Sidebar: secondary transfer

📄 Sidebar: secondary transfer — Wednesday, April 5, 1995

Address:

C:\DEPT103\CRIMINAL\1995\APR\5\SIDEBAR-SECONDARY-TRANSFER.DOC

TRIAL

▲ Day 52 of 167

◀ Cross-examination of Dennis Fung (afternoon, part 3) Cross-examination of Dennis Fung (afternoon, part 4) ▶

Date: Wednesday, April 5, 1995 • Utterances: 16

The prosecution objected to a hypothetical question Barry Scheck posed to a criminalist expert regarding secondary transfer of evidence, arguing it lacked foundation and was really closing argument aimed at the jury rather than genuine examination. Judge Ito overruled the objection, and then — unusually — shared his own experience as a trial lawyer to explain why looking at the jury while asking questions is a legitimate technique, not misconduct.

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

# 2 THE COURT:

WE'VE OVER AT SIDEBAR. MR. GOLDBERG, WHAT'S YOUR OBJECTION?

# 3 MR. GOLDBERG:

YOUR HONOR, MY OBJECTION IS THE SAME, THAT IT CALLS FOR SPECULATION, IMPROPER OPINION. THERE IS NO FOUNDATION FOR THE HYPOTHETICAL. BUT IN ADDITION TO THAT, THE MANNER OF THE CROSS-EXAMINATION IS SUCH THAT COUNSEL APPEARS TO BE TURNING TO THE JURY AND IS NOT REALLY PARTICULARLY CONCERNED ABOUT ELICITING INFORMATION FROM THE WITNESS, BUT GETTING HIS POINT ACROSS TO THE JURY IN A MANNER THAT I JUST DON'T FEEL IS PROPER.

# 4 MR. COCHRAN:

WELL --

# 5 MR. GOLDBERG:

IT'S MORE OF A CLOSING ARGUMENT THAN A CROSS.

KEY QUOTE

# 6 MR. COCHRAN:

YOU WANT TO RESPOND?

# 7 (DISCUSSION HELD OFF THE RECORD BETWEEN DEFENSE COUNSEL.)

# 8 MR. SCHECK:

YOUR HONOR, I THINK THIS IS A PROPER HYPOTHETICAL QUESTION GIVEN THIS WITNESS' EXPERTISE AS A CRIMINALIST. I THINK IT'S PRETTY CLEAR.

# 9 THE COURT:

MR. GOLDBERG, ANY RESPONSE?

# 10 MR. GOLDBERG:

NO. MY OBJECTION IS THE SAME, YOUR HONOR, BECAUSE THERE'S NO FOUNDATION FOR THE OPINION AND IT'S NOT AN EXPERT OPINION. IT'S JUST GETTING A POINT ACROSS TO THE JURY. COULD THIS CONCEIVABLY HAVE HAPPENED, YEAH, A LOT OF THINGS COULD HAVE HAPPENED.

# 11 MR. SCHECK:

THIS IS THE WHOLE POINT OF ASKING EXPERTS HYPOTHETICALS. I THINK I'VE LAID A PROPER FOUNDATION IN TERMS OF HIS KNOWLEDGE OF TRACE EVIDENCE AND SECONDARY TRANSFER.

# 12 THE COURT:

THE OBJECTION IS OVERRULED. AND AS FAR AS MR. SCHECK, WHEN HE MAKES -- WHEN HE ASKS THE QUESTION AND LOOKS AT THE JURY. THAT'S A MATTER OF TRIAL TECHNIQUE, WHETHER OR NOT YOU WANT TO LOOK AT THE JURORS AND SEE WHAT THEY'RE DOING WHEN YOU ASK QUESTIONS, MAKING EYE CONTACT WITH THE JURORS. IT'S A TECHNIQUE OF TRIAL PRACTICE THAT I'VE USED MYSELF. AND I'VE MADE IT A POINT TO ALWAYS WATCH WHAT THE JURY IS REACTING TO WHEN I ASKED A QUESTION IF IT WAS IMPORTANT. SO --

# 13 MR. GOLDBERG:

IF THAT'S WHAT THE COURT VIEWS WHAT HAPPENS.

# 14 THE COURT:

I THINK IT'S A LITTLE FLAMBOYANT, MORE SO THAN I WOULD DO, BUT THEN IT'S DEPENDENT ON WHAT'S INVOLVED WITH HERE, AND YOU'VE GOT TO GO WITH WHAT MAKES YOU COMFORTABLE.

KEY QUOTE

# 15 MR. COCHRAN:

OFF THE RECORD.

# 16 (A CONFERENCE WAS HELD AT THE BENCH, NOT REPORTED.)

Temperature

procedural

Key Quotes (4)

Hank Goldberg

IT'S MORE OF A CLOSING ARGUMENT THAN A CROSS.

Encapsulates the prosecution's recurring frustration with Scheck's theatrical cross-examination style throughout the civil trial.

Lance A. Ito

IT'S A TECHNIQUE OF TRIAL PRACTICE THAT I'VE USED MYSELF. AND I'VE MADE IT A POINT TO ALWAYS WATCH WHAT THE JURY IS REACTING TO WHEN I ASKED A QUESTION IF IT WAS IMPORTANT.

Highly unusual moment — judge draws on his own litigation experience to validate defense technique, essentially endorsing Scheck's showmanship from the bench.

Lance A. Ito

I THINK IT'S A LITTLE FLAMBOYANT, MORE SO THAN I WOULD DO, BUT THEN IT'S DEPENDENT ON WHAT'S INVOLVED WITH HERE, AND YOU'VE GOT TO GO WITH WHAT MAKES YOU COMFORTABLE.

Ito mildly chides Scheck's style while fully permitting it — a characteristically blunt but fair ruling.

Hank Goldberg

COULD THIS CONCEIVABLY HAVE HAPPENED, YEAH, A LOT OF THINGS COULD HAVE HAPPENED.

Goldberg inadvertently concedes the possibility of secondary transfer while arguing against the question — undermining his own objection.

Evidence (1)

Informal

Secondary transfer of trace evidence — the subject of the hypothetical posed to the criminalist expert witness

discussed

Notable Exchanges (2)

Hank Goldberg•Lance A. Ito

Goldberg objects that Scheck is grandstanding to the jury; Ito overrules and defends jury-watching as standard trial technique, drawing on his own experience as a litigator.

revealing

Barry Scheck•Hank Goldberg

Scheck argues he has laid proper foundation in trace evidence and secondary transfer for a legitimate expert hypothetical; Goldberg maintains the objection without new argument.

strategic

Light Moments (1)

Lance A. Ito

Ito calls Scheck's jury-gazing style 'a little flamboyant' but says trial lawyers should 'go with what makes you comfortable' — an unexpectedly collegial and self-disclosing moment from the famously terse judge.

Objections

1 objections (0 sustained, 1 overruled)

Proceeding 5620 • 16 utterances

Criminal Trial

Department 103