Can a lawyer purposefully be argumentative and immediately withdraw a line of questioning? In Season 14 Epsiode 3 of Law and Order, SVU (great start, I know), the defendant's lawyer leads an aggressive, argumentative line of reasoning several times when questioning a witness. Immediately after stating the question, the lawyer withdraws, anticipating an objection. The lawyer is very clearly talking to the jury, and insinuating a point. Can lawyer really use cross-examination as a vehicle to put in an argument, completely orthogonal to the witness' testimony? Here's the excerpt: [lawyer, during cross-examination of victim] What else would you do for money? Lie about rape? - Sue my client? [victim] No, I would never do that. [lawyer] You wouldn't lie about sex for money? [victim] No. [lawyer] But you have lied about sex for money in the past. [victim] I'm telling the truth now. [lawyer] I see. (Towards jury) And how do you expect the jury to tell the difference? (Immediately following up) Withdrawn. One scene later, the lawyer is doing a cross-examination with another witness, one who agreed to pay the victim, Jocelyn Paley, to claim to be the author of a certain book: [lawyer] (Again, towards jury) What made Jocelyn Paley the right choice? [witness] As I said, it was the contrast between her innocence and the subject matter. [lawyer] Or was it because she's a good liar? Didn't you choose Jocelyn Paley because she is a convincing enough liar to sell 5 million copies of a book about a fetishistic world that she claims to know nothing about? [DA] Ob- [lawyer] (Interrupting) Withdrawn. The goal seems very clearly to plant a seed of doubt about the victim's credibility in the jury's mind. "Withdrawing" the line of questioning, practically speaking, does nothing here. How is this allowed?
It happens all of the time, even though it is mildly improper. Usually, the lawyer can get away with it until the judge sternly warns the lawyer not to try it again, in which case the lawyer risks being held in contempt of court. This is riskier for a prosecutor (who risks this conduct causing a conviction to be overturned on appeal resulting in a new trial), than for a criminal defense attorney. This is because an acquittal, if obtained by these methods, is still not subject to appeal. Indeed, for a criminal defense attorney, even if it results in a mistrial followed by a new trial (which can be allowed if the mistrial is caused by the conduct of the defense), the mistrial will often count as a win if the trial was going badly on the merits.
Only a jury can answer your question, and then on a case-by-case basis. When a witness testifies, the question of whether and to what extent to believe/disbelieve a witness is nearly 100% the decision of the jury (or the judge in a bench trial). In a criminal trial, at least, if a thousand disinterested nuns can take the stand and give identical testimony that Defendant robbed the bank, and Defendant's mother says he was actually with her on a Bahamas cruise at the time of the robbery (nevermind the fact that he was arrested exiting the bank), the jury is 100 percent free to conclude the nuns are lying and the mother is telling the truth. Likewise, if Superman is on trial, the jury would be free to believe or disbelieve whomever they chose if the only evidence they had to rely on was (1) Lex Luthor's testimony that he hates Superman and saw him kill Doctor Light; and (2) Lois Lane's testimony that she loves Superman and saw Lex Luthor do it. The jury's right to weigh credibility is hundreds of years old. The question of how to weigh this evidence -- and the answer, which is that it is essentially left entirely to the jury -- is among the most well-settled principles of common-law evidence. See, e.g., Blackstone, Commentaries, 3:354 (1768) (&quot;All others are competent witnesses; though the jury from other circumstances will judge of their credibility.&quot;). Jury instructions therefore routinely advise jurors that they may consider a witness's prejudices for or against the defendant and conclude that his statements are not reliable, whether because he is lying or simply too biased to reliably remember the events in question. United States v. Abel, 469 U.S. 45, 52, 105 S. Ct. 465, 469 (1984) (&quot;Bias is a term used in the 'common law of evidence' to describe the relationship between a party and a witness which might lead the witness to slant, unconsciously or otherwise, his testimony in favor of or against a party. Bias may be induced by a witness' like, dislike, or fear of a party, or by the witness' self-interest.&quot;). You can follow the trail of cases supporting this position quite a ways back. I stopped when I reached Honegger v. Wettstein, 94 N.Y. 252 (1883), a case where a manufacturer sued members of a firm that had bought its goods but never paid. At trial, a principal of the firm testified about the invoiced amount to be paid, and because the testimony was uncontradicted, the judge ordered a directed verdict in favor of the buyers. But the New York Court of Appeals reversed, holding that the credibility of a biased witness's testimony must be left to the jury: Although not contradicted, he was an interested party, and had a direct interest in increasing the fund in the hands of the receiver, and in preventing its payment to the plaintiffs. His evidence was given for the purpose of showing the alleged violation of law by the plaintiffs, and in explanation of the three invoices which were made of the goods, of which duplicates were made, and it was a fair question for the jury to say whether he might not have been influenced by the circumstances stated. Ten years later, the Supreme Court addressed your question a bit more directly. In Reagan v. United States, 157 U.S. 301 (1895), a defendant who took the stand was convicted after the trial court told the jury that &quot;Where the witness has a direct personal interest in the result of the suit the temptation is strong to color, pervert, or withhold the facts.&quot; But the Supreme Court affirmed the conviction, holding that &quot;the court may, and sometimes ought, to remind the jury that interest creates a motive for false testimony.&quot; Modern courts permit, but do not require, instructions highlighting a specific witness's bias. These cases of course deal with witnesses who have a bias in favor of a party, but the rule is no different in cases where a witness, as in your question, admits to a bias against a party. In United States v. Coleman, 887 F.2d 266 (6th Cir. 1989), for instance, a defendant was charged with conspiracy to commit arson. Because the only direct evidence of his agreement to the arson was testimony from a witness &quot;who admitted a bias against defendant,&quot; he sought a judgment of acquittal, but the trial court denied his motion and sent the case to a jury. The Sixth Circuit affirmed his conviction, holding that it was up to the jury to decide whether the witness was credible: As defendant points out on appeal, Boscaglia's credibility was very much in issue at trial, but the jury resolved the issue against defendant. The jury's decision on &quot;the credibility of witnesses is not reviewable on appeal.&quot; Although such instructions are allowed, this does not mean that a court is always required to give an instruction addressing the credibility of a specific witness. Depending on who the witness is biased for/against, there are likewise cases saying that no instruction was necessarily required, Kovacich v. Spearman, No. 2:13-cv-0985 KJM DAD P, 2015 U.S. Dist. LEXIS 108233 (E.D. Cal. Aug. 14, 2015) (denying habeas claim by defendant who unsuccessfully sought jury instructions highlighting the bias of the investigating officer), or that such an instruction is a bad idea but not disallowed, United States v. Jones, 372 F. App'x 343, 345 (3d Cir. 2010) (&quot;While such an instruction that singles out the defendant's interest in the case is not advisable, we find that here it did not constitute reversible error.&quot;). I haven't found any saying that such an instruction was a reversible error, though I suspect that there are cases out there in which verdicts were reversed because the judge went overboard in suggesting to a jury how much credibility they should extend an admittedly biased witness.
The defense has an opportunity to question the witness the prosecution had called to provide foundation for the evidence, and in this case the defense's perspective is that the prosecution was trying to introduce evidence that they had improperly digitally manipulated. Part of their questioning was trying to figure out how the witness had manipulated the image prior to offering it as evidence. It's the prosecution's burden to prove that the evidence they are offering is accurate, the defense's purpose in asking the witness questions he could not answer is to try to prove to the judge that the prosecution has not laid proper foundation for the evidence because it has been manipulated from its original form in a way the prosecution cannot explain or justify as remaining fair and accurate to the events captured by the original footage. This case in particular had a lot of video evidence, and most of these issues were handled in motions in limine before the trial started. However, the drone evidence in question was dropped at the prosecutor's office after the trial started, so the prosecution did not really have time to hire and voir dire an expert witness on Amped 5 (keeping in mind that the defense similarly had little time to review and account for the new evidence in the middle of trial). Since the defense in this case were cross-examining the witness, they have some leeway to present an argument with their questioning like they chose to do with the red/blue pixel drawings. As I recall the judge allowed the evidence as-is, so it does not appear that the defense's arguments were persuasive to the judge.
"If it were not assize-time, I would not take such language from you." (said while grabbing the handle of sword) This is a famous conditional threat where the speaker/actor was not found to express intent to do harm; perhaps better called a negative condition. This probably confuses matters but if you are to search for more answers this could be a good place to start. One of the elements of common law assault is that the threat must be able to be carried out immediately; it must be imminent. I do not have a cite for this but I recall that this means that conditional threats are excluded from assault. So calling a politician on the phone and telling them that if they do not drop out of a race you will hurt them is not assault. So, "You cut that out now or you’ll go home in an ambulance" sounds a lot like, "stop or you will get hurt." The victim has the opportunity to avoid the danger; the threat is not imminent. But the facts here are interesting because the speaker touched the victim while speaking which might mean fear of imminent was real. But they were in a crowded room in front of cameras - could the victim really feel that threat was imminent? Plus, the "you will go home" implies a future harm. Oh, and the speaker does not say "I will hurt you," maybe she was actually trying to protect the victim from someone else's actions. Like when my teacher knew someone was waiting outside the classroom to fight me and she told me, "if you go out there you will get hurt!" I would hope that a jury would consider this hard bargaining.
If no one objects to a leading question, then the judge does nothing. A judge does not generally pro-actively police the rules of evidence at trial. Also, there are circumstances when a judge has discretion to allow a leading question even when it wouldn't ordinarily be allowed to move the trial along on largely undisputed points or to allow in inarticulate witness to testify. The exception to judicial passivity in the absence of an objection at trial is "plain error" that is not "harmless error", which a judge has a duty to prevent or address even if no objection is raised by a party. But, offering a leading question when one is not allowed by the rules of evidence almost never constitutes plain error, and would almost always be considered "harmless error" even if it was objected to and the judge ruled incorrectly, unless the use of improper leading questions was pervasive and there was a contemporaneous objection by counsel. For example, allowing a prospective juror to serve as a juror, despite that juror saying in the jury selection process that he can't be impartial because the defendant committed adultery with his spouse, because neither the prosecution or the defense attorney moves to strike the juror for cause, rather than striking that juror for cause of the court's own accord, is the kind of conduct that would often be considered "plain error" that is not "harmless error."
Defendants cannot switcheroo whenever they want. There are good reasons why this is almost never done. The lawyer in any of these scenarios is violating an ethical duty of candor to the tribunal, if it is done without court permission (which is unlikely to be granted), even if the client suggested or insisted upon the idea. The lawyer would be responsible for his or her client's actions by cooperating in it, rather than calling out his client in open court over the objections of the client to prevent the switcheroo from working, as the lawyer would have an ethical obligation to do. I would not really consider this to be a gray area. The relevant ethical rules and the related official commentaries to them are quite clear, even if they are not absolutely perfectly clear. Those rules create an affirmative duty of an attorney to prevent his or her client from misleading members of a tribunal (either a judge or a jury or both). Cooperating with this scheme could (and likely would) result in professional licensure related sanctions ranging from a private censure to disbarment for the lawyer, just as it did in the linked 1994 case. Also, while a "not guilty" verdict was entered in the 1994 case, the prosecution would have a good chance of success if they demanded that the judge declare a mistrial, and also a good chance of avoiding double jeopardy limitations in this situation, because the mistrial arose from the actions of the defendant trying to bring about the situation. On the other hand, if this trick worked so well that the prosecutors came to the conclusion that their primary witness linking the defendant to the crime was wrong and that the defendant was not actually the person who committed the crime, the prosecutors would have an ethical duty to not attempt to prosecute the individual whom the prosecutors now believed to be factually innocent (the analysis is actually a bit more complex than that, but that is the gist of it). The defendant and the attorney could (and likely would) also each be held in direct, punitive contempt of court by the judge for this conduct, allowing them to be summarily punished by imprisonment or a fine to an extent similar to a misdemeanor violation, on the spot, without a trial other than an opportunity to explain themselves to the judge in a sentence or two each, since it would be conduct in violation of the good order of the court and disrespectful of its rules and decorum conducted in the actual courtroom in the presence of the judge. Each could easily end up spending several months in jail on the spot for that stunt and perhaps a $1,000 fine each, if the judge was sufficiently displeased. There would be a right to appeal this contempt of court sanction, but the contempt of court punishment would almost surely be upheld on appeal in these circumstances. In a case where the criminal defendant faces extremely severe sanctions if found guilty, such as the death penalty or life in prison, and the defense attorney was a self-sacrificing idealist or close family member of the criminal defendant, one could imagine the defense attorney and client deciding that the professional and contempt citation sanctions were worth being punished with, in order to save the life of the criminal defendant, if they also were convinced that this trick would work so well that the prosecutors would be persuaded of the criminal defendant's innocence sufficiently to not insist on retrying the criminal defendant in a new trial. This would be somewhat analogous to an intentional foul in basketball, but with much higher stakes. But, this would be an extraordinarily rare situation in court, because the punishment for this "intentional foul" in the courtroom are much more severe, and because the likelihood of it producing a beneficial result is much smaller. It isn't hard to understand why a successful switcheroo feels morally justified. It prevents a witness whose testimony would have been much less reliable than it actually would have been from being used to convict a criminal defendant who might conceivably be factually innocent. And it might be very hard to discredit the testimony of that witness in any other way in order to prevent a wrongful conviction of the criminal defendant. Eye witness misidentifications are one of the leading causes of wrongful convictions, and are especially common in death penalty cases because jurors are "death qualified" making them more pro-prosecution than a typical jury. Preventing innocent people from being convicted of crimes is one of several important values of the criminal justice system, and this is the instinct that probably motivated the dissents in the professional misconduct process in the 1994 case. But, the court system also strongly values candor on the part of attorneys, and likewise values not having the court systems be used to trip up witnesses who may sincerely think that they are telling the truth even if they are mistaken about the accuracy of their testimony, in a deceptive manner. In this situation, the latter candor consideration usually prevails, because the rules prohibiting this kind of conduct and scheme, which admits no "moral justification" or "necessity exception", are quite clear. In the same vein, a prosecuting attorney can be sanctioned (and has been on at least one occasion in Colorado) for not being truthful in communications to third parties, even when the lies are used to peacefully defuse a potentially deadly hostage situation. For attorneys, the duty of candor and truthfulness really knows no exceptions. Cops, in contrast, however, are allowed to lie in many circumstances to secure confessions or stop criminals.
If you state, to a third person, that Joe has performed a criminal act then that is defamation and you can be sued. Unless it is true. However, if you are relying on the truth as a defence you will need to provide evidence that it is. At the moment you lack: a criminal conviction of Joe any physical evidence against Joe any personal knowledge that Joe has committed these acts. All you have, is second hand rumours that this has happened to 5 women, some of whom have reported it to you in person. This is called hearsay and it is not evidence. It may be true, it probably is true - you can't prove it's true and in court, that's all that matters. If you were sued your only possible defence is to call these women to give the evidence they are unwilling to give - are you willing to betray their confidence to that extent?
This is entirely possible in a number of different motions that could have been made. At this point, Vinny had destroyed the Prosecutor's eyewitnesses by showing they had issues that called their testimony into question (The first has a timeline that doesn't line up with events, the second has poor vision and her prescription glasses were not doing their job, and the third had many obstructions blocking his view of the scene). His first witness tears apart the &quot;expert&quot; witness, who was only there to testify that the tires were the same brand (albeit, a popular brand at the time... loads of cars had the same tires). While it might go by a different name in different jurisdictions, the Prosecutor is allowed to make a motion to dismiss at any point prior to the jury goes to deliberation (as is the Defense; Also they might be able to make motions while the jury is in deliberations). If properly titled, the Prosecutor should have made a &quot;motion for nolle prosequi&quot; (not prosecuting). This can mean any number of things including the prosecutor no longer believes the evidence can prove the charges OR even that the prosecutor is no longer convinced that those charged committed the crime. In the &quot;My Cousin Vinny&quot; case, as the jury was seated the case cannot be retried by the State of Alabama at this point. This is possible because the Prosecutor's duty is to uncover the truth behind a crime, no matter what that truth becomes. In this case, despite his previous beliefs, the prosecutor in My Cousin Vinny, upon realizing he was wrong, admitted it and dropped the charges. Given his backstory of having worked as a defense attorney and making the switch after getting a client off some serious charges (and knowing the client was guilty) shows that he was inherently an honest man and dedicated to finding the truth of the matter (as a government employee, he undoubtedly took a pay cut when he switched to prosecution. Private industry almost always pays way more than a government equivalent). With that in mind, it is expected of prosecutors to be perfectly honest with what evidence they have and make the choices in the case based on that evidence. This comes up in another scene when Mona Lisa Vito explains to Vinny that the prosecutor was required to give Vinny all the files he had on the case... because Vinny, by representing the Defendant, is allowed to examine all evidence against his clients. The only dirty trick he pulled was the stunt where his expert witness was not disclosed and while bad, really it's the judge allowing the witness to testify that would have caused a problem with the trial (his response to Vinny's objection could have created a mistrial on appeal). To give a real world example, I was charged with driving on a suspended license which I had no idea I was doing at the time. As it turned out, the license was suspended for an unpaid traffic ticket that I had paid in the last minute... essentially the DMV forgot to unsuspend. A quick call fixed that issue but I still had to go to court over the charge. The day of the trial, I show up in the court room and the prosecutor walks over and tells me that they were going to enter a motion of &quot;nolle prosequi&quot; for the charge... essentially dropping it... because the matter was a clerical error on the state's part and not anything I did wrong. Edit: Additionally had the prosecutor not motioned to dismiss, Vinny certainly could have. In fact there are two points during the trial where Defense attorneys are expected to make these motions. The first is when the Prosecution rests their case. The second is before the jury is given the case to deliberate. As for why it was called a motion to dismiss in the film, it's likely to due with the fact that the audience would not know what a &quot;motion for nolle prosecui&quot; and it is a type of motion to dismiss.