Samuel Goldberg has been a Massachusetts criminal defense attorney for 20 years. Prior to that, he was a New York state prosecutor. He has published various articles regarding the practice of criminal law and frequently provides legal analysis on radio and television, appearing on outlets such as the Fox News Channel, Court TV, MSNBC and The BBC Network. To speak to Sam about a criminal matter call (617) 492 3000.

ATTORNEY SAM’S TAKE ON MATTAPAN MURDER, WITNESSES AND “RATS” (Part Three)

The topic the Boston Criminal Lawyer Blog has been discussing over the past couple of days dovetails nicely with something we discussed last week.

The bottom line connection?

Credibility.

A witness’ credibility and the credibility of the attorney who calls that witness to the stand.

The jury in the Mattapan Murder trial that they are likely to receive the case next week. Prior to their deliberations, of course, there will be closing arguments by the attorneys who are trying the case.

Expect to hear the word “Rat” used any number of times when discussing the Commonwealth’s star witness, Kimani Washington (hereinafter, the “Witness”). In fact, you likely heard at least allusion to such a title during his cross-examination.

You see, in street parlance, a “rat” is someone who turns around and testifies against his co-perpetrators in return for a deal or more generous treatment. The more court-friendly term is “co-operating witness”. Such titles can bring on special privileges or penalties, depending on who is meting out such things. In a trial court, such as this, it is up to the jury to decide whether such a witness is worthy of belief.

It is in the treatment of folks like the Witness by the prosecution that brings about what I like to call “litigative Irony”. Well, one of many examples.

Generally, when a criminal defendant testifies on his own behalf, the prosecutor loves to argue to a jury that he has a “motive to lie” in his testimony. If fact, that argument has some truth to it. Certainly, the defendant has the most to win or lose at the trial. Such a potential motivation is something the jury is told it may consider when judging credibility.

Of course, the “motivation to lie” argument has one short-coming. Like so many things in the criminal justice system, it pre-supposes that the defendant is guilty. If the defendant is not guilty, then he clearly has no motivation to lie. His motivation would be to tell the truth.

Prosecutors do not like to credit that argument very much. That is, unless it applies to their own witness, such as the Witness.

This is why you will likely hear the common whine from the Commonwealth in explaining not only their witness’ credibility issues, but trying to explain making a “deal with the devil” to try to build their case.

After all, they are the Commonwealth. They are holier than either thou or me!

Therefore, they will argue that sometimes you need to use a “bad guy” to get a “bad guy” , “Who else is going to be a witness at such events” and…after all…”the defendants were the ones who did the shooting…not the Witness”. After all, that is what the Witness told us. Surely you should believe him over what your common sense might be saying when reviewing the rest of the evidence.

“But, Sam, are you saying the Commonwealth takes no safeguards to make sure such a witness is telling the truth?”

Sure they do. They often come up with an agreement with the witness. The agreement generally states that all bets are off if the witness takes the stand and lies.

“Well, then, there you go!”

Yes, but then, we get back to the oft-discussed issue of who’s truth the witness is going to tell.

“What do you mean?”

Well, certainly what the Commonwealth had in mind is that the witness would take the stand and testify to the same things he told them when the deal was made. After all, that is the “truth” they bought and paid for.

In other words, the agreement pre-suposses that the story the Witness gave back then was the truth.

But what if that was not the truth? What if it was simply a tale the witness told to avoid getting charged with a crime like murder which carries a sentence of Life in Prison without parole?

What if, for some reason, the witness takes the stand and tells the actual truth? Clearly, the Commonwealth will determine that he is now lying and so all bets are off, topped with a potential charge of perjury and intimidation of a witness!

Talk about motivation to lie…!

We will finish this four-part series in my next blog.

Contact Information