Cross-examination of Dennis Fung (part 4)

📄 Cross-examination of Dennis Fung (part 4) — Monday, April 17, 1995

Address:

C:\DEPT103\CRIMINAL\1995\APR\17\CROSS-EXAMINATION-OF-DENNIS-FU.DOC

TRIAL

▲ Day 58 of 167

Witness: Dennis Fung
Examiner: Hank Goldberg
Called by: Defense • Date: Monday, April 17, 1995 • Utterances: 235

Prosecutor Goldberg conducts redirect examination of criminalist Dennis Fung, rehabilitating him by establishing that authoritative forensic reference works do not specify the precise collection protocols Scheck attacked, and that degraded blood cannot transform into a suspect's DNA profile. Goldberg also walks through distances between the Rockingham blood trail stains and defends Fung's field phenolphthalein test on the Rockingham glove as minimally invasive and forensically sound.

# 1 MR. GOLDBERG:

Does Saferstein say anything, his book, about what you're supposed to use if you collect a wet stain on a wet cotton swatch, what you are supposed to use to get it from the location to the laboratory?

# 2 MR. FUNG:

Not in that book, no.

# 3 MR. GOLDBERG:

And does Dr. Lee in his handout talk about that?

# 4 MR. FUNG:

No.

# 5 MR. GOLDBERG:

Does--did you also read Lee, Gaensslen and de forest, their work and the sections pertaining to collection of biological stains?

# 6 MR. FUNG:

Portions of it, yes.

# 7 MR. GOLDBERG:

And did they advocate or did they specifically say how you get the wet stain from the scene to the laboratory?

# 8 MR. SCHECK:

Object on the ground that if he's asking for--about a specific section of the text, he should refer to it.

# 9 MR. GOLDBERG:

Well, it was already cross-examined--

# 10 MR. SCHECK:

In cross-examination, he was referred to a specific section.

# 11 THE COURT:

Yes. Do you want to tell us which portion of that book?

# 12 MR. GOLDBERG:

It was the section already cross-examined on.

# 13 THE COURT:

All right. We need the reference for the record, counsel. Mr. Scheck, do you happen to know what chapter?

# 14 MR. GOLDBERG:

It starts on page 244. It's the section entitled, "Collection, preservation and packaging."

# 15 THE COURT:

Fine. Thank you. Just so the record is clear. Proceed.

# 16 MR. GOLDBERG:

Let me just approach the witness just so he knows what we're talking about specifically.

# 17 MR. GOLDBERG:

Now, sir, does Dr. De forest, Gaensslen or Lee, do they say specifically how you get a wet swatch from the crime scene to the laboratory?

# 18 MR. FUNG:

I don't recall reading it in that passage, no.

# 19 MR. GOLDBERG:

Or talk about changing gloves in-between samples?

# 20 MR. FUNG:

No.

# 21 MR. GOLDBERG:

Now, in Dr. Lee's handout that he did for the Department of Justice, does he talk about using clean implements? Let me ask you another question first. Is a distinction drawn between clean and sterile in the forensic community?

# 22 MR. FUNG:

Yes.

# 23 MR. GOLDBERG:

And what does that distinction entail?

# 24 MR. FUNG:

Sterile is free of any type of germs or bacteria. It's very--it's been sterilized. I mean that's the only explanation I can come up with.

# 25 MR. GOLDBERG:

And what does clean mean as opposed to sterile?

# 26 MR. FUNG:

Clean means it's free of dirt, but it hasn't been--all the bacteria and other germs or whatever aren't killed on whatever's supposed to be clean.

# 27 MR. GOLDBERG:

And in terms of the implements that are used for purposes of collecting dry stains, does Dr. Lee say that you need to use clean or sterile instruments?

# 28 MR. FUNG:

He says clean.

# 29 MR. GOLDBERG:

Now, do any of these reference works that you've consulted indicate that degraded blood will turn or can turn into the suspect's blood?

# 30 MR. SCHECK:

Objection. I think we should have specific page number citations.

# 31 THE COURT:

Overruled.

# 32 MR. FUNG:

None of them do, no.

KEY QUOTE

# 33 MR. GOLDBERG:

And do any of the reference works that you've consulted indicate that bacterial growth can cause blood to change into the Defendant's blood or the suspect's blood?

# 34 MR. FUNG:

No.

# 35 MR. GOLDBERG:

Now, you were asked about section 525.20 of the Los Angeles Police Department manual dealing with packaging of biological evidence. Do you recall that?

# 36 MR. SCHECK:

One moment, please.

# 37 THE COURT:

Yes.

# 38 (Brief pause.)

# 39 MR. SCHECK:

Go ahead.

# 40 THE COURT:

Proceed.

# 41 MR. FUNG:

I remember being asked about the manual, but I don't recall exactly what that section says.

# 42 MR. GOLDBERG:

Sir, by the way, before we get into this, what is the Los Angeles Police Department manual for? Is it for criminalists or for police officers?

# 43 MR. FUNG:

It's meant mainly for police officers.

# 44 MR. GOLDBERG:

And did you look at the sections dealing with booking of samples of blood, for example, in preparation for your testimony?

# 45 MR. FUNG:

Yes.

# 46 MR. GOLDBERG:

And are those sections ones that the criminalists--are passed out to the criminalists for you to follow or is that for police officers?

# 47 MR. FUNG:

It's--the manual has areas that deal with all the department personnel. However, those sections are geared towards the police officers.

# 48 MR. GOLDBERG:

Okay. Now, I would like to approach the witness, your Honor, if I may and just show him 525.20. It's on page 367 of the 1992 manual.

# 49 THE COURT:

All right. Mr. Scheck, do you have that?

# 50 MR. GOLDBERG:

Mr. Scheck has it.

# 51 MR. SCHECK:

Let me just double-check. I'm pretty sure.

# 52 THE COURT:

All right. Proceed. Thank you, counsel.

# 53 MR. GOLDBERG:

May I approach?

# 54 THE COURT:

You may.

# 55 MR. GOLDBERG:

Sir, I'm showing you this page out of the manual. Do you recognize that?

# 56 MR. FUNG:

Yes.

# 57 MR. GOLDBERG:

Okay. And does that provide that and under the title, "Preserving wet stains": "Items containing wet blood, semen or chemical stains shall be permitted to dry at room temperature before packaging. Plastic containers or plastic wrap shall not be used as a packaging material"? Is that what it provides?

# 58 MR. FUNG:

Yes.

# 59 MR. GOLDBERG:

And does that mean that--is that talking about final packaging or interim packaging?

# 60 MR. SCHECK:

Objection.

# 61 THE COURT:

Sustained. Rephrase the question.

# 62 MR. GOLDBERG:

What kind of packaging is that talking about?

# 63 MR. SCHECK:

Objection. The text speaks for itself. I move it be put into evidence.

# 64 THE COURT:

Overruled.

# 65 MR. FUNG:

My interpretation is that it's for final packaging.

# 66 MR. GOLDBERG:

After they've been dried?

# 67 MR. FUNG:

Yes.

# 68 MR. GOLDBERG:

And after the stains were dried in this case, what kind of packaging were they placed in by you and criminalist Mazzola?

# 69 MR. FUNG:

They were placed in paper.

# 70 MR. GOLDBERG:

Now, would there be any problems that would result if you placed the wet stains in paper at the scene?

# 71 MR. FUNG:

Yes.

# 72 MR. GOLDBERG:

What problems?

# 73 MR. FUNG:

The swatches could leak through the paper and cross-contaminate each other.

KEY QUOTE

# 74 MR. GOLDBERG:

And does the plastic prevent the problem of cross-contamination due to leakage?

# 75 MR. FUNG:

Yes.

# 76 MR. GOLDBERG:

Now, I would like to turn to the Rockingham location again and specifically the blood drops that you located and collected along with criminalist Mazzola leading from the area of the Bronco up to the front door.

# 77 MR. FUNG:

Yes.

# 78 MR. GOLDBERG:

Can you refer to your crime scene identification checklist and tell us how many stains there were and the distance between them?

# 79 MR. SCHECK:

One minute, your Honor.

# 80 MR. FUNG:

I can give you rough distances.

# 81 THE COURT:

All right. Hold on a second.

# 82 (Brief pause.)

# 83 MR. SCHECK:

Are you referring to a particular page? May I--

# 84 MR. GOLDBERG:

Your Honor, I may want to use the Rockingham board as well. Mr. Fairtlough will put that up.

# 85 THE COURT:

All right. Mr. Scheck, do you have the page?

# 86 MR. SCHECK:

Yes, your Honor.

# 87 THE COURT:

All right. Mr. Fairtlough.

# 88 MR. SCHECK:

The other thing here, your Honor, I believe the witness has a page--

# 89 THE COURT:

Why don't you confer with Mr. Goldberg, make sure you have the page.

# 90 (Brief pause.)

# 91 (Discussion held off the record between the Deputy District Attorney and Defense counsel.)

# 92 MR. GOLDBERG:

Sir, on the page that you're going to refer to in order to provide us with this information, did you jot down some information as to the distances?

# 93 MR. FUNG:

Yes.

# 94 MR. GOLDBERG:

How did you do that?

# 95 MR. FUNG:

I made some rough calculations from my property reports.

# 96 MR. GOLDBERG:

So in other words, you took the information that was already in your property reports and you just did some calculations based on it?

# 97 MR. FUNG:

Yes.

# 98 MR. SCHECK:

Your Honor, just for the record, we don't have this page. That's--

# 99 THE COURT:

Hold on.

# 100 MR. SCHECK:

Could we perhaps--it's just one page. Can we make a copy right now?

# 101 THE COURT:

Mr. Goldberg?

# 102 MR. GOLDBERG:

What?

# 103 THE COURT:

Any objection to having a copy--both sides having a photocopy of these notes?

# 104 MR. GOLDBERG:

No. They're just notes he's using to refresh his recollection.

# 105 THE COURT:

All right. Give me a copy.

# 106 (Brief pause.)

# 107 THE COURT:

Thank you.

# 108 MR. GOLDBERG:

Your Honor, may I proceed while we are waiting?

# 109 MR. SCHECK:

May I approach just for a second?

# 110 THE COURT:

Just for a second. Let Mr. Scheck step back so he's not blocking the witness. Mr. Fung.

# 111 MR. FUNG:

Thank you.

# 112 THE COURT:

All right. Mr. Goldberg. So you each can have a copy.

# 113 MR. GOLDBERG:

Sir, just to clarify the record on what your--

# 114 THE COURT:

Hand that to Mr. Goldberg and one copy to Mr. Scheck, please. Thank you. Proceed.

# 115 MR. GOLDBERG:

Just to clarify the record in terms of what you're looking at, this appears to be a little diagram. When was this diagram created?

# 116 MR. FUNG:

That diagram was created at the Rockingham scene on June 13th.

# 117 MR. GOLDBERG:

And the diagram itself is part of your crime scene identification checklist?

# 118 MR. FUNG:

Yes.

# 119 MR. GOLDBERG:

All right. So this is an old item over here?

# 120 MR. FUNG:

Yes.

# 121 MR. GOLDBERG:

Or at least most of it?

# 122 MR. FUNG:

Most of it is, yes.

# 123 MR. GOLDBERG:

Now, what about the new--is there some new stuff on here?

# 124 MR. FUNG:

Yes.

# 125 MR. GOLDBERG:

What is the new stuff on here that Mr. Scheck needed a copy of?

# 126 MR. FUNG:

There's some measurements that--in-between the items of evidence that I calculated and put down.

# 127 MR. GOLDBERG:

Okay. And did you do that just recently in order to be able to give us that testimony more efficiently when you testified?

# 128 MR. FUNG:

Yes.

# 129 MR. GOLDBERG:

All right. Can you tell us not counting the stain on the Bronco, on the Bronco handle, how many stains were there?

# 130 MR. FUNG:

Eight stains altogether.

# 131 MR. GOLDBERG:

Now, you also--you have on your diagram as well on the photos some stains that are labeled a, b and c; is that correct?

# 132 MR. FUNG:

Yes.

# 133 MR. GOLDBERG:

Now, you said that it was your--your custom and your practice to take representative samples?

# 134 MR. FUNG:

Yes.

# 135 MR. GOLDBERG:

In the case of a trail, what does that generally mean?

# 136 MR. FUNG:

In the case of a trail, a representative sample would be one from the beginning, one or two depending on the length from the middle and one at the end of the trail.

# 137 MR. GOLDBERG:

And this particular case, did you and criminalist Mazzola collect more stains than would customarily be done in this kind of a situation?

# 138 MR. FUNG:

Yes.

# 139 MR. GOLDBERG:

Were there certain stains which you did not collect in conformity with the representative sample approach?

# 140 MR. FUNG:

There were stains that I did not collect along this trail, yes.

# 141 MR. GOLDBERG:

And which ones were those?

# 142 MR. FUNG:

That would be the ones with letters on them, a, b and C.

# 143 MR. GOLDBERG:

Okay. But you did cause those to be documented with photography?

# 144 MR. FUNG:

Yes.

# 145 MR. GOLDBERG:

Now, can you give us the distance between the stains starting with the ones that began in the area near where the bronco's parked?

# 146 MR. FUNG:

The approximate distance from 4 to 5 which is--and 4 and 5 are depicted in photograph A. You can see the two cards.

# 147 THE COURT:

All right. 795, can you see that?

# 148 MR. GOLDBERG:

Can we have the picture of that?

JUROR NO. 795: Just a little bit. Not too much.

# 149 THE COURT:

We have a bad angle for the jury here.

# 150 MR. GOLDBERG:

Your Honor, maybe we can move this over here.

# 151 THE COURT:

All right.

# 152 (Brief pause.)

# 153 MR. FUNG:

The distance between 4 and 5 is approximately 12 feet.

# 154 MR. GOLDBERG:

And what about the next--4 and the next stain?

# 155 MR. FUNG:

Between 4 and the next stain or 5 and 6?

# 156 MR. GOLDBERG:

Well, 4 and 5.

# 157 MR. FUNG:

Between 4 and 5 is 12 feet.

# 158 MR. GOLDBERG:

And 5 and 6?

# 159 MR. FUNG:

Between 5 and 6 is approximately eight feet.

# 160 MR. GOLDBERG:

And where was a in relationship to 6?

# 161 MR. FUNG:

6 was near a and it was south of 6.

# 162 MR. GOLDBERG:

Maybe we can have the photograph that's marked c on the screen--I don't know whether the resolution on that is good enough, Mr. Fung. Maybe you can take a look at the actual photograph and see if you can tell us where 5, 6 and a are.

# 163 MR. FUNG:

5 is in the foreground, 6 is to the upper left and a is up--to the upper right.

# 164 MR. GOLDBERG:

Okay. And now, Mr. Fung, the distance between 6 and b?

# 165 MR. FUNG:

The distance between 6 and b is roughly 65 feet.

# 166 MR. GOLDBERG:

Maybe we can have a picture of d on the Rockingham exhibit, People's 120. All right. And what is the approximate distance then between b and c?

# 167 MR. FUNG:

I was--I wasn't able to make that calculation from my notes.

# 168 MR. GOLDBERG:

Does that kind of turn the corner?

# 169 MR. FUNG:

Yes.

# 170 MR. GOLDBERG:

All right. As depicted on People's 120, do the call out lines show the relative positions of b and c?

# 171 MR. FUNG:

Yes.

# 172 MR. GOLDBERG:

Maybe we can have People's 120-F, a picture of that. Can you tell us which one is c in the perspective shot?

# 173 MR. FUNG:

In the perspective shot, c is the card in the--

# 174 MR. GOLDBERG:

Foreground?

# 175 MR. FUNG:

Towards the bottom.

# 176 MR. GOLDBERG:

All right. And what is the approximate distance then between c and stain 7?

# 177 MR. FUNG:

It was--again, this is a rough estimate and it's about 25 to 30 feet or 25 feet. But that's rough.

# 178 MR. GOLDBERG:

Okay. Maybe we can see photograph number I. Photograph number I, does that depict no. 7?

# 179 MR. FUNG:

Yes, it does.

# 180 MR. GOLDBERG:

And then the distance between 7 and 8?

# 181 MR. FUNG:

The distance between 7 and 8 is roughly 20 feet.

# 182 MR. GOLDBERG:

And can we see photograph k? Does that show no. 8?

# 183 MR. FUNG:

Yes.

# 184 MR. GOLDBERG:

Thank you. You may resume the stand.

# 185 MR. GOLDBERG:

Your Honor, maybe I'll mark the little diagram that we just got as People's 194 for identification.

# 186 THE COURT:

194, small diagram.

# 187 (Peo's 194 for id = small diagram)

# 188 MR. GOLDBERG:

And I'll mark 194 in the--

# 189 THE COURT:

Madam reporter, how are you doing?

THE COURT REPORTER: Fine.

# 190 MR. GOLDBERG:

Maybe I can just put this on the elmo quickly just to get the witness to authenticate it.

# 191 MR. GOLDBERG:

Okay. Is this the little crime scene sketch that was part of the crime scene identification checklist that shows the various items?

# 192 MR. FUNG:

Yes.

# 193 MR. GOLDBERG:

And which is the--

# 194 MR. SCHECK:

Objection, your Honor. This is not the document by his own admission.

# 195 MR. GOLDBERG:

Well what is this?

# 196 THE COURT:

Overruled.

# 197 MR. FUNG:

This is a representation of that.

# 198 MR. GOLDBERG:

Okay. But is there a part of this that was--that's new, added onto?

# 199 MR. FUNG:

Yes.

# 200 MR. GOLDBERG:

Okay. What part is that? Do we see that on here?

# 201 MR. FUNG:

Yes. Between the little--the circles with numbers in them are distances that I've made rough calculations to.

# 202 MR. GOLDBERG:

Okay. So that's the new part?

# 203 MR. FUNG:

Yes.

# 204 MR. GOLDBERG:

And did you do that in preparation for your testimony a few days ago?

# 205 MR. FUNG:

Yes.

# 206 MR. GOLDBERG:

All right. Thank you. Now, you said that you did a phenolphtalein test of the glove that was located at Rockingham; is that correct?

# 207 MR. FUNG:

Yes.

# 208 MR. GOLDBERG:

And for what purpose did you do that?

# 209 MR. FUNG:

I was requested by Detective Vannatter to perform a pheno test on that item.

# 210 MR. GOLDBERG:

Why didn't you refuse?

# 211 MR. FUNG:

It was important to his investigation at the time--at the time he requested it.

# 212 MR. GOLDBERG:

Did he say why he wanted that information?

# 213 MR. SCHECK:

Objection. Calls for hearsay.

# 214 THE COURT:

He can say yes or no he was told.

# 215 MR. FUNG:

Yes. Well, I'm not sure if he did or not.

# 216 MR. GOLDBERG:

Okay. Did you know that there was going to be a search warrant?

# 217 MR. FUNG:

Yes.

# 218 MR. GOLDBERG:

Why did you think that it was reasonable to conduct this phenolphtalein test in the field?

# 219 MR. FUNG:

The--performing a phenolphtalein test on the glove was minimally invasive to the item itself. It wouldn't have--wouldn't have contaminated it and by carefully selecting an area, trace evidence would not be disturbed either.

KEY QUOTE

# 220 MR. GOLDBERG:

Can you just tell us what's involved in a phenolphtalein test?

# 221 MR. FUNG:

A cotton applicator is wet with distilled water. It is applied to a stain so that the stain is transferred onto the wet applicator. The reagent phenolphtalein is placed on the cotton swab or applicator and then hydrogen peroxide is placed after the phenolphtalein onto the applicator. And if it is positive, immediately a bright pink color appears.

# 222 MR. GOLDBERG:

Now, sir, does the cotton applicator have to touch the glove more than one--that one time in order to collect a little portion of the stain?

# 223 MR. FUNG:

No.

# 224 MR. GOLDBERG:

Now, you said that when you were inside the Rockingham location, you didn't see any bloody shoeprints or partial shoeprints on the rug; is that true?

# 225 MR. FUNG:

That's correct.

# 226 MR. GOLDBERG:

Now, when you were back at the Bundy location looking at the shoeprints, did they fade out at some point?

# 227 MR. FUNG:

They got lighter and lighter, and after a point, we could not detect shoeprints.

KEY QUOTE

# 228 MR. GOLDBERG:

Okay. Did you also see something that resembled or was a shoeprint in the Bronco when you did the search of the Bronco on the 14th?

# 229 MR. SCHECK:

Objection.

# 230 THE COURT:

What's the objection, legal basis?

# 231 MR. SCHECK:

It's speculative, and it's conclusionary and it's leading.

# 232 THE COURT:

Overruled.

# 233 MR. FUNG:

I saw--

# 234 MR. SCHECK:

Your Honor, could we have a sidebar for a minute?

# 235 THE COURT:

All right. With the Court reporter.

Temperature

procedural

Key Quotes (4)

Dennis Fung

None of them do, no.

Directly rehabilitates Fung against the defense theory that contaminated or degraded blood could produce false incriminating DNA results — Fung confirms no authoritative reference work supports that idea.

Dennis Fung

The swatches could leak through the paper and cross-contaminate each other.

Explains why plastic interim packaging was used at the scene despite the LAPD manual prohibition — the manual addresses final (dry) packaging, not wet transport.

Dennis Fung

The--performing a phenolphtalein test on the glove was minimally invasive to the item itself. It wouldn't have--wouldn't have contaminated it and by carefully selecting an area, trace evidence would not be disturbed either.

Defends the field presumptive test on the Rockingham glove, pre-empting the defense argument that evidence was mishandled before the search warrant.

Dennis Fung

They got lighter and lighter, and after a point, we could not detect shoeprints.

Contextualizes why no bloody shoeprints were found inside Rockingham — the trail faded out before reaching the house.

Evidence (8)

null

Saferstein forensic science textbook — queried for collection protocols for wet stains

discussed

null

Lee, Gaensslen and De Forest, section starting page 244, 'Collection, preservation and packaging'

discussed; Fung confirms it does not specify how to transport wet swatches or require glove changes between samples

null

Dr. Henry Lee DOJ handout — queried on clean vs. sterile instrument requirement

discussed; Fung confirms Lee requires 'clean,' not 'sterile,' instruments

null

LAPD manual section 525.20, page 367 (1992 edition) — 'Preserving wet stains' — prohibits plastic packaging

introduced and discussed; Fung testifies the prohibition applies to final dry packaging, not interim wet transport

People's 120

Rockingham crime scene board showing blood trail stain locations

used to illustrate distances between stains 4 through 8 and lettered uncollected stains a, b, c

People's 194

Small crime scene sketch from Fung's identification checklist, annotated by Fung with calculated distances between stains

marked for identification; authenticated by Fung

+ 2 more

Notable Exchanges (4)

Hank Goldberg•Barry Scheck•Judge Ito

Running dispute over whether Goldberg must cite specific page and chapter numbers when asking Fung about textbooks already discussed on cross. Ito sides with Scheck on the need for a record citation but ultimately allows Goldberg to proceed once he supplies page 244.

procedural skirmish

Hank Goldberg•Dennis Fung

Goldberg elicits that the LAPD manual packaging prohibition (no plastic) applies only to final dry packaging — Fung explains plastic was appropriate for wet interim transport to prevent cross-contamination leakage.

strategic rehabilitation

Hank Goldberg•Dennis Fung

Goldberg walks Fung through the crime scene sketch annotations and photographs to establish the precise distances (12 ft, 8 ft, 65 ft, ~25 ft, ~20 ft) between the eight Rockingham blood trail stains.

methodical

Barry Scheck•Judge Ito

Scheck requests a sidebar just as Fung is about to testify about a possible shoeprint in the Bronco, successfully halting the testimony before it is given.

strategic interruption

Light Moments (1)

Judge Ito

Ito checks in on the court reporter mid-exhibit-marking: 'Madam reporter, how are you doing?' Reporter replies, 'Fine.'

Credibility Attacks (1)

⚔ Dennis Fung

rehabilitation of prior cross-examination attacks

Goldberg systematically closes the gaps opened by Scheck: (1) confirming reference works do not mandate the specific protocols Scheck said were violated; (2) establishing that the LAPD manual plastic-packaging prohibition applies to final dry packaging; (3) defending the phenolphthalein glove test as minimally invasive; (4) clarifying that degraded blood cannot become a defendant's DNA profile.

Witness Demeanor

(Brief pause.) — multiple times during document-sharing logistics

(Discussion held off the record between the Deputy District Attorney and Defense counsel.)

Objections

7 objections (2 sustained, 4 overruled)

Proceeding 5741 • 235 utterances • Defense witness

Criminal Trial

Department 103