Cross-examination of Dennis Fung (afternoon, part 2)

📄 Cross-examination of Dennis Fung (afternoon, part 2) — Wednesday, April 5, 1995

Address:

C:\DEPT103\CRIMINAL\1995\APR\5\CROSS-EXAMINATION-OF-DENNIS-FU.DOC

TRIAL

▲ Day 52 of 167

◀ Sidebar: glove photograph Sidebar: grand jury exhibits ▶

Witness: Dennis Fung
Examiner: Barry Scheck
Called by: Prosecution • Date: Wednesday, April 5, 1995 • Utterances: 42

Barry Scheck attempts to cross-examine Dennis Fung about a photograph depicting the Bundy glove with a person pointing at it, which Fung says he cannot recall seeing. Scheck then tries to use Fung's June 22nd grand jury testimony to impeach him on this point, but Goldberg objects as the proceeding cuts to sidebar. The excerpt opens with a light exchange about Scheck's New York pace.

# 1 MR. SCHECK:

NEW YORKERS, WE TALK FAST, WE MOVE FAST.

KEY QUOTE

# 2 THE COURT:

NOT FAST ENOUGH.

# 3 MR. SCHECK:

NOT FAST ENOUGH, I KNOW. I'M TRYING, YOUR HONOR.

# 4 THE COURT:

LADIES AND GENTLEMEN, PLEASE DISREGARD ANY BANTER. ALL RIGHT. MR. SCHECK.

# 5 MR. SCHECK:

I WOULD LIKE TO MARK THIS PHOTOGRAPH DEFENDANT'S NEXT IN ORDER AND SHOW IT TO THE WITNESS.

# 6 MR. SCHECK:

MAY I APPROACH, YOUR HONOR?

# 7 THE COURT:

YOU MAY. COUNSEL, ANY COUNSEL WHO'S QUESTIONING THE WITNESS AND OPPOSING COUNSEL CAN APPROACH THE WITNESS WITHOUT LEAVE OF THE COURT.

# 8 MR. SCHECK:

THANK YOU.

# 9 Q:

BY MR. SCHECK: HAVE YOU SEEN THIS PHOTOGRAPH BEFORE?

# 10 A:

NO, I HAVE NOT.

# 11 Q:

HAVE YOU SEEN ANY VERSION OF THIS PHOTOGRAPH BEFORE OR CLOSE-UP SHOT OF THAT PHOTOGRAPH?

# 12 A:

THIS IS THE FIRST TIME I'VE SEEN THIS PHOTOGRAPH OR ANY VERSION OF IT.

KEY QUOTE

# 13 Q:

MR. FUNG, HAVE YOU EVER OBSERVED A PHOTOGRAPH OF THE GLOVE AND ENVELOPE AT BUNDY WITH A PICTURE OF SOMEBODY POINTING AT IT?

# 14 A:

NOT TO MY RECOLLECTION.

# 15 Q:

MR. FUNG, YOU RECALL TESTIFYING AT THE GRAND JURY ON JUNE 22ND?

# 16 A:

YES.

# 17 Q:

ALL RIGHT. AND YOU RECALL BEING ASKED SOME QUESTIONS ABOUT THE BROWN MEN'S LEATHER GLOVE THAT YOU OBSERVED AT THE BUNDY LOCATION?

# 18 A:

YES.

# 19 Q:

AND YOU WERE SHOWN SOME PICTURES OF THAT?

# 20 A:

YES.

# 21 Q:

ALL RIGHT. AND I'M AT LINE 8, PAGE 337. "QUESTION: WAS ONE OF THOSE ITEMS A BROWN MEN'S --"

# 22 MR. GOLDBERG:

CAN I HAVE A MOMENT?

# 23 MS. CLARK:

CAN WE HAVE A MOMENT TO GET THAT?

# 24 (BRIEF PAUSE.)

# 25 MR. SCHECK:

377.

# 26 Q:

BY MR. SCHECK: "QUESTION:"

# 27 MR. GOLDBERG:

WAIT A MINUTE. MAY I HAVE A MOMENT?

# 28 (BRIEF PAUSE.)

# 29 MR. GOLDBERG:

YOUR HONOR, I DON'T KNOW WHETHER THE COURT HAS ACCESS TO A TRANSCRIPT, BUT I WOULD OBJECT TO THIS. THIS IS IMPROPER IMPEACHMENT.

KEY QUOTE

# 30 THE COURT:

OVER AT SIDEBAR WITH THE REPORTER AND THE TRANSCRIPT.

# 31 MR. SCHECK:

YOUR HONOR, BEFORE THIS, LET ME TRY ONE OTHER THING THAT MAYBE CAN AVOID THIS PROBLEM.

# 32 THE COURT:

OKAY.

# 33 MR. SCHECK:

I WOULD ASK THAT THIS PHOTOGRAPH BE MARKED AS DEFENDANT'S NEXT IN ORDER.

# 34 THE COURT:

1074.

# 35 (DEFT'S 1074 FOR ID = PHOTOGRAPH)

# 36 Q:

BY MR. SCHECK: MR. FUNG, HAVE YOU EVER SEEN THIS PHOTOGRAPH?

# 37 A:

I'VE SEEN PHOTOGRAPHS LIKE IT, BUT I DON'T RECALL IF I'VE SEEN THAT PARTICULAR PHOTOGRAPH.

# 38 Q:

HAVE YOU EVER SEEN A PHOTOGRAPH DEPICTING THE GLOVE AT BUNDY THAT INCLUDED A PERSON POINTING AT IT?

# 39 A:

I DON'T RECALL.

# 40 Q:

ALL RIGHT. MR. FUNG, WE'RE NOW BACK TO THE GRAND JURY PAGES. WERE YOU ASKED THESE QUESTIONS --

# 41 MR. GOLDBERG:

NOW CAN WE APPROACH, YOUR HONOR?

# 42 THE COURT:

ALL RIGHT. WITH THE COURT REPORTER.

Temperature

procedural

Key Quotes (4)

Barry Scheck

NEW YORKERS, WE TALK FAST, WE MOVE FAST.

Self-deprecating opener that earned a rare judicial quip; Ito's civil counterpart Ito fires back.

Lance A. Ito

NOT FAST ENOUGH.

Rare moment of judicial wit; establishes Ito's terse courtroom style.

Dennis Fung

THIS IS THE FIRST TIME I'VE SEEN THIS PHOTOGRAPH OR ANY VERSION OF IT.

Absolute denial that Scheck immediately moves to test against grand jury testimony.

Hank Goldberg

YOUR HONOR, I DON'T KNOW WHETHER THE COURT HAS ACCESS TO A TRANSCRIPT, BUT I WOULD OBJECT TO THIS. THIS IS IMPROPER IMPEACHMENT.

Prosecution attempts to block Scheck from using the grand jury transcript — the objection triggers a sidebar before the impeachment lands.

Evidence (2)

Defendant's 1074

Photograph of the Bundy glove and envelope with a person pointing at it

marked for identification, shown to witness

Informal

Dennis Fung's grand jury testimony, June 22nd, page 377 (initially cited as 337)

attempted use for impeachment, blocked by objection and sidebar

Notable Exchanges (2)

Barry Scheck•Dennis Fung

Scheck presses Fung three times in escalating specificity about whether he has ever seen a photograph of the Bundy glove with someone pointing at it; Fung moves from flat denial to 'I don't recall.'

strategic

Hank Goldberg•Lance A. Ito•Barry Scheck

Goldberg interrupts twice while Scheck cites the grand jury transcript page, ultimately forcing a sidebar on whether the impeachment is proper.

contentious

Light Moments (1)

Barry Scheck / Lance A. Ito

Scheck opens by joking that New Yorkers talk fast and move fast; Ito deadpans 'Not fast enough.' Ito then instructs the jury to disregard the banter.

Credibility Attacks (1)

⚔ Dennis Fung

prior inconsistent statement via grand jury testimony

Scheck attempts to use Fung's June 22nd grand jury testimony (page 377) to challenge his claim of never having seen a photograph of the Bundy glove with a person pointing at it; the attempt is cut off by objection and sidebar before the testimony is read in.

Witness Demeanor

(BRIEF PAUSE.) — during prosecution's scramble to locate grand jury transcript pages

Objections

1 objections (0 sustained, 0 overruled)

Proceeding 5617 • 42 utterances • Prosecution witness

Criminal Trial

Department 103