Cross-examination of Dennis Fung (part 5)

📄 Cross-examination of Dennis Fung (part 5) — Friday, April 14, 1995

Address:

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

TRIAL

▲ Day 57 of 167

◀ Sidebar (4) Cross-examination of Dennis Fung (part 6) ▶

Witness: Dennis Fung
Examiner: Hank Goldberg
Called by: Defense • Date: Friday, April 14, 1995 • Utterances: 55

Goldberg conducts redirect examination of Dennis Fung focusing on two issues: whether Fung ever called attention to the blood vial in the crime scene truck, and the significance of an erased entry on document 1107 (pheno notes). Fung explains he made a handwritten note on July 5th — the day before his preliminary hearing testimony — to remind himself that item numbers 17 and 18 had been switched, then erased it because he was uncertain whether he should alter a document he was about to testify about. Goldberg ends by pointing out the poor quality of the erasure, implying that anyone trying to conceal the alteration would have done a better job.

# 1 MR. GOLDBERG:

Now, Mr. Fung, when you were in the crime scene processing truck, did you ever say to Andrea Mazzola, "Miss Mazzola, I want you to know I have the Defendant's file so you can witness this"?

# 2 MR. SCHECK:

Objection. Leading.

# 3 THE COURT:

Sustained.

# 4 MR. GOLDBERG:

When you were in the crime scene processing truck, did you ever say anything to Miss Mazzola to make a point to her to see that you had the vial or that the vial was in your possession, your custody?

# 5 MR. SCHECK:

Objection, your Honor. Leading.

# 6 THE COURT:

Sustained.

# 7 MR. GOLDBERG:

Did you ever say anything--make a point to say anything about the vial?

# 8 MR. FUNG:

No.

# 9 MR. GOLDBERG:

Did you have any reason to do so?

# 10 MR. SCHECK:

Objection.

# 11 THE COURT:

Overruled.

# 12 MR. FUNG:

No.

# 13 MR. GOLDBERG:

Okay. Your Honor, at this time, I would like to take another look at the document that's marked 1107. This is the back of one of the pages entitled pheno notes 17, 18 and 19 on it. Maybe we can have a little bit of a closer--close-up version of 17 and 18, between 17 and 18.

# 14 MR. GOLDBERG:

Sir, did you have an opportunity to take a closer look at this document and also Xerox copies of this document, particularly the item that appears to have been erased between 17 and 18?

# 15 MR. FUNG:

Yes.

# 16 MR. GOLDBERG:

And is that in fact your handwriting?

# 17 MR. FUNG:

Yes.

# 18 MR. GOLDBERG:

And your date?

# 19 MR. FUNG:

Yes.

# 20 MR. GOLDBERG:

Did you initial it in some fashion or did you sign your name or--

# 21 MR. FUNG:

I put my initials towards the right portion of that circle, if you can see it.

# 22 MR. GOLDBERG:

And the date that you put on there was July the 5th?

# 23 MR. FUNG:

Yes.

# 24 MR. GOLDBERG:

Was there anything of significance that was happening in this case immediately following that date?

# 25 MR. FUNG:

One of the hearings was occurring very soon after that date. I forget which one it was.

# 26 MR. GOLDBERG:

Did you testify on July the 6th and 7th?

# 27 MR. FUNG:

Yes.

# 28 MR. GOLDBERG:

And when you testified in Court, sir, is it your practice to review documents in preparation for--

# 29 MR. SCHECK:

Objection. Leading.

# 30 THE COURT:

Overruled.

# 31 MR. GOLDBERG:

--for testimony?

# 32 MR. FUNG:

Yes.

# 33 MR. GOLDBERG:

Now, in looking at this document, have you reconstructed the events that occurred on the 5th that caused the 7-5 writing and your initials to be placed on that document?

# 34 MR. FUNG:

Somewhat, yes.

# 35 MR. GOLDBERG:

What's that?

# 36 MR. FUNG:

I was going through the crime scene checklist and saw that the items were switched or--not switched--were still listed with the tennis shoes as being 17 and the blood as 18, and I wanted to put a note there for myself if I came across them that they were--I had switched the numbers. And after I had wrote it down, I erased it because I wasn't sure if I should alter the document as I was going to Court.

KEY QUOTE

# 37 MR. GOLDBERG:

So you weren't sure whether at this point you should make another entry on the document?

# 38 MR. FUNG:

That's correct.

# 39 MR. GOLDBERG:

Now, is this something that you have a sharp recollection of or is this something that you've basically reconstructed after the fact?

# 40 MR. FUNG:

This is something I reconstructed.

KEY QUOTE

# 41 MR. GOLDBERG:

And is that based upon the date of 7-5 in relationship to your preliminary hearing testimony?

# 42 MR. FUNG:

Yes.

# 43 MR. GOLDBERG:

Now, sir, you didn't seem to do a very good job erasing this item, did you?

KEY QUOTE

# 44 MR. SCHECK:

Objection. The document speaks for itself.

# 45 THE COURT:

Overruled.

# 46 MR. FUNG:

That's correct.

# 47 MR. GOLDBERG:

I mean, do you have erasers available to you at the Scientific Investigation Division?

# 48 MR. FUNG:

Yes.

# 49 MR. GOLDBERG:

Is there a shortage of erasers?

KEY QUOTE

# 50 MR. FUNG:

No.

# 51 MR. GOLDBERG:

Is there any reason why you couldn't have done a better job erasing it if you had wanted to?

# 52 MR. FUNG:

No.

# 53 MR. GOLDBERG:

And, sir, if you were trying to alter a document with some sort of--

# 54 MR. SCHECK:

Objection, your Honor. Leading.

# 55 THE COURT:

Overruled.

Temperature

tense

Key Quotes (4)

Dennis Fung

I was going through the crime scene checklist and saw that the items were switched or--not switched--were still listed with the tennis shoes as being 17 and the blood as 18, and I wanted to put a note there for myself if I came across them that they were--I had switched the numbers. And after I had wrote it down, I erased it because I wasn't sure if I should alter the document as I was going to Court.

Fung's own explanation for the suspicious erased entry — framing it as caution about proper procedure rather than concealment.

Hank Goldberg

Now, sir, you didn't seem to do a very good job erasing this item, did you?

Goldberg's rhetorical point that a bad eraser job is inconsistent with intentional concealment — if Fung wanted to hide something, he could have done better.

Hank Goldberg

Is there a shortage of erasers?

Deadpan rhetorical question reinforcing that the poor erasure was not the work of someone trying to hide evidence tampering.

Dennis Fung

This is something I reconstructed.

Fung admits his account of the July 5th events is reconstructed, not based on clear memory — a concession the defense could exploit.

Evidence (1)

1107

Crime scene pheno notes document, back page containing items 17, 18, and 19 — with a partially erased handwritten entry between items 17 and 18, dated 7-5 with Fung's initials

displayed, examined, explained by witness

Notable Exchanges (2)

Hank Goldberg•Dennis Fung

Goldberg walks Fung through the erased entry on document 1107, eliciting Fung's reconstruction that he made the note July 5th before his preliminary hearing testimony to remind himself of switched item numbers, then erased it out of uncertainty about altering a court document.

strategic

Hank Goldberg•Dennis Fung

Goldberg pointedly asks whether there is a shortage of erasers at SID, establishing that Fung had the means to erase more completely if he had wanted to hide the entry.

revealing

Light Moments (1)

Hank Goldberg

Goldberg asks with dry humor whether there is 'a shortage of erasers' at the Scientific Investigation Division.

Credibility Attacks (1)

⚔ Dennis Fung

prior inconsistent statement / reconstructed memory

Fung acknowledges his account of why he made and erased the July 5th entry is a reconstruction after the fact, not a clear recollection — undermining confidence in his explanation.

Objections

7 objections (2 sustained, 4 overruled)

Proceeding 5711 • 55 utterances • Defense witness

Criminal Trial

Department 103