Cross-examination of Dennis Fung

📄 Cross-examination of Dennis Fung — Thursday, July 7, 1994

Address:

C:\DEPT103\PRELIMINARY\1994\JUL\7\CROSS-EXAMINATION-OF-DENNIS-FU.DOC

TRIAL

▲ Day 5 of 6

◀ Continued direct examination of Dennis Fung Redirect examination of Dennis Fung ▶

Witness: Dennis Fung
Examiner: Gerald Uelmen
Called by: Prosecution • Date: Thursday, July 7, 1994 • Lines: 272

Uelmen challenged Dennis Fung about the limits of presumptive blood testing and the collection, documentation, and custody of evidence from Rockingham and Bundy. Fung acknowledged that the field test was not specific to human blood, could not remember exactly where he swabbed the Rockingham glove, and had not recorded how much blood was removed from O.J. Simpson's reference vial.

# 1 THE COURT:

Mr. Uelmen.

# 2

CROSS-EXAMINATION

# 3

BY MR. UELMEN:

# 4 Q:

Mr. Fung, how many criminalists are employed by the Los Angeles Police Department?

# 5 A:

I believe there are approximately 50.

# 6 Q:

But you were the only criminalist directly responsible for the collection of evidentiary items at both locations in this case, that is at Rockingham and at Bundy; is that correct?

# 7 A:

I was in charge of both scenes as far as the evidence was concerned, yes.

# 8 Q:

All right. Were there any other criminalists, other than the person you were training, accompanying you?

# 9 A:

For a short time, one of the assistant lab directors was at the scene.

# 10 Q:

And who was that?

# 11 A:

That was chief forensic chemist Stephen Johnson.

# 12 Q:

And which scene was Mr. Johnson at?

# 13 A:

Mr. Johnson was at first the Rockingham scene and then at the Bundy scene.

# 14 Q:

Did he collect any of the evidence at either of those scenes?

# 15 A:

No, he did not.

# 16 Q:

His purpose was just to observe?

# 17 A:

Yes.

# 18 Q:

Are you able to tell whether a substance is blood just by looking at evidence?

# 19 A:

Not 100 percent. I've had a lot of experience searching for blood and collecting blood, so I've got a good idea of when blood is present, but I'm not infallible.

KEY QUOTE

# 20 Q:

Well, do you base that impression on the color?

# 21 A:

That is one of the factors, yes.

# 22 Q:

What are the other factors?

# 23 A:

The color is a factor, texture, the solubility of the blood, or stain at that point. There are other things, but that's mainly what I go by.

# 24 Q:

Well, solubility isn't something you observe by sight, is it?

# 25 A:

No, it is not.

# 26 Q:

You ascertain solubility by the testing you perform?

# 27 A:

Yes.

# 28 Q:

And do you use the same standard presumptive test whenever you do testing at the scene?

# 29 A:

There are other presumptive tests available to me and other criminalists, but that is the -- the phenolphthalein and hydrogen peroxide test is the one we usually use.

# 30 Q:

All right. And is that the test you used for all of the testing you did at these two locations on June 13th?

# 31 A:

Yes.

# 32 Q:

Could you describe how that test is done.

# 33 A:

Um, the -- first of all, a cotton swab is wet with distilled water. It is applied to the suspected stain and some of the stain should transfer onto that cotton swab. If that occurs, then phenolphthalein is applied to the swab, and I have -- through my experience I have noticed a slight greenish tinge appear at that point. After that occurs, then I will put hydrogen peroxide on it, and at that point an immediate pink color could show up if it is positive.

# 34 Q:

Is that referred to, then, as a two-stage phenolphthalein test?

# 35 A:

Yes, it is.

# 36 Q:

All right. Now, you do not perform on a routine basis, then, the three-stage phenolphthalein test.

# 37 A:

I'm not -- I don't know what that is. I don't know what the method is.

# 38 Q:

All right. Now, the test that you're describing, you mentioned, is not specific for blood. That is, other substances will also give a positive reaction; is that correct?

# 39 A:

Yes.

# 40 Q:

And these substances include a number of vegetable substances; isn't that correct?

# 41 A:

Yes.

# 42 Q:

For example, onions?

# 43 A:

I'm not familiar with all the plant-like materials that have -- that will give a false positive, but I know that some do.

# 44 Q:

Well, is there any category of vegetable substances that you're aware of that give positive substances or positive reactions?

# 45 A:

I just read it in the literature and things that pop out in my mind right now are cabbage, apple, I believe apricot, but I'm not --

# 46 Q:

How about garlic?

# 47 A:

I'm -- it may. I'd have to look it up in the literature.

# 48 Q:

Beet root?

# 49 A:

I don't remember.

# 50 Q:

cucumber?

# 51 A:

It may be.

# 52 Q:

Horseradish?

# 53 A:

Possibly.

# 54 Q:

Lettuce?

# 55 A:

I'd have to refer to the literature.

# 56 Q:

Potato?

# 57 A:

Again, I'd have to refer to the literature.

# 58 Q:

And, of course, the presumptive test that you described does not tell us whether blood is human blood, does it?

# 59 A:

That is correct.

# 60 Q:

That is a determination that can only be done in the laboratory?

# 61 A:

Yes.

# 62 Q:

So, of course, you didn't tell anyone that any of the testing you had done at either of these locations on June 13th established that any of these stains were human blood, did you?

# 63 A:

I did not state that.

# 64 Q:

That would mean then, of course, that we could not exclude the possibility of blood having come from a animal such as a dog, based on the tests that you did.

# 65 A:

That is possible.

# 66 Q:

Now, you've identified a blood stain on the photograph marked as exhibit 5-F, which was numbered with a tag that indicates number 8; is that correct?

# 67 A:

Yes.

# 68 Q:

Could you point to where the blood stain is on that photograph?

# 69 A:

It's right here.

# 70 Q:

All right. So you're pointing to the little round Mark in the center of the picture?

# 71 A:

Yes.

# 72 Q:

There appears to be another reddish Mark above that. Do you see that?

# 73 A:

Yes.

# 74 Q:

Is that a blood stain?

# 75 A:

No. That is a drop of water.

# 76 Q:

A drop of water?

# 77 A:

Yes.

# 78 Q:

Now, looking at a blood stain, you, of course, don't know the age of a particular stain. You don't know how long it has been there; is that correct?

# 79 A:

In general terms, you can tell if a stain is fresh or it's been subjected to weathering, so you can tell if it's an old stain or, you know, a fresh stain.

# 80 Q:

All right. What would you define as a fresh stain?

# 81 A:

A fresh stain would have a reddish appearance to it and an older stain would be brown or very dark.

# 82 Q:

And how quickly does a fresh stain become more brown in appearance?

# 83 A:

That depends on several factors. The more it is subjected to sunlight or heat, the faster it will turn that darker color.

# 84 Q:

I see. So once the sun comes out and things start warming up, it becomes important for you to collect your samples as quickly as possible, doesn't it?

# 85 A:

That's correct.

# 86 Q:

You are unable to ascertain in fact whether a particular set of stains were all contemporaneous, that is were all dropped at the same time, aren't you?

# 87 A:

They appeared to be relatively fresh stains. They did not have the darker --

# 88 Q:

Well, I'm not speaking of any particular stains at this point. Are you able to tell just by looking at stains whether they were all placed or dropped at the same time?

# 89 A:

Generally, no.

# 90 Q:

Now, let's refer first to the investigation you did at the Rockingham address. I believe the location of item number 9, the glove that you recovered at Rockingham --

# 91 A:

Yes.

# 92 Q:

-- that was particularly called to your attention by detective Vannatter?

# 93 A:

Yes.

# 94 Q:

And what did he ask you to particularly look for in your process of recovering that glove?

# 95 A:

At one point he asked me to see if there was any blood on the glove.

# 96 Q:

Anything else?

# 97 A:

That's -- he asked me to measure it and preserve the evidence also.

# 98 Q:

Anything else?

# 99 A:

That's all I can remember.

# 100 Q:

All right. Now, to ascertain whether there was blood on the glove, you did a presumptive test.

# 101 A:

Yes.

# 102 Q:

You applied a cotton swatch to the glove?

# 103 A:

No, a cotton swab.

# 104 Q:

Cotton swab?

# 105 A:

Like a Q-tip type of thing.

# 106 Q:

All right. What portion of the glove did you apply that swab to?

# 107 A:

I believe the -- whatever area was facing upwards, I looked for a dark -- darker area than appeared on the rest of the glove and applied the wet swab to that portion and performed the rest of the test.

# 108 Q:

Do you recall where that portion was?

# 109 A:

No, I don't.

# 110 Q:

Was the glove lying palm up or back up?

# 111 A:

I'd have to refer to the photographs.

# 112 Q:

All right. Let's do that.

# 113 MR. UELMEN:

I'm putting exhibit 4 up.

# 114 THE COURT:

I'm sorry, is that 4? My note was that 4 had been withdrawn.

# 115 MR. HODGMAN:

I believe that's 9, Your Honor.

# 116 THE COURT:

This is number 9.

# 117 MR. UELMEN:

Number 9? I'm sorry, it had two numbers on it. The grand jury exhibit is 4, but it's exhibit 9 here.

# 118 THE COURT:

Okay.

# 119

BY MR. UELMEN:

# 120 Q:

Have you located where you applied the swab to the glove?

# 121 A:

I don't recall where exactly I applied the swab to the glove.

KEY QUOTE

# 122 Q:

All right. Does the photo in exhibit 9-D depict the position of the glove as you found it?

# 123 A:

To the best of my recollection, yes.

# 124 Q:

Now, you mentioned that one reason you don't routinely do presumptive tests on all of the evidence that you encounter is because the manipulation of the evidence may lose valuable trace evidence, I believe you said.

# 125 A:

Yes.

# 126 Q:

All right. But you did manipulate the glove in order to do a presumptive test; is that correct?

# 127 A:

Yes, I did.

# 128 Q:

Now, were you -- or did you attempt to locate any stains or footprints in the location leading up to that glove?

# 129 A:

I looked for them. However, I did not find any.

# 130 Q:

Did you examine carefully for any disturbance in the pattern of debris leading up to the glove?

# 131 A:

I did not notice any discernible pattern of -- that I could differentiate from randomness.

# 132 Q:

Well, would that assist you in ascertaining whether someone had dropped the glove there or whether they had thrown the glove there from some other location?

# 133 A:

I don't really understand the question.

# 134 Q:

Would any disturbance in the debris pattern assist you in determining whether the glove had been dropped there or thrown there?

# 135 A:

In certain circumstances it might.

# 136 Q:

So it would become important, then, to preserve the pattern of the debris leading up to the glove, wouldn't it?

# 137 MS. CLARK:

Well, objection. That's an incomplete hypothetical. It assumes that no other disturbances occurred between the occurrence of dropping the glove and this witness arriving at the scene.

# 138 THE COURT:

Overruled. You can answer that if you're able to.

# 139 DENNIS FUNG:

Could you repeat the question?

# 140

BY MR. UELMEN:

# 141 Q:

Wouldn't it be important to preserve whatever patterns there might be in the debris leading up to the glove in order to ascertain whether it had been dropped or tossed?

# 142 A:

If that was a major factor in the case, it might be, yes.

# 143 Q:

And, of course, the more people traipsing back to look at the glove, the more disturbance there would be in the debris pattern, wouldn't there?

# 144 A:

Yes.

# 145 MS. CLARK:

Well, objection. That assumes that there is such a thing as a "debris pattern." Assumes a fact not in evidence.

# 146 THE COURT:

Overruled.

# 147

BY MR. UELMEN:

# 148 Q:

Now, the pattern that you referred to in the pavement proceeded in the direction of the entrance to the house?

# 149 A:

The pattern in the pavement?

# 150 Q:

Yes.

# 151 THE COURT:

Are you referring to the blood droplets on the driveway?

# 152

BY MR. UELMEN:

# 153 Q:

The drops that you observed in the driveway at Rockingham.

# 154 A:

Yes.

# 155 Q:

They did not proceed to the glove?

# 156 A:

No.

# 157 Q:

Now, you mentioned that you remained at the Rockingham premises until 10:00 a.m.?

# 158 A:

Yes.

# 159 Q:

So you were there approximately three hours?

# 160 A:

Just about, yes.

# 161 Q:

And you didn't arrive, then, at the 875 south Bundy premises until 10:15 in the morning?

# 162 A:

Yes.

# 163 Q:

And that was the first time anyone began collecting any evidence or swatches of blood at the premises at 875 south Bundy?

# 164 A:

To my knowledge, yes.

# 165 Q:

Now, your property report simply indicates the time that you arrived at the premises; is that correct?

# 166 A:

Yes.

# 167 Q:

It does not indicate the time you recovered any particular item at the premises?

# 168 A:

That's correct.

# 169 Q:

So your property report for the morning of June 13 at the Rockingham location just indicated 7:10 in the morning?

# 170 A:

That's when I arrived at the scene. Yes.

# 171 Q:

How long after you arrived did you take swatches of the drops that appeared to be blood in the driveway?

# 172 A:

That occurred around 9 to 9:30 in the morning.

# 173 Q:

Did the collection of this evidence follow the chronology of the numbers that you assigned to each item?

# 174 A:

Could you repeat the question?

# 175 Q:

Did your collection of these items correspond to the chronology of the numbers you assigned? For example, you would have collected item no. 1 first and item No. 7 after item no. 6?

# 176 A:

I believe so.

# 177 Q:

So you assign these numbers chronologically, as you collect each item?

# 178 A:

No. I will assign numbers to the items I am going to collect, measure them off and then, after measuring and documenting with photography is done, I will go ahead and start collecting.

# 179 Q:

So the last step is to go ahead and actually collect the samples after you have assigned all the numbers you intend to assign?

# 180 A:

Generally speaking, yes. That is not a hard and fast rule, though.

# 181 Q:

Now, you said when you arrived or after you arrived at the Bundy premises, you saw the bodies being removed; is that correct?

# 182 A:

Yes.

# 183 Q:

What time were the bodies removed?

# 184 A:

Approximately 10:30, around there.

# 185 Q:

15 minutes after you arrived?

# 186 A:

That's a rough approximation.

# 187 Q:

Now, when you collect the samples on the damp swatches -- a Yes?

# 188 Q:

-- of the drops you suspect may be blood -- a Yes?

# 189 Q:

-- do you take more than one swatch of each? a If the sample is large enough, I will try to collect a large sample, which may be more than one or two, or just maybe a thread if it is not very much. It depends on the size of the sample.

# 190 Q:

So if you have a larger sample, will you get two or three swatches of the same sample?

# 191 A:

Usually, yes.

# 192 Q:

Did you measure the distance between the drops that you located on the pavement leading to the rear of the premises?

# 193 A:

I measured the drops that I collected. Yes, I did.

# 194 Q:

all right. Referring, then, to what has been numbered 112, 113, 114 and 115 on exhibit No. 19, could you tell us the distance between each of those stains?

# 195 A:

Yes.

# 196 Q:

Could you tell us how far apart they were?

# 197 A:

I can give you the measurements that I have taken. I am not really great at math; so I don't want to do a subtraction right now.

# 198 Q:

OKAY.

# 199 A:

Photo i.d. 112, which is item 47, was collected approximately 44 feet west of the west curb of Bundy and 10 inches north of the north wall of the condo or apartment or whatever it is.

# 200 Q:

OKAY.

# 201 A:

Photo i.d. 113, which is item No. 48, was recovered 56 feet west of the west curb of Bundy and 3 feet north of the north -- let's see -- north of the north curb, which probably means wall, or the side of the house.

# 202 Q:

You have "curb" in your notes?

# 203 A:

Yes, I do.

# 204 Q:

all right.

# 205 A:

Photo i.d. 114 is -- was located 86 feet west of the west curb of Bundy and 1 foot 10 inches north of the north wall; and item -- photo i.d. 115, which is item No. 50, was recovered 38 feet 8 inches east of the west edge of the rear driveway and 1 foot 10 inches north of the north wall of the building.

# 206 Q:

all right. Now, you are using two different reference points. No. 112, 113 and 114 were measured from their distance from Bundy?

# 207 A:

Yes.

# 208 Q:

And 115 was measured from its distance from the driveway?

# 209 A:

Yes.

# 210 Q:

How far apart were 114 and 115?

# 211 A:

We have gone back with a forensic draftsman, and that is all measured off now; but I don't have that in my notes.

# 212 Q:

Now, in the photos that appear in the exhibit, there appears to be a variation in the color of the spots, or drops, that are numbered on that exhibit?

# 213 A:

There is a slight variation, yes.

# 214 Q:

Where do you see the variation?

# 215 A:

In photograph "e," with the marker 114, it appears a slightly different color from 115 in the photograph.

# 216 Q:

Would that suggest to you the possibility of a different age of that particular mark?

# 217 A:

I would tend to put that more on the effect of photography than I would an actual difference in color.

# 218 Q:

Isn't the purpose of the photography to uniformly record the appearance of the evidence that you encounter at the scene?

# 219 A:

Theoretically, yes; but in practice color is variable from photograph to photograph.

KEY QUOTE

# 220 Q:

Well, aren't the photographers instructed to photograph each item of evidence from the same angle?

# 221 A:

Generally, yes.

# 222 Q:

And use the same lighting conditions for each item of evidence?

# 223 A:

Generally, yes.

# 224 Q:

Now, with respect to the vial of blood labeled "O.J. simpson" that you submitted to the criminologist in serology --

# 225 A:

The criminalist.

# 226 Q:

Criminalist. I'm sorry. -- Who was the criminalist to whom you submitted that?

# 227 A:

I believe I gave it to Colin Yamauchi.

# 228 Q:

Now, is this the same Colin Yamauchi who gave you the blood samples from the victims?

# 229 A:

Yes.

# 230 Q:

Why would you be giving him samples when he is giving you samples of others?

# 231 A:

On June 13 I received a vial of blood with O.J. Simpson's name on it from detective Vannatter.

# 232 Q:

Uh-huh.

# 233 A:

And on June 15, two days later, detective Vannatter gave Colin the two samples of blood from the coroner's office; and, in turn, Colin then gave me the samples to book.

# 234 Q:

OKAY. But Colin did not give you the sample of Mr. Simpson's blood back; is that correct?

# 235 A:

He gave me back the sample from -- of Mr. Simpson's blood on the same day that I gave it to him, which was on June 14, 1994.

# 236 Q:

What was your purpose in giving it to him, then, if he immediately gave it back to -- a He took an aliguot from that sample and then gave me the remaining portion of the vial.

# 237 Q:

He took a what?

# 238 A:

A small sample, aliquot.

# 239 Q:

What is the word you referred to?

# 240 A:

aliquot.

# 241 Q:

You want to spell that for us?

# 242 A:

A-l-i-q-u-a-t (sic), I believe, is the spelling.

# 243 Q:

And did you record then the amount of blood in the vial when you gave it to Mr. Yamauchi and the amount when you got it back?

# 244 A:

No, I did not.

# 245 Q:

So you don't know how much you took?

# 246 A:

No, I don't.

# 247 Q:

And you don't know how much was in the vial whenever you turned it over to someone else?

# 248 A:

It appeared to be pretty much full.

# 249 Q:

And who did you turn it over to?

# 250 A:

At what point?

# 251 Q:

After you got it from Mr. Yamauchi.

# 252 A:

Once I had labeled it and assigned it an item number, I then booked it into our property -- property division, our S.I.D. property.

# 253 Q:

What does S.I.D. stand for?

# 254 A:

Scientific investigation division.

# 255 Q:

And is that sample then kept under refrigeration?

# 256 A:

Yes, it is.

# 257 Q:

Were all of the samples you took kept under refrigeration?

# 258 A:

I booked them to be refrigerated, yes.

# 259 Q:

All the swatches you collected?

# 260 A:

Swatches I booked to be frozen.

# 261 Q:

Thank you. mr.uelmen: If I could have just a moment.

# 262 THE COURT:

Yes.

# 263

BY mr. uelmen:

# 264 Q:

Now, do you maintain some sort of inventory of all of the items you collected?

# 265 A:

Yes, and I prepare a property report for that purpose.

# 266 Q:

And is the property report, then, the last control you have over the exhibits?

# 267 A:

Once I book them into property, then my portion of the chain of custody ends there until I may be asked to go back and analyze something. Then it starts up again.

# 268 Q:

And have you been asked to go back and analyze some of the items you collected?

# 269 A:

No; No real scientific analysis; just to -- I have been asked to go back and describe some of the evidence a little bit better for the detectives, and that's about it.

# 270 Q:

Have you encountered any situations where any of the evidence you recovered was missing?

# 271 A:

I don't recall anything at this point in time, no.

# 272 MR. UELMEN:

Thank you. Nothing further.

Temperature

procedural

Key Quotes (5)

Dennis Fung

I've had a lot of experience searching for blood and collecting blood, so I've got a good idea of when blood is present, but I'm not infallible.

Fung acknowledged that visual identification of blood is based on experience and is not certain.

Dennis Fung

That is possible.

Fung conceded that his scene tests could not exclude the possibility that suspected blood came from an animal such as a dog.

Dennis Fung

I don't recall where exactly I applied the swab to the glove.

This exposed a significant documentation and memory gap concerning the testing of the Rockingham glove.

Dennis Fung

Theoretically, yes; but in practice color is variable from photograph to photograph.

Fung explained why apparent color differences among photographed stains could not reliably establish different ages.

Dennis Fung

No, I did not.

Fung admitted that he did not record the amount of Simpson's blood before and after Yamauchi removed a sample.

Evidence (14)

Exhibit 5-F

Photograph showing a suspected blood stain identified by tag number 8, along with a second reddish mark Fung identified as a drop of water.

displayed and discussed

Informal

The glove recovered at Rockingham as item number 9; Fung tested a darker area for blood but could not remember the precise location swabbed.

discussed and challenged

Exhibit 9

Photographic exhibit depicting the Rockingham glove; it also bore grand-jury exhibit number 4, but the court identified it as exhibit 9 in this proceeding.

displayed and clarified

Exhibit 9-D

Photograph depicting the glove in the position where Fung recalled finding it.

discussed

Informal

Drops appearing to be blood on the Rockingham driveway, collected as swatches around 9:00 to 9:30 a.m.

discussed and challenged

Exhibit 19

Photographic exhibit showing Bundy stains numbered 112 through 115, corresponding to evidence items 47 through 50; their measurements and apparent color differences were examined.

discussed and challenged

+ 8 more

Notable Exchanges (4)

Gerald Uelmen•Dennis Fung

Uelmen methodically elicited that the phenolphthalein test was only presumptive, could react to vegetable substances, and could not identify blood as human.

revealing

Gerald Uelmen•Marcia Clark•Kathleen Kennedy-Powell•Dennis Fung

Clark twice objected to questions about whether people walking near the Rockingham glove could disturb a potentially informative debris pattern; Judge Kennedy-Powell overruled both objections.

strategic

Gerald Uelmen•Dennis Fung

Uelmen pressed Fung about the glove's handling and surrounding scene; Fung admitted manipulating the glove for testing, could not identify the swabbed area, and found no footprints or discernible debris pattern leading to it.

challenging

Gerald Uelmen•Dennis Fung

Uelmen traced Simpson's blood vial through Vannatter, Yamauchi, Fung, and property storage, revealing that no measurement documented how much blood Yamauchi removed.

revealing

Credibility Attacks (3)

⚔ Dennis Fung

limitations of forensic testing

Uelmen established that the presumptive phenolphthalein test can react to non-blood substances, cannot identify human blood, and could not exclude animal blood.

⚔ Dennis Fung

evidence-handling and memory challenge

Uelmen questioned Fung's handling of the Rockingham glove, emphasizing that he manipulated it for testing, could not recall where he swabbed it, and did not preserve or document any surrounding debris pattern that might show how it arrived there.

⚔ Dennis Fung

documentation and chain-of-custody challenge

Uelmen highlighted gaps and inconsistencies in documentation, including the absence of collection times, different reference points for stain measurements, a note saying "curb" where Fung believed it meant "wall," and no record of the volume removed from Simpson's blood vial.

Objections

2 objections (0 sustained, 2 overruled)

Proceeding 9148 • 272 lines • Prosecution witness

Preliminary Trial

Department 103