Cross-examination of Dennis Fung (morning, part 1)

📄 Cross-examination of Dennis Fung (morning, part 1) — Wednesday, April 5, 1995

Address:

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

TRIAL

▲ Day 52 of 167

◀ Morning session opening Sidebar: field procedures foundation ▶

Witness: Dennis Fung
Examiner: Barry Scheck
Called by: Prosecution • Date: Wednesday, April 5, 1995 • Utterances: 94

Barry Scheck resumes cross-examination of LAPD criminalist Dennis Fung, pressing him on whether written protocols exist for the crime lab and whether Fung is bound by them. Fung admits he has seen the field procedures manual (marked Defense 1071) but claims he doesn't know if it is official policy or merely a draft. The most damaging moment comes when Fung agrees that lab procedures are largely communicated through 'an oral tradition,' undermining any claim to systematic, documented evidence-handling standards.

# 1 THE COURT:

ALL RIGHT. GOOD MORNING, MR. FUNG. YOU ARE REMINDED YOU ARE STILL UNDER OATH. MR. SCHECK, YOU MAY CONTINUE WITH YOUR CROSS-EXAMINATION.

# 2 MR. SCHECK:

GOOD MORNING, MR. FUNG.

# 3 DENNIS FUNG:

GOOD MORNING.

# 4 MR. SCHECK:

GOOD MORNING, LADIES AND GENTLEMEN OF THE JURY.

# 5 THE JURY:

GOOD MORNING.

# 6

CROSS-EXAMINATION (RESUMED)

# 7 MR. GOLDBERG:

OBJECTION. THAT MISSTATES THE TESTIMONY.

# 8 THE COURT:

OVERRULED. HE SAID HE WAS AWARE OF IT; HE HADN'T SEEN IT. YES OR NO, ARE YOU AWARE OF IT?

# 9 DENNIS FUNG:

I AM AWARE OF A MANUAL. I DON'T KNOW IF IT IS IN EFFECT OR NOT, THOUGH.

# 10 Q:

BY MR. SCHECK: JUST TO BE PRECISE, I THINK I ASKED YOU:

"ARE YOU FAMILIAR WITH THE FIELD PROCEDURES MANUAL?"

AND YOU ANSWERED:

"I AM. I KNOW ONE HAS BEEN WRITTEN. I -- BUT IT HAS NOT BEEN PUT INTO EFFECT."

IS THAT WHAT YOU SAID YESTERDAY?

# 11 A:

I MAY HAVE SAID THAT. I DON'T RECALL EXACTLY.

# 12 Q:

OKAY. AND, UMM, NOW, ARE YOU TELLING US, SIR, THAT AS FAR AS YOU KNOW THERE IS NO MANUAL IN EFFECT THAT ESTABLISHES PROTOCOLS AND PROCEDURES FOR YOUR CRIME LABORATORY?

# 13 MR. GOLDBERG:

WELL, THAT IS OVERBROAD.

# 14 THE COURT:

OVERRULED. IS THERE A MANUAL?

# 15 DENNIS FUNG:

I AM NOT AWARE OF ONE.

# 16 Q:

BY MR. SCHECK: WELL, I THINK YOU SAID BEFORE YOU KNOW ONE HAS BEEN WRITTEN, RIGHT?

# 17 A:

I KNOW A DRAFT HAS BEEN WRITTEN.

# 18 MR. SCHECK:

OKAY. YOUR HONOR, I WOULD LIKE TO MARK THIS VOLUME.

# 19 THE COURT:

YOU CAN MARK IT.

# 20 MR. SCHECK:

NEXT IN ORDER.

# 21 THE CLERK:

1071.

# 22 (DEFT'S 1071 FOR ID = MANUAL)

# 23 A:

(WITNESS COMPLIES.) YES, I HAVE.

# 24 Q:

SO YOU HAVE SEEN THIS?

# 25 A:

YES.

# 26 Q:

OH, OKAY. SO ARE YOU TELLING US THAT YOU ARE -- YOU HAVE SEEN THAT BUT YOU DON'T KNOW WHETHER THOSE PROTOCOLS AND PROCEDURES ARE IN EFFECT? IS THAT WHAT YOU ARE SAYING?

# 27 A:

I DON'T KNOW THAT THESE -- THAT THIS MANUAL IS -- IS A -- IS POLICY FOR OUR LABORATORY. IT MAY BE JUST A ROUGH DRAFT RIGHT NOW SUBJECT TO REVIEW.

KEY QUOTE

# 28 Q:

WELL, IT CONTAINS VARIOUS PROTOCOLS AND PROCEDURES FOR CRIMINALISTS, DOES IT NOT?

# 29 A:

IT CONTAINS PROPOSED PROCEDURES FOR CRIMINALISTS, YES.

# 30 Q:

SO IN OTHER WORDS, YOU HAVE SEEN THESE WRITTEN PROTOCOLS AND PROCEDURES, BUT AS FAR AS YOU ARE CONCERNED YOU DON'T NECESSARILY HAVE TO FOLLOW THEM? IS THAT WHAT YOU ARE SAYING?

KEY QUOTE

# 31 A:

THAT IS NOT WHAT I'M SAYING, NO.

# 32 Q:

OKAY. ARE THE PROTOCOLS AND PROCEDURES IN THAT MANUAL RULES THAT YOU BELIEVE YOU HAVE TO FOLLOW?

# 33 A:

I HAVE NOT REVIEWED THE ENTIRE MANUAL, SO I CAN'T STATE YES OR NO FOR THAT.

# 34 Q:

OKAY. THEN AS THEY COME UP PERHAPS WE WILL LOOK AT THEM ONE AT A TIME, AND IF YOU WANT, THAT VOLUME IS YOURS AND YOU CAN TAKE IT OVER THE LUNCH PERIOD AND LOOK AT IT. FAIR ENOUGH?

# 35 MR. GOLDBERG:

YOUR HONOR, THAT IS NOT A PROPER QUESTION.

# 36 THE COURT:

SUSTAINED.

# 37 MR. GOLDBERG:

I MAKE A MOTION TO STRIKE.

# 38 THE COURT:

THAT LAST COMMENT IS STRICKEN. THE JURY IS TO DISREGARD IT.

# 39 Q:

BY MR. SCHECK: WELL, IS IT YOUR POSITION, SIR, THAT THE PROTOCOLS AND PROCEDURES AT THE CRIME LAB ARE COMMUNICATED ORALLY?

# 40 A:

THEY ARE COMMUNICATED THROUGH A SID ACADEMY THAT IS GIVEN TO CRIMINALISTS IN OUR DIVISION. SOME OF THE PROCEDURES HAVE BEEN HANDED OUT AND MUCH OF IT IS ORAL AND THROUGH EXPERIENCE, ON-THE-JOB TRAINING.

KEY QUOTE

# 41 Q:

ALL RIGHT. SO THERE ARE SOME WRITTEN HANDOUTS THAT YOU GET?

# 42 A:

I HAVE RECEIVED HANDOUTS BEFORE, YES.

# 43 Q:

AND SOME OF THEM, JUST IN YOUR QUICK PERUSAL, SEEM TO BE IN THAT MANUAL?

# 44 A:

YES.

# 45 Q:

AND OTHERS ARE SORT OF COMMUNICATED ORALLY?

# 46 A:

SOME OF THEM ARE COMMUNICATED ORALLY, YES.

# 47 Q:

SORT OF AN ORAL TRADITION WITHIN THE LABORATORY?

KEY QUOTE

# 48 A:

YES.

# 49 Q:

OKAY. NOW, THIS DOCUMENT, THIS MANUAL, UMM, THAT IS IN THE EVIDENCE PROCESSING ROOM FOR PURPOSES OF REFERENCE, ISN'T IT?

# 50 A:

TO THE BEST OF MY RECOLLECTION I THINK IT IS KEPT IN THERE, BUT I DON'T --

# 51 Q:

AND THE REASON IT IS KEPT THERE IS IN CASE SOMEBODY NEEDS TO LOOK AT IT, IT WOULD INFORM THEM AS TO THE PROCEDURES AND PROTOCOLS CONTAINED WITHIN IT?

# 52 MR. GOLDBERG:

OBJECTION. CALLS FOR SPECULATION.

# 53 THE COURT:

OVERRULED. DO YOU KNOW?

# 54 DENNIS FUNG:

THAT IS POSSIBLE.

# 55 Q:

BY MR. SCHECK: AND THERE IS ALSO ONE OF THESE MANUALS IN YOUR CRIME SCENE RESPONSE TRUCK?

# 56 A:

I'M NOT SURE OF THAT.

# 57 Q:

WELL, WHY DON'T YOU LOOK AT -- MAY I APPROACH THE WITNESS, YOUR HONOR?

# 58 THE COURT:

YES.

# 59 Q:

BY MR. SCHECK: VOLUME 1, PAGE 1, LET ME CALL YOUR ATTENTION TO --

# 60 MR. GOLDBERG:

WAIT A MINUTE. MAY I APPROACH, YOUR HONOR?

# 61 THE COURT:

YOU MAY.

# 62 MR. SCHECK:

PLEASE DO.

# 63 MR. GOLDBERG:

BEFORE COUNSEL READS ANYTHING?

# 64 MR. SCHECK:

I'M NOT GOING TO READ ANYTHING. I'M JUST GOING TO DIRECT THE WITNESS' ATTENTION TO A PARAGRAPH AND ASK HIM TO READ IT AND SEE IF IT REFRESHES HIS RECOLLECTION.

# 65 MR. GOLDBERG:

YOUR HONOR, I WOULD OBJECT TO THE PROCEDURE BECAUSE THERE IS NO FOUNDATION THAT HIS RECOLLECTION NEED TO BE REFRESHED.

# 66 THE COURT:

SUSTAINED.

# 67 Q:

BY MR. SCHECK: WELL, DO YOU RECALL WHETHER OR NOT IT IS REQUIRED THAT THIS MANUAL IS SUPPOSED TO BE IN THE CRIME SCENE RESPONSE TRUCK?

# 68 A:

I DON'T KNOW IF IT IS SUPPOSED TO BE THERE OR NOT.

# 69 Q:

ALL RIGHT. SO PERHAPS YOU COULD LOOK AT THE FIRST PARAGRAPH THERE AND SEE IF IT REFRESHES YOUR RECOLLECTION AS TO WHETHER OR NOT A COPY OF THIS MANUAL IS SUPPOSED TO BE IN THE CRIME SCENE RESPONSE TRUCK.

# 70 MR. GOLDBERG:

YOUR HONOR, I OBJECT. THE SAME OBJECTION.

# 71 THE COURT:

OVERRULED ON THAT GROUND.

# 72 DENNIS FUNG:

ACCORDING TO THE PARAGRAPH IT SAYS IT SHOULD BE.

# 73 MR. GOLDBERG:

WELL, WAIT. YOUR HONOR, I DON'T BELIEVE THE WITNESS WAS ASKED TO READ, SO I WOULD ASK -- OUT LOUD, SO IT IS NONRESPONSIVE.

# 74 THE COURT:

ALL RIGHT. SUSTAINED. WE HAVE A MAJOR FOUNDATION PROBLEM HERE.

# 75 MR. SCHECK:

I THINK HE INDICATED HE WASN'T SURE.

# 76 THE COURT:

THAT'S RIGHT.

# 77 Q:

BY MR. SCHECK: YOU SPENT HOW LONG IN THE TRACE ANALYSIS UNIT?

# 78 A:

APPROXIMATELY THREE AND A HALF YEARS.

# 79 Q:

AND THAT WOULD BE WHAT PERIOD?

# 80 A:

THAT WOULD BE FROM 1987 TO 1990.

# 81 Q:

UMM, ARE YOU AWARE OF WHETHER OR NOT A COPY OF THIS MANUAL IS SUPPOSED TO BE IN THE TRACE ANALYSIS UNIT?

# 82 A:

AT THAT TIME?

# 83 Q:

AT ANY TIME, TO YOUR KNOWLEDGE?

# 84 A:

TO THE BEST OF MY KNOWLEDGE THIS WAS NOT CREATED UNTIL AFTER I HAD LEFT THE UNIT.

# 85 Q:

WELL, WHEN WAS THIS MANUAL CREATED?

# 86 A:

I DON'T KNOW.

# 87 Q:

WELL, YOU SAID YOU LEFT IN 1990?

# 88 A:

YES.

# 89 Q:

ALL RIGHT. WOULD THIS MANUAL HAVE BEEN PULLED TOGETHER IN 1992?

# 90 MR. GOLDBERG:

CALLS FOR SPECULATION.

# 91 THE COURT:

OVERRULED.

# 92 DENNIS FUNG:

THERE IS A DATE AT THE BOTTOM OF THE PAGE THAT SAYS "REP A, 1992."

# 93 Q:

BY MR. SCHECK: NOW, IS IT YOUR UNDERSTANDING, SIR, THAT THIS MANUAL IS SUPPOSED TO ESTABLISH THE PROTOCOLS AND PROCEDURES FOR THE DAILY OPERATION OF THE CRIME SCENE FIELD UNIT?

# 94 THE COURT:

LET ME SEE COUNSEL AT THE SIDE BAR WITH THE REPORTER.

Temperature

tense

Key Quotes (4)

Barry Scheck

SORT OF AN ORAL TRADITION WITHIN THE LABORATORY?

Scheck gets Fung to agree that the crime lab's procedures exist mainly as unwritten, oral custom — a damaging concession that undercuts any claim of rigorous, standardized evidence handling.

Dennis Fung

I DON'T KNOW THAT THESE -- THAT THIS MANUAL IS -- IS A -- IS POLICY FOR OUR LABORATORY. IT MAY BE JUST A ROUGH DRAFT RIGHT NOW SUBJECT TO REVIEW.

Fung's hedging on the manual's status allows Scheck to suggest that even known written protocols are treated as optional.

Barry Scheck

SO IN OTHER WORDS, YOU HAVE SEEN THESE WRITTEN PROTOCOLS AND PROCEDURES, BUT AS FAR AS YOU ARE CONCERNED YOU DON'T NECESSARILY HAVE TO FOLLOW THEM? IS THAT WHAT YOU ARE SAYING?

Scheck's aggressive reframe — immediately denied by Fung — plants the implication for the jury that the lab operates without accountability to its own rules.

Dennis Fung

THEY ARE COMMUNICATED THROUGH A SID ACADEMY THAT IS GIVEN TO CRIMINALISTS IN OUR DIVISION. SOME OF THE PROCEDURES HAVE BEEN HANDED OUT AND MUCH OF IT IS ORAL AND THROUGH EXPERIENCE, ON-THE-JOB TRAINING.

Fung's own description of how procedures are conveyed — mostly oral and experiential — supports the defense narrative of an informal, unregulated lab culture.

Evidence (1)

Defense 1071

LAPD crime lab field procedures manual (or draft thereof), introduced to establish what protocols exist and whether they govern criminalists' conduct

introduced and examined

Notable Exchanges (2)

Barry Scheck•Dennis Fung

Scheck establishes that Fung has seen the manual but cannot confirm whether it is binding policy — then extracts the admission that lab procedures are largely oral and experiential.

strategic

Hank Goldberg•Lance A. Ito

Goldberg repeatedly objects to Scheck's attempts to use the manual to refresh Fung's recollection, winning two sustained objections before Ito flags a 'major foundation problem' and calls a sidebar.

procedural

Credibility Attacks (2)

⚔ Dennis Fung

prior inconsistent statement

Scheck points out that Fung testified the day before that a manual 'has not been put into effect,' then presses him when it becomes clear he has in fact seen and handled the document.

⚔ LAPD crime lab

institutional incompetence / lack of formal standards

Scheck uses Fung's own admissions to paint the crime lab as operating on informal oral traditions rather than documented, enforceable protocols — laying groundwork for broader evidence-handling challenges.

Objections

8 objections (3 sustained, 5 overruled)

Proceeding 5598 • 94 utterances • Prosecution witness

Criminal Trial

Department 103