Re-redirect examination of Dennis Fung (part 4)

📄 Re-redirect examination of Dennis Fung (part 4) — Tuesday, April 18, 1995

Address:

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

TRIAL

▲ Day 59 of 167

◀ Sidebar: impeachment foundation Sidebar: examination scope ▶

Witness: Dennis Fung
Examiner: Barry Scheck
Called by: Defense • Date: Tuesday, April 18, 1995 • Utterances: 173

Barry Scheck methodically confronts Dennis Fung with contradictions between his cross-examination and redirect testimony, particularly regarding his duty to investigate whether evidence had been altered. Scheck hammers Fung on the undiscovered movement of the glove and envelope at the crime scene, eliciting the damaging admission that no investigation has ever been conducted into who moved them. The session ends mid-examination with a dispute over reading transcript context.

# 1 THE COURT:

All right. Thank you, counsel. Proceed.

# 2 MR. SCHECK:

Mr. Fung, were you asked these questions and did you give these answers? "Question: Now, Mr. Fung, isn't it your responsibility to investigate whether evidence at the crime scene has been moved or altered from its original position? "Answer: I--in some respects, it is my responsibility, yes. "Question: All right. And are you supposed to make inquiries of people at the scene as to whether or not evidence has been moved or altered? "Answer: Yes." Were you asked that question--those questions and did you give that answer on cross-examination?

# 3 MR. FUNG:

Yes, I did.

# 4 MR. SCHECK:

But when Mr. Goldberg asked you questions on redirect yesterday, you said that it is not your job to interview witnesses for purposes of determining what the crime scene was like when they arrived. You said that was the detective's job.

# 5 MR. GOLDBERG:

Argumentative. Misstates the testimony.

# 6 THE COURT:

Overruled.

# 7 MR. FUNG:

That's what I stated.

# 8 MR. SCHECK:

Well, Mr. Fung, is this a change in your testimony now, your position on redirect?

# 9 MR. FUNG:

Mr. Goldberg asked about witnesses which is different from the question that you asked.

# 10 MR. SCHECK:

Let me read again from line 12. "Question: Are you supposed to make inquiries of people at the scene as to whether or not evidence has been moved or altered? "Answer: Yes." You make a distinction in your mind between witnesses and people?

# 11 MR. FUNG:

Witnesses would not include the investigating officer which would--or the detective in my mind.

# 12 MR. SCHECK:

Would it include the representatives from the Coroner's office?

# 13 MR. GOLDBERG:

I think it's vague as to what he's referring to, just "It."

# 14 THE COURT:

Overruled.

# 15 MR. FUNG:

I really haven't given it that much thought.

# 16 MR. SCHECK:

Would it include the people from SID print division?

# 17 MR. FUNG:

I wouldn't consider them witnesses, no.

KEY QUOTE

# 18 MR. SCHECK:

Would it include the photographers from SID?

# 19 MR. FUNG:

I wouldn't consider them witnesses either.

# 20 MR. SCHECK:

Well, other than the detectives, the photographers from SID, the Coroner's representative and the print people, the representatives from the print unit at SID, was there anyone else at the scene who could have been a witness?

# 21 MR. GOLDBERG:

Calls for speculation. It's irrelevant.

# 22 THE COURT:

As phrased.

# 23 MR. SCHECK:

To your knowledge, was there any other person that could have been a witness other than the detectives, the representatives from SID and the photographers?

# 24 MR. GOLDBERG:

It calls for speculation and it's irrelevant.

# 25 THE COURT:

Overruled. Overruled.

# 26 MR. FUNG:

There are a lot of people at the scene, but not in the scene who could be considered witnesses.

# 27 MR. SCHECK:

Well, the people--the other people you're talking about were being kept away by that yellow crime scene tape?

# 28 MR. FUNG:

And officers.

# 29 MR. SCHECK:

In terms of figuring out whether--what the crime scene was like before you arrived, weren't the only people you could possibly interview as witnesses those officials who were allowed inside the yellow tape?

# 30 MR. FUNG:

I don't consider detectives and people working in the police department as witnesses.

# 31 MR. SCHECK:

Mr. Fung, this distinction you're making between people and witnesses, isn't it just an effort by you to avoid admitting that on redirect examination, you said exactly the opposite of what you said on cross-examination?

# 32 MR. GOLDBERG:

Wait. That misstates the testimony. It's argumentative.

# 33 THE COURT:

Sustained. Sustained. Sustained.

# 34 MR. SCHECK:

Now, in terms of your responsibilities--

# 35 MR. SCHECK:

Your Honor, I'm putting on the elmo the relevant section from the crime scene checklist.

# 36 THE COURT:

Is this the one with the question mark in the box?

# 37 MR. SCHECK:

Yes.

# 38 MR. SCHECK:

The crime scene checklist, that's where you directed Mr.--Miss Mazzola to put a question mark?

# 39 MR. FUNG:

I didn't direct her to put a question mark there, but one was put there.

# 40 MR. SCHECK:

Are you sure you didn't previously testify that you directed her to put a question mark there because you realized when you got to the scene that you saw Miss Nicole Brown Simpson's body on plastic?

# 41 MR. FUNG:

I may have.

# 42 MR. SCHECK:

Okay.

# 43 THE COURT:

What exhibit is this, Mr. Harris?

# 44 MR. HARRIS:

It's not marked, your Honor.

# 45 MR. SCHECK:

Your Honor, this is--we'll--this is that group of documents, the number of which escapes me that--

# 46 THE COURT:

All right. This is page--

# 47 MR. GOLDBERG:

1107.

# 48 MR. SCHECK:

Thank you, Mr. Goldberg.

# 49 THE COURT:

What--I can't see the page number.

# 50 MR. SCHECK:

It's page 2.

# 51 THE COURT:

All right. Page 2.

# 52 MR. SCHECK:

Now, this box says, "Has the scene been altered? If so, by whom and how"?

# 53 MR. FUNG:

Yes.

# 54 MR. SCHECK:

And isn't it your job to find out if the scene had been altered, and if so, by whom and how?

# 55 MR. GOLDBERG:

It's still overbroad, your Honor.

# 56 THE COURT:

Overruled.

# 57 MR. GOLDBERG:

And vague.

# 58 MR. FUNG:

In some respects it is.

# 59 MR. SCHECK:

And you have known now since you heard Detective Lange testify that the glove and the envelope were in two different positions?

# 60 MR. GOLDBERG:

Asked and answered, argumentative.

# 61 THE COURT:

Overruled.

# 62 MR. FUNG:

I know that some--some evidence had been moved.

# 63 MR. SCHECK:

Well, you know--you've agreed, have you not, that the glove and the envelope were in two different positions?

# 64 MR. FUNG:

Yes.

# 65 MR. SCHECK:

To your knowledge, sir, since you have discovered this, have you conducted any investigation as to who might have put the glove and the envelope back into a second position?

# 66 MR. FUNG:

I have not conducted an investigation, no.

KEY QUOTE

# 67 MR. SCHECK:

To your knowledge, has anyone conducted such an investigation?

# 68 MR. GOLDBERG:

Wait a minute. That assumes facts not in evidence. Motion to strike.

# 69 THE COURT:

Overruled.

# 70 MR. GOLDBERG:

The question and answer.

# 71 THE COURT:

Overruled.

# 72 MR. FUNG:

Please repeat the question.

# 73 MR. SCHECK:

To your knowledge, has anyone conducted such an investigation?

# 74 MR. GOLDBERG:

Calls for speculation.

# 75 THE COURT:

Overruled. To your knowledge, do you know if anyone has? Yes or no?

# 76 MR. FUNG:

No.

# 77 THE COURT:

Proceed.

# 78 MR. SCHECK:

Would a failure to find that out constitute in your mind a cover-up?

# 79 MR. GOLDBERG:

Your Honor, it's argumentative.

# 80 THE COURT:

Sustained.

# 81 MR. SCHECK:

You told us about your definition of covering up?

# 82 MR. FUNG:

Yes.

# 83 MR. SCHECK:

As far as you're concerned, would a failure to learn who it was that moved the glove and the envelope constitute a cover-up?

# 84 MR. GOLDBERG:

Argumentative, your Honor.

# 85 THE COURT:

Sustained.

# 86 MR. SCHECK:

Mr. Goldberg read you a section from the book by Dr. De forest, Dr. Gaensslen and Dr. Lee, forensic science-an introduction to Criminalistics. Do you recall that?

# 87 MR. FUNG:

Yes.

# 88 MR. SCHECK:

That was at the end of your testimony on redirect?

# 89 MR. FUNG:

Yes.

# 90 MR. SCHECK:

All right. And direct your attention to page 415 on to 416. And you recall he read--

# 91 MR. GOLDBERG:

May I have a moment?

# 92 THE COURT:

Certainly.

# 93 (Brief pause.)

# 94 MR. GOLDBERG:

From 415 to 416?

# 95 MR. SCHECK:

Yeah.

# 96 MR. SCHECK:

Do you recall he read you a passage concerning that it is probable no crime scene has ever been processed in such a way that hindsight would not allow someone else to criticize the work at a later date?

# 97 MR. FUNG:

Yes.

# 98 MR. SCHECK:

He read that sentence to you. Let me read you the next few sentences and tell me if you agree with them. "However, investigators must learn from their mistakes and must strive for continuous improvement. No attempt should be made to cover up these mistakes or offer excuses for them. Responsibility for mistakes should be faced squarely." Do you agree with that?

# 99 MR. FUNG:

Yes.

# 100 MR. SCHECK:

Have you done that in this case?

# 101 MR. FUNG:

No.

# 102 MR. GOLDBERG:

Well, it's vague as to done what; cover up or not cover up?

# 103 THE COURT:

Sustained.

# 104 MR. GOLDBERG:

Motion to strike.

# 105 THE COURT:

Answer is stricken. It's vague. Do you want to reask the question?

# 106 MR. SCHECK:

Sure.

# 107 MR. SCHECK:

Have you made an attempt to cover up mistakes or offer excuses for them?

# 108 MR. FUNG:

No.

# 109 MR. SCHECK:

Have you met your responsibility to face mistakes squarely?

# 110 MR. FUNG:

I believe I have.

# 111 MR. SCHECK:

And as far as you're concerned, if you had any knowledge whatsoever as to who moved the glove and the envelope, you would have no hesitation to come forward and tell us?

# 112 MR. FUNG:

I would not--if I had knowledge of it, I would have no hesitation, no.

# 113 MR. SCHECK:

Now, let us turn, sir, to the videotapes that we saw in redirect examination of you and Miss Mazzola leaving--entering and leaving the Rockingham location on the afternoon of June 13th. Now, prior to testifying at all at this trial, had you seen a video of yourself and Miss Mazzola when you leave Rockingham and put the valise and the paper bags into the rear of the crime scene truck?

# 114 MR. FUNG:

Prior to--

# 115 MR. SCHECK:

Prior to beginning your testimony at this trial, did you see that segment?

# 116 MR. FUNG:

I've seen it, yes.

# 117 MR. SCHECK:

All right. And when you testified initially, you said that you carried the blood sample out in either a paper bag, a posse box or by itself in your hand, but you thought that last possibility was unlikely?

# 118 MR. FUNG:

Yes.

# 119 MR. SCHECK:

And part of that testimony I take it was based on reconstructing from the first videotape that you saw before you testified?

# 120 MR. FUNG:

When I gave that testimony there?

# 121 MR. SCHECK:

Yeah.

# 122 MR. FUNG:

I didn't take that into consideration. I was just naming possible modes of transporting that envelope from my memory.

# 123 MR. SCHECK:

Now, on April 14th, that's before we saw the KABC videotape, you were asked some questions on this issue by Mr. Goldberg on redirect examination. Do you recall that?

# 124 MR. FUNG:

Yes.

# 125 MR. SCHECK:

All right. And I'm at 22898, line 14.

# 126 MR. GOLDBERG:

If I may have a minute, your Honor.

# 127 (Brief pause.)

# 128 MR. GOLDBERG:

What lines?

# 129 MR. SCHECK:

Let me look at your transcript.

# 130 (Brief pause.)

# 131 MR. SCHECK:

"Question: And at that point in time, did you have an independent recollection, meaning from your own memory of what happened on the 13th, as to exactly what receptacle if any you put the blood vial envelope in? "Answer: No, I did not. "Question: Mr.--" Now, these are by Mr. Goldberg. "Question: Mr. Fung, where did you come up with these different possibilities? "Answer: Those were packaged--packaging items that are in the crime scene--available in the crime scene kit and I name those types of packaging or packages. "Question: Okay. But did you have any memory at that time of putting it in a brown paper bag as opposed to the posse box, as opposed to just handling it without putting it in anything? "Answer: No."

# 132 MR. FUNG:

That's correct.

# 133 MR. SCHECK:

Now, when you're answering those questions, you were saying you were not sure of the container or receptacle; is that right?

# 134 MR. FUNG:

Yeah.

# 135 MR. GOLDBERG:

It's from independent recollection. Misstates the testimony.

# 136 THE COURT:

Overruled.

# 137 MR. SCHECK:

But you never doubted the fact that you were the one that carried it out?

# 138 MR. FUNG:

No.

# 139 MR. SCHECK:

Then--

# 140 MR. GOLDBERG:

Well, it's vague as to whether he did that or did not.

# 141 THE COURT:

Overruled.

# 142 MR. SCHECK:

Now, you recall--withdrawn. Before you testified in front of the jury on cross-examination with respect to videotapes of you and Miss Mazzola coming in and out of Rockingham, we showed you some tapes outside the presence of the jury?

# 143 MR. FUNG:

Yes.

# 144 MR. SCHECK:

All right. And I showed you a tape--two tapes, two segments of Detective Vannatter getting out of his car carrying a folder with something on the outside of that folder?

# 145 MR. FUNG:

Yes.

# 146 MR. SCHECK:

And when I showed you these tapes, at some point, I called your attention to the fact that between the trip where you went to the car and put the bags in the truck, right, and the so-called plastic bag trip, Detective Vannatter's car was in the second set of footage, but not the first?

# 147 MR. FUNG:

Yes.

# 148 MR. SCHECK:

And when you saw that, that's when you realized that the blood sample couldn't be in the paper bag, the posse box or that you could have carried it out yourself?

# 149 MR. GOLDBERG:

This was all asked and answered on cross.

# 150 THE COURT:

Overruled. You can answer the question.

# 151 MR. FUNG:

It wasn't at that point that I realized it.

# 152 MR. SCHECK:

Well, it was when you were watching these videotapes that you realized it?

# 153 MR. FUNG:

No. It was sometime in the morning when I woke up that that had occurred to me.

KEY QUOTE

# 154 MR. SCHECK:

Well, the afternoon before you woke up, you had seen some videotapes of yourself and Miss Mazzola leaving?

# 155 MR. FUNG:

Yes.

# 156 MR. SCHECK:

All right. So your memory in this morning when it came to you was jogged by your viewing of the videotape?

# 157 MR. GOLDBERG:

Well, it's vague as to whether it was memory or reconstruction.

# 158 THE COURT:

Overruled.

# 159 MR. FUNG:

Well, I started thinking about it more and more and more and things started coming back.

# 160 MR. SCHECK:

Uh-huh. Well, on redirect examination, did you not testify that you still have no independent recollection of placing the blood sample envelope in a trash bag?

# 161 MR. FUNG:

I--that's correct, and I still don't.

# 162 MR. SCHECK:

All right. And you testified on redirect examination yesterday that it's possible other things that you collected that afternoon could have accounted for the heft inside that plastic bag?

# 163 MR. GOLDBERG:

That misstates the testimony.

# 164 THE COURT:

Overruled.

# 165 MR. FUNG:

I don't know if I stated that or not.

# 166 MR. SCHECK:

I'm at page 22971 to 22972 starting at line 19.

# 167 MR. GOLDBERG:

If I may just have a moment.

# 168 (Brief pause.)

# 169 MR. GOLDBERG:

I would ask that he read all the way from page 22971--

# 170 MR. SCHECK:

I'm going to read to line 4 of 22972.

# 171 MR. GOLDBERG:

No. I would ask he read all the way down to line 24 to put everything in context on page 22972. May we approach?

KEY QUOTE

# 172 MR. SCHECK:

Your Honor, just--

# 173 THE COURT:

With the Court reporter.

Temperature

tense

Key Quotes (5)

Dennis Fung

I have not conducted an investigation, no.

Fung admits that despite knowing the glove and envelope were moved at the crime scene, neither he nor anyone to his knowledge has ever investigated who moved them — devastating for the integrity of the evidence chain.

Dennis Fung

No.

Fung's answer when asked whether anyone to his knowledge had investigated who moved the glove and envelope — confirming a complete institutional failure to follow up on a known evidence disturbance.

Dennis Fung

I may have.

Fung hedges when Scheck asks if he previously testified that he directed Mazzola to put a question mark on the crime scene checklist because Nicole Brown Simpson's body was on plastic — undercutting his credibility on a specific prior statement.

Barry Scheck

'No attempt should be made to cover up these mistakes or offer excuses for them. Responsibility for mistakes should be faced squarely.' Do you agree with that?

Scheck reads from Fung's own textbook — the one Goldberg used on redirect — and turns it against him, setting up a trap about whether Fung himself has lived up to this standard.

Dennis Fung

It was sometime in the morning when I woke up that that had occurred to me.

Fung claims his realization about the blood sample's location came to him overnight — not during the videotape viewing — undermining the credibility of his supposedly recovered 'memory' about the plastic bag.

Evidence (5)

1107 (page 2)

Crime scene checklist showing the box: 'Has the scene been altered? If so, by whom and how?' — displayed on the ELMO

discussed to establish Fung's duty to investigate scene alterations

Informal

Dr. De Forest, Dr. Gaensslen, and Dr. Lee forensic science textbook 'An Introduction to Criminalistics,' pages 415-416

Scheck reads passage on investigator responsibility to face mistakes — the same book Goldberg cited on redirect, now turned against Fung

Informal

KABC videotape and other footage of Fung and Mazzola entering and leaving Rockingham on June 13th

discussed to challenge Fung's account of when and how he realized the blood sample was in the plastic trash bag

Informal

Videotape segments of Detective Vannatter arriving at Rockingham with a folder

referenced to establish the timeline discrepancy showing the blood vial could not have been in the paper bag or posse box

Informal

The glove and envelope — known to have been moved from their original positions at the Bundy crime scene

discussed; Fung confirms they were in two different positions but no investigation was ever conducted

Notable Exchanges (3)

Barry Scheck•Dennis Fung

Scheck exposes Fung's contradictory testimony: on cross Fung said he should make inquiries of 'people' about scene alterations; on redirect he said interviewing witnesses was the detective's job. Fung retreats to a semantic distinction between 'people' and 'witnesses,' excluding detectives, SID print staff, photographers, and Coroner's reps from his definition — leaving no one he would consider a 'witness' inside the yellow tape.

methodical/cornering

Barry Scheck•Dennis Fung

Scheck reads the textbook passage Goldberg used on redirect, then reads the very next sentences requiring investigators to face mistakes squarely. When asked 'Have you done that in this case?' Fung answers 'No' — the answer is stricken as vague, but the moment lands visibly before the objection.

devastating

Barry Scheck•Dennis Fung

Fung claims his overnight epiphany about the blood sample in the plastic bag came to him while sleeping, not during the afternoon videotape viewing session. Scheck methodically walks through the timing to suggest the 'memory' was reconstructed from the tapes rather than genuinely recalled.

strategic/revealing

Light Moments (1)

Hank Goldberg / Barry Scheck

When Scheck couldn't remember the exhibit number for the crime scene checklist documents, Goldberg helpfully supplied it: '1107.' Scheck thanked him.

Credibility Attacks (3)

⚔ Dennis Fung

prior inconsistent statement

Scheck reads Fung's cross-examination testimony that he was responsible for making inquiries of 'people at the scene' about alterations, then contrasts it with his redirect testimony that interviewing witnesses was the detective's job — forcing Fung into a strained semantic distinction.

⚔ Dennis Fung

admission against interest

Fung admits no investigation has ever been conducted into who moved the glove and envelope at Bundy — a known evidence disturbance — despite this being squarely within his job responsibilities per the crime scene checklist.

⚔ Dennis Fung

impeachment by omission / reconstructed memory

Scheck establishes that Fung had no independent recollection of placing the blood sample in a plastic bag until after viewing the KABC and Vannatter videotapes, suggesting his 'memory' is reconstruction rather than genuine recall.

Witness Demeanor

(Brief pause.) — during transcript review moments

Fung hedges repeatedly ('I may have,' 'I really haven't given it that much thought,' 'I don't know if I stated that or not')

Objections

17 objections (4 sustained, 13 overruled)

Proceeding 5753 • 173 utterances • Defense witness

Criminal Trial

Department 103