All right, Lawyer Talk Off The Record on the air. Topic of the day.

Confrontation clause.

The confrontation. I'm sure all of you have got your pocket constitutions. You've pulled them out and now you've got it in front of you. Sort of like Bill Cosby's picture pages. You don't remember that? No, but anyway, we've got.

I think he's got updated picture pages.

He probably does anyway. The confrontation clause. You can find it in the Sixth Amendment along with a bunch of other rights like the right to trial by jury, the right to compulsory process, and the right to confront your accusers, which is the sort of constitutional way of saying you have the right to confront cross examination. So look, I mean, if you're a criminal defense lawyer, this is how you value your abilities. Like that guy's a great cross examiner and yada, yada, yada. And a lot of guys who thinks they're great, who think they're great cross examiners aren't. Some who don't even realize they're good at it are. And even those who are good at it sometimes screw it up. I mean, look, it's one of the most difficult things you can do as a trial lawyer. Stand up and cross examine a witness until you learn how to do it. Right. But I'm going to talk a little bit more about it in some abstract terms. So people have heard me talk, and I don't care if you believe or not, but I'm going to talk about the Bible a little bit. If you go back and read a book called Proverbs, I'm familiar with it. You're familiar with proverbs, so Proverbs 18, chapter 17, the first to plead his case seems right until another comes and examines him. So apparently a long time ago, people realized the value of confrontation. So the idea is that if the witness testifies on direct exam, like you've seen one of these or several of these.

Yeah.

With when we're in a courtroom and you know, think Matlock or think Perry Mason if you're older. Matlock, you're older too, but there's a new Matlock. Anyway, so think of the Greatest Movie or even Tom Cruise and A Few Good Men. That's even older now. But you know, when the witness testifies, what the proverb is saying here is when the witness testifies or the first person comes in and gives their story, it always seems good until somebody else comes in and starts to challenge it. And this is why our system, our adversarial system is better than all the rest. And I don't care if it's perfect, it's not, I'm not saying that. But it's better than all the rest. If you don't have a right to cross examine or confront your accusers, then you're leaving on the table maybe half, if not more of what ultimately could be, if not the truth, something that would shed light on the truth. So let's talk about how it works generally and what we do. And actually before I do that, I'm going to give one more great quote because there's a legal scholar, his name was John Henry Wigmore and he coins the phrase cross examination is the greatest legal engine ever invented for the discovery of the truth. Saying the same thing as Proverbs, but just several thousand years later.

Yeah, just a little update.

So the idea is this. If you're charged with a crime and we go into a courtroom, I don't think it is fair to a prosecutor to expect him or her to come in and bring out or have their witnesses testify about all the good stuff. Now. But you would say, wait a minute, their job is to seek justice or find the truth. Why wouldn't they want all the good stuff to come out?

I think we also want the bad stuff to come out also.

Well, they kept the bad stuff, but why not bring out. What's their incentive to bring out the good stuff? Their job is to do justice.

Well, they want to sway the jury that their witnesses telling the truth that they're a good guy and that our case is the right case, not the defense's case.

What you're really saying is they're trying to win. Oh yeah, they're trying to win. And so we have this sort of weird paradox in our system. The prosecutor's job, if you go read about it, is to do justice and to seek justice. And you would think that should include if the government is being wholesome and honest and, and always operating outside their human frailties, that they would present all the bad stuff and the good stuff for their case. Or depending on how you look at it, they present everything. And they would bring out all the bad stuff for their case as well as all the good stuff for their case. Because after all, your job is to seek justice. You know, but they're human and they want to win. And we run into this all, look, I have been at odds with prosecutors, almost to blows with prosecutors several times. And then we're friends afterwards or before. You know, it's like that's what happens. Because it is an adversarial system. And it is not good enough, says Proverbs, and is not good enough, says Wigmore, to just expect one side to bring out both sides. Doesn't happen that way. And beyond that, even if so, look, you can have a situation where a prosecutor knows there's something out there that they don't want the jury to hear, so they just don't ask the question. And maybe they don't. They don't know that we're going to. They may not even know that we know it. So. And is it right? No, it's not right. It's not right at all. Anybody looking at the system would say we would want the jury to hear all of it. But we. This is the brilliance and the genius of what our founders created by studying things like Proverbs is that it takes both sides to bring it out. Because the motivation of the prosecutor is to win the case, the motivation of the defense lawyer is to win the case. And perhaps somewhere in the middle, they meet and the jury will get all of it. And so we get to stand up and say, what about that? What about that? Do you remember where that. You don't remember? No, that's the old O.J. trial. But it was Barry's check. What about that, Mr. Fung? But we get to say those kind of things and bring out the other side. So we recently had a suppression hearing and did the. I mean, what was your observation, what the prosecutor did? And then how did it change after we got up?

Well, it seems like the prosecutor was painting this picture that the detective did everything right and that telling the truth and that this was, you know, this is cut clean. Good job on the detective side.

Yeah, cut and dry. All done. Easy peasy. Nice and easy.

Yeah. And you get up there and you're like, hold on. I think we failed to address a lot of the issues with this.

And how long did it take? 15 minutes. Yeah. And the whole thing changed. So back to the Proverbs. You know, the First Estate, his case that was a prosecutor. It all sounded great until the other side comes and examines him. And that's what we did, and it changed. I'm not saying that the prosecutor did anything wrong, and I'm not saying I'm great. The point is that we just brought out the obvious stuff and the prosecutor didn't. And maybe some of that, you could say, is because they know that we're going to do it, or maybe not even consciously know, but they figure, well, it's not my job, it's their job. So I Don't know how things would change. Saying there's, I think there's probably some other jurisdictions in Europe where prosecutors job is to do both. You know, I think they're going to

be a little biased on one of the sides. They do. That's what I would think.

Of course, it's sort of like exculpatory evidence. Brady versus Maryland. Yes. What's the, what's the obligation like they

have to hand over all exculpatory evidence? Like if.

Meaning things that help the defense.

Yeah. And the problem with that is they don't think it helps the defense.

Yeah. They rationalize their way out of it.

Yeah. And it's not up to them to determine what's helpful to them. It's up to us what's helpful.

That's right. So it's another paradox. So the prosecutor's job is to disclose to us the defense exculpatory evidence, evidence that helps us. So if there's a witness that says, yeah, I know Joe Blow, the alleged victim here, and he's a no good rotten son of a bitch liar. He's cheated me over and over for 20 years. And, and I wouldn't believe him if he's the last man, you know, whatever. And the prosecutor's like, that guy's crazy. He's not telling the truth and just puts it in the circular file and I find out about it later and I'm just like, judge, I should have had, they should have given me this witness statement. The prosecutor's like, it's not helpful to you. He's lying. Now there's, believe me, I found plenty of cases where I caught the prosecutor with the hand in the proverbial cookie jar where they weren't, it wasn't that. It was that they just hit it because they didn't like it. And more often it's not the prosecutor doing it, it's the police doing it.

Yeah.

Because the prosecutor's only as good as the police. And by the way, in these situations, the prosecutor is the police, the prosecutor is the state, and in federal court, the prosecutor is the federal government. So what they do, the prosecutor does. I mean, that's just how it works. So anyway, this is the value of cross examination. And it doesn't always have to be cross or mean. In fact, I don't think I was mean at all. And that.

No, not at all.

I think, I think too many lawyers look at this stuff and they say, I'm going to go and destroy this witness or I'm going to shred this witness that backfires a lot. So you take a, say a victim and you want to stand up and shred the victim.

Not looking too good.

Jury's going to look at that and say, well, that guy's an asshole. Yeah, why would he treat this young victim that way? But it doesn't have to be that way. Cross examination doesn't have to be cross, it doesn't have to be mean and it doesn't have to be shredding. It just has to bring out the other side of the story. So often when I'm talking to police, I'm asking the police questions about things that they didn't expect at all because I'm setting up something else later. So the best way to cross examine, or the best time to start cross examining the witnesses in your case is, is the second you get the case, you start looking at everything and figuring out, all right, how do I get this into a courtroom? And how can I get this in a courtroom? And don't expect the prosecutor to do it, because they won't. So look, if you've got questions about cross examination or if you're a lawyer and you want to talk about cross. I love this stuff. So give us a shout or check us out@LawyerTalkPodcast.com leave us a comment down here in the socials and we'll cover any topic you want to.