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Chaos of McDonnell Trial Likely to Lead to Tainted Testimony

written by Paul A. Prados July 29, 2014

In keeping with the speedy reputation of the court the McDonnell trial has progressed past Jury selection and opening statements and witnesses have started to take the stand.

mcdonnell on way in CBS6

CBS6 Richmond

Already there are signs that much of the witness testimony will be tainted by the time many of the remaining witnesses take the stand.

Drama from the witness stand

CBS6 television reporter Joe St. George is (nearly) live-tweeting the trial and reports to us this afternoon that the prosecution’s second witness, Cailin McDonnell Young broke down in tears on the stand.  Shortly thereafter St. George relates this fact to Chris Young, Cailin’s husband, out in the hallway where he was waiting to testify, and that Mr. Young looked concerned.

How is Chris Young going to testify now that he knows this?

Purpose of a rule on witnesses

In most trials the court will issue what is called a rule on witnesses.  A rule on witnesses forces witnesses to leave the courtroom, and prohibits those witnesses from discussing their testimony with anyone, as long as they may be called to testify.  A rule on witnesses does not exclude the parties to the case from being present for the entire proceedings and does not prohibit counsel from being present.  The rule on witnesses must be given to each witness for it to be effective.  Usually the witnesses are gathered at the beginning of a trial and the rule is issued.

The purpose of the rule on witnesses is to assure the most honest and complete testimony from each witness by limiting false memories (fabrications), lies, and omissions from witness’ testimony.

I cannot find a reporter that acknowledges a rule on witnesses was issued, but I also cannot imagine a situation like this in which one would not be issued.

Policing a rule on witnesses will be nearly impossible

This trial is set to last over a month.  There are over 100 witnesses.  Most of the defense witnesses are not required to appear until mid August.  Not having appeared, arguably those witnesses are not subject to a rule on witnesses until they do appear and are ordered by Judge Spencer.  Media coverage will remain significant week after week and the vast majority of witnesses are involved politically and avid consumers of news.  In this case we will likely have dozens of witnesses who will have knowledge of prior proceedings before entering the courtroom.

There are a few possibilities that could result from numerous witnesses having been tainted.  In the most extreme (and unlikely) circumstances a mistrial will be declared.  If we are very lucky, counsel will ignore the fact that witnesses may be aware of the nature of proceedings by the time they arrive on the stand.  The most likely scenario is that witnesses will begin to be questioned on the stand about what they understand is the nature of the trial so far, and how that makes them feel.  Wow, will that be boring.

 

And yes, prosecutors made a young bride cry about her wedding day.

Chaos of McDonnell Trial Likely to Lead to Tainted Testimony was last modified: July 29th, 2014 by Paul A. Prados
Governor Bob McDonnellMaureen McDonnell
19 comments
Paul A. Prados

Having fallen prey to the allure of DC politics in college, Paul escaped only to make the similar judgment error of going to law school. Trained at the side of a sitting state Senator, Paul is now the owner of a law firm in Reston, Virginia. In previous years Paul built a base of support on Twitter @ppradoslaw and founded and wrote for a blog on Virginia politics and legal procedure northernvirginialawyer.blogspot.com. As a pro-life libertarian, Paul finds himself at home within the broader conservative movement, and believes in a big tent Republican Party. In May 2016 Paul was elected as Chairman of the 11th Congressional District Republican Committee. Paul resides in western Fairfax County with his wife and children.

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