I’ve been watching the Holly Bobo murder trial and providing instant analysis on the LawNewz Network. The first couple of days were rough. When my jaw wasn’t on the floor, I was left wondering whether I was really watching a really bad episode of the Twilight Zone (which just happened to somehow come true).
We’ve discussed the facts elsewhere. (The state’s key witness, Jason Autry, is on the stand as I write; if true, his version of events is horrific.)
Here, we’ll begin to discuss the trial from a legal standpoint. Many issues trouble me; here are a few:
(1) Leading The Witnesses
This is a biggie.
In the Bobo trial, prosecutors have been leading MANY witnesses through their direct examinations, including, but not limited to, the victim’s brother, some of the responding police officers, and the defendant’s ex-girlfriend. Even key witness Jason Autry needed to be led through his previous conversations with prosecutors about having to tell the truth.
These critical witnesses should be testifying without being force-fed by the state.
It’s been so blatant — and, in my opinion, so bad — that the prosecutors themselves might as well get up on the stand themselves and testify.
Or, perhaps the state should just all-out shovel words into the mouths of the witnesses by preparing scripts. The latter would at least be an obvious, see-through way to question the credibility of the state’s case.
Why even have witnesses? (Yes, that’s a sarcastic question.)
Under the Tennessee Rules of Evidence, Rule 611 states:
Leading questions should not be used on the direct examination of a witness except as may be necessary to develop the witness’s testimony. Leading questions should be permitted on cross-examination.
In most jurisdictions, the exception to “develop” testimony on direct examination usually involves really obvious situations where a witness is stuck and needs a little prod to grasp what the attorney is getting at. For instance, an attorney may ask, “what did you see,” and then “what was he wearing?” An attorney may then ask, “was he wearing a red tie?” — and even that would likely result in an objection.
The problem with Tennessee Rule 611 is that it contains a wishy-washy, “should not” standard. It gives prosecutors an inch. In the Bobo trial, prosecutors are taking foot after foot after foot.
A review of Tennessee appeals decisions reveals that the practice of leading witnesses on direct examination seems to happen a lot in that state and rarely ever lands a prosecutor in trouble.
Is there any way, then, to enforce better questioning? Rule 611 also states, with emphases added:
The court shall exercise appropriate control over the presentation of evidence and conduct of the trial when necessary to avoid abuse by counsel.
That sounds innocent enough, but Tennessee appeals courts have interpreted Rule 611 to make it almost pointless.
Rule 611’s “appropriate control” standard for the judiciary has been interpreted as follows: the court has “wide discretion in controlling leading questions.”
Talk about construing a rule to the point where it’s almost pointless! If a court has “wide discretion,” how can attorneys count on the judge to maintain “appropriate control” over opposing counsel? Clearer rules would allow appropriate control.
Though my research has not been exhaustive, I’m struggling to locate a Tennessee appellate decision which boldly attempts to put a stop to witness leading.
Tennessee appeals courts review leading questions under the following two-step inquiry. The courts must find (1) a clear abuse of discretion by the trial judge that (2) results in manifest prejudice to the defendant. If the appeals court does not find both factors, it will “not interfere with the trial court’s exercise of its discretion on matters pertaining to the examination of witnesses.”
That two-pronged standard is itself a joke when read in conjunction with other case law. It’s really hard for a judge to get in trouble for “abusing” his or her discretion when he or she has “wide discretion” in the first place.
Tennessee’s highest court has at least recognized the problem.
“If leading questions are to be indiscriminately permitted, the Rule is emasculated and should be abolished.”
Yes, indeed. The rule prohibiting leading a witness has been neutered, and the state’s high court is speaking with a forked tongue by both noticing the problem and failing to reverse and remand cases back to trial where it happens.
Here’s why this issue is so important.
From a factual perspective, the defendant’s ex-girlfriend admitted to the defense that investigators threatened to take away her child if they believed she was an unfit mother and told her she had to tell the truth about Holly Bobo. That may have been a threat. The witness, who dropped many bombshells about defendant Zachary Adams, had a reason to go along with the state’s narrative: she wanted to keep her child. This is precisely why the state should NOT be allowed under Rule 611 to put words in her mouth. She has a very good reason to sit there and agree with everything — anything — the state forces her to say.
From a legal perspective, the state has the burden of proof, and the defendant is innocent unless and until the state can prove him guilty beyond a reasonable doubt. The state is supposed to prove its case without spoon-feeding the witnesses its own theories. The jury is there to determine the facts, and the jury can only do so by looking the witness in the eyes and examining the demeanor, tone, bias, and words of the witness. If the witness is evasive, that’s important. If the witness can’t remember, that’s important. If the witness changes his or her story, is fidgety, forgets details, confuses dates, flinches, spaces out, cries, took careful notes, is assertive, passive, calm, pointed, specific, detailed, determined, or articulate, those things are all important. The witness, not the attorney, is the one who takes an oath to tell the truth. That’s why the witness, not the attorney, needs to testify on direct examination. Without the witness telling the story, the jury can’t determine the truth. If the jury can’t tell the truth, the trial isn’t fair. If the attorney is the one doing the talking on direct examination, the defendant cannot “be confronted with the witnesses against him” under the Sixth Amendment.
(Of course, this analysis applies to direct examination. It’s perfectly allowable under the rules for a witness to be led on cross-examination. The point of leading a witness on cross is to force the witness to admit facts he or she may be trying to dance around or hide during direct examination.)
(2) Refreshing The Witness’s Memory
Let’s next examine the evidentiary dumpster fire which resulted from the defense’s attempt to refresh the memory of witness Karen Bobo, Holly’s mother, about whether someone knew her children:
WITNESS: “I’m not sure. Do you have that where I can see that? I don’t remember making that statement.”
DEFENSE: “Okay, well, I’m happy to pass this up.”
JUDGE: (Difficult to hear; but it appears the judge consents to the defense approaching the witness.)
PROSECUTION: May I see what you have before?
DEFENSE: (Difficult to hear, but it appears to be the number of an item marked for identification.)
PROSECUTION (receives the document): “I don’t — it’s not her statement, your honor.”
DEFENSE: “It’s not her statement, it’s a statement that was taken by . . .”
PROSECUTION: “My objection would be that it’s not Ms. Bobo’s statement; it’s something someone else has said that she said.”
JUDGE: “You can ask her if she said it . . . (inaudible arguing) . . . you might have to cross someone else that offered that statement if you intend to use it for impeachment.”
DEFENSE: “Yes, this might refresh her memory, so I was going to just pass it up to her to see if it would refresh her memory at all.”
WITNESS: “I do not recall making that statement.”
DEFENSE: “Okay, that’s fine.”
This mess began with the defense, expanded with the prosecution, wasn’t settled by the judge, and ended with a poor defense concession.
Under the Tennessee Rule of Evidence 612: “a writing” may be used “to refresh memory for the purpose of testifying.”
The prosecution misstated the plain language of the law by arguing only a statement by the witness could be used to refresh a witness’s memory.
Here’s an example. If I testified that I read a book, but couldn’t remember when, a dated library slip could be used to refresh my memory — even if a librarian wrote out the record. If, after examining the check-out slip prepared by the librarian, I agreed with its contents, I could then testify, “Oh, yes, I read that book in May 2012.”
Under the Tennessee Rule of Professional Conduct 3.3, “[a] lawyer shall not knowingly . . . make a false statement of fact or law to a tribunal.” Additionally, lawyers have a duty to disclose legal authorities “directly adverse to the position” they’ve argued in court.
The prosecution misstated the law. As such, the prosecuting attorney is under an ethical obligation to correct the misstatement.
The judge appeared to struggle with whether the issue was hearsay, impeachment, or a writing offered to refresh a witness’s memory. He also let the witness inject answers into the middle of the discussion between the parties and the judge (which the jury probably heard loud and clear). Many judges refuse to engage in these evidentiary merry-go-rounds in the jury’s presence, and for good reason. Jurors get angry when they aren’t hearing all of the details, and the prosecutor’s open bashing of the defense attorney could have been interpreted against the defense attorney when, instead, the law was on the defense attorney’s side.
After the witness shot back at the defense attorney, the defense attorney, rather than press the issue, moved on.
Both sides and the judge should have handled the issue better.
(3) Hearsay Testimony.
It is not a surprise that this trial has degenerated into a hearsay circus, since several witnesses and suspects seem to have talked to nearly everyone else in the area about their relation to the disappearance and death. Word spreads fast in tight-knit communities.
In the early days of the case, the judge appeared to give the prosecution an extremely long leash on hearsay matters while being harsh with the defense’s attempt to inject hearsay into the proceeding. That is troubling.
Hearsay is a prior statement made by a person while not testifying at the current trial or hearing that is offered to prove the truth of the matter being discussed.
On more than one occasion, the defense objected to hearsay offered by the state. The judge breezily allowed the state to argue such things as, “this isn’t offered for the truth of the matter, judge.” The judge allowed the offending testimony to be heard without much, if any, further discussion as to why the state was actually trying to use it. Missing was the analysis of whether the testimony was unfairly prejudicial.
When the defense attempted to delve into why Bobo’s neighbor felt he was being singled out or badgered by investigators, the judge sustained a prosecution objection on hearsay grounds. The judge sternly cut off the defense’s attempt to explain that the testimony might fit into a hearsay exception or exemption, of which there are many.
The defense attorney should have at least been given the chance to articulate her objection on the record. Judges must allow parties a fair chance of being heard under the Tennessee Canons of Judicial Conduct. Among the Rules is the following:
“A judge shall accord to every person who has a legal interest in a proceeding, or that person’s lawyer, the right to be heard according to law.”
By the second day of the trial, the judge appeared to be giving the defense a chance to be heard on these matters. By the fourth day of the trial, both sides appeared to have gotten into a better groove on the hearsay matters. However, it remains concerning that hearsay and other evidentiary matters are argued in the presence of the jury. Despite the jury being instructed to disregard what was said, it’s impossible to unring the bell.
Aaron Keller is an attorney and live streaming trial host at the LawNewz Network. Follow him on Twitter: @AKellerLawNewz.
This is an opinion piece. The views expressed in this article are those of just the author.
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