Coping with recantation: Shaky testimony can benefit, burn defense

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In a criminal trial, a nervous or upset witness can forget answers to the most mundane questions.

“I’ve watched witnesses who couldn’t remember their name or the year they were born,” said Appleton defense attorney Michael E. Rudolph, a veteran of more than 200 jury trials.

While temporary memory loss regarding a minor detail may ultimately have little impact on the outcome of a case, attorneys say it’s more significant when a witness contradicts or forgets crucial testimony.

In a Sheboygan murder trial, key witnesses for the prosecution recently altered their stories on the stand, forcing the district attorney to revert back to previously recorded testimony and extend the trial.

The jury ultimately found the man guilty of first-degree intentional homicide.

But Milwaukee defense attorney Christopher L. Strohbehn said it’s not unusual to have a witness give one story in his or her initial statement and alter it later, especially if the person has a relationship with the defendant.

One of the witnesses in the Sheboygan case has a child with the man on trial.

“In those situations you have to try and expose the reason why that person is lying,” said Strohbehn, of Gimbel, Reilly, Guerin & Brown LLP.

Ideally, he recommends having an investigator or third party present whenever formal statements are taken from witnesses, to provide evidence if a person changes his or her story in court.

“In a perfect world, I’d love to have an investigator there with me taking statements and being ready for trial,” Strohbehn said. “The reality is not everyone has the resources to hire one.”

Strohbehn handled a case in which a witness contradicted her earlier statements regarding another witness’ motive to lie about an alleged sexual assault. His client was ultimately convicted.

“A young girl was brought in to support a jealously motive,” Strohbehn explained. “But she changed her story in a way that ended up implicating my client.”

Milwaukee defense lawyer John A. Birdsall tries to anticipate contradictory testimony and navigate witnesses toward the truth.

In one murder trial he called four witnesses who knew the victims and all gave different accounts of what they saw.

But Birdsall tried to emphasize the one point all the testimony had in common.

“The guts of what they said was the same, that other people admitted to shooting first and therefore my client was innocent,” he said.

Simplify the questions

Lake Geneva defense attorney James P. Martin said sometimes asking simple questions can get witnesses thinking clearly when they turn to “Jell-O.”

A former assistant district attorney, Martin asks questions like “what color is the sky” to put a witness at ease if he or she gets confused about the facts or recants earlier testimony.

But he said the most important thing is for attorneys to focus on whatever the witness says and not what they want to hear.

“[If] you are not listening to a witness, it can lead to a situation where you get burned on cross examination,” he said.

Rudolph, of Rudolph Law Office, said that situations where witnesses alter their testimony can be difficult to anticipate.

He defended a vehicular homicide case in which the last witness for the state unexpectedly offered testimony about the speed of a truck involved in the incident that cleared his client in the eyes of jurors.

“The witness admitted that there were almost 100 extra feet of skid marks which showed that the semi that caused the death was probably going an additional 20 to 30 miles per hour faster than originally evaluated,” Rudolph said. “It completely changed the case and made it clear the defendant was not guilty.”

He suggested that defense attorneys need to be flexible in their expectations of witnesses, because there are going to be surprises, both good and bad.

“I think a good trial lawyer needs to be able to react to the information as it comes,” he said. “The ones that write everything down won’t or can’t react as flexibly as ones who think well on their feet.”