated

Hank Goldberg•Dennis Fung

Fung points out on the elmo the handwritten notation on the back of the blood vial envelope documenting receipt from Vannatter with badge number, date, and time — confirmed as written by Fung at the time he looked at his watch.

revealing

Credibility Attacks (1)

⚔ Dennis Fung

prior inconsistent statement / memory gaps

Goldberg uses Fung's own April 12 cross-examination transcript — in which Fung offered multiple conflicting possibilities for how the blood vial was transported — to show the jury that Fung's uncertainty reflects genuine lack of attention to a routine act, not consciousness of guilt. The redirect reframes the very gaps Scheck exploited.

Objections

16 objections (7 sustained, 8 overruled)

Proceeding 5707 • 200 utterances • Defense witness

Criminal Trial

Department 103