Quote of the Day - Where to elect there is but one, 'tis Hobson's choice take that or none.
Be Careful Before Issuing Your Ruling: You May Let The Defendants Go Free
You make the call.
It's not an easy one. A sixteen-year old, now 20, was gang-raped at a drunken party in Chicago in 2002. She was drunk, too, and apparently unaware of the sexual activity. The gang rape was videotaped, and at the trial of the defendants the tape was entered into evidence this past week.
Not surprisingly, the woman has not watched the tape, and she doesn't want to watch it.
But the defense attorneys want to cross-examine her, and they want her to watch the tape in order to conduct their cross-examination. They have a right to cross-examine her, but the law is unclear whether they have a right to force her to watch the tape. In fact, the issue hasn't come up before. At first the judge in the trial agreed with the defense attorneys and ordered the woman to watch the tape, and then threatened to hold her in contempt and put her in jail when she refused. The judge later reversed his position, and is now not requiring the woman to watch the tape.
Which leaves us with a rather uncomfortable situation for the inevitable appeal, should the defendants be convicted. According to this Chicago Sun Times article by Shamus Toomey, "The question will be: Were they significantly impaired in their ability to cross-examine and impeach the [woman] . . . or to bring out some fact that they couldn't otherwise get," said John Corkery, John Marshall Law School's acting dean, by the judge's ruling not to force the woman not to watch the tape.
You might be tempted to focus on the traumatic effect of watching the tape instead and to the exclusion of the Constitutional rights to confrontation and cross-examine your accuser, but don't be tempted, and don't react with a purely one-sided viewpoint. You're in the position of an appellate judge, and you have to balance these two issues. Which one do you give more weight? Who wins? Can you fashion a remedy where there are no losers?