norm from cheers said:
For the SoSh Lawyers: Is it possible the Prosecutors have no idea whether Shayanna will speak freely or clam up / claim she can't remember? Would they give her immunity without her ever telling them information that would incriminate AH?
I was told by a defense lawyer friend a while ago that he never would ask a question of his client or his witness he did not already know how that person would answer. The Rhode Islander (everyone is dirty somehow) in me is wondering if AH's thug buddies have not reached out and reminded her she will pay a price if she turns on AH on record.
I read this SI article and it is a pretty good primer (at least to this layman) but
I was just curious if the Prosecutors would risk not knowing what she will do today and still call her to the stand.
http://www.si.com/nfl/2015/03/26/aaron-hernandez-murder-trial-shayanna-jenkins-testimony-friday-odin-lloyd
This is a good maxim. One I often repeat. In reality though, there's wiggle room, and there are exceptions.
It breaks down like this. Basically you don't want a witness doing anything to hurt your case. However, if they're hostile to your case, the other side will find a way to elicit "bad facts" for your side. So as an advocate, you have to accept the fact that the hostile witness is going to try to burn you. The "bad facts" will come out. So what do you do?
Well, there are some facts that the witness just can't go into - they're prohibited. So you're careful not to "open the door" and ask questions that go to those facts. (Say, OL was convicted of income tax evasion - the court would correctly rule that such a thing can't be put in front of a jury.) You've got to be (as an advocate) aware of where the witness *could* go, and be quick with your objections. Once a jury hears something, they hear it.
Beyond the prohibited, there are other facts that might be bad, will come in, but could be further fleshed out by the witness if they're given an opportunity. So you don't blindly inquire or ask open ended questions in dangerous areas. It's a license for the witness to blab on and on. So your inquiry has to be focused. You have to balance this focus with not appearing too "lawyerly" in overly narrowing the questions - or, more colloquially, trying to bamboozle the jury by dancing around "the real" issues. The other side will just flesh out anything you're dancing around. IMO, this makes some attorneys too timid on cross (the most common way of questioning a hostile witness) - they think that as long as *they* don't elicit the bad info, it's OK. In reality, looking like an obstructionist and serving up a softball for redirect can often be more damaging.
In terms of "pushing back" at the hostile witness's bad facts, you have several options. You can elicit contradictory testimony from other witnesses. You can point out inconsistencies in the testimony of the hostile witness. You can ask questions that show bias/agenda on part of the hostile witness. They love the victim, they hate the defendant, they were a victim themselves, they're overreaching or coloring the facts, they have something to gain, etc. You can also play emotional issues. (For example, in some cases, the more hostile the hostile witness acts, the more respectful you become - then you argue to the jury the witness showed overt bias/hostility toward *you alone* and are not to be trusted, even though their testimony appeared smooth and consistent, it was really too smooth and too hostile.)
In those situations, you don't know
exactly what the witness will say, word for word. So you have to be informed and flexible in terms of dragging up counter arguments, eliciting other facts, cementing certain things in the testimony, being ready to impeach bases on what the witness has said before, etc. This is why cross (or, more broadly, handling a hostile witness in front of a jury) is a skill. A very information intensive one - for a well prepped attorney, an excellently conducted cross might only implicate %5 of what the attorney knows about the witnesses' potential testimony. The measure of a good cross is the relation of that percentage to the percentage of potentially useful information, balanced against any damage to your cause that the cross might let in. You try to get what you can, while not sinking your case. (If your case is sunk already, you get more aggressive, if the case is won already, you'll be more conservative.)
A better maxim would be "don't solicit an answer (whatever it is) that you don't need, or can't somehow use."
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This prosecutor did pretty well with the aunt who couldn't remember (name escapes me at the moment.) He'll have to up his game for Jenkins though, who may have logged over 40 hours practicing how to face a cross with her attorney (who is a defense attorney and likely knows the ins and outs of cross.)
