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There are now 14 comments... what are your thoughts?
    • I’ve seen that story before, and IIRC it’s happened more than once.

      But seriously, couldn’t you just do that with the Judge in the know? The Prosecutor might object, but if the witness identifies the wrong man the witness identifies the wrong man! If this is about whether or not the witness’ memory is strong enough, it shouldn’t matter.

      More related the Judge’s decision this time around, why can’t they just do a line-up before trial and use that instead? It would postpone the trial a minimal amount(if at all, if it’s still scheduled further away), and they’d have the advantage of the much more scientific “you actually have to recognize the guy” route rather than, “point and shoot”.

      • Someone else mentioned it before, but the $100 fee was probably a way of saying “All right, very clever, well done. But don’t do it again.” The second time around, I would expect that the penalty’s going to be much harsher.

  1. Bob BOB says

    So basically because of how suggestive the id was, DC is screwed.

    • “Are you sure that’s the man?” “Did you get a good look at his face?” “What color were his eyes?” “You identified him from his jacket…how do you know it wasn’t someone else wearing a similar jacket?” ” How good a look did you get at him?” “Do you wear glasses? Were you wearing your glasses at the time?” “Did you just pick the man because he was the one the police picked up?”

      He’s not screwed. He’ll get a chance at cross-examination. That’s the whole point of cross, after all – to discredit bad evidence.

  2. Jonas says

    Isn’t the judge splitting-hairs a bit? If the prosecution held up a picture of a bloody baseball bat and asked, “Is this the murder weapon?” then I really don’t think a medical examiner should be able to say “No, that’s not the murder weapon”. (The murder weapon being the bat, and not a picture of the bat).

    • I think that what the judge meant is that the law demands that the defendant physically appear in court for the trial. So if the counsel for the defense showed up with a photograph of the defendant rather than the defendant himself, the defendant would lose by default for missing his court date.

    • Don’t know if it would apply to people, but the bat thing I do know applies something called the “Best evidence rule”. You need to bring the closest thing you can get to the original evidence – in this case, a photograph of the bat isn’t good enough. You need to bring the bat itself. If the bat has been destroyed or is no longer available, then the photograph -might- be admissible, but that’s up to the judge and depends a lot on the reason why the bat is gone.

      • The “best evidence rule” is about documents. It means an original is better than a copy. If you want to prove what a document said, you have to introduce the actual document (or a duplicate like a photocopy). It’s not good enough to just testify to your memory of what it said, or write up a new one from memory.

        It’s one of the oldest rules of evidence, believe it or not. IIRC, it goes all the way back before the Romans got to the British Isles. A legal document giving you the right to something (like a deed or a contract or a will or what have you) WAS the right itself. If you couldn’t produce the document, you didn’t get the stuff. The document was the embodiment of the right. Almost magical or religious. That’s why there was so much ceremony about signing and witnesses and seals etc. — to prove this really was the document, yes, but also as the magical ritual necessary to convert the mere words into a legally effective act of creating and embodying rights.

        This atavistic approach lasted through medieval times and into the renaissance, but had died out by the time the law started modernizing. By 1700, it had morphed into the reliability rule we pretty much have today: if you wanted to prove that a document entitles you to something, you’d better produce the actual document or have a damned good explanation for why it doesn’t exist any more.

        The reasoning behind this new approach was (1) people lie, so we want to prevent fraud; (2) people make typos (and errors in transcription), so we can’t trust a rewritten copy; and (ding! ding! ding!) memory sucks, and we can’t trust people to testify accurately about what a document said.

        So by 1700, the courts were recognizing that witness memory is incredibly fallible. So why did that fallibility preclude testimony about documents, when for every other kind of evidence we allow the testimony and trust to cross-examination? Because the atavistic approach to documents never went away entirely. As it morphed into the reliability rule of Best Evidence, its sense that “documents are special” remained.

        So we don’t let a witness testify about what she remembers a contract to have said, but we will totally let her testify about other things she remembers happening the day she signed it. We recognize her memory is so bad that it cannot be trusted to prove the one thing, but let it in anyway to prove the other — not because how the hell else are we going to prove it, but because documents are different.

        The law of Evidence — contrary to popular belief — is fun!

        • Yeah, I double-checked that, and found out I was wrong, and came back here to post that I was wrong, but eh, beat by the real lawyer. One would think that you would still need to have the bat, and not just a picture of it. And expanding on it, it kind of would be silly to apply that rule to a safe, or a car, or (ugh) a body (“Yes, the defendant was killed, and exhibit A is his remains…”)

        • People seem to believe that people remember an event or a face more clearly than the specifics of a long legal document (which might be partially true, if not to the extent that people believe). Also, while a legal document can be produced while an eye-witness event cannot be recreated giving an argument for practicality. I’d hope that a legal document would hold more weight than an eye-witness would. Document said X” so agreement was X, no way for a cross-examination to attack that unless there is a loop-hole in the document or denies the document is real.

          Not saying the identification laws are good, just that there are SOME arguments that they SHOULD be different than document requirements. I tend to default to playing devil’s advocate. Agreement doesn’t add anything to discussions.

    • At the risk of being cartoonish (and this is certainly no place for that sort of thing), what if the murder weapon was a safe dropped from a building? Would the prosecution have to bring the actual safe into court, or would a picture be allowable under those circumstances?

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