Matter of State of New York v Andrew O., 2011 NY Slip Op 02715 (2011)
This from the Court of Appeals. In a Mental Health Law Article 10 sexual management proceeding, the Attorney General commenced a Civil Commitment proceeding against a felon convicted of a sexual offense who was nearing his release date from prison. A jury trial occurred and the State proved through clear and convincing evidence that the soon to be released felon required management in accordance with Article 10. Supreme Court, after a subsequent bench trial on the issue of a disposition, found that civil commitment, as opposed to a community based program, was appropriate.
The Court of Appeals following an affirmance by the Appellate Division reversed. This is where this post becomes relevant.
The Assistant Attorney General did the following on cross-examination:
1) The State’s attorney attacked the expert’s credibility on the basis of his religious beliefs and affiliation, among other things. For example, during cross-examination, he asked the expert, a psychologist, about his religion of Yoism, which the expert described as similar to Unitarianism; this religion’s basic tenets; and whether Yoism was based upon a historical text. Andrew O.’s counsel objected repeatedly and fruitlessly to this line of questioning [which was futal]”
2)Closing statement: “He [The Assistant AG] also warned the jurors that there “was a child out there” who would be affected by their decision, and asked rhetorically if they “want[ed] another victim to have to come in [in order] to find mental abnormality.”
Reversed. You cannot call people monsters (or insinuate it). Just leave the substance of the statement in closing vague and let the jury come to the natural conclusion on their own. There is a good chance they will. Also, you cannot go attacking experts on the religion they practice. To be honest, I still cannot believe attorneys (whether civil or criminal) are still engaging in this practice. It is every disheartening.
11 Responses
Some government lawyers (I was once a government lawyer) — especially with DA’s offices; the A.G.s Office and the U.S. Attorney — have power trip problems. (Definitely not the Corp Counsel) I’ve worked with them and I have seen it as defense counsel. Some are nice as hell.
But with the power trip ones the conduct is reinforced by the way their former colleagues — now judges — coddle and favor them.
I am not at all surprised by the above and would have expected it coming from there. I had a boss — a bureau chief — threaten to beat a witness if he did not testify the way the boss wanted him to testify. After multiple years in prison the Defendant got out because of that and other bad things done by the prosecution.
You know they show up at the office with sun glasses on in the middle of winter. Dressed real spiffy. Lots of gel.
They like to make statements during plea allocutions. “I am putting the Defendant on notice that if he does this again I am going to try the case and send him to prison” I heard one say. I was in Court actually with the guys office. I couldn’t help but blurt out: “Why don’t you try it now.”
Everyone laughed at the guy. I left real quick. They guy was going to whine.
They’re not the school yard bullies. They’re the guys that hid from the school yard bullies.
The things my eyes have seen … doctor my eyes. Can you sew them shut … A little Jackson Browne and Alice in Chains.
I can tell you that I would have had some not nice words on the record. By the way, do you love how the Government usually makes a motion in limine before the trial to prohibit speak objections?
The cross-examination could have been handled better but I think in this case the questions were fair game.
The Expert is testifying to the jury to help explain why it is that he as a psychologist believes the convicted sex offender does not suffer from a mental abnormality.
Don’t you think that if a witness is one of this religion’s co-founders the jury should be allowed to exercise their common sense when they evaluate his testimony in the jury room?
Don’t you think the tenents of the religion he founded should be there for the jury to look at?
Just because he is a psychologist does not mean he is a credible witness or that the jury cannot use their common sense to reject this guys opinion.
An expert like this puts themselves out there for this type of scrutiny; their science, metholdology, and credibiluty are all fair game.
Joseph Smith the founder of the Mormons, LDS to be politically correct, used to look thru a magic stones to find water and lost tools in upstate NY before the angel Maroni appeared to him and showed him how to read the golden plates.
I am not casting aspersions towards the Mormons or their beliefs
I am just saying, shouldn’t a good lawyer ask those questions when we are talking about a convicted sex offender going back on the streets.
any trial attorney worth her salt has impermissibly used speak objections to coach a witness or inform a judge or jury as to a fact.
He could’ve intimated it. The attorney did not have to come on out and attack the guy’s religion, or to start with the you don’t want this guy on the streets routine. Innuendo works wonders.
Urgent request for the insurer appellant’s motion for leave to court of appeals regarding LMK. Plz forward through NFP if you have it, or to me directly if you are one of the chosen few who have been provided the email address for my underground command bunker.
BTW, this was indeed a poor call by the trial judge. Impeaching based upon religion? Seriously? Did we just enact Sharia law???
what if it is acceptable in one’s religion to lie?
what if in one’s religion there is no obligation to tell the truth to those who are not entitled to it?
What if in this witness’ religion getting a person free from the confinement of oppression outweighed the obligationt to tell the truth?
Why can’t the witness’ religion go to their methodology?
Would it be fair to impeach an expert witness based upon religion in a terrorism trial?
I am not saying what was done here was done well or done with respect, but why isnt the jury entitled to hear it if done well or respectfully?
most people dont get subtely or sarcasm let alone jurors
I agree with cool breez. I am already fashioning my new cross for use against peer review doctors:
“You hold a medical degree, Dr. And yet you believe that a virgin birthed a child, and that that child subsequently died and was risen from the dead?” “And what in your medical training has led you to this belief?”
I would think that attacking a witness’s religion would not play well with most juries. Doesn’t sound like a trial tactic I would recommend to anyone.
Now maybe if a particular witness’s beliefs were relevant to some element of a cause of action or defense, as “nycoolbreez” suggested above, it might be a permissible course of inquiry. After all, some people do distort the teachings of various religions in order to rationalize criminal or obnoxious behavior. But if I were a judge I would hold a sidebar first to find out exactly where the line of questioning was going.
@Eva: To quote Archie Bunker: “Faith is when you believe things that nobody in their right mind would believe.”
But that cross-exam question you proposed is worthy of a major motion picture scene. I’d like to see Jack Nicholson as the cross-examining attorney and Kevin Spacey as the doctor on the stand.
As an aside, one might muse about the fact that our courtrooms all have the words “In God We Trust” on the wall, but the same is not permitted in public schools. I take no side either way — I just think it’s inconsistent.