When a client of mine was accused of committing rape, one of the challenges I had to deal with was the evidence from the Government’s medical expert. After reading her report I realized that she was not going to be a fair witness. She made conclusions that were clearly tilted towards the Government ’s position without the necessary foundation for that position.
I began preparing my impeachment of her by thoroughly investigating her background. She had testified in 500 trials and not once had she testified for the defense. In my research, I also discovered a study that addressed claims of rape and other sex crimes. The study had found that as many as 5% of all claims of sexual assault are false. Statistically speaking, it meant that of the 500 cases that she testified in, there should have been about 20 that were false claims. Yet, not once did she testify for the defense. She was a “hired gun,” with an agenda. I knew that I would be able to use that information and her record against her. I continued to dig into her reports. I use the plural because the government turned over two identical reports in the discovery packet. I assumed that the second copy was a mere duplicate. I took a look at the reports and concluded that they were duplicates. I set the other aside and continued to read but something bothered me. I wasn’t sure what it was however.
As I prepared for my cross examination of the medical expert, I decided that I was going to go through all the documents including both copies of the report because something continued to nag at me. I just didn’t know what it was. I decided to put the two copies side by side and compare them word for word. They were identical…except…they weren’t. One report had a different date than the other. They were identical otherwise. I didn’t know what to make of it. I decided to make enough copies of both reports because I felt that I would need them. I wasn’t quite sure why or how I would use them yet.
On day three of the trial, the Government finally called their medical expert. She waddled up to the witness stand and took her seat. She answered in practiced short sentences always turning and looking at the jury. She had been rehearsed and ready. I knew her type. I knew I had to handle her carefully. I would lead the whole time to tell my own story but also try to make her angry by casting doubt on her abilities and education. Once she starts to fight me, the jury will see through her.
When my turn came, I stood up I greeted her. She responded curtly. She was already hostile. I decided that I would have to change tactics and go for the jugular. You’re a hired gun I said. “Objection” “you get paid to testify for the Government.” “Objection” asserted the prosecutor again. “Hold on counsel” said the judge. What’s your objection counsel? “Relevance your honor” said the prosecutor “and argumentative.” “Sustained” said the judge. I had drawn blood and she was on edge and on the defensive. The jury were awake. I began by going into the number of cases she had worked and the statistics of the study. She agreed that there is some false reporting but that she had never come across a false report and never testified for the defense. Then I got to the two reports. And it was there that I definitively won the case. Generally, lawyers aren’t supposed to ask open ended questions on cross examination because you don’t want the witness to explain himself. In this case, however, I took a calculated risk. No matter what her answer is, I decided, it can’t be good to have two reports with different dates. So, I asked why? Why are there two of the same report with different dates? “Objection”…yes! I thought. The prosecutor missed it, almost as I did. What’s your objection said the judge? “We haven’t seen the second report your honor” the prosecutor replied. Defense? “Your honor this is government discovery. I got it from them,” I said, pointing at the prosecutor. “Overruled” said the judge. “Continue counsel.” Can you explain the two reports I asked. She paused composing herself and fidgeting in her chair. She explained that she wrote a report immediately after the exam but changed it a week later. The changes included conclusions that were substantially prejudicial to my client. She reluctantly explained, as I pressed her, that she removed pages from the initial report and replaced them with new pages that had been changed. I smelled blood in the water. For the next 90 minutes I destroyed her and her credibility. I made the rest of the trial about her. The jurors lost faith in the prosecution. They no longer trusted anything the prosecutors had to say and stopped listening to their witnesses.
As a result of my preparations and my thorough investigation of the witnesses and the evidence. I was able to gain the jurors trust and confidence. I was also able to destroy the credibility of the Government’s key witness and cast doubt on their entire case. My client was acquitted of all charges and won his life back.
