Talking tripe part 2

Sometimes you will have to put forward a suggestion in cross examination which is nonsense because it is a necessary part of the client's defence, however fanciful. On other occasions you will have to put it forward because it is part of your client's case, it is bound to be something your client is going to be saying in evidence, and therefore the other side's witnesses need to have the opportunity to comment upon it.

I was once defending someone on a charge of burglary. Someone had smashed open a shop window. The allegation was that the defendant was inside the shop when the police arrived and tried to run out but was apprehended just inside the shop. There was no doubt that he had been caught. There was also no doubt that he had been caught at the scene of the crime. Really, unless the defendant was going to say that the police officers were telling a pack of lies, it was difficult to see how he could have been arrested had he not been guilty of the charge. The defendant was very reluctant to say that the police were lying. At that time in general the accused's previous convictions could not be admitted save for a very limited circumstances (which have since been extended). One of those was where you made an "imputation" against a prosecution witness, i.e. an attack on their character or behaviour. Saying that the police had deliberately and deceitfully made up this account would almost certainly have amounted to an imputation, in which case the defendant's previous convictions for doing exactly the same thing would be overwhelmingly likely to have been put before the court. Needless to say this was not a prospect which the defendant relished.

The version of events he gave (people who have been up on criminal charges many times would usually know what the consequence would be for calling the police liars, in that they would know that the likely consequence would be that their previous convictions would be put forward in evidence) was that he happened to have been walking past the shop when the police officer in error not only grabbed him as an innocent passerby, but was mistaken in assuming that it had happened inside the shop instead of outside. This version of events had the merit of not calling a police officer a liar. However it was so far-fetched as to be utterly unbelievable. The idea that any police officer could not know the difference between someone trying to run out of the shop and being apprehended inside it, and a person who was just grabbed as they walked past on the pavement, would be difficult for any court to swallow. Also it was difficult to put in cross examination, as well as being horrendous to have to rely upon as the central plank of your defence in the final speech. I just had to do it with as much sincerity and verve as possible. You will be unsurprised to know I was unsuccessful.

Once during a case involving very elderly people my client amongst various other things alleged that an apparently respectable former RAF officer aged about 76 used to spend his time walking around the old people's home wearing nothing but a 4 inch loincloth. This story was not helped by the fact that despite my client's confident assertion that he did it all the time, all the other residents were adamant that he was respectably dressed and behaved at all times. He turned up to give evidence in relation to the allegations against my client, a smart figure in a blazer and tie. It was inconceivable that he could have behaved as alleged without the whole of the old people's home knowing about it, and inconceivable given the approach and evidence of the other residents that any judge would believe that he had. The mere fact that someone looks respectable is no guarantee that they will behave in a respectable fashion, but the inherent improbabilities in my client's account together with the evidence of others made this most unlikely. The indignation on the face of the witness seemed all too convincing when I put him that he spent his days and nights wondering around the old people's home in a 4 inch loincloth for all and sundry to see him. There was no way the court would ever going to accept that allegation, but the client was most insistent and therefore it had to be put. It was not a happy moment, and of course whilst the assertion might be regarded as irrelevant, it affected my own client's credibility because it was so obviously ludicrous. Having said that, if your client instructs you that something happened and is going to give evidence about it, then however nonsensical have to put your case. One thing every aspiring advocate must remember. At some stage you will be forced into the position of talking tripe, and you will hate every second of it.