Jamie Koehler offers, without commentary, a bit of trial transcript.
PROSECUTOR ON RE-DIRECT
Q: Okay. Ms. Smith, you do have a Yahoo e-mail account, right?
DEFENSE COUNSEL: Objection. Leading.
The prosecutor, of course, can’t lead his own witness. Not on direct. Not on re-direct, where a prosecutor will try to rehabilitate his witness after a withering cross. But in this case, the cross didn’t turn out to be particularly withering.
The defense attorney sought to get the witness to admit that she used a particular Yahoo email account. The witness testified that she did not. Counsel pushed. The witness didn’t budge. Counsel pushed again. Still, no budge. Nothing. Then counsel let it go. If the witness is going to persist in denial, there isn’t much you can do about it, at least with that witness. Contrary to TV trials, the lawyer doesn’t get to make a speech, testify, and make the witness break down in tears.
So when the prosecutor on re-direct asked a leading question pursuing the same line that failed to produce the admission sought by defense counsel, it was, ahem, peculiar, but still improper.
PROSECUTOR: May I approach with counsel, Your Honor?
THE COURT: Sure. (To witness). If you would step down to one of those jury chairs again, if you would. Thank you.
THE COURT: Okay.
DEFENSE COUNSEL: Two things. First, it’s leading. This is the government’s witness, not mine. Second, she never acknowledged that she had a Yahoo account.
The objection was to both form, as it was leading, and substance, as it appeared to be bolstering the denial at this point, the witness not having given an inch.
PROSECUTOR: And, Your Honor, I am attempting to impeach the witness. I do have – I would just like to ask her if that is her e-mail account because I have communicated with her through that e-mail account, so if I could just be allowed to ask her again to give the email account with the numbers and ask her if she uses that account. It’s leading, and it would be my intent to impeach my own witness, and it’s just my responsibility as candor to the Court.
THE COURT: Okay.
One might have expected the court to have something more profound to say than “okay,” but notice that defense counsel said nothing? Smart. Very smart.
Had the prosecutor not asked the question, not expose his own witness to impeachment, there is little chance anyone would have known, and even less chance, had they known, that there would be any consequences for the failure to fulfill the duty of candor. But the prosecutor, without anyone to tell him otherwise, did so, impeached his own witness, because he knew the witness to be lying.
Some people simply have integrity. Too bad Jamie didn’t name the prosecutor. It would have been nice to show some appreciation. Whoever it is, thank you.
Its too bad neither the defense or the prosecutor could get the email address correct.
Not sure what the point of your comment is, except to note that the transcript has one saying 1540 and the other saying 1504. Have you never read a transcript prepared by a court reporter before?
Read more than a few.
My point is neither of them seems to get it right. They have 1540, 1504 and 1450 listed. Makes you wonder if they ever got it right.
Or the usual transcript errors, which distracts from the point to irrelevant crap. But again, what did your comment contribute? It makes me wonder if you ran out of Ritalin.
And thats why the kids that figure they want to be cops in kindergarten should be put in a special room and be subjected to mastering mock trials for 13 years.
And the kids that only start fuguring that they want to be cops in high school should be put in a special room and beaten with sticks for however long they have left.
Or something like that…
The fact that you thought it worth publishing would suggest that this isn’t common from US prosecutors. That is disappointing to hear. I can honestly say that neither I or any of my colleagues up here (Canada) would hestitate for a second to throw that witness under the bus.
No, it’s not common. We’re pretty happy that it happens at all. Low expectations.
If this prosecutor is honorable enough to basically call out their own witness. ,I think we have found the one person for the job of United States Attorney General
Pity it will never happen
Not the “one person,” but certainly not as many as it should be.
I find trial transcripts frustrating because I never turn out to have been as eloquent as I thought I was at the time.
We should be able to take it for granted that a prosecutor will fulfill his/her basic obligations under the Rules of Professional Conduct. Sadly, as SHG suggests, this is not always the case. And we really have no way of knowing how often these obligations are violated.
I struggled with whether or not to use the prosecutor’s actual name. I finally decided not to for fear of embarrassing her. I know that many people at the U.S. Attorney’s Office and elsewhere in D.C. read SJ. I will make sure she is made aware of it. I am sure she will appreciate the acknowledgment.
Given that we never shy from naming a bad prosecutor, it would be nice to applaud a good one. At the very least, please convey my appreciation.