Department no. 103 Hon. Lance A. Ito, Judge

APPEARANCES: (Appearances as heretofore noted.)

(Janet M. Moxham, CSR no. 4855, official reporter.)

(Christine M. Olson, CSR no. 2378, official reporter.)

(The following proceedings were held in open Court, out of the presence of the jury:)

THE COURT: Good morning, counsel. Back on the record in the Simpson matter. Mr. Simpson is again present before the Court with his counsel, Mr. Scheck, Mr. Neufeld, Mr. Blasier. The People are--Mr. Cochran. The People are represented by Mr. Darden and Mr. Goldberg. The jury is not present. Counsel, late yesterday afternoon I received a package of test materials from the LAPD SID lab, some new lab notes or whatever that I've copied, and Mr. Goldberg, Mr. Scheck, if you will approach, I will give you each a copy of these.

(Brief pause.)

THE COURT: All right. Counsel, anything else we need to discuss before we invite the jury to join us?

MR. SCHECK: Yes, your Honor. I filed a letter with the Court yesterday, and counsel, about the production of handwritten notes of witness statements, and I was informed by Mr. Darden and--I had an opportunity briefly to speak with Mr. Douglas, and I was told that there had been an agreement that, umm, as a general matter, umm, handwritten notes from either side of witnesses, umm, were not required to be produced. Umm--but as I indicated in my letter, however, I have one particular concern that I think goes beyond just the general agreement and that is, umm, I'm concerned that with respect to the communications between, umm, Miss Clark and Mr. Fung with respect to this, umm, visit to the Bronco on July 6th, because I think the state of the testimony is, is that he has testified that she sent him to look for red stains on the Bronco on July 6th--

THE COURT: The question is are there any notes in existence regarding that.

MR. SCHECK: Yes. And if there are--and some representation with respect to, umm, when it was that he reported to her, if that happened, and--

THE COURT: I thought that we covered this already.

MR. SCHECK: I'm talking about from the Prosecution. In other words, I know what the witness said and the witness' testimony I think is contradicted and there is a contradictory statement to the investigator from the L.A. Police commission. All that I'm saying is, is that I think there is an obligation to correct the testimony or to reveal impeaching testimony. And I don't want to be in a position where, umm, they have looked at their notes or they know about what it is and they have made some decision that they really don't have to reveal it. I think that this is a sufficiently troubling area that we ought to have something stated on the record so we know what the Prosecution's position is.

THE COURT: Mr. Darden.

MR. DARDEN: Your Honor, we are well aware of our responsibilities under Brady with regard to impeachment material, and as for the agreement between Miss Clark and Mr. Cochran and Mr. Shapiro regarding attorney's notes, there have been many, many occasions during the trial when we would have liked to have had Defense counsel's notes. We have lived up to our obligations under that agreement and this is an issue I thought that we were going to discuss this afternoon with Mr. Cochran. That is the issue regarding our prior agreement that attorney's notes will not be discoverable in this case.

THE COURT: Well, my inquiry is simply this, counsel: Are there any notes or reports regarding the visit to the Bronco by Mr. Fung at the request of Miss Clark during the preliminary hearing, roughly July 6th or 7'ish. That is the only question that I have at this point.

MR. DARDEN: I am not aware of any notes, but still, we do have an agreement here. I expect Defense counsel will live up to that agreement.

THE COURT: I understand. I'm not asking for District Attorney notes regarding interviews of witnesses or anything of that nature at this point. I'm just asking are there any reports generated by Mr. Fung or any written materials regarding that?

(Discussion held off the record between the Deputy District Attorneys.)

MR. DARDEN: Other than the analyzed evidence report, which has already been introduced, we know of no others, but we will check.

THE COURT: All right. I will accept that representation.

MR. SCHECK: Your Honor, my--my application is putting aside notes, umm--and I realize Miss Clark isn't here, so maybe we should just move on and we could take it up at a break, although I would like to finish with this witness and I know the Court does.

THE COURT: No, we are going to finish today.

MR. SCHECK: I know.

THE COURT: All right. Well, then let's proceed. When Miss Clark arrives at the first morning break, we will inquire of her and we will do it that way. All right. Let's have the jurors, please.

MR. GOLDBERG: Your Honor, just one other matter.

THE COURT: Hold on.

MR. GOLDBERG: The Court probably doesn't want to take this up right now, but counsel has been asking me about the order of witnesses and I have been trying to tell them, they seem to ask me almost everyday, but one of the hitches is we have the issue as to the scope of Mr. Yamauchi's testimony and we tried to resolve it informally and not been able to, and we may significantly change our strategy in terms of how we are going to put on the scientific portion of the case depending on the resolution of that issue. I brought it up earlier, but at some point that should be resolved.

THE COURT: All right. So who is next?

MR. GOLDBERG: Well, next is going to be Criminalist Mazzola, so I know that, and following that will probably be the tow truck driver, Mr. Wilson, the photographer, but at that point, that is the point at which we would reach Mr. Yamauchi, and from that point forward I can't say until that issue is resolved.

THE COURT: All right. Well, I see us not getting to those issues for perhaps the rest of the week.

MR. GOLDBERG: I don't know.

THE COURT: All right. Let's have the jury, please.

(Brief pause.)

(The following proceedings were held in open Court, in the presence of the jury:)

THE COURT: All right. Thank you, ladies and gentlemen. Please be seated. Let the record reflect we have now been rejoined by all the members of our jury panel. Mr. Fung, would you resume the witness stand.

Dennis Fung, the witness on the stand at the time of the evening adjournment, resumed the stand and testified further as follows:

THE COURT: Mr. Dennis Fung is on the witness stand undergoing recross examination by Mr. Scheck. Good morning, Mr. Fung.

MR. FUNG: Good morning.

THE COURT: You are reminded you are still under oath, sir. And Mr. Scheck, you may conclude your recross examination.

MR. SCHECK: Thank you, your Honor. Good morning ladies and gentlemen.

THE JURY: Good morning.

RECROSS-EXAMINATION (RESUMED) BY MR. SCHECK

MR. SCHECK: Good morning, Mr. Fung. How are you, sir?

MR. FUNG: Good morning.

MR. SCHECK: Mr. Fung, let's turn to the question of the socks that Mr. Goldberg asked you about on redirect examination. Now, is one of the habits you have, when you testify, umm, to use a selective memory?

MR. FUNG: No.

MR. SCHECK: Umm, do you have a habit of being vague when you think it is going to help the Prosecution's case?

MR. FUNG: No.

MR. SCHECK: Do you have a habit of being specific when you think it is going to help the Prosecution's case?

MR. FUNG: I answer the questions to the best of my ability.

MR. SCHECK: Now, you testified yesterday--you were asked: "Did do you any close visual examination of the socks when you picked them up?" And you answered: "No, not a close one." Do you recall that?

MR. FUNG: Yes.

MR. SCHECK: Now, you have a specific recollection that you did not look very carefully at those socks?

MR. FUNG: I did not look at those socks for blood because they were dark and--I mean, a specific--

MR. SCHECK: May I--

MR. FUNG: --laboratory type analysis was not done at that scene for the presence of blood.

MR. SCHECK: My question to you is a simple one, sir. Do you have in your mind a specific recollection that you did not perform a careful visual examination of those socks?

MR. FUNG: Yes.

MR. SCHECK: Now, you went there looking for--on Rockingham on the afternoon of June 13th you were looking for bloody clothes?

MR. FUNG: Yes.

MR. SCHECK: And the socks you say were out of place?

MR. FUNG: Yes, they were.

MR. SCHECK: And you were concerned, were you not, that they might have been socks worn by the assailant? That was the Prosecution's theory?

MR. FUNG: That was a possibility--

MR. GOLDBERG: Your Honor, I object to that. I didn't think we would get into the People's theory.

THE COURT: Overruled.

MR. FUNG: That was a possibility.

MR. SCHECK: And do you think, sir, that it would be very helpful to the Prosecution's position for you to remember a careful, visual examination of the socks?

MR. GOLDBERG: Your Honor, I object to that. May we approach?

THE COURT: Speculation. Sustained.

MR. SCHECK: Now, you were asked some questions on redirect examination about the timing of your collection of the sock?

MR. FUNG: Yes.

MR. SCHECK: And you were asked by MR. GOLDBERG: "Question: Now, when you were at the Rockingham location you saw a pair of socks in the master bedroom? "Answer: Yes. "Question: And can you tell us whether you collected those between the collection of item 12 and item 14 by looking at your crime scene identification checklist? "Answer: It was collected within that time frame. I don't know if it was collected in between those two times, though. "Question: What are the two time frames? What is the time frame for 12? "Answer: The time frame is 4:30. "Question: And that was the stain in the foyer? "Answer: Yes.

"Question: And what time is it--what is the time for 14? "Answer: The time for 14 is 4:40. "Question: And that was the stain in the master bathroom? "Answer: Yes." And then a little later Mr. Goldberg came back to you and he asked you: "Question: Now, just--I just want to make sure I understand your testimony. "Do you know whether you collected--whether you collected 13"--that is the socks, right?

MR. FUNG: Yes.

MR. SCHECK: --"In between 12 and 14? "Answer: I--I know it was in that time frame, but I don't specifically recall, nor can I tell from my notes if it were. "Question: For sure? "Answer: For sure. "Question: But it was in that general time frame? "Answer: Yes." Do you remember being asked those questions and giving those answers?

MR. FUNG: Yes.

MR. SCHECK: Now, have you--that was different, was it not, than your testimony on direct and cross-examination?

MR. GOLDBERG: Calls for speculation.

THE COURT: Sustained.

MR. SCHECK: On direct examination--

MR. GOLDBERG: Your Honor, perhaps counsel can give me page and line.

THE COURT: Page and line.

(Brief pause.)

MR. SCHECK: I have the transcript but I don't have the page.

(Discussion held off the record between Defense counsel.)

THE COURT: Maybe Mr. Blasier can do a word search.

MR. SCHECK: That is exactly it. These computers, you print them out and sometimes you don't get the exact page.

(Brief pause.)

THE COURT: Is there something else we can move on to?

MR. SCHECK: No, I think actually--21575, line 9.

MR. GOLDBERG: Hold on a second.

(Brief pause.)

(Discussion held off the record between Deputy District Attorney and Defense counsel.)

THE COURT: Mr. Goldberg?

MR. GOLDBERG: Line 18 through?

MR. SCHECK: I think 24. Question by Mr. Goldberg. "All right. Now, after collecting item no. 12, did you go upstairs in the location? "Answer: Yes, I did. "Question: Do you recall what was the next item of evidence you collected? "Answer: The next item was a pair of socks in the master bedroom." MR. SCHECK: Were you asked those questions and did you give those answers on direct?

MR. FUNG: Yes.

MR. SCHECK: Now, on cross-examination, 22302.

(Brief pause.)

THE COURT: Mr. Scheck, which line? Which line?

MR. SCHECK: Starting at 22302 at page--at line 4. May I proceed?

MR. GOLDBERG: Well, may I have a moment.

(Brief pause.)

MR. GOLDBERG: Line 4 through line 26?

MR. SCHECK: Uh-huh.

THE COURT: Proceed.

MR. GOLDBERG: That's fine.

MR. SCHECK: "Question: And then the next item was a red stain from the foyer area inside Rockingham, correct? "Answer: Yes. "Question: And that one was collected at 4:30? "Answer: Yes. "And/or thereabouts--"Question: Or thereabouts? "And the next item you collected were the socks? "Answer: Yes. "But there is no time indicated for that? "Answer: That's correct. "And the next item after you--after that you indicated was a red stain that was found in the master bathroom? "Answer: Yes. "And that time is at 4:40? "Answer: Yes. "So I believe it was your testimony on direct examination that you collected the socks sometime between 4:30 and 4:40? "Answer: About then, yes."

MR. SCHECK: Were you asked those questions and did you give those answers?

MR. FUNG: Yes.

MR. SCHECK: Now, Mr. Fung, hasn't it come to your attention that there is a video that was taken on the afternoon of June 13th of the interior of Rockingham by a photographer from SID, yes?

MR. GOLDBERG: Vague as to time. Motion to strike.

THE COURT: Overruled.

MR. SCHECK: Have you been informed that on that video there is a shot of the master bedroom?

MR. FUNG: Yes.

MR. SCHECK: Have you been informed that on the camera there is a time of when the video is being shot?

MR. FUNG: I believe there was a time present.

MR. SCHECK: So you have seen that tape?

MR. FUNG: Yes.

MR. SCHECK: Your Honor, I would ask that we be permitted to show a segment from that tape.

MR. GOLDBERG: I didn't hear what he just said.

MR. SCHECK: I would like to show a segment from that tape, and I will show it to counsel.

THE COURT: What is the evidence number on this one?

(Discussion held off the record between Defense counsel.)

MR. SCHECK: I think it is 1068, your Honor.

MR. GOLDBERG: Your Honor, may we approach for a moment?

THE COURT: For what purpose?

MR. GOLDBERG: Excuse me?

THE COURT: It is a Defense exhibit already marked, 1068.

MR. GOLDBERG: Yes, I realize that, but counsel did not give us advance notice that they wanted to play this and I'm not objecting necessarily to playing the tape, but there is one portion of it in terms of the time.

MR. SCHECK: I will show him.

MR. GOLDBERG: I would like to discuss that at sidebar.

THE COURT: As to the accuracy of the time?

MR. GOLDBERG: Right.

MR. SCHECK: Well, I--

MR. GOLDBERG: I don't know if the time code is on this one or not.

(Discussion held off the record between Defense counsel.)

THE COURT: Mr. Scheck, does 1068 have the time code on it?

MR. SCHECK: Yes.

MR. GOLDBERG: Okay. Then we need to approach.

THE COURT: All right. With the Court reporter, please. One attorney from each side.

(The following proceedings were held at the bench:)

THE COURT: All right. We are over at the sidebar. Mr. Goldberg, what is your objection?

MR. GOLDBERG: Well, my objection is identical to the Defense's objection to the time coded tape that we wanted to introduce. They have to show a foundation for the time code, just like we did.

THE COURT: Uh-huh.

MR. GOLDBERG: And in this particular case we know that that will never be done, so they couldn't even do it on an offer of proof, because all we know is that the time code is off by as much as an hour and that there is basically no accuracy to it at all, so not only must they show a foundation for the time code--

THE COURT: So why don't you just make a foundation objection?

MR. GOLDBERG: What do you mean?

THE COURT: Exactly what I said. Why didn't you make a foundation objection?

MR. GOLDBERG: Well, your Honor, the evidence code requires that an objection be sufficiently specific--

THE COURT: Uh-huh.

MR. GOLDBERG: --to put the Court and the other party on notice as to what is being--

THE COURT: Then why wasn't your objection "Objection, foundation, time stamp"?

MR. GOLDBERG: Because I said "May we approach" and your Honor says what--your Honor, I'm just--

THE COURT: Mr. Scheck.

MR. SCHECK: Your Honor, I have no, problem since we have already had an evidentiary hearing with this tape and we know what the testimony is, I have no problem eliciting that there has been prior testimony from one of the people in charge of the video at SID that this is off by an hour and that what appears on the tape to be 3:14 is 4:14. If that is Mr. Goldberg's concern, I have no problem making that--this was the testimony.

MR. GOLDBERG: I don't believe that that was the--that this man had any foundation for how they even knew it was exactly an hour off as opposed to an hour and fifteen minutes or 45 minutes off and so on or how it was set. It is just clear that I think they probably can run the tape, but with the time code, no. I don't think we will ever be able to establish a foundation for that.

MR. SCHECK: I think the problem here, your Honor, is that they--the Prosecution was offering, you know, this tape at the hearing, and put on witnesses to establish that the time was off by an hour. That was the position of their witnesses. Now, it seems to me that we are entitled to do this, because the thrust, frankly, of this cross-examination is that he has definitely changed his testimony--

THE COURT: Uh-huh.

MR. SCHECK: --on redirect examination.

THE COURT: All right. The problem, though, that the tape has a very definite time code and in setting this up you have asked him about the time stamp on it.

MR. SCHECK: I will do this--I will do this: My point here is not even--my point here is not even that that should necessarily be taken as the true time, but my point is that he changed his testimony as to the Prosecution in order to allow for this time so--

THE COURT: Well, no, Mr. Scheck. The issue is whether or not you get to play the tape with an erroneous time code. That is the issue.

MR. SCHECK: No, no. Then we can enter into--I will ask the question or we can enter into an agreement that there has been testimony that the time on this tape was off by an hour and--

MR. GOLDBERG: No.

THE COURT: All right. Mr. Goldberg, are you willing to accept any stipulation regarding the time code?

MR. GOLDBERG: Not at this time. I may be at some subsequent time, because I would have to look at the testimony.

THE COURT: Okay. The objection is sustained.

MR. SCHECK: Can we play the tape?

THE COURT: The objection on a foundational basis is sustained.

(The following proceedings were held in open Court:)

THE COURT: Thank you, counsel. Proceed.

MR. SCHECK: Mr. Fung, you have told us that you have seen the tape?

MR. FUNG: Yes, or portions of it.

MR. SCHECK: And in this tape you recall seeing that there is a panning shot of the bedroom area and the bed?

MR. GOLDBERG: Vague as to what "Panning shot" means and what area specifically.

THE COURT: Overruled. Do you understand the question?

MR. FUNG: Yes.

THE COURT: Proceed.

MR. SCHECK: And at the point the camera passes over the carpet area and the bed and cuts just at the moment that one would have seen an item in the position of the socks as they were photographed on June 13th?

THE COURT: Is that a question?

MR. SCHECK: Yeah.

MR. SCHECK: Is that what you saw on the tape?

MR. FUNG: There was a panning shot, but I don't believe from the angle that the shot was taken that the socks would have been visible.

MR. SCHECK: All right. When you saw that tape, did you see that at the point that the socks should have appeared the tape cuts?

MR. GOLDBERG: Well, it is still vague.

MR. SCHECK: Asking what he saw. Goes to his state of mind.

THE COURT: Overruled.

MR. FUNG: Well, I remember looking for the socks in the videotape and they weren't there--

MR. SCHECK: And, umm--

MR. FUNG: --in the video.

MR. SCHECK: All right. And in your--now, you prepared for this redirect examination over the weekend?

MR. FUNG: We--I came in over the weekend, yes.

MR. SCHECK: How many days?

MR. FUNG: Let's see. Saturday and then I viewed a videotape on Sunday.

MR. SCHECK: What about Friday afternoon?

THE COURT: That is not the weekend.

MR. SCHECK: I understand. That is why I asked the question.

MR. FUNG: No, not on Friday afternoon.

MR. SCHECK: And was it over the weekend that you saw this videotape?

MR. GOLDBERG: Well, it is vague as to which videotape.

MR. SCHECK: The videotape of the interior of Rockingham?

MR. FUNG: I did not view the videotape of Rockingham that day.

MR. SCHECK: When did you view the videotape of Rockingham?

MR. FUNG: It was the day after--to the best of my recollection it was the day after the hearing for the videotape with the photographers and the detectives were--

MR. SCHECK: So you were aware--

MR. GOLDBERG: Your Honor, perhaps we can at some point get the Court to take judicial notice of that date.

THE COURT: I don't recall myself when the date was.

MR. GOLDBERG: I don't either.

THE COURT: All right. Mrs. Robertson will give that to us.

MR. SCHECK: Have you spoken to any of the people at SID who testified at that hearing about the videotape?

MR. FUNG: In what regard?

MR. SCHECK: Well, have you spoken to a Mr. Adkins?

MR. FUNG: I have spoken to Mr. Adkins.

MR. SCHECK: About the videotape?

MR. FUNG: Just that he was going to have to testify because it was taken.

MR. SCHECK: Uh-huh. And was there discussion between the two of you about a time on the videotape that would indicate when that videotape was taken of objects in Mr. Simpson's master bedroom?

MR. GOLDBERG: Hearsay, your Honor.

THE COURT: Overruled. Was there a discussion of that? Yes or no?

MR. FUNG: No.

MR. SCHECK: And what about--you know a gentleman named Ford?

MR. FUNG: Yes.

MR. SCHECK: And do you know if he testified at the hearing?

MR. FUNG: I believe he did.

MR. SCHECK: And did you have a discussion with him about the time on the videotape where it depicts items in Mr. Simpson's master bedroom?

MR. FUNG: No.

MR. SCHECK: In your preparations for redirect examination with the Prosecutors did you have a discussion with them about the times on the videotape which shows items in Mr. Simpson's master bedroom?

MR. FUNG: I believe the subject came up.

MR. SCHECK: And when the subject came up, did they press you to change your testimony that the collection of the socks happened between 4:30 and 4:40?

MR. FUNG: No.

MR. SCHECK: Did they press you to say that your collection of the socks was not necessarily after item no. 12 and before item no. 14?

MR. FUNG: No.

MR. SCHECK: In other words, your testimony on redirect examination that you are no longer sure if the sock was collected--socks were collected between 4:30 and 4:40 was just something that you decided to say on redirect examination without any consideration of the time on that videotape?

MR. GOLDBERG: It is argumentative, misstates the testimony.

THE COURT: Overruled.

MR. FUNG: My testimony then was and still is to the best of my memory.

MR. SCHECK: Is that your answer?

MR. FUNG: Yes, it is.

MR. SCHECK: Well, isn't there a difference between the way you testified about the time in which the socks were collected and the order in which the socks were collected on redirect examination versus your direct examination and cross-examination?

MR. GOLDBERG: Calls for speculation, compound.

THE COURT: Sustained.

MR. SCHECK: Well, you had read to you questions and answers of what you said on direct?

MR. FUNG: Yes.

MR. SCHECK: And you had questions and answers of what you said on cross-examination about this?

MR. FUNG: During some portion, yes.

MR. SCHECK: I just did that with you now, right?

MR. FUNG: Yes.

MR. SCHECK: And then on your redirect examination do you not concede, sir, that your testimony changed?

MR. GOLDBERG: Argumentative, calls for speculation.

THE COURT: Overruled.

MR. FUNG: I answered the question with different words, yes.

MR. SCHECK: Well, the different words that you used were a change in when the time--which of the words that you used constituted a change in the time that you could have collected the socks?

MR. GOLDBERG: I object. That misstates the evidence. There was no change in time.

THE COURT: Sustained. Rephrase the question.

MR. SCHECK: When you answered on redirect, you are now saying that you did not know if the socks were collected in between 4:30 and 4:40, right?

MR. GOLDBERG: Misstates the testimony.

THE COURT: Sustained.

MR. SCHECK: Were you asked: "Question: And can you tell us whether those--whether those--between the collection of item 12 and item 14 by looking at your crime scene checklist? "Answer: It was collected within that time frame. I don't know if it was collected in between those two times, though. "Question: What are the two time frames? What is the time frame for 12? "Answer: The time frame is 4:30. "Question: And that was the stain in the foyer? "Answer: Yes. "Question: And what is the time for 14? "Answer: The time for 14 is 4:40. "And that was the stain in the master bedroom? "Answer: Yes. "Question: Now, just--I just want to make sure I understood your testimony. Do you know whether you collected--whether you collected 13 in between 12 and 14? "Answer: I know it was in that time frame, but I do not specifically recall nor can I tell from my notes if they were. "Question: For sure? "Answer: For sure." Were you asked those questions and did you give those answers?

MR. GOLDBERG: That was asked and answered. Argumentative.

THE COURT: Overruled. You can answer the question.

MR. FUNG: I was asked those questions.

MR. SCHECK: Now, you don't think that that is different than your direct testimony?

MR. GOLDBERG: Argumentative.

THE COURT: Sustained.

MR. SCHECK: Mr. Fung, is this a habit you have of suddenly becoming vague if you think it is going to help the Prosecution's position?

MR. GOLDBERG: Argumentative.

THE COURT: Sustained.

MR. SCHECK: Now, you were asked some questions on redirect examination about the videos of Bundy and a three-dimensional brown object on the blanket. Do you recall that?

MR. FUNG: I don't remember--I never--I don't recall it being a three-dimensional--saying it was three-dimensional. There was a dark object on the walkway area.

MR. SCHECK: And--one minute, your Honor.

(Discussion held off the record between Defense counsel.)

MR. SCHECK: Now, you spent a lot of time going over those videotapes with the Prosecutors, haven't you?

MR. FUNG: I spent some time looking at the videotapes and going over still photographs.

MR. SCHECK: How much time?

MR. FUNG: Well, about a half hour, an hour maybe.

MR. SCHECK: That's all?

MR. FUNG: That's all.

MR. SCHECK: From the time you first saw those videotapes to the time you came in here and testified about it on redirect examination, you only reviewed those for a half hour?

MR. GOLDBERG: It is vague as to which videotape.

THE COURT: He said half hour to an hour.

MR. SCHECK: Half hour to an hour?

MR. GOLDBERG: Still vague as to which videotape.

THE COURT: Overruled.

MR. SCHECK: You can answer.

MR. FUNG: Yes.

MR. SCHECK: Now, I think you testified on redirect examination that when you looked at the video and the stills you were going through a process of reconstruction?

MR. FUNG: Yes.

MR. SCHECK: And you had no independent memory--withdrawn. And part of that--and in your reconstruction of the stills and the videotape, you had a very specific recollection of putting down a card near a pole at a certain point in time?

MR. GOLDBERG: Well, it is vague and unintelligible as phrased, your Honor.

THE COURT: Overruled.

MR. GOLDBERG: Whether he is talking about the tape or his--

THE COURT: Overruled.

MR. FUNG: I had a recollection of putting a card down by the pole?

MR. SCHECK: Yeah.

MR. FUNG: I don't think that is a recollection. That is something that I saw happen in the videotape.

MR. SCHECK: All right. So in other words, you had no independent memory of exactly what you did in putting down the cards? You just looked at the videotape and looked at still photographs and sort of made up what you think happened?

MR. GOLDBERG: That is argumentative, your Honor.

THE COURT: Sustained.

MR. SCHECK: You looked at the still photographs and you looked at the videotape and you tried to reconstruct what you think happened?

MR. FUNG: I looked at the videotape, I looked at still photos, and with what I remember from the crime scene, I came up with a reconstruction.

MR. SCHECK: Well, your memory of the crime scene, did it include exactly what cards you put down next to the objects and in what order you did them?

MR. GOLDBERG: It is overbroad as to "Cards."

THE COURT: Sustained.

MR. SCHECK: Do you have an independent--did you have an independent recollection of which cards you put down at what time?

MR. GOLDBERG: It is still vague as to place.

THE COURT: Sustained.

MR. SCHECK: As to any of the cards that you put down--

THE COURT: At Bundy?

MR. SCHECK: At Bundy with respect to the glove, the hat and the envelope, did you have a specific recollection of what you did and when you did it?

MR. FUNG: I don't have specific recollection as to what exact time it is, but I do know what order I did things in.

MR. SCHECK: Well, when you put the cards down, do you have an independent recollection as to whether or not you put a card down in one location and then before the photographer took a picture decided to move it to a somewhat different place?

MR. GOLDBERG: Assumes facts not in evidence.

THE COURT: Sustained. Rephrase the question.

MR. SCHECK: At any time when you were putting down the card near the hat, the glove and the envelope, do you have a specific recollection about putting down a card and just leaving it in the first place you put it?

MR. FUNG: No.

MR. SCHECK: Could you have put down a card and then decided to move it a little bit?

MR. FUNG: That is a possibility.

MR. SCHECK: And isn't it true, sir, that the reconstruction that you went through of the still photographs and the videotape are based on the assumption that you put certain cards down, left them in positions and didn't change them and you did it in a certain order?

MR. FUNG: My reconstruction is based on that, plus the fact that I would not move the evidence until a photograph had been taken.

(Discussion held off the record between Defense counsel.)

MR. SCHECK: Do you have a specific recollection--withdrawn. Could it have been, sir, that when you were putting down a card by the hat, that you put it down at one place at first and then moved it to another?

MR. GOLDBERG: Your Honor, that calls for speculation.

THE COURT: Sustained the way it is phrased.

(Discussion held off the record between Defense counsel.)

MR. SCHECK: Well, based on your recollection of the crime scene, is that something that you could have done?

MR. GOLDBERG: It still calls for speculation.

THE COURT: Sustained.

(Discussion held off the record between Defense counsel.)

MR. SCHECK: Your Honor, I have two photographs that I would like to have marked as Defendant's next in order. One would be then--

THE CLERK: 1108.

MR. SCHECK: 1108 and the next one, 1109.

(Deft's 1108 for id = photograph)

(Deft's 1109 for id = photograph)

MR. SCHECK: And I would like to put 1108 on the elmo, if I may.

THE COURT: All right.

(Discussion held off the record between Defense counsel.)

(Brief pause.)

MR. GOLDBERG: Your Honor, I would like to object to showing these photographs. Perhaps we can approach.

THE COURT: What is the basis, legal basis?

MR. GOLDBERG: Legal basis is it is not impeaching; therefore not relevant.

THE COURT: Overruled.

(Discussion held off the record between Defense counsel.)

MR. SCHECK: Mr. Fung, I would like to direct your attention to the envelope. Do you see that?

MR. FUNG: Yes.

MR. SCHECK: Do you see where the card is behind the envelope?

MR. FUNG: Yes, I do.

MR. SCHECK: And that is an envelope--that is--that would be no. 104, which would be the photo i.d. Of the envelope? Why don't you check.

MR. GOLDBERG: May the record reflect that he is checking in what appears to be his crime scene identification checklist notebook?

THE COURT: Yes.

MR. FUNG: Yes.

MR. SCHECK: Are you checking a page that indicates the time in which these objects were collected?

MR. FUNG: No.

MR. SCHECK: Because you didn't write down in your evidence item collection sheet the time that these items were collected?

MR. FUNG: The times were not written down at Bundy.

MR. SCHECK: So when you went through this reconstruction with the still photographs and the videotapes, you didn't even have the times that the items were collected?

MR. GOLDBERG: That is argumentative as phrased.

THE COURT: Sustained.

MR. SCHECK: Now, I would ask to show the next item.

THE COURT: All right. 1109.

(Brief pause.)

MR. SCHECK: Do you recognize that to be a picture of the envelope again?

MR. FUNG: Yes.

MR. SCHECK: And that is card 104?

MR. FUNG: Yes.

MR. SCHECK: And that is in a different position in that photograph?

MR. FUNG: What? The envelope is in the same position.

MR. SCHECK: The envelope is in the same position, but the card is in a different position?

MR. GOLDBERG: That is argumentative.

THE COURT: Sustained.

MR. GOLDBERG: Motion to strike.

MR. SCHECK: Is the card in a different position?

MR. GOLDBERG: Asked and answered.

THE COURT: Overruled.

MR. FUNG: Yes, the card is in a different position, but that is not uncommon for the card to be moved in a different position for photographic purposes.

MR. SCHECK: All right. It is not uncommon at all to be moving these cards around during the process of still photography?

MR. FUNG: That's correct.

MR. SCHECK: But your entire reconstruction, without independent recollection, based on the videotape and the still photographs, is based on a very specific judgment about which cards were placed down in what order?

MR. GOLDBERG: It is unintelligible and overbroad.

THE COURT: Overruled.

MR. FUNG: My reconstruction was based on those factors, plus my practice of not moving evidence--

MR. SCHECK: So--

MR. FUNG: --until photographs are taken.

MR. SCHECK: So the basic assumption here is that you don't move evidence before it is photographed?

MR. GOLDBERG: Well, it is vague.

MR. FUNG: That is my general practice.

MR. SCHECK: Well, that is what you did here?

MR. FUNG: That is what I did here.

MR. SCHECK: And it would be your general practice to report if someone moved evidence from the position in which it was originally found to a different position?

MR. GOLDBERG: Well, it is overbroad.

THE COURT: Overruled. This is something we've already gone into.

MR. SCHECK: I'm moving into it right now.

MR. SCHECK: You were asked questions on redirect examination about why you thought the scene might have been altered?

MR. FUNG: I don't specifically recall that line of questioning.

MR. SCHECK: Do you recall questions on redirect examination about your responsibility to find out who might have altered the crime scene?

MR. FUNG: In redirect?

MR. SCHECK: Yes.

MR. GOLDBERG: Your Honor, his ability to recall testimony is irrelevant.

THE COURT: Overruled.

MR. SCHECK: Were you asked these questions and did you give these answers on redirect examination?

MR. GOLDBERG: I need a citation.

THE COURT: Sustained.

MR. SCHECK: Well, your Honor, we don't have page citations. I can--

THE COURT: You need to give page citations. If you can't give page citations, you can't do it.

MR. SCHECK: Well, we don't have--

(Brief pause.)

MR. SCHECK: Your Honor, do we have a page number from yesterday's transcript? We have live notes. I have the questions and answers.

THE COURT: Check with the Court reporter.

(Brief pause.)

THE COURT: Do you have something else you can move on to?

MR. SCHECK: No.

THE COURT: How much more do you have?

MR. SCHECK: I think an hour.

THE COURT: Let me check and see on the availability of our daily transcript.

(Discussion held off the record between the Court and the Court reporter.)

THE COURT: We have had a photocopy repair person since 8:30 this morning working on our machines.

MR. SCHECK: Your Honor, would it be--

THE COURT: Do we have a master copy that is available?

REPORTER OLSON: Yes.

THE COURT: Miss Olson, would you check on that, please. Apparently Miss Moxham stepped away.

(Brief pause.)

THE COURT: All right. Ladies and gentlemen of the jury, if you want to stand and stretch for a moment, we will have the Court reporter get the transcript from yesterday.

(Brief pause.)

THE COURT: All right. We will give Mr. Scheck a moment to locate the passage.

MR. SCHECK: Without a computer--

THE COURT: Mr. Scheck, if you like, I will take a 15-minute recess at this point.

MR. SCHECK: Well, your Honor, it is just--you know, I can get these on the computer, I can get right to the page, but without the transcript page number, if we can't--

THE COURT: Let's do this: Ladies and gentlemen, we are going to take a 15-minute recess at this point. Please remember all my admonitions. Do not discuss this case among yourselves, don't form any opinions, don't conduct any deliberations until the matter has been submitted to you, do not allow anybody to communicate with you with regard to the case. We will stand in recess for fifteen minutes. All right.

(Recess.)

(The following proceedings were held in open Court, out of the presence of the jury:)

THE COURT: All right. Back on the record in the Simpson matter. All parties are again present. Mr. Scheck, did you locate the portion of the transcript that you needed?

MR. SCHECK: We have located that and a number of others on the redirect that just was done. Just asking him the questions that he was asked on redirect, your Honor. And, you know, I got in one or two before you started asking me for page numbers.

THE COURT: My mistake. All right. Let's have the jurors, please.

MR. GOLDBERG: Your Honor, on this, I did have an objection. It's not inconsistent.

THE COURT: Well, why don't you tell me what it is. Read it for me. Hold on to the jury. Read it for me.

MR. GOLDBERG: You want me to--

THE COURT: Read it for me.

MR. GOLDBERG: I didn't know who the Court was talking to. I apologize.

THE COURT: You're making the objection, counsel. Read it for me.

MR. GOLDBERG: Okay. "Did you know whether the crime scene had been altered before you arrived? "Answer: I--I assumed it had because the body was--of Nicole Brown Simpson was on the plastic when I walked up to the scene. "Question: Okay. And you assumed that when she was murdered, it wasn't on that Coroner's plastic bag? "Answer: Yes. "Question: Now, was it your job as a Criminalist to start interviewing witnesses for the purposes of determining what the crime scene was like when they arrived? "Answer: No. "Question: Whose job is that?"

THE COURT: The detectives.

MR. GOLDBERG: "Answer: That is the investigating officer--officer's job, the detectives."

MR. SCHECK: Your Honor, Mr. Goldberg anticipates me. I think the correct form for recross examination is, they must direct the witness' attention to the questions he was asked on redirect in order to set up impeachment with prior testimony, which is exactly what I'm going to do with this first set of questions. And in fact, I think the witness was actually a little vague on the issue of "Altered." But that's all I'm doing with these questions. I think it's my responsibility--

THE COURT: This is your foundation to set up an impeachment?

MR. SCHECK: Yes.

THE COURT: All right. What's the second passage?

MR. SCHECK: Well, your Honor, can Mr. Fung step out then if I'm going to do all this?

THE COURT: No. You're making a good faith offer that you've got it there?

MR. SCHECK: Yes. I've got impeachment from prior testimony.

THE COURT: All right. Let's proceed. Let's have the jury, please.

MR. GOLDBERG: Your Honor, I think I'll object on another ground. And that's that if there's two separate passages that are inconsistent, it's not relevant. That can be argued to the jury, but there's no need to ask the witness about it.

THE COURT: Overruled. And, Miss Moxham, can you go to noon?

THE COURT REPORTER: Yes.

(The following proceedings were held in open Court, in the presence of the jury:)

THE COURT: Thank you, ladies and gentlemen. Please be seated. Let the record reflect we've been rejoined by all the members of our jury panel. Mr. Scheck, you may continue.

MR. SCHECK: Thank you very much, your Honor.

MR. SCHECK: When we left, Mr. Fung, I had asked you if you recall testifying on redirect examination about realizing the crime scene had been altered before you arrived.

MR. SCHECK: And, Mr. Goldberg, page 23066 starting at line 11.

MR. SCHECK: On redirect examination, were you asked: "Question: Did you know whether the crime scene had been altered before you arrived? "Answer: I assumed it has because the body was--Nicole Brown Simpson was on the plastic when I walked up to the scene. "Question: Okay. And you assume that when she was murdered, she wasn't on the Coroner's plastic bag? "Answer: Yes." You recall that?

MR. FUNG: Yes.

MR. SCHECK: Now, when you got to the crime scene and you saw Mr. Goldman's body removed, didn't you think that might have altered the crime scene?

MR. FUNG: The--that is changing the crime scene, yes.

MR. SCHECK: Well, Mr. Goldman's body was removed from the caged-in dirt area and dragged across the location where the envelope, glove and hat was?

MR. GOLDBERG: Assumes facts.

THE COURT: Sustained.

MR. SCHECK: Were you concerned that when Mr. Goldman's body was removed, it could have been dragged across the area where the glove, the hat and the envelope were found?

MR. GOLDBERG: Beyond the scope of my redirect.

THE COURT: Overruled.

MR. FUNG: I was not in the immediate area when Mr. Goldman's body was moved.

MR. SCHECK: Well, when you say "Immediate," you were standing in the bushes near the walkway area, weren't you?

MR. FUNG: I don't believe so.

MR. SCHECK: Well, do you recall a videotape of you stepping over the body holding what you've told us was the Rockingham glove with your bare hand and a bag?

MR. FUNG: Yes.

MR. SCHECK: Well, are you telling us that you were not in the area when Mr. Goldman's body was removed from the caged-in area and put in front of the steps on the walkway?

MR. FUNG: That was after he had been moved.

MR. SCHECK: All right. Well, you knew his body was in the dirt, caged-in area?

MR. GOLDBERG: Calls for hearsay, speculation.

THE COURT: Overruled.

MR. FUNG: Yes.

MR. SCHECK: And you knew that it had been removed to the front of the steps?

MR. FUNG: Yes.

MR. SCHECK: And did that cause you any concern that the removal of his body from the caged-in area to the front of the steps might have caused the glove, the hat and the envelope to have been moved--

MR. GOLDBERG: It's irrelevant as to his concern.

THE COURT: Overruled. You can answer the question.

MR. FUNG: It did not occur to me at that time.

MR. SCHECK: Did you ever bother to ask anyone about it?

MR. GOLDBERG: This is beyond the scope, your Honor. We went into it extensively.

THE COURT: Overruled.

MR. FUNG: Did I ask anybody about it? I don't recall asking anybody about it.

MR. SCHECK: Did you ever compare your measurements of where various objects were with the measurements taken by Detective Lange?

MR. GOLDBERG: Assumes facts not in evidence. Beyond the scope of this witness' knowledge.

THE COURT: Overruled.

MR. FUNG: I have never compared my measurements with Detective Lange's measurements.

MR. SCHECK: Now, you have testified after looking at the videotapes and the still photography and reconstruction that the Bundy glove was ever in a third position on the blanket?

MR. FUNG: Could you repeat that?

MR. SCHECK: Sure. Do you remember during cross-examination we talked about position 1, position 2 and position 3?

MR. FUNG: Yes.

MR. SCHECK: All right. And position 3 was that object on the videotape which you're saying is not the glove, right?

MR. FUNG: Yes.

MR. SCHECK: All right. If the glove--if that were the glove, that would be a third position?

MR. GOLDBERG: Argumentative.

THE COURT: Sustained.

MR. SCHECK: You do concede however from looking at still photographs that the glove had been moved from a position where it was originally photographed when Detective Fuhrman was pointing at it to a second position when you directed the photographer to photograph it--

MR. GOLDBERG: Argumentative.

THE COURT: Overruled.

MR. FUNG: Yes.

MR. SCHECK: Okay. So you concede there are at least two positions for the glove?

MR. GOLDBERG: Asked and answered. Argumentative.

THE COURT: Overruled.

MR. FUNG: There are two positions that I know of.

MR. SCHECK: And there are two positions for the envelope?

MR. FUNG: Yes.

MR. SCHECK: Now, you learned about this two months ago when you were listening to the radio and heard test--at the crime scene lab and heard testimony?

MR. GOLDBERG: This is vague and compound.

THE COURT: Sustained. Rephrase the question.

MR. SCHECK: When was the first time you learned that the envelope had been moved?

MR. FUNG: I don't specifically recall knowing that the envelope had been moved. I know that there was testimony that evidence at the Bundy crime scene had been moved prior to my arrival--

MR. SCHECK: Well--

MR. FUNG: --or prior to my collection process.

MR. SCHECK: I'm now on April 11th at page 22123.

MR. GOLDBERG: May I have a moment?

THE COURT: Certainly.

MR. SCHECK: Starting at line 20.

(Brief pause.)

MR. GOLDBERG: I apologize to counsel for having too many notebooks here. 22123?

MR. SCHECK: Uh-huh.

MR. GOLDBERG: Starting at which line?

MR. SCHECK: Starting at line 20.

MR. SCHECK: "Question:"

MR. GOLDBERG: May I have a moment, your Honor?

THE COURT: Yes.

(Brief pause.)

THE COURT: Proceed.

MR. SCHECK: "Question: When did you first learn that the envelope had been moved from its original condition as it was found at the crime scene? "Answer: The first I heard about it was during the trial. "Question: When? "Answer: This trial. "Question: When during the trial? We have been here for a while. "Answer: When--you're right. When Detective Lange was giving testimony. "Question: About a month ago, two months ago? "Answer: Whenever he was giving testimony. "Question: And isn't it your responsibility--well, how did you learn about that? Did you speak to Detective Lange? "Answer: How did I learn of it? "Question: Yeah, that the envelope had been moved. "Answer: I overheard it on the radio." Were you asked those questions, did you give those answers?

MR. FUNG: Yes.

MR. SCHECK: All right. Now, you're under instructions to avoid, if you possibly can, listening to any testimony?

MR. GOLDBERG: I think that misstates the Court's orders as to expert witnesses.

THE COURT: Sustained.

MR. SCHECK: Do you regard yourself as under any restriction in terms of listening to or watching any testimony of the trial?

MR. GOLDBERG: It's irrelevant.

THE COURT: Sustained.

MR. SCHECK: Have you listened to testimony of the trial?

MR. FUNG: Listened to some portions.

MR. SCHECK: Have you watched any of the testimony of the trial of prior witnesses?

MR. FUNG: Yes, I have.

MR. SCHECK: How much?

MR. GOLDBERG: It's vague as to which witnesses.

MR. SCHECK: All right. Which witnesses.

THE COURT: Overruled.

MR. FUNG: I've seen portions of Detective Lange's testimony, Detective Vannatter's testimony, Detective Fuhrman's, some of Mr. Kaelin's--

MR. SCHECK: And you paid careful attention when--

MR. GOLDBERG: I don't think he's finished.

MR. SCHECK: Are you finished?

MR. FUNG: Various other witnesses. I've seen parts of all of them.

MR. SCHECK: And have you paid careful attention when Detective Lange and Vannatter and Fuhrman testified about anything that might involve your activities?

MR. FUNG: I never got a chance--never get a chance to sit down and concentrate on it, but if I hear my name, I'll--peaks my attention.

MR. SCHECK: And when you were observing their testimony, did you get a pretty good idea of what attacks were being made on their credibility by the Defense?

MR. GOLDBERG: Well, it's overbroad, calls for speculation.

THE COURT: Sustained.

MR. SCHECK: Did you form any ideas in your mind as to what attacks were being made on the credibility of Detective Lange, Detective Vannatter or Detective Fuhrman by the Defense?

MR. GOLDBERG: Still overbroad.

THE COURT: Sustained.

MR. SCHECK: Did you make--did you form any opinion in your mind as to what kinds of attacks were being made on the credibility of Detective Fuhrman?

MR. GOLDBERG: Overbroad. Calls for speculation.

THE COURT: Overruled.

MR. FUNG: Seemed to me that his overall credibility was being questioned.

MR. SCHECK: Did you pay attention to any specific areas of testimony?

THE COURT: All right. This is becoming irrelevant.

MR. SCHECK: All right. Now, returning now to the glove in position 1 and position 2, so you recall learning for the first time about position 1 and position 2 during Detective Lange's testimony?

MR. GOLDBERG: Your Honor, I'm going to object. This is asked and answered and it was beyond the scope of my redirect.

THE COURT: Overruled.

MR. FUNG: Yes.

MR. SCHECK: All right. Now, on redirect examination, Mr. Goldberg asked you about your obligations to interview witnesses at the scene to find out what it was like before you arrived. Recall that?

MR. FUNG: Yes.

MR. SCHECK: Counsel, page 23066 again at line 20.

MR. SCHECK: "Question:"

MR. GOLDBERG: Wait a minute.

(Brief pause.)

MR. GOLDBERG: Is this from yesterday's?

MR. SCHECK: Yes. Same page we were reading from before.

MR. GOLDBERG: Which line, counsel?

MR. SCHECK: 23066, line 20.

MR. SCHECK: "Question: Now, is it your job as a Criminalist to start interviewing witnesses for the purposes of determining what the crime scene was like when they arrived? "Answer: No. "Question: Whose job is that? "Answer: That is the investigating officer's job, the detectives." Were you asked that question, did you give that answer yesterday on redirect?

MR. FUNG: Yes.

MR. SCHECK: Now, isn't it true that you just gave that answer because the Prosecution wanted you to say it even though you knew it isn't--you know it's not true?

MR. FUNG: It isn't my job to interview witnesses.

MR. SCHECK: Do you have a habit, sir, of testifying--when you testify, of going along with whatever suggestions the Prosecution makes to you?

MR. GOLDBERG: Your Honor, this is really argumentative.

THE COURT: Sustained.

MR. SCHECK: Page 22145.

MR. SCHECK: Do you recall answering questions--

THE COURT: Wait, wait.

MR. SCHECK: I understand. I'm just asking a prefatory question while he's getting the page.

THE COURT: Proceed.

MR. SCHECK: Do you recall answering questions on this very same issue with respect to your responsibility to investigate whether evidence has been moved or altered on cross-examination?

MR. GOLDBERG: 22145?

MR. SCHECK: Yeah.

THE COURT: What line, counsel?

MR. SCHECK: 4.

MR. GOLDBERG: I don't know--may I just have a moment?

(Brief pause.)

MR. SCHECK: I apologize. 22125.

MR. GOLDBERG: May I have a moment?

THE COURT: Certainly.

MR. GOLDBERG: Line?

MR. SCHECK: Line 4.

MR. GOLDBERG: Your Honor, this isn't impeachment. Perhaps we could approach.

THE COURT: All right. With the Court reporter, please.

(The following proceedings were held at the bench:)

THE COURT: Mr. Goldberg.

MR. GOLDBERG: Your Honor, the problem here is if the Court would--

THE COURT: Wait, wait, wait.

MR. GOLDBERG: --look at the transcript--"isn't your responsibility to investigate whether evidence at the scene hasn't moved or altered from its original position? "Vague as to the word `investigate,'" which the Court overruled. Then he says: "I--in some respects, it is my responsibility, yes." Okay. So that's vague. "All right. And are you supposed to make inquiries of people at the scene as to whether or not evidence has been moved or altered? "Yes." But it doesn't say anything about interviewing witnesses.

MR. SCHECK: Inquiries, interviews I think are close enough that it's direct impeachment.

THE COURT: Objection is overruled.

(The following proceedings were held in open Court:)

THE COURT: All right. Thank you, counsel. Proceed.

MR. SCHECK: Mr. Fung, were you asked these questions and did you give these answers? "Question: Now, Mr. Fung, isn't it your responsibility to investigate whether evidence at the crime scene has been moved or altered from its original position? "Answer: I--in some respects, it is my responsibility, yes. "Question: All right. And are you supposed to make inquiries of people at the scene as to whether or not evidence has been moved or altered? "Answer: Yes." Were you asked that question--those questions and did you give that answer on cross-examination?

MR. FUNG: Yes, I did.

MR. SCHECK: But when Mr. Goldberg asked you questions on redirect yesterday, you said that it is not your job to interview witnesses for purposes of determining what the crime scene was like when they arrived. You said that was the detective's job.

MR. GOLDBERG: Argumentative. Misstates the testimony.

THE COURT: Overruled.

MR. FUNG: That's what I stated.

MR. SCHECK: Well, Mr. Fung, is this a change in your testimony now, your position on redirect?

MR. FUNG: Mr. Goldberg asked about witnesses which is different from the question that you asked.

MR. SCHECK: Let me read again from line 12. "Question: Are you supposed to make inquiries of people at the scene as to whether or not evidence has been moved or altered? "Answer: Yes." You make a distinction in your mind between witnesses and people?

MR. FUNG: Witnesses would not include the investigating officer which would--or the detective in my mind.

MR. SCHECK: Would it include the representatives from the Coroner's office?

MR. GOLDBERG: I think it's vague as to what he's referring to, just "It."

THE COURT: Overruled.

MR. FUNG: I really haven't given it that much thought.

MR. SCHECK: Would it include the people from SID print division?

MR. FUNG: I wouldn't consider them witnesses, no.

MR. SCHECK: Would it include the photographers from SID?

MR. FUNG: I wouldn't consider them witnesses either.

MR. SCHECK: Well, other than the detectives, the photographers from SID, the Coroner's representative and the print people, the representatives from the print unit at SID, was there anyone else at the scene who could have been a witness?

MR. GOLDBERG: Calls for speculation. It's irrelevant.

THE COURT: As phrased.

MR. SCHECK: To your knowledge, was there any other person that could have been a witness other than the detectives, the representatives from SID and the photographers?

MR. GOLDBERG: It calls for speculation and it's irrelevant.

THE COURT: Overruled. Overruled.

MR. FUNG: There are a lot of people at the scene, but not in the scene who could be considered witnesses.

MR. SCHECK: Well, the people--the other people you're talking about were being kept away by that yellow crime scene tape?

MR. FUNG: And officers.

MR. SCHECK: In terms of figuring out whether--what the crime scene was like before you arrived, weren't the only people you could possibly interview as witnesses those officials who were allowed inside the yellow tape?

MR. FUNG: I don't consider detectives and people working in the police department as witnesses.

MR. SCHECK: Mr. Fung, this distinction you're making between people and witnesses, isn't it just an effort by you to avoid admitting that on redirect examination, you said exactly the opposite of what you said on cross-examination?

MR. GOLDBERG: Wait. That misstates the testimony. It's argumentative.

THE COURT: Sustained. Sustained. Sustained.

MR. SCHECK: Now, in terms of your responsibilities--

MR. SCHECK: Your Honor, I'm putting on the elmo the relevant section from the crime scene checklist.

THE COURT: Is this the one with the question mark in the box?

MR. SCHECK: Yes.

MR. SCHECK: The crime scene checklist, that's where you directed Mr.--Miss Mazzola to put a question mark?

MR. FUNG: I didn't direct her to put a question mark there, but one was put there.

MR. SCHECK: Are you sure you didn't previously testify that you directed her to put a question mark there because you realized when you got to the scene that you saw Miss Nicole Brown Simpson's body on plastic?

MR. FUNG: I may have.

MR. SCHECK: Okay.

THE COURT: What exhibit is this, Mr. Harris?

MR. HARRIS: It's not marked, your Honor.

MR. SCHECK: Your Honor, this is--we'll--this is that group of documents, the number of which escapes me that--

THE COURT: All right. This is page--

MR. GOLDBERG: 1107.

MR. SCHECK: Thank you, Mr. Goldberg.

THE COURT: What--I can't see the page number.

MR. SCHECK: It's page 2.

THE COURT: All right. Page 2.

MR. SCHECK: Now, this box says, "Has the scene been altered? If so, by whom and how"?

MR. FUNG: Yes.

MR. SCHECK: And isn't it your job to find out if the scene had been altered, and if so, by whom and how?

MR. GOLDBERG: It's still overbroad, your Honor.

THE COURT: Overruled.

MR. GOLDBERG: And vague.

MR. FUNG: In some respects it is.

MR. SCHECK: And you have known now since you heard Detective Lange testify that the glove and the envelope were in two different positions?

MR. GOLDBERG: Asked and answered, argumentative.

THE COURT: Overruled.

MR. FUNG: I know that some--some evidence had been moved.

MR. SCHECK: Well, you know--you've agreed, have you not, that the glove and the envelope were in two different positions?

MR. FUNG: Yes.

MR. SCHECK: To your knowledge, sir, since you have discovered this, have you conducted any investigation as to who might have put the glove and the envelope back into a second position?

MR. FUNG: I have not conducted an investigation, no.

MR. SCHECK: To your knowledge, has anyone conducted such an investigation?

MR. GOLDBERG: Wait a minute. That assumes facts not in evidence. Motion to strike.

THE COURT: Overruled.

MR. GOLDBERG: The question and answer.

THE COURT: Overruled.

MR. FUNG: Please repeat the question.

MR. SCHECK: To your knowledge, has anyone conducted such an investigation?

MR. GOLDBERG: Calls for speculation.

THE COURT: Overruled. To your knowledge, do you know if anyone has? Yes or no?

MR. FUNG: No.

THE COURT: Proceed.

MR. SCHECK: Would a failure to find that out constitute in your mind a cover-up?

MR. GOLDBERG: Your Honor, it's argumentative.

THE COURT: Sustained.

MR. SCHECK: You told us about your definition of covering up?

MR. FUNG: Yes.

MR. SCHECK: As far as you're concerned, would a failure to learn who it was that moved the glove and the envelope constitute a cover-up?

MR. GOLDBERG: Argumentative, your Honor.

THE COURT: Sustained.

MR. SCHECK: Mr. Goldberg read you a section from the book by Dr. De forest, Dr. Gaensslen and Dr. Lee, forensic science-an introduction to Criminalistics. Do you recall that?

MR. FUNG: Yes.

MR. SCHECK: That was at the end of your testimony on redirect?

MR. FUNG: Yes.

MR. SCHECK: All right. And direct your attention to page 415 on to 416. And you recall he read--

MR. GOLDBERG: May I have a moment?

THE COURT: Certainly.

(Brief pause.)

MR. GOLDBERG: From 415 to 416?

MR. SCHECK: Yeah.

MR. SCHECK: Do you recall he read you a passage concerning that it is probable no crime scene has ever been processed in such a way that hindsight would not allow someone else to criticize the work at a later date?

MR. FUNG: Yes.

MR. SCHECK: He read that sentence to you. Let me read you the next few sentences and tell me if you agree with them. "However, investigators must learn from their mistakes and must strive for continuous improvement. No attempt should be made to cover up these mistakes or offer excuses for them. Responsibility for mistakes should be faced squarely." Do you agree with that?

MR. FUNG: Yes.

MR. SCHECK: Have you done that in this case?

MR. FUNG: No.

MR. GOLDBERG: Well, it's vague as to done what; cover up or not cover up?

THE COURT: Sustained.

MR. GOLDBERG: Motion to strike.

THE COURT: Answer is stricken. It's vague. Do you want to reask the question?

MR. SCHECK: Sure.

MR. SCHECK: Have you made an attempt to cover up mistakes or offer excuses for them?

MR. FUNG: No.

MR. SCHECK: Have you met your responsibility to face mistakes squarely?

MR. FUNG: I believe I have.

MR. SCHECK: And as far as you're concerned, if you had any knowledge whatsoever as to who moved the glove and the envelope, you would have no hesitation to come forward and tell us?

MR. FUNG: I would not--if I had knowledge of it, I would have no hesitation, no.

MR. SCHECK: Now, let us turn, sir, to the videotapes that we saw in redirect examination of you and Miss Mazzola leaving--entering and leaving the Rockingham location on the afternoon of June 13th. Now, prior to testifying at all at this trial, had you seen a video of yourself and Miss Mazzola when you leave Rockingham and put the valise and the paper bags into the rear of the crime scene truck?

MR. FUNG: Prior to--

MR. SCHECK: Prior to beginning your testimony at this trial, did you see that segment?

MR. FUNG: I've seen it, yes.

MR. SCHECK: All right. And when you testified initially, you said that you carried the blood sample out in either a paper bag, a posse box or by itself in your hand, but you thought that last possibility was unlikely?

MR. FUNG: Yes.

MR. SCHECK: And part of that testimony I take it was based on reconstructing from the first videotape that you saw before you testified?

MR. FUNG: When I gave that testimony there?

MR. SCHECK: Yeah.

MR. FUNG: I didn't take that into consideration. I was just naming possible modes of transporting that envelope from my memory.

MR. SCHECK: Now, on April 14th, that's before we saw the KABC videotape, you were asked some questions on this issue by Mr. Goldberg on redirect examination. Do you recall that?

MR. FUNG: Yes.

MR. SCHECK: All right. And I'm at 22898, line 14.

MR. GOLDBERG: If I may have a minute, your Honor.

(Brief pause.)

MR. GOLDBERG: What lines?

MR. SCHECK: Let me look at your transcript.

(Brief pause.)

MR. SCHECK: "Question: And at that point in time, did you have an independent recollection, meaning from your own memory of what happened on the 13th, as to exactly what receptacle if any you put the blood vial envelope in? "Answer: No, I did not. "Question: Mr.--" Now, these are by Mr. Goldberg. "Question: Mr. Fung, where did you come up with these different possibilities? "Answer: Those were packaged--packaging items that are in the crime scene--available in the crime scene kit and I name those types of packaging or packages. "Question: Okay. But did you have any memory at that time of putting it in a brown paper bag as opposed to the posse box, as opposed to just handling it without putting it in anything? "Answer: No."

MR. FUNG: That's correct.

MR. SCHECK: Now, when you're answering those questions, you were saying you were not sure of the container or receptacle; is that right?

MR. FUNG: Yeah.

MR. GOLDBERG: It's from independent recollection. Misstates the testimony.

THE COURT: Overruled.

MR. SCHECK: But you never doubted the fact that you were the one that carried it out?

MR. FUNG: No.

MR. SCHECK: Then--

MR. GOLDBERG: Well, it's vague as to whether he did that or did not.

THE COURT: Overruled.

MR. SCHECK: Now, you recall--withdrawn. Before you testified in front of the jury on cross-examination with respect to videotapes of you and Miss Mazzola coming in and out of Rockingham, we showed you some tapes outside the presence of the jury?

MR. FUNG: Yes.

MR. SCHECK: All right. And I showed you a tape--two tapes, two segments of Detective Vannatter getting out of his car carrying a folder with something on the outside of that folder?

MR. FUNG: Yes.

MR. SCHECK: And when I showed you these tapes, at some point, I called your attention to the fact that between the trip where you went to the car and put the bags in the truck, right, and the so-called plastic bag trip, Detective Vannatter's car was in the second set of footage, but not the first?

MR. FUNG: Yes.

MR. SCHECK: And when you saw that, that's when you realized that the blood sample couldn't be in the paper bag, the posse box or that you could have carried it out yourself?

MR. GOLDBERG: This was all asked and answered on cross.

THE COURT: Overruled. You can answer the question.

MR. FUNG: It wasn't at that point that I realized it.

MR. SCHECK: Well, it was when you were watching these videotapes that you realized it?

MR. FUNG: No. It was sometime in the morning when I woke up that that had occurred to me.

MR. SCHECK: Well, the afternoon before you woke up, you had seen some videotapes of yourself and Miss Mazzola leaving?

MR. FUNG: Yes.

MR. SCHECK: All right. So your memory in this morning when it came to you was jogged by your viewing of the videotape?

MR. GOLDBERG: Well, it's vague as to whether it was memory or reconstruction.

THE COURT: Overruled.

MR. FUNG: Well, I started thinking about it more and more and more and things started coming back.

MR. SCHECK: Uh-huh. Well, on redirect examination, did you not testify that you still have no independent recollection of placing the blood sample envelope in a trash bag?

MR. FUNG: I--that's correct, and I still don't.

MR. SCHECK: All right. And you testified on redirect examination yesterday that it's possible other things that you collected that afternoon could have accounted for the heft inside that plastic bag?

MR. GOLDBERG: That misstates the testimony.

THE COURT: Overruled.

MR. FUNG: I don't know if I stated that or not.

MR. SCHECK: I'm at page 22971 to 22972 starting at line 19.

MR. GOLDBERG: If I may just have a moment.

(Brief pause.)

MR. GOLDBERG: I would ask that he read all the way from page 22971--

MR. SCHECK: I'm going to read to line 4 of 22972.

MR. GOLDBERG: No. I would ask he read all the way down to line 24 to put everything in context on page 22972. May we approach?

MR. SCHECK: Your Honor, just--

THE COURT: With the Court reporter.

(The following proceedings were held at the bench:)

THE COURT: All right. We're over at sidebar.

MR. GOLDBERG: You've got to stop. You're killing yourself. Sorry. I just wanted the Court to read all the way down to line--

MR. SCHECK: Your Honor, I'm just trying to--

MR. GOLDBERG: Because what I did is, I asked him whether or not anything could account for the heft. I then asked him, "Anything else that same size, approximate size? "No. "Did you have any other envelopes that were that size? "No." I mean it's all part of the same discussion.

MR. SCHECK: No. Well, your Honor, it's my case and I can read certain portions. I'm not misleading the witness. I'm just bringing him back to the issue of the heft. He was vague on that. I just wanted to read that question and answer and I think--your Honor, I say that with some reluctance, but this will--I haven't done one thing in terms of reading these questions and answers that I think was--can be questioned and I think it's taking a long time here.

THE COURT: Well, the thing--

MR. SCHECK: He's objecting to every impeachment.

THE COURT: The thing that concerns me here though is that we've gone over this. We have the videotapes that speak for themselves.

MR. SCHECK: Your Honor, this is an important issue. I'm sure the Court recognizes that. I think I'm entitled to go into redirect examination and probe his recollection of these events.

THE COURT: And you indicated to me you had about an hour left and you've got about 20 minutes left of that. Objection overruled.

MR. SCHECK: Your Honor, he's been stalling here.

(The following proceedings were held in open Court:)

THE COURT: Thank you, counsel. Proceed.

MR. SCHECK: "Question: Mr. Fung, you have an independent recollection as you sit here today of placing the item that you received from Detective Vannatter, the envelope, into a plastic bag? "Answer: Not an independent recollection, no. "Question: Okay. And when you looked at the scene of Andrea Mazzola taking the plastic bag out of the location, was there anything that you collected between 5:00 o'clock and when you left with Andrea Mazzola that could have accounted for the heft in that bag other than the envelope? "Answer: Possibly. But it is most likely that the envelope is in that bag."

MR. FUNG: Yes.

MR. SCHECK: Okay. Now--

(Brief pause.)

MR. SCHECK: Ask some photographs, your Honor, be marked Defendant's next in order.

MS. CLARK: We've never seen it, your Honor.

THE COURT: Mr. Goldberg?

MR. GOLDBERG: Let me take a closer look.

(Discussion held off the record between the Deputy District Attorney and Defense counsel.)

MR. SCHECK: Your Honor, actually I have--

THE COURT: Be 1110.

MR. SCHECK: Your Honor, we have two photographs that I've shown the Prosecution that I would like to mark Defendant's next in order. We have them--

THE COURT: 1110 and 1111.

(Deft's 1110 and 1111 for id = photographs)

MR. SCHECK: We have them in bar code so I can show them the picture and then Mr. Harris can swipe the bar code and put it up on the screen.

THE COURT: All right.

MR. SCHECK: Now, Mr. Fung, is--recognize that photo to be a shot of the valise, the kind of valise you use when you go to a crime scene?

MR. GOLDBERG: I'm sorry. What was this marked as, your Honor? I missed that.

THE COURT: 10--excuse me. 1110.

MR. FUNG: That is one type that is used.

MR. SCHECK: Is that the type that you carried on that day?

MR. FUNG: I really don't recall.

MR. SCHECK: Well, how many of these valises are there at SID? About four, right?

MR. FUNG: There's this type and then there's other types that don't have this specific configuration.

MR. SCHECK: Uh-huh. But in terms of--putting aside the configuration, in terms of the types of things that are in it, do you recognize on the left-hand side those cards that you put down next to items for purposes of photographing?

MR. FUNG: There's several different make-ups of crime scene kits. These--as long as all the items are--those types of items are in there, it's--it's okay. But there's--there's no one specific place for any one--

MR. SCHECK: I'm not talking about the place where everything is. I'm talking about the items within the kit.

MR. FUNG: This is typical of what would be included in a kit.

MR. SCHECK: Right. And so one of the things that you carry within the kit are these card markers?

MR. FUNG: That is an item, yes.

MR. SCHECK: All right. And you, when you went back into Rockingham, were picking up the card markers on your way back in?

MR. FUNG: I was picking up some cards with letters on them. I don't know if they were from a kit or not.

MR. SCHECK: Well--

MR. FUNG: We make them--we make letters and numbers as we go along sometimes.

MR. SCHECK: And other items that you use at the crime scene are various envelopes such as depicted in this photograph?

MR. FUNG: Yes.

MR. SCHECK: Of various sizes?

MR. FUNG: Yes.

MR. SCHECK: And--

(Brief pause.)

MR. SCHECK: This is 1111.

MR. SCHECK: Now, this depicts some of the water bottles and packages that you used to--which contained swabs, correct?

MR. FUNG: This is typical of that type of thing, yes.

MR. SCHECK: Well, call your attention to those packages with the swabs. That's the kind you use at the lab?

MR. FUNG: Yes.

MR. SCHECK: Now--okay. Now, when you went back into the house, do you recall if you put the cards in an envelope of some kind?

MR. GOLDBERG: Well, it's vague as to which time.

MR. SCHECK: When you went back in the second time and you were picking up the cards, do you recall if you put anything like that in an envelope?

MR. FUNG: I don't know what I did with those cards. I may have thrown them away.

MR. SCHECK: Did you retrieve any packages of materials that you might have left from your work at the crime scene?

MR. FUNG: I don't recall if I did or not.

MR. SCHECK: Well, you recall--withdrawn. You've testified that after you got the envelope from Detective Vannatter, you asked somebody to get you a trash bag?

MR. FUNG: I asked somebody to get me a bag so that I wouldn't have to carry the envelope out in plain view of the media.

MR. SCHECK: Oh. And you were given a trash bag?

MR. FUNG: And I was given a trash bag, yes.

MR. SCHECK: And the picture we saw in the KABC tape shows you in the foyer with a trash bag in your hand and something that appears to be in the shape of an envelope.

MR. GOLDBERG: Well, that misstates the testimony. It's argumentative.

THE COURT: Overruled.

MR. FUNG: Yes.

MR. SCHECK: Now, after you got the envelope containing Mr. Simpson's blood sample from Detective Vannatter, you said you opened up the envelope and looked at--inspected the vial?

MR. FUNG: Yes.

MR. SCHECK: All right. Your Honor, I ask that this be marked Defendant's next in order.

THE COURT: You want to show that to Mr. Goldberg?

(Brief pause.)

THE COURT: All right. That will be 1112. Mrs. Robertson, 1112? 1112.

(Deft's 1112 for id = test tube)

MR. SCHECK: May I approach the witness, your Honor?

THE COURT: You may.

MR. SCHECK: Now, Mr. Fung, does this appear to be a test tube of the same size and configuration as the one you inspected on the afternoon of June 13th?

MR. FUNG: To the best of my recollection, yes.

MR. SCHECK: And on the morning of June 14th, you also handled the blood vial?

MR. FUNG: I handled the envelope, but I don't know if I handled the blood vial itself.

MR. SCHECK: This is testimony at the preliminary hearing at page 78.

(Brief pause.)

THE COURT: Do you have the page, Mr. Goldberg?

MR. GOLDBERG: What lines through what lines?

MR. SCHECK: Page 78 at line 26.

MR. GOLDBERG: This isn't inconsistent.

MR. SCHECK: Refreshing the witness' recollection.

THE COURT: It's not how to do it then.

MR. SCHECK: All right. Let me--may I approach?

THE COURT: You may.

MR. SCHECK: Let me show you this document for a minute, Mr. Fung, direct your attention starting here to the next page.

(Brief pause.)

MR. SCHECK: Okay. Now, having read that, is your recollection refreshed that you handed the blood sample to Mr. Yamauchi on the morning of the 14th?

MR. FUNG: The vial and the envelope were given to Mr. Yamauchi.

MR. SCHECK: And do you recall--and was the vial pretty much full?

MR. GOLDBERG: That's beyond the scope of the direct. It's not--redirect. It's not impeaching.

THE COURT: Sustained.

MR. SCHECK: Well, Mr. Yamauchi, could you mark for us--

THE COURT: Fung. Mr. Fung.

MR. SCHECK: On--

MR. SCHECK: What number is this, your Honor?

THE COURT: Mr. Fung.

MR. SCHECK: The--my apologies.

MR. SCHECK: Mr. Fung, could you mark for us on this test tube which is Defendant's--

THE COURT: 1112.

MR. SCHECK: --1112 where the blood was up to in this test tube when you inspected it on June 13th?

MR. FUNG: I couldn't do that.

MR. GOLDBERG: Well, your Honor, I make a motion to strike. This is beyond the scope of redirect.

THE COURT: Sustained.

MR. SCHECK: Well, you examined the test tube that you got from Detective Vannatter.

MR. FUNG: On the 13th.

MR. SCHECK: On the 13th. Did it appear to you to be pretty much full?

MR. GOLDBERG: Beyond the scope.

THE COURT: Sustained.

MR. SCHECK: When you saw the blood vial on the morning of June 14th, was it pretty much full?

MR. GOLDBERG: Assumes a fact not in evidence and beyond the scope.

THE COURT: Sustained.

MR. SCHECK: Your Honor, may we approach sidebar?

THE COURT: With the Court reporter.

(The following proceedings were held at the bench:)

THE COURT: Mr. Goldberg.

MR. SCHECK: Your Honor?

THE COURT: Go ahead.

MR. SCHECK: Your Honor, I think the testimony is clear from the preliminary hearing that he--

THE COURT: But the scope here is determined by the redirect examination, counsel.

MR. SCHECK: The scope here with respect to the reexamination has to do with what he did on the afternoon of June 13th. And one of those things is, he inspected the blood vial. And I think I'm entitled to test his recollection as to his inspection of the blood vial and what it looked like in order to probe his version of these events. And all I'm asking him to do is--the only reason that the June 14th testimony is relevant is that there is a report saying when he looked at the vial on June 14th, it was pretty much full. I want to know if the vial--I want to ask him if the vial on June 13th was at the same level as when he saw it on June 14th. I want to probe his recollection as to how much blood was in the vial.

THE COURT: Mr. Goldberg.

MR. GOLDBERG: It's still irrelevant. this isn't anything I went into on redirect. I didn't ask him about that. This has to end somewhere, your Honor. We've been at it eight days.

MR. SCHECK: That's the point. I think it's plainly relevant--

MR. GOLDBERG: They can call a witness if they want to.

MR. SCHECK: --to his version of events, looking at the vial. He also did testify to this in terms of whether he tampered with anything, et cetera, on redirect.

MR. GOLDBERG: No, he didn't.

MR. SCHECK: I can do this very quickly with this one question, have him put on this vial where he thinks he saw the blood and be over with it.

THE COURT: He said he couldn't do it already. I'll sustain the scope objection.

(The following proceedings were held in open Court:)

THE COURT: All right. Thank you, counsel. Proceed.

MR. SCHECK: So it's your testimony that you can't tell us, sir--

MR. GOLDBERG: Your Honor, I object to continuing to pursue this line.

THE COURT: Sustained.

MR. SCHECK: I just want to ask this one question, your Honor, about his recollection.

THE COURT: I've sustained the scope objection, counsel.

MR. SCHECK: Now, when you were in the foyer area during this period, you saw a number of detectives come in?

MR. FUNG: I saw detectives come in, yes.

MR. SCHECK: Detective Fuhrman?

MR. FUNG: I don't recall.

MR. SCHECK: You saw Detective Fuhrman coming in wearing a coat?

MR. GOLDBERG: Vague as to time.

THE COURT: Rephrase the question.

MR. SCHECK: When you were in the foyer area on your second trip, you saw Detective Fuhrman walk into the--

MR. FUNG: Based on videotape?

MR. SCHECK: Yes.

MR. FUNG: Yes.

MR. GOLDBERG: Well, make a motion to strike just based on videotape.

THE COURT: Overruled.

MR. SCHECK: Now, you testified on redirect examination on the 14th that--

MR. SCHECK: I'm at 22925, line 18.

MR. GOLDBERG: May I have one moment, your Honor?

(Brief pause.)

MR. GOLDBERG: Through what? Line 18 through what?

MR. SCHECK: Question and answer.

MR. GOLDBERG: Just what?

MR. SCHECK: Just the question and answer.

MR. GOLDBERG: Well, this isn't impeaching.

MR. SCHECK: No. I'm just calling his attention to his testimony.

THE COURT: Proceed.

MR. GOLDBERG: It's irrelevant.

MR. SCHECK: Were you asked by Mr. Goldberg--recall being asked by MR. GOLDBERG: "Question: Did you ever say anything--make a point to say anything about the vial?" This is to Andrea Mazzola. "Answer: No. "Question: Did you have any reason to? "Answer: No."

MR. FUNG: That's correct.

MR. SCHECK: All right. Now, you're saying that you had no reason to tell Andrea Mazzola anything about receiving the blood vial?

MR. FUNG: Not making specific mention of it, no.

MR. SCHECK: She was keeping the notes on--inventorying objects--items that you received?

MR. FUNG: Yes.

MR. SCHECK: Did you regard the blood sample of the Defendant as an important piece of evidence?

MR. GOLDBERG: Calls for speculation as to important piece of evidence.

THE COURT: Overruled.

MR. FUNG: It was a piece of evidence.

MR. SCHECK: You didn't regard it as a particularly important piece of evidence?

THE COURT: That's vague, "Particularly important."

MR. SCHECK: Did you regard it as an important piece of evidence?

MR. GOLDBERG: Still vague, your Honor.

THE COURT: Counsel, it's not a necessary question at this point.

MR. SCHECK: All right. Was there any other piece of evidence that you collected that you didn't mention to Andrea Mazzola on June 13th?

MR. GOLDBERG: Irrelevant.

THE COURT: Overruled.

MR. FUNG: I don't recall any.

MR. SCHECK: When you--after you received the blood vial, were you concerned that it get back to the laboratory in good shape?

MR. FUNG: Yes.

MR. SCHECK: Now, when you walked--you didn't have anything in your hands when you walked out the second time from Rockingham?

MR. FUNG: In the second videotape, no.

MR. SCHECK: You could have carried it?

MR. FUNG: Yes.

MR. SCHECK: And the vial is breakable, isn't it?

MR. FUNG: Yes.

MR. SCHECK: If it broke, it could have spilled, blood could have spilled and been potentially dangerous to your health?

MR. FUNG: Potentially.

MR. SCHECK: And you saw in the videotape where Miss Mazzola is carrying that plastic bag and it's swinging and hitting shrubs and other things as she's walking to the truck?

THE COURT: Sustained.

MR. SCHECK: Now, was there--did you have a reason to keep this a secret from her?

MR. GOLDBERG: Well, assumes facts not in evidence.

THE COURT: Sustained.

MR. SCHECK: Is there a reason that you did not tell her that you were putting a blood vial in a trash bag for her to carry out of the residence?

MR. FUNG: No.

MR. SCHECK: Is it the custom and practice at LAPD to give important fragile items of evidence to Criminalists in trash bags and not tell them what they're carrying?

MR. GOLDBERG: Argumentative as to important fragile items.

THE COURT: Sustained.

MR. SCHECK: Is it your custom and practice to give fragile items of evidence to Criminalists in trash bags and not tell them what they're carrying?

MR. GOLDBERG: Your Honor--

THE COURT: Sustained. Sustained.

MR. GOLDBERG: May we approach, your Honor?

THE COURT: No. Sit down. Proceed.

MR. SCHECK: Now, was there a reason that you did not--the envelope says "Refrigerate" on it, doesn't it?

MR. FUNG: Yes, it does.

MR. SCHECK: But it's your testimony that you now have an independent recollection that you took the plastic bag containing the envelope and put it on--just left it on a table in the evidence processing room?

MR. GOLDBERG: Beyond the scope of redirect.

THE COURT: Sustained.

MR. SCHECK: How many other times in your career, sir, have you collected items that are supposed to be refrigerated and just left them on tables overnight in plastic bags?

MR. FUNG: I don't have any specific recollection to that.

MR. SCHECK: Now, you recall during cross-examination that you saw a videotape of your bare hand grasping a paper object?

MR. FUNG: Yes.

MR. SCHECK: And it's still your position that that was not the envelope containing prescription glasses?

MR. FUNG: Yes, it is.

MR. SCHECK: I'm sorry?

MR. FUNG: That's my position.

MR. SCHECK: That's your position. And you did not notice that segment of the videotape before you testified at trial in the tapes that you were reviewing?

MR. FUNG: I didn't make any particular notice of it.

MR. SCHECK: Uh-huh. So when you were asked whether or not you had grasped the envelope in your bare hand on cross-examination, you said it didn't happen.

MR. GOLDBERG: Wait a minute. That's argument.

THE COURT: Sustained. Rephrase the question.

MR. SCHECK: Is that a--are you saying that's a pad, not the envelope?

MR. GOLDBERG: Misstates the testimony.

THE COURT: Sustained. Rephrase the question.

MR. SCHECK: Is it your position now, sir, that what's depicted in that videotape is not the envelope, but a pad?

MR. GOLDBERG: Assumes a fact not in evidence.

THE COURT: Sustained.

MR. SCHECK: What is it?

MR. FUNG: It--I don't know what it is, but it's not the envelope containing those glasses. It may be a bag. May be another packaging material from the crime scene kit.

MR. SCHECK: And after you saw that videotape of your hand on the item, you said after examining it carefully that you were even more sure in your mind that it is not the envelope because, "We did not start picking up evidence until well after the Coroners were gone."

MR. GOLDBERG: Beyond the scope of redirect.

THE COURT: Sustained.

MR. SCHECK: Your Honor, he asked questions about the Coroners on redirect examination.

THE COURT: Sustained.

(Discussion held off the record between Defense counsel.)

MR. SCHECK: Now, after you saw videotape showing the Coroner's present at the scene when Miss Mazzola was picking up the hat and the glove, you realized that you could not claim you were--that it wasn't the envelope based on the fact that the Coroners weren't there?

MR. GOLDBERG: Unintelligible.

THE COURT: Overruled on that basis.

MR. GOLDBERG: Also beyond the scope of redirect, argumentative.

THE COURT: Overruled. Argumentative it is. Sustained.

MR. SCHECK: You were shown a segment of videotape which depicted the Coroners being present when Miss Mazzola was collecting the hat and the glove?

MR. GOLDBERG: Same objection. Beyond the scope.

MR. SCHECK: Your Honor, I--he asked several questions about this.

THE COURT: Overruled. Quickly.

MR. SCHECK: I'm trying.

MR. FUNG: Yes, I did see videotape of that.

MR. SCHECK: And when you saw that videotape--withdrawn. Now, on redirect examination--

MR. SCHECK: I'm at page 23045.

MR. SCHECK: Did you--

MR. GOLDBERG: May I have a second, your Honor?

THE COURT: Yes.

(Brief pause.)

MR. GOLDBERG: 33045, counsel?

MR. SCHECK: Uh-huh.

(Brief pause.)

MR. SCHECK: Now, in redirect examination, were you asked these questions and did you give these answers?

MR. GOLDBERG: This is improper.

MR. SCHECK: Calling his attention to his testimony.

THE COURT: Overruled.

MR. SCHECK: "Question: When you were involved in the collection process, were you trying to keep track of where the Coroner's representatives were or if they were even there? "Answer: No. "Question: To this day, do you have an independent recollection of them being there? "Answer: No independent recollection, no. "Question: Do you have any reason to believe that they were there other than the one clip of videotape that you saw with what appears to be the pants leg of one of the Coroner's representatives in it? "Answer: No. Only the videotape shows that they're there." Recall giving that answer?

MR. FUNG: Yes.

MR. SCHECK: So you're now saying, sir, that you're sure that that isn't the envelope?

MR. FUNG: Yes.

MR. SCHECK: And you're sure because it is not your practice to touch objects with your bare hand?

MR. GOLDBERG: Your Honor, this has been gone over. Asked and answered.

THE COURT: Overruled.

MR. FUNG: It's not my practice to touch bloody items that could be for prints.

MR. SCHECK: So your certainty with respect to the envelope comes from assuming that you always follow the rules?

MR. GOLDBERG: Well, it's overbroad as to--

THE COURT: Sustained.

MR. SCHECK: Is it your habit when testifying, sir, to say that you use correct procedures even if you do not have an independent recollection of what you did?

MR. FUNG: I testify to what I can remember. And if I don't have a specific memory, I will state that I don't and testify to what I generally do.

MR. SCHECK: And sometimes you testify to what you generally do without saying, "This is what I generally do." You just state it as a fact that you did it?

MR. GOLDBERG: That's argumentative.

THE COURT: Sustained.

(Discussion held off the record between Defense counsel.)

MR. SCHECK: Your Honor, could I have the envelope that is item no. 10?

THE COURT: What evidence item?

(Brief pause.)

MR. SCHECK: Now, you recall on direct examination a videotape of you stuffing the blue gauze pad back in the envelope?

THE COURT: Redirect.

MR. SCHECK: Redirect. I'm sorry.

MR. FUNG: Yes.

MR. SCHECK: All right. Your Honor, could we have the knife again?

THE COURT: A knife?

MR. SCHECK: Knife, your penknife, scissors? Things are getting more ominous as--

MR. SCHECK: Could you please cut the top of the envelope in the same fashion we did before?

MR. FUNG: Along the bottom again?

MR. GOLDBERG: Well, I'll object, it was in the same fashion. I think he was wearing gloves if I recall.

MR. SCHECK: Yes, that's true.

THE COURT: Mrs. Robertson, gloves.

(Brief pause.)

MR. GOLDBERG: May I approach?

MR. SCHECK: Would you please unseal the top and drop the item on the stand.

MR. GOLDBERG: Indicating the counter of the witness.

MR. SCHECK: Counter of the witness.

MR. GOLDBERG: For the record, he just cut along the top I believe--

MR. SCHECK: Just put it as you got it. Now, when you first took it out, it was wrinkled, wasn't it?

MR. FUNG: Yes, it was.

MR. SCHECK: All right. And it was wrinkled because when you stuffed it into the coin envelope using the scoop method, it became wrinkled in that fashion?

MR. FUNG: Yes.

MR. SCHECK: All right. But when you first saw that item, when we pulled it out originally, it was just folded over.

MR. GOLDBERG: Wait a minute. That's irrelevant, how it was when he first saw it.

THE COURT: Overruled.

MR. SCHECK: It was just folded over, wasn't it?

MR. FUNG: That's because other people had analyzed it since.

MR. SCHECK: Well, I'm only asking you what you just--

MR. GOLDBERG: Well--

MR. SCHECK: When we--when you first saw the item--

THE COURT: Wait, wait. One person talks at a time here. If I have to instruct another person as to that rule, they'll be sanctions. Thank you. Proceed.

MR. GOLDBERG: May I make an objection?

THE COURT: Yes, you may.

MR. GOLDBERG: I object that he be--

THE COURT: Basis.

MR. GOLDBERG: --allowed to answer--finish his answer.

THE COURT: Proceed.

MR. SCHECK: Finished with your answer?

MR. FUNG: Yes.

MR. SCHECK: When you first saw that blue item, it was folded?

MR. FUNG: Yes.

MR. SCHECK: It wasn't wrinkled?

MR. FUNG: Do you mean, did it have any wrinkles in it or--

MR. SCHECK: Yes. Was it wrinkled in the same fashion as we saw it when you put it on the table just now?

MR. GOLDBERG: It's vague.

THE COURT: Counsel--wait, wait. Was this piece of evidence analyzed for anything?

MR. FUNG: Yes.

MR. SCHECK: Your Honor--

THE COURT: Really, this is--

MR. SCHECK: Your Honor--

THE COURT: The jury saw it when it came out, the jury saw it when it went back in. Proceed.

MR. SCHECK: Next question, your Honor.

MR. SCHECK: Would you agree that this item became wrinkled by the method you used to insert it into this coin envelope, the scoop method?

MR. GOLDBERG: Calls for speculation.

THE COURT: Overruled.

MR. FUNG: Yes, it was wrinkled by that method.

MR. SCHECK: All right. But when you first took that item out, when you--I showed it to you on cross-examination, it was not wrinkled in that fashion through the scoop method, was it?

MR. FUNG: It was--

MR. GOLDBERG: Irrelevant, your Honor.

THE COURT: Overruled.

MR. FUNG: It was folded.

MR. SCHECK: It was folded.

MR. SCHECK: Your Honor, I'm finished with that.

THE COURT: All right. Mr. Fung, would you return that, please. (The witness complies.)

THE COURT: All right. Mr. Fung has placed it back into the envelope. Proceed.

MR. SCHECK: Now, when you on redirect examination tried scooping it into the envelope, you were trying to do something clever to avoid the inference that Detective Fuhrman had collected that item with gloves on the morning of June 13th?

THE COURT: Sustained. It's argumentative.

MR. SCHECK: When you--did you have any concern when you were testifying with respect to this item that the jury might believe that Detective Fuhrman had gloves in his possession on the afternoon of June--morning of June 13th when he collected that item?

MR. GOLDBERG: Argumentative.

THE COURT: Overruled.

MR. FUNG: No.

MR. SCHECK: Let's turn to the Bronco, sir. Show you what's been--People's 197-b.

(Brief pause.)

MR. SCHECK: Now, this is the photograph you were shown on redirect examination?

MR. FUNG: Yes, it was.

MR. SCHECK: And this is a photograph taken on June 14th?

MR. FUNG: Yes, it is.

MR. SCHECK: Are these four reddish stains a quarter of an inch long?

MR. FUNG: From the best of my recollection, no, they're not.

MR. SCHECK: Are these reddish stains that look like brush marks?

MR. FUNG: They don't appear to be brush marks to me.

MR. SCHECK: When you observed these items on the door sill of the Bronco on June 14th, were they red?

MR. FUNG: They were reddish.

MR. SCHECK: Sure of that?

MR. FUNG: Yes.

MR. SCHECK: Do they appear to you to be reddish in this photograph?

MR. FUNG: When I look at the monitor, I--in this picture right now, I can't even see the stains.

THE COURT: All right. We've changed the contrast on it.

MR. SCHECK: Well--

MR. FUNG: Well, now they appear dark.

MR. SCHECK: But not red?

MR. GOLDBERG: Well, your Honor, this isn't the photograph he was shown.

THE COURT: Overruled.

MR. SCHECK: Do you have the photograph? Show him the photograph.

MR. GOLDBERG: It's in evidence.

MR. SCHECK: Have you examined the photograph?

MR. FUNG: Yes.

MR. SCHECK: Does it look red in the photograph?

MR. FUNG: It looks brown or dark in the photograph.

MR. SCHECK: Gray or black?

MR. FUNG: It's dark.

MR. SCHECK: Specks of dirt?

MR. GOLDBERG: It's not a question.

THE COURT: Sustained.

MR. SCHECK: Could it be specks of dirt?

MR. GOLDBERG: Speculation.

THE COURT: It's vague as to what we're talking about.

MR. SCHECK: Now, on July 6th, Miss Clark told you to go out and look at the Bronco you're testifying to see if there were four red stains on the exterior of the door sill?

MR. FUNG: She told me to do that at some date prior to that. I don't know--I don't believe it was on the 6th, but I did go out there on the 6th to look for stains that were visible from the exterior.

MR. SCHECK: Well--

MR. FUNG: Specifically on the driver door.

MR. SCHECK: Didn't she tell you to go out and look at the exterior of the driver door the day before you testified at the preliminary hearing?

MR. FUNG: It was around that time, but I'm not absolutely sure that it was the day before. It may have been two or three days before.

MR. SCHECK: Have you previously testified that you went out to inspect the Bronco the morning of your testimony of the preliminary hearing which was July 6th?

MR. FUNG: Yes.

MR. SCHECK: And that you had been told to go out the day before to do it?

MR. GOLDBERG: Well, transcript, page, line?

MR. SCHECK: Well--try it this way.

MR. SCHECK: Were you informed by Miss Clark that a detective had testified to seeing red stains on the door sill of the Bronco?

MR. FUNG: She had told me that a detective had told her that stains were visible from the outside of the Bronco.

MR. SCHECK: Four red stains on the exterior of the door sill?

MR. FUNG: She didn't tell me how many.

MR. SCHECK: Well, cross-examination, page 22410, line 22.

MR. GOLDBERG: May I have a moment, your Honor?

THE COURT: Certainly.

(Brief pause.)

MR. GOLDBERG: I'm sorry.

MR. SCHECK: I'm sorry. And keep the book there, please, because we're going to go to another page.

MR. GOLDBERG: Can you give me lines, counsel?

MR. SCHECK: Well, I'm starting at 22410, line 22.

(Brief pause.)

MR. SCHECK: Ready?

MR. SCHECK: "Question:"

MR. GOLDBERG: Your Honor, may we approach? I have an objection to this.

THE COURT: Is this foundational?

MR. SCHECK: No. This is--

THE COURT: All right. Let me see you with the Court reporter please.

MR. SCHECK: Well, actually it is foundational. It's got two purposes.

(The following proceedings were held at the bench:)

THE COURT: All right.

MR. SCHECK: I'll start first with 22410. he's asked: "Were you informed Detective Fuhrman testified seeing four red stains?" I'm going to go on and going to ask him questions starting at 22406 about the fact that--if you recall, your Honor, he was--then indicated he had trouble with whatever it was for which it was on June 14th and he saw four as opposed to two.

THE COURT: Mr. Goldberg.

MR. SCHECK: On redirect, he picked four.

MR. GOLDBERG: This is impeaching him with ambiguous minutia. He doesn't say how many here. He just says he had seen them. What does that refer to? One, two, three four? Like most of Mr. Scheck's questions, he has multiple clauses in it. We're informed by Miss Clark that Detective Fuhrman testified to seeing four red stains on the exterior of the door sill. She didn't name Detective Fuhrman by name, but she did say detectives had. It's ambiguous. He's impeaching him by ambiguity. I think--he's on the eighth day of cross-examination. It should be shut down and under 352, some of this should just be cut down.

THE COURT: We're not on the eighth day of cross-examination.

MR. GOLDBERG: Isn't it? Eighth day of examination.

MR. SCHECK: Your Honor, I'm just going to give the witness--I'm going to inquire--I think I have the right to inquire. He picked four spots now in this photograph, and on cross-examination before, he said, "I have trouble with the number four." I'm going to go through all that with him. and what does concern me, your Honor, is that Miss Clark--we hear at some point--we can hear what she said to him and what he said to her about this whole episode because it seems to me that it's an important issue of credibility that's arisen.

THE COURT: Objection to the first passage is sustained. Overruled as to the second passage.

(The following proceedings were held in open Court:)

THE COURT: All right. Thank you, counsel. Proceed.

MR. SCHECK: In this photograph, which is People's 197-b, you identified four items?

MR. FUNG: Yes.

MR. SCHECK: All right. Now, on cross-examination, on page 22406, line 1, were you asked these questions, did you give these answers?

MR. GOLDBERG: May I have one moment, your Honor?

THE COURT: Hold on.

(Brief pause.)

MR. SCHECK: May I proceed?

THE COURT: Proceed.

MR. SCHECK: "Question: My question, sir, is it your testimony that you saw four red stains on the exterior of the Bronco door on June 14th, but you thought they were not heavy enough, and therefore you did not direct the photographer to take a picture? Is that what happened? "Answer: I can't--I don't know if there were four or not. I--the number four is the problem with the answer. "Question: You saw three on the exterior of the Bronco on June--"Answer: I don't recall the number. "Question: Are you saying that you saw three red strains on the morning of June 14th?"

MR. GOLDBERG: Stains.

MR. SCHECK: "Stains on the morning of June 14th? "Answer: No, I'm not saying that. "Are you saying you saw two red stains? "Answer: I do remember that there was either a stain or two stains that were very light along the sill area that I did not collect." Asked those questions, did you give those answers?

MR. FUNG: Yes.

MR. SCHECK: Now, after the weekend and looking at photographs, you're now prepared to say that 197-b shows four red stains that you saw on the morning of June 14th?

MR. FUNG: Those are areas that were present that I--well, I don't specifically remember these stains, but I do remember stains present on the vehicle at--in that--in those locations approximately and these are consistent with those areas.

MR. SCHECK: Well, you're telling us that you have an independent recollection of seeing four stains on June 14th?

MR. GOLDBERG: Misstates the testimony, your Honor.

MR. FUNG: No, that's not what I'm saying.

MR. SCHECK: You're not saying that?

MR. FUNG: I'm not saying that.

MR. SCHECK: All right. So basically what you are telling us is that you looked at this photograph and you're now reconstructing the fact that those must be four red stains?

MR. FUNG: I knew that I--I remember seeing stains on this door sill that day, and looking at the photograph, I'm identifying these as possible red stains.

MR. SCHECK: Now, three of the items that you've circled here can only be seen if the door is open?

MR. FUNG: The two--the very top one and the one to the right, that's correct.

MR. SCHECK: So to see these items, someone would have to open the door of the car?

MR. FUNG: To see those, yes.

MR. SCHECK: Now, you gave us testimony that the fibers from a carpet can get into the crevices of shoes?

MR. FUNG: They have a more--yes.

MR. SCHECK: And so if someone has stepped in blood and the shoes are no longer making impressions of bloody shoeprints on cement, when a person steps on fibers, the fibers will go into the crevices of the shoe?

MR. FUNG: It's possible.

MR. SCHECK: And that would be true for the shoes of a police officer who had stepped in blood as it would be for any other person wearing shoes?

MR. GOLDBERG: Argumentative, your Honor.

THE COURT: Overruled.

MR. FUNG: If that was--yeah. It is likely.

MR. SCHECK: Now, the mat in the car, the Bronco, it doesn't have fibers?

MR. FUNG: No.

MR. SCHECK: And the brake pedal doesn't have fibers?

MR. FUNG: It's made out of rubber.

MR. SCHECK: Now, you told us that you didn't swatch these items, these red stains--well, you didn't--withdrawn. You did not swatch the items that you saw on the door sill?

MR. FUNG: That's correct.

MR. SCHECK: On June 14th?

MR. FUNG: Yes.

MR. SCHECK: Because you were only taking representative samples?

MR. FUNG: I was taking representative samples.

MR. SCHECK: Where is it in the rules of your laboratory that there's a doctrine about taking only representative samples?

MR. FUNG: I don't know if it's written anywhere, but that's the way I was trained and that's been the policy handed down and taught to every Criminalist that's worked for the Los Angeles Police Department.

MR. SCHECK: Is there any document that you know of in the crime lab that talks about taking only representative samples?

MR. FUNG: I'm not aware of one.

MR. SCHECK: And in terms of swatching a stain so that you only get a representative sample, is that in any document in the crime lab?

MR. FUNG: I don't know of any document to that effect.

MR. SCHECK: And we're clear on this; you recall testifying that when you swatch stains in the Bronco, you didn't swatch the whole stain. You only swatched a representative sample of the stain?

MR. FUNG: I believe that was for--that wasn't for every stain, but a--one stain in particular that you were talking about.

MR. SCHECK: Stains on the console?

MR. FUNG: Yes.

MR. SCHECK: But as far as you know, the only document in the crime lab that instructs you about swatching for purposes of DNA testing directs the Criminalist to get as much of the stain as possible?

MR. GOLDBERG: Misstates the testimony.

THE COURT: Overruled.

MR. FUNG: The collection for conventional serological or conventional serology and DNA collection are essentially the same.

MR. SCHECK: You--do you recall--withdrawn. Haven't you seen a handout that gives directions on how Criminalists should swatch blood evidence?

MR. FUNG: If you could show it to me, I--I may be refreshed, but--

MR. SCHECK: Do you recall you and I went through a form that had about 13 different directions on them?

MR. FUNG: You've shown a lot of things to me over the last eight days.

MR. SCHECK: Okay. Now, on redirect examination, you indicated that you didn't think that you were necessarily covered by the rules in the Los Angeles Police Department manual.

MR. FUNG: I believe I--

MR. GOLDBERG: Can you cite a specific page of the transcript?

MR. SCHECK: Let's do it this way.

MR. SCHECK: Do you believe that you're covered by the rules in the Los Angeles Police Department manual?

MR. GOLDBERG: Overbroad as to rules.

THE COURT: Overruled.

MR. FUNG: Certain aspects of the manual do pertain to the civilians, yes.

MR. SCHECK: The manual as it sets forth rules on the booking and handling of evidence, does that govern you?

THE COURT: Haven't we gone over this already?

MR. SCHECK: Well, he did it on redirect. I'm doing it fast.

THE COURT: Doesn't mean we have to do it again.

MR. SCHECK: Well, I'll do it fast. I just have two or three questions here.

MR. FUNG: The guidelines in the general principles are applicable to us, yes.

MR. SCHECK: Well, there are guidelines and general principles, but you don't feel that you have to follow those rules as written with respect to booking evidence?

MR. FUNG: As long as I'm following the intention of the policy, that's what the manual's for.

MR. SCHECK: And the rules say that you should book biological evidence as soon as possible?

MR. FUNG: Yes.

MR. SCHECK: And in this case, you did not book by putting the items into the evidence processing--evidence control unit, the swatches from Bundy where Mr. Simpson's blood sample or the glove or the hat or any of these items, until June 16th?

MR. GOLDBERG: Beyond the scope of the redirect, your Honor.

THE COURT: Overruled.

MR. FUNG: Booking the--those items of evidence by June 16th was very quick.

MR. SCHECK: You--my question, sir, you did not take them to the ECU and have them stamped and book until June 16th?

MR. FUNG: That is correct.

MR. SCHECK: Now, you've told us on redirect examination that no rule or procedure would be violated if you had told Andrea Mazzola to throw out some original pages of the crime scene checklist and write a new form?

MR. GOLDBERG: Well, it's overbroad. We specified certain pages.

THE COURT: Overruled.

MR. FUNG: I stated that they could be rewritten.

MR. SCHECK: Well, weren't you asked that there was no rule or procedure that would be violated if Miss--if you had told Miss Mazzola to throw out the original page and write a new form?

MR. GOLDBERG: Still vague as to which page.

THE COURT: Overruled.

MR. FUNG: I stated something to that effect about a portion of a form, yes.

MR. SCHECK: Well, was the page where Miss Mazzola had written--Miss Mazzola had written in handwriting, right, 17 as the sneakers, 18 as the blood vial and 19 as a hair from the Rockingham glove?

MR. FUNG: The one with no actual form writing on it or Xeroxing?

MR. SCHECK: Yes. But it was on the back of a piece of paper that was an official form?

MR. FUNG: Yes.

MR. SCHECK: Well, are you telling us that that form could have been--that original piece of paper could have been thrown out without violating any rule?

MR. FUNG: As long as the information was transposed to some--to another form.

MR. SCHECK: So you feel you have no obligation to save original documents?

MR. GOLDBERG: Well, it's vague as to time.

THE COURT: It's also irrelevant. It is the document.

MR. SCHECK: In your crime lab, are there any rules that require you to save original crime scene checklists?

MR. GOLDBERG: It's irrelevant, vague as to time.

MR. SCHECK: Your Honor, he asked questions if you can just throw these out.

THE COURT: Answer the question.

MR. FUNG: Well, once--there are rules, yes.

MR. SCHECK: The rules are that the originals are supposed to be kept in one place in the laboratory?

MR. FUNG: The final version of the originals, yes.

MR. SCHECK: Now, you were informed that there was a Court order to produce original documents in this case?

MR. FUNG: Eventually, well, one was ordered, yes.

MR. SCHECK: Well, do you recall--when did you first learn that there was a Court order to have original documents examined?

MR. FUNG: It was somewhere around the preliminary hearing. That's what I recall.

MR. SCHECK: Preliminary hearing? That was in July 1994.

MR. FUNG: That's what I recall. I don't recall when it was.

MR. SCHECK: Somebody asked you in July of 1994 to produce your original documents of the crime scene checklists?

MR. FUNG: To the best of my recollection. I don't recall exactly when. But that--when--that's when I recall.

MR. SCHECK: Who asked you to do that?

MR. FUNG: I don't know.

MR. SCHECK: Someone in the lab?

MR. FUNG: I don't recall.

MR. SCHECK: Well, did Michele Kestler or Greg Matheson review your originals in July?

MR. FUNG: I don't recall when they reviewed my originals.

MR. SCHECK: Your Honor, I have--

THE COURT: Go ahead and finish.

MR. SCHECK: --15 minutes.

THE COURT: Go ahead and finish.

MR. SCHECK: 15 minutes?

THE COURT: Be my guest.

MR. SCHECK: Now--

THE COURT: Madam reporter.

THE COURT REPORTER: I'm okay.

MR. SCHECK: Now, do you recall about two months ago that you were informed that the Defense had requested the originals of your crime scene checklists for purposes of having them examined by a document examiner?

MR. FUNG: Yes.

MR. SCHECK: And were you involved in producing the originals for that purpose?

MR. FUNG: I was involved in some portion of it.

MR. SCHECK: What portion?

MR. FUNG: There was--there came a question as to there were some items missing from my original, from my set of original notes, and I was asked to look for them, and I did find one page at that time.

MR. SCHECK: This was a page that was undated that recounted what you had given to Mr. Yamauchi on June 15th?

MR. FUNG: Yes.

MR. SCHECK: And what happened is is that someone came to you from either the lab or the Prosecutor's office and said, "This page isn't an original. Can you find the original"?

MR. FUNG: Mr. Matheson called me and asked me to--if I had that page.

MR. SCHECK: All right. And you went through the blue notebook in front of you?

MR. FUNG: Yes.

MR. SCHECK: And you found the original for that page?

MR. FUNG: Yes.

MR. SCHECK: Did anyone ask you to go through the other pages that had been produced for the Defense document examiner to be sure that you had in fact produced all the originals?

MR. FUNG: No.

MR. SCHECK: No one made that suggestion to you?

MR. FUNG: No.

MR. SCHECK: Now, during the--before my cross-examination ended of you, you had a conversation with the Prosecutors about page 4 of that checklist?

MR. FUNG: Before your--

MR. SCHECK: Page 4, before my cross-examination.

MR. FUNG: Before it ended?

MR. SCHECK: Yes. Just at the time it ended.

MR. GOLDBERG: Well, that's vague.

THE COURT: Rephrase.

MR. SCHECK: All right.

MR. SCHECK: There came a point when I asked you some questions and documents were distributed to the jury.

MR. FUNG: Yes.

MR. SCHECK: And there was a break and you spoke with Prosecutors.

MR. FUNG: Yes.

MR. SCHECK: And you went through your book?

MR. FUNG: I'm not sure if I went through the book at that time or at a subsequent break.

MR. SCHECK: Well, before Mr. Goldberg got up and started asking you questions on redirect examination, had you gone through your book and identified a page that you believed was the original page 4?

MR. FUNG: I do remember going through it prior to Mr. Goldman's redirect.

MR. SCHECK: All right. And was there a conversation with Prosecutors about this item that you'd come up with, this page 4?

MR. FUNG: Yes.

MR. SCHECK: And was a decision made in your presence by the Prosecutors--

MR. GOLDBERG: Your Honor, this is irrelevant and calls for hearsay.

THE COURT: Sustained. Calls for a legal conclusion. Sustained.

MR. SCHECK: Did you once you identified this page that you realized was the original page 4 say to anyone, "Oh, there's a mistake. We should have given this document to the Defense before"?

MR. GOLDBERG: Your Honor, argumentative.

THE COURT: Sustained.

MR. SCHECK: Just a few questions about the blanket. Maybe one. In your judgment, sir, is the only way to have secondary transfer of hairs, fibers and cellular material from the blanket that was brought to the Bundy crime scene to wave it?

MR. GOLDBERG: Hair, fibers and cellular material, compound.

THE COURT: Overruled.

MR. FUNG: Is that the only way?

MR. SCHECK: Yeah.

MR. FUNG: For it to transfer?

MR. SCHECK: Yeah.

MR. FUNG: The most likely way is for it to have transferred through direct contact.

MR. SCHECK: Now--

MR. SCHECK: I'm now at 23137, line 16.

MR. GOLDBERG: May I just have a moment? I'm sorry.

THE COURT: Certainly.

(Brief pause.)

MR. GOLDBERG: Which page, which line?

MR. SCHECK: Line 16.

MR. GOLDBERG: 23127?

MR. SCHECK: No. 23137.

MR. GOLDBERG: Through 17, through--

MR. SCHECK: I just have it here and I'll just start reading.

MR. GOLDBERG: May I just--maybe we--

(Discussion held off the record between the Deputy District Attorney and Defense counsel.)

MR. SCHECK: May I proceed?

MR. SCHECK: Asked this hypothetical question by Mr. Goldberg. "Question: All right. Now, if hypothetically there were saliva from the Defendant that had been dried on the white blanket, could that saliva somehow float down the entire crime scene and hit the rear gate and turn red? "Answer: No. "Question: All right. Would you expect that saliva or any biological material would contaminate the stains that you and Miss Mazzola had collected along the trail? "Answer: Given your hypothetical, no." You were asked those questions, gave those answers?

MR. GOLDBERG: Not impeaching, so it's irrelevant.

MR. SCHECK: It's foundational.

THE COURT: Overruled.

MR. FUNG: Yes.

MR. SCHECK: Now, you were shown a photograph of the rear gate at Bundy?

MR. FUNG: Yes.

MR. SCHECK: That was taken on June 13th.

MR. SCHECK: Do we have that here?

(Discussion held off the record between the Deputy District Attorney and Defense counsel.)

(Brief pause.)

MR. GOLDBERG: Let me see if I can find the exhibit number for counsel.

MR. SCHECK: While we are looking for it, let me just ask you some questions.

MR. SCHECK: Do you remember seeing that photograph?

MR. FUNG: Yes.

MR. SCHECK: And there was a blood spot that you saw on July 3rd that was labeled 116?

MR. FUNG: Yes.

MR. SCHECK: And you did not see that on the photograph, the blown-up photograph that was taken on June 13th?

MR. GOLDBERG: This is beyond the scope, your Honor.

THE COURT: Overruled.

MR. FUNG: I did not see it.

MR. SCHECK: MR. SCHECK: All right. And you cannot tell us from your own personal knowledge how 116 got there on July 3rd?

MR. FUNG: Not from my personal knowledge, no.

MR. SCHECK: But you're certain it was not planted there by anybody?

MR. GOLDBERG: Your Honor, that calls for speculation. It's argumentative.

THE COURT: Sustained.

MR. SCHECK: Are you aware, sir, that 1.9 milliliters or one quarter of the blood collected from Mr. Simpson's blood--

MR. GOLDBERG: Your Honor--

THE COURT: Sustained. Sustained. Sustained. Assumes facts not in evidence, counsel.

MR. GOLDBERG: Your Honor--

THE COURT: Not an appropriate question. The jury is to disregard the implication of that question. Proceed.

MR. GOLDBERG: Your Honor--

MR. SCHECK: Mr. Fung, you've been listening to the testimony at this trial?

MR. FUNG: Certain portions of it, yes.

MR. SCHECK: You heard the opening statements?

THE COURT: We're not cross-examining on that, counsel.

MR. SCHECK: Well, your Honor, may--this is the last line. If you want, I'll approach on it.

THE COURT: It assumes facts that aren't in evidence, counsel.

MR. SCHECK: I'm not talking about--I'm asking about his awareness of Defense positions.

THE COURT: Not as phrased.

MR. SCHECK: All right. Has it come to your attention that the Defense alleges--

MR. GOLDBERG: Your Honor, may we approach on this?

THE COURT: Yes, with the Court reporter.

(The following proceedings were held at the bench:)

THE COURT: All right. We are at the sidebar.

MR. GOLDBERG: Your Honor, this is totally improper, and to put what their contentions are before this jury through this witness--and the Court will recall when I asked him the most mild form, what his understanding of our positions were, I was immediately cut off. The objection was sustained. I was not permitted, even when I said it went to the issue of state of mind. This is improper. Counsel should not be allowed to do this. I would ask the jury be admonished.

MR. SCHECK: Your Honor--

MR. GOLDBERG: And I would ask that sanctions be given against him if the Court is inclined to give sanctions. The Court knows that I'm not particularly fond of that technique generally speaking.

MR. SCHECK: Your Honor, on redirect examination, Mr. Fung was asked a number of times about whether or not there was a conspiracy to plant blood, to take blood, that he was involved with anybody. He was also asked with respect to his handling of the blood sample, whether or not he had ever--how much preparation had gone into his testimony about this. He said very little. He said there was no awareness, no investigation of this within SID. There was nobody at SID who had been looking into the circumstances of tampering with this evidence, and I just want to establish his awareness that before he even came in here to testify, this was an issue, as to tampering with Mr. Simpson's blood vial. If you want, I'll rephrase the question just to that issue of awareness.

THE COURT: All right. This is all totally speculative and undue consumption of time. Under 352, I'm sustaining the Court's own objection.

(The following proceedings were held in open Court:)

THE COURT: Proceed.

MR. SCHECK: Do you know a Michael Stevens from the District Attorney's office?

MR. GOLDBERG: Beyond the scope, irrelevant.

THE COURT: Overruled.

MR. FUNG: I know someone named Mike, but I don't know if this is the person you're referring to.

MR. SCHECK: Guy with--tall guy with silver hair?

MR. FUNG: Okay. I think I know who you are talking about.

MR. SCHECK: Do you know Dana Thompson from the District Attorney's office?

MR. FUNG: I've met Dana.

MR. SCHECK: All right. You know Mr. Thompson to be a senior investigator in the District Attorney's office?

MR. FUNG: I only know he works for the D.A.'s office.

MR. SCHECK: Has either of these gentlemen ever asked you any questions with respect to the handling of Mr. Simpson's blood vial?

MR. GOLDBERG: Beyond the scope of redirect.

THE COURT: Overruled.

MR. FUNG: No.

MR. SCHECK: 166-a. Show you this photograph, 166-a.

MR. SCHECK: Mr. Fung, where is drop 116 that you saw on July 3rd?

MR. GOLDBERG: Your Honor, I'll object. He's already gone into this.

THE COURT: Overruled.

MR. FUNG: It does not appear in the picture. However, it may be on the curved area behind it. It just doesn't appear in the picture though.

MR. SCHECK: Uh-huh. And it may be that it got there sometime between June 13th and July 3rd.

THE COURT: Sustained.

MR. SCHECK: You can't tell us from your own personal knowledge?

MR. GOLDBERG: Your Honor, makes--motion to strike.

THE COURT: Sustained.

MR. SCHECK: No further questions.

THE COURT: All right. All right. Ladies and gentlemen, we are going to take our recess for the morning session. Please remember all of my admonitions to you; do not discuss the case amongst yourselves, do not form any opinions about the case, do not conduct any deliberations until the matter has been submitted to you, do not allow anybody to communicate with you with regard to the case. We'll stand in recess until 1:30. Mr. Fung, you are ordered to return 1:30. Thank you, counsel.

(At 12:20 p.m., the noon recess was taken until 1:30 p.m. Of the same day.)

Los Angeles, California; Tuesday, April 18, 1995 1:44 p.m.

Department no. 103 Hon. Lance A. Ito, Judge

APPEARANCES: (Appearances as heretofore noted.)

(Janet M. Moxham, CSR no. 4855, official reporter.)

(Christine M. Olson, CSR no. 2378, official reporter.)

(The following proceedings were held in open Court, out of the presence of the jury:)

THE COURT: All right. Good afternoon, counsel. Anything we need to discuss before we invite the jurors to rejoin us? All right. Let's have the jury, please.

(Brief pause.)

(The following proceedings were held in open Court, in the presence of the jury:)

THE COURT: All right. Thank you, ladies and gentlemen. Please be seated. All right. Let the record reflect that we have been rejoined by all the members of our jury panel. Good afternoon, ladies and gentlemen.

THE JURY: Good afternoon.

Dennis Fung, the witness on the stand at the time of the noon recess, resumed the stand and testified further as follows:

THE COURT: Mr. Dennis Fung is again on the witness stand. The Defense has concluded their recross examination. And Mr. Goldberg, you may re-redirect.

MR. GOLDBERG: Thank you, your Honor.

FURTHER REDIRECT EXAMINATION BY MR. GOLDBERG

MR. GOLDBERG: Good afternoon, Mr. Fung.

MR. FUNG: Good afternoon.

MR. GOLDBERG: Ladies and gentlemen.

THE JURY: Good afternoon.

MR. GOLDBERG: Mr. Fung, do you remember being asked some questions on recross about a videotape that was taken at the time of the search warrant?

MR. FUNG: Yes.

MR. GOLDBERG: And did you in fact have a chance to view that videotape?

MR. FUNG: Yes.

MR. GOLDBERG: And you said that that was when?

MR. FUNG: I viewed the videotape before I started my testimony here.

MR. GOLDBERG: Okay. So that videotape couldn't possibly have affected your testimony here, could it have, since you had already seen it?

MR. SCHECK: Objection.

THE COURT: Sustained. Rephrase the question.

MR. GOLDBERG: Okay. Did you ever consider changing or altering your testimony in any way based upon seeing that videotape?

MR. FUNG: No.

MR. GOLDBERG: All right. Now, as to stain no. 12, the one that was downstairs in the foyer, do you recall, sir, whether you collected the downstairs items in the afternoon of the 13th prior to the upstairs items?

MR. FUNG: We began downstairs.

MR. GOLDBERG: Okay.

MR. FUNG: And worked our way upstairs.

MR. GOLDBERG: So that--in that case 12 would have been collected before 13?

MR. FUNG: Yes.

MR. GOLDBERG: And what time was 12 collected, approximately, according to the crime scene identification checklist?

MR. FUNG: According to the checklist, it was collected at 4:30.

MR. GOLDBERG: All right. And do you recall my asking you on recross whether you were sure about whether 13 was collected before 14?

MR. FUNG: Yes.

MR. GOLDBERG: Are you a hundred percent sure?

MR. FUNG: Not a hundred percent sure, no.

MR. GOLDBERG: Which one do you think was collected first?

MR. FUNG: I think the socks and item 13 were collected first.

MR. GOLDBERG: Before 14?

MR. FUNG: Yes.

MR. GOLDBERG: But you can't be a hundred percent sure?

MR. FUNG: I'm not a hundred percent sure.

MR. GOLDBERG: When was 14, the item in the bathroom, master bathroom, collected, that stain?

MR. FUNG: That stain was collected around 4:40.

MR. GOLDBERG: So you are saying, I believe, that the socks were collected after 4:30--well, between 4:30 and 4:40, approximately?

MR. FUNG: In that general time frame, yes.

MR. GOLDBERG: And as far as you are concerned, Mr. Fung, does it make the slightest bit of difference that you can figure out, when they were collected within that general time frame?

MR. FUNG: No, it doesn't make any difference to me.

MR. GOLDBERG: And would it make the slightest bit of difference, that you have been able to figure out, whether the socks had been collected at 4:38, 4:39 or slightly after 4:40?

MR. FUNG: No.

MR. GOLDBERG: Now, when you viewed the videotape that we were discussing, was there in fact a shot that depicted a portion of the patterned, I guess you would call it a throw rug, in the Defendant's master bedroom?

MR. FUNG: Yes.

MR. GOLDBERG: And did you view that and compare it to still photography?

MR. FUNG: Yes.

MR. GOLDBERG: Sir, was the area that the socks were collected from depicted in that scene?

MR. FUNG: The area where the socks were located was blocked by the bed in the video camera shot.

MR. GOLDBERG: Was the throw rug a patterned type rug?

MR. FUNG: Yes, it was.

MR. GOLDBERG: And did you look at the patterns on it when did you this comparison?

MR. FUNG: Yes.

MR. GOLDBERG: Now, sir, you were asked some questions about whether you made any inquiries of people at the scene regarding any alterations of the scene; is that correct?

MR. FUNG: Yes.

MR. GOLDBERG: Are you supposed to make any inquiries of anyone in terms of alterations?

MR. FUNG: Yes.

MR. GOLDBERG: Who is that?

MR. FUNG: The--excuse me. The detective at the scene is who I make inquiries of.

MR. GOLDBERG: The investigating officer?

MR. FUNG: Yes.

MR. GOLDBERG: Do you consider that to be a witness interview?

MR. FUNG: No.

MR. GOLDBERG: Are you generally aware that police officers and detectives do witness interviews and sometimes fill out witness interview forms in LAPD?

MR. SCHECK: Objection, beyond the scope.

THE COURT: Ground.

MR. SCHECK: Beyond the scope.

THE COURT: Overruled.

MR. FUNG: Yes.

MR. GOLDBERG: And in your entire career as a Criminalist, can you ever recall an occasion where you did that?

MR. FUNG: I have never done that.

MR. GOLDBERG: Where you have conducted a witness--what you would consider a witness interview?

MR. FUNG: That's correct.

MR. GOLDBERG: But you have made inquiries of detectives?

MR. FUNG: Yes.

MR. GOLDBERG: Sir, you were asked some questions regarding the scoop method that you demonstrated on item no. 10. Why did you use the scoop method on the witness stand for the purposes of repackaging it?

MR. FUNG: The question came up whether it could be used or not, and I used it.

MR. GOLDBERG: Now, sir, when you looked at the sales on that item on the witness stand when Mr. Scheck showed it to you this afternoon or this morning, rather, was there a red and yellow seal? Was there a yellow seal on it?

MR. FUNG: There were yellow seals on it.

MR. GOLDBERG: And is there a significance in LAPD to a yellow seal as opposed to a red seal?

MR. FUNG: Yes.

MR. GOLDBERG: What is that?

MR. FUNG: A red seal is used by the person booking the evidence and the yellow seal is used by the analyst who performs some type of examination on the evidence.

MR. GOLDBERG: So the yellow seal indicates that it was in fact examined?

MR. FUNG: Yes.

MR. GOLDBERG: And did you notice anything on the envelope, or on the item itself, which indicated that?

MR. FUNG: Yes.

MR. GOLDBERG: What?

MR. FUNG: There were several initials on different portions of the plastic bag.

MR. GOLDBERG: Okay. Now, sir, I want to ask you about the condition of that item when you first opened it up on the witness stand and saw it and distinguishing between the word "Crumbled" as in an item that is folded in on itself and kind of bunched together, and "Wrinkled," meaning an item that may be folded but has creases that are apparent in it. Was this--

MR. SCHECK: Objection, vague.

MR. GOLDBERG: I think--

MR. SCHECK: Calls for speculation. Maybe--

THE COURT: Well, this is not a big deal. I will allow the question. The jurors have seen the item. They saw how it came out, they saw how it went back in. They saw how it came out, they saw how it went back in. And they have seen the photograph of it at the crime scene.

MR. GOLDBERG: Okay.

MR. GOLDBERG: When you brought it out for the first time on the witness stand, was it crumbled?

MR. FUNG: No.

MR. GOLDBERG: Was it wrinkled as I have just used that term or defined it?

MR. FUNG: There were wrinkles in it.

MR. GOLDBERG: Okay. But was it folded?

MR. FUNG: Yes.

MR. GOLDBERG: Okay. Your Honor, I would like to read a portion from the preliminary--excuse me--from the trial transcript at page 22971, a portion of which has--was just read in in recross.

THE COURT: All right. Give Mr. Scheck--

(Discussion held off the record between Deputy District Attorney and Defense counsel.)

MR. GOLDBERG: That is 22971 starting at line 19 to 22972 starting--excuse me--ending on line 25.

MR. GOLDBERG: Sir, at the trial do you recall giving the following answers to the following questions: "Question: Mr. Fung, do you have an independent recollection, as you sit here today, of placing the item that you received from Detective Vannatter, the envelope, into the plastic bag? "Answer: Not an independent recollection, no. "Question: Okay. And when you looked at the scene of Andrea Mazzola taking the plastic bag out of the location, was there anything that you collected between five o'clock and when you left with Andrea Mazzola that could have accounted for the heft in that bag, other than the envelope? "Answer: Possibly, but it is most likely that the envelope was in that bag. "Question: Okay. "Question: Did you collect anything between five o'clock and the time that Miss Mazzola and yourself left with the plastic bag that was the same approximate size and dimension of the analyzed envelope 163? "Answer: Was there anything? "Question: The one in front of you. "Answer: Was there anything else that we collected that was this size? "Question: Yes. "Answer: Is that what you are asking? "Question: Yes. "Answer: No. "Question: Did you have any other envelopes that were that size? "Answer: No." Do you recall giving those answers to that question?

MR. FUNG: Yes.

MR. GOLDBERG: Now, as to the--

THE COURT: Excuse me, Mr. Goldberg.

MR. GOLDBERG: Yes.

(Brief pause.)

THE COURT: Thank you, counsel.

MR. GOLDBERG: Now, sir, you were asked a number of questions about whether you have ever received any pressure from anyone from the D.A.'s office to change your testimony in any way. Have you?

MR. FUNG: Changed my answers?

MR. GOLDBERG: Yes.

MR. FUNG: No.

MR. GOLDBERG: And from anyone else, the crime lab or even disinterested parties?

MR. FUNG: No.

MR. GOLDBERG: Now, sir, did you ever even consider the possibility of testifying as to the rear gate stain that you saw it on June the 13th?

MR. SCHECK: Objection.

THE COURT: Grounds?

MR. SCHECK: I think this is--my apologies. Let me hear the whole question.

MR. GOLDBERG: That was the whole question.

THE COURT: Proceed.

MR. FUNG: I never considered changing my answer that I had ever seen the stain on June 13th.

MR. GOLDBERG: And you were asked about mistakes, sir, and your willingness to own up to mistakes. If you could do something differently at the crime scene, would you like to have collected that stain on the 13th?

MR. FUNG: Yes.

MR. SCHECK: Objection. Misstates the testimony. His testimony assumes a fact beyond this witness' comments.

THE COURT: Sustained. Rephrase the question.

MR. GOLDBERG: Would you have liked to inspected the gate more carefully?

MR. FUNG: Yes.

MR. GOLDBERG: And sir, did you ever consider changing your testimony or testifying that as you sat there on this witness stand that you had an independent recollection about putting the item that you received from Detective Vannatter into the bag, the plastic bag?

MR. FUNG: I don't--I don't understand your question.

MR. GOLDBERG: Okay. Did you ever consider testifying, sir, that you could remember, from your own independent recollection, putting the analyzed evidence envelope containing the blood into the plastic bag?

MR. FUNG: No.

MR. GOLDBERG: Did you ever consider, sir, testifying that you--that you looked at the socks, item no. 13, carefully enough and saw brood on them?

MR. FUNG: No.

MR. GOLDBERG: And did you ever consider testifying, sir, that you looked at the Bronco on June the 13th and saw red stains, other than the one on the handle?

MR. FUNG: No.

MR. GOLDBERG: Sir, when you were being cross-examined by Mr. Scheck, did you ever have difficulty understanding what he was getting at in his questions?

MR. FUNG: Sometimes.

MR. GOLDBERG: And--

MR. SCHECK: This is beyond the scope of redirect--recross.

THE COURT: Overruled.

MR. GOLDBERG: And when you were being cross-examined, sir, did you--how did it make you feel when you were sort of being yelled at in an accusatory--

MR. SCHECK: Your Honor, I would object and move to strike.

THE COURT: Sustained, Sustained. And if we have any more reaction from the audience, I'm going to clear the audience.

MR. GOLDBERG: Was there anything in the way that you were questioned, sir, that made it more difficult for you to understand the questions?

MR. FUNG: Yes.

MR. GOLDBERG: What was that?

MR. FUNG: Umm, it was an aggressive--aggressive questioning style.

MR. GOLDBERG: Okay. Did you find it easier to answer his questions this morning?

MR. FUNG: Yes.

MR. GOLDBERG: Why?

MR. FUNG: He was much less aggressive this morning.

MR. GOLDBERG: Do you consider being accused of engaging in a cover-up less aggressive?

MR. FUNG: It was the manner; not the content.

MR. GOLDBERG: Okay. Now, sir, do you remember everything that you did, all of your activities, on June the 13th, 1994?

MR. FUNG: No.

MR. GOLDBERG: All right. Do you remember every conversation that you had with the detectives on June the 13th of 1994?

MR. FUNG: No.

MR. GOLDBERG: Or with other people?

MR. FUNG: No.

MR. GOLDBERG: Do you remember all of the testimony that you gave over the last eight days during the direct and cross-examinations?

MR. FUNG: It is all a blur.

MR. GOLDBERG: Well, do you remember the question when you were shown the picture of the rear gate and Mr. Scheck said, "Where is it, Mr. Fung"?

MR. FUNG: I remember that.

MR. SCHECK: Your Honor, your Honor--

MR. GOLDBERG: I was just curious. Thank you. Thank you, Mr. Fung. Nothing further.

THE COURT: Mr. Scheck.

MR. SCHECK: Could we approach for just one minute?

THE COURT: Sure.

(The following proceedings were held at the bench:)

THE COURT: We are over at the sidebar.

MR. SCHECK: Your Honor, I think he opened the door to playing the tape by his descriptions of how the camera panned. I think at this point he can't object to--the questions were done for purposes of impeachment in terms of his change of testimony. He has now redirected on how this tape didn't make the slightest bit of difference and now he has questioned him in implying what the view of that is in relation to the still photographs.

MR. GOLDBERG: I wouldn't object to that.

THE COURT: But I still have the problem, Mr. Scheck, that one of the issues here is timing and the foundation for the tape is not there. I still have that problem. If you want to cross-examine him on what he saw on the tape, be my guest, but as to the actual playing of the tape, until we have somebody come in and lay a foundation as to precisely when it was, then we have a problem.

MR. SCHECK: Your Honor, we have actually--the problem is I think, your Honor, that we've already had testimony on this and this is a tape. The real problem that I have with it--

THE COURT: You see, you want to lock them into an hour or specific time. That is the stipulation you were offering.

MR. SCHECK: No, no, no, no, no. I have no desire to lock them in. What I would ask the Court to do is on its own--a fair summary of what the different versions of time on the tape. I mean, we've had testimony. We've had testimony from the Prosecution's own witnesses that the time is either 3:14 or their better view of it is that it is 4:14 because the clock was not set ahead because of daylight savings time. It seems to me, particularly the tape that was turned over late in the game, that for them to be insisting now that this tape shouldn't be displayed to the jury on this point, when it is perfectly obvious that the redirect examination was questioning the witness on positions that he had taken previously on direct and that it related to the tape--and they have now been allowed to bring out through the witness an assertion that this tape depicts things in a certain manner that wouldn't be harmful or has no suspicious connotation with respect to the collection of the socks--it seems to me that it is unfair for them to hide behind this kind of foundational objection when the Court can clear it up with a simple statement with respect to the foundational testimony that was already given by the People's own witness. It is a very short segment, won't take very long, and I think in terms of the orderly presentation of evidence in a long trial, I think this would clarify to the jury what everybody is talking about, since the witness saw the tape himself.

THE COURT: All right. I'm going to sustain the objection, the same objection that the Court previously sustained. If you want to bring this in in your case in chief, bring in those witness. I am not precluding the playing, but you don't have the foundation at this point.

(The following proceedings were held in open Court:)

THE COURT: Thank you, counsel. Proceed.

FURTHER RECROSS-EXAMINATION BY MR. SCHECK

MR. SCHECK: Just a few questions, sir. Mr. Fung, it is easier to testify on direct examination than cross-examination?

MR. FUNG: Yes, it is.

MR. SCHECK: And you have been a witness a number of times in different cases?

MR. FUNG: Yes.

MR. SCHECK: And it is always more difficult to testify on cross-examination than direct examination?

MR. FUNG: Yes.

MR. SCHECK: And would you not agree, sir, that some of the difficulties you had answering the questions on cross-examination during this trial had to do with the facts?

MR. GOLDBERG: Well, it is vague as to the facts.

THE COURT: Sustained.

MR. SCHECK: Had to do with reports that you wrote?

MR. FUNG: In what regard?

MR. SCHECK: Contradictions in the testimony--between your testimony and reports you wrote?

MR. FUNG: I was prepared for the type of questions that Mr. Goldberg would ask and the questions that you would ask--you asked were surprise questions to me, so of course they would be more difficult for me to answer.

MR. SCHECK: Yes. And when you viewed some of the videotape, umm, that surprised you, too?

MR. FUNG: I was--yes, some of it did.

MR. SCHECK: And when you were testifying about a number of events for which you didn't have an independent recollection, but you were going along with suggestions of testimony on direct, that was a problem, too?

MR. GOLDBERG: That is overbroad.

THE COURT: Sustained, sustained.

MR. SCHECK: Did you ever have a problem when you were testifying because you were testifying to facts that you really didn't have an independent recollection about?

MR. GOLDBERG: Still overbroad, your Honor.

THE COURT: Overruled.

MR. FUNG: I tried the best I could to be truthful in my answers and honest.

MR. SCHECK: Now, Mr. Goldberg asked you about pressure from the District Attorney's office?

MR. FUNG: Yes.

MR. SCHECK: And your position is you never felt any pressure from them to testify in a certain way?

MR. FUNG: They never gave me any pressure to change my answers.

MR. SCHECK: Well, did they make strong suggestions to you about what your answers should be?

MR. FUNG: No.

MR. GOLDBERG: Vague as to "Strong suggestion."

THE COURT: Overruled.

MR. SCHECK: Did you--have you ever spent ten sessions, some of them as long as five hours, reviewing your testimony before you testified?

MR. FUNG: Never.

MR. SCHECK: And could it be, sir, that in those sessions, as you reviewed all these facts and tried to--and tried to get your testimony in a way that would please the Prosecutors--

MR. GOLDBERG: That is argumentative, your Honor.

THE COURT: I haven't heard the full question, but it sounds like it is going to be calling for speculation.

MR. SCHECK: All right. In these ten sessions you made your best efforts to work out testimony that the Prosecutors would find satisfactory?

MR. FUNG: Much of the testimony was my educating Mr. Goldberg as to our procedures and different type of circumstances that we undergo.

MR. SCHECK: Well, in the course of your preparation, were other people from the crime lab involved?

MR. FUNG: At certain portions, yes.

MR. SCHECK: Michele Kestler?

MR. FUNG: She was never present when I--when I was speaking with Mr. Goldberg.

MR. SCHECK: To your knowledge did she have input with respect to your testimony, as far as you knew?

MR. GOLDBERG: Well, that calls for speculation.

THE COURT: Sustained.

MR. SCHECK: Did she ever discuss your testimony with you before you came here?

MR. GOLDBERG: Also, we went into this. It is beyond the scope.

THE COURT: Overruled.

MR. FUNG: She gave me pep talks and things like that, but we never discussed specifics.

MR. SCHECK: What about Detective Lange?

MR. FUNG: I did have discussions with him.

MR. SCHECK: All right. Detective Vannatter?

MR. FUNG: Yes.

MR. SCHECK: Now, I noticed that Mr. Goldberg didn't ask you whether or not you felt any pressure from the detectives.

MR. GOLDBERG: Argumentative, your Honor. I said "Everyone."

THE COURT: Sustained.

MR. SCHECK: Well--

THE COURT: Rephrase the question.

MR. SCHECK: Did you feel any pressure from the detectives to testify in a certain way?

MR. FUNG: No pressure, no.

MR. SCHECK: Was there anything about my accent that made it hard for you to answer my questions?

MR. FUNG: Not your accent, no.

MR. SCHECK: Okay. Was there anything about the substance of the questions that you were being asked that made it difficult, sir?

MR. GOLDBERG: That is a little vague.

THE COURT: Vague. Sustained.

MR. SCHECK: Umm, now, you said that--on this re-redirect that it didn't make the slightest bit of difference as to whether or not you collected the socks between 4:30 and 4:40?

MR. FUNG: Not--not in my mind.

MR. SCHECK: Well, then why, pray tell, did you change your testimony from direct and cross about when you could have collected the socks?

MR. GOLDBERG: Argumentative.

THE COURT: Sustained. Rephrase the question.

MR. SCHECK: All right.

(Discussion held off the record between Defense counsel.)

MR. SCHECK: Why, sir, did you change your testimony from what you had stated on direct and cross-examination about the time frame when could you have collected the socks?

MR. GOLDBERG: Argumentative, your Honor.

THE COURT: Overruled.

MR. FUNG: I believe that in one set of--or one question at--one of the questions was, was I sure I had collected the evidence from one point or another and I wasn't a hundred percent sure which item I had collected prior to the other.

MR. SCHECK: Well, on direct and cross you indicated that you were sure?

MR. GOLDBERG: No, that misstates the testimony.

THE COURT: Sustained. Rephrase the question.

MR. SCHECK: Well, you answered questions about the order of collection and when you collected on direct and cross?

MR. FUNG: Yes.

MR. SCHECK: And on redirect Mr. Goldberg asked you a number of times, or twice, I should say, if you were really sure that the collection of socks happened within that period?

MR. GOLDBERG: Your Honor, this has been asked and answered.

THE COURT: Overruled.

MR. FUNG: He was referring to specific times within that time frame.

MR. SCHECK: Well, did you, before you came here for redirect examination, say to Mr. Goldberg, "I've been thinking about it, and I may be wrong about how--the time the socks were collected. Could you please raise that again on redirect"? Is that what happened?

MR. FUNG: No.

MR. SCHECK: It was his idea?

MR. FUNG: (No audible response.)

MR. GOLDBERG: Well, it is vague as to idea to do what.

THE COURT: Sustained.

MR. SCHECK: It was his request of you to think about the time of collection again?

MR. GOLDBERG: It is vague as to whether he means in Court or out of Court.

THE COURT: Sustained.

MR. SCHECK: Before you came and testified on redirect, did you have discussions with Mr. Goldberg or other Prosecutors about whether you were really sure concerning the time you collected the socks?

MR. GOLDBERG: It is just vague to whether he means--he has to bracket it. He doesn't have the first time frame.

THE COURT: Overruled. You can answer the question.

MR. FUNG: We have discussed the time frame of the socks, but as to the second time he asked me in recross about the socks, I don't recall discussing it prior to him asking recross socks questions.

MR. SCHECK: No. Mr. Fung, redirect. Remember that?

MR. FUNG: Redirect?

MR. GOLDBERG: Your Honor, that is argumentative.

THE COURT: Sustained. Come on.

MR. SCHECK: Mr. Fung, direct your attention to the redirect examination.

MR. FUNG: Yes.

MR. SCHECK: On redirect examination you now said that you weren't really sure?

MR. FUNG: Yes.

MR. SCHECK: And the suggestion--withdrawn. The issue of whether you were really sure was raised by the Prosecutors.

MR. GOLDBERG: Well, it is vague as to in Court or out of Court.

THE COURT: Overruled. We are talking about re-redirect.

MR. SCHECK: Yes.

MR. FUNG: Yes.

MR. SCHECK: And that was prior to those questions being asked of you?

MR. GOLDBERG: Well, now it is vague.

THE COURT: That's true.

MR. SCHECK: All right.

MR. SCHECK: That was prior to the time that you testified on re-redirect?

MR. FUNG: Yes.

MR. SCHECK: Okay. And after they asked you if you were really sure, you told them, before you got on the stand, "Well, I'm not that sure"?

MR. FUNG: I wasn't that sure, no.

MR. GOLDBERG: Wait a minute. He is not answering the question. Motion to strike the witness' answer.

THE COURT: Overruled.

MR. SCHECK: And you became unsure because you thought that's what they wanted to hear?

MR. FUNG: No, I--I became unsure because he was asking for a specific time within that time frame and I just wasn't sure.

MR. SCHECK: Mr. Fung, on direct examination you were asked about the time frame between 4:30 and 4:40 you collected the socks, right?

MR. FUNG: Yes.

MR. SCHECK: His question on re-redirect was could you have collected the socks some time different than between 4:30 and 4:40, right?

MR. FUNG: On re-redirect?

MR. SCHECK: Yes.

MR. FUNG: Yes, he asked that.

MR. SCHECK: And that is what you began testifying--that is what you testified you were no longer sure about?

MR. FUNG: Yes.

MR. SCHECK: And you now began testifying--and you began testifying on re-redirect that you were no longer so sure of the order?

MR. FUNG: Redirect that I was no longer--yes.

MR. SCHECK: And that is because the Prosecutors wanted you to be unsure about the time and about the order?

MR. FUNG: That is not true.

MR. SCHECK: No further questions.

MR. GOLDBERG: Just briefly.

FURTHER REDIRECT EXAMINATION BY MR. GOLDBERG

MR. GOLDBERG: Okay. Let's see if we can get this, Mr. Fung. Now, when we were discussing, before you ever came into this courtroom to testify, about the order in which things were collected, did you tell me that the order was 12, 13 and 14?

MR. FUNG: 12, 13 and 14? Yes.

MR. GOLDBERG: Okay. Now, on re-redirect--

MR. FUNG: Re-redirect? Okay.

MR. GOLDBERG: No, actually it was redirect. I'm sorry. Okay. Now, on redirect did you testify that you weren't sure whether 13 was collected after--I mean before 14?

MR. FUNG: I stated I didn't know or I don't know what I stated at this point. I was unsure at that point.

MR. GOLDBERG: Okay. Now, what Mr. Scheck was asking you is was there a conversation that we ever had between the time that you were finished on cross-examination, okay?

MR. FUNG: Yes.

MR. GOLDBERG: And the time that you said that you weren't sure on redirect, was there ever a time when you told me you weren't sure?

MR. FUNG: No.

MR. GOLDBERG: Okay. And was there ever a time that you can recall between those two times that we discussed the issue?

MR. FUNG: Not that I recall.

MR. GOLDBERG: Okay. And Mr. Fung, have you ever testified before in a case where you were on the witness stand for eight days?

MR. FUNG: Never.

MR. GOLDBERG: Are you going to be glad to be off?

MR. FUNG: Very.

MR. GOLDBERG: Okay. Thank you. Nothing further. Thank you.

MR. SCHECK: Good day, Mr. Fung.

THE COURT: All right. Mr. Fung, I'm going to excuse you from further testimony in this case at this time. You are still subject to recall, however. Please don't discuss your testimony with anybody other than the lawyers. All right. You are free to go. Thank you, sir.

MR. FUNG: Thank you.

THE COURT: All right. Ladies and gentlemen of the jury, we are going to need to shift gears here momentarily. I'm going to ask you to step back into the jury room. Please remember all my admonitions to you. And we will be talking with you shortly. All right.

(At 2:20 p.m. The jury was excused and the following proceedings were held in open Court.)

THE COURT: All right. Thank you, ladies and gentlemen. Please be seated. All right. Counsel, over the lunch hour I received a package of reports regarding apparently hair comparisons from the FBI lab. Why don't one counsel from each side approach and I will give you a copy of the reports.

(Brief pause.)

THE COURT: All right. Over the lunch hour counsel proposed to the Court a procedure to go forward with the inquiry that the Court has indicated that it is going to make regarding jury issues. Either side wish to be heard as to the presence of the Defendant issue and the manner in which the inquiry should be conducted?

MR. COCHRAN: Yes. I would like to be heard just briefly, your Honor, if I might. Certainly we do endorse the going ahead with the jury process now, your Honor, and doing it in a continuous manner. I think it will be better for all parties and I think in this regard both the Prosecution and the Defense agree. The Court had been kind enough in a brief conference to mention to counsel that People versus Siripongs case, S-I-R-I-P-O-N-G-S, a 1988 case--although I have not had a chance to get the case, I in fact have had a chance to look at the California Criminal Law procedure and practice second edition.

THE COURT: Which is where I found the Siripongs case.

MR. COCHRAN: The Court had suggested to us--and in this case, as the Court is aware, there is a statement in the second paragraph under section 3324 that counsel and the Defendant should be present at the hearing and it goes on to indicate that: "In some circumstances, however, counsel may be excused from the hearing as long as he or she is given a transcript of it," cite People versus Siripongs, and under that, paren, it says: "Defendant attorney excluded at Defendant's request, no constitutional violation." In this instance what we are asking the Court to do, given where we are at this point in the proceedings, after having been in trial in this matter since I guess September 26 and being the twelfth week or so of actual testimony, that Mr. Simpson be allowed to be present during this jury inquiry. That is all we are really asking, your Honor. We don't think it poses any kind of security problem. We don't think there would be any affect upon the jurors, as the Court inquires upon them.

We do not anticipate, from the Defense standpoint, of asking the Court to cross-examine any particular juror. In fact, without going into the procedure that we have used in the past, I would just indicate to the Court that we expect to do as we have done in the past and I think that Mr. Simpson has no objection to that. And the Court has previously ruled that as regards previous jurors or non-jurors, at this point, the Defendant has been present and I just think that where he does not wish to waive his being present that the Court should allow him to be present. I think that if the Siripongs case I guess stands for anything, counsel can be excluded, but it doesn't say the Defendant can be excluded, and I don't plan to waive my presence at this point either, your Honor. Perhaps I think the Court has set some rules regarding the number of attorneys and we have no problem with that. I think the Court has said that you may limit the number of attorneys who may be present during these proceedings.

But I just think that we can get on with this case and get it done in a timely and appropriate fashion. It has been conducted quite well before. I just think this is not a matter for a public hearing, but I think that the Defendant, who has the most to lose in this entire thing, is entitled to a fair trial, and that certainly it would impinge upon his constitutional rights to be present if we have to then go back and try to translate for him what took place at these hearings. And that is how I think we really got to this point, your Honor, so I would respectfully ask the Court to set up a procedure that the Court feels is appropriate whereby he can be present during the hearings and we will conduct it the same way we have done the other hearings, back in chambers. All right. Thank you, your Honor.

THE COURT: All right. People.

MS. CLARK: Yes, your Honor. I read the case law submitted by the Defense, People versus Garcia. The problem with that case law that they have submitted is that there is nothing in which it is stated explicitly that the Defendant has an independent right to be present. The case really addresses the issue as to whether or not the Court should properly address jury issues outside the presence of any of the lawyers or the Defendant, and it says that no, the Defense has the right to be represented at such a hearing or at any contact with the jury that the Judge may have, but it did not specify that it had to include the Defendant, nor have any of the cases we have found indicated that there is any such. And to the contrary, as the Court has pointed out, People versus Siripongs, also People versus Medina, 51 cal.3d 870, and People versus Freeman, 8 cal.4th, 450, both of which do address the Defendant's right to be present at various chambers conferences, make clear that the Defendant does not always have the right to be present at every chambers conference or chambers issue.

With respect to these issues, they are of such confidential nature that they do need to be conducted in chambers, which poses a very obvious problem with respect to having the Defendant present. And there are also concerns with the ability of the jurors to be as forthright as they possibly can. The more we create an open hearing in which there will be many people present and many--the more people in the audience and the bigger the setting in terms of having to be in the courtroom, I think the more we have a chilling effect we produce on the jurors and less encouraged they are to have--to be completely candid with us about what is going on. So in order to encourage candor, in order to encourage the kind of openness that will allow the Court to make a thorough and fair investigation, I think that it is in the best interests in a search for the truth and a fair trial to have this in chambers.

THE COURT: All right.

MR. COCHRAN: Just briefly if I might respond, your Honor. I would just like to mention this before, I think also that penal code section 1120 is somewhat instructive when it talks about where it requires a juror, quote: "Must be sworn as a witness and examined in the presence of the parties." And again I always come back to the fact that Mr. Simpson is the party here. That statute was subsequently amended in 1965. I think the reason why we cited to the Court People versus Garcia case, the 1984 case holding that a Defendant's right to be? Protected by the fundamental constitutional right to assistance of counsel at all critical stages of the procedure. If one takes that, your Honor, this is a critical stage of the proceedings, because what the Court finds out here is very important I think to all of us and I think that is why the Court is doing this now. I think, in response to what Miss Clark has said, that I don't think it is chilling at all with the Defendant present. It doesn't--if the Court has a certain number of counsel on each side--and the Defendant is not going to make the jurors less candid with Mr. Simpson is here. After all, this case is about People versus O.J. Simpson.

And I am reminded of the time when we first started picking the jury in this matter, the Court will recall we were up on the 11th floor and we were in a little tiny room, if the Court will recall, when we first started screening jurors and Mr. Simpson was at the table. In fact, Miss Clark and I sat side by side and Mr. Simpson was down at one end, the jurors sat a one end, and the Court will recall this, and the bailiffs were all there, and I think the People were very candid right from the beginning. That is how this Court has conducted this matter at all times, at critical stages of the proceeding where Mr. Simpson should be present. That is all we are saying, that why err in this regard. I think this is a time he has a right to be present. It poses no security problems and I think that--I'm not suggesting we put the jurors on the witness stand, but wherever they feel comfortable. We can close it in or however you want to do it, as we have done in the past. I think that this is somewhat unique and what has happened is there is a dearth of legal opinions in this regard because you will have to search far and wide before you will find this kind of proceeding where this far into trial where we have an issue like this arising regarding jurors, where we have to go and talk to all the jurors, so there is not a lot of cases, as we have proven so many times, your. It is this particular case that has caused a lot of issues that people haven't dealt with in the past.

What I have found is when you have something unique, it does require us to be careful, it does require us to keep in mind why we are here and does require us to protect all of the rights. And all we are going to you do is protect Mr. Simpson's rights in that regard and I think that 1120, Garcia, even Siripongs, I think it doesn't say that the Defendant can't be present. It talks about the lawyer being waived, so I think that where he wants to be present, I think he has a right to be present, and I think the reasons for him not being present are not persuasive. And I would ask the Court to consider this and let's move on and let's try and resolve this matter in the course of the next day or so. Thank you, your Honor.

THE COURT: All right. Thank you, counsel.

MS. CLARK: Your Honor, I'm sorry, I don't want to--I just want to straighten out one misconception that has been created. I don't feel necessarily that Mr. Simpson's presence is going to have a chilling effect. I feel that the setting that we will be forced to be in and the number of people that will be forced to be present will be the problem and produce the more chilling effect. It is clear that when we have a more intimate setting where there are fewer people that we can expect a little more candor and the jurors will feel more secure and more calm. That is what we want to encourage and that was my point, your Honor. And moreover, the case law makes it very clear that the Defendant is entitled to be represented and he has very able representation who--his lawyers will fight very vigorously in his behalf, as they always have, and they will continue to do so and his rights will be fully protected by his presence in chambers at any conference that may be conducted. And I think that is what the Court has to look at in terms of what is required and that will certainly be observed by this Court.

THE COURT: All right. Thank you, counsel. All right. I don't find penal code section 1120 to be controlling in this particular issue. And the 1988 California Supreme Court opinion, People versus Siripongs, is at 45 cal.3d 548, and specifically the text that begins at page 570, and the discussion on 571 and 572 does directly address this issue. The matter will be addressed by the Court in chambers out of the presence of the Defendant. All right. We will take a 20-minute recess and we will start with the inquiry. And let me ask, Miss Clark, as far as--we have 18 jurors to talk to. My guess is we will be at this most of--certainly the balance of today and probably the balance of tomorrow is my guess, since we have 18 people to talk to. Perhaps twenty minutes, thirty minutes a piece, depending on where it leads us.

MS. CLARK: I really think that is a fair estimate, your Honor.

THE COURT: All right. Then my guess is that as far as the presentation of testimony and Miss Mazzola is concerned, we probably ought to stand in recess, today being had the 18th, until the 20th.

MS. CLARK: Resume with testimony on the 20th?

THE COURT: All right. Does that cause any scheduling problems?

MR. COCHRAN: May I inquire of the lawyers who will be handling the next witness, your Honor?

(Discussion held off the record between Defense counsel.)

MR. COCHRAN: It will not cause a scheduling problem, your Honor.

THE COURT: All right. This was your suggestion, Mr. Cochran.

(Discussion held off the record between Defense counsel.)

MR. COCHRAN: I want to just inquire, though. I am not cross-examining Miss Mazzola, your Honor, but no problem, your Honor.

THE COURT: All right. Then as far as the presentation of evidence then is concerned, we will stand in recess until 9:00 a.m. All right. Thank you, counsel. All right. Thank you, counsel

(Recess.)

(Proceedings held in camera, transcribed and sealed under separate cover.)

Superior Court of the State of California for the County of Los Angeles

Department no. 103 Hon. Lance A. Ito, Judge

The People of the State of California, )

Plaintiff, )

) Vs. ) No. Ba097211 )

Orenthal James Simpson, )

Defendant. )

Reporter's transcript of proceedings Tuesday, April 18, 1995

Volume 128 pages 23190 through 23371, inclusive

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APPEARANCES:

Janet M. Moxham, CSR #4588 Christine M. Olson, CSR #2378 official reporters

FOR THE PEOPLE: Gil Garcetti, District Attorney by: Marcia R. Clark, William W. Hodgman, Christopher A. Darden, Cheri A. Lewis, Rockne P. Harmon, George W. Clarke, Scott M. Gordon Lydia C. Bodin, Hank M. Goldberg, Alan Yochelson and Darrell S. Mavis, Brian R. Kelberg, and Kenneth E. Lynch, Deputies 18-000 Criminal Courts Building 210 West Temple Street Los Angeles, California 90012

FOR THE DEFENDANT: Robert L. Shapiro, Esquire Sara L. Caplan, Esquire 2121 Avenue of the Stars 19th floor Los Angeles, California 90067 Johnnie L. Cochran, Jr., Esquire by: Carl E. Douglas, Esquire Shawn Snider Chapman, Esquire 4929 Wilshire Boulevard Suite 1010 Los Angeles, California 90010 Gerald F. Uelmen, Esquire Robert Kardashian, Esquire Alan Dershowitz, Esquire F. Lee Bailey, Esquire Barry Scheck, Esquire Peter Neufeld, Esquire Robert D. Blasier, Esquire William C. Thompson, Esquire also present: Jana Winograde, Esquire Steven M. Perry, Esquire

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I N D E X for volume 128 pages 22944 - 23371

Day date session page vol.

Tuesday April 18, 1995 a.m. 23190 128 p.m. 23328 128

Chronological Index of witnesses People's witnesses direct cross redirect recross vol.

Fung, Dennis 128 Arthur (Resumed) 23197bs (Further) 23330gb 23346bs (Further) 23357bg

Alphabetical Index of witnesses witnesses direct cross redirect recross vol.

Fung, Dennis 128 Arthur (Resumed) 23197bs (Further) 23330gb 23346bs (Further) 23357bg

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EXHIBITS

Defense for in exhibit identification evidence page vol. Page vol.

1108 - Photograph of 23225 128 the ground at the crime scene with a card and item 104

1109 - Photograph of 23225 128 an envelope on the ground at the crime scene with a card and the no. 104

1110 - Photograph of 23271 128 the interior of a Criminalist collection case

1111 - Photograph of 23271 128 the packaging for two cotton tipped applicators and two brown-colored bottles

1112 - Test tube 23276 128