Sidebar: grand jury exhibits

📄 Sidebar: grand jury exhibits — Wednesday, April 5, 1995

Address:

C:\DEPT103\CRIMINAL\1995\APR\5\SIDEBAR-GRAND-JURY-EXHIBITS.DOC

TRIAL

▲ Day 52 of 167

◀ Cross-examination of Dennis Fung (afternoon, part 2) Cross-examination of Dennis Fung (afternoon, part 3) ▶

Date: Wednesday, April 5, 1995 • Utterances: 39

Defense attorney Barry Scheck attempts to impeach criminalist Dennis Fung using his grand jury testimony, which referenced exhibits showing a person pointing to a glove. Judge Ito rules that without the actual grand jury exhibits present, the impeachment cannot proceed as framed, since the transcript references 'Exhibit B' which is unavailable. A secondary dispute arises over whether Scheck can show a crime scene photograph cropped to conceal the victim's body.

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

# 2 THE COURT:

ALL RIGHT. WE'RE OVER AT THE SIDEBAR.

# 3 MR. SCHECK:

YOUR HONOR, GRAND JURY TESTIMONY INDICATES HERE MR. FUNG WAS SHOWN AN EXHIBIT, ALL RIGHT, PICTURE OF THE GLOVE, PICTURE OF PHOTOGRAPH B, AND THE ANSWER SAYS YES. THE GLOVE I'M REFERRING TO SHOWN IN THE PHOTOGRAPH, A PERSON IS POINTING TO IT. THERE'S ALSO A GLOVE AT THE BOTTOM LEFT-HAND CORNER OF PHOTOGRAPH C. IT SEEMS PRETTY CLEAR TO ME THAT MR. FUNG WAS SHOWN EITHER WHAT IS PEOPLE'S 55 IN EVIDENCE, WHICH IS A PICTURE OF DETECTIVE FUHRMAN POINTING TO A GLOVE, OR THE CLOSE-UP SHOT THAT I THINK HAS JUST BEEN MARKED.

# 4 THE COURT:

FOR THIS TO BE INCONSISTENT, YOU HAVE TO HAVE THE EXHIBIT FROM THE GRAND JURY.

# 5 MR. SCHECK:

I DON'T HAVE THE EXHIBIT FROM THE GRAND JURY. MAYBE MISS CLARK WILL RECOLLECT -- I'M NOT SURE THIS OBJECTION IS REALLY IN GOOD FAITH UNLESS THEY HAVE THOSE PICTURES. IT'S PRETTY CLEAR THERE'S NO OTHER PICTURE IN THIS CASE OF DETECTIVE -- ANYONE POINTING AT THE GLOVE.

# 6 THE COURT:

THE PROBLEM IS, WHEN YOU READ THE TRANSCRIPT, IT'S GOING TO SAY "EXHIBIT B," WHICH IS NOT HERE.

# 7 MR. SCHECK:

WELL, THE TRANSCRIPT REFERS TO A PERSON POINTING TO A GLOVE. THAT'S WHAT I ASKED HIM ABOUT; HAS HE EVER SEEN A PICTURE OF A PERSON POINTING OUT A GLOVE, IF THE PROSECUTION IN THIS CASE, IF THEY SHOWED HIM THE PICTURE, IF THERE IS ANY OTHER PICTURE.

# 8 THE COURT:

COUNSEL, WE HAVE A PRETTY STRICT RULE HERE. IF YOU'RE GOING TO USE A TRANSCRIPT TO IMPEACH THAT REFERS TO AN EXHIBIT, THAT EXHIBIT HAS TO BE HERE. THAT'S JUST COMMON SENSE. NOW, YOU HAVE THE OPPORTUNITY TO HAVE THE GRAND JURY EXHIBITS HERE. ALL YOU NEED TO DO IS ASK THE CLERK.

KEY QUOTE

# 9 MR. SCHECK:

ARE THEY HERE?

# 10 THE COURT:

I DON'T THINK THEY ARE HERE. WE HAVE TO GET THEM BECAUSE THEY'RE GRAND JURY EXHIBITS.

# 11 MR. COCHRAN:

ARE THEY HERE?

# 12 THE COURT:

WE'LL ASK MRS. ROBERTSON.

# 13 MR. SCHECK:

YOUR HONOR, I'LL DO IT WITH THE PEOPLE'S EXHIBIT.

# 14 MR. COCHRAN:

MAYBE WE CAN STIPULATE, YOUR HONOR.

# 15 THE COURT:

CAN WE STIPULATE.

# 16 MR. GOLDBERG:

PERHAPS, YOUR HONOR, THAT DIDN'T REALLY GO TO THE GRAVAMEN OF MY OBJECTION. THE REASON -- THE BASIC REASON WHY I WAS OBJECTING WAS THAT WHAT THE WITNESS SAID WAS -- HE WAS ASKED TWO QUESTIONS -- WAS, HE MAY HAVE SEEN SOME VERSION OF THIS PHOTOGRAPH AND HE DOESN'T RECALL WHETHER IT WAS THAT ONE.

# 17 THE COURT:

THAT'S WHAT HE SAID.

# 18 MR. GOLDBERG:

SO I JUST DON'T SEE IT AS BEING INCONSISTENT.

# 19 THE COURT:

BUT WE DON'T KNOW WHICH PHOTOGRAPH HE WAS SHOWN.

# 20 MR. SCHECK:

MAY I PROCEED IN THIS FASHION BECAUSE I WOULD REALLY LIKE TO GET ON WITH IT.

# 21 THE COURT:

PLEASE.

# 22 MR. SCHECK:

THE FOCUS OF MY EXAMINATION IS GOING TO BE ITEMS THAT ARE HERE, INCLUDING THIS PIECE OF PAPER. I WILL USE THE PEOPLE'S EXHIBIT AND CUT OFF THE BODY.

# 23 THE COURT:

YOU DON'T NEED TO CUT OFF THE BODY BECAUSE I'M NOT LETTING IT OUT. YOU'RE GOING TO HAVE TO SHOW IT TO THE JURY.

# 24 MR. SCHECK:

WHAT I'M REALLY ASKING FOR IS PERMISSION TO SHOW THIS PHOTOGRAPH FOCUSING ON THE AREA ON THE ELMO.

# 25 THE COURT:

HERE'S THE PROBLEM THOUGH. IN ORDER TO UNDERSTAND WHERE THIS IS, I THINK THEY NEED TO SEE THE FULL PHOTOGRAPH IS MY POINT. I WOULD SUGGEST YOU USE THE WHOLE PHOTOGRAPH.

# 26 MR. SCHECK:

YOUR HONOR, FOR OBVIOUS REASONS, I WOULD PREFER --

# 27 THE COURT:

YOU DO IT HOWEVER YOU WANT TO DO IT, BUT I'M JUST SAYING THAT --

# 28 MR. SCHECK:

NO, YOUR HONOR. WE'RE UP AT THE BENCH HERE BECAUSE I DON'T WANT TO MISLEAD ANYBODY. I DON'T WANT TO HAVE AN UNFAIR PRESENTATION ON THE OTHER HAND, A 352 PROBLEM.

KEY QUOTE

# 29 THE COURT:

COUNSEL, IF ALL YOU'RE DOING IS GOING AFTER, WHAT IS THIS, WHY WAS IT COLLECTED, BE MY GUEST.

# 30 MR. SCHECK:

THAT'S WHAT I'M DOING. I WANT TO EXHIBIT THAT WITHOUT SHOWING HER BODY.

# 31 THE COURT:

SHOW THE ORIGINAL TO HIM FIRST, AND THEN ON THE ELMO, CUT IT OFF.

# 32 MR. SCHECK:

THANK YOU.

# 33 MR. GOLDBERG:

YOUR HONOR, DID THE COURT RULE ON MY --

# 34 THE COURT:

YEAH. RIGHT NOW, I DON'T THINK THAT IT'S INCONSISTENT.

KEY QUOTE

# 35 MR. SCHECK:

MAY I MAKE A REQUEST TO HAVE THE GRAND JURY EXHIBITS?

# 36 THE COURT:

ALL RIGHT. THE PROBLEM IS, I HAVE TO SIGN AN ORDER. SEE, THE GRAND JURY IS AN INDEPENDENT ENTITY. WE CAN DO THAT LATER. I AM TELLING YOU, WE NEED A HALF DAY'S NOTICE BEFORE GETTING THEIR EXHIBITS AND WE HAVE TO INDIVIDUALLY ORDER EACH ONE.

# 37 MR. SCHECK:

I ONLY WANT THE ONES INDICATED HERE. THIS IS MY NOTICE.

# 38 THE COURT:

WELL, MR. SCHECK, YOU NEED TO LET THE CLERK KNOW.

# 39 (THE FOLLOWING PROCEEDINGS WERE HELD IN OPEN COURT:)

Temperature

procedural

Key Quotes (4)

Lance A. Ito

COUNSEL, WE HAVE A PRETTY STRICT RULE HERE. IF YOU'RE GOING TO USE A TRANSCRIPT TO IMPEACH THAT REFERS TO AN EXHIBIT, THAT EXHIBIT HAS TO BE HERE. THAT'S JUST COMMON SENSE.

Ito states the evidentiary standard blocking Scheck's impeachment attempt cold.

Barry Scheck

I'M NOT SURE THIS OBJECTION IS REALLY IN GOOD FAITH UNLESS THEY HAVE THOSE PICTURES.

Scheck accuses the prosecution of bad-faith objecting, escalating the sidebar's tone.

Barry Scheck

NO, YOUR HONOR. WE'RE UP AT THE BENCH HERE BECAUSE I DON'T WANT TO MISLEAD ANYBODY. I DON'T WANT TO HAVE AN UNFAIR PRESENTATION ON THE OTHER HAND, A 352 PROBLEM.

Scheck proactively raises Evidence Code 352 (prejudice vs. probative value) to explain why he wants to crop the photo — rare candor at the bench.

Lance A. Ito

RIGHT NOW, I DON'T THINK THAT IT'S INCONSISTENT.

Final ruling denying the impeachment as currently framed.

Evidence (3)

People's 55

Photograph of Detective Fuhrman pointing to the glove at Rockingham

discussed as probable match to grand jury Exhibit B; Scheck seeks to use it as substitute

Grand Jury Exhibit B (unavailable)

Photograph shown to Fung during grand jury — person pointing to a glove

referenced in transcript but physically absent from court; impeachment blocked on this basis

Informal

Crime scene photograph containing victim's body; Scheck wants to show only a cropped portion on the ELMO

discussed; judge allows cropped display on ELMO as long as full photo is shown to witness first

Notable Exchanges (3)

Barry Scheck•Lance A. Ito

Scheck argues the grand jury exhibit is inferrable from the transcript's description ('a person pointing to a glove'); Ito holds firm that the actual exhibit must be present, offering a practical workaround — Scheck can request the grand jury exhibits through the clerk.

strategic

Barry Scheck•Lance A. Ito

Scheck requests permission to show only a cropped portion of a crime scene photo to avoid displaying the victim's body. Ito suggests showing the full photo to the witness first, then using the cropped view on the ELMO for the jury.

procedural

Hank Goldberg•Lance A. Ito

Goldberg clarifies his objection was substantive — Fung's grand jury testimony wasn't inconsistent because he merely said he 'may have seen some version' of the photo and didn't recall. Ito agrees but notes the uncertainty about which photo was shown.

procedural

Credibility Attacks (1)

⚔ Dennis Fung

prior inconsistent statement (grand jury testimony)

Scheck attempts to show Fung was shown a photo of someone pointing at the Rockingham glove during grand jury proceedings, contradicting his trial testimony. Blocked by Ito due to absence of the actual grand jury exhibit.

Objections

1 objections (1 sustained, 0 overruled)

Proceeding 5618 • 39 utterances

Criminal Trial

Department 103