Blonde Justice concluded that if the prosecutor is "bad" and strong arms or threatens the witness into sticking by the identification, the next time
we do come up with that gem on an investigation (like the unsure witness), he will never get a courtesy call. And then it comes out at the trial, in front of the jury - with absolutely no warning to the prosecutor. I've seen that happen a few times, and each time it was a very humbling experience for a very arrogant prosecutor. But it is sort of fun to watch. They don't see it coming and then BAM! it's like a train wreck! And who doesn't love a good BAM! moment in a trial?Mark Bennett jumps into to say that the
defender who holds back a bombshell for trial one time contributes uncertainty to the Government’s case in every case from then on. The less certain the Government is of its case, the better the Defense’s negotiating position. If the criminal defense lawyer has a reputation for springing unpleasant surprises for the Government in the middle of trial, he’s going to get better plea offers than if he lays all his cards on the table before trial in every case.A Public Defender weighed in to offer a different view about bush-whacking the prosecution:
I’m not so sure about that. It seems romantic and all, the star witness recanting on the stand or the air-tight alibi for your client destroying the state’s case. But it’s all a risk. If the star witness recants, there’s always the prior inconsistent statement. If your client suddenly develops an air-tight alibi, but didn’t reveal that in his confession, then you’ve got credibility issues.
My own view is this, speaking strictly for myself: if there is a genuinely exculpatory tidbit, such as the victim recanting, obviously, I want to know about it-- not so I'm not caught with my pants down at trial (unpleasant as that is), but because if I talk to the victim and she tells me, "you know, I really can't be certain" or words to that effect, I'm not going to try to force that person to fake certainty.
First, it usually doesn't work: on even a mediocre defense cross, she'll likely reveal her uncertainty anyway. And if a defense investigator has her saying she is really uncertain, that prior statement will come out. Either way, it's a fair bet that a recanting witness is not going to be "threatened" into being a credible witness.
Second, call me idealistic, but I have this thing about wanting to convict guilty people, and if a witness is expressing genuine doubt (not doubt artificially ginned up by an over-eager defense investigator), and there is no corroborating evidence to shore up the identification, the first question I ask myself is "why should I believe her beyond a reasonable doubt." If I can't answer that question, I shouldn't be taking the case to trial.
Of course, it remains that a defense attorney can save the "bombshell" for trial and get lots of jollies making the prosecution look foolish by bushwhacking the prosecutor with surprise information. Heck, it happens often enough, though it's rare that the surprise evidence is of sufficient quality to gain an acquittal. It's hard (in Virginia anyway) to put on a surprise alibi defense (here, if the defense files for discovery, he must reveal alibi information, so we either get that in advance, or if no discovery is filed for, we have a hint that an alibi is coming). But occasionally there will be the unpleasant surprise, which, if it had been revealed beforehand, would have changed my view of the case.
But as Mark Bennett alluded to, I'm going to remember if you're the kind of lawyer that would rather go for the public "gotcha" than work with me to find out the truth about the case. And if that attorney practices regularly in my jurisdiction, every attorney in my office is going to be told about it.
Prosecutors have alot of discretion, and more often than not, defense attorneys are looking for the best deal for clearly guilty clients when they come knocking on my office door.
Those who play hardball are remembered at those moments.