Procedural matter

📄 Procedural matter — Tuesday, April 18, 1995

Address:

C:\DEPT103\CRIMINAL\1995\APR\18\PROCEDURAL-MATTER.DOC

TRIAL

▲ Day 59 of 167

◀ Re-redirect examination of Dennis Fung (part 2) Re-redirect examination of Dennis Fung (part 3) ▶

Date: Tuesday, April 18, 1995 • Utterances: 23

Judge Ito and counsel discuss the proper procedure for Scheck's recross examination of Dennis Fung, specifically whether Scheck has located transcript passages to support impeachment. Goldberg objects that the cited testimony is not inconsistent enough to warrant recross, but Ito overrules him and allows the examination to proceed.

# 1 THE COURT:

All right. Back on the record in the Simpson matter. All parties are again present. Mr. Scheck, did you locate the portion of the transcript that you needed?

# 2 MR. SCHECK:

We have located that and a number of others on the redirect that just was done. Just asking him the questions that he was asked on redirect, your Honor. And, you know, I got in one or two before you started asking me for page numbers.

# 3 THE COURT:

My mistake. All right. Let's have the jurors, please.

# 4 MR. GOLDBERG:

Your Honor, on this, I did have an objection. It's not inconsistent.

# 5 THE COURT:

Well, why don't you tell me what it is. Read it for me. Hold on to the jury. Read it for me.

# 6 MR. GOLDBERG:

You want me to--

# 7 THE COURT:

Read it for me.

# 8 MR. GOLDBERG:

I didn't know who the Court was talking to. I apologize.

# 9 THE COURT:

You're making the objection, counsel. Read it for me.

# 10 MR. GOLDBERG:

Okay. "Did you know whether the crime scene had been altered before you arrived? "Answer: I--I assumed it had because the body was--of Nicole Brown Simpson was on the plastic when I walked up to the scene. "Question: Okay. And you assumed that when she was murdered, it wasn't on that Coroner's plastic bag? "Answer: Yes. "Question: Now, was it your job as a Criminalist to start interviewing witnesses for the purposes of determining what the crime scene was like when they arrived? "Answer: No. "Question: Whose job is that?"

# 11 THE COURT:

The detectives.

# 12 MR. GOLDBERG:

"Answer: That is the investigating officer--officer's job, the detectives."

# 13 MR. SCHECK:

Your Honor, Mr. Goldberg anticipates me. I think the correct form for recross examination is, they must direct the witness' attention to the questions he was asked on redirect in order to set up impeachment with prior testimony, which is exactly what I'm going to do with this first set of questions. And in fact, I think the witness was actually a little vague on the issue of "Altered." But that's all I'm doing with these questions. I think it's my responsibility--

# 14 THE COURT:

This is your foundation to set up an impeachment?

# 15 MR. SCHECK:

Yes.

# 16 THE COURT:

All right. What's the second passage?

# 17 MR. SCHECK:

Well, your Honor, can Mr. Fung step out then if I'm going to do all this?

# 18 THE COURT:

No. You're making a good faith offer that you've got it there?

# 19 MR. SCHECK:

Yes. I've got impeachment from prior testimony.

# 20 THE COURT:

All right. Let's proceed. Let's have the jury, please.

# 21 MR. GOLDBERG:

Your Honor, I think I'll object on another ground. And that's that if there's two separate passages that are inconsistent, it's not relevant. That can be argued to the jury, but there's no need to ask the witness about it.

KEY QUOTE

# 22 THE COURT:

Overruled. And, Miss Moxham, can you go to noon?

KEY QUOTE

# 23 THE COURT REPORTER:

Yes.

Temperature

procedural

Key Quotes (3)

Barry Scheck

I think the correct form for recross examination is, they must direct the witness' attention to the questions he was asked on redirect in order to set up impeachment with prior testimony, which is exactly what I'm going to do with this first set of questions.

Scheck articulates the legal standard he is following to justify the scope of his recross.

Hank Goldberg

I think I'll object on another ground. And that's that if there's two separate passages that are inconsistent, it's not relevant. That can be argued to the jury, but there's no need to ask the witness about it.

Goldberg attempts a second-line objection to block the impeachment, arguing it should go to argument rather than questioning.

Lance A. Ito

Overruled.

Ito clears the way for Scheck's impeachment of Fung to continue.

Evidence (1)

Informal

Prior transcript testimony from Dennis Fung regarding whether the crime scene had been altered before he arrived, and whose job it was to interview witnesses

discussed as foundation for impeachment on recross

Notable Exchanges (2)

Barry Scheck•Hank Goldberg•Lance A. Ito

Goldberg reads aloud the transcript passage he objects to; Ito completes Fung's answer ('The detectives') before Goldberg can finish reading it, suggesting familiarity with the testimony.

procedural

Barry Scheck•Lance A. Ito

Scheck asks whether Fung can step out of the courtroom while the foundation is being laid; Ito declines and instead asks for a good-faith proffer that Scheck actually has the impeachment material.

strategic

Credibility Attacks (1)

⚔ Dennis Fung

prior inconsistent statement

Scheck is laying foundation to impeach Fung's redirect testimony using prior transcript passages about whether the crime scene was altered and the scope of Fung's investigative role.

Objections

2 objections (0 sustained, 1 overruled)

Proceeding 5750 • 23 utterances

Criminal Trial

Department 103