# Zany Massachusetts Supreme Court Now Says Defense Must Reveal X-exam Material **URL:** \ **Category:** Great Debates\ **Created:** [March 20, 2006, 4:52pm UTC](https://boards.straightdope.com/t/zany-massachusetts-supreme-court-now-says-defense-must-reveal-x-exam-material/349154 "2006-03-20T16:52:21Z")\ **Posts on this page:** 15\ **Page:** 2
**Author:** ![minty\_green](https://avatars.discourse-cdn.com/v4/letter/m/f6c823/32.png) [@minty\_green](https://boards.straightdope.com/u/minty_green)\ **Post date:** [March 21, 2006, 3:37am UTC](https://boards.straightdope.com/t/zany-massachusetts-supreme-court-now-says-defense-must-reveal-x-exam-material/349154/21 "2006-03-21T03:37:58Z")
Two thoughts: (a) It appears that the decision whether to require the defense to turn over cross-exam material is discretionary with the trial judge. Given that the relevant rule, validly enacted by the state legislature, seems to provide that the trial judge “may upon motion by the Commonwealth” permit discovery of relevant evidence from the defense, I see no validity whatsoever to the charge that the Massachusetts Supremes are pulling it out of their supposedly liberal asses. Don’t like it? Good, change the damn law. (b) Speaking as a practitioner on the civil side who has only limited experience with criminal practice, it is absolutely shocking and, frankly, disgusting how little right a criminal defendant has to learn of the evidence possessed by the state. Information–i.e., discovery–is a _good_ thing, and trial by ambush is a _bad_ thing. And it works the same way on both sides. So cry me a river, criminal defendants, and add it to the lake o’ tears the prosecutors are wading in. ---
**Author:** ![treis](https://avatars.discourse-cdn.com/v4/letter/t/bc79bd/32.png) [@treis](https://boards.straightdope.com/u/treis)\ **Post date:** [March 21, 2006, 5:08am UTC](https://boards.straightdope.com/t/zany-massachusetts-supreme-court-now-says-defense-must-reveal-x-exam-material/349154/22 "2006-03-21T05:08:41Z")
> [@Airman Doors](#): > > But that’s the whole point. The defense has to be able to impeach witnesses by going after their credibility. If the prosecution has to be informed that one of their witnesses is going to get hammered they can tailor questions ahead of time to mitigate the damage, or in the case of expert witnesses they can get a new, more credible witness. > > It’s as if O.J.'s lawyers had to tell Marcia Clark that Fuhrman had used a racial slur in the past ahead of time. Think of how the trial might have ended up if Johnnie Cochran hadn’t been able to make Fuhrman look the fool. Clark would have expressly coached Fuhrman to admit it ahead of time to take that ammunition away from O.J.'s lawyers. > > It’s stupid, and it stacks the deck against the defendant. Well, I wasn’t initially in favor of the ruling but if it would have prevented OJ getting off by playing the race card I might have to change my mind. ---
**Author:** ![Campion](https://avatars.discourse-cdn.com/v4/letter/c/4491bb/32.png) [@Campion](https://boards.straightdope.com/u/Campion)\ **Post date:** [March 21, 2006, 6:05am UTC](https://boards.straightdope.com/t/zany-massachusetts-supreme-court-now-says-defense-must-reveal-x-exam-material/349154/23 "2006-03-21T06:05:55Z")
> [@Bricker](#): > > One of the few effective tools available to a defense attorney is the chance to show that a prosecution witness is lying. The ruling now permits the prosecution to have access to any evidence developed by the defense ahead of time, and will - obviously - permit prosecution witnesses to tailor their stories to that evidence. Most impeachment is of collateral matters, true? In other words, most of the time when you impeach a witness you aren’t impeaching him on the inherent contradictions in his statement, but on collateral matters – criminal record, for example, or bias. I agree that handing this information to the prosecution ahead of time gives the state greater ability to craft directs (and even to decide not to call a witness at all), but is that wrong in this case? If the impeachment is on a bias, for example (the OJ Simpson/ Mark Fuhrman example), the witness still can be impeached with the material. Yes, the prosecutor can blunt its power on direct, but in many cases, it’s still powerful material. I guess I just don’t see what the practical impact of this rule will be. ---
**Author:** ![alaricthegoth](https://avatars.discourse-cdn.com/v4/letter/a/4bbf92/32.png) [@alaricthegoth](https://boards.straightdope.com/u/alaricthegoth)\ **Post date:** [March 24, 2006, 8:01am UTC](https://boards.straightdope.com/t/zany-massachusetts-supreme-court-now-says-defense-must-reveal-x-exam-material/349154/24 "2006-03-24T08:01:09Z")
> [@Gorsnak](#): > > Finally, a **Bricker** idea I can get behind wholeheartedly!! 😃 By C3P0’s pointy little head, by my pointy little ears, by the Empress’s pointy little, um, never mind… Gobsmacked I am. A disturbance in the Force there is… Ergot, myself I’ll take. Intervention, cancelled it is Obi-wan Bricker from the dark side back is come. Returned, the Jedi is. On party dudes. ---
**Author:** ![The\_King\_of\_Soup](https://avatars.discourse-cdn.com/v4/letter/t/a87d85/32.png) [@The\_King\_of\_Soup](https://boards.straightdope.com/u/The_King_of_Soup)\ **Post date:** [March 24, 2006, 10:02am UTC](https://boards.straightdope.com/t/zany-massachusetts-supreme-court-now-says-defense-must-reveal-x-exam-material/349154/25 "2006-03-24T10:02:51Z")
I’m not so much worried about prosecutors’ witnesses being groomed to avoid defense impeachment (as an old saying goes, the problem with polishing garbage is, when you’re done, you still end up with garbage) as I am about how much this lowers the standards for the type of witnesses prosecutors can and will use in the first place. This is because a really devastating “gotcha” doesn’t just reset the trial to the moment before the slimeball took the stand: it can and often does taint the whole case and make the prosecution look dishonest, stupid, or both to boot. And this is a very good thing. Without the new rule, prosecutors would be afraid to put a lying slimeball with a horrible record on the stand because of what the defense _might_ find out. With it, the prosecutors have only to worry about what the defense _did_ find out, and they’ll know exactly what that is. So there’s every incentive to use questionable witnesses, and no more deterrent, because they can simply drop the ones defense counsel does uncover, and go ahead with the guys the defense investigation _didn’t_ expose. Prosecuting attorneys in Massachusetts will have no reason at all to discard useful but impeachable witnesses any more, and that will lead to abuse. It will also certainly affect defense teams in inverse proportion to their resources, which is offensive all by itself. ---
**Author:** ![alaricthegoth](https://avatars.discourse-cdn.com/v4/letter/a/4bbf92/32.png) [@alaricthegoth](https://boards.straightdope.com/u/alaricthegoth)\ **Post date:** [March 28, 2006, 3:01am UTC](https://boards.straightdope.com/t/zany-massachusetts-supreme-court-now-says-defense-must-reveal-x-exam-material/349154/26 "2006-03-28T03:01:43Z")
_Prosecuting attorneys in Massachusetts will have no reason at all to discard useful but impeachable witnesses any more, and that will lead to abuse._ But, aren’t prosecutors “officers of the court” whose chief obligation is to the majesty of the law? Would they knowingly present testimony from lying slimebuckets who, perhaps, in a misguided attempt to lessen their own slimebucket liability for some discovered crime, would trade perjury for a get out of jail free card? Absent the potential for a perry mason moment, would these enforcers of justice simply game the jury trial system to increase their “kill ratio”?? **SAY IT AIN’T SO, HAM…** ---
**Author:** ![DrDeth](https://avatars.discourse-cdn.com/v4/letter/d/b487fb/32.png) [@DrDeth](https://boards.straightdope.com/u/DrDeth)\ **Post date:** [March 28, 2006, 3:42pm UTC](https://boards.straightdope.com/t/zany-massachusetts-supreme-court-now-says-defense-must-reveal-x-exam-material/349154/27 "2006-03-28T15:42:03Z")
> [@Airman Doors](#): > > It’s as if O.J.'s lawyers had to tell Marcia Clark that Fuhrman had used a racial slur in the past ahead of time. Think of how the trial might have ended up if Johnnie Cochran hadn’t been able to make Fuhrman look the fool. Clark would have expressly coached Fuhrman to admit it ahead of time to take that ammunition away from O.J.'s lawyers. > > . Which since OJ was guilty, would have been a GOOD thing. In fact, I completely agree with **treis** here, in that the Defence (IMHO) pulled some dirty tricks in that trail. Sorry, maybe you can come up with a better Poster Boy than OJ? :dubious: However, I agree somewhat with Bricker in that this looks doubtful. I’d have to see how it plays out first. ---
**Author:** ![Mtgman](https://avatars.discourse-cdn.com/v4/letter/m/b5a626/32.png) [@Mtgman](https://boards.straightdope.com/u/Mtgman)\ **Post date:** [March 30, 2006, 4:06pm UTC](https://boards.straightdope.com/t/zany-massachusetts-supreme-court-now-says-defense-must-reveal-x-exam-material/349154/28 "2006-03-30T16:06:27Z")
I’m not fond of the tactic of character assassination of opposing witnesses, no matter who does it. We’re all human and we all have flaws, however minor, that a skilled attorney could make a lot of hay about in front of a jury who will have no exposure to the witness aside from a few minutes in the courtroom. If half of the time a jury sees and hears of a witness is taken up by a lawyer engaged in character assassination of the witness, even on a minor point which may have no bearing on the case at all, the effect on the witness’s credibility is out of proportion to any actual flaw the witness posesses. I agree the defense needs powerful tactics to defend against the charges brought by the state because the state has far more resources and many jurors give deference to the state by default. I just don’t think this tactic is one which should be encouraged. The Mark Fuhrman incident is a perfect case in point. The objective likelyhood of Furhman having committed conspiracy to frame O. J. Simpson is very low. The impact the accusation of racism had on Fuhrman’s credibility in the trial was very high. There also seem to be enough safeguards, mainly Judge approval, to keep this new power of the prosecutor in check. It flows naturally from the statute as enacted by the legislature. I’m ok with it. I don’t like my courtrooms to be places where people fight dirty. Getting a big discount on a witness’s credibility because of some flaw which almost certainly did not impact the facts of the case is fighting dirty in my book. Enjoy, Steven ---
**Author:** ![Bricker](https://avatars.discourse-cdn.com/v4/letter/b/977dab/32.png) [@Bricker](https://boards.straightdope.com/u/Bricker)\ **Post date:** [March 30, 2006, 5:18pm UTC](https://boards.straightdope.com/t/zany-massachusetts-supreme-court-now-says-defense-must-reveal-x-exam-material/349154/29 "2006-03-30T17:18:08Z")
> [@Mtgman](#): > > There also seem to be enough safeguards, mainly Judge approval, to keep this new power of the prosecutor in check. It flows naturally from the statute as enacted by the legislature. I’m ok with it. I don’t like my courtrooms to be places where people fight dirty. Getting a big discount on a witness’s credibility because of some flaw which almost certainly did not impact the facts of the case is fighting dirty in my book. Impeachment of a witness on matters collateral to the issues on trial was ALREADY subject to the trial court’s discretion. This new rule goes much farther than simply ensuring there’s no character assassination. ---
**Author:** ![alaricthegoth](https://avatars.discourse-cdn.com/v4/letter/a/4bbf92/32.png) [@alaricthegoth](https://boards.straightdope.com/u/alaricthegoth)\ **Post date:** [March 31, 2006, 5:32am UTC](https://boards.straightdope.com/t/zany-massachusetts-supreme-court-now-says-defense-must-reveal-x-exam-material/349154/30 "2006-03-31T05:32:34Z")
> [@Mtgman](#): > > I’m not fond of the tactic of character assassination of opposing witnesses, no matter who does it. We’re all human and we all have flaws, however minor, that a skilled attorney could make a lot of hay about in front of a jury who will have no exposure to the witness aside from a few minutes in the courtroom. If half of the time a jury sees and hears of a witness is taken up by a lawyer engaged in character assassination of the witness, even on a minor point which may have no bearing on the case at all, the effect on the witness’s credibility is out of proportion to any actual flaw the witness posesses. > > I agree the defense needs powerful tactics to defend against the charges brought by the state because the state has far more resources and many jurors give deference to the state by default. I just don’t think this tactic is one which should be encouraged. The Mark Fuhrman incident is a perfect case in point. The objective likelyhood of Furhman having committed conspiracy to frame O. J. Simpson is very low. The impact the accusation of racism had on Fuhrman’s credibility in the trial was very high. > > There also seem to be enough safeguards, mainly Judge approval, to keep this new power of the prosecutor in check. It flows naturally from the statute as enacted by the legislature. I’m ok with it. I don’t like my courtrooms to be places where people fight dirty. Getting a big discount on a witness’s credibility because of some flaw which almost certainly did not impact the facts of the case is fighting dirty in my book. > > Enjoy, > Steven But a motion in limine will handle ninetyfive percent of the cases you allude to, would it not? Of course, in such case the prosecutor seeking a protective order would have to reveal to the defense the collateral weakenesses of his lying scumbag jailhouse sni… his witness. Once again, (if in a different thread) may I be heard to raise the meta-issue of prosecutorial obligation? The said obligation being not merely to win, but to see justice done? Why are we at such pains to discredit to the jury of testimony that the prosecutor should himself have rejected as tainted? I suppose a charitible construction would impute to the Mass Supremes an optitive voice, projecting a scenario where the DA, upon learning from the PD’s diligent swarm of well compensated investigators, that the people’s witness whom he had neglected to subject to a polygraph (which, …parenthetically, is what a prosecutor does when he wants to protect himself from a lying witness, assuming, that is, that the DA does not wish to preserve his “deniability” vis-a-vis the expected tesimony…) was a crackhead ho’ with fifteeen abandoned babies currently in foster care, etc, would promptly re-evaluate his case, and dismiss in full or perhaps demand less than the prior (to date, rejected) plea offer. I my brother attorneys here present, (including, god I choke, brother Hamlet) to deconstruct this issue in light of the plea negotiation process, rather than the jury trial, since that is where the real moral fibre of the prosecutor is tested, because his discretion is absolute. CF, Debbie La Fave. Who, except the DA, can tell the judge to go fuck himself and make it stick? ---
**Author:** ![alaricthegoth](https://avatars.discourse-cdn.com/v4/letter/a/4bbf92/32.png) [@alaricthegoth](https://boards.straightdope.com/u/alaricthegoth)\ **Post date:** [March 31, 2006, 5:34am UTC](https://boards.straightdope.com/t/zany-massachusetts-supreme-court-now-says-defense-must-reveal-x-exam-material/349154/31 "2006-03-31T05:34:47Z")
But a motion in limine will handle ninetyfive percent of the cases you allude to, would it not? Of course, in such case the prosecutor seeking a protective order would have to reveal to the defense the collateral weakenesses of his lying scumbag jailhouse sni… his witness. Once again, (if in a different thread) may I be heard to raise the meta-issue of prosecutorial obligation? The said obligation being not merely to win, but to see justice done? Why are we at such pains to discredit to the jury of testimony that the prosecutor should himself have rejected as tainted? I suppose a charitible construction would impute to the Mass Supremes an optitive voice, projecting a scenario where the DA, upon learning from the PD’s diligent swarm of well compensated investigators, that the people’s witness whom he had neglected to subject to a polygraph (which, …parenthetically, is what a prosecutor does when he wants to protect himself from a lying witness, assuming, that is, that the DA does not wish to preserve his “deniability” vis-a-vis the expected tesimony…) was a crackhead ho’ with fifteeen abandoned babies currently in foster care, etc, would promptly re-evaluate his case, and dismiss in full or perhaps demand less than the prior (to date, rejected) plea offer. I urge my brother attorneys here present, (including, god I choke, brother Hamlet) to deconstruct this issue in light of the plea negotiation process, rather than the jury trial, since that is where the real moral fibre of the prosecutor is tested, because his discretion is absolute. CF, Debbie La Fave. Who, except the DA, can tell the judge to go fuck himself and make it stick? ---
**Author:** ![alaricthegoth](https://avatars.discourse-cdn.com/v4/letter/a/4bbf92/32.png) [@alaricthegoth](https://boards.straightdope.com/u/alaricthegoth)\ **Post date:** [March 31, 2006, 5:36am UTC](https://boards.straightdope.com/t/zany-massachusetts-supreme-court-now-says-defense-must-reveal-x-exam-material/349154/32 "2006-03-31T05:36:19Z")
> [@Mtgman](#): > > I’m not fond of the tactic of character assassination of opposing witnesses, no matter who does it. We’re all human and we all have flaws, however minor, that a skilled attorney could make a lot of hay about in front of a jury who will have no exposure to the witness aside from a few minutes in the courtroom. If half of the time a jury sees and hears of a witness is taken up by a lawyer engaged in character assassination of the witness, even on a minor point which may have no bearing on the case at all, the effect on the witness’s credibility is out of proportion to any actual flaw the witness posesses. > > I agree the defense needs powerful tactics to defend against the charges brought by the state because the state has far more resources and many jurors give deference to the state by default. I just don’t think this tactic is one which should be encouraged. The Mark Fuhrman incident is a perfect case in point. The objective likelyhood of Furhman having committed conspiracy to frame O. J. Simpson is very low. The impact the accusation of racism had on Fuhrman’s credibility in the trial was very high. > > There also seem to be enough safeguards, mainly Judge approval, to keep this new power of the prosecutor in check. It flows naturally from the statute as enacted by the legislature. I’m ok with it. I don’t like my courtrooms to be places where people fight dirty. Getting a big discount on a witness’s credibility because of some flaw which almost certainly did not impact the facts of the case is fighting dirty in my book. > > Enjoy, > Steven But a motion in limine will handle ninetyfive percent of the cases you allude to, would it not? Of course, in such case the prosecutor seeking a protective order would have to reveal to the defense the collateral weakenesses of his lying scumbag jailhouse sni… his witness. Once again, (if in a different thread) may I be heard to raise the meta-issue of prosecutorial obligation? The said obligation being not merely to win, but to see justice done? Why are we at such pains to discredit to the jury of testimony that the prosecutor should himself have rejected as tainted? I suppose a charitible construction would impute to the Mass Supremes an optitive voice, projecting a scenario where the DA, upon learning from the PD’s diligent swarm of well compensated investigators, that the people’s witness whom he had neglected to subject to a polygraph (which, …parenthetically, is what a prosecutor does when he wants to protect himself from a lying witness, assuming, that is, that the DA does not wish to preserve his “deniability” vis-a-vis the expected tesimony…) was a crackhead ho’ with fifteeen abandoned babies currently in foster care, etc, would promptly re-evaluate his case, and dismiss in full or perhaps demand less than the prior (to date, rejected) plea offer. I urge my brother attorneys here present, (including, god I choke, brother Hamlet) to deconstruct this issue in light of the plea negotiation process, rather than the jury trial, since that is where the real moral fibre of the prosecutor is tested, because his discretion is absolute. CF, Debbie La Fave. Who, except the DA, can tell the judge to go fuck himself and make it stick? ---
**Author:** ![alaricthegoth](https://avatars.discourse-cdn.com/v4/letter/a/4bbf92/32.png) [@alaricthegoth](https://boards.straightdope.com/u/alaricthegoth)\ **Post date:** [March 31, 2006, 5:39am UTC](https://boards.straightdope.com/t/zany-massachusetts-supreme-court-now-says-defense-must-reveal-x-exam-material/349154/33 "2006-03-31T05:39:45Z")
_I don’t like my courtrooms_ Are you a superior court or **Federal District Court Judge**? ---
**Author:** ![alaricthegoth](https://avatars.discourse-cdn.com/v4/letter/a/4bbf92/32.png) [@alaricthegoth](https://boards.straightdope.com/u/alaricthegoth)\ **Post date:** [March 31, 2006, 5:42am UTC](https://boards.straightdope.com/t/zany-massachusetts-supreme-court-now-says-defense-must-reveal-x-exam-material/349154/34 "2006-03-31T05:42:24Z")
> [@Bricker](#): > > Impeachment of a witness on matters collateral to the issues on trial was ALREADY subject to the trial court’s discretion. This new rule goes much farther than simply ensuring there’s no character assassination. godammit B. you don’t have to drop a “rotflmao” on me, but by the empresses’ pointy little, etc. merits a nod, don’t ya think? (or are you ashamed to consort with my ilk in front of the judges?..) ---
**Author:** ![treis](https://avatars.discourse-cdn.com/v4/letter/t/bc79bd/32.png) [@treis](https://boards.straightdope.com/u/treis)\ **Post date:** [March 31, 2006, 5:45am UTC](https://boards.straightdope.com/t/zany-massachusetts-supreme-court-now-says-defense-must-reveal-x-exam-material/349154/35 "2006-03-31T05:45:08Z")
> [@Bricker](#): > > Impeachment of a witness on matters collateral to the issues on trial was ALREADY subject to the trial court’s discretion. This new rule goes much farther than simply ensuring there’s no character assassination. What else does the defense have to hand over? Your cite says, “impeach the credibility of prosecution witnesses,” which doesn’t seem to differ much from character assasination. [Previous page](https://boards.straightdope.com/t/zany-massachusetts-supreme-court-now-says-defense-must-reveal-x-exam-material/349154.md?page=1)