ON CONFLICTS IN TESTIMONY AND CLIENT COOPERATION

Horace Rumpole, the fictional Old Bailey barrister, once said that he could win most of his cases if it weren’t for his clients. Some clients display a stubborn insistence upon ignoring your advice or otherwise undermining your efforts to help them. Sometimes, despite your best efforts on the part of your client, he will say or do something which undoes all your good work.

In a long ago drug trial, the testimony revealed that a confidential informant had purchased cocaine from the defendant under the surveillance of several law enforcement officers. Instead of immediately arresting the defendant, the officers allowed several weeks to go by before obtaining a warrant. Of course the defense was mistaken identity. The officers advanced the defense by being in hopeless conflict as to what the defendant was wearing. On cross-examination the defense attorney skillfully highlighted each conflict, hammering home the inconsistencies and causing the prosecutor himself to wonder about the credibility of the officers. One officer said the defendant was wearing a brown shirt. One said a green shirt. Another said the shirt was striped. One officer said the defendant was wearing tan pants. One said beige. Another said brown. One officer said the defendant was wearing brown shoes. Another said he was wearing sneakers. They could not agree on the description of a single item of the defendant’s clothing.

The prosecutor’s concern about the wide divergence in testimony deepened during final argument as the defense attorney eloquently argued the discrepancies, reminding the jurors that the judge would instruct them that “a reasonable doubt can arise from the evidence, the lack of evidence, or a conflict in the evidence.” The defense attorney had spun the conflicts into enough reasonable doubt for a dozen acquittals. As he sat listening to defense counsel, the prosecutor could see that the argument was connecting with the jury. They were leaning forward and listening intently. The prosecutor even saw one of the jurors nod as the defense attorney made a point. Unable to continue looking at the jury, the prosecutor allowed his eyes to wander about the courtroom. Before long, they fell on the defendant sitting alone at counsel table. The prosecutor did a double take and then studied the defendant intently. He was wearing a green and brown striped shirt. His pants were a color that could fairly be called beige, brown, or tan. The prosecutor looked down at the defendant's shoes; they were brown sneakers. The defendant was wearing the same clothing he had worn when he sold the drugs!

The prosecutor decided to work a comment or two on the defendant's dress into his rebuttal final argument. He would have to be circumspect in his remarks, however, because the clothing that the defendant wore to court was not in evidence. How might he comment on the defendant's courtroom attire without provoking a mistrial for commenting on facts not in evidence? The prosecutor decided to use the defendant's clothing as a non-evidentiary demonstrative aid. His closing remarks went something like this: "Ladies and gentlemen of the jury, my learned colleague has made much of the fact that one officer described the defendant’s shirt as brown, while another said it was green, and another said it was striped. He says this so-called conflict gives rise to a reasonable doubt about his client’s guilt. Could it be that the defendant on the night in question wore a green and brown striped shirt much like the green and brown striped shirt he is now wearing? Where is the conflict in testimony if that is the case? As for the conflict about brown shoes or sneakers, could the defendant have worn a pair of brown sneakers, much like the brown sneakers he wears today? Could .... " You get the picture. The jury did too. The prosecutor got his conviction without ever having to say, "Look, ladies and gentlemen of the jury, the defendant is either so arrogant or so stupid that he thinks we won't notice that he's wearing the same clothing he wore the night he sold the drugs." An excellent job of cross-examination and an eloquent final argument were set at naught by the client’s own actions. Perhaps defense counsel would be wise to add “dressing the client” to their pretrial checklist of things to do.

CROSS-EXAMINATION AND TRUTH

Wigmore vs. Rumpole

“The very nature of a trial is [the] search for truth.” Nix v. Whiteside, 374 U.S. 157, 158 (1986).
“Cross-examination is the greatest legal engine ever invented for the discovery of truth.” John H. Wigmore, quoted in Lilly v. Virginia, 527 U.S. 116 (1999).

“A criminal trial is a pretty blunt instrument for prising out the truth.” Horace Rumple in John Mortimer’s “Rumpole for the Prosecution,” The Second Rumpole Omnibus.

In the debate between John Mortimer and Horace Rumpole on the one side and John H. Wigmore and the Supreme Court on the other, Mortimer and Rumpole make the better point. Cross-examination can be helpful in ferreting out falsehood, but it doesn’t work too well at discovering truth. The advocate should have a pretty good idea of what the truth is before the trial begins, and the trial should be an exercise in disclosing known truth rather than discovering unknown truth. In Cross-Examination Handbook we teach a method for using cross-examination to effectively disclose the truth we already know to the judge and jury. This should be the first objective of cross-examination, with the exposure of falsehood a secondary objective.

Cross-examination is a useful tool in the advocate’s toolkit, but it is like any other tool. A hammer can be used to perform the useful task of driving nails or used to perform the wrongful task of bashing in someone’s skull. Cross-examination can perform the useful task of disclosing truth or used for the tasks of obscuring the truth and even promoting falsehood. A possible example of this comes from the cross-examination of one of the handwriting experts in the Lindbergh kidnapping case.

The examiners described a number of similarities between the handwriting on the ransom notes and the handwriting of Richard Hauptmann. One of those similarities was that in both the ransom notes and Hauptman’s known writings, “New York” was hyphenated (“New-York”). One of the examiners said that he’d never seen anyone hyphenate “New York.” On cross-examination the defense showed him a number of letters and postcards which purportedly were addressed “New-York.” Each letter and postcard was dutifully marked for identification, and the cross-examination seemed to discredit the examiner. After all, hadn’t the defense shown that “New York” was hyphenated in numerous other documents? No, as a matter of law, they hadn’t.

The procedure for putting a document into evidence is to identify it and authenticate it and then proffer it into evidence as an evidentiary exhibit. During the state’s case in chief, the defense is not technically able to introduce tangible evidence. But they can mark tangible objects for identification, have witnesses identify and authenticate those tangible objects on cross-examination, and then proffer the tangible objects into evidence on the defense case after the state rests. Until the tangible object is received into evidence, the proof is incomplete. If the tangible object is never received into evidence, there is no proof at all, and the testimony about the object can be stricken from the record, if not from the jurors’ minds.

The defense identified the letters and postcards with the state’s documents examiner, but they never authenticated them with the testimony of the people who purportedly wrote or received the correspondence, and they never offered the documents into evidence. They offered no legal proof that anyone besides Richard Hauptmann had ever hyphenated “New-York.” On the state of the evidence as presented by the defense, you would not be justified in believing that they had proved it was common for other people to hyphenate “New York.” But you might be justified in assuming that the cross-examination was smoke and mirrors designed to mislead the jury.

The mere asking of a question is an assertion of fact by the questioner, and by asking the questions, the defense was asserting the fact that they had numerous authentic letters and postcards which had “New York” hyphenated. The ABA’s Model Rule of Professional Conduct 3.3(a)(3) prohibits lawyers from offering false evidence. The ABA’s Prosecution Standard 3-5.7(d) is even more specific: “A prosecutor should not ask a question which implies the existence of a factual predicate for which a good faith belief is lacking.” Before you say “Oh, that only applies to the prosecution,” look at the ABA’s Defense Standard 4-7.6(d): “Defense counsel should not ask a question which implies the existence of a factual predicate for which a good faith belief is lacking.”

If you ask a question which suggests a fact to the jury, you have an obligation to follow that question up with a proffer of proof of that fact. Otherwise you expose yourself to the accusation that you have implied a fact which you do not in good faith believe. Hauptmann’s defense team should have either offered the documents into evidence or they should not have asked the questions which implied a “fact” they had no intention of proving.