Previously on the Straight Dope, I asked:
Today the episode is Pledge: During a hearing on a pretrial motion to dismiss, during witness testimony that skirts the edge of perjury, the defendant has an outburst that amounts to a confession. Does this have any legal significance? He’s not under oath, after all.
A confessional statement—especially one that can be substantiated by independent evidence or witness testimony—is a confession regardless of whether it is under oath. A defendant has a 5th Amendment right from being forced to testify or answer questions that may incriminate them but they give up that right when they voluntarily open their mouth. Depending on context a savvy defense attorney might be able to argue that the outburst was provoked and not a deliberate statement that could be introduced at trial, but there us a reason criminal defense lawyers tell their clients to keep silent and don’t talk to anyone outside of a deposition or on the stand.
Stranger
Thank you. The dodgy part of the witness testimony is that the ADA knows the defendant is obsessed with a woman named Susan he met briefly 30 years earlier- and the witness is a different woman named Susan, whom the ADA questions carefully enough to give the impression that she is the first woman (whom the ADA knows is dead).
Pre-trial motions aren’t usually that saucy and motions to dismiss are usually just setting the groundwork for appeal (unless the prosecutor has really miscalculated their case) but they are ‘on the record’ including outbursts from the defendant. Prosecutors have wide discretion on their strategy and what kind of witnesses they can bring in as long as they are credible. Intentionally if obliquely representing a witness as a different person is kind of skirting legal ethics but as long as it isn’t an explicit misidentification I don’t think that it is really the basis for challenging the admissibility of the defendant’s statement especially as reported in court. I don’t recall the episode in question and I am not a lawyer so getting a response from an actual defense attorney like @Moriarty would be more definitive and might provide additional perspective or context as to whether there is any basis to challenge the admissibility of the outburst.
Stranger
I remember the episode. My memory may be faulty, but I thought McCoy was never able to positively find which exact Susan was the one the defendant was obsessing over, just like the defendant wasn’t able to. So McCoy picked a Susan from the candidate list who could plausibly have been the right one, who matched a single other particular in her life that helped elicit the confession.
In your version of this hypothetical, if McCoy definitively discovered who the right Susan was and confirmed she was dead, shouldn’t that information have been turned over to the defense?
Was that information pertinent to the crime in question? The prosecution is required to turn over all exculpatory evidence and testimony (that which presents doubt or provides substance for the defense) in addition to the investigation reports, forensic analysis, and a list of all witnesses brought to trial to testify for the prosecution, but not information that is neither exculpatory nor part of the prosecutor’s theory of the crime.
Stranger
No, I believe the gimmick is that the guy was smitten with Susan when they were both college-age — she was a sorority girl who was probably going to marry a rich guy, and he was from a blue-collar background — and someone else at the sorority had him thrown out from a party where he thought he’d have a shot with Susan all those years ago. He later commits a crime for revenge against the ‘someone else’ — figuring she ruined his chances with Susan — but he doesn’t confess to it.
The ‘someone else’ mentions that, as it happens, Susan told her to get rid of the guy at the party that night (which has nothing to do with whether he committed the crime, but which might make him start doubting whether he’d had a shot with Susan). And so the prosecutor, knowing exactly what he’s doing, puts (some other) Susan on the stand to testify that she never said to get rid of him, adding that she wound up marrying a blue-collar guy.
This elicits the expected reaction: you bitch, you ruined everything! Well, I showed you what it’s like to lose somebody you love! I showed you!
Would the real Susan’s death be relevant?
Note: not McCoy by this point: Cutter, instead. He knew that the right Susan was dead (killed by her rich husband in fact), but got a plausible Susan and never asked a question that would reveal she wasn’t the right one (defense attorney protested the witness as irrelevant, but defendant wanted to hear who he thought was the right Susan, and directed his attorney to withdraw the objection
I’m not clear about how any of this is relevant to the case, and particularly in a pre-trial hearing for summary judgment to dismiss which are really administrative affairs adjudicating questions of whether the prosecutor really has enough basis to make a case or if a serious ethical violation occurred that invalidates some key piece of evidence or makes a witness unable to testify. This sounds like a witness that would be questioned at trial to establish motive except that the witness in question doesn’t provide any basis for motive.
So, absent further context, this seems like a highly contrived way to elicit an unlikely response from a the defendant, but again if he’s so dumb as to yet out an admission in court then he’s just made his lawyer’s job much, much harder. There are some clients you just can’t save from their own stupidity or narcissism.
Stranger
It’s something of a Hail Mary after two key witnesses were shown to have changed their story and having been motivated by a reward. Theoretically, the real Susan might have established a motive (which was a really weak point for the prosecution because the real motive was so bizarre).
PS. The defendant’s obsession with a particular sorority is based on Bruce Ivins
Things that are said in open court are admissible at trial, and the statements of the defendant are an exception to the hearsay rule (meaning, somebody could come in at trial and testify to what they heard the defendant say). In the courtrooms that I’m in, proceedings are digitally recorded, so there would be an audio clip that could be played for the jury.
that’s why judges are usually adamant, whenever a defendant tries to speak in court, to remind them to not speak about the facts of their case.
I recall one client (who ultimately pleaded not guilty by reason of insanity) say, at his first appearance, upon being charged with kidnapping, “Kidnapping? I didn’t kidnap anyone! I just held them at gunpoint.”
Well, at least he wasn’t the Kettlemans.
Stranger