Are you saying the Officer is a liar?
Great question for the prosecutor to ask of the defendant on cross, right? Completely improper, of course, but as questions with impact go, it’s a doozy.
There are, of course, some excellent responses that can counter the implication that in order to believe the defendant’s testimony, which directly contradicts that of the prosecution’s witnesses, the jury must believe the latter to be lying liars who lie. And of course, maybe they are, but it’s always hard to get twelve people to accept the notion that police would lie. After all, they’re our protectors. They’re heroes. They have no reason to single out the defendant, of all the people in the world, and lie about him. Why would they do such a horrible thing?
Because they can. Because they think the defendant is guilty and will say whatever magic words get the jury to agree with them. Because they think this is the way the game is played, that the ends justify the means, that a little lie takes a bad guy off the street. That in the grand scheme of things, it’s more important that make their bust stick then be slaves to truth. Whatever. There are a million possible reasons, and if one isn’t inclined to stick to the truth just because they swore to do so, there’s no harm in straying for what one decides is the greater good.
Tommy Washington learned the hard way what it’s like to be asked whether he’s saying the prosecution’s witness is a liar. On trial for assault, he didn’t much like it, especially when the jury convicted him. It would have been enormously better for him had his lawyer mustered an objection to the questions. Why he didn’t can’t be explained. Maybe he didn’t know better. Maybe his cuticle was particularly fascinating. Who knows. But it didn’t happen.
On appeal, the defendant challenged the improper questioning, lack of preservation notwithstanding. The Fourth Department held :
Defendant appeals from a judgment convicting him upon a jury verdict of assault in the first degree (Penal Law § 120.10 [1]), gang assault in the second degree (§ 120.06) and assault in the second degree (§ 120.05 [2]). Defendant contends that he was denied a fair trial based on the prosecutor’s improper questions on cross-examination concerning whether the prosecution witnesses were lying or were liars. That contention is not preserved for our review inasmuch as defendant failed to object to those questions (see CPL 470.05 [2]), and we decline to exercise our power to review defendant’s contention as a matter of discretion in the interest of justice (see CPL 470.15 [6] [a]).
We note, however, that such questions were improper (see People v Paul, 229 AD2d 932; People v Paul, 212 AD2d 1020, 1021, lv denied 85 NY2d 912; People v Edwards, 167 AD2d 864, lv denied 77 NY2d 877). As this Court stated over 20 years ago, “[o]n numerous occasions, we have forcefully condemned prosecutorial cross-examination which compels a defendant to state that witnesses lied in their testimony” (People v Eldridge, 151 AD2d 966, 966, lv denied 74 NY2d 808). Unfortunately, we find it necessary once again to forcefully condemn such improper conduct by the prosecutor.
Had the court merely chosen to ignore the glaringly improper questioning for lack of preservation, it wouldn’t have surprised anyone. As much as the defendant’s right to a fair trial is at stake, and his lawyer’s screw-up, the failure to timely object, doesn’t strike many of us as a really good reason for someone to go to prison for 20 years, it’s an easy-breezy way for courts to affirms without addressing the wrong committed by the other side.
Aside: For those who believe that lawyers are fungible, one as good as the next, and hence believe that the only detail they need to know about a lawyer is how much they charge, or how cheaply they can obtain a defense, consider that the defendant is saddled with the lawyer’s error, the missed objection or inadvertent admission or poorly conceived argument. Even though it’s not your fault that the lawyer screwed up, you picked him to be your representative, and you bear the consequences of his failure. Is it worth it?
But that didn’t quite happen here, which is what makes this brief memo decision quite fascinating. The court seized the opportunity to note the impropriety of the prosecution’s cross, forcing the defendant to call the witnesses for the other side liars.
As this Court stated over 20 years ago, “[o]n numerous occasions, we have forcefully condemned prosecutorial cross-examination which compels a defendant to state that witnesses lied in their testimony.”
This isn’t new. This isn’t cutting edge. This is black-letter impropriety. It is so clearly, utterly, definitively wrong that the court finds it necessary to reiterate that it not only condemns such impropriety, but does so “forcefully.” With force. Well, not quite pepper spray level force, but full of the force courts possess, meaning words.
Despite the fact that the court’s use of force more than 20 years ago has not put an end to this odious question, and despite the fact that Tommy Washington’s lawyer neglected to object, the court nonetheless levels its judicial shotgun and
Unfortunately, we find it necessary once again to forcefully condemn such improper conduct by the prosecutor.
And then the court does . . . nothing. As the passage above makes clear, the court had the power to exercise it’s “interest of justice” discretion to review the unpreserved error. It didn’t. The court could have named the prosecutor who engaged in questioning that was so improper that it compelled the court’s forceful condemnation. It didn’t. The court could have done something, anything, to make its words mean something. It didn’t.
Rarely has a forceful condemnation been so unforceful and uncondemning. The mantra in writing is “show me, don’t tell me.” And in fact, the Fourth Department did exactly that. It showed that the impropriety of asking such glaringly improper questions of a defendant on cross examination results in absolutely no negative consequences. No exercise of discretion in the interests of justice just to reach the issue. No stinging reversal for depriving the defendant of a fair trial. No public exposure of the individual engaging in improper conduct. Nothing.
The worst that comes of it, the very harshest thing to happen, is a stern wag of the generic finger. And that’s what this court considers “forceful.” And it wonders why more than 20 years after such questions have been forbidden, they’re still asked.
H/T Brian Shiffrin at New York Criminal Defense
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And this is what passes for “justice” in New York. Is there any wonder why confidence in government is at an all-time low?
I love how courts use waiver as being in the interest of judicial economy. In reality, it just makes lawyers have to object and file a bunch stuff in order to avoid waiver / malpractice issues.
Why is waiver such an important concept for appellate courts?
Another thought… Judge Richard Posner wrote a funny opinion last week. It had a picture of an ostrich with its head buried in the sand, which he compared to practitioners who avoid citing unfavorable appellate case law.
But what about judges who hide their head in appellate case law, even when it leads to an unjust or absurd result? Isn’t that worse?
I’m glad the 7th Circuit has a sense of humor, but sometimes it feels like justice is the last thing courts are concerned about.
Failure to preserve means less work, shifts burden off the court and back onto the defendant. In rare instances, it serves its purported purpose, to compel lawyers to make their arguments before the trial judge and give the judge the opportunity to rule and thus provide the fair trial at the time rather than a basis for complaint afterward.
As I always say, be careful about seeking justice. You might find it and realize it’s not quite what you thought it was.
Tom Robinson is asked a similar question in To Kill A Mockingbird. His response (“No, I think she is mistaken in her mind”) should be provided to all witnesses to answer that question.