Review: PLEASE DON'T KILL WITNESSES TO PREVENT RETRIAL TESTIMONY!
Rating: 2 out of 5
Date: 08 3, 2011
For some readers it may be a bit picky, but when you write a story which is based upon a premise that is totally wrong, it bugs those of us who know better, tainting the book from that point forward.  When it is such a fundamental basis for the plot, and such an obvious error, it's really hard to suspend reality as the glaring mistake keeps popping up again, and again and again.I don't think it is a spoiler for me to comment upon the "fact" that the female character, Pam, was fleeing for her life because she was witness to a murder by a hit man, that she had previously testified at his murder trial, that he was convicted but the guilty verdict had been overturned on "a technicality" (we are never told what that was), and that there is going to be a retrial at which Pam will have to testify all over again.  The hit man doesn't want her to testify again, and thinks that if he can kill her before the retrial, he will not be convicted for the original hit.  Pam, her lawyer, the police and everyone else in the book seem to be operating under this same assumption.The entire basis for this story, trying to kill her to prevent her testifying at a retrial and therefore keeping the hit man from going to jail for the initial murder, sounds like a truly dangerous, frightening possibility.  However, the author has blatantly disregarded one of the most important things every young, public defender-wannabe learns in law school:If a witness has testified under oath in a prior judicial proceeding, and if the same defendant had a meaningful opportunity to fully cross-examine this witness in the prior court proceeding, then IF THE WITNESS BECOMES "UNAVAILABLE" (including beyond the reach of a US subpoena, incapacitated by an illness, or, gee, DEAD!), then that witness' prior sworn testimony IS 100% ADMISSIBLE AGAINST THAT DEFENDANT IN A SUBSEQUENT JUDICIAL PROCEEDING, like, for example, A RETRIAL!  The prior testimony will be read into evidence in the retrial, and the jury will be instructed to accept that prior testimony as if the witness had been present and had given said testimony live in court.There is no point to killing Pam, or to keeping her from testifying in any way, as the hit man already had his day in court against her!  Only the verdict in the first trial was "thrown out," not any of the testimony in the case.  All of the evidence from the first trial, including witness testimony, documents, scientific tests, etc., are still 100% valid (except insofar as the appellate court ruled on a specific item of evidence not being admissible).  And if the witness is present to testify in the retrial, if she were to contradict her testimony from the first trial, it could be used to impeach her retrial testimony during the retrial (i.e., destroy her credibility for the retrial jury by showing how she has changed her story without justification - was she lying THEN, or is she lying NOW?).So, if you are a stupid hit man trying to kill a witness who has already given sworn testimony against you, and you (through your lawyer) fully cross-examined that witness that first time, DO NOT KILL THE WITNESS TO PREVENT THEM FROM TESTIFYING AT A RETRIAL - you'll only be adding an unnecessary Murder One charge to your resume.I mean, really, how would our criminal justice system survive if the bad guys could just go around killing off witnesses to prevent them from testifying against them at a retrial?  Criminals would set themselves up for a mistrial all along, just so that they could force a retrial before which the key witnesses against them would mysteriously die one by one, like an Agatha Christie tale.  It's not hard to slip a Mickey into your lawyer's water at the counsel table - sleeping through the trial would be definite grounds for a mistrial.  Or plant evidence that a juror misbehaved during the trial, another solid basis for a retrial.What witness would ever agree to testify in a murder case if the premise in this book was plausible?  Killing them before their initial trial testimony, yes, that could keep the bad guy from going to prison, which is why the witnesses in serious "mob" crimes are often hidden somewhere safe until they testify at trial. Once witnesses have testified under oath, however, that testimony will never just "go away," and it will always be potentially useable in a subsequent legal proceeding, for different purposes depending upon the nature of that subsequent proceeding.  It's the ultimate "permanent record."For example, if Joe Witness were to testify at the trial of a purse snatcher, describing how he ran down the bad guy for half a mile, leaping over benches and around moving cars, then that testimony could be used by an employer in a case against Joe Witness, who had been collecting worker's comp for a back injury suffered years before on the job, and that Joe had claimed kept him in constant pain and virtually wheelchair-bound.  Or, if Joe Witness were to file a claim against a driver for hitting him while he ran down said purse snatcher, the driver could then use Joe's testimony at the criminal trial to prove that Joe had leaped out of nowhere and that it was Joe's fault he was hit, or at least it was not the driver's.  And Joe Witness would be unable to blatantly contradict his prior testimony, as it was "the truth, the whole truth, and nothing but the truth. So help him [insert appropriate higher power here]."Just looking out for all the innocent murder witnesses out there.  Now, if the hit man wants to kill the witness out of revenge after he is convicted, that's another story . . . .