Bruce Springstein’s inimitable lyrics speak of someone “blinded by the light.” They came to mind, sadly, when reviewing a defense lawyer’s attempt to impeach a cooperating witness. In that case, the lawyer followed a model that is a recurring problem in trial advocacy, lawyers “blindered by the lie.”
What do I mean?
Decades ago I witnessed this malady in a more general form, a lawyer impeaching a witness only to make the case worse for the accused. In a capital case, the following cross-examination occurred:
Q: On direct examination you said that you saw my client go into the alley. Correct?
Q: You heard the gunshot and saw him exit the alley?
Q: And on direct you said that as you saw him leave the alley he was tucking something into his pants?
Q: You spoke to the police the day of the murder?
Q: And didn’t you tell the police you saw my client tuck a gun into his pants.
Was the witness impeached with an inconsistency? Sure. But the inconsistency made the defendant’s case worse (and this defendant ended up on Pennsylvania’s death row). This lawyer was ‘blindered’ by the tradition of prior inconsistent statement impeachment – if they said anything different, then the impeachment is to be carried out with drama, force and swagger.
But that’s a blindered approach, one that forgets that the case is about the story. If the earlier statement makes the story worse, stay away; and if the earlier statement supports the story, embrace it rather than use it as a point of attack. If you don’t follow these basic rules you are “blindered by the lie,” pushed into impeachment for its own sake and away from the essential of a trial – the rational, palatable story.
Consider this. In a violent crime prosecution, police caught a codefendant first. The codefendant’s statement upon arrest minimized the role of the defendant on trial. The codefendant became a cooperator, and testified at trial.
The codefendant’s testimony at trial put full blame on the defendant, and the prosecutor wisely brought out the initial statement. What might defense counsel have done? One option was to build up the statement to the police with questions such as
- When you spoke to the police you knew your situation was serious.
- You knew that your words could be used against you.
- You wanted the police to believe you.
- They told you they needed the truh.
- That the truth is what was most important.
- And you knew you could be prosecuted for giving false information to police.
In other words, make the statement the truth.
But this lawyer? They were “blindered by the lie.” The cross of the cooperator went through the statement line by line, making the witness admit that every sentence that reduced the culpability of their client was A LIE.
This is the tradition – you lied before, so you are lying now. But that is a “blindered” view – if those statements are lies, then your client is more culpable.
The lesson? We could track Othello and say “impeach wisely, not too well.” Or more simply the lesson is listen. Listen to the answers you will get and decide whether calling helpful statements lies is worth the closing argument of “they admitted it – they lied to the police.” Usually if not always it is more harm than good, the product of being blindered by the lie.