Cross-examination of Dennis Fung (afternoon, part 6)

📄 Cross-examination of Dennis Fung (afternoon, part 6) — Wednesday, April 5, 1995

Address:

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

TRIAL

▲ Day 52 of 167

Witness: Dennis Fung
Examiner: Barry Scheck
Called by: Prosecution • Date: Wednesday, April 5, 1995 • Utterances: 71

Barry Scheck pressed Dennis Fung on photographic discrepancies suggesting the Bundy glove had been moved before it was collected — comparing a pre-arrival photo showing the glove in a different position to photos Fung directed be taken on June 13th. Fung admitted he simply assumed the glove had not been moved and never inquired of detectives whether it had been disturbed when Goldman's body was removed. The session ended abruptly when Scheck attempted to play a video, Goldberg objected and requested a sidebar, and Judge Ito adjourned for the day.

# 1 THE COURT:

ALL RIGHT. THANK YOU, COUNSEL. PROCEED. ALL RIGHT. THIS SIDE-BY-SIDE PHOTO IMAGE WE WILL MARK AS 1075, DEFENSE EXHIBIT 1075.

# 2 (DEFT'S 1075 FOR ID = PHOTOGRAPH)

# 3 Q:

BY MR. SCHECK: DO YOU SEE THIS PICTURE TO THE LEFT, THE ONE WITH THE EVIDENCE MARKER ON IT, WHAT APPEAR TO BE DRAG MARKS?

# 4 A:

YOU MEAN COMING FROM THE UPPER LEFT-HAND CORNER?

# 5 Q:

YES.

# 6 A:

COULD BE, YES.

# 7 Q:

AND YOU SEE DEBRIS NOW ON TOP OF THE TILES?

# 8 A:

I SEE WHAT APPEAR TO BE LEAVES ON THE TILES.

# 9 Q:

ALL RIGHT. NOW, HAS THIS DISCREPANCY EVER BEEN POINTED OUT TO YOU BEFORE YOU CAME INTO THIS COURTROOM?

# 10 A:

I HAVEN'T SEEN THE PICTURE -- I DON'T RECALL SEEING THE PICTURE ON THE RIGHT, SO NO.

# 11 Q:

NO ONE HAS EVER -- IT HAS NEVER COME TO YOUR ATTENTION BEFORE COMING INTO THIS COURTROOM THAT THE PICTURE OF THE GLOVE ON THE RIGHT THAT WAS TAKEN BEFORE YOU ARRIVED AT THE CRIME SCENE SHOWED THE GLOVE IN A DIFFERENT POSITION THAN THE PICTURE THAT YOU DIRECTED BE TAKEN ON JUNE 13TH?

# 12 A:

IT HAS NEVER BEEN BROUGHT TO MY ATTENTION, NO.

KEY QUOTE

# 13 Q:

HAS ANYBODY -- DID IT -- DID YOU INQUIRE OF ANYBODY ON JUNE 13TH, WHEN YOU TOOK THE PICTURE ON THE LEFT, WHETHER OR NOT THE GLOVE HAD BEEN MOVED INTO A DIFFERENT POSITION THAN IT ORIGINALLY WAS AFTER MR. GOLDMAN'S BODY HAD BEEN WE MOVED?

# 14 A:

I ASSUMED THEY HAD NOT BEEN MOVED.

# 15 Q:

I'M SORRY?

# 16 A:

I ASSUMED THAT THEY HAD NOT BEEN MOVED.

KEY QUOTE

# 17 Q:

YOU ASSUMED THAT THEY HAD NOT BEEN MOVED?

# 18 A:

THAT'S RIGHT.

# 19 Q:

WELL, YOU TOLD US BEFORE THAT YOU HAD A CONCERN THAT THE GLOVE AND THE ENVELOPE AND THE HAT MIGHT BE MOVED WHEN MR. GOLDMAN'S BODY WAS TAKEN AWAY, DIDN'T YOU?

# 20 MR. GOLDBERG:

THAT MISSTATES THE EVIDENCE.

# 21 THE COURT:

SUSTAINED.

# 22 Q:

BY MR. SCHECK: ALL RIGHT. AFTER YOU SAW MR. GOLDMAN'S BODY BEING REMOVED, DID YOU MAKE INQUIRY OF DETECTIVE LANGE AS TO WHETHER OR NOT THE GLOVE WAS IN THE SAME PLACE AS IT WAS BEFORE MR. GOLDMAN'S BODY WAS REMOVED?

# 23 A:

NO.

# 24 MR. GOLDBERG:

IT IS IRRELEVANT.

# 25 THE COURT:

SUSTAINED.

# 26 Q:

BY MR. SCHECK: HAVE -- FROM THE MOMENT YOU ARRIVED AT THE BUNDY CRIME SCENE TO THE MOMENT THAT YOU HAVE SEEN THESE PICTURES IN THE COURTROOM, DO YOU EVER RECALL SEEING THE GLOVE IN A DIFFERENT POSITION THAN IS DEPICTED IN THESE PHOTOGRAPHS?

# 27 A:

AT THE SCENE? THE GLOVE AT THE SCENE?

# 28 Q:

THE GLOVE AT THE SCENE.

# 29 A:

I REMEMBER THE GLOVE BEING IN THE POSITION THAT IT IS WITH THE IDENTIFICATION CARD NEXT TO IT.

# 30 Q:

THE 102 PHOTOGRAPH?

# 31 A:

YES.

# 32 Q:

YOU NEVER SAW THE GLOVE IN ANY DIFFERENT POSITION PRIOR TO THE TIME IT WAS COLLECTED?

# 33 A:

I DON'T RECALL IT BEING IN A DIFFERENT POSITION, NO.

KEY QUOTE

# 34 Q:

YOU NEVER SAW THAT GLOVE ON TOP OF THE TILES?

# 35 A:

ON THE WALKWAY?

# 36 Q:

YEAH.

# 37 A:

NO.

# 38 Q:

YOU NEVER SAW THAT GLOVE ON OR NEAR THE BLANKET?

# 39 A:

I DON'T RECALL, NO.

# 40 MR. SCHECK:

ALL RIGHT. I WOULD LIKE TO SHOW YOU A VIDEO, MR. FUNG.

# 41 Q:

DO YOU RECALL -- WHILE WE ARE SETTING THIS UP, DO YOU RECALL THAT DETECTIVE VANNATTER ARRIVED AT THE CRIME SCENE THAT MORNING AT BUNDY?

# 42 A:

I DON'T RECALL IF IT WAS IN THE MORNING OR IN THE AFTERNOON, BUT HE DID MAKE A BRIEF STOP OVER.

# 43 Q:

AND WHEN HE STOPPED BY, HE WALKED UP THE STAIRS AND HAD A BRIEF TALK WITH YOU AT SOME POINT?

# 44 A:

I -- HE MAY HAVE. I DON'T RECALL.

# 45 Q:

AND YOU RECALL THAT CHIEF FORENSIC CHEMIST JOHNSON AT SOME POINT WALKED UP THAT STAIRWELL AT BUNDY?

# 46 A:

AT SOME POINT HE DID, YES.

# 47 Q:

AND DO YOU RECALL THAT THOSE TWO GENTLEMEN WALKED UP THERE BEFORE THE GLOVES AND THE KNIT HAT WERE COLLECTED?

# 48 A:

I DON'T RECALL IF IT WAS BEFORE OR AFTER.

# 49 Q:

DO YOU RECALL?

# 50 MR. GOLDBERG:

YOUR HONOR, WAIT A MINUTE. I OBJECT BECAUSE IT ASSUMES A FACT NOT IN EVIDENCE, GLOVES.

# 51 THE COURT:

SUSTAINED.

# 52 MR. SCHECK:

GLOVE, GLOVE, THE BUNDY GLOVE. MY ERROR.

# 53 MR. GOLDBERG:

THE REPORTER --

# 54 THE COURT:

ALL RIGHT. REPHRASE THE QUESTION.

# 55 Q:

BY MR. SCHECK: THE BUNDY GLOVE. DO YOU REMEMBER PUTTING DOWN EVIDENCE CARDS NEAR THE GLOVE AND THE HAT AND THE ENVELOPE PRIOR TO THEIR COLLECTION?

# 56 A:

YES.

# 57 Q:

PRIOR TO THE PHOTOGRAPHS BEING TAKEN?

# 58 A:

PRIOR?

# 59 Q:

YES.

# 60 A:

YES.

# 61 Q:

YOU DID THAT?

# 62 A:

YES.

# 63 MR. SCHECK:

I WOULD LIKE TO SHOW YOU SOME VIDEO.

# 64 MR. GOLDBERG:

YOUR HONOR, PERHAPS I COULD SEE THIS FIRST. I'M NOT SURE WHAT HE IS ABOUT TO PLAY.

# 65 THE COURT:

ALL RIGHT. HOW LONG IS THIS SEGMENT?

# 66 MR. SCHECK:

VERY SHORT.

# 67 (THE VIDEOTAPE PLAYED WAS FOR COUNSEL.)

# 68 MR. SCHECK:

ACTUALLY THREE SEGMENTS.

# 69 (THE VIDEOTAPE PLAYED WAS FOR COUNSEL.)

# 70 MR. GOLDBERG:

YOUR HONOR, I THINK WE NEED TO APPROACH.

# 71 THE COURT:

ALL RIGHT. COUNSEL, PLEASE, THAT REACTION IS NOT NECESSARY. ALL RIGHT. LADIES AND GENTLEMEN, AS FAR AS THE JURY IS CONCERNED, WE ARE GOING TO TAKE A RECESS FOR THE AFTERNOON SESSION AT THIS TIME. PLEASE REMEMBER ALL OF MY ADMONITIONS TO YOU. DO NOT DISCUSS THE CASE AMONG YOURSELVES, FORM ANY OPINIONS ABOUT THE CASE, DO NOT CONDUCT ANY DELIBERATIONS UNTIL THE MATTER HAS BEEN SUBMITTED TO YOU. DO NOT ALLOW ANYBODY TO COMMUNICATE WITH YOU WITH REGARD TO THE CASE. AS FAR AS THE JURY IS CONCERNED, WE WILL STAND IN RECESS UNTIL TOMORROW MORNING, 9:00 A.M. MR. FUNG, YOU MAY STEP DOWN. YOU ARE ORDERED TO RETURN TOMORROW MORNING, 9:00 A.M. ALL RIGHT. WE WILL HAVE MOTIONS ON CALENDAR, SO AS SOON AS WE CLEAR THE JURY, WE WILL RESUME WITH EVIDENCE AND MOTIONS.

Temperature

tense

Key Quotes (3)

Dennis Fung

I ASSUMED THAT THEY HAD NOT BEEN MOVED.

Fung admits his handling of a critical piece of evidence rested on an assumption rather than any verification — a damaging concession on chain of custody.

Dennis Fung

IT HAS NEVER BEEN BROUGHT TO MY ATTENTION, NO.

Fung acknowledges that the photographic discrepancy in glove position had never been flagged to him before trial, suggesting prosecution never reviewed this potential problem.

Dennis Fung

I DON'T RECALL IT BEING IN A DIFFERENT POSITION, NO.

Fung's memory of the glove's position is inconsistent with photographic evidence Scheck introduced, undermining his credibility as a careful evidence collector.

Evidence (3)

Defense 1075

Side-by-side photographs showing the Bundy glove in different positions — one taken before Fung arrived, one taken under Fung's direction on June 13th

introduced, used to confront witness with discrepancy

Informal

Video footage Scheck attempted to play for the jury, contents disputed; sidebar called before jury could view it

blocked pending sidebar, jury excused

Informal

Photograph 102 — photo of glove with identification card beside it at Bundy

referenced to establish Fung's baseline recollection of glove position

Notable Exchanges (2)

Barry Scheck•Dennis Fung

Scheck walked Fung through a series of questions establishing that he never verified the glove's position after Goldman's body was removed, never asked Detective Lange, and only 'assumed' it hadn't moved — building a picture of negligent evidence handling.

strategic

Barry Scheck•Hank Goldberg•Lance A. Ito

Goldberg requested to preview the video before it was shown to the jury, then asked for a sidebar. Ito admonished Goldberg that his visible reaction in front of the jury 'is not necessary,' then dismissed the jury for the day.

heated

Credibility Attacks (2)

⚔ Dennis Fung

prior inconsistent photographic evidence

Scheck confronted Fung with Defense Exhibit 1075, a side-by-side photo showing the Bundy glove in a materially different position in a pre-arrival photo versus photos taken under Fung's direction — which Fung had never been shown or asked to account for before trial.

⚔ Dennis Fung

admission of assumption in lieu of verification

Fung conceded he never inquired whether the glove had been disturbed when Goldman's body was removed, relying solely on assumption — a significant admission about the sloppiness of his evidence documentation.

Objections

4 objections (4 sustained, 0 overruled)

Proceeding 5607 • 71 utterances • Prosecution witness

Criminal Trial

Department 103