Sunday, July 27, 2008

Bibles, Witnesses, and Corroboration. Oh my!

Mark Bennett's post last week about the "One Witness Rule" question during voir dire has (as I could have predicted) evolved into an argument about whether or not "one witness" to a crime should ever be legally sufficient in a court of law. Grits for Breakfast went all Biblical with the argument by pointing out that Moses, Jesus, and the Apostle Paul couldn't be on a Harris County jury because Biblical passages require at least two witnesses on every dispute.

Now, I will freely admit that I'm no Biblical scholar (I will sit back and wait for Pro. Victims to chime in for that), but it has been my experience that every time a person has cited the Bible as their moral authority for a position, someone a lot smarter than me can find a quote from the same Good Book that contradicts it. Or, at least, they can point out dozens of other Edicts that come from the Bible that seem beyond ridiculous in this day and age. Quite frankly, I usually stay away from the Bible when in the courtroom, because I'm not as well-versed with it as I should be.

That being said, Grits and I got into a discussion over what to do in cases where there was truly only "One Witness".

MY QUESTION: But what's the alternative really? Not allowing one witness cases? Those delayed outcry kiddie cases are just banned without a confession?
GRITS' ANSWER: 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.

He posted more than that, and you can read it here. I don't want to fill all of this post by rehashing what's already been said. Suffice it to say that Grits has some genuine (and legitimate) concerns about faulty testimony, recollections, and some later exonerations.

So do I. So does everyone who is or has been a prosecutor.

The idea of just being freaking wrong for believing that "One Witness" scares that hell out of us all.

But the idea of banning a "One Witness" case from Jump Street is over-reactionary and foolish. And even if the Rules of Evidence were to be re-written so as to require corroboration, how much corroboration is enough?

If a witness testifies that when she was thirteen years old in 1993 that her father sexually abused her, would calling her mother as a "corroborating witness" to say, "Yep, in 1993 my daughter was 13-years-old" be sufficient?

Or would we require more?

Should Mom be saying "Yep, in 1993, when my daughter was 13, I distinctly recall my husband walking into her room completely naked and telling me he was about to have sex with her."

What I'm getting at is "how much corroboration is enough" for those who would whine and complain about the fact that One Witness' word can convict somebody? It's a slippery slope.

Don't get me wrong. I understand where Grits and Mark are coming from. I really do. They are thinking about the cases of the eyewitness identifications on a stranger on stranger case. Or (as Grits points out) the McMartin pre-school case where even multiple children made outcry against a person they knew.

I get the point, but I strongly disagree with the idea that One Witness cases should be barred.

They should be tried, and they should be critically reviewed by twelve members of the community that don't have a dog in the hunt. Jurors that are keenly aware that one witness testimony is fallible, but have an open mind as to whether or not that one witness is telling the complete truth.

The bottom line is that this is what the jury system is all about. By all means, defense attorneys should be able to do everything in their power to break apart the One Witness' story, go after the failings in their memory, attack their motivations. Pick them apart, if you can.

But denying them their day in court? I don't think so.

Ultimately, a One Witness case is much more difficult for a prosecutor to prove than it is for a defense attorney to defend.

If you are going to bar the One Witness case, you might as well throw the entire jury system in the garbage, right along with all the Criminal Laws. If One Witness' testimony can be fallible, couldn't twenty witnesses'?

Of course the Criminal Justice System has flaws in it, but [by analogy] as Winston Churchill once said of democracy:

"No one pretends that democracy is perfect or all-wise. Indeed, it has been said that democracy is the worst form of government except all those other forms that have been tried from time to time. "

So quit whining. Man up and go try your cases. You've got a lot to work with on any One Witness case.

And in the end, whether there be One Witness or One Hundred, may Justice be done.


Jason said...

Okay, let us say the 'one witness rule' is done away with and we apply Grits' and the biblical standard. Does this apply to the lone patrol officer who catches a burglar coming out of a window with stolen property?
Or the lone officer who catches a drunk driver?

Ron in Houston said...

I don't think anyone is going to bring back the Biblical rules of evidence anytime soon. I do think it highlights that even ancient cultures had problems with eyewitness identification. It took two people who say the event to make it stick.

Mark just raised whether it's a fair or perhaps sporting question during voir dire. My opinion is that in a one witness case it's fair, but otherwise you're trying to eliminate someone just because they're skeptical.

We need more skeptics.

Anonymous said...

You know the answer already to your rhetorical question as to how much corroboration is required in a one witness case.

Nothing will satisfy the liberal pundits. If you have dna evidence, fingerprint evidence, a history of serial killings, a confession, the crime taped on video and all kinds of corroboration, the liberati will say "Yeah, that's good but it is not quite in my comfort zone. I'd feel better about that conviction/death sentence/etc if they had been actually caught in the act by 12 holy men of different faiths or alternatively, a selection of innocence project and ACLU monitors. Then I would almost feel better about it.

They can try to change the law on that one. Lots of luck. It is the law of the land, and they don't like it.

I have always found jurors to be skeptical about one witness cases. I find them to be guardedly afraid of convicting someone based upon one witness testimony. In voir dire, time after time, intelligent people tell me they will pay attention to corroboration of the lack thereof in these types of cases.

I understand the part about defense lawyers zealously defending the rights of their clients. I understand the part about defense lawyers making sure police dotted their i's and crossed their t's. I understand the part about defense lawyers letting the court and jury know the best of their client's attributes, humanizing their client, in spite of whatever heinous evidence may be presented.

I don't understand the part about trying to make the law so obtuse that it ceases to be functional regarding violent crime, under the guise of protecting the rights of the individual,

I don't get the part about wanting to block a one witness crime victim from having equal access to justice, and the public's need to be protected from some monsterous types.

I don't get, and have never gotten, feeling sorry for violent criminals. Yeah, I'm capable of sympathy and even a break of some sort on certain cases. I'm human. I feel empathy for others in sad situations.

But I am incapable of feeling sorry for the child molester or pornographer. For the murderer. For the hijackers. The ones we should be scared of. And frankly, I am bewildered when otherwise intelligent, likeable, sensible defense lawyers lament that their "poor guy", "not a bad sort", client got hammered with a life or death sentence for a bad crime.

I've won and lost cases that revolved around one witness testimony. I've got confidence in the jury system to be the human lie detector.