Re-redirect examination of Dennis Fung (part 1)

📄 Re-redirect examination of Dennis Fung (part 1) — Tuesday, April 18, 1995

Address:

C:\DEPT103\CRIMINAL\1995\APR\18\RE-REDIRECT-EXAMINATION-OF-DEN.DOC

TRIAL

▲ Day 59 of 167

◀ Pre-trial matters Sidebar: video evidence time code ▶

Witness: Dennis Fung
Examiner: Barry Scheck
Called by: Defense • Date: Tuesday, April 18, 1995 • Utterances: 106

Barry Scheck resumes recross of Dennis Fung, attacking his credibility on two fronts: first, challenging whether Fung strategically deployed vague or selective memory to benefit the prosecution, and second, pinning down inconsistencies in Fung's testimony about when the Rockingham socks (item 13) were collected. The session ends with Scheck seeking to play a segment of an SID video (Defense Exhibit 1068) that apparently contains a time-coded shot of the master bedroom, prompting a prosecution sidebar request over concerns about the accuracy of the time code.

# 1 (Brief pause.)

# 2 (The following proceedings were held in open Court, in the presence of the jury:)

# 3 THE COURT:

All right. Thank you, ladies and gentlemen. Please be seated. Let the record reflect we have now been rejoined by all the members of our jury panel. Mr. Fung, would you resume the witness stand.

Dennis Fung, the witness on the stand at the time of the evening adjournment, resumed the stand and testified further as follows:

# 4 THE COURT:

Mr. Dennis Fung is on the witness stand undergoing recross examination by Mr. Scheck. Good morning, Mr. Fung.

# 5 MR. FUNG:

Good morning.

# 6 THE COURT:

You are reminded you are still under oath, sir. And Mr. Scheck, you may conclude your recross examination.

# 7 MR. SCHECK:

Thank you, your Honor. Good morning ladies and gentlemen.

THE JURY: Good morning.

RECROSS-EXAMINATION (RESUMED) BY MR. SCHECK

# 8 MR. SCHECK:

Good morning, Mr. Fung. How are you, sir?

# 9 MR. FUNG:

Good morning.

# 10 MR. SCHECK:

Mr. Fung, let's turn to the question of the socks that Mr. Goldberg asked you about on redirect examination. Now, is one of the habits you have, when you testify, umm, to use a selective memory?

# 11 MR. FUNG:

No.

# 12 MR. SCHECK:

Umm, do you have a habit of being vague when you think it is going to help the Prosecution's case?

KEY QUOTE

# 13 MR. FUNG:

No.

# 14 MR. SCHECK:

Do you have a habit of being specific when you think it is going to help the Prosecution's case?

# 15 MR. FUNG:

I answer the questions to the best of my ability.

KEY QUOTE

# 16 MR. SCHECK:

Now, you testified yesterday--you were asked: "Did do you any close visual examination of the socks when you picked them up?" And you answered: "No, not a close one." Do you recall that?

# 17 MR. FUNG:

Yes.

# 18 MR. SCHECK:

Now, you have a specific recollection that you did not look very carefully at those socks?

# 19 MR. FUNG:

I did not look at those socks for blood because they were dark and--I mean, a specific--

# 20 MR. SCHECK:

May I--

# 21 MR. FUNG:

--laboratory type analysis was not done at that scene for the presence of blood.

# 22 MR. SCHECK:

My question to you is a simple one, sir. Do you have in your mind a specific recollection that you did not perform a careful visual examination of those socks?

# 23 MR. FUNG:

Yes.

# 24 MR. SCHECK:

Now, you went there looking for--on Rockingham on the afternoon of June 13th you were looking for bloody clothes?

# 25 MR. FUNG:

Yes.

# 26 MR. SCHECK:

And the socks you say were out of place?

# 27 MR. FUNG:

Yes, they were.

# 28 MR. SCHECK:

And you were concerned, were you not, that they might have been socks worn by the assailant? That was the Prosecution's theory?

# 29 MR. FUNG:

That was a possibility--

# 30 MR. GOLDBERG:

Your Honor, I object to that. I didn't think we would get into the People's theory.

# 31 THE COURT:

Overruled.

# 32 MR. FUNG:

That was a possibility.

# 33 MR. SCHECK:

And do you think, sir, that it would be very helpful to the Prosecution's position for you to remember a careful, visual examination of the socks?

# 34 MR. GOLDBERG:

Your Honor, I object to that. May we approach?

# 35 THE COURT:

Speculation. Sustained.

# 36 MR. SCHECK:

Now, you were asked some questions on redirect examination about the timing of your collection of the sock?

# 37 MR. FUNG:

Yes.

# 38 MR. SCHECK:

And you were asked by MR. GOLDBERG: "Question: Now, when you were at the Rockingham location you saw a pair of socks in the master bedroom? "Answer: Yes. "Question: And can you tell us whether you collected those between the collection of item 12 and item 14 by looking at your crime scene identification checklist? "Answer: It was collected within that time frame. I don't know if it was collected in between those two times, though. "Question: What are the two time frames? What is the time frame for 12? "Answer: The time frame is 4:30. "Question: And that was the stain in the foyer? "Answer: Yes.

"Question: And what time is it--what is the time for 14? "Answer: The time for 14 is 4:40. "Question: And that was the stain in the master bathroom? "Answer: Yes." And then a little later Mr. Goldberg came back to you and he asked you: "Question: Now, just--I just want to make sure I understand your testimony. "Do you know whether you collected--whether you collected 13"--that is the socks, right?

# 39 MR. FUNG:

Yes.

# 40 MR. SCHECK:

--"In between 12 and 14? "Answer: I--I know it was in that time frame, but I don't specifically recall, nor can I tell from my notes if it were. "Question: For sure? "Answer: For sure. "Question: But it was in that general time frame? "Answer: Yes." Do you remember being asked those questions and giving those answers?

# 41 MR. FUNG:

Yes.

# 42 MR. SCHECK:

Now, have you--that was different, was it not, than your testimony on direct and cross-examination?

# 43 MR. GOLDBERG:

Calls for speculation.

# 44 THE COURT:

Sustained.

# 45 MR. SCHECK:

On direct examination--

# 46 MR. GOLDBERG:

Your Honor, perhaps counsel can give me page and line.

# 47 THE COURT:

Page and line.

# 48 (Brief pause.)

# 49 MR. SCHECK:

I have the transcript but I don't have the page.

# 50 (Discussion held off the record between Defense counsel.)

# 51 THE COURT:

Maybe Mr. Blasier can do a word search.

# 52 MR. SCHECK:

That is exactly it. These computers, you print them out and sometimes you don't get the exact page.

# 53 (Brief pause.)

# 54 THE COURT:

Is there something else we can move on to?

# 55 MR. SCHECK:

No, I think actually--21575, line 9.

# 56 MR. GOLDBERG:

Hold on a second.

# 57 (Brief pause.)

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

# 59 THE COURT:

Mr. Goldberg?

# 60 MR. GOLDBERG:

Line 18 through?

# 61 MR. SCHECK:

I think 24. Question by Mr. Goldberg. "All right. Now, after collecting item no. 12, did you go upstairs in the location? "Answer: Yes, I did. "Question: Do you recall what was the next item of evidence you collected? "Answer: The next item was a pair of socks in the master bedroom." MR. SCHECK: Were you asked those questions and did you give those answers on direct?

# 62 MR. FUNG:

Yes.

# 63 MR. SCHECK:

Now, on cross-examination, 22302.

# 64 (Brief pause.)

# 65 THE COURT:

Mr. Scheck, which line? Which line?

# 66 MR. SCHECK:

Starting at 22302 at page--at line 4. May I proceed?

# 67 MR. GOLDBERG:

Well, may I have a moment.

# 68 (Brief pause.)

# 69 MR. GOLDBERG:

Line 4 through line 26?

# 70 MR. SCHECK:

Uh-huh.

# 71 THE COURT:

Proceed.

# 72 MR. GOLDBERG:

That's fine.

# 73 MR. SCHECK:

"Question: And then the next item was a red stain from the foyer area inside Rockingham, correct? "Answer: Yes. "Question: And that one was collected at 4:30? "Answer: Yes. "And/or thereabouts--"Question: Or thereabouts? "And the next item you collected were the socks? "Answer: Yes. "But there is no time indicated for that? "Answer: That's correct. "And the next item after you--after that you indicated was a red stain that was found in the master bathroom? "Answer: Yes. "And that time is at 4:40? "Answer: Yes. "So I believe it was your testimony on direct examination that you collected the socks sometime between 4:30 and 4:40? "Answer: About then, yes."

# 74 MR. SCHECK:

Were you asked those questions and did you give those answers?

# 75 MR. FUNG:

Yes.

# 76 MR. SCHECK:

Now, Mr. Fung, hasn't it come to your attention that there is a video that was taken on the afternoon of June 13th of the interior of Rockingham by a photographer from SID, yes?

KEY QUOTE

# 77 MR. GOLDBERG:

Vague as to time. Motion to strike.

# 78 THE COURT:

Overruled.

# 79 MR. SCHECK:

Have you been informed that on that video there is a shot of the master bedroom?

# 80 MR. FUNG:

Yes.

# 81 MR. SCHECK:

Have you been informed that on the camera there is a time of when the video is being shot?

# 82 MR. FUNG:

I believe there was a time present.

# 83 MR. SCHECK:

So you have seen that tape?

# 84 MR. FUNG:

Yes.

# 85 MR. SCHECK:

Your Honor, I would ask that we be permitted to show a segment from that tape.

# 86 MR. GOLDBERG:

I didn't hear what he just said.

# 87 MR. SCHECK:

I would like to show a segment from that tape, and I will show it to counsel.

# 88 THE COURT:

What is the evidence number on this one?

# 89 (Discussion held off the record between Defense counsel.)

# 90 MR. SCHECK:

I think it is 1068, your Honor.

# 91 MR. GOLDBERG:

Your Honor, may we approach for a moment?

# 92 THE COURT:

For what purpose?

# 93 MR. GOLDBERG:

Excuse me?

# 94 THE COURT:

It is a Defense exhibit already marked, 1068.

# 95 MR. GOLDBERG:

Yes, I realize that, but counsel did not give us advance notice that they wanted to play this and I'm not objecting necessarily to playing the tape, but there is one portion of it in terms of the time.

# 96 MR. SCHECK:

I will show him.

# 97 MR. GOLDBERG:

I would like to discuss that at sidebar.

# 98 THE COURT:

As to the accuracy of the time?

# 99 MR. GOLDBERG:

Right.

# 100 MR. SCHECK:

Well, I--

# 101 MR. GOLDBERG:

I don't know if the time code is on this one or not.

# 102 (Discussion held off the record between Defense counsel.)

# 103 THE COURT:

Mr. Scheck, does 1068 have the time code on it?

# 104 MR. SCHECK:

Yes.

# 105 MR. GOLDBERG:

Okay. Then we need to approach.

# 106 THE COURT:

All right. With the Court reporter, please. One attorney from each side.

Temperature

tense

Key Quotes (4)

Barry Scheck

Is one of the habits you have, when you testify, umm, to use a selective memory?

Scheck opens with a direct credibility attack, framing Fung's memory as strategically selective rather than genuinely limited.

Barry Scheck

Do you have a habit of being vague when you think it is going to help the Prosecution's case?

Escalates the bias attack — accusing Fung of tailoring vagueness to shield the prosecution rather than testifying truthfully.

Dennis Fung

I answer the questions to the best of my ability.

Fung's defensive stock answer, which Scheck immediately works to undermine by reading back prior inconsistent testimony.

Barry Scheck

Now, Mr. Fung, hasn't it come to your attention that there is a video that was taken on the afternoon of June 13th of the interior of Rockingham by a photographer from SID?

Introduction of the time-coded SID video, which Scheck implies will contradict Fung's stated timeline for collecting the socks.

Evidence (4)

Informal

Item 13 — pair of socks collected from the master bedroom at Rockingham on June 13th, allegedly between 4:30 and 4:40 p.m.

discussed, timeline challenged

Informal

Item 12 — red stain from foyer area at Rockingham, collected at 4:30 p.m.

referenced as timing anchor for sock collection

Informal

Item 14 — red stain from master bathroom at Rockingham, collected at 4:40 p.m.

referenced as timing anchor for sock collection

Defense 1068

SID video of Rockingham interior on the afternoon of June 13th, including a time-coded shot of the master bedroom

Scheck seeks to play a segment; prosecution requests sidebar over time code accuracy

Notable Exchanges (3)

Barry Scheck•Dennis Fung

Scheck reads back Fung's direct, cross, and redirect testimony on when the socks were collected, establishing a pattern of shifting answers — from 'next item after item 12' on direct, to 'between 4:30 and 4:40' on cross, to 'in that time frame but I don't specifically recall' on redirect.

strategic

Barry Scheck•Hank Goldberg•Lance A. Ito

Extended back-and-forth over page and line citations from prior testimony, including a computer word-search delay. Judge Ito asks if Blasier can run a search, and Scheck jokes about printer pagination.

procedural

Hank Goldberg•Lance A. Ito•Barry Scheck

Goldberg requests a sidebar before Defense Exhibit 1068 (the SID video) is played, citing concerns about whether the time code on the tape is accurate. Ito clarifies the exhibit is already marked and asks Scheck directly whether it contains a time code.

strategic

Light Moments (1)

Barry Scheck

Scheck explains a citation delay by noting that printing transcripts from the defense computers doesn't always preserve exact page numbers, with the judge suggesting Blasier do a word search.

Credibility Attacks (3)

⚔ Dennis Fung

bias / selective memory

Scheck opens by directly asking whether Fung has a habit of using 'selective memory,' being vague when it helps the prosecution, or being specific when it helps the prosecution — painting him as a partisan witness rather than an objective technician.

⚔ Dennis Fung

prior inconsistent statements

Scheck methodically reads back Fung's direct, cross, and redirect testimony on the sock collection timing, establishing that his answers shifted across examinations — from a definitive sequence on direct to uncertainty on redirect.

⚔ Dennis Fung

documentary contradiction (anticipated)

Scheck introduces Defense Exhibit 1068, an SID video with a time code of the master bedroom, apparently to show the socks were present at a time inconsistent with Fung's stated collection window.

Witness Demeanor

(Brief pause.) — multiple times, during citation searches and off-record discussions

(Discussion held off the record between Defense counsel.) — twice

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

Objections

5 objections (2 sustained, 2 overruled)

Proceeding 5747 • 106 utterances • Defense witness

Criminal Trial

Department 103