Sunday, July 20, 2008

The One Witness Rule as Gamesmanship

Mark Bennett did a post on the "One Witness Rule" last week, describing the prosecutorial question to a jury as "sneaky", "unfair", "inelegant", and "gamesmanship".

Here's how the "One Witness Rule" question generally poses itself in voir dire in it's raw form:

"Assuming that one witness and one witness only testifies, and they cover all of the elements of the offense, and that witness proves the elements to you beyond a reasonable doubt, the law says that you can convict. Can you follow that portion of the law?"

One of Mark's descriptors is that the question is inelegant. Boy, he got that part right. It is a tough question for a juror to wrap their mind around. And dammit, us Texans are known for our freaking elegance, if nothing else.

But I disagree with him that the question is "sneaky", "unfair", or "gamesmanship".

The question is, very often, an important one to a case, and, contrary to his post, it is often applicable, even if the case has 58 witnesses.

Because, often times, there is only one witness on the case that makes it. One of Mark's posters points out that the Aggravated Sexual Assault of a Child case is a prime example of where the One Witness Rule comes into play. Sure, you can bring in a police officer, maybe even a Sexual Assault Nurse Examiner (if you're lucky), and perhaps an outcry witness.

But the crux of the case is going to be that one witness: the child.

I've had cases where I've put children on the stand, and they've been amazing in both their courage and their descriptiveness.

And I've had those juries hang. And those jurors that wanted to acquit have told me "Yeah, we believed her, but we really wanted some DNA evidence."

No kidding. I would have loved some too, but as any lawyer who practices criminal law will tell you, we don't make the facts.

Prosecutors do have to identify those jurors who won't convict without the scientific evidence or a corroborating witness, because that's often times all we've got. That makes the question important, and there's nothing unfair about asking it.

What Mark doesn't mention is that most prosecutors will give a hypothetical or two that illustrate what the One Witness Rule means. Often times, it goes something like this:

Let's say that after jury selection, you go back out to your car, and there's the Court Reporter with a gun. She robs you of your purse and takes off. The cops show up and you tell him everything. Here you were in Harris County. A person you know came up with a gun and robbed you of your purse. You were in fear for your life. You know it was the court reporter, because you've been looking at her for the last three hours. You've covered all the elements, but the cop tells you, "Well, without another witness, a fingerprint, or a video tape of the offense, we can't file charges." Do you see how the "One Witness Rule" works? So, making the assumption, that you believe the witness beyond a reasonable doubt as to all the evidence, can you convict? Or are you going to require something even more than that?

Mark is right that it can become difficult for a juror to understand, but that's why prosecutors spend so much time on it, if the case necessitates.

It can many times be the most critical question that a prosecutor can ask on a given trial.

I will give you an example of what was, without a doubt, the most difficult case I ever took to trial, and it involved one witness.

A lady was walking to the bus station from a parade in Midtown and got lost. A man fell in beside her as she walked and began talking to her, under the guise of helping her find the bus station.

"Come this way," he kept telling her. "It's just a little bit further."

Ultimately, he shoved her into a vacant lot, where he violated her at knife-point in pretty much every way a woman can be violated. She remembered the paw print tattoos across his chest, but she never saw his face. He fled, with her purse and check book.

No DNA was recovered.

The investigating officer tracked down the checks which were almost immediately being used in forgeries across town. He busted his butt working on the case and linking it up to a suspect. He finally identified a person, whom he tied to the victim's checks. That person was put in a live line up, and the second the victim saw him, she collapsed in her recollection.

The case was beyond brutal, and about two weeks before trial, the police officer who filled in all the gaps on the case died. All the work he had done to provide the link ups died with him, too. They couldn't be proven up without him.

So I was left with my One Witness.

The Defendant had offered to plead to 25 years TDCJ and never asserted actual innocence during the negotiation phase. But he was a true habitual, and the facts were horrific. I gave the option to the victim, telling her that the case would be difficult and nothing was guaranteed. I let her guide me, and she wanted him to go to trial.

I spent the vast vast vast vast vast majority of my voir dire on One Witness. I had plenty of knowledge that left me no doubt whatsoever that I was trying the right person for the case, but what I had in the way of admissible evidence was just one extremely brave woman.

In the end, the voice recognition and the tattoos on his chest were enough for the jury, and it was one of those days where it felt really damn good to be a prosecutor.

The point of the story (other than reliving a Glory Day moment in trial) is that the One Witness Rule is important.

Really damn important.

Sure, you can call it "inelegant", but "sneaky", "unfair", and "gamesmanship"?

I don't think so.

9 comments:

Ron in Houston said...

Yeah, there have been lots of times I wanted to file a Motion to Change Facts.

Anonymous said...

Mark is a very capable defense lawyer. He is at times, however, as arrogant as he is capable. I have seen him state before that there is not a prosecutor in Harris County who has the ability to deliver an effective voir dire. Oh, but when a prosecutor gets a truly qualified jury with the one witness rule, that is gamesmanship, not skillful voir dire? Come on, Mark...

Mark Bennett said...

I'll humbly admit arrogance, but I don't think I ever said that not a single Harris County prosecutor could do an effective voir dire; I may have said that I'd never seen a prosecutor do a voir dire worth a damn. Even that, however, has changed -- Mike Trent, for example, did a good voir dire in our theft trial last week. He didn't follow the usual template, and he didn't ask the one-witness question (even though he had only one witness to prove the value of the allegedly stolen property).

I also put my name on anything I write. If I'm wrong I'm responsible, and I'll cop to it.

Nope, no anonymous sniping for me.

Muck said...

From the other side of the fence, I had this come up in April while I was in a (Fort Bend County) jury pool. The case was a young girl (I found out later she was 9-years-old) who'd allegedly been repeatedly sexually assaulted by a family friend.

I have to say the attorneys made the One Witness Rule a big deal. I'd never heard of it before, but I had no problem understanding it. Judging by the questions jurors asked neither did they.

Oh, I wasn't picked bye-the-way. A sheriff's deputy friend of mine told me they convicted.

Anonymous said...

That was, perhaps, the most elegant post you have ever made. Totally excellent.

I don't know if you are just banging this stuff out on the keyboard or if it takes you a long time to gather such coherent thoughts and opinions, but you're speaking the truth for me.

God bless those children and their courage and honesty.

The worst one witness trial moment of my prosecutorial career was having to present a darling 4 year old to testify. Her molester was later convicted and got mucho time, an "essentially life sentence". You know, an old guy that gets a sentence that for him is a life sentence.

Me, after her testimony I retreated to the bathroom where I cried like a baby at having to put that child through that experience. And although in that case she had to testify, I sure felt like a bastard for a while for putting that child on the stand.

Thanks for protecting our children, AHCL!

Tex

Gritsforbreakfast said...

Don't know if you saw, AHCL, but I had a reaction to Mark's one witness post as well noting that a consequence of the "one witness" rule is that looking back historically, it would exclude, e.g., Moses, Jesus, and the Apostle Paul. Nope, we definitely don't want anyone with THEIR values on the jury, right? Let's get rid of the Bible readers, too, with that one - at least those who take their faith seriously.

We agree about the motive for asking the question when you write, "Prosecutors do have to identify those jurors who won't convict without the scientific evidence or a corroborating witness, because that's often times all we've got."

I get that, but that's also how wrongful convictions happen. Quite a few of the Texas DNA exonerations occurred when a complaining witness who was "certain" of an identification but DNA later proved the ID was wrong.

That's why corroboration is important, because sometimes when one witness is all a prosecutor has, it means they've got the wrong person.

A Harris County Lawyer said...

Hey Grits,
I read your article. Don't get a big head, but I actually read what you write every day. And I see where you are coming from. However, citing the Bible can work on both sides of many arguments (i.e. "eye for an eye" versus the forgiveness taught by Jesus), and ultimately, I'm not a Biblical scholar by any stretch of the imagination.
And I also think it's worth noting that whether a person can follow the One Witness Rule doesn't say anything at all about their moral character. Prosecutors don't consider those who can't follow that rule as "bad people". The point of my article was that it isn't some sort of smoke and mirrors type of question as Mark stated in his post.
I understand your concern and anyone's concern with a case where there is one witness. And when there is a one witness case, prosecutors will have an uphill battle. That "one witness" had better be pretty damn convincing if they are going to win over 12 people.
But what's the alternative really? Not allowing one witness cases? Those delayed outcry kiddie cases are just banned without a confession? I may post on that in a bit.

Gritsforbreakfast said...

Some of those "delayed outcry kiddie cases" are pretty problematic; the longer it's been since the alleged crime occurred, the less likely it is their memory is accurate and has been tainted by other sources. (See the study mentioned in the post linked under "certainty" about people's Challenger disaster memories.)

Re your comment: "what's the alternative really? Not allowing one witness cases? Those delayed outcry kiddie cases are just banned without a confession?" I'd say yes, with the caveat that there are other ways to corroborate (contemporaneous admissions to others, childhood medical records, etc.) besides a confession. But kids don't always tell the truth and adults don't always accurately remember their childhood. Do you remember the MacMartin preschool case? Just because a kid says it doesn't make it true.

There are plenty of DNA exonerations from child rape cases where a kid accused the wrong person. We know eyewitnesses sometimes make mistakes - even when they're absolutely certain - so in that context how can their uncorroborated testimony be enough to convict "beyond a reasonable doubt? Just because you don't have more evidence doesn't mean a single person's testimony can possibly meet that standard, does it? What if you couldn't find more evidence because the victim's wrong and the D is innocent?

With that, I'll look forward to reading your additional thoughts if you do decide to post on the subject.

tracy peebles said...

So what about the SCORNED LOVER and drummed up cases because of them? Texas has the most stupid laws and should be way more regulated!