Barely Legally

Confessions of a Moot Court Bailiff

Law & Order: Switcheroo

One of my professors used to be a federal prosecutor.  Actually, a lot of them were prosecutors. (Old trial lawyers never retire, they just adjourn more often.) Now they have moved into academia, and they bring fantastic stories from the world of lawyerdom. Now I relate one to the internet.

When you’re trying to convict defendant of a crime, one of your goals is probably to prove that he was at the scene of the crime. In the old days, before security cameras were everywhere, and cell phones could track your movements, this was done by putting an eyewitness to the incident on the stand. Then the prosecutor would get up and do his best impression of Perry Mason.

“Mister Witness, you claim to have seen the brutal attack on the victim at the pier. Do you see the person that attacked the victim in this courtroom?”

The witness nods, and the prosecutor asks the witness to point out the person that he saw on that dark and stormy night. The witness points a trembling finger at the scraggly-looking fellow sitting next to the defense attorney, at the defendant’s table.

“Ah ha!  Let the record show that the witness pointed to the defendant, Mister Shawn Carter.” With that, the prosecutor takes his seat at the opposite table, and rests his case. The witness leaves the courtroom, and the jury starts thinking that they might get to take an early lunch.

Now the defense attorney gets up and does his best impression of Perry Mason. He calls to the witness stand the scraggly-looking defendant.

“Please state your name for the record, sir,” the defense attorney says.

“My name is Andre Benjamin,” the defendant replies. The jury gets a little confused, and the prosecutor turns an interesting shade of pink.

“Well, then, where is the Shawn Carter, the defendant?” The defense attorney feigns the confusion that it actually mounting in the jury.

Suddenly, a well-dressed man in the back of the courtroom stands up and proclaims that he is actually the defendant. The defense attorney throws his arms out wide and says “well, I guess that means Mister Witness has just exonerated my client!” And the courtroom is thrown into an uproar until the judge can restore order to the courtroom.

Professor C. says that defense attorneys would hire people to “stand in” for the defendant in a dramatic attempt to undermine eyewitness testimony placing the defendant at the scene of a crime. Apparently, it worked pretty well, because everyone knows where the defendant sits. Everyone knows that the prosecutor has brought the eyewitness in to point at the defendant. And with the pace of some trials, it could have been months or even years since the eyewitness had seen the defendant.

Judges took umbrage, it seems, with defense attorneys turning the courtroom into an episode of Perry Mason, and so this sort of thing has been restricted. But if you ask me, (and really, what judge in America doesn’t want to take advice from a 2L?) this sort of thing would be great for the criminal justice system.

You know, in the same way that a housing crisis is great for people that hate retiring before the age of 80.