Do any of y'all practice criminal law? I have a couple of hearsay questions that may need some answerin'.

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IDK if any practice criminal law, but I'm sure they're all criminal lawyers.

Hearsay is the same in civil or criminal law.

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Fire Phil Emery

How about that special terrorist law? Same there too?

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You know me like that.

Naw, it's cool there.

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Fire Phil Emery

Well it involves a criminal matter so I'd figure I'd lay it out there.

A guy makes a written (but not sworn) statement to an investigator for the defense. In that statement he gives an alibi for the whereabouts of the criminal defendant on the day of an armed robbery. In this statement he states that he grew up around the defendant but no longer hangs out with him or considers him a friend because the defendant is "a rough guy".

If on direct, this guy makes no mention that the defendant is or isn't "a rough guy" but merely provides an alibi for the whereabout of the defendant on the day of the robbery, how can his written statement be used against him?

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Shit, that's like an exam question. Sounds like inadmissible hearsay to me (the "rough guy" part). It wouldn't be introduced because it is inconsistent with testimony; I suppose they could ask "do you think the defendant is a bad guy" on direct and use the contradictory statement if he says "no", but I think you could object to the question on relevance. It's not a present-sense impression or excited utterance or any other exception.

I admit that this isn't my strong suit though.

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Fire Phil Emery

But wouldn't it (ie. the rough guy comment) be relevant to establish the witnesses' credibility? I didn't go into the deeper specifics of the statement he made to the investigator for the defense but in it he also offers up the fact that he'd been to the defendant's apartment a few times and never saw a gun like the one the prosecution is trying to argue was used by the defendant to commit the robbery. If, on direct, the defense makes no mention of any of these things how does the witness' written statement come in?

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I guess I was confused about who brought the witness. If it's the defendant bringing the witness, why would they need the statement? They could just ask him the questions that elicit the answers that are in the document.

Now if the defense asked him "do you think the defendant is a good guy?" for some reason and the witness answered "yes," then the government could use the document to impeach the witnesses credibility. But obviously it would be stupid to ask that question, especially knowing that the document is out there.

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Fire Phil Emery

Find out what law school the judge went to. During the trial, keep making side complements about that school like, " Just like I heard at Harvard Law" or "Ahh, a point I remember an esteemed law professor at Stanford established." Then just go forward and mention what happened. The opposition will most likely object, but if you ask to approach the bench, you can again make a statement like "facts like this were admissable when I participated in Vanderbilt moot court." The judge will likely lean back, remove his glasses, and say "Yes, in this case, I think I will allow it."

Source: I have watched a lot of legal dramas in my time.

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"All crowds boycotting football games shouldn't care who sings or takes a knee because they aren't watching." - Nas

Okay here goes:

The only reason the witness is involved in the case is because he heard about the armed robbery after the fact through the newspaper, called up the defense who then sent over an investigator to take a statement from him. I'm trying to figure out a way to get the prosecution to impeach this witness with the statement he gave.

In in he claims the following:

1. That he grew up in same neighborhood as the defendant
2. That he doesn't consider himself close friends with the defendant and has tried to stay away from him because he's a "rough guy";
3. That he saw and talked to the defendant at the time of the robbery;
4. That he only heard that the defendant was involved in the robbery by reading about it in the newspaper and thereafter contacted the defense attorney named in the story;
5. That prior to meeting with the defense investigator he received a letter from the defendant which he no longer has in his possession.
6. That he's been over to the defendant's house a couple of times in the past year and has never seen or heard him talk about a gun.

If the defense only has this guy testify to the fact that he saw the defendant at the time of the robbery and does not mention his statement at all, how can the prosecution use his statement on cross? I promise this isn't an exam question.

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If he provides a believable alibi, how he feels about the Defendant is irrelevant. Additionally, I think his dislike for the Defendant lends credibility to the alibi.

Perhaps, however, I have misunderstood the issue.

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stone, where ya been?

I guess my question is, if the defense only offers up this guy to testify to the fact that he was with the defendant at the time the robbery and says nothing else about/or what was contained in the signed statement he gave to an investigator for the defense, how would the prosecution use that written statement against him?

Let's pretend the direct examination by the defense went like this:

Q: "Mr. Witness please tell me a bit about yourself."
A: "Certainly, my name is Mr. Witness and I work at Jiffy Lube."

Q: "Mr. Witness, do you remember where you were on the afternoon of April 23, 2013?"
A: "Why yes, I just got off work and walked over to Burger King for a late lunch. It must have been (near the time of the robbery)"

Q: "Did you see anyone you knew there?"
A: "Yes. I saw Mr. Defendant and I talked to him for ten - fifteen minutes. Mr. Defendant couldn't have committed the robbery because I was talking with him at the time the robbery occurred."

How does/could the prosecution use the witnesses prior written statement to expand on the witness' testimony in order to make it look like he's not a credible witness. On cross can the prosecution ask about how the witness knew the defendant in order to impeach him with his prior written statement? For example:

Cross

Q: "Mr. Witness you testified that you were say Mr. Defendant and were with him at the time of the robbery?"
A: "Yes."

Q: "How did you know who Mr. Defendant was?"
A: "I've seen him before."

Q: "When you say 'seen him before' what do you mean?"
A: "Well I've run into him enough times in my past to know what he looks like."

Can the witness now be confronted with his out of court signed statement in order to establish how the witness knows defendant.

Q: "Isn't it true that you grew up in same neighborhood as Mr. Defendant."
A: "Yes."

Q: "And that you don't run into him anymore because you try and stay away from him because he's a rough guy."
[If he wavers or equivocates here can his out of court signed statement be brought in to impeach him?]

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Objection - More prejudicial than probative.

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"All crowds boycotting football games shouldn't care who sings or takes a knee because they aren't watching." - Nas

But this does not mean that he did not see the Defendant when he said that he saw him.

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Objection:Calls for speculation

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Why didn't you just keep your mouth shut ?

But if denies it it means he's contradicting his previously signed statement? I mean maybe you can ask the question, take the objection, and then ask a different question so you ring the "rough guys" bell for the jury.

Q: "You never saw Mr. Defendant after the day of the robbery right?"
A: "Yes."

Q: "And the first time you heard that Mr. defendant had been arrested for robbery was by reading about it in the newspaper?"
A: "Yes."

Q: "You didn't call the police to tell them you were with Mr. Defendant at the date and time of the robbery?"
A: "No."

Q: "You didn't tell the police they had the wrong man?"
A: "No."

Q: "Instead you called the defense attorney didn't you?"
A: "Yes."

Q: "And the attorney sent over an investigator to take a statement from you didn't they?"
A: "Yes."

Q: "And a week before the investigator came to take a statement from you, you received a letter from Mr. Defendant didn't you?"
A: "Yes."

Q; "A letter you no longer have?"
A: "Yes."

I think I'm overthinking myself at this point. Time to go to bed and regroup tomorrow.

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Wait, wait. What if you just straight up tell the guy he made a statement to an investigator for the defense. Can that be brought out even if not touched on by defense counsel during direct. That is, direct makes no mention of the fact they sent over an investigator to take a statement from the witness during direct. Can the prosecution now ask him straight up if he made a statement for the defense even thought it was never brought up on direct?

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did Hamilton Burger ever win a case?

I'm not a lawyer, but I've done a lot of work in the field of law and the one thing I can tell you for certain is that you can know all the points of law you want and you can be as right as you want about those points of law, but when you get in a Cook County courtroom that judge is God and he/she can make whatever calls they want. And they make "wrong" ones all the time.

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Anybody here seen my old friend Bobby?
Can you tell me where he's gone?
I thought I saw him walkin' up to The Hill
With Elon, Tulsi, and Don

Who the fuck is the investigator?

Just establish the damned alibi.

Why is the investigator asking any questions at all of a perspective defense witness about the character or reputation of the defendant?

This is an alibi defense.

The fact that the witness doesn't hang out with the defendant because the defendant is an asshole is not relevant to the alibi.

A lot of defendants are assholes. The fact that the defense witness thinks this defendant is an asshole has no bearing on the TRUTHFULNESS of the alibi.

The State knows the witness' opinion of the character of the defendant is irrelevant and objectionable, but that probably isn't going to stop them from trying to sneak it in. The Judge will tell the jury to disregard it. If it is a Bench trial the Judge will laugh at it and disregard it.

A smart defense attorney knows exactly how to play this if forced to........"Look, Ladies and Gentlemen of the Jury, Our witness is completely and totally credible. Why would our witness come here to lie for a guy he avoids contact with?"

The defense can front the fact that the witness and defendant are not close at all.

The State had better watch how they play this stuff....any hint that the defendant has priors is grounds for a mistrial. Defendants' background only relevant if he hits the stand or using proof of other crimes.

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There goes one over the fence..Tru Link Fence..Beauty, Privacy Security....Call Tru Link.
Murph's Union 76 Truck Stop....A great Thanksgiving Tradition!!!!

WOO LIFE!!!!

One of my all time favorite cross examinations of all time was a State's witness in a murder trial who said he "retired" from the gang and had "lowered his flags". He had the gang tattoo RIGHT BETWEEN HIS EYES!!!!

Then I asked him to raise his shirtsleeves to show the jury all of the lovely artwork on his arms!!!!!

I asked him that since he had retired, could he find time to have those things removed.

Courtroom ROTFLTFAO...including jury!!!!

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There goes one over the fence..Tru Link Fence..Beauty, Privacy Security....Call Tru Link.
Murph's Union 76 Truck Stop....A great Thanksgiving Tradition!!!!

WOO LIFE!!!!

This is what I'm taking away from all this, the key seems to be the fact that the witness says to an investigator that he's tried to avoid contact with the defendant. However, he also says he's partied with the defendant a couple times during the course of the past year. So he's not really trying to avoid contact with the guy if he's seeking him out and going to parties at his apartment. At the very least he's contradicting himself about his relationship with the defendant. Maybe even opening the door a crack to bias?

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If he's retired I suppose he doesn't have to worry about those facial tattoos preventing him from landing that new job.

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I'd trust Bob. He could probably teach the course.

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O judgment! Thou art fled to brutish beasts,
And men have lost their reason.

This witness sounds typical. The State will impeach the living Hell out of him. Is the witness a choir boy, or does he have a rap sheet from here to Carbondale? The State destroys alibi witnesses with questions like what else did you do the day of the incident? The witness, no matter how well prepared, is a street rat who has no real answer.

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There goes one over the fence..Tru Link Fence..Beauty, Privacy Security....Call Tru Link.
Murph's Union 76 Truck Stop....A great Thanksgiving Tradition!!!!

WOO LIFE!!!!

Rick Perry up here trying to get him to Texas, I'm sure.

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There goes one over the fence..Tru Link Fence..Beauty, Privacy Security....Call Tru Link.
Murph's Union 76 Truck Stop....A great Thanksgiving Tradition!!!!

WOO LIFE!!!!

I am happy to see "lawer" in the thread title.

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