Re-redirect examination of Dennis Fung (part 7)

📄 Re-redirect examination of Dennis Fung (part 7) — Tuesday, April 18, 1995

Address:

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

TRIAL

▲ Day 59 of 167

◀ Sidebar: evidence foundation Cross-examination of Dennis Fung (part 2) ▶

Witness: Dennis Fung
Examiner: Barry Scheck
Called by: Defense • Date: Tuesday, April 18, 1995 • Utterances: 137

Barry Scheck conducted a brief recross of Dennis Fung focused on two things: whether prosecutors coached Fung's testimony during extensive pre-trial preparation sessions, and whether Goldberg specifically prompted Fung to walk back his certainty about the sock collection timeline on redirect. Fung admitted he discussed the sock timing with prosecutors before testifying on redirect, but denied that he changed his testimony to please them.

# 1 (The following proceedings were held in open Court:)

# 2 THE COURT:

Thank you, counsel. Proceed.

FURTHER RECROSS-EXAMINATION BY MR. SCHECK

# 3 MR. SCHECK:

Just a few questions, sir. Mr. Fung, it is easier to testify on direct examination than cross-examination?

# 4 MR. FUNG:

Yes, it is.

# 5 MR. SCHECK:

And you have been a witness a number of times in different cases?

# 6 MR. FUNG:

Yes.

# 7 MR. SCHECK:

And it is always more difficult to testify on cross-examination than direct examination?

# 8 MR. FUNG:

Yes.

# 9 MR. SCHECK:

And would you not agree, sir, that some of the difficulties you had answering the questions on cross-examination during this trial had to do with the facts?

# 10 MR. GOLDBERG:

Well, it is vague as to the facts.

# 11 THE COURT:

Sustained.

# 12 MR. SCHECK:

Had to do with reports that you wrote?

# 13 MR. FUNG:

In what regard?

# 14 MR. SCHECK:

Contradictions in the testimony--between your testimony and reports you wrote?

# 15 MR. FUNG:

I was prepared for the type of questions that Mr. Goldberg would ask and the questions that you would ask--you asked were surprise questions to me, so of course they would be more difficult for me to answer.

KEY QUOTE

# 16 MR. SCHECK:

Yes. And when you viewed some of the videotape, umm, that surprised you, too?

# 17 MR. FUNG:

I was--yes, some of it did.

# 18 MR. SCHECK:

And when you were testifying about a number of events for which you didn't have an independent recollection, but you were going along with suggestions of testimony on direct, that was a problem, too?

# 19 MR. GOLDBERG:

That is overbroad.

# 20 THE COURT:

Sustained, sustained.

# 21 MR. SCHECK:

Did you ever have a problem when you were testifying because you were testifying to facts that you really didn't have an independent recollection about?

# 22 MR. GOLDBERG:

Still overbroad, your Honor.

# 23 THE COURT:

Overruled.

# 24 MR. FUNG:

I tried the best I could to be truthful in my answers and honest.

# 25 MR. SCHECK:

Now, Mr. Goldberg asked you about pressure from the District Attorney's office?

# 26 MR. FUNG:

Yes.

# 27 MR. SCHECK:

And your position is you never felt any pressure from them to testify in a certain way?

# 28 MR. FUNG:

They never gave me any pressure to change my answers.

# 29 MR. SCHECK:

Well, did they make strong suggestions to you about what your answers should be?

# 30 MR. FUNG:

No.

# 31 MR. GOLDBERG:

Vague as to "Strong suggestion."

# 32 THE COURT:

Overruled.

# 33 MR. SCHECK:

Did you--have you ever spent ten sessions, some of them as long as five hours, reviewing your testimony before you testified?

# 34 MR. FUNG:

Never.

# 35 MR. SCHECK:

And could it be, sir, that in those sessions, as you reviewed all these facts and tried to--and tried to get your testimony in a way that would please the Prosecutors--

# 36 MR. GOLDBERG:

That is argumentative, your Honor.

# 37 THE COURT:

I haven't heard the full question, but it sounds like it is going to be calling for speculation.

# 38 MR. SCHECK:

All right. In these ten sessions you made your best efforts to work out testimony that the Prosecutors would find satisfactory?

# 39 MR. FUNG:

Much of the testimony was my educating Mr. Goldberg as to our procedures and different type of circumstances that we undergo.

# 40 MR. SCHECK:

Well, in the course of your preparation, were other people from the crime lab involved?

# 41 MR. FUNG:

At certain portions, yes.

# 42 MR. SCHECK:

Michele Kestler?

# 43 MR. FUNG:

She was never present when I--when I was speaking with Mr. Goldberg.

# 44 MR. SCHECK:

To your knowledge did she have input with respect to your testimony, as far as you knew?

# 45 MR. GOLDBERG:

Well, that calls for speculation.

# 46 THE COURT:

Sustained.

# 47 MR. SCHECK:

Did she ever discuss your testimony with you before you came here?

# 48 MR. GOLDBERG:

Also, we went into this. It is beyond the scope.

# 49 THE COURT:

Overruled.

# 50 MR. FUNG:

She gave me pep talks and things like that, but we never discussed specifics.

KEY QUOTE

# 51 MR. SCHECK:

What about Detective Lange?

# 52 MR. FUNG:

I did have discussions with him.

# 53 MR. SCHECK:

All right. Detective Vannatter?

# 54 MR. FUNG:

Yes.

# 55 MR. SCHECK:

Now, I noticed that Mr. Goldberg didn't ask you whether or not you felt any pressure from the detectives.

# 56 MR. GOLDBERG:

Argumentative, your Honor. I said "Everyone."

# 57 THE COURT:

Sustained.

# 58 MR. SCHECK:

Well--

# 59 THE COURT:

Rephrase the question.

# 60 MR. SCHECK:

Did you feel any pressure from the detectives to testify in a certain way?

# 61 MR. FUNG:

No pressure, no.

# 62 MR. SCHECK:

Was there anything about my accent that made it hard for you to answer my questions?

# 63 MR. FUNG:

Not your accent, no.

# 64 MR. SCHECK:

Okay. Was there anything about the substance of the questions that you were being asked that made it difficult, sir?

# 65 MR. GOLDBERG:

That is a little vague.

# 66 THE COURT:

Vague. Sustained.

# 67 MR. SCHECK:

Umm, now, you said that--on this re-redirect that it didn't make the slightest bit of difference as to whether or not you collected the socks between 4:30 and 4:40?

# 68 MR. FUNG:

Not--not in my mind.

# 69 MR. SCHECK:

Well, then why, pray tell, did you change your testimony from direct and cross about when you could have collected the socks?

# 70 MR. GOLDBERG:

Argumentative.

# 71 THE COURT:

Sustained. Rephrase the question.

# 72 MR. SCHECK:

All right.

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

# 74 MR. SCHECK:

Why, sir, did you change your testimony from what you had stated on direct and cross-examination about the time frame when could you have collected the socks?

# 75 MR. GOLDBERG:

Argumentative, your Honor.

# 76 THE COURT:

Overruled.

# 77 MR. FUNG:

I believe that in one set of--or one question at--one of the questions was, was I sure I had collected the evidence from one point or another and I wasn't a hundred percent sure which item I had collected prior to the other.

# 78 MR. SCHECK:

Well, on direct and cross you indicated that you were sure?

# 79 MR. GOLDBERG:

No, that misstates the testimony.

# 80 THE COURT:

Sustained. Rephrase the question.

# 81 MR. SCHECK:

Well, you answered questions about the order of collection and when you collected on direct and cross?

# 82 MR. FUNG:

Yes.

# 83 MR. SCHECK:

And on redirect Mr. Goldberg asked you a number of times, or twice, I should say, if you were really sure that the collection of socks happened within that period?

# 84 MR. GOLDBERG:

Your Honor, this has been asked and answered.

# 85 THE COURT:

Overruled.

# 86 MR. FUNG:

He was referring to specific times within that time frame.

# 87 MR. SCHECK:

Well, did you, before you came here for redirect examination, say to Mr. Goldberg, "I've been thinking about it, and I may be wrong about how--the time the socks were collected. Could you please raise that again on redirect"? Is that what happened?

# 88 MR. FUNG:

No.

# 89 MR. SCHECK:

It was his idea?

# 90 (No audible response.)

# 91 MR. GOLDBERG:

Well, it is vague as to idea to do what.

# 92 THE COURT:

Sustained.

# 93 MR. SCHECK:

It was his request of you to think about the time of collection again?

# 94 MR. GOLDBERG:

It is vague as to whether he means in Court or out of Court.

# 95 THE COURT:

Sustained.

# 96 MR. SCHECK:

Before you came and testified on redirect, did you have discussions with Mr. Goldberg or other Prosecutors about whether you were really sure concerning the time you collected the socks?

# 97 MR. GOLDBERG:

It is just vague to whether he means--he has to bracket it. He doesn't have the first time frame.

# 98 THE COURT:

Overruled. You can answer the question.

# 99 MR. FUNG:

We have discussed the time frame of the socks, but as to the second time he asked me in recross about the socks, I don't recall discussing it prior to him asking recross socks questions.

# 100 MR. SCHECK:

No. Mr. Fung, redirect. Remember that?

# 101 MR. FUNG:

Redirect?

# 102 MR. GOLDBERG:

Your Honor, that is argumentative.

# 103 THE COURT:

Sustained. Come on.

# 104 MR. SCHECK:

Mr. Fung, direct your attention to the redirect examination.

# 105 MR. FUNG:

Yes.

# 106 MR. SCHECK:

On redirect examination you now said that you weren't really sure?

# 107 MR. FUNG:

Yes.

# 108 MR. SCHECK:

And the suggestion--withdrawn. The issue of whether you were really sure was raised by the Prosecutors.

# 109 MR. GOLDBERG:

Well, it is vague as to in Court or out of Court.

# 110 THE COURT:

Overruled. We are talking about re-redirect.

# 111 MR. SCHECK:

Yes.

# 112 MR. FUNG:

Yes.

# 113 MR. SCHECK:

And that was prior to those questions being asked of you?

# 114 MR. GOLDBERG:

Well, now it is vague.

# 115 THE COURT:

That's true.

# 116 MR. SCHECK:

All right.

# 117 MR. SCHECK:

That was prior to the time that you testified on re-redirect?

# 118 MR. FUNG:

Yes.

# 119 MR. SCHECK:

Okay. And after they asked you if you were really sure, you told them, before you got on the stand, "Well, I'm not that sure"?

# 120 MR. FUNG:

I wasn't that sure, no.

# 121 MR. GOLDBERG:

Wait a minute. He is not answering the question. Motion to strike the witness' answer.

# 122 THE COURT:

Overruled.

# 123 MR. SCHECK:

And you became unsure because you thought that's what they wanted to hear?

KEY QUOTE

# 124 MR. FUNG:

No, I--I became unsure because he was asking for a specific time within that time frame and I just wasn't sure.

KEY QUOTE

# 125 MR. SCHECK:

Mr. Fung, on direct examination you were asked about the time frame between 4:30 and 4:40 you collected the socks, right?

# 126 MR. FUNG:

Yes.

# 127 MR. SCHECK:

His question on re-redirect was could you have collected the socks some time different than between 4:30 and 4:40, right?

# 128 MR. FUNG:

On re-redirect?

# 129 MR. SCHECK:

Yes.

# 130 MR. FUNG:

Yes, he asked that.

# 131 MR. SCHECK:

And that is what you began testifying--that is what you testified you were no longer sure about?

# 132 MR. FUNG:

Yes.

# 133 MR. SCHECK:

And you now began testifying--and you began testifying on re-redirect that you were no longer so sure of the order?

# 134 MR. FUNG:

Redirect that I was no longer--yes.

# 135 MR. SCHECK:

And that is because the Prosecutors wanted you to be unsure about the time and about the order?

# 136 MR. FUNG:

That is not true.

# 137 MR. SCHECK:

No further questions.

Temperature

tense

Key Quotes (4)

Dennis Fung

I was prepared for the type of questions that Mr. Goldberg would ask and the questions that you would ask--you asked were surprise questions to me, so of course they would be more difficult for me to answer.

Fung inadvertently confirms Scheck's cross was more effective than expected, admitting he was only prepared for Goldberg's friendly questions.

Dennis Fung

She gave me pep talks and things like that, but we never discussed specifics.

Fung confirms crime lab director Michele Kestler was involved in pre-testimony contact, though he draws a distinction between pep talks and substantive coaching.

Dennis Fung

I became unsure because he was asking for a specific time within that time frame and I just wasn't sure.

Fung's explanation for why he softened his testimony about sock collection timing on redirect — Scheck's line of questioning suggests this shift was prosecutorial coaching.

Barry Scheck

And you became unsure because you thought that's what they wanted to hear?

Scheck's closing accusation — that Fung's testimony was shaped to prosecutorial preference — is denied but left hanging as the final impression.

Evidence (2)

Informal

Socks collected from the Rockingham bedroom, specifically the disputed time window of 4:30-4:40

Discussed — Scheck challenged whether Fung's redirect softening of his timeline certainty was prosecutor-prompted

Informal

Videotape of crime scene collection (referenced obliquely)

Discussed — Fung acknowledged some of it surprised him

Notable Exchanges (3)

Barry Scheck•Dennis Fung

Scheck walked Fung through the chain of events around the sock timeline change: Fung admitted prosecutors raised the sock timing issue before redirect, that he told them he wasn't sure, and that the questioning on redirect was the prosecutors' idea. He denied it was because they wanted him to be unsure.

strategic

Barry Scheck•Dennis Fung

Scheck established that Fung held ten prep sessions with prosecutors, some as long as five hours. Fung characterized these as him 'educating Mr. Goldberg' on procedures, deflecting the coaching implication.

revealing

Barry Scheck•Dennis Fung

Scheck asked whether Fung's difficulty on cross was due to 'contradictions between your testimony and reports you wrote.' Fung dodged, attributing difficulty to Scheck's 'surprise questions.'

strategic

Light Moments (1)

Barry Scheck

Scheck deadpanned 'Was there anything about my accent that made it hard for you to answer my questions?' — a self-aware jab about his New York delivery that drew attention to the real reason Fung struggled.

Credibility Attacks (2)

⚔ Dennis Fung

prior inconsistent statement + coaching suggestion

Scheck established that Fung changed his testimony about sock collection certainty after pre-redirect discussions with prosecutors, implying the change was coached rather than a genuine recollection.

⚔ Dennis Fung

bias / influence

Scheck highlighted ten prep sessions with prosecutors (some five hours long), involvement of crime lab director Kestler, and discussions with Detectives Lange and Vannatter — painting a picture of a heavily prepared, potentially influenced witness.

Witness Demeanor

(No audible response.) — when asked if the sock redirect questioning was Goldberg's idea

Objections

20 objections (12 sustained, 8 overruled)

Proceeding 5764 • 137 utterances • Defense witness

Criminal Trial

Department 103