Would you allow this testimony? (Part I)

The following is a short story about a trial with a not-too-hidden analogy. In the trial, the judge is asked whether certain testimony will be allowed to raise a reasonable doubt about the guilt of a defendant. The testimony proposed, to my knowledge, has never been permitted in a criminal trial, but then I don't know of any case where anyone has ever tried to have it admitted. I am asking you to sit in the place of the judge in the case and give me your opinion as to whether the case should be admitted.

Judge Pohler sat back in his chair almost disappearing behind the large oak bench spread before him, removed his wire-framed glasses and rubbed his aching eyes. He had been up most of the previous night working on his rulings on the pre-trial motions in this second degree murder case, and found it difficult to remain focused on the opening statements. The trial was expected to be relatively short for a capital trial due the presence of three eyewitnesses to the murder.

According to the charges, William Robert Johanssen, a well-liked local resident, with only a couple of shopliftings on his slim criminal record, had killed 19 year old Mary Kate Evans on the cliffs of an oceanfront park approximately one year ago, and three members of a local bird-watching group had witnessed the murder. Even with three eyewitnesses, the case presented several problems for the prosecution. The first and most formidable problem resulted from the fact that the victim’s body had never been found. Mr. Johanssen had reportedly killed her on the cliff top and thrown the body over the edge of the cliff into the rocky waters below. Thus, before getting a conviction, the assistant district attorney on the case had to convince the jury that a murder had been committed without the body to establish that the victim was actually dead. Of course, such difficulties had been overcome in the past, and the judge did not view this as an insurmountable problem in light of the three, apparently unimpeachable, eyewitnesses.

The assistant district attorney, Ms. Jaclyn Wilson, an attractive woman in her early forties with her brunette hair pulled back into a long ponytail that extended halfway down her back, was summing up the evidence she expected to present to the jury which sat in various states of attention. The judge did not expect anything unusual to happen.

"All three witnesses," assistant district attorney continued, "will testify that the defendant rushed toward the victim yelling, quote, 'I’m gonna’ kill you,' unquote, grabbed her by the head and twisted her neck at a gruesome angle. The witnesses will all testify that they heard a loud snap as he twisted young Ms. Evans’ neck, and that he then picked up the limp, lifeless body and dashed it over the edge of the cliff into the churning waters of the Atlantic Ocean. The witnesses will all testify that they had good views of the defendant at the time of the murder, and he even ran into one of them as he fled the scene. Moreover, all three of the witnesses in this close community knew the defendant personally, and can positively identify the defendant as the murderer."

"All of this evidence will be presented to you, and it will be your obligation to review this evidence and, if you are convinced by a standard called ‘beyond a reasonable doubt’ – a standard of proof that will be explained to you in full in the jury instructions you will receive at the end of the trial -- that the defendant committed this murder, you should convict this man. Thank you."

Ms. Wilson’s opening statement had been devastating. The jury and the audience in the crowded courtroom murmured back and forth as Ms. Wilson returned to her seat with a muted look of triumph on her face. If she could prove what she claimed, there was no doubt that William Robert Johanssen would be convicted of second degree murder. The defense attorney, a young man in an oversized, blue double-breasted suit, quickly glanced over his yellow legal pad, patted his client on the hand and approached the podium. Brushing back a loose strand of hair that had fallen across his pale forehead, he addressed the court.

"Your honor, ladies and gentlemen of the jury, my name is Albert Dodd, and I represent the defendant William Robert Johanssen –- 'Billy' as he is known to his friends -- who you see sitting to my right. Obviously, you understand that Ms. Wilson’s statements do not constitute evidence, but merely present the state’s summation of its case against my client. If Ms. Wilson is able to prove that three witnesses actually saw my client, Billy, murder young Ms. Evans beyond a reasonable doubt, than you should convict him of murder in the second degree." The crowd murmured again. "However, that is the question, isn’t it? Did the witnesses actually see what they now claim to have seen? Yes, testimony will be adduced that all three are well-respected members of the community with excellent reputations, and my client will not dispute their forthrightness. Billy acknowledges that these three witnesses believe that they saw him kill Ms. Evans. But did they really?

"Our defense is very simple –- the witnesses that claim to have seen the murder were suffering from a mass hallucination."

The courtoom erupted at the unanticipated turn of the trial. Ms. Wilson sprang to her feet screaming, "Objection, your honor!" Judge Pohler grabbed his gavel and began to bang it on the bench calling repeatedly for order.

When the din had quieted down, the judge lay down his gavel and called for the attorneys to approach the bench. When the two had made their way to the bench, he leaned forward, turned off his microphone, looked the defense attorney directly in the eye, and said, "Mr. Dodd, what is this nonsense? Mass hallucinations?! Tell me why I shouldn’t declare a mistrial right here and now and not sanction you $1,000 for this impossible claim."

"Well, your honor," the counselor began, "it is a fact of modern psychology that people can suffer from hallucinations, and since I don’t believe my client committed the murder, it must have been a mass hallucination that caused the witnesses to see him commit the murder. I intend to produce expert witnesses on my part who will testify that these three witnesses suffered a concurrent hallucination that caused them to see Mr. Johanssen commit the murder when, in fact, he did not."

The judge was angry, yet knowing that the jury would be able to hear him if he began to yell at Mr. Dodd, he restrained himself. Instead, he asked in a low, accusing tone: "Sir, accepting for a moment your claim that people hallucinate –- a claim that this court knows to be true from prior commitment hearing I have held -- what evidence do you have that the three witnesses to this murder suffered a mass hallucination?"

"Actually, your honor," Mr. Dodd continued, "by the very nature of mass hallucinations, there cannot be any direct evidence of a hallucination. By definition a hallucination is seeing or hearing something that really isn’t there. But we can establish hallucinations based upon the surrounding facts. For example, if a widow sees her dead husband in the next room having coffee, we know she is hallucinating because her dead husband cannot really be there. If a man hears the voice of a friend when that friend is nowhere around, we know he is hallucinating. Thus, while I cannot produce direct evidence of a hallucination, we can conclude that a person is having hallucinations based upon the probability that what they see or hear is real.

"Look at what we have in this case, your honor. We have three witnesses who claim to have seen a murder when we cannot even find a body. We have a defendant who has a minimal criminal history, and who I am personally convinced would never have killed anyone. The three witnesses have unimpeachable reputations and are all very convinced that they really saw my client kill this woman. If, as I believe, my client is innocent, the only possible explanation for the fact that these otherwise qualified witnesses claim to have seen the murder is that they experienced a mass hallucination. I intend to produce expert witnesses who will testify that that is a real possibility given the evidence in this case."

The judge sat back for a moment and considered Mr. Dodd’s statements. He wondered if he was mad, or whether there was really any sense at all in Mr. Dodd’s position that he just wasn’t seeing. He turned to the assistant district attorney and said, "Ms. Wilson, what are your thoughts on this matter?"

"Your honor, with all due respect to Mr. Dodd who I consider to be a very bright and able attorney, this is nothing more than an attempt to divert us from the real inquiry. What he is doing is trying to raise doubts about the nature of direct testimony. We have three witnesses who are, as he admits, of unimpeachable reputations. They have no cause to lie about what they saw, and they are all very clear about what they saw. It appears that his only reason for doubting their testimony is his personal belief that his client is innocent. But that shouldn’t be enough to forward. If he is able to raise questions about whether the witnesses had a mass hallucination based solely on his own conviction that his client didn’t do it, where does it stop?

"Your honor," she continued, "I am also familiar with hallucinations in trial courts having handled a few of the commitment hearings you earlier mentioned. In those cases, we had clear evidence that the respondent who we were seeking to commit was hearing or seeing things that didn’t happen based on eyewitnesses testifying about the true state of affairs and diagnosis of the respondent from competent psychologists. What Mr. Dodd is suggesting is that where three witnesses all witness the same event, and where no other party other than the accused claims that they didn’t see what the witnesses say they saw, that somehow it is the defendant who is seeing reality and the three, independent witnesses who are having a mass hallucination. These witnesses have not been evaluated by psychiatrists to see if they have been having hallucinations and there are no otherwise disinterested witnesses who will say that they were hallucinating in this circumstance."

Ms. Wilson took in a breath, and finished, "If Mr. Dodd is able to submit this evidence under these facts, you will be giving carte blanch to all defendants to claim that the witnesses, no matter how many or how qualified, are all suffering from a mass hallucination based solely on the claim of the defendant that they must have been seeing things. That, your honor, would devastate the burden of proof in criminal cases by adding an entirely new dimension to the idea of 'beyond a reasonable doubt'."

Mr. Dodd jumped in, "Your honor, with all due respect, there are only three possibilities for the witnesses seeing Billy kill Ms. Evans: (1) he did it and they witnessed it, (2) he didn’t do it and they are lying about witnessing it, and (3) he didn’t do it but they imagined he did it. As I have said, I am convinced that Billy didn’t commit the murder, and despite my efforts at deposition to come up with motives for lying, the witnesses appear unimpeachable. Thus, it must be that they are hallucinating. I have experts prepared to testify that will establish that a larger percentage of people -- sane everyday people –- experience hallucinations than you would expect. They will also testify that hallucinations are more likely to occur in certain circumstances, and one of these circumstances, grief, is present in the present case. Moreover, even though the witnesses have not been evaluated, the evidence will show that the witnesses have a background of hallucinations."

The judge looked sharply at Mr. Dodd. "You have evidence that the witnesses experienced prior hallucinations?"

Mr. Dodd looked over his notes. "Yes, your honor, I believe that I do. For example, in 2000, the first witness claims to have witnessed a vision of the Virgin Mary. Since it is obvious that he didn’t really see the Virgin Mary, he has a history of hallucinations. Likewise, the second witness claims to have seen a UFO in 1987. Obviously, she is having difficulty discerning reality."

At first, the judge sat looking at his desk. Slowly, a wry smile crept across his face. He looked up at Mr. Dodd and asked: "Mr. Dodd, I may be able to agree that people who see UFOs are hallucinating, but do you really expect me to rule that everyone who has had a religious experience is hallucinating? After all, what you are suggesting is that because some sane people have hallucinations, than I should allow evidence into a case that witnesses may be suffering hallucinations if the circumstances are right. That alone would not justify my ruling, unless I have a background that these witnesses have suffered hallucinations in the past. But you are suggesting that the background event that would justify the introduction of such evidence at all and establish that a person has a history of hallucinations can be a religious experience. Are you expecting me to rule in your favor on that point?"

Mr. Dodd looked at the judge and said in a stern, unwavering tone, "of course."

Okay, you're now Judge Pohler. How would you rule? I will give my analysis in a couple of days.

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Cross-blogged at Apologia Christi.