Barry Scheck opens his cross-examination of LAPD criminalist Dennis Fung by methodically establishing the foundational principles of proper crime scene investigation — care, accuracy, non-contamination, chain of custody — that Fung himself agrees to. Fung is evasive and qualified throughout, often refusing to agree to seemingly obvious principles, which Scheck will later use to show those very principles were violated. The session ends at an afternoon recess after only laying this groundwork.
# 1 MR. SCHECK: GOOD AFTERNOON, LADIES AND GENTLEMEN OF THE JURY. THE JURY: GOOD AFTERNOON.
# 4 Q: GOOD AFTERNOON, MR. FUNG. HOW ARE YOU, SIR?
# 6 Q: MR. FUNG, I THOUGHT WE WOULD START WITH DISCUSSING THE ROLE OF THE CRIMINALIST. WOULD YOU AGREE THAT IT IS THE ROLE OF THE CRIMINALIST TO PRESERVE THE INTEGRITY OF EVIDENCE?
# 7 A: THAT IS ONE OF THE ROLES, YES.
# 8 Q: AND THAT WOULD MEAN THAT IT IS YOUR JOB TO MAKE SURE THAT EVIDENCE IS NOT CONTAMINATED?
# 9 A: IN SOME RESPECTS, YES.
# 10 Q: IT IS NOT COMPROMISED OR ALTERED?
# 11 MR. GOLDBERG: I OBJECT TO THE WORD "COMPRISED" AS VAGUE.
# 13 Q: BY MR. SCHECK: IT IS NOT ALTERED BY THE PEOPLE GATHERING IT?
# 14 MR. GOLDBERG: WELL, I OBJECT TO THAT BECAUSE AGAIN IT IS VAGUE.
# 15 THE COURT: OVERRULED.
# 16 DENNIS FUNG: IN ALL CASES?
# 17 Q: BY MR. SCHECK: YES. WHEN YOU GET TO A CRIME SCENE, YOU SEE EVIDENCE, YOU DON'T WANT IT TO BE COMPROMISED IN THE GATHERING IN TERMS OF THE WAY YOU ORIGINALLY FOUND IT. YOU WANT IT TO BE IN THE SAME CONDITION AS MUCH AS YOU POSSIBLY CAN AS YOU ORIGINALLY FOUND IT?
# 18 MR. GOLDBERG: COMPOUND.
# 19 THE COURT: OVERRULED. YOU CAN ANSWER THE QUESTION.
# 20 DENNIS FUNG: NOT IN ALL CASES. THERE MAY BE SOME CASES WHERE IT MIGHT BE RAINING OUT AND YOU WOULD WANT TO MOVE THE EVIDENCE TO PRESERVE IT.
# 21 Q: BY MR. SCHECK: RIGHT. TO PRESERVE IT IN THE ORIGINAL CONDITION THAT YOU FOUND IT, RIGHT?
# 22 (NO AUDIBLE RESPONSE.) # 23 MR. GOLDBERG: WELL, IT IS VAGUE.
# 24 THE COURT: SUSTAINED.
# 25 Q: BY MR. SCHECK: WELL, YOU SAID THAT SOMETIMES IT MIGHT BE RAINING OUT SO YOU WANT TO PROTECT THE EVIDENCE SO THAT YOU CAN GATHER IT IN AS CLOSE AS POSSIBLE TO ORIGINAL CONDITION? ISN'T THAT WHAT YOU JUST SAID?
# 26 A: NOT EXACTLY. YOU WOULD WANT TO PRESERVE IT TO MAINTAIN ITS INTEGRITY AND SO THAT IT WOULD RETAIN ITS VALUE TO AN ANALYSIS.
# 27 Q: OKAY. AND IT IS YOUR JOB TO MAKE SURE AS MUCH AS POSSIBLE THAT EVIDENCE IS NOT CORRUPTED?
# 28 MR. GOLDBERG: WELL, I OBJECT TO THE WORD "CORRUPTED."
# 29 THE COURT: SUSTAINED.
# 30 Q: BY MR. SCHECK: WELL, THAT EVIDENCE IS NOT TAMPERED WITH?
# 32 Q: AND WOULD YOU AGREE THAT IT IS THE ROLE OF THE CRIMINALIST TO BE CAREFUL?
# 34 MR. GOLDBERG: WELL, I OBJECT TO THAT. IT IS OVERBROAD.
# 35 THE COURT: OVERRULED.
# 36 Q: BY MR. SCHECK: AND THAT YOU SHOULD NOT BE IN A HURRY WHEN EXAMINING EVIDENCE AT A CRIME SCENE?
# 38 Q: AND YOU WOULD AGREE THAT RECOGNITION OF NEW CLUES BEYOND WHAT THE DETECTIVES SHOW YOU IS IMPORTANT?
# 40 Q: AND YOU WOULD AGREE THAT SOMETIMES EXTREMELY IMPORTANT EVIDENCE IS NOT OBVIOUS AS SOON AS YOU ARRIVE AT THE CRIME SCENE?
# 42 Q: CRIMINALISTS WANT TO GO THROUGH A PROCESS OF CAREFUL RECONSTRUCTION UPON ARRIVAL AT THE SCENE?
# 43 MR. GOLDBERG: I OBJECT TO THE PHRASE "RECONSTRUCTION" AS VAGUE.
# 44 THE COURT: SUSTAINED.
# 45 Q: BY MR. SCHECK: HAVE YOU HEARD THE TERM "CRIME SCENE RECONSTRUCTION"?
# 47 Q: AND THAT HAS A FORMAL MEANING, DOES IT NOT?
# 49 Q: AND WHAT DO YOU KNOW IT TO MEAN?
# 50 A: A RECONSTRUCTION IS USING THE PHYSICAL EVIDENCE AT THE CRIME SCENE TO COME UP WITH A SCENARIO AS TO WHAT HAPPENED AT THAT CRIME SCENE.
# 51 Q: AND SO WHEN YOU GET TO A CRIME SCENE, AS MUCH AS POSSIBLE, A CRIMINALIST WOULD WANT TO LOOK AT ALL THE EVIDENCE AND BEGIN THE PROCESS OF RECONSTRUCTION IN AN EFFORT TO FIND RELEVANT CLUES?
# 52 MR. GOLDBERG: WELL, I OBJECT THAT IT IS COMPOUND.
# 53 THE COURT: OVERRULED. DO YOU UNDERSTAND THE QUESTION?
# 55 THE COURT: ALL RIGHT. YOU MAY ANSWER.
# 56 DENNIS FUNG: NOT IN ALL CASES.
# 57 (DISCUSSION HELD OFF THE RECORD BETWEEN DEFENSE COUNSEL.) # 58 Q: BY MR. SCHECK: WOULD YOU AGREE THAT IT IS A PRINCIPLE OF CRIME SCENE CONTAMINATION TO FIRST PROTECT THE SCENE?
# 59 A: CRIME SCENE CONTAMINATION?
# 61 Q: BY MR. SCHECK: EXCUSE ME, CRIME SCENE INVESTIGATION, TO FIRST PROTECT THE SCENE?
# 63 Q: ALL RIGHT. YOU DON'T WANT TO TRAMPLE OR OBLITERATE EVIDENCE?
# 64 A: IF IT CAN BE AVOIDED.
# 65 Q: YOU COULDN'T WANT TO CONTAMINATE THE SCENE?
# 67 Q: YOU WOULD WANT TO CONDUCT A QUICK SEARCH FOR PERISHABLE EVIDENCE?
# 69 Q: AND THEN YOU WOULD WANT TO RETREAT AND APPROACH THE SCENE SLOWLY AND METHODICALLY?
# 71 Q: AND YOU RECOGNIZE I AM READING FROM --
# 72 MR. GOLDBERG: WAIT A MINUTE, YOUR HONOR. I OBJECT TO THAT.
# 73 THE COURT: SUSTAINED.
# 74 Q: BY MR. SCHECK: FAIR ENOUGH?
# 76 Q: WOULD YOU AGREE THAT IT IS IMPORTANT FOR A CRIMINALIST NOT TO MAKE ASSUMPTIONS IN APPROACHING A SCENE?
# 78 MR. GOLDBERG: WELL --
# 79 Q: BY MR. SCHECK: IT IS IMPORTANT NOT TO TAKE SHORTCUTS?
# 80 MR. GOLDBERG: OBJECTION, VAGUE AS TO THE WORD "SHORTCUTS."
# 81 THE COURT: SUSTAINED. REPHRASE THE QUESTION.
# 82 Q: BY MR. SCHECK: IT WOULD BE IMPORTANT NOT TO RUSH TO JUDGMENT?
# 83 MR. GOLDBERG: OBJECT. THAT IS ARGUMENTATIVE.
# 84 THE COURT: SUSTAINED.
# 85 Q: BY MR. SCHECK: WOULD YOU AGREE THAT IT IS IMPORTANT FOR A CRIMINALIST TO BE ACCURATE?
# 87 Q: ACCURATE AND COMPLETE IN MAKING NOTES?
# 88 A: IN MAKING RELEVANT NOTES, YES.
# 89 Q: ACCURATE ABOUT THE NUMBER OF ITEMS THAT YOU COLLECT?
# 91 Q: ABOUT THE NATURE OF THE ITEMS YOU COLLECT?
# 92 A: WHAT DO YOU MEAN BY "NATURE"?
# 93 Q: DESCRIPTION OF THE NATURE OF THE ITEMS YOU COLLECT?
# 95 Q: WHO COLLECTED THEM?
# 98 A: NOT IN ALL CASES, NO.
# 99 Q: WELL, YOU WERE REFERRING BEFORE TO YOUR CRIME SCENE CHECKLIST, CORRECT?
# 101 Q: AND IN YOUR CRIME SCENE CHECKLIST THERE ARE BOXES, ARE THERE NOT?
# 103 Q: AND AS YOU GO ACROSS THE PAGE IN THE CRIME SCENE CHECKLIST, THE BOXES REFER TO ITEMS COLLECTED AND THEN NEXT TO THAT IS "BY," CORRECT?
# 105 Q: AND THAT IS A BOX WHERE YOU ARE SUPPOSED TO FILL OUT WHO COLLECTED THE ITEM?
# 106 A: THE CRIME SCENE --
# 109 MR. GOLDBERG: WAIT A MINUTE. I WOULD ASK HIM TO A ALLOW --
# 110 THE COURT: HE JUST SAID NO. HE HAS FINISHED HIS ANSWER. PROCEED.
# 111 Q: BY MR. SCHECK: AS A CRIMINALIST DO YOU WANT TO BE ACCURATE ABOUT WHERE THE ITEM IS COLLECTED?
# 113 Q: AND YOU WANT TO BE ACCURATE ABOUT HOW THE ITEM IS COLLECTED?
# 114 (NO AUDIBLE RESPONSE.) # 115 Q: WHAT METHOD IS USED?
# 117 Q: IN THE NOTES OR IN TERMS OF YOUR OWN RECOLLECTIONS? YOU WANT TO BE ACCURATE AS TO HOW ITEMS ARE COLLECTED?
# 118 A: AS LONG AS THEY ARE COLLECTED IN THE STANDARD PROCEDURE, I DON'T SEE THE NEED FOR TAKING NOTES.
KEY QUOTE # 119 Q: WELL, AREN'T THERE DIFFERENT WAYS TO COLLECT VARIOUS ITEMS OF EVIDENCE?
# 121 Q: ALL RIGHT. AND DON'T YOU THINK IT IS IMPORTANT TO MAKE NOTES ABOUT EXACTLY WHICH ONE WAS USED ON WHAT OCCASION?
# 122 A: IF IT WAS RELEVANT.
# 123 Q: ALL RIGHT. AND ISN'T IT IMPORTANT, AS YOU ARE PROCESSING A CRIME SCENE, TO KEEP ACCURATE NOTES ABOUT THE ORDER OF COLLECTION?
# 124 A: I DON'T SEE WHERE THE ORDER OF COLLECTION WOULD NECESSARILY HAVE TO BE DOCUMENTED, AS LONG AS YOU HAD A TIME FRAME FROM WHICH YOU COULD SAY WHEN THEY WERE.
# 125 Q: WELL, ON YOUR CRIME SCENE CHECKLIST, RIGHT NEXT TO THE BOX THAT INDICATES "BY" THERE IS ANOTHER BOX THAT INDICATES "TIME"; IS THERE NOT?
# 127 Q: AND THE PURPOSE OF THE BOX THAT INDICATES "TIME" IS TO HAVE THE CRIMINALIST WRITE DOWN WHEN AN ITEM WAS COLLECTED?
# 128 A: IN CERTAIN CIRCUMSTANCES, YES.
# 129 Q: AND WHEN YOU HAVE A LOT OF DIFFERENT ITEMS, IN ORDER TO MINIMIZE CONFUSION, ISN'T IT A GOOD IDEA TO WRITE DOWN THE TIME OF COLLECTION?
# 130 A: NOT NECESSARILY.
# 131 Q: AND IN YOUR JUDGMENT, WHEN YOU HAVE A LOT OF DIFFERENT ITEMS OF EVIDENCE THAT YOU ARE PROCESSING, IT IS NOT A GOOD IDEA TO MEMORIALIZE THE ORDER OF COLLECTION?
# 132 A: NOT UNLESS IT WAS GOING TO BE RELEVANT AT SOME LATER TIME.
KEY QUOTE # 133 Q: NOW, WOULD YOU AGREE THAT IT IS IMPORTANT FOR A CRIMINALIST TO CREATE AN ACCURATE CHAIN OF CUSTODY?
# 135 MR. GOLDBERG: WELL, THAT IS --
# 136 Q: BY MR. SCHECK: AND COULD YOU TELL US, PLEASE, WHAT YOU MEAN BY A "CHAIN OF CUSTODY"? WHAT IS YOUR UNDERSTANDING OF IT?
# 137 A: THE CHAIN OF CUSTODY IS A RECORD OF WHEN EVIDENCE LEAVES ONE PERSON'S CUSTODY AND IS GIVEN TO ANOTHER PERSON'S CUSTODY.
KEY QUOTE # 138 Q: ALL RIGHT. AND THE REASON THAT IT IS IMPORTANT TO KEEP ACCURATE RECORDS ABOUT THE CHAIN OF CUSTODY IS -- ONE OF THE REASONS IS TO PREVENT SAMPLES FROM GETTING MIXED UP?
# 139 A: WELL, THAT IS NOT MY UNDERSTANDING OF WHY CHAIN OF CUSTODY IS NECESSARY.
# 140 Q: YOU DON'T THINK THAT AN ACCURATE SET OF RECORDS ABOUT WHERE AN ITEM WENT, WHO RECEIVED IT NEXT, IS OF ASSISTANCE IN PREVENTING MIX-UPS?
# 141 A: THAT MAY BE A SECONDARY --
# 142 Q: THAT IS A REASON?
# 143 A: THAT IS ONE OF THE REASONS.
# 144 Q: OKAY. ANOTHER REASON TO HAVE AN ACCURATE CHAIN OF CUSTODY IS TO GUARD AGAINST CROSS-CONTAMINATION OF SAMPLES?
# 145 A: THAT IS NOT MY UNDERSTANDING OF CHAIN OF CUSTODY.
KEY QUOTE # 146 Q: YOU DON'T THINK CHAIN OF CUSTODY HAS ANYTHING TO DO WITH CROSS-CONTAMINATION OF SAMPLES?
# 147 A: THAT IS NOT MY UNDERSTANDING OF CHAIN OF CUSTODY.
KEY QUOTE # 148 MR. SCHECK: ALL RIGHT.
# 149 THE COURT: IS THIS A GOOD POINT?
# 150 MR. SCHECK: ONE MORE QUESTION.
# 151 THE COURT: ONE MORE.
# 152 Q: BY MR. SCHECK: AND WOULD YOU AGREE THAT ONE OF THE IMPORTANT REASONS TO HAVE AN ACCURATE CHAIN OF CUSTODY IS TO PREVENT ANYONE FROM TAMPERING WITH EVIDENCE?
# 153 A: THAT IS -- THAT IS A REASON, YES.
# 154 MR. SCHECK: THANK YOU.
# 155 THE COURT: ALL RIGHT. LADIES AND GENTLEMEN, WE ARE GOING TO TAKE OUR AFTERNOON BREAK. THIS WILL BE A 15-RECESS. REMEMBER MY ADMONITIONS TO YOU. DON'T DISCUSS THE CASE AMONG YOURSELVES, FORM ANY OPINIONS ABOUT THE CASE, DON'T ALLOW ANYBODY TO COMMUNICATE WITH YOU, DO NOT CONDUCT ANY DELIBERATIONS. SEE YOU BACK IN FIFTEEN MINUTES. MR. FUNG, FIFTEEN MINUTES.