03 November 2005

Practitioner's Hypothetical

You're a defense attorney. A lady walks into your office and tells you she is an eyewitness in a "serious" case. She has given a detailed, video-recorded statement to the police. She has been threatened by friends of the defendants, but now is living anonymously in a different neighborhood. In the preliminary hearing of the case, she tells you she began testifying differently than her police statement. When the prosecutor had her declared a hostile witness and confronted her with her prior statements, she claimed that the material parts of the statements were not true or denied making the statements. The judge has adjourned the preliminary hearing in order to allow her to obtain legal advice about her testimony, after admonishing her that she was putting herself in possible jeopardy of perjury.

The "serious" case re-convenes in a week. Assume the prosecutor will tell you he is in fact prepared to charge her with perjury or at least obstruction if she continues to claim she did not make statements which he has on video. The evidence in the case indicates this witness is in no way implicated in the "serious" event.

What is your advice to her?


Mark said...

From a Law student prospective, i.e. not real world:

Well, you obviously cannot subourn purjury or knowingly assist a fraud on the court. Advise her to tell the 'truth'. Possibly advise the court of any witness tampering and reasons for recanting prioir statements.

Ken Lammers said...

That's an easy one. First, you tell her to get about $5K together. Then you take your half. Then you give her the address of Juan, the guy you're representing for forgery of a public documents (for making up fake ID's, birth certificates, and social security cards) and a schedule of buses going to Ontario.

Hard to charge someone with perjury when you don't know their name and they're not even in the country.

Ken Lammers said...

But seriously folks . . .

You lay it all out to her and let her decide when she goes back to court.

Anonymous said...

Certainly you lay iot out for her -especially the difference ebtween perjury and obstructing. If she lied to the police, and now wants to tell the truth, she may get dinged for her earlier false statements, but that's a far cry from perjury. She cannot simply deny the prior inconsistent statements.

On the other hand, things like this don't happen in a vacuum. I'd certainly try to work with her to understand (a) why she changed her story, and (b) which version is true. It may be that the prosecutor might be sympathetic to a legitimate case of witnesses tampering, especially if it involved threats.

B. Kriplur said...

Hey Mark, that was not in proper IRAC format. I hope you limited yourself to 10 seconds to answer the question as well.