Have a case set Mon that the defense says will take all week to try because he has 12 witnesses that are going to say the Def was somewhere else when my victim claims he was standing over him holding a machete to his throat when he woke up. Have lost the only the roomate witness who moved back to Ga. and have a deafmute who should testify for us that he dropped the Def off at the house and he saw the Def get out of the truck with a machete. Other than the usual questions of Where have you witnesses been all this time, possible TCIC searches for criminal histories any suggestions on stopping this B.S.?I really wanted to go to the beach and my 2 hour case just took an ugly twist.
I'm still trying to figure out how a deaf/mute witness testifies? How will that be done? Does he do sign language?
It's a good bet that most of them are on probation and have not reported as ordered, etc. There was probably some drinking or dope smoking going on as well. You might have their probation officers in the court room when they testify. Also, determine if they have been subpoenaed or if they have just shown up voluntarily. They probably are just too busy to report to their probation/parole officer but they can find the time to come help out their bud. Be sure and run them through your local misdemeanor court records as well. Sometimes misdemeanor thefts, etc., don't make it to TCIC. Hope it helps...
I would want to know when and how often they spoke among themselves about the "facts" of the case prior to trial and their respective stories. Appears there maybe collusion going on.
Who, what, when, where, why and how?
Have a portion of your cross that is scripted. Ask each of the 12 the same questions.
Maybe spread the key questions out among the rest of your cross. Carefully note the answers.
How long have you known defendant?
Why do you remember this date?
When did you hear of the arrest/charge against defendant?
When did you get asked to help? By whom?
What was the defendant wearing? What were you wearing? What were the other witnesses wearing?
What was he driving?
Where was he standing?
Who was present?
What time was it?
What music was playing? Anyone drinking? Drugs?
Did you see when defendant left?
Did you leave before defendant?
Why do you remember this particular time?
When did you next see the defendant? Talk to him? What did he say?
Are you an enemy of defendant?
When did you talk to the defense?
Did you give them a written statement?
Did you review any written material to prepare to testify? What?
Did you make any notes or report?
Can I see them now Rule 611/614. (Police and witnesses made notes and statements? Why didn't you?)
What did he say in your presence? Who did he say it to? What did they say?
Why do you remember it?
Where did you see him?
Why were you in his presence?
How do you know he was with you and not at the crime scene?
If they testify differently than other defense witnesses, ask them why the other witness is lying? After the objection, asked why the other defense witness is telling a different story?
Recall the earlier defense witnesses you crossed to confront them again with the later defense witnesses inconsistencies.
Keep all 12 in the court house until both sides rest and close.
If the judge will let you, reserve your cross until all 12 have testified, take a recess and then recall them (if possible without a break for defense to talk to them and with your investigator/associate watching them in the halls).
If they say "I don't remember" that is good.
If they say exactly the same thing that is good - they remember their script.
If they all say different things, that is good - they are making it up as they go along.
If you're really aggressive, make up a chart/grid = questions across the top and witness down the side and record summaries of the answers. If the answers are significantly different or consistent - blow it up as big as your technology allows and put it on a stand in front of the jury for your final argument.
If you are able to reserve your cross until all 12 have told the tale and it is all the same or all different on direct, consider just waiving cross and arguing.
It seemed like you were asking the question, "Can I prevent this BS from being presented somehow?" Unless I missed the point of your post. Unfortunately, I know of no way to pre-emptively stop witnesses from committing perjury, if they really want to do it. Defendant has his constitutional right to call the witness. You can sometimes stop repeated testimony about the exact same fact with a repetitive testimony objection, or whatever your judge accepts as a single fact being repeated over and over. But this is not likely to work when the testimony is coming from different witnesses.
Thanks for the great line of questions. I printed them and will definitely put them to use.
I like the idea of repeating the questions with each witness to see where they vary so you can show the jury. If I have time it would be perfect for a powerpoint.
I agree totally with Stephen. Had a similar case once and did a chart like he's described at closing. It doesn't take many "he was in the bathroom," "I was in the bathroom," "she was in the bathroom," "there was no bathroom" inconsistencies before the point is driven home.
Also, I would suggest that you get someone nondescript and non-investigator looking to just hang around outside the courtroom while his alibi witnesses are testifying. In my experience, they almost always come out of the courtroom and immediately start comparing stories with the ones who haven't yet gone in. That person then becomes a powerful rebuttal witness.
Don't forget to ask those who seem to have remarkable memories about what they did with def on the offense date and his alibi the following, at the end of their testimony:
Ask them what they did the day before the offense date,
Ask them what they did the day after the offense date
If the first few witnesses stumble over that question and then it seems that the later witnesses have pat answers for their whereabouts, this will not be lost on the jury. Have a calender handy and get another date to ask them, i.e. the saturday before the offense date, the saturday after, etc.
As a special prosecutor in Hempstead several years ago, I tried a delivery case where a chorus line of college students from prairie view all testified that they had total observation of defendant at a birthday party a few blocks from the delivery location. Some were adament they had full knowledge of her whereabouts for 12 hours or more, and others said they just saw her at the party at the time of the delivery. The jury didn't buy it, they were out about 7 minutes for guilty.
While your nondescript investigator watches these people, try to have him located close enough to overhear their conversation. Don't forget that if they're talking about their testimony and The Rule has been invoked, that you can prevent them from testifying. If they are, you may want to think strategically about how to bring it to the Court's attention. Doing it in front of the jury would have the best effect, as it could show the existence of collusion amongst the witnesses.
Excellent tip, Lisa and Jeff. I am going to remember that one. Our courtroom has benches (just like church) outside the courtroom doors where all the defense witnesses just love to sit and talk.
All this reminds me of a watching a young prosecutor try a case where the chorus line of witnesses all discussed "the bathroom" by volunteering information (possible witness prep??). The song began with the first one voluntarily saying he watched "him" the whole time so he could not have even gone to the bathroom w/o the witness knowing it. The second was asked carefully about the general activities observed, and he got a peculiar, knowing grin on his face and then volunteered that he saw him the whole time even when he was in the bathroom, a trip that the defendant made twice that day under close observation and "never was out of sight for one second". The third also got a smile on his face and volunteered to the prosecutor that the defendant never went to the bathroom that day, but that if he had, the witness would not have observed him, saying the only thing more perverted and scummy then someone who would watch someone go to the bathroom, is somebody that would dare to ask about it. The prosecutor then told the witness that he was glad that he had not asked, and then asked if his opinion would be the same about someone giving false testimony as to whether they had observed someone in the bathroom when they had not,the witness answered, "Not when you are helping out a friend who would do the same for you...."
Hey, what are good friends for....
Thanks for all the great ideas.Hopefully I can get someone to hang out while they all discuss the case among themselves. My case got reset. The Defense attorney had a real medical emergency so looks like I'll make it to the beach.Thanks for all the input. Have another question.. anyone know how to check on a rumored dishonorable discharge from the military???Nothing worse than a defendant who claims to be one of our heroes.
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