Sidebar: hearsay and relevance

📄 Sidebar: hearsay and relevance — Wednesday, April 5, 1995

Address:

C:\DEPT103\CRIMINAL\1995\APR\5\SIDEBAR-HEARSAY-AND-RELEVANCE.DOC

TRIAL

▲ Day 52 of 167

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

Date: Wednesday, April 5, 1995 • Utterances: 12

Judge Ito opens the sidebar by imposing a two-lawyer limit per side. Scheck then argues that questions posed to Dennis Fung about instructions he received are not hearsay because they are offered not for the truth of the matter asserted, but to show Fung's state of mind and explain his subsequent conduct at Rockingham and Bundy. Goldberg challenges the relevance of Fung's state of mind on the specific issue of where and when he went.

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

# 2 THE COURT:

ALL RIGHT. ALSO, COUNSEL -- WE ARE AT THE SIDE BAR -- FROM THIS POINT ON WE ARE GOING TO HAVE A TWO-LAWYER LIMIT ON SIDE BARS PER SIDE. THERE ARE TOO MANY LAWYERS UP HERE.

# 3 MS. CLARK:

RIGHT.

# 4 THE COURT:

MR. SCHECK.

# 5 MR. SCHECK:

I THINK THAT WHAT I'M TRYING TO ELICIT FROM THE WITNESS, THESE QUESTIONS ARE NOT HEARSAY, THEY ARE NOT BEING OFFERED FOR THE TRUTH OF THE MATTER ASSERTED. THEY ARE ONLY BEING OFFERED FOR THE FACT THAT IT WAS SAID TO THIS WITNESS IN TERMS OF INSTRUCTIONS OF WHAT HE WAS SUPPOSED TO DO NEXT AND WHAT HE WAS --

# 6 THE COURT:

WHAT IS YOUR EVIDENCE CODE EXCEPTION?

# 7 MR. SCHECK:

I DON'T THINK IT IS -- IT IS WHATEVER THE EXACT EVIDENCE CODE IS FOR HEARSAY IN THE STATE OF CALIFORNIA. I'M PRETTY SURE THAT THIS IS NOT A STATEMENT BEING OFFERED FOR THE TRUTH OF THE MATTER ASSERTED; IT IS ONLY BEING ELICITED FOR THE FACT THAT IT WAS SAID TO MR. FUNG AS TO HIS STATE OF MIND AS TO WHAT HE WAS SUPPOSED TO DO IN PROCEEDING WITH HIS INVESTIGATION AT ROCKINGHAM AND THEN HIS SUBSEQUENT INVESTIGATION AT BUNDY.

KEY QUOTE

# 8 THE COURT:

SO YOU ARE SAYING THAT THIS IS A SUBSEQUENT-CONDUCT-IN-LIGHT-OF-WHAT-WAS-SAID-TO-HIM EXCEPTION?

KEY QUOTE

# 9 MR. SCHECK:

I THINK THAT IS.

# 10 THE COURT:

ALL RIGHT. MR. GOLDBERG.

# 11 MR. GOLDBERG:

I DON'T UNDERSTAND THE RELEVANCY IN THAT CASE. WELL, I CAN UNDERSTAND MR. FUNG'S STATE OF MIND BEING RELEVANT ON CERTAIN ISSUES, IT IS, BUT AT THIS PARTICULAR ISSUE AS TO WHAT HIS STATE OF MIND WAS WITH RESPECT TO WHERE HE WAS GOING TO GO AND WHEN, I DON'T SEE WHY THAT IS RELEVANT.

# 12 MR. SCHECK:

ALSO, YOUR HONOR, I WOULD POINT OUT THAT I THINK WE'VE HAD PREVIOUS TESTIMONY FROM DETECTIVE LANGE THAT WHEN HE LEFT THE CRIME SCENE AT ROCKINGHAM HE WENT TO BUNDY, THAT IT WAS HIS EXPECTATION THAT THE CRIMINALISTS WOULD BE FOLLOWING SOON AFTER. AND I WANT TO EXPLORE WITH THIS WITNESS WHETHER OR NOT ANYBODY EVER TOLD HIM, NOT FOR THE TRUTH OF THE MATTER ASSERTED, FOR THE FACT OF WHETHER OR NOT IT WAS SAID. I DON'T THINK THAT THOSE TYPES OF STATEMENTS ARE HEARSAY AND I REALLY NEEDED TO ESTABLISH WHAT HE DID.

Temperature

procedural

Key Quotes (3)

Lance A. Ito

FROM THIS POINT ON WE ARE GOING TO HAVE A TWO-LAWYER LIMIT ON SIDE BARS PER SIDE. THERE ARE TOO MANY LAWYERS UP HERE.

Ito asserting control over sidebar conduct, a recurring management issue in this trial.

Barry Scheck

I DON'T THINK IT IS -- IT IS WHATEVER THE EXACT EVIDENCE CODE IS FOR HEARSAY IN THE STATE OF CALIFORNIA.

A notably candid admission that Scheck did not have the specific evidence code ready, slightly undermining his argument.

Lance A. Ito

SO YOU ARE SAYING THAT THIS IS A SUBSEQUENT-CONDUCT-IN-LIGHT-OF-WHAT-WAS-SAID-TO-HIM EXCEPTION?

Ito helpfully reframes Scheck's argument into a recognizable legal doctrine, essentially doing the advocacy work for him.

Evidence (2)

Informal

Prior testimony from Detective Lange that he expected criminalists to follow him from Rockingham to Bundy

referenced by Scheck to establish context for Fung's instructions

Informal

Instructions communicated to Dennis Fung directing him where to go during his investigation

subject of disputed questioning

Notable Exchanges (2)

Barry Scheck•Lance A. Ito

Scheck struggled to cite the specific California Evidence Code provision, and Ito stepped in to characterize the exception as 'subsequent-conduct-in-light-of-what-was-said-to-him,' which Scheck accepted.

strategic — Ito effectively bailing out Scheck's argument

Hank Goldberg•Barry Scheck

Goldberg challenged the relevance of Fung's state of mind regarding his movements; Scheck countered by tying it to Lange's prior testimony about expected sequencing of the investigation.

procedural

Light Moments (1)

Barry Scheck

Scheck openly admitted he did not know the exact evidence code citation mid-argument: 'IT IS WHATEVER THE EXACT EVIDENCE CODE IS FOR HEARSAY IN THE STATE OF CALIFORNIA.'

Credibility Attacks (1)

⚔ Dennis Fung

conduct impeachment via state of mind

Scheck sought to explore whether Fung was properly instructed and whether he followed those instructions, implying potential procedural failures in his movement between Rockingham and Bundy crime scenes.

Objections

1 objections (0 sustained, 0 overruled)

Proceeding 5601 • 12 utterances

Criminal Trial

Department 103