Would Downey
Be allowed to testify that Kendrick ordered a code red? Isn’t that hearsay considering Kendrick wasn’t in the room?
shareCaffee and Galloway thought he was in the room when the order was given. That's when they caught him in a lie.
shareWhen I say “in the room” I mean the courtroom. What I’m saying is Downey is testifying what someone else said, isn’t that hearsay?
shareIt was in the courtroom. Ross asked him how he could be in his room at 1620 when he didn't return until 1645. He started to panic and Dawson told him to answer the question. Afterwards the lawyers were talking about how they didn't know he wasn't there when Kendrick gave the order.
shareThat’s not what I’m asking. Earlier Downey testified that Kendrick ordered him to give Santiago a code red, isn’t that hearsay?
shareIt was definitely hearsay. What I'm sayin is that the lawyers didn't know it was hearsay. The lawyers screwed up and didn't check their facts. Downey and Dawson kept saying Kendrick ordered the code red so the lawyers assumed he gave it to both of them. Ross brought it out in open court and discredited Downey's testimony.
shareOverruled! That would make his testimony grounds to be stricken from the record, and would also be a violation of disclosure by the prosecutor.
shareThe prosecutor didn't fail to disclose anything. It was the defense that screwed up.
shareObjection! Thats pretty important information that needs to be disclosed. They never mentioned the flat tire incident, or their wheresabouts. Earlier in the movie, the prosecutor even stipulated that no one was in the room with Kendrick besides Dawson and Downey (after ordering the men not to harm Santiago), in agreement with Kaffee. Your honor, I move for a mistrial.
shareObjection overrruled.
Ross (Kevin Bacon / the prosecutor) was only using information already provided in discovery and/or available to the defense, to wit, the switch log that showed Downey at post 39 until 1600 hours.
What I’m saying is, Ross could’ve just noticed that Downey was at least a 15 minute drive away from the barracks. That left very little room for error during travel given Downey’s claiming he was in the barracks at 1620 hours.
Ross may not have even known about the flat tire. Downey volunteered it when Ross asked if he’d ever walked the path.
In short, there’s every possibility that Ross was just fishing, figuring Downey might not have actually been at the barracks by 1620 hours. When Downey mentioned the flat, Ross knew he had Downey dead to rights and, like a good lawyer, stretched out the cross-exam to trap his prey.
Honestly, Ross was shown throughout the film to be very competent AND very ethical, basically a “good guy on the wrong side.” If he already had the info about the jeep, there’s no way he’d have kept that information from the defense.
That’s my opinion, though. The film makes it kind of ambiguous. Admittedly, it doesn’t show Ross surprised at the disclosure that Downey had walked to the barracks, but a good lawyer wouldn’t allow such a golden tidbit to register on his face.
Judge for yourselves:
https://youtu.be/GwoW2G3Cw-A
One last point: It’s not Ross’s fault that Downey didn’t share the truth with his own lawyers. I don’t know about military court martials, but in civilian criminal trials, the prosecutors rarely have any statements direct from the defendants. They have to listen carefully to defendants’ direct testimony for inconsistencies to exploit.
That’s what I like to think Ross did.
Youre opinion is completely WRONG! Move to strike! Ross isn't fishing. He knows damn well where he is going with his line of questioning and it's a complete surprise to Kaffee which is why he write's
"where is he going with this".
I'd like to call Marisa Tomei to the stand - https://www.youtube.com/watch?v=uaoymfY9Kw0
Reasonable minds can differ.
I've seen it myself on many occasions in real life. The prosecution doesn't know what defendants are going to say once they take the stand, so they have to be prepared to spot and prove inconsistencies on short notice.
I just don't think Ross was ever portrayed as the kind of guy who'd hide evidence from Kaffee. If there was a log showing the jeep flat tire, Kaffee would've had equal access to it. It's not Ross's fault that Kaffee failed to connect the dots.
Trotter, from "My Cousin Vinny," was a bit sneakier, so I can buy that he'd hide Wilbur (the tire mark expert) just because he knew he'd get away with it. But in the end, even Trotter was happy enough to do the right thing when it counted.
Ross was portrayed as a straight shooter. This was just writers ignoring all law and the character to create tension and stack the odds. But legally, the OP is correct and that scene would cause a mistrial because there is no way everything that happened to Downey leading up to that day would be unknown to the defense on the day of the fucking trial.
shareNah, I still disagree, because, like I said, I've seen this happen in real courtrooms. Defendants lie to their attorneys. The attorneys, in reliance on their client's lies, fail to follow up on possible rebuttal evidence.
THAT's how "everything that happened to Downey leading up to that day [COULD] be unknown to the defense on the day of the fucking trial." Kaffee and Galloway made the mistake of believing their client without follow-up investigation.
It was a mistake, but a believable mistake.
Ross, being an advocate for the government, investigated thoroughly and spotted the switch log anomaly: Downey had only 20 minutes to make a 15 minute trip, so if there were ANY delay, Downey couldn't have been there to meet Kendrick.
That's just what a good advocate does -- it happens.
In the famous Max Steuer pajama factory case, Steuer noticed that the key witness's testimony seemed rehearsed and had her repeat it verbatim to prove it.
And then there's the famous Lincoln case where a witness claimed to he could see clearly at night. Confronted with that fact, the witness claimed there was a full moon overhead.
Without missing a beat, Lincoln produced a blue book to show the witness, asking him whether he realized that year's almanac proved there was NO MOON that night. The witness, thus confronted, confessed on the stand to being the murderer himself.
POINT ONE: Lincoln didn't know 'til the guy took the stand that he'd claim there was a full moon that night.
POINT TWO: That year's almanac had a RED cover. Lincoln's blue book was a bluff. It worked.
You're isolated the scene in a vacuum. On two separate occasions, Ross stipulated no one was in the barracks with Downey and Dawson with Kendrick, and he also made Kaffee aware of evidence because it was part of discovery. As soon as the line of questioning went to a flat tire, a good lawyer would object, make the judge aware he wasn't presented with this information, none of it was brought up in pre-trial, and ask for a continuance for time to prepare. On the prosecutions side, if he decided to go forward and present this new information at trial, he would know he's risking a mistrial for not bringing it up in pre-trial discovery. Doing it the way the movie did, is a gross miscarriage of justice, like Bill Cosby. It would end up in a mistrial or be overturned through appeal.
Good points, all, but again, it DOES happen, because it DID happen in real life with Steuer and Lincoln (by that I mean Ross could've learned about the flat tire when Downey blurted it out)
BUT, assuming you're right and Ross DID know about it, he would've learned about it from the same discovery available to Kaffee and Galloway (seems like things like that get logged, especially at a place like Guantanamo).
Now, if Kaffee and Galloway never noticed the flat tire, (A) it's not Ross's fault and (B) it's not grounds for mistrial.
Also, an objection would likely be overruled at that exact moment, because Ross is eliciting the information from Galloway's own client.
It's not "unfair surprise" if the defendant himself is misleading his lawyers.
I should admit at this point that I, personally, have been in this situation myself. My clients would tell me a fully consistent, credible story, and say something else entirely on the stand.
The worst was a burglary case where the client insisted up and down that he'd never been in the house, it was mistaken identity, etc. Then, after the owners identified him in court, he took the stand and, FOR THE VERY FIRST TIME, admitted he WAS in the house but (this is 100% true) was a coprophiliac who was only looking for poop to eat.
See, if he'd TOLD me that beforehand, I could've told him NOT to take the stand because it's a STUPID DEFENSE. Any one with experience in poop-eating should know that you FLUSH poop in houses, you don't save it.
He got convicted.
There's really no reason to strike it from the record when, a couple of questions later, he admitted that he didn't actually hear himself.
Does this count as "disclosure" by the prosecution? I thought the prosecution was required to disclose relevant documents. Were there documents involved?
No indication of relevant documents involved.
In my ongoing argument with NGMI above, I point out that it's more a case of Downey not disclosing to Galloway rather than Ross not disclosing to Kaffee.
You don't get to object when your client's the one who's lying to you.
I'm pretty sure it is hearsay because Downey did not hear it from Kendrick. Repeating something that you heard from a third party is hearsay.
The fact that Kendrick was not in the room when Downey testified does not make it hearsay. They could always bring Kendrick back to the stand to verify his statement.