06 June 2005

A Moment in Court

As part of his 14 felonies and one misdemeanor, my client is charged with two counts of assault and battery on the same person - one a felony, one a misdemeanor. The prosecutor calls the complaining witness.

Prosecutor: "On 05 January, you were attacked by Mr. Smith twice?"

Witness (looking confused): "Ummm, no . . ."

Prosecutor: "Mr. Smith attacked you twice on the 5th, didn't he?"

Me: "Objection, your honor he's leading the witness . . ."

Witness: "Oh, yeah, he attacked me twice."

At this point we go through all the evidence of the felony A&B and then:

Prosecutor: "And Mr. Smith attacked you another time that night?"

Witness: "Ummm, no."

Prosecutor: "Didn't Mr. Smith throw urine on you earlier that night?"

Me: OBJECTION! He's leading the witness!

Judge: "How's that a leading question? He can ask him yes or no questions."

Me: "That's a highly suggestive question meant to get a particular answer."

Judge: "I don't think it's leading. Over ruled" [to the witness] "Try to remember better so the prosecutor doesn't have to lead you."


Anonymous said...

What's worse is when my witness says no and I have to ask him, didn't you mean yes.

Ken Lammers said...

Well, I can't complain too much. My client walked into the courtroom with 14 felonies and 1 misdemeanor. When he walked out he had been convicted of 3 misdemeanors (getting 18 months) and had 4 felonies certified to the circuit court.

All this was due to a little bit of stubborness on my part (and preparation), a prosecutor who knew the law and had a sense of perspective (Client is already convicted of another felony and will serve several years on it and the other 4 felonies are going to pile onto that), and a judge who probably just wanted me to shut up.

Anonymous said...

Judge: "How's that a leading question? He can ask him yes or no questions."

Uhhh, Judge, that's the definition of a leading question.

Ken, if you're ever in Central Illinois, I need to buy you a drink. I want to swap some stories.

Ken Lammers said...

The prosecutor could have done this legitimately. The witness was a guard who had filed a report. The prosecutor could have shown that to him to "refresh his memory." While I wasn't thinking about this at the time the prosecutor pointed it out to me after the trial (and he was right). Sometimes I think judges in courts not of record realize these things and just short circuit a few evidentiary rules in order to move things along.

However, a couple weeks earlier a similar objection had been made by a prosecutor and the judge upheld that one.