Friday, July 27, 2012
Ind. Decisions - Yet more on: Is it time to consider whether we should require corroborating evidence when certain offenses are supported only by the testimony of a single witness? [Updated with response]
ILB Note: Mr. Jerrells sent an entry last evening, and Ms. Wieneke sent a response this morning, so I am posting them together.
Attorney Joby Jerrells sends this in response to my call for thoughts on Judge Baker's dissent in Leyva:
Though my primary practice area is no longer appellate practice, I continue to follow appellate law. Looking at the Penn decision, our Supreme Court specifically rejected a “special rule” requiring corroboration. Instead, the Court found the testimony was so “improbable and incredible” that a reasonable person could not find guilt beyond a reasonable doubt. In my view, Judge Baker is simply saying that he would find the evidence insufficient in this case and believes it is time to revisit whether corroborative evidence is required. As attorneys, we all certainly have different ideas about whether corroborative evidence should be required. In my view as an advocate, corroboration should not be required, whether in a criminal or civil case. The incredible dubiosity rule merely leaves open a sufficiency challenge in a criminal case, but only in “extremely rare” instances. As one reader aptly pointed out, a delay in reporting will typically result in a lack of corroborative physical evidence.Attorney Cara Wieneke has sent a response this morning:
As for my friend and colleague Cara Wieneke’s post, videotranscripts will undoubtedly present many challenges for practitioners and courts alike. Should appellate courts raise issues sua sponte for parties after reviewing a videotranscript? Will videotranscripts open another avenue on post-conviction? While audio and video of witness testimony may be very telling, it says nothing of jury deliberations or the thought processes that the trier of fact has about that testimony. I firmly believe that jurors are able to judge their peers and apply common sense during criminal and civil trials. Serving as a juror as an attorney provided some real insight about the deliberative process. We attorneys often think we have thought of everything, but we are consistently surprised by juror questions during a case in chief. Deliberations are even more probing than questions of witnesses. Jurors often question testimony in ways the attorneys fail to anticipate or expect, connecting the dots between witnesses and other evidence in a novel manner. As such, videotrancripts should not alter appellate review.
My belief in jurors and their ability to assess witness credibility applies equally in cases raising an incredible dubiousity challenge: It is up to the jury to decide whether a witness is credible and the courts to decide whether that evidence is sufficient. Accordingly, stare decisis should prevail, even, literally, in the face of videotranscripts.
I appreciate Mr. Jerrells' respect for stare decisis and its importance in our system of justice. The belief that citizens should have some idea of how their disputes will likely be solved by the courts is necessary in our system. But an unfortunate effect of this belief is that our system is slow to change. Judge Baker in his dissent seems to acknowledge the fact that times have changed; forensic analysis, if done properly, has the capacity to greatly enhance our ability to judge guilt and innocence.
And, while I believe our system of justice, which allows us to be judged by our peers, is still the best system, the hundreds of exonerations that we have seen in the last few decades as a result of new technology cannot be ignored. Respectfully, juries sometimes (maybe more often than we like to admit) get it wrong. They misjudge credibility, or they are not provided with all the facts to make a reasoned decision.
Admittedly, as a woman it was difficult for me to accept Judge Baker's premise that women and children sometimes lie about these allegations. But as a criminal defense attorney, I know he is right. People do sometimes falsely accuse others of these offenses. I do not accept the premise, though, that these cases often do not have corroborating evidence. Prosecutors find that evidence and use it over and over again in the records that I read in these types of cases. It may take more investigation to find that evidence in some cases, but should we expect anything less given what is at stake?