The Out-Lawyer's Blog

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DAMAGE ASSESSMENT

This is just a snapshot of the witness during testimony.

The Reiser son, now 8 years old, testified today after establishing his competence (most eight year old kids can qualify to testify, but unlike adults, they are not presumed competent).

Young R… unequivocally stated that he had no contact with Mom since the day she disappeared; there were no letters, phone calls, nothing whatever from her. This alone was worth the trip for the prosecution because it will make it next to impossible to persuade the jury that Nina is alive and well in Russia.

After a colloquy about unanswered correspondence with Dad, R… was allowed to recount his vision, dream or recollection (not at all clear which) that on the night Mom vanished Dad was carrying a heavy bag down the stairs that might have contained Mom.

I can’t imagine the initial impact this would have had on the jury.

I have to assume that Du Bois objected to this testimony (if it was a dream it is clearly inadmissible, for example) but made his arguments in chambers outside the presence of the jury.  If, after cross examination, it develops that the stairs testimony was just a dream I would expect the defense to request a strong admonitory instruction and – failing that – a mistrial.  I can only infer from the ruling that Judge Goodman thinks the account will qualify as the recollection of a real event.

Cross examination of a sympathetic eight year old is full of many traps.  The last thing that the defense wants to do is to elicit even more damaging testimony or – by engaging in a heavy cross examination that doesn’t shake the witness – to strengthen the testimony against the defendant.  But Du Bois can’t just let it go. 

My next post will not be until late Thursday or early Friday, after some of the dust has settled.

JBG