Cross-examination of Dennis Fung (part 4)

📄 Cross-examination of Dennis Fung (part 4) — 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: 136

Goldberg plays videotape footage (Defense 1102) showing Andrea Mazzola leaving Bundy with a bag, then elicits testimony from Fung that the bag likely contained the evidence envelope with Vannatter's blood vial. Goldberg uses this to rehabilitate Fung on the chain-of-custody attack, getting Fung to confirm that forensically, what mattered was that the vial was closed and sealed in an evidence envelope — not the specific container used to transport it.

# 1 THE COURT:

Thank you, counsel. Proceed.

# 2 MR. GOLDBERG:

Your Honor, I would like to move on then to another videotape. It's Defense 1004, and first there's a clip of Miss Mazzola leaving the location.

# 3 THE COURT:

All right. Mr. Fairtlough, do you have that available?

# 4 MR. FAIRTLOUGH:

Yes, your Honor.

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

# 6 MR. GOLDBERG:

I believe it's 1102.

# 7 (At 11:21 A.M., a videotape was played.)

# 8 MR. GOLDBERG:

Can we replay that portion for a second. Back it up just a little bit. Stop. Can you just back it up a couple frames? Stop. No. You almost got it. There.

# 9 MR. GOLDBERG:

Mr. Fung, looking at that bag, does it appear to you that there is some rectangular item in it?

# 10 MR. SCHECK:

Objection. The evidence speaks for itself.

# 11 THE COURT:

No question, counsel.

# 12 MR. GOLDBERG:

Mr. Fung--

# 13 MR. SCHECK:

Objection. Competency with respect to this. Speaks for itself.

# 14 THE COURT:

Overruled.

# 15 MR. GOLDBERG:

Mr. Fung, directing your attention to the bottom part of the bag that Andrea Mazzola is handling, does that--what does that appear--does that appear to be containing something?

# 16 MR. FUNG:

An object does appear to be at the bottom of that bag, yes.

# 17 MR. GOLDBERG:

Could we have that item printed, your Honor?

# 18 THE COURT:

Yes, please. And let's--before we move on from that frame, let's see what comes out. What's the print time on this, Mr. Fairtlough?

# 19 MR. FAIRTLOUGH:

From the original frame reference where I cued it up is 006. So I would need to rewind it from the beginning and play forward in order to set that frame.

# 20 THE COURT:

No. I mean, how long is it going to take you to print this copy?

KEY QUOTE

# 21 MR. FAIRTLOUGH:

It's set now. I can move on.

# 22 THE COURT:

No. I just want to make sure that we have that. I want to see the quality of the print.

KEY QUOTE

# 23 MR. FAIRTLOUGH:

It will take about two minutes, your Honor.

# 24 THE COURT:

All right. Do you need to move this?

# 25 MR. GOLDBERG:

From this location? The Court is saying that we'll have to delay if we do this?

# 26 THE COURT:

No. I mean because of the jumping nature of this particular still, I just want to make sure that the quality of our print is precise. That's all.

KEY QUOTE

# 27 MR. GOLDBERG:

Okay.

# 28 THE COURT:

Since there's a lot of noise at the top of the picture.

# 29 (Brief pause.)

# 30 MR. FAIRTLOUGH:

Just needs to make one more pass, your Honor, and that should do it.

# 31 (Brief pause.)

# 32 MR. FAIRTLOUGH:

May I approach, your Honor?

# 33 THE COURT:

Want to show that to Mr. Goldberg, please? Does that capture what you need?

# 34 MR. GOLDBERG:

Excuse me, your Honor? Yes. That seems to be pretty good.

# 35 THE COURT:

All right. Proceed.

# 36 MR. GOLDBERG:

I would like to mark this as People's next in order. It would be--

# 37 THE COURT:

185.

# 38 MR. GOLDBERG:

--185.

# 39 THE COURT:

People's 185.

# 40 (Peo's 185 for id = print)

# 41 MR. GOLDBERG:

Sir--

# 42 MR. GOLDBERG:

May I approach the witness again?

# 43 THE COURT:

You may.

# 44 MR. GOLDBERG:

Sir, I would like to show you what's previously been marked as 163-h for identification. Can you tell us what that is again?

# 45 MR. FUNG:

163-h is a series of three envelopes which are analyzed evidence envelopes.

# 46 MR. GOLDBERG:

And is one of those the same type of envelope as was used to contain the vial of blood that you received in the envelope from Detective Vannatter?

# 47 MR. FUNG:

Yes.

# 48 MR. GOLDBERG:

Which one is that?

# 49 MR. FUNG:

That would be the gray envelope. It's right here (Indicating).

# 50 MR. GOLDBERG:

And is the item that appears to be in the bag in the photograph we just saw consistent with that?

# 51 MR. SCHECK:

Your Honor, objection.

# 52 THE COURT:

Sustained. Sustained.

# 53 (At 11:25 A.M., the playing of the videotape concluded.)

# 54 MR. GOLDBERG:

Your Honor, perhaps we could ask that be passed around just so the jury can get a sense of what it looks like a little better.

# 55 THE COURT:

All right. Also, you might want to measure it so there's a precise measurement on the record.

# 56 MR. SCHECK:

Your Honor, I have no objection doing whatever they want to do with this, but I would request we bring the real thing in.

# 57 MR. GOLDBERG:

That what?

# 58 THE COURT:

Yeah. For this purpose, for the jury to appreciate the size of the envelope, let's proceed. But we will bring the original in at some point.

# 59 MR. GOLDBERG:

Okay.

# 60 THE COURT:

All right. Why don't we have Mr. Fung just give us the measurements for the record.

# 61 MR. FUNG:

Length wise, the--from top to bottom, the measurement is approximately 10 and a half inches, and width wise, it's approximately seven and a half inches.

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

# 63 THE COURT:

And, Mr. Goldberg, may I see 185, please?

# 64 MR. GOLDBERG:

Your Honor, I didn't write a 185 on it. If I might do that on the reverse.

# 65 THE COURT:

All right.

# 66 MR. GOLDBERG:

May I approach?

# 67 THE COURT:

Please. Thank you.

# 68 (Brief pause.)

# 69 MR. GOLDBERG:

Your Honor, perhaps while we are waiting, I can also mark the print of People's 184 from the telestrator as 184-a.

# 70 (Peo's 184-a for id = print)

# 71 THE COURT:

You want to show that to Mr. Scheck?

# 72 MR. GOLDBERG:

Yes.

# 73 THE COURT:

All right. Mr. Goldberg, would you approach.

# 74 MR. GOLDBERG:

Yes.

# 75 THE COURT:

Thank you, sir.

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

# 77 MR. GOLDBERG:

Your Honor, with the Court's permission, could we pass--

# 78 THE COURT:

Hold on.

# 79 (Brief pause.)

# 80 THE COURT:

All right. 795 just handed the last item to the bailiff.

# 81 MR. GOLDBERG:

Could we also pass 185 around?

# 82 MR. SCHECK:

Which is--how many 185's are there?

# 83 MR. GOLDBERG:

Well, there's a Court's copy and there's a People's copy. That's our copy.

# 84 MR. SCHECK:

Can I just look at it for one second?

# 85 THE COURT:

Sure. Actually why don't we pass around 185 and 163-h at the same time.

# 86 (Brief pause.)

# 87 MR. GOLDBERG:

I am sorry. Perhaps we could have the front of People's 184 put up one more time just so I can get a--

# 88 THE COURT:

All right. Mr. Goldberg, you had wanted to pass--

# 89 MR. GOLDBERG:

Yes. They still have 163.

# 90 THE COURT:

All right. All right. If you'll hand that to juror number 1.

# 91 (Brief pause.)

# 92 MR. GOLDBERG:

Your Honor, can I proceed while we're waiting or does the Court--

# 93 THE COURT:

Well, I would rather have the jurors concentrating on what they're looking at.

# 94 (Brief pause.)

# 95 THE COURT:

All right. Mr. Goldberg.

# 96 MR. GOLDBERG:

Now, Mr. Fung, when you saw this scene that we just played a few moments ago that's depicted in the photograph 185, when you saw that for the first time, did that jog your recollection about anything?

# 97 MR. SCHECK:

Objection. That's leading and misleading.

# 98 THE COURT:

Overruled on the misleading part. It is leading. Rephrase the question.

# 99 MR. GOLDBERG:

When did you first see that item, that item of tape?

# 100 MR. SCHECK:

Your Honor, I think the problem here is--

# 101 THE COURT:

Vague.

# 102 MR. SCHECK:

Is he talking about the photograph or the videotape?

# 103 THE COURT:

I know.

# 104 MR. GOLDBERG:

Mr. Fung--

# 105 THE COURT:

Rephrase the question.

# 106 MR. GOLDBERG:

--I'm talking about the videotape--

# 107 THE COURT:

Yesterday.

# 108 MR. GOLDBERG:

--that you've seen that's a still photograph of which is depicted in People's 185. When you saw that, did it jog your recollection about anything?

# 109 MR. FUNG:

Yes.

# 110 MR. GOLDBERG:

What was that?

# 111 MR. FUNG:

It occurred to me that the envelope containing the--containing the vial of blood could very possibly have been in that bag.

KEY QUOTE

# 112 MR. GOLDBERG:

And when did you first remember the bag at all, the plastic bag?

# 113 MR. FUNG:

When I saw the video? No. Earlier that morning, I was going through it in my mind and it occurred to me then. Well, I saw the video the day before, a small portion of the video and--

KEY QUOTE

# 114 MR. GOLDBERG:

Where was that?

# 115 MR. FUNG:

Here in Court on the monitor (Indicating).

# 116 MR. GOLDBERG:

He's kind of gesturing to the monitor by himself.

# 117 THE COURT:

Yes.

# 118 MR. GOLDBERG:

Okay. And that was the first time that you remember this plastic bag?

# 119 MR. FUNG:

Yes.

# 120 MR. SCHECK:

Objection. That question is leading.

# 121 THE COURT:

Overruled. The answer will stand.

# 122 MR. GOLDBERG:

Now, did you--from a forensic science standpoint, sir, is it significant to you whether the bag was brought out in a posse box or a plastic bag or paper bag or specifically how you carried it out?

# 123 MR. SCHECK:

Objection. Leading.

# 124 THE COURT:

Overruled.

# 125 MR. FUNG:

No, it's not.

# 126 MR. GOLDBERG:

Is it significant to you from a forensic science standpoint that the vial is closed and that it is in fact in an evidence envelope?

# 127 MR. SCHECK:

Objection. Vague as to the word "Significance."

# 128 THE COURT:

Overruled.

# 129 MR. FUNG:

Yes.

# 130 MR. GOLDBERG:

And this was 10 months ago that these events occurred, when you received the vial, about 10 months ago?

# 131 MR. FUNG:

Just about, yes.

# 132 MR. GOLDBERG:

Is your recollection perfect as to all of the things that occurred surrounding the receipt of that vial?

# 133 MR. FUNG:

No.

# 134 MR. GOLDBERG:

Okay. Your Honor, next I would like to see the videotape that's been marked as Defense 1103 and the portion that shows Detective Vannatter arriving at the location.

# 135 MR. SCHECK:

Excuse me, your Honor. What is he showing?

# 136 THE COURT:

Hold on. Hold on. With the Court reporter.

Temperature

procedural

Key Quotes (4)

Dennis Fung

It occurred to me that the envelope containing the--containing the vial of blood could very possibly have been in that bag.

Fung's recovered memory — seeing the videotape jogged his recollection that the blood vial envelope was transported in Mazzola's bag, addressing a key chain-of-custody gap the defense had exploited.

Dennis Fung

No, it's not.

Fung testifies that from a forensic science standpoint, the specific container (posse box, plastic bag, paper bag) used to carry the vial is not significant — only that it was sealed in an evidence envelope.

Dennis Fung

No.

Fung admits his recollection of events surrounding the blood vial receipt is not perfect — a candid concession Goldberg elicits to preempt further impeachment.

Dennis Fung

When I saw the video? No. Earlier that morning, I was going through it in my mind and it occurred to me then.

Fung describes how his memory of the plastic bag was first triggered — raising questions about when and how this recollection emerged.

Evidence (4)

Defense 1102

Videotape clip showing Andrea Mazzola leaving Bundy location carrying a bag

played, freeze-framed, printed as still

People's 185

Still print from Defense 1102 videotape showing Mazzola with bag containing apparent rectangular object

introduced, passed to jury

People's 163-h

Series of three analyzed evidence envelopes including the gray envelope type used for Vannatter's blood vial

discussed, measured on record (10.5 x 7.5 inches), passed to jury

People's 184-a

Print from telestrator of People's 184

introduced

Notable Exchanges (4)

Hank Goldberg•Dennis Fung

Goldberg elicits that Fung's memory of the plastic bag was first triggered by seeing a portion of videotape in court the day before, then further crystallized the following morning when he was mentally reviewing events.

strategic

Hank Goldberg•Barry Scheck•Lance A. Ito

Scheck objects that the videotape 'speaks for itself' when Goldberg asks Fung to interpret what's in Mazzola's bag; Ito overrules, allowing Fung to describe the apparent object.

contested

Lance A. Ito•Barry Scheck

Scheck requests they bring the original evidence envelope in rather than passing around a photograph; Ito agrees the original should eventually come in but allows the photo and measurements to proceed.

procedural

Lance A. Ito•Hank Goldberg

Ito instructs Goldberg to wait before proceeding because he wants the jurors to concentrate on the items being passed to them, not split attention.

procedural

Credibility Attacks (1)

⚔ Dennis Fung

prior inconsistent statement / faulty memory

Goldberg preemptively draws out Fung's admission that his recollection of events from 10 months ago is imperfect, and that his memory of the plastic bag only surfaced after seeing the videotape in court — framing this as honest candor rather than damaging inconsistency.

Objections

8 objections (3 sustained, 5 overruled)

Proceeding 5709 • 136 utterances • Defense witness

Criminal Trial

Department 103