In a criminal trial scene, Saul asks an eye witness to identify a robbery suspect (his client). After doing so, Saul reveals that his client is really in the back of the courtroom and the person next to him is a regular guy that happens to have a basic resemblance to his client. This causes a mistrial.
I have a hard time believing this hasn’t been tried before and many times over, if it actually worked. What would happen in real life?
I have seen it in fiction a lot, where it is used to discredit a witness, and it works. I think in real life, it would lead to a mistrial, and sanctions against the lawyer.
Depending on how exactly it’s done, it could result in an *ata boy * or a sanction.
I don’t know how it would be feasible. In most criminal Court rooms, the accused is in a prominent place and has to identify him or herself.
Since the Defendant at trial has to sit at the defendant’s table, there is no practical way to hide them in the back of the courtroom. If they are not in custody (e.g., some defendants may have already been convicted of another crime previous to this case), they may be free to walk into the gallery during breaks. But the judge wouldn’t resume the case, by bringing in the jury, until the defendant and their attorney(s) are at their table and ready to go (same with the prosecution, too. If somebody is still in the bathroom, the judge wouldn’t begin).
Now, when a person on the stand is asked to identify the defendant in the courtroom, I as a lawyer have been trained to “look at the witness” (instead of your client, which is the natural thing to do). Because if they pick you, you can use that as a credibility issue. But it’s not a mistrial.
(Note that I have not seen the tv show referenced by the OP)
I’ll have to find the clip in question (I binged the whole thing). Maybe somehow they addressed these things.I figured there must be a rule about where the defendant sat.
Here’s a clip of a lawyer reviewing the scene in question.
TL;DW: He says it wouldn’t happen, and if it did, the lawyer would be sanctioned.
However, I also found, thanks to the comments, that this in fact has happened, in a trial over a traffic accident in Illinois in 1994: cite. Though the defense attorney was indeed sanctioned / reprimanded / whatever verb I’m looking for.
Here’s a real life case where a lawyer tried to pull this, and actually had the defendant’s identical twin stand in for him and get misidentified. It did not go well.
Ok, having seen the clip in question, I agree with the lawyer in the *Vanity Fair * video, the sequence of events is unlikely and to be fair in the clip both opposing counsel and the Judge protest. Now it might happen if the Advocate had advised the Court beforehand, but then in the prosecution’s examination in chief (direct examination in the US), they would have attempted to mitigate that, presuming the Judge had permitted it, despite what would almost certainly be vociferous objections from them.
I have often wondered what purpose there is in asking a witness to state that the accused is actually the accused. I wonder if it has ever happened that a witness said that the person they saw was not the small blond woman sitting next to the defence lawyer, but a large black man.
It’s hard to see how this sort of contrived misidentification would do much to impeach an eyewitness, especially if the defendant and the stand-in actually look alike.
When the excitement has died down and the trial resumes, it’s easy to imagine the prosecutor asking the witness: “Now that the scurvy tactics of defense counsel have been exposed, as between the impostor and the accused, which more closely resembles the person you saw commit the heinous acts that are the subject of this trial?”
Because “I saw a guy rob the bank” doesn’t help convict this particular defendant.
If that’s the first time this discrepancy is brought up then someone has screwed up big time.
By the time a witness is giving deposition on the stand investigations and pre trial hearings should have resolved such issues.
It’s the same reason why alibi evidence rarely comes up in a trial. Since alibis tend to be fairly definitive, a confirmed alibi means the the persons connection to the case ends during investigation well before the indictments never mind the hearing of evidence. The exceptions are when either the veracity of the alibi is disputed or when the alibi does not totally preclude the accused.
I recall reading the news about some case in the USA (Florida? Back in the 80’s?) many years ago where the lawyer did this. They got the accused’s cousin who looked a bit like him to sit at the defense table. The witness identified him - presumably based on the “all black people look the same” tactic. When the lawyer tried to spring the trap, the judge replied that the witness had identified the man at the table, therefore the judge was finding that man guilty and sending him to jail.
I mean, even if this were a totally above-board move that didn’t result in sanctions, it seems like substituting an identical twin wouldn’t actually accomplish anything.
If the witness instead identified some other guy who kinda looked like the defendant, then that’s going to make me think “ah, this witness is fallible and maybe didn’t get the best look at the guy.”. But… an identical twin doesn’t make me think that. He looks exactly the same! There is some amount of doubt because maybe it was the twin originally witnessed at the crime scene, but you could get that just by introducing the fact the guy has a twin.
For contempt of court, I hope, in playing along with the ruse, and not for the actual offense, which would be a horrible injustice.
It’s been used a lot on TV - for example, in a 1957 episode of Studio One (with William Shatner as the sneaky defense attorney)
I think it was one of those interesting tidbit news items. Never saw follow-up. Presumably the judge can do that (especially for minor crimes); then it’s up to the guy to appeal the conviction. I see a LOT wrong with the conviction, starting with “you can’t convict him if he’s not the one on trial”…but I bet it would take a few days to weeks in jail to sort it all out, and legal fees.
In the end, the judge might get a severe talking-to by the state board and the result would be overturned. But the defendant, his friend, and his lawyer, and everyone else who heard about it would presumably realize “this was a really stupid idea”. The time to challenge eyewitness identification is in the police lineup situation.
Prosecutors have had witness IDs backfire on them in court, though these cases apparently didn’t result in mistrials.
One fictional mistrial tactic that I seriously doubt ever occurred in reality was in one of the Lincoln Lawyer books. He got the defendant to punch him in the face during a court session, resulting in a gory “wound” producing fake blood, a mistrial, and presumably an intimidated prosecution witness.