Re-redirect examination of Dennis Fung (part 5)

📄 Re-redirect examination of Dennis Fung (part 5) — Tuesday, April 18, 1995

Address:

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

TRIAL

▲ Day 59 of 167

◀ Sidebar: examination scope Sidebar: blood vial ▶

Witness: Dennis Fung
Examiner: Barry Scheck
Called by: Defense • Date: Tuesday, April 18, 1995 • Utterances: 112

Barry Scheck continues his recross of LAPD criminalist Dennis Fung, introducing three defense exhibits (photographs of crime scene kit contents and a test tube) to probe the blood vial Fung received from Detective Vannatter. Scheck attempts repeatedly to get Fung to characterize how full the blood vial was on June 13th and 14th — clearly feeding the defense's missing-blood-was-planted theory — but is shut down by a string of sustained objections from Goldberg on scope grounds. The examination ends with Scheck requesting a sidebar.

# 1 THE COURT:

Thank you, counsel. Proceed.

# 2 MR. SCHECK:

"Question: Mr. Fung, you have an independent recollection as you sit here today of placing the item that you received from Detective Vannatter, the envelope, into a plastic bag? "Answer: Not an independent recollection, no. "Question: Okay. And when you looked at the scene of Andrea Mazzola taking the plastic bag out of the location, was there anything that you collected between 5:00 o'clock and when you left with Andrea Mazzola that could have accounted for the heft in that bag other than the envelope? "Answer: Possibly. But it is most likely that the envelope is in that bag."

# 3 MR. FUNG:

Yes.

# 4 MR. SCHECK:

Okay. Now--

# 5 (Brief pause.)

# 6 MR. SCHECK:

Ask some photographs, your Honor, be marked Defendant's next in order.

# 7 MS. CLARK:

We've never seen it, your Honor.

# 8 THE COURT:

Mr. Goldberg?

# 9 MR. GOLDBERG:

Let me take a closer look.

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

# 11 MR. SCHECK:

Your Honor, actually I have--

# 12 THE COURT:

Be 1110.

# 13 MR. SCHECK:

Your Honor, we have two photographs that I've shown the Prosecution that I would like to mark Defendant's next in order. We have them--

# 14 THE COURT:

1110 and 1111.

# 15 (Deft's 1110 and 1111 for id = photographs)

# 16 MR. SCHECK:

We have them in bar code so I can show them the picture and then Mr. Harris can swipe the bar code and put it up on the screen.

# 17 THE COURT:

All right.

# 18 MR. SCHECK:

Now, Mr. Fung, is--recognize that photo to be a shot of the valise, the kind of valise you use when you go to a crime scene?

# 19 MR. GOLDBERG:

I'm sorry. What was this marked as, your Honor? I missed that.

# 20 THE COURT:

10--excuse me. 1110.

# 21 MR. FUNG:

That is one type that is used.

# 22 MR. SCHECK:

Is that the type that you carried on that day?

# 23 MR. FUNG:

I really don't recall.

# 24 MR. SCHECK:

Well, how many of these valises are there at SID? About four, right?

# 25 MR. FUNG:

There's this type and then there's other types that don't have this specific configuration.

# 26 MR. SCHECK:

Uh-huh. But in terms of--putting aside the configuration, in terms of the types of things that are in it, do you recognize on the left-hand side those cards that you put down next to items for purposes of photographing?

# 27 MR. FUNG:

There's several different make-ups of crime scene kits. These--as long as all the items are--those types of items are in there, it's--it's okay. But there's--there's no one specific place for any one--

# 28 MR. SCHECK:

I'm not talking about the place where everything is. I'm talking about the items within the kit.

# 29 MR. FUNG:

This is typical of what would be included in a kit.

# 30 MR. SCHECK:

Right. And so one of the things that you carry within the kit are these card markers?

# 31 MR. FUNG:

That is an item, yes.

# 32 MR. SCHECK:

All right. And you, when you went back into Rockingham, were picking up the card markers on your way back in?

# 33 MR. FUNG:

I was picking up some cards with letters on them. I don't know if they were from a kit or not.

# 34 MR. SCHECK:

Well--

# 35 MR. FUNG:

We make them--we make letters and numbers as we go along sometimes.

# 36 MR. SCHECK:

And other items that you use at the crime scene are various envelopes such as depicted in this photograph?

# 37 MR. FUNG:

Yes.

# 38 MR. SCHECK:

Of various sizes?

# 39 MR. FUNG:

Yes.

# 40 MR. SCHECK:

And--

# 41 (Brief pause.)

# 42 MR. SCHECK:

This is 1111.

# 43 MR. SCHECK:

Now, this depicts some of the water bottles and packages that you used to--which contained swabs, correct?

# 44 MR. FUNG:

This is typical of that type of thing, yes.

# 45 MR. SCHECK:

Well, call your attention to those packages with the swabs. That's the kind you use at the lab?

# 46 MR. FUNG:

Yes.

# 47 MR. SCHECK:

Now--okay. Now, when you went back into the house, do you recall if you put the cards in an envelope of some kind?

# 48 MR. GOLDBERG:

Well, it's vague as to which time.

# 49 MR. SCHECK:

When you went back in the second time and you were picking up the cards, do you recall if you put anything like that in an envelope?

# 50 MR. FUNG:

I don't know what I did with those cards. I may have thrown them away.

# 51 MR. SCHECK:

Did you retrieve any packages of materials that you might have left from your work at the crime scene?

# 52 MR. FUNG:

I don't recall if I did or not.

# 53 MR. SCHECK:

Well, you recall--withdrawn. You've testified that after you got the envelope from Detective Vannatter, you asked somebody to get you a trash bag?

# 54 MR. FUNG:

I asked somebody to get me a bag so that I wouldn't have to carry the envelope out in plain view of the media.

KEY QUOTE

# 55 MR. SCHECK:

Oh. And you were given a trash bag?

# 56 MR. FUNG:

And I was given a trash bag, yes.

# 57 MR. SCHECK:

And the picture we saw in the KABC tape shows you in the foyer with a trash bag in your hand and something that appears to be in the shape of an envelope.

KEY QUOTE

# 58 MR. GOLDBERG:

Well, that misstates the testimony. It's argumentative.

# 59 THE COURT:

Overruled.

# 60 MR. FUNG:

Yes.

# 61 MR. SCHECK:

Now, after you got the envelope containing Mr. Simpson's blood sample from Detective Vannatter, you said you opened up the envelope and looked at--inspected the vial?

# 62 MR. FUNG:

Yes.

# 63 MR. SCHECK:

All right. Your Honor, I ask that this be marked Defendant's next in order.

# 64 THE COURT:

You want to show that to Mr. Goldberg?

# 65 (Brief pause.)

# 66 THE COURT:

All right. That will be 1112. Mrs. Robertson, 1112? 1112.

# 67 (Deft's 1112 for id = test tube)

# 68 MR. SCHECK:

May I approach the witness, your Honor?

# 69 THE COURT:

You may.

# 70 MR. SCHECK:

Now, Mr. Fung, does this appear to be a test tube of the same size and configuration as the one you inspected on the afternoon of June 13th?

# 71 MR. FUNG:

To the best of my recollection, yes.

# 72 MR. SCHECK:

And on the morning of June 14th, you also handled the blood vial?

# 73 MR. FUNG:

I handled the envelope, but I don't know if I handled the blood vial itself.

# 74 MR. SCHECK:

This is testimony at the preliminary hearing at page 78.

# 75 (Brief pause.)

# 76 THE COURT:

Do you have the page, Mr. Goldberg?

# 77 MR. GOLDBERG:

What lines through what lines?

# 78 MR. SCHECK:

Page 78 at line 26.

# 79 MR. GOLDBERG:

This isn't inconsistent.

# 80 MR. SCHECK:

Refreshing the witness' recollection.

# 81 THE COURT:

It's not how to do it then.

# 82 MR. SCHECK:

All right. Let me--may I approach?

# 83 THE COURT:

You may.

# 84 MR. SCHECK:

Let me show you this document for a minute, Mr. Fung, direct your attention starting here to the next page.

# 85 (Brief pause.)

# 86 MR. SCHECK:

Okay. Now, having read that, is your recollection refreshed that you handed the blood sample to Mr. Yamauchi on the morning of the 14th?

# 87 MR. FUNG:

The vial and the envelope were given to Mr. Yamauchi.

# 88 MR. SCHECK:

And do you recall--and was the vial pretty much full?

# 89 MR. GOLDBERG:

That's beyond the scope of the direct. It's not--redirect. It's not impeaching.

# 90 THE COURT:

Sustained.

# 91 MR. SCHECK:

Well, Mr. Yamauchi, could you mark for us--

# 92 THE COURT:

Fung. Mr. Fung.

# 93 MR. SCHECK:

On--

# 94 MR. SCHECK:

What number is this, your Honor?

# 95 THE COURT:

Mr. Fung.

# 96 MR. SCHECK:

The--my apologies.

# 97 MR. SCHECK:

Mr. Fung, could you mark for us on this test tube which is Defendant's--

# 98 THE COURT:

1112.

# 99 MR. SCHECK:

--1112 where the blood was up to in this test tube when you inspected it on June 13th?

# 100 MR. FUNG:

I couldn't do that.

# 101 MR. GOLDBERG:

Well, your Honor, I make a motion to strike. This is beyond the scope of redirect.

# 102 THE COURT:

Sustained.

# 103 MR. SCHECK:

Well, you examined the test tube that you got from Detective Vannatter.

# 104 MR. FUNG:

On the 13th.

# 105 MR. SCHECK:

On the 13th. Did it appear to you to be pretty much full?

# 106 MR. GOLDBERG:

Beyond the scope.

# 107 THE COURT:

Sustained.

# 108 MR. SCHECK:

When you saw the blood vial on the morning of June 14th, was it pretty much full?

# 109 MR. GOLDBERG:

Assumes a fact not in evidence and beyond the scope.

# 110 THE COURT:

Sustained.

# 111 MR. SCHECK:

Your Honor, may we approach sidebar?

# 112 THE COURT:

With the Court reporter.

Temperature

tense

Key Quotes (4)

Dennis Fung

Not an independent recollection, no.

Fung admits he has no independent memory of placing Vannatter's envelope into a plastic bag — his account is reconstructed rather than recalled.

Dennis Fung

I asked somebody to get me a bag so that I wouldn't have to carry the envelope out in plain view of the media.

Fung explains the trash bag seen in the KABC footage — but the explanation itself raises chain-of-custody questions about how the blood sample was transported.

Dennis Fung

I couldn't do that.

Fung refuses (or is unable) to mark on the test tube how full the blood vial was when he inspected it — a key non-answer for the defense's missing blood argument.

Barry Scheck

The picture we saw in the KABC tape shows you in the foyer with a trash bag in your hand and something that appears to be in the shape of an envelope.

Scheck ties the video evidence directly to Fung's handling of the Vannatter blood envelope, keeping the chain-of-custody vulnerability visible to the jury.

Evidence (5)

Defendant's 1110

Photograph of the type of valise/crime scene kit used by SID criminalists

introduced, discussed with Fung to establish contents of crime scene kit

Defendant's 1111

Photograph of water bottles and swab packages used at crime scenes

introduced, confirmed as typical by Fung

Defendant's 1112

A physical test tube of the same size and configuration as the blood vial Fung received from Vannatter

introduced; Fung confirmed it matched the vial; Scheck attempted to have Fung mark blood level on it — sustained as beyond scope

Informal

KABC news footage showing Fung in foyer holding trash bag with envelope-shaped object

referenced to confront Fung about how he transported Vannatter's blood envelope

Informal

Fung's preliminary hearing transcript, page 78 line 26

used to refresh recollection that Fung handed blood vial to Yamauchi on morning of June 14th

Notable Exchanges (3)

Barry Scheck•Dennis Fung•Hank Goldberg

Scheck asks three consecutive questions about whether the blood vial was 'pretty much full' — on June 13th, then June 14th — each met with a sustained objection on scope/assumes facts. The jury hears the question without getting the answer, which may be precisely the point.

strategic

Barry Scheck•Lance A. Ito

Scheck accidentally calls Fung 'Mr. Yamauchi' mid-question; Ito corrects him twice. Scheck apologizes.

awkward

Barry Scheck•Hank Goldberg•Lance A. Ito

Scheck attempts to use the preliminary hearing transcript to refresh Fung's recollection rather than impeach him; Ito corrects the procedure, saying 'It's not how to do it then.'

procedural

Light Moments (1)

Barry Scheck

Scheck accidentally calls Fung 'Mr. Yamauchi' while mid-question; Ito has to correct him twice before Scheck catches it and apologizes.

Credibility Attacks (3)

⚔ Dennis Fung

prior inconsistent statement / refreshing recollection

Scheck uses Fung's preliminary hearing testimony (page 78) to establish that Fung personally handled and transferred the blood vial to Yamauchi on June 14th, after Fung initially hedged about whether he touched the vial itself.

⚔ Dennis Fung

video evidence confrontation

Scheck references KABC footage of Fung carrying a trash bag containing what appears to be an envelope, pressing Fung on the improvised, media-avoidance explanation for how he transported OJ Simpson's blood sample.

⚔ Dennis Fung

demonstrated memory gaps

Fung admits he has no independent recollection of placing the envelope in a plastic bag, doesn't recall what he did with the numbered cards, and cannot characterize how full the blood vial was — building a pattern of convenient amnesia around the blood evidence.

Witness Demeanor

(Brief pause.) — multiple instances throughout, suggesting careful consideration before answers

Fung is consistent and controlled, giving narrow answers ('I don't recall,' 'I couldn't do that') rather than volunteering information

Objections

5 objections (4 sustained, 1 overruled)

Proceeding 5755 • 112 utterances • Defense witness

Criminal Trial

Department 103