Let’s say someone’s mad at you and would love to see you get arrested. How much would it take to bring cops to your door?
Turns out, not much.
I’ll give you an example. You’re feuding with cousins and siblings about the probate of your late uncle’s will, which one cousin, Sandy, controls. You don’t like how Sandy is handling the probate administration — she’s dragging her feet on distribution of the money — and she’s pissed at you for bugging her about it. So she calls the police and reports that you screamed at her on the phone, commanding that she’d better get things moving “or else.”
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The “or else” makes the call a threat. Then, because the threat is between cousins, it’s considered a domestic violence case, which automatically shoots it to the head of the line in police priorities. So even if you’re a 60-year-old guy with no arrest record who collects antiques for a living, the police will show up at your door and put you through the entire arrest process — booking, prints, mug shot, and sometimes an overnight in jail — then take you in cuffs to see the judge in whatever county Sandy made the complaint. In short, all this, because one person with an ax to grind felt like getting you in trouble.
Now if that same person signs an affidavit swearing to the facts she told police, a prosecutor gets assigned and the case becomes a misdemeanor or worse, based on Sandy’s word alone.
There’s no tape recording of the call, no witness to corroborate it, no video. Sandy’s report was all it took to get you arrested, brought to court in cuffs, and put through months of a criminal process that will start with an “order of protection” being issued against you. And that order gives Sandy incredible leverage. It orders you not to have any further contact with her by phone, email, text, or through third parties (for example, any other cousins) except your lawyer. Now if she calls police to complain that you contacted her, even if she’s lying, you’ll get arrested again and the case against you becomes a felony. How is this fair?
One of the most frequent questions I get from clients is, how can I be prosecuted based on one person’s word against me? They say, “I want to hear the phone recording, see the video, hear the proof.” But, guess what, there may be none, and very seldom does any intermediary party such as a judge or prosecutor want to decide if Sandy is telling the truth, unless there’s some obvious inconsistencies that refute her claim. (Such as that you were out of the country and in the jungles of Borneo where you couldn’t possibly have called her.) The job of determining whether Sandy’s believable enough to get you convicted is up to a jury.
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Here’s how it works: As many prosecutors say in their summations, crime is often done when there’s nobody around except for the victim and the assailant. If proof beyond a reasonable doubt depended on the word of more than just the victim, then most crime street crime would not get prosecuted. At a trial, the judge will instruct the jurors that it’s not the number of witnesses that count, but the quality of their testimony. One witness could be believable enough to get you convicted without further corroboration.
The exception to this rule is when the only witness is a co-conspirator or co-defendant — then, at least in New York State, you do need further corroboration. For example, if two people rob an apartment — no one sees them and there’s no video — the second guy cannot be convicted on the word of the first guy alone.
Interestingly, however, the second guy could be convicted based on his own confession, alone. So let’s say the second guy gets arrested one year after the first guy, who’s already pleaded guilty, been sentenced, and ratted on the second guy. However, the second guy, when arrested, makes a full confession. Although prosecutors can’t use the first guy’s ratting-out of the second guy at the trial (unless that first guy testifies in the flesh), prosecutors can use the second guy’s confession in its entirety (if the judge and jury find it was made voluntarily) to win a conviction without anything else.
In our age of the proliferation of cop shows and their focus on forensics — DNA, blood stains, fingerprints, video, etc. — many of my clients (and I’m including even the educated ones) can’t believe they can be convicted on one person’s word alone.
But guess what, you can. That’s why the skill of your attorney in cross-examining that one witness is paramount. That’s your only shot at convincing a jury that Sandy should be scrutinized closely and that her word alone does not equal proof beyond a reasonable doubt.
Toni Messina has been practicing criminal defense law since 1990, although during law school she spent one summer as an intern in a large Boston law firm and realized quickly it wasn’t for her. Prior to attending law school, she worked as a journalist from Rome, Italy, reporting stories of international interest for CBS News and NPR. She keeps sane by balancing her law practice with a family of three children, playing in a BossaNova band, and dancing flamenco. She can be reached by email at [email protected] or tonimessinalaw.com, and you can also follow her on Twitter: @tonitamess.