Redirect examination of Dennis Fung (part 1)

📄 Redirect examination of Dennis Fung (part 1) — Tuesday, April 18, 1995

Address:

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

TRIAL

▲ Day 59 of 167

◀ Re-redirect examination of Dennis Fung (part 6) Sidebar: improper questioning ▶

Witness: Dennis Fung
Examiner: Barry Scheck
Called by: Defense • Date: Tuesday, April 18, 1995 • Utterances: 141

Barry Scheck continues cross-examination of LAPD criminalist Dennis Fung in the civil trial, pressing him on the chain of custody for original crime scene checklist documents, including a missing page 4 that was not produced to the defense despite a court order. Scheck also challenges Fung on blood spot #116 at the Bundy rear gate — visible in a July 3rd photo but absent from the June 13th photo — and is cut off before he can complete a question about the allegedly missing 1.9 mL of OJ Simpson's blood reference vial.

# 1 MR. FUNG:

As long as the information was transposed to some--to another form.

# 2 MR. SCHECK:

So you feel you have no obligation to save original documents?

# 3 MR. GOLDBERG:

Well, it's vague as to time.

# 4 THE COURT:

It's also irrelevant. It is the document.

# 5 MR. SCHECK:

In your crime lab, are there any rules that require you to save original crime scene checklists?

# 6 MR. GOLDBERG:

It's irrelevant, vague as to time.

# 7 MR. SCHECK:

Your Honor, he asked questions if you can just throw these out.

# 8 THE COURT:

Answer the question.

# 9 MR. FUNG:

Well, once--there are rules, yes.

# 10 MR. SCHECK:

The rules are that the originals are supposed to be kept in one place in the laboratory?

# 11 MR. FUNG:

The final version of the originals, yes.

# 12 MR. SCHECK:

Now, you were informed that there was a Court order to produce original documents in this case?

# 13 MR. FUNG:

Eventually, well, one was ordered, yes.

# 14 MR. SCHECK:

Well, do you recall--when did you first learn that there was a Court order to have original documents examined?

# 15 MR. FUNG:

It was somewhere around the preliminary hearing. That's what I recall.

# 16 MR. SCHECK:

Preliminary hearing? That was in July 1994.

# 17 MR. FUNG:

That's what I recall. I don't recall when it was.

# 18 MR. SCHECK:

Somebody asked you in July of 1994 to produce your original documents of the crime scene checklists?

# 19 MR. FUNG:

To the best of my recollection. I don't recall exactly when. But that--when--that's when I recall.

# 20 MR. SCHECK:

Who asked you to do that?

# 21 MR. FUNG:

I don't know.

# 22 MR. SCHECK:

Someone in the lab?

# 23 MR. FUNG:

I don't recall.

# 24 MR. SCHECK:

Well, did Michele Kestler or Greg Matheson review your originals in July?

# 25 MR. FUNG:

I don't recall when they reviewed my originals.

# 26 MR. SCHECK:

Your Honor, I have--

# 27 THE COURT:

Go ahead and finish.

# 28 MR. SCHECK:

--15 minutes.

# 29 THE COURT:

Go ahead and finish.

# 30 MR. SCHECK:

15 minutes?

# 31 THE COURT:

Be my guest.

# 32 MR. SCHECK:

Now--

# 33 THE COURT:

Madam reporter.

# 34 THE COURT REPORTER:

I'm okay.

# 35 MR. SCHECK:

Now, do you recall about two months ago that you were informed that the Defense had requested the originals of your crime scene checklists for purposes of having them examined by a document examiner?

# 36 MR. FUNG:

Yes.

# 37 MR. SCHECK:

And were you involved in producing the originals for that purpose?

# 38 MR. FUNG:

I was involved in some portion of it.

# 39 MR. SCHECK:

What portion?

# 40 MR. FUNG:

There was--there came a question as to there were some items missing from my original, from my set of original notes, and I was asked to look for them, and I did find one page at that time.

# 41 MR. SCHECK:

This was a page that was undated that recounted what you had given to Mr. Yamauchi on June 15th?

# 42 MR. FUNG:

Yes.

# 43 MR. SCHECK:

And what happened is is that someone came to you from either the lab or the Prosecutor's office and said, "This page isn't an original. Can you find the original"?

# 44 MR. FUNG:

Mr. Matheson called me and asked me to--if I had that page.

# 45 MR. SCHECK:

All right. And you went through the blue notebook in front of you?

# 46 MR. FUNG:

Yes.

# 47 MR. SCHECK:

And you found the original for that page?

# 48 MR. FUNG:

Yes.

# 49 MR. SCHECK:

Did anyone ask you to go through the other pages that had been produced for the Defense document examiner to be sure that you had in fact produced all the originals?

KEY QUOTE

# 50 MR. FUNG:

No.

# 51 MR. SCHECK:

No one made that suggestion to you?

# 52 MR. FUNG:

No.

# 53 MR. SCHECK:

Now, during the--before my cross-examination ended of you, you had a conversation with the Prosecutors about page 4 of that checklist?

# 54 MR. FUNG:

Before your--

# 55 MR. SCHECK:

Page 4, before my cross-examination.

# 56 MR. FUNG:

Before it ended?

# 57 MR. SCHECK:

Yes. Just at the time it ended.

# 58 MR. GOLDBERG:

Well, that's vague.

# 59 THE COURT:

Rephrase.

# 60 MR. SCHECK:

All right.

# 61 MR. SCHECK:

There came a point when I asked you some questions and documents were distributed to the jury.

# 62 MR. FUNG:

Yes.

# 63 MR. SCHECK:

And there was a break and you spoke with Prosecutors.

# 64 MR. FUNG:

Yes.

# 65 MR. SCHECK:

And you went through your book?

# 66 MR. FUNG:

I'm not sure if I went through the book at that time or at a subsequent break.

# 67 MR. SCHECK:

Well, before Mr. Goldberg got up and started asking you questions on redirect examination, had you gone through your book and identified a page that you believed was the original page 4?

# 68 MR. FUNG:

I do remember going through it prior to Mr. Goldman's redirect.

# 69 MR. SCHECK:

All right. And was there a conversation with Prosecutors about this item that you'd come up with, this page 4?

# 70 MR. FUNG:

Yes.

# 71 MR. SCHECK:

And was a decision made in your presence by the Prosecutors--

# 72 MR. GOLDBERG:

Your Honor, this is irrelevant and calls for hearsay.

# 73 THE COURT:

Sustained. Calls for a legal conclusion. Sustained.

# 74 MR. SCHECK:

Did you once you identified this page that you realized was the original page 4 say to anyone, "Oh, there's a mistake. We should have given this document to the Defense before"?

# 75 MR. GOLDBERG:

Your Honor, argumentative.

# 76 THE COURT:

Sustained.

# 77 MR. SCHECK:

Just a few questions about the blanket. Maybe one. In your judgment, sir, is the only way to have secondary transfer of hairs, fibers and cellular material from the blanket that was brought to the Bundy crime scene to wave it?

# 78 MR. GOLDBERG:

Hair, fibers and cellular material, compound.

# 79 THE COURT:

Overruled.

# 80 MR. FUNG:

Is that the only way?

# 81 MR. SCHECK:

Yeah.

# 82 MR. FUNG:

For it to transfer?

# 83 MR. SCHECK:

Yeah.

# 84 MR. FUNG:

The most likely way is for it to have transferred through direct contact.

# 85 MR. SCHECK:

Now--

# 86 MR. SCHECK:

I'm now at 23137, line 16.

# 87 MR. GOLDBERG:

May I just have a moment? I'm sorry.

# 88 THE COURT:

Certainly.

# 89 (Brief pause.)

# 90 MR. GOLDBERG:

Which page, which line?

# 91 MR. SCHECK:

Line 16.

# 92 MR. GOLDBERG:

23127?

# 93 MR. SCHECK:

No. 23137.

# 94 MR. GOLDBERG:

Through 17, through--

# 95 MR. SCHECK:

I just have it here and I'll just start reading.

# 96 MR. GOLDBERG:

May I just--maybe we--

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

# 98 MR. SCHECK:

May I proceed?

# 99 MR. SCHECK:

Asked this hypothetical question by Mr. Goldberg. "Question: All right. Now, if hypothetically there were saliva from the Defendant that had been dried on the white blanket, could that saliva somehow float down the entire crime scene and hit the rear gate and turn red? "Answer: No. "Question: All right. Would you expect that saliva or any biological material would contaminate the stains that you and Miss Mazzola had collected along the trail? "Answer: Given your hypothetical, no." You were asked those questions, gave those answers?

# 100 MR. GOLDBERG:

Not impeaching, so it's irrelevant.

# 101 MR. SCHECK:

It's foundational.

# 102 THE COURT:

Overruled.

# 103 MR. FUNG:

Yes.

# 104 MR. SCHECK:

Now, you were shown a photograph of the rear gate at Bundy?

# 105 MR. FUNG:

Yes.

# 106 MR. SCHECK:

That was taken on June 13th.

# 107 MR. SCHECK:

Do we have that here?

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

# 109 (Brief pause.)

# 110 MR. GOLDBERG:

Let me see if I can find the exhibit number for counsel.

# 111 MR. SCHECK:

While we are looking for it, let me just ask you some questions.

# 112 MR. SCHECK:

Do you remember seeing that photograph?

# 113 MR. FUNG:

Yes.

# 114 MR. SCHECK:

And there was a blood spot that you saw on July 3rd that was labeled 116?

# 115 MR. FUNG:

Yes.

# 116 MR. SCHECK:

And you did not see that on the photograph, the blown-up photograph that was taken on June 13th?

# 117 MR. GOLDBERG:

This is beyond the scope, your Honor.

# 118 THE COURT:

Overruled.

# 119 MR. FUNG:

I did not see it.

# 120 MR. SCHECK:

All right. And you cannot tell us from your own personal knowledge how 116 got there on July 3rd?

# 121 MR. FUNG:

Not from my personal knowledge, no.

# 122 MR. SCHECK:

But you're certain it was not planted there by anybody?

# 123 MR. GOLDBERG:

Your Honor, that calls for speculation. It's argumentative.

# 124 THE COURT:

Sustained.

# 125 MR. SCHECK:

Are you aware, sir, that 1.9 milliliters or one quarter of the blood collected from Mr. Simpson's blood--

KEY QUOTE

# 126 MR. GOLDBERG:

Your Honor--

# 127 THE COURT:

Sustained. Sustained. Sustained. Assumes facts not in evidence, counsel.

# 128 MR. GOLDBERG:

Your Honor--

# 129 THE COURT:

Not an appropriate question. The jury is to disregard the implication of that question. Proceed.

# 130 MR. GOLDBERG:

Your Honor--

# 131 MR. SCHECK:

Mr. Fung, you've been listening to the testimony at this trial?

# 132 MR. FUNG:

Certain portions of it, yes.

# 133 MR. SCHECK:

You heard the opening statements?

# 134 THE COURT:

We're not cross-examining on that, counsel.

# 135 MR. SCHECK:

Well, your Honor, may--this is the last line. If you want, I'll approach on it.

# 136 THE COURT:

It assumes facts that aren't in evidence, counsel.

# 137 MR. SCHECK:

I'm not talking about--I'm asking about his awareness of Defense positions.

# 138 THE COURT:

Not as phrased.

# 139 MR. SCHECK:

All right. Has it come to your attention that the Defense alleges--

# 140 MR. GOLDBERG:

Your Honor, may we approach on this?

# 141 THE COURT:

Yes, with the Court reporter.

Temperature

tense

Key Quotes (4)

Barry Scheck

Did anyone ask you to go through the other pages that had been produced for the Defense document examiner to be sure that you had in fact produced all the originals?

Fung's answer — 'No' — implies the prosecution did not conduct a systematic audit of what it had turned over, suggesting broader document handling problems.

Dennis Fung

I did not see it.

Fung admits he cannot see blood spot #116 in the June 13th Bundy rear gate photograph, yet it appeared when he collected it on July 3rd — a central piece of the defense's planted evidence theory.

Barry Scheck

Are you aware, sir, that 1.9 milliliters or one quarter of the blood collected from Mr. Simpson's blood--

Scheck attempts to introduce the defense's 'missing blood' argument — that blood from Simpson's reference vial was unaccounted for and could have been used to plant evidence — before being cut off by three rapid 'Sustained' rulings.

Dennis Fung

And you cannot tell us from your own personal knowledge how 116 got there on July 3rd?

Fung concedes he has no personal knowledge of how a blood spot materialized at the rear gate between June 13 and July 3, leaving the question open for the defense's planting narrative.

Evidence (6)

Informal

Original crime scene checklists, including page 4 identifying items transferred to Collin Yamauchi on June 15th

challenged — defense argues originals were not properly preserved or produced despite court order

Informal

Blue notebook containing Fung's original field notes

discussed — Fung found one missing page inside it after Matheson prompted him

Informal

Photograph of Bundy rear gate taken June 13, 1994

discussed — no blood spot #116 visible in this photo

116

Blood spot collected from Bundy rear gate on July 3, 1994

challenged — Scheck highlights it was not present in the June 13 photo

Informal

OJ Simpson blood reference vial (1.9 mL allegedly unaccounted for)

attempted introduction — question cut off before completion

Informal

Blanket brought to Bundy crime scene

discussed — Scheck questions whether it could have caused secondary transfer of hairs, fibers, and cellular material

Notable Exchanges (4)

Barry Scheck•Dennis Fung

Scheck establishes that after Fung was prompted by Matheson to find one missing original, no one instructed him to audit the rest of the documents produced to the defense — leaving open the possibility of further undisclosed originals.

revealing

Barry Scheck•Lance A. Ito

Scheck attempts to ask Fung about 1.9 mL of missing blood from the reference vial; Ito interrupts with three rapid 'Sustained' rulings before the question is complete and instructs the jury to disregard the implication.

heated

Barry Scheck•Dennis Fung

Scheck gets Fung to admit he cannot personally explain how blood spot #116 appeared at the rear gate between June 13 and July 3, and that he is certain it was not planted — prompting a 'speculation/argumentative' objection that is sustained.

strategic

Barry Scheck•Hank Goldberg•Lance A. Ito

Scheck reads back Fung's prior testimony about the contamination hypothetical (saliva from a blanket could not explain stains along the trail) to establish foundation; Goldberg objects it's not impeachment; overruled.

procedural

Light Moments (2)

Lance A. Ito

Judge Ito tells Scheck he has 15 minutes remaining; Scheck repeats '15 minutes?' in apparent disbelief; Ito replies 'Be my guest.'

Dennis Fung

Fung accidentally refers to Hank Goldberg as 'Mr. Goldman' during testimony — Goldman being the murder victim.

Credibility Attacks (3)

⚔ Dennis Fung

prior inconsistent statement / omission

Scheck establishes that Fung failed to produce page 4 of his original checklist to the defense despite a court order, and that no systematic review was conducted to ensure all originals were turned over.

⚔ Dennis Fung

unexplained evidence gap

Scheck gets Fung to concede that blood spot #116 at the Bundy rear gate is not visible in the June 13th photograph but was collected on July 3rd, and that Fung has no personal knowledge of how it came to be there.

⚔ LAPD crime lab / prosecution

document destruction / failure to preserve

Scheck highlights that original crime scene checklists were not saved in compliance with lab rules, despite a court order requiring their production — suggesting systemic document handling failures.

Witness Demeanor

(Brief pause.)

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

Objections

11 objections (6 sustained, 4 overruled)

Proceeding 5758 • 141 utterances • Defense witness

Criminal Trial

Department 103