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When Expert Testimony Backfires: A Look Back at Dennis Fung and the OJ Simpson Case

It is fair to say the most talked-about new TV show of 2016 thus far has been FX’s American Crime Story: The People v. OJ Simpson. Although the now-concluded show didn’t necessarily detail any new facts about the case, its brilliant staging and retelling of the “trial of the century” that held American’s attention in 1995 brought out so many formerly front-page headlines from that case that may have been forgotten among the saga’s bigger moments. 

One of the classic episodes in the trial retold in the series was the testimony of the prosecution’s key witness Dennis Fung, a forensic scientist in the LAPD crime lab who collected blood and DNA evidence from the crime scene and evaluated the evidence. Ultimately, Fung’s evidence - which the prosecution had been relying upon as a key aspect of their case against Simpson - seems to have been unpersuasive, and famed defense lawyer Barry Scheck tore Fung apart, while Fung didn’t do himself any favors in some of the odd ways in which he conducted himself in court. The Fung episode is a good reminder of how a witness who seems so great in the time leading up to testimony can backfire for the party he is testifying on behalf of without proper preparation. 

Barry Scheck Tears into Dennis Fung Over Nine Grueling Days

Dennis Fung was put forth by the prosecution in order to present blood evidence from the Simpson crime scene which the prosecution (and many observers) thought would provide a slam-dunk case for Simpson’s guilt.  Instead, Fung found himself on the witness stand for nine days, grilled by Simpson defense lawyer Barry Scheck, whose specialty was in looking at DNA evidence. Scheck ripped Fung apart over the methods he employed to collect and transport blood evidence from the crime scene, and Fung had a difficult time remembering and testifying as to many of the issues Sheck addressed. Fung’s testimony regarding how he collected the evidence also conflicted with video evidence of him undertaking the collection, and Scheck left no stone unturned into detailing these mishaps and lapses. As the New York Times stated at the time, Sheck “set new standards for aggressive, insistent cross-examining.”

Fung Puzzles Courtroom Observers Even After His Testimony

As was memorably portrayed in The People v. OJ Simpson episode he was so prominently featured in, the most durable image that Fung may have left behind to to the jury actually happened after he left the stand. While leaving the witness stand, Fung shook hands with various members of the Simpson defense team that had just spent nine days criticizing him, including Scheck, Johnny Cochran, and Robert Shapiro, and then, most bizarrely, with OJ Simpson himself. What the jury members were supposed to make of a key police investigator making friends with the defendant on trial is anyone’s guess, but it is highly unlikely that it helped the prosecution’s case in proving Simpson should be found guilty of double homicide based on the evidence collected by Fung.

Doing Everything You Can to Prepare Your Expert Testimony

Although the issues with Fung’s testimony related more to the manner in which the evidence was collected and handled from a criminal procedure perspective rather than on scientific aspects going into an expert analysis of that evidence, there are still hard lessons to be taken from the Fung episode with regard to thinking about preparing the expert testimony in your case.

Outcomes to high-stakes litigation matters can often rise and fall on the strength of expert testimony when it is exposed to the harsh cross-examination techniques and Daubert challenges from the other side, so you want to do everything you can beforehand to make sure your expert testimony is as effective and strong as possible. Our aim at JuriLytics is not only to bolster expert witness testimony with expert peer review, but also to provide a sort of credible safety net if or when your expert witness makes a misstep in court. Call now to discover our unique solution to the many concerns surrounding expert witness testimony, before problematic testimony jeopardizes your hard work.

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