On Not Asking Questions When You Don’t Know the Answers…

This Denver Post news story nicely illustrates a maxim in law practice – don’t ask a question at trial when you don’t know the answer. In civil litigation, extensive discovery is used to look under every stone so as to avoid that very situation.

Criminal prosecution, however, is a bit more messy. Contrary to what you might see on TV, prosecutors do not always spend hours preparing every witness. First, they don’t have time for most cases. Second, they might not want the testimony to look canned. Third, if they do witness prep, they may have to report it to the opposing side (even if it wasn’t requested). Prosecutors rely heavily on prior witness statements to the police, just as civil litigants rely on depositions. I’ve never been a prosecutor, but this is what I’ve heard from others.

The case at issue here was one for sexual assault against a former Bronco player. The charge, as far as I can tell, was based on the victim’s lack of ability to consent (she was passed out) rather than lack of consent. This was a serious charge, and the case seemed open and shut. There was no dispute that she was unconscious in the defendant’s apartment, and DNA showed she was impregnated by him. But, that’s why we have trials (or, to use a sports analogy – that’s why they play the game).

Some of the pre-trial investigation must have revealed “girl on girl action” in the apartment that night (the defendant’s girlfriend was in the apartment that night), though it is unclear who actually witnessed it. In any event the court banned any testimony of any such activities under Colorado’s rape shield law. I think such laws are good policy – they preclude use of prior sexual activity by the victim as evidence of consent during the incident at trial.

However, use of the shield seems odd here – the statute is designed to shield prior activity (and the Colorado statute says “prior or subsequent.”). It seems that activity “during” the night in question would be relevant. Perhaps the court found that the activity occurred on the same night (if it did at all) before the alleged assault.

In any event, witnesses were not to be asked about it, and I presume witnesses were told not to mention it. But here comes the prosecutor’s mistake: after the “star” witness for the prosecution did not support the case as strongly as was hoped for, the prosecutor asked why the witness had sent several text messages to the victim the next day. Presumably, the prosecutor wanted to show the witness’s concern because she had been raped.

The answer came out before the prosecutor realized his mistake: the witness had heard from another player, the defendant’s roommate, that the witness had missed some great “girl on girl action” and that the text messages were to ask the victim about this (I assume because he was romantically interested in her).

The killer part of this testimony is that it was now admissible when it shouldn’t have been. It was barred by the rape shield law, but not when the prosecutor asked about it for other reasons. It should have been barred as hearsay, since the witness did not see the activity; however, because hearing the statement was why he sent the text messages, it was admissible to prove why he sent the messages, rather than for the “truth” about anything that happened in the apartment that night.

At that point, the prosecution was done. It had intended to call the roommate, but then decided to avoid him after that statement came out. This must have made it appear to the jury that the roommate’s statement was true. To make matters worse, the victim had deleted many of the text messages (and by implication did not deny the statement), which discredited her. The defendant’s attorney argued in closing argument that the victim couldn’t have been unconscious (the charge) and that perhaps the defendant participated (consensually).

End result: acquittal. I have no idea of the merits of the jury’s decision – I didn’t hear all the testimony. As a professor, though, I thought this was a very simple and direct way to show the costs of pushing too hard to make a point when you don’t know what’s coming next.