Sidebar: improper questioning

📄 Sidebar: improper questioning — Tuesday, April 18, 1995

Address:

C:\DEPT103\CRIMINAL\1995\APR\18\SIDEBAR-IMPROPER-QUESTIONING.DOC

TRIAL

▲ Day 59 of 167

◀ Redirect examination of Dennis Fung (part 1) Redirect examination of Dennis Fung (part 2) ▶

Date: Tuesday, April 18, 1995 • Utterances: 7

During the examination of Dennis Fung, Goldberg objected that Scheck was improperly placing Defense conspiracy allegations before the jury through the witness. Scheck argued he was legitimately trying to establish Fung's pre-testimony awareness that blood vial tampering was a live issue, following redirect where Fung denied any such investigation within SID. Judge Ito sustained his own objection under Evidence Code 352 as speculative and an undue consumption of time.

# 1 (The following proceedings were held at the bench:)

# 2 THE COURT:

All right. We are at the sidebar.

# 3 MR. GOLDBERG:

Your Honor, this is totally improper, and to put what their contentions are before this jury through this witness--and the Court will recall when I asked him the most mild form, what his understanding of our positions were, I was immediately cut off. The objection was sustained. I was not permitted, even when I said it went to the issue of state of mind. This is improper. Counsel should not be allowed to do this. I would ask the jury be admonished.

KEY QUOTE

# 4 MR. SCHECK:

Your Honor--

# 5 MR. GOLDBERG:

And I would ask that sanctions be given against him if the Court is inclined to give sanctions. The Court knows that I'm not particularly fond of that technique generally speaking.

# 6 MR. SCHECK:

Your Honor, on redirect examination, Mr. Fung was asked a number of times about whether or not there was a conspiracy to plant blood, to take blood, that he was involved with anybody. He was also asked with respect to his handling of the blood sample, whether or not he had ever--how much preparation had gone into his testimony about this. He said very little. He said there was no awareness, no investigation of this within SID. There was nobody at SID who had been looking into the circumstances of tampering with this evidence, and I just want to establish his awareness that before he even came in here to testify, this was an issue, as to tampering with Mr. Simpson's blood vial. If you want, I'll rephrase the question just to that issue of awareness.

# 7 THE COURT:

All right. This is all totally speculative and undue consumption of time. Under 352, I'm sustaining the Court's own objection.

KEY QUOTE

Temperature

tense

Key Quotes (3)

Hank Goldberg

This is totally improper, and to put what their contentions are before this jury through this witness--and the Court will recall when I asked him the most mild form, what his understanding of our positions were, I was immediately cut off.

Goldberg highlights the asymmetry: he was blocked from a similar line of questioning, yet Scheck is being permitted to go further with conspiracy-framing questions.

Barry Scheck

He said very little. He said there was no awareness, no investigation of this within SID. There was nobody at SID who had been looking into the circumstances of tampering with this evidence.

Scheck is targeting Fung's claimed ignorance — arguing that Fung's denial of any awareness is itself undermined by the public nature of the tampering allegations before trial.

Lance A. Ito

This is all totally speculative and undue consumption of time. Under 352, I'm sustaining the Court's own objection.

Ito shuts it down sua sponte under 352, signaling he views the entire line as a fishing expedition rather than legitimate cross-examination.

Evidence (1)

Informal

Simpson's blood vial — alleged tampering and chain-of-custody issues

discussed

Notable Exchanges (2)

Hank Goldberg•Barry Scheck

Goldberg argues Scheck is doing precisely what Goldberg himself was blocked from doing — eliciting party contentions through the witness — and demands jury admonishment and sanctions. Scheck reframes it as establishing witness awareness of a pre-existing public issue.

heated

Barry Scheck•Lance A. Ito

Scheck offers to rephrase to narrow the question to Fung's awareness only; Ito declines and sustains his own objection without letting Scheck finish.

strategic

Credibility Attacks (1)

⚔ Dennis Fung

prior inconsistent statement / implausible ignorance

Scheck sought to undercut Fung's claim of no awareness of tampering allegations by establishing that the blood vial issue was publicly known before he testified — suggesting his denial of any investigation within SID was implausible.

Objections

1 objections (1 sustained, 0 overruled)

Proceeding 5759 • 7 utterances

Criminal Trial

Department 103