Preparing prospective witnesses in the Michael Jackson case
By Jonna M. Spilbor
Special to CNN.com
(FindLaw) -- The trial of Michael Jackson will be unusual because the defendant is a celebrity. It will also be unusual because the prosecution's star witness -- the closest thing it has to a "smoking gun" -- is just a kid.
This boy, who is now 15 years old, contends that two years ago, Jackson repeatedly sexually assaulted him. Apparently, the prosecution will present him as the only eyewitness to the alleged abuse -- and therefore, his testimony could not be more crucial.
Last week, Judge Rodney S. Melville denied prosecutors' request to bar the public from the courtroom during this testimony. In weeks, then, the accuser will tell his story, in front of Jackson, to a packed courtroom of unfamiliar faces.
Jury selection began on Monday, January 31. The process is expected to continue for several weeks. Doubtless, the fact that the accuser must confront Jackson in court will play a role in defense attorneys' questions to prospective jurors, and in their choice of which jurors to strike.
Was the judge's ruling correct? I will argue that it was.
How will the fact that the star witness is a child affect the way defense attorneys question jurors? As a defense attorney whose experience has included child witnesses, I will explain what considerations may be going through the mind of defense lawyers as this process occurs.
Was the judge right?
First, let's look at the judge's ruling.
As noted in Jackson's opposition, Jackson -- like every criminal defendant -- has a right, under the U.S. Constitution, and the California Constitution, to "confront" his accuser in a public trial. However, the Supreme Court has held that, under some circumstances, this right can be compromised when child sex abuse victims testify, on the ground that they may find it too traumatic and terrifying to face their accuser.
Accordingly, the California Penal Code provides that, in any criminal proceeding in which the defendant is charged with certain sex offenses against a minor under the age of 16 years, "the court shall, upon motion of the prosecuting attorney, conduct a hearing to determine whether the testimony of a minor shall be closed to the public..." And that is exactly what Judge Melville did.
Here, the prosecution said closure was necessary was to "preserve the witness['s] anonymity, and allow [him] to testify about sensitive sexual issues without a courtroom packed with reporters, sketch artists, and zealous fans of defendant." But these arguments are not persuasive.
First, the accuser is no longer truly anonymous. His name can easily be found on the Internet, and through his mother, he agreed to appear in a 2003 documentary entitled "Living with Michael Jackson." (There, he appeared quite comfortable, resting his head on Jackson's shoulder, while residing at his Neverland Ranch.)
Second, the suggestion that the witness will be unacceptably traumatized by having to testify in front of strangers is not in line with the facts. He is a teenager, not a young child. And, as the Jackson defense has pointed out, he has testified previously and extensively, before the grand jury, and (also under oath) in depositions.
Moreover, the details of his grand jury testimony were leaked to ABC News and recently disclosed, in part, on a number of its news shows -- meaning that the public already knows the essence of his story, and he knows that the public knows.
Under the circumstances, while it likely will still be somewhat traumatic for the accuser to testify in an open courtroom with the public present, the judge still made the right decision to require him to do so.
The accuser's testimony, if believed beyond a reasonable doubt, will put Jackson in prison for years. Jackson is entitled to ask that the accuser believe in his own claims strongly enough to look Jackson in the eye, and state them publicly, for all the world to hear, and for the jury to consider.
The rights of the defense
District Attorney Tom Sneddon complains, in his filings, that Jackson's defense team wants to keep the court open so that "'seasoned' defense lawyers [can] humiliate and attempt to destroy [the accuser] in public when [he] takes the witness stand."
Whether or not he's right, there is absolutely nothing wrong with that defense strategy.
To win his case, Jackson's defense must show that the accuser is what they say he is: A "flat out liar" with "no credibility" who has concocted the whole sordid tale, at his mother's urging, in hopes of extracting millions of dollars. To prove the accuser a liar, Jackson's attorneys are entitled to -- indeed, they must -- cross-examine him harshly.
(Notably, there seems to be strong factual support for the claim that the accuser may well be lying: Reportedly, the accuser and his mother made no such claim of sexual abuse until after they spoke with the very attorney who had secured an alleged multimillion dollar settlement in 1993 based on similar accusations.)
They must also tread a fine line, however. Jackson's accuser -- already sympathetic by virtue of his youth -- comes with a few added "sympathy" factors as well. Reportedly, he suffered from cancer and endured chemotherapy.
For the accuser, testifying is likely to be terrifying -- whether he is lying and thus frightened that he will be found out, or telling the truth and thus recounting very painful experiences. The jury will doubtless see the fear, and feel for the teenager.
For the defense attorney, then, cross-examination will be a minefield. On one hand, the attorney risks incurring the jury's wrath for browbeating a child if he pushes too hard. On the other hand, he risks letting the child's testimony seem more credible than it actually is, if he fails to cross-examine him as thoroughly as he possibly can.
The defense strategy with prospective jurors
For this strategy to be successful, prospective jurors must be forewarned. Otherwise, the defense risks having a child who will undoubtedly be struggling on the stand in a packed courtroom racking up sympathy votes from jurors who feel as though counsel is leading a lamb to slaughter.
The first question the pool should be asked by defense counsel, is whether they believe children are capable of lying. Anyone who doesn't think so, doesn't belong on Jackson's jury - and assuredly, that person will be dismissed.
The second question should be directed to any particular juror with children: "Has your child ever lied?" If the answer is yes, counsel should determine what punishment was meted out, whether the parent believes lying by children is ever "okay," and whether the parent feels that humiliating a child who has been caught in a lie is justified or excusable in certain situations.
I would also follow up, as a defense attorney, with a few more questions: "Does the severity of a lie dictate the severity of the punishment?" "When, if ever, would it be justified to punish a child in public for dishonesty?" These questions, too, will help probe to see if jurors will be able to tolerate the cross-examination of the young witness without holding it against the defense.
As my grandfather used to say, "a thief may rob you, but a liar will hang you." Conversely, proving one's accuser a liar can save you from a dire fate. Here, if jurors disbelieve the testimony of the prosecution's key witness, Jackson will get the acquittal he's hoping for. If they don't, he'll face prison.
With stakes this high, prospective jurors in the case must be made aware that the key witness against Jackson - though he is a child -- won't, and can't, be handled with kid gloves.
Jonna M Spilbor is a frequent guest commentator on various television news networks, where she has covered many of the nation's high-profile criminal trials. In the courtroom, she has handled hundreds of cases as a criminal defense attorney, and also served in the San Diego City Attorney's Office, Criminal Division, and the Office of the United States Attorney in the Drug Task Force and Appellate units.