Cross-Examining Witnesses During Trials
If they can’t wear down victims by stalling, defense attorneys might try to discredit them, along with other prosecution witnesses, before or during a trial. Attorneys for the accused are duty- bound to seek evidence that contradicts or under- mines what the accusers contend. In addition to a speedy trial, the Sixth Amendment to the Consti- tution gives defendants the right to confront their accusers. The burden of proof falls on the prose- cution, and the defendant is considered innocent unless proven guilty. The accuser must be pre- sumed to be mistaken until his or her credibility is established beyond a reasonable doubt. The strategy of portraying the victim in a negative light (as a person who makes charges that should not be believed) is employed frequently in rape and sexual assault cases where credibility is a cru- cial issue, as this example shows.
A 20-year-old woman and a 61-year-old man briefly chat as their flight takes off. Then she puts her feet up on an empty seat between them and falls asleep. When she awakens, she finds that her legs are on his lap. Claiming that he had slipped his hand inside her shorts and molested her, she pushes him away, calls the flight attendant over, and has him arrested when the airplane lands. Weeks later, his attorney informs the prosecution that he has obtained a Facebook post which shows that within a few hours after the alleged sexual assault, the supposedly traumatized young woman had contacted her brother about mundane matters, like what she had eaten that day. The young woman realizes that she mistakenly “friended” someone who later turns out to be connected to the defendant’s son, and reports that she feels
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revictimized by this invasion of her privacy. Court proceedings will determine whether the defendant’s constitutional right to confront his accuser trumps the victim’s right under the rape shield law to be free from inquiries into her past sexual behavior and lifestyle, and whether communications disseminated by social media like Facebook and Twitter are public infor- mation or private matters. (McDonald, 2011)
Because defense attorneys are obliged to be vig- orous advocates for their clients, they may advance arguments at a trial or during plea negotiations that the defendant is in fact innocent. In casting doubt on the version of events cobbled together by police and the prosecution, defense attorneys draw upon their skills and training to undermine the accusatory testi- mony of victims. Under the adversary system, each side puts forward its best case and assails the version of events presented by the opposition. Cross- examination is the art of exposing the weaknesses of witnesses. The intent is to impugn credibility by revealing hidden motives, lapses of memory, unsavory character traits, embarrassing indiscretions, prejudices, or dishonest inclinations.
Cross-examinations can be ordeals for wit- nesses. But if defense attorneys were not allowed to sharply question prosecution witnesses, then the right of defendants to try, through their lawyers, to refute the charges against them would be under- mined. The concerns of complainants and other witnesses (including defense witnesses who are cross-examined by prosecutors) of being embar- rassed on the stand under oath must be balanced against the public humiliation suffered by defen- dants who are arrested and put on trial.
The defense attorney goes up against a formi- dable professional foe when the witness for the government is an expert in forensic science or forensic psychology, or is a seasoned law enforce- ment officer (although the credibility of police tes- timony has become the subject of much debate). But when the full brunt of the defense’s well- honed counterattack is directed at a novice, the complainant, the potential for adding insult to injury reaches disturbing proportions. At its best, the confrontation in the courtroom puts the victim
as eyewitness to the test. At its worst, the victim is a target to be injured again by being made to look like a liar, a fool, or an instigator who got what he or she deserved.
Because defense attorneys have a duty to vig- orously represent the best interests of their clients, their courtroom tactics might seem harsh. To rattle a witness, discredit damning testimony, and sow seeds of doubt and confusion among jurors, they may have to resort to theatrics and hyperbole. The Code of Professional Responsibility that guides legal strategies permits a zealous defense to gain an acquittal or a lenient sentence, but it prohibits any line of questioning that is intended solely to harass or maliciously harm a witness. Experts and the public often disagree over whether a defense attorney or prosecutor crossed the line and acted unethically by badgering a witness during a cross- examination. Cases that provoke the greatest con- troversy are those in which defense attorneys cast aspersions on the character of victims or blame them for their own misfortunes (Shipp, 1987).
Trials are relatively rare events, so most victims are not called to testify and undergo cross- examination. Because the outcomes of trials are uncertain and involve risks, attorneys for both sides usually prefer to strike a deal out of court. However, statistically speaking, most trials are successful from the point of view of victims and prosecutors: Defen- dants usually are found guilty.
The percentage of criminal indictments that result in trials before juries or in bench trials before judges varies according to two factors: the jurisdiction and the nature of the charges. Some prosecutors are more willing to put defendants on trial. Cases involving serious felony charges such as murder, rape, aggravated assault, and robbery go to trial more often than cases involving lesser crimes such as burglary or auto theft. Rape com- plainants are the most likely to be subjected to hostile cross-examination by defense attorneys. But only about 5 percent of rape cases were resolved through trials with the help of the complainants’ testimony in the nation’s largest prosecutorial jurisdictions in 2000 (Rainville and Reaves, 2003).
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In murder trials, families and friends of the deceased find it particularly upsetting if defense attorneys attack the attitudes and actions of the deceased persons to try to justify or exonerate the behavior of the accused killers. Unlike cross- examinations, these attempts to sully the reputation (or trash the memory) of murder victims are pecu- liarly one-sided affairs. The deceased subjects of nasty insinuations are not around to rebut the inflammatory things that the alleged offenders say about them during trials. The defense attorney pic- tures the accused as respectable and believable and the departed as a person of ill repute, as the two cases below show. In the first case, which was highly publicized, the preppy’s defense was that his partner enjoyed engaging in sex that was dan- gerously rough.
An 18-year-old dies of strangulation late at night in a public park in the arms of a six-foot-four 19-year-old she was dating. He tells police that she passed away accidentally as he protected himself during “rough sex play.” His lawyer subpoenas her diary, in which she allegedly graphically described aggressive sexual exploits with other young men—but later, it turns out that the diary doesn’t contain such information. Some members of the jury are swayed by the defense’s arguments. The jury remains deadlocked for days. Before it can render a unanimous verdict, a last-minute plea is negotiated that permits the defendant to admit guilt to the lesser charge of manslaughter instead of murder. At a press conference, the father denounces the defense’s portrayal of his dead daughter, and calls it a bizarre pack of lies. After serving 15 years, the killer is released. He later develops a heroin habit and gets convicted of selling cocaine. He is sentenced to 19 years behind bars. (Hackett and Cerio, 1988; Lander, 1988; and Eligon, 2008)
Similarly, in another case that was widely cov- ered in the news media, the defense attorney for a famous TV detective portrayed the dead wife in such a highly negative way that jurors might con- sider her undeserving of any sympathy.
An actor is on trial for shooting his wife. According to the prosecutor, he referred to her as a “pig” whom he
wanted to “snuff.” The defense attorney raises doubts about each of the prosecution’s specific charges, and portrays the murdered woman as a “sleazy grifter” who recruited rich and famous men by sending them form letters attached to nude pictures of herself. The defense claims she told friends that she always wanted to marry a celebrity. Calling her a “scam artist,” the defense tells the jury that she used at least a dozen aliases and left behind 10 former husbands. She allegedly pressured the 71-year-old star into a loveless marriage by getting pregnant in order to get at his money. The jury decides he is not guilty of murder and is deadlocked over the charge that he sought to hire a TV stuntman to kill her. (LeDuff, 2005; and AP, 2005)