By Mark David Blum, Esq.

In a move unheard of since the days of Sir Walter Raleigh, the Onondaga County District Attorney has asked a local County Court Judge to cut off and severely limit a Defendant’s opportunity to cross examine his accusers.

Specifically, a local teacher accused by several current and former students stands accused of improper behavior. Representing the defense is one of the best trial lawyers whose skills and expertise are beyond question. In what is starting to look like another ‘McMartin / Duke’ style public lynching, the defendant was perp-walked before TV cameras on the date of his arrest and police and prosecutors were quick to release details of the investigation. Since that time, several students have recanted. Our District Attorney has fought to prevent the defense from accessing details of the accusers.

Today, we read in the newspaper that the District Attorney has asked the Court to limit to near nullity, the defense’s absolute right to confront his accusers. Apparently, the District Attorney argues that children will not understand

if not in Iambic Pentameter,
from the Defendant’s Examiner,
and with Only One Working Verb;
of all the Nerve.

Also, the People want to produce an expert witness to do the jury’s job and speculate as to what may cause a child to recant. (This is the same argument used in attempts to admit ‘accident reconstructionist’ testimony in collision cases. It is the exclusive domain of the jury to make such findings).

What is so troubling about our District Attorney’s action is how he attacks the, “greatest legal engine ever invented for discovery of truth”. (John H. Wigmore, Evidence § 1367, at 32 (James Chadbourn rev. 1974) (quoted in part in Lilly v. Virginia, 527 U.S. 116, 123 (1999) (plurality opinion)). See also White v. Illinois, 502 U.S. 346, 356 (1992); Maryland v. Craig, 497 U.S. 836, 844 (1990); Perry v. Leeke, 488 U.S. 272, 283 n.7 (1989); Kentucky v. Stincer, 482 U.S. 730, 736 (1987); California v. Green, 399 U.S. 149, 158 (1970); Ford v. Wainwright, 477 U.S. 399, 415 (1986); Lee v. Illinois, 476 U.S. 530, 540 (1986); Watkins v. Sowders, 449 U.S. 341, 348 n.4 (1981); Roberts v. Ohio, 448 U.S. 56, 63 n.6 (1980); cf. United States v. Salerno, 505 U.S. 317, 328 (1992) (Stevens, J., dissenting) (‘‘Even if one does not completely agree with Wigmore’s assertion . . . one must admit that in the Anglo-American legal system cross-examination is the principal means of undermining the credibility of a witness whose testimony is false or inaccurate.’’).

Back in the day of Sir Walter Raleigh, it was possible to convict a man on the basis of an affidavit by an alleged co-conspirator who was never produced in court. Trial by affidavit, or ex parte absent witnesses, may be common in civil law, but it is strictly prohibited in criminal cases by the Sixth Amendment. Back in the days before lawyers, accuser and accused would confront each other to the point of fisticuffs in American court rooms. But the right to confront your accuser is precious and basic and absolute.

By having the court and jury paying more attention to the number of verbs used or syllables in the nouns; to have the court and jury counting the number of words in a sentence or judging whether there exist simpler ways to say things will deprive any defendant of the right to a fair trial. Why not just resurrect Dr. Suess and let him lead the defense.

Jurors have been defined as being 12 people who were too stupid to get out of jury duty. Whatever may your impressions of jurors as individuals; it has always been my experience that collectively, jurors are honorable and conscientious about doing their job and almost always reach the right conclusion – even if for the wrong reasons. If a lawyer is pulling a fast one; it is obvious. If a witness is being compelled to make mistakes; jurors can see through that. If a lawyer is abusing a child, jurors will retaliate. It would be counter productive for any skilled defense attorney to misbehave in the cross examination of a child.

Notwithstanding the absolute of the right to confront a witness: The Court and Jury must at all times have its attention focused on the witness and the answers given. Credibility is not just determined by scripted and rehearsed answers but also by body language, voice tone and inflection. How a person presents their testimony, how coached they are, how honest they are even about their faults, are among the infinitesimal number of calculations the average person uses to adjudge the credibility of the person before them.

The pending motion by the District Attorney will do nothing but deprive the defense of a fair trial. If the case is solid and the evidence true, then the prosecutors have nothing to fear from the defense. Hog tying the defense and duct taping shut the attorney’s ability to question witnesses offends the constitution to the core. More importantly, it raises substantial and significant questions as to the strength of the District Attorney’s case and the credibility of the witnesses.

After all, if you have to cheat to win …