Cross-examination of Dennis Fung (part 2)

📄 Cross-examination of Dennis Fung (part 2) — Tuesday, April 4, 1995

Address:

C:\DEPT103\CRIMINAL\1995\APR\4\CROSS-EXAMINATION-OF-DENNIS-FU.DOC

TRIAL

▲ Day 51 of 167

◀ Opening remarks and jury removal Sidebar: marking evidence ▶

Witness: Dennis Fung
Examiner: Barry Scheck
Called by: Prosecution • Date: Tuesday, April 4, 1995 • Utterances: 40

Barry Scheck cross-examines LAPD criminalist Dennis Fung about his evidence collection documentation practices, specifically when he records the time of collection on field checklists. Scheck then pivots to challenge Fung's awareness of the department's own procedures manual — an 11-volume document called the 'Crime Scene Field Unit Protocol and Procedures Manual' — which Fung claims he has never seen and was never given a copy of.

# 1 (THE FOLLOWING PROCEEDINGS WERE HELD IN OPEN COURT, IN THE PRESENCE OF THE JURY:)

# 2 THE COURT:

THANK YOU, LADIES AND GENTLEMEN. BE SEATED. ALL RIGHT. LET THE RECORD REFLECT WE'VE BEEN REJOINED BY ALL THE MEMBERS OF OUR JURY PANEL. MR. FUNG IS PRESENTLY ON THE WITNESS STAND UNDERGOING CROSS-EXAMINATION BY MR. SCHECK. GOOD AFTERNOON AGAIN, MR. FUNG. YOU ARE REMINDED YOU ARE STILL UNDER OATH, SIR. AND, MR. SCHECK, YOU MAY CONTINUE WITH YOUR CROSS-EXAMINATION.

# 3 Q:

BY MR. SCHECK: MR. FUNG, YOU MENTIONED JUST BEFORE WE BROKE THAT WHEN YOU'RE FILLING OUT YOUR ITEM DESCRIPTION FORM, YOU ONLY WILL FILL IN THE TIME OF COLLECTION WHEN YOU THINK IT'S RELEVANT. IS THAT WHAT YOU SAID?

# 4 A:

YES.

# 5 Q:

NOW, IS THERE ANYTHING IN PARTICULAR THAT WOULD MAKE YOU REALIZE AT THE MOMENT THAT YOU'RE COLLECTING THE ITEM THAT LATER ON DOWN THE LINE, THE TIME OF THE COLLECTION WAS GOING TO BE RELEVANT?

# 6 A:

IT IS MY GENERAL PRACTICE, MY PERSONAL GENERAL PRACTICE TO WRITE DOWN THE TIME WHEN IT IS OUTSIDE THE TIME FRAME OF MY ACTUAL COLLECTION. IF I, FOR INSTANCE, WENT TO A CRIME SCENE AT 8:00 O'CLOCK AND LEFT AT 12:00, IF THERE WAS ADDITIONAL EVIDENCE WHICH SOMEHOW WAS GIVEN TO ME BY A DETECTIVE OR SOMETHING LIKE THAT, I WOULD THEN WRITE DOWN THE TIME FRAME.

KEY QUOTE

# 7 Q:

WELL, WHY DON'T WE LOOK AT ONE OF THESE FORMS.

# 8 MR. SCHECK:

YOUR HONOR, I WOULD LIKE TO MARK THE ORIGINAL. WELL, LET ME ESTABLISH THIS.

# 9 Q:

BY MR. SCHECK: THE NOTES THAT YOU MAKE, THE ORIGINAL NOTES THAT YOU MAKE ON YOUR FIELD CHECKLISTS, WHAT HAPPENS TO THEM?

# 10 A:

IN THIS CASE OR IN GENERAL?

# 11 Q:

IN GENERAL.

# 12 A:

IN GENERAL, THEY'RE FILED AWAY IN A FILE CABINET THAT STORES THESE DOCUMENTS.

# 13 Q:

UH-HUH. THERE'S A RULE AT THE SCIENTIFIC INVESTIGATION DIVISION THAT WHEN YOU MAKE OUT ORIGINAL NOTES, THE ORIGINAL NOTES ARE TO BE STORED IN A PARTICULAR PLACE AND PRESERVED?

# 14 A:

I DON'T KNOW IF IT'S A RULE, BUT THAT'S WHAT HAPPENS.

# 15 Q:

WELL, IN THE FIELD PROCEDURES MANUAL, YOU'RE NOT FAMILIAR WITH ANY REGULATION THAT SAYS THAT ALL ORIGINAL NOTES ARE TO BE PRESERVED AT THE LABORATORIES SO OTHERS CAN LOOK AT THEM AND GET ACCESS?

# 16 MR. GOLDBERG:

I OBJECT BECAUSE IT ASSUMES A FACT NOT IN EVIDENCE.

# 17 THE COURT:

SUSTAINED. FOUNDATION. FOUNDATION.

# 18 Q:

BY MR. SCHECK: ARE YOU FAMILIAR WITH A FIELD PROCEDURES MANUAL?

# 19 A:

I AM -- I KNOW THAT ONE HAS BEEN WRITTEN. I -- BUT IT HAS NOT BEEN PUT IN EFFECT.

KEY QUOTE

# 20 Q:

WELL, ISN'T THERE A FIELD PROCEDURES MANUAL THAT IS IN THE TRUCK THAT YOU GO TO CRIME SCENES WITH?

# 21 A:

I'M NOT AWARE OF A PROCEDURES MANUAL IN THE TRUCK, NO.

# 22 (DISCUSSION HELD OFF THE RECORD BETWEEN DEFENSE COUNSEL.)

# 23 Q:

BY MR. SCHECK: ARE YOU SAYING, SIR, THAT -- ARE YOU AWARE OF THE EXISTENCE OF A DOCUMENT OF 11 VOLUMES ENTITLED "THE CRIME SCENE FIELD UNIT PROTOCOL AND PROCEDURES MANUAL"?

# 24 A:

I HAVE NOT BEEN GIVEN THAT COPY, NO.

KEY QUOTE

# 25 Q:

YOU'VE NEVER SEEN SUCH A DOCUMENT?

# 26 A:

NO.

# 27 Q:

AND YOU HAVE NO KNOWLEDGE AS TO WHETHER OR NOT SUCH A DOCUMENT, SUCH A MANUAL IS ACTUALLY REQUIRED TO BE KEPT IN YOUR CRIMINALISTIC TRUCK FOR REFERENCE?

# 28 A:

THAT'S CORRECT.

# 29 Q:

WELL, MOVING BACK TO YOUR EVIDENCE COLLECTION SHEETS, THERE IS AN ORIGINAL SET OF DOCUMENTS; IS THAT CORRECT?

# 30 A:

YES.

# 31 Q:

ALL RIGHT. AND YOU HAVE SEEN -- YOU'VE REVIEWED THE ORIGINAL SET OF DOCUMENTS IN THIS CASE; HAVE YOU NOT?

# 32 A:

YES, I HAVE.

# 33 Q:

ALL RIGHT. NOW, THERE'S AN ORIGINAL PAGE THAT REFERS TO THE ITEMS THAT YOU COLLECTED AT BUNDY?

# 34 A:

COULD YOU --

# 35 MR. SCHECK:

YOUR HONOR, I WOULD LIKE THIS TO BE MARKED DEFENSE NEXT IN ORDER. 1069.

# 36 THE COURT:

1069.

# 37 MR. GOLDBERG:

YOUR HONOR, MAY WE APPROACH ABOUT THAT?

# 38 THE COURT:

ABOUT MARKING AN EXHIBIT?

# 39 MR. GOLDBERG:

WELL, THE ORIGINAL.

# 40 THE COURT:

ALL RIGHT. WITH THE COURT REPORTER.

Temperature

tense

Key Quotes (3)

Dennis Fung

I AM -- I KNOW THAT ONE HAS BEEN WRITTEN. I -- BUT IT HAS NOT BEEN PUT IN EFFECT.

Fung acknowledges a field procedures manual exists but claims it was never implemented — undermining the prosecution's ability to argue LAPD followed standardized protocols.

Dennis Fung

I HAVE NOT BEEN GIVEN THAT COPY, NO.

Fung denies ever receiving the 11-volume department procedures manual, a damaging admission about his familiarity with his own division's standards.

Dennis Fung

IT IS MY GENERAL PRACTICE, MY PERSONAL GENERAL PRACTICE TO WRITE DOWN THE TIME WHEN IT IS OUTSIDE THE TIME FRAME OF MY ACTUAL COLLECTION.

Fung describes a subjective, ad hoc approach to documentation — setting up Scheck's argument that record-keeping was inconsistent and unreliable.

Evidence (2)

Defense 1069

Original evidence collection sheet (field checklist) from items collected at Bundy

marked for identification, approach requested by prosecution before proceeding

Informal

11-volume 'Crime Scene Field Unit Protocol and Procedures Manual'

discussed; Fung denies having seen or received a copy

Notable Exchanges (2)

Barry Scheck•Dennis Fung

Scheck methodically establishes that Fung has never seen the 11-volume department procedures manual, despite it ostensibly governing his work. Fung's denials grow more complete with each question.

strategic

Hank Goldberg•Lance A. Ito

Goldberg objects to a question about preservation rules as assuming facts not in evidence; Ito sustains on foundation grounds. Goldberg then requests to approach the bench about the original document being marked as an exhibit.

procedural

Credibility Attacks (2)

⚔ Dennis Fung

establishing ignorance of governing standards

Scheck reveals Fung has never seen or received the 11-volume LAPD procedures manual that should govern his crime scene work, undermining his credibility as a competent, protocol-following criminalist.

⚔ Dennis Fung

exposing subjective documentation practices

Scheck elicits that Fung uses his own 'personal general practice' to decide when to record collection times, rather than any standardized rule — suggesting inconsistent and unreviewable record-keeping.

Objections

1 objections (1 sustained, 0 overruled)

Proceeding 5580 • 40 utterances • Prosecution witness

Criminal Trial

Department 103