Sidebar: witness notes and measurements

📄 Sidebar: witness notes and measurements — Tuesday, April 4, 1995

Address:

C:\DEPT103\CRIMINAL\1995\APR\4\SIDEBAR-WITNESS-NOTES-AND-MEAS.DOC

TRIAL

▲ Day 51 of 167

◀ Direct examination of Dennis Fung (part 4) Direct examination of Dennis Fung (part 5) ▶

Date: Tuesday, April 4, 1995 • Utterances: 46

Defense attorneys Scheck and Neufeld objected at sidebar that witness Dennis Fung was reading from notes and measurements during testimony that they had not previously received in discovery. Judge Ito brought Fung to the sidebar, where it was revealed the notes were a personal summary Fung had prepared to aid his own testimony. Ito ruled the defense would receive a photocopy of the notes at the next break.

# 1 (THE FOLLOWING PROCEEDINGS WERE HELD AT THE BENCH:)

# 2 THE COURT:

WE ARE OVER AT THE SIDE BAR. MR. SCHECK?

# 3 MR. SCHECK:

I'M SORRY, I HATE TO DO THIS, BUT I DON'T THINK WE HAVE SEEN THESE NOTES AND THESE MEASUREMENTS.

# 4 MR. GOLDBERG:

YOU HAVE SEEN THESE.

# 5 MR. SCHECK:

THE ONE THAT I SAW --

# 6 MR. GOLDBERG:

THIS ONE, THESE TWO --

# 7 MR. SCHECK:

HE WAS REFERRING TO SOMETHING ELSE. I THINK HE HAD SOMETHING ELSE IN HIS BOOK.

# 8 MR. GOLDBERG:

THIS, THIS, (INDICATING).

# 9 MR. SCHECK:

TALKING ABOUT THE LATEST ONES FROM MARCH 21. THESE ARE HIS ORIGINALS. THESE ARE ORIGINALS.

# 10 MR. GOLDBERG:

THESE ARE MARCH.

# 11 MR. SCHECK:

BUT THERE IS ANOTHER NOTE IN MARCH THAT HE HAS UP IN FRONT OF HIM THAT HE IS READING FROM THAT ARE NOT THESE.

# 12 MR. NEUFELD:

WHY DON'T WE GET --

# 13 MR. SCHECK:

YOU ASKED HIM A QUESTION. I WENT OVER AND LOOKED AT THE NOTES AND THE MEASUREMENTS AND I HAVEN'T SEEN THEM AT ALL.

# 14 THE COURT:

MR. GOLDBERG, WHY DON'T YOU ASK MR. YAMAUCHI TO STEP OVER HERE TO THE SIDE BAR.

# 15 MR. GOLDBERG:

MR. FUNG.

# 16 (DISCUSSION HELD OFF THE RECORD.)

# 17 (MR. FUNG APPROACHES THE SIDE BAR.)

# 18 MR. SCHECK:

HE WAS READING FROM THAT IN ANSWERING HIS QUESTIONS.

# 19 THE WITNESS:

I WROTE THOSE DOWN.

# 20 THE COURT:

3/25 IS WHAT HE IS LOOKING AT HERE. IS THIS WHAT YOU ARE REFERRING TO?

# 21 THE WITNESS:

I WROTE THESE DOWN TO REMIND ME OF WHEN I WENT OUT TO THE CRIME SCENE.

# 22 MR. SCHECK:

I UNDERSTAND, BUT THESE ARE THE MEASUREMENTS, THAT IS THE POINT?

# 23 THE WITNESS:

UP THERE ON TO --

# 24 MR. SCHECK:

YEAH.

# 25 THE WITNESS:

THAT IS A SYNOPSIS OF THIS, (INDICATING).

# 26 MR. SCHECK:

OF WHICH?

# 27 THE WITNESS:

OF ALL THIS, (INDICATING).

# 28 THE COURT:

FOR THE RECORD, WE ARE LOOKING AT A DIVIDER PAGE IN MR. FUNG'S NOTEBOOK. IT APPEARS TO BE A NUMBER OF LINES WHICH THE COURT FINDS TO BE RELATIVELY INNOCUOUS.

KEY QUOTE

# 29 MR. SCHECK:

YOUR HONOR, IF I MAY JUST STATE THE RELEVANCY SO YOU DON'T THINK THAT I'M BEING OVERLY PICKY?

I THINK THAT FROM THE FACE OF IT, THESE REPRESENT MEASUREMENTS WITH RESPECT TO WHERE THE VARIOUS DIFFERENT ITEMS ARE AT BUNDY AND REMEASUREMENTS THAT ARE MADE AT ANOTHER TIME. THAT IS THE PROBLEM.

# 30 THE COURT:

ALL RIGHT. MR. FUNG, ARE THESE ROUGH NOTES?

# 31 THE WITNESS:

YES, THEY ARE.

# 32 THE COURT:

ARE THEY MEMORIALIZED IN A FORM?

# 33 THE WITNESS:

NO.

# 34 THE COURT:

OR A DIAGRAM?

# 35 THE WITNESS:

THEY ARE AN AID TO ME FOR TESTIMONY AS FAR AS IF THEY WERE TO ASK ME DIFFERENT MEASUREMENTS AND THINGS LIKE THAT, RATHER THAN GOING THROUGH MY NOTES AND --

KEY QUOTE

# 36 THE COURT:

THAT IS SOMETHING YOU PREPARED FOR TESTIMONY?

# 37 THE WITNESS:

YES.

# 38 THE COURT:

ALL RIGHT.

# 39 MR. GOLDBERG:

WELL, ACTUALLY, I THINK THIS IS COVERED BY THE EVIDENCE CODE WHICH SAYS THAT IF A WITNESS CREATES SOMETHING TO USE FOR HIS TESTIMONY TO REFRESH HIS RECOLLECTION, THEY GET IT. IF HE USES IT TO REFRESH HIS RECOLLECTION. I CAN'T REMEMBER THE CODE SECTION.

# 40 THE COURT:

ALL RIGHT. WHEN WE TAKE A BREAK, WE WILL GIVE YOU A PHOTOCOPY.

# 41 MR. GOLDBERG:

BUT SO FAR HE HASN'T USED IT, YOUR HONOR.

# 42 THE COURT:

ALL RIGHT.

# 43 MR. SCHECK:

HE JUST USED IT.

# 44 MR. NEUFELD:

HE JUST USED IT.

# 45 MR. GOLDBERG:

YOU ARE GETTING IT?

# 46 THE COURT:

YOU WILL GET IT.

Temperature

tense

Key Quotes (4)

Barry Scheck

I WENT OVER AND LOOKED AT THE NOTES AND THE MEASUREMENTS AND I HAVEN'T SEEN THEM AT ALL.

Core discovery dispute — defense alleges they were blindsided by materials the witness was actively using during testimony.

Lance A. Ito

FOR THE RECORD, WE ARE LOOKING AT A DIVIDER PAGE IN MR. FUNG'S NOTEBOOK. IT APPEARS TO BE A NUMBER OF LINES WHICH THE COURT FINDS TO BE RELATIVELY INNOCUOUS.

Ito downplays the significance of the notes, signaling he is not alarmed by the disclosure issue.

Barry Scheck

I THINK THAT FROM THE FACE OF IT, THESE REPRESENT MEASUREMENTS WITH RESPECT TO WHERE THE VARIOUS DIFFERENT ITEMS ARE AT BUNDY AND REMEASUREMENTS THAT ARE MADE AT ANOTHER TIME. THAT IS THE PROBLEM.

Scheck flags the real concern: potential evidence of remeasurements at the Bundy crime scene, which could go to evidence handling or tampering arguments.

The Witness

THEY ARE AN AID TO ME FOR TESTIMONY AS FAR AS IF THEY WERE TO ASK ME DIFFERENT MEASUREMENTS AND THINGS LIKE THAT, RATHER THAN GOING THROUGH MY NOTES.

Fung admits the notes were prepared specifically for testimony, triggering the evidence code discussion about refreshing recollection.

Evidence (1)

Informal

Divider page in Dennis Fung's notebook containing handwritten measurements and notes from approximately March 25, summarizing crime scene measurements from Bundy

disputed — defense claims not previously disclosed; court orders photocopy to be provided at break

Notable Exchanges (3)

Barry Scheck•Hank Goldberg

Back-and-forth over whether the defense had previously seen the specific notes Fung was referencing; both speak over each other gesturing at documents.

heated

Lance A. Ito•Dennis Fung

Judge questions Fung directly about the nature of the notes — whether they are rough notes, whether memorialized elsewhere, and whether prepared for testimony — establishing the legal basis for disclosure.

procedural

Barry Scheck•Peter Neufeld•Hank Goldberg

Scheck and Neufeld assert in unison that Fung 'just used' the notes, contradicting Goldberg's claim that he had not yet relied on them.

strategic

Credibility Attacks (1)

⚔ Dennis Fung

undisclosed preparation materials

Scheck raises the inference that measurements in Fung's personal notes may represent remeasurements taken at a later time, potentially undermining the original crime scene documentation.

Objections

1 objections (0 sustained, 0 overruled)

Proceeding 5594 • 46 utterances

Criminal Trial

Department 103