{"id":3717,"date":"2023-08-29T18:07:25","date_gmt":"2023-08-29T18:07:25","guid":{"rendered":"https:\/\/law.temple.edu\/aer\/?p=3717"},"modified":"2023-08-09T18:08:17","modified_gmt":"2023-08-09T18:08:17","slug":"blindered-by-the-lie","status":"publish","type":"post","link":"https:\/\/law.temple.edu\/aer\/2023\/08\/29\/blindered-by-the-lie\/","title":{"rendered":"BLINDERED BY THE LIE"},"content":{"rendered":"

Bruce Springstein\u2019s inimitable lyrics speak of someone \u201cblinded by the light.\u201d\u00a0 They came to mind, sadly, when reviewing a defense lawyer\u2019s attempt to impeach a cooperating witness.\u00a0 In that case, the lawyer followed a model that is a recurring problem in trial advocacy, lawyers \u201cblindered by the lie<\/em>.\u201d<\/p>\n

What do I mean?<\/p>\n

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.\u00a0 In a capital case, the following cross-examination occurred:<\/p>\n

Q: On direct examination you said that you saw my client go into the alley.\u00a0 Correct?<\/p>\n

A: Yes<\/p>\n

Q: You heard the gunshot and saw him exit the alley?<\/p>\n

A: Yes<\/p>\n

Q: And on direct you said that as you saw him leave the alley he was tucking something<\/em> into his pants?<\/p>\n

A: Yes.<\/p>\n

Q: You spoke to the police the day of the murder?<\/p>\n

A: Yes<\/p>\n

Q: And didn\u2019t you tell the police you saw my client tuck a gun<\/em> into his pants.<\/p>\n

Was the witness impeached with an inconsistency?\u00a0 Sure.\u00a0 But the inconsistency made the defendant\u2019s case worse (and this defendant ended up on Pennsylvania\u2019s death row).\u00a0 This lawyer was \u2018blindered\u2019 by the tradition of prior inconsistent statement impeachment \u2013 if they said anything<\/em> different, then the impeachment is to be carried out with drama, force and swagger.<\/p>\n

But that\u2019s 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.\u00a0 If you don\u2019t follow these basic rules you are \u201cblindered by the lie,\u201d pushed into impeachment for its own sake and away from the essential of a trial \u2013 the rational, palatable story.<\/p>\n

Consider this.\u00a0 In a violent crime prosecution, police caught a codefendant first.\u00a0 The codefendant\u2019s statement upon arrest minimized the role of the defendant on trial.\u00a0 The codefendant became a cooperator, and testified at trial.<\/p>\n

The codefendant\u2019s testimony at trial put full blame on the defendant, and the prosecutor wisely brought out the initial statement.\u00a0 What might defense counsel have done?\u00a0 One option was to build up the statement to the police with questions such as<\/p>\n