Twi Travails

Twi is an African dialect with 14 vowels that is spoken in West Africa.  There is only one Twi interpreter in the State of California and she was present to assist the Defendant in my fifth trial, a DUI involving a hit and run.  He claimed that he did not speak English, even though he was from Liberia, whose official language is English.

It’s Hard To Cross-Examine In Twi.

Cross-examination was extremely difficult with an inexperienced translator interposing herself between me and the Defendant.  He spoke English well enough to take classes at a local college and to pass a drivers’ license exam but was using her anyway.  This additional layer allowed him more time to think about his answers and avoid incriminating himself.  I also did not speak up when the translator appeared to be conversing with the Defendant after my questions.  I should have found out whether the translator is allowed to explain my questions to the witness, or whether her role is just to translate.  If he is pretending not to understand even simple questions then the jury she see that, so they can use it to evaluate his credibility.

Another prosecutor analogized cross-examination to playing ping-pong.  The most successful cross-examination is done with rapid questions and rapid answers.  Each questions should be designed to throw the Defendant off just a little bit.  Once he’s thrown off, he may lie, or at least contradict himself.  He may also go too far, and say something the jury is not likely to believe.  But the method is impossible if the defendant has a lot of time to think about what he’s going to say.  If he slows down the pace, the chance of him slipping up disappears almost entirely.

If you can’t play ping-pong on cross-examination, then you need to try a different strategy.  Ask questions that you know the answers to.  Ask questions where the answer doesn’t matter: questions that reinforce your theory of the case regardless of what the defendant’s answer is.  Stick to your main points and hammer them home.  This alternate method means many fewer questions and a much shorter cross-examination.  But it avoids the problem of getting stuck in the weeds with the defendant.  It also helps you avoid looking like a bully, which I found out during my second trial can be death.

The Defendant denied being under the influence and being involved in a hit and run.  But he still had to explain his poor performance on the field sobriety tests and his refusal to submit to an alcohol test, as the law required.  He claimed that he fled the scene of his accident and did badly on the FSTs because he didn’t understand English well.  He also claimed that he could not understand the officer’s instructions on how to submit to a chemical test.  The most effective portion of my cross-examination involved the Defendant’s ability to speak English.  I pointed out that he was from a country whose official language is English.  I pointed out that he spoke English at school and with his friends.  I pointed out that he worked a job for an English speaking boss and that he passed a drivers’ exam in English.

The Importance of Jury Selection

The jury convicted him after several days of deliberation, showing that jury selection really can make or break a case.  Here, there were two holdouts that eventually came around to vote for guilt.  I interviewed the foreman after the trial, and the jury really went through some herculean efforts to convince the holdouts.  They went from excuse to excuse, even at one point forcing the jury to send a note to the judge asking if the officer’s failure to give a Miranda warning prior to the FSTs invalidated the Defendant’s subsequent performance.

There has got to be a better way to identify and challenge these jurors.  I really need to be extremely careful and deliberate during voir dire.  I will say that one of the leading jurors, who also stuck around to get interviewed was an engineer, and I don’t know how the defense allowed him to remain on the jury.  True to every stereotype that I’ve heard since I’ve started, he was right in my camp and helped persuade the holdouts.

Snatching Victory From The Jaws of Defeat

It finally took an instruction on the judge to get unanimity: a very aggressive instruction.  At the close of evidence, the Defense brought a motion for a new trial.  This was denied.  The Defense renewed this motion after the verdict.  This time, the court granted the motion, to my surprise, and the surprise of others in my office.  The judge decided that his instruction to the jury was too aggressive, so aggressive, he said, that it coerced them into coming to a verdict.  Then, on his own motion, he dismissed the driving under the influence count.  He said that he did not believe the arresting officer, who he believed was angry at the Defendant because the arrest occurred at the end of his shift and out of his jurisdiction.  That left the hit and run count.  This count was supported by the testimony of an independent witness (as was the DUI count, by the way) but it only involved minimal damage.  The judge then allowed the Defendant to plead guilty in exchange for diversion.

I’m ambivalent about the wild twists and turns that this case took after judgment.  On the one hand, I wanted to win the case, and I feel like I did win the case by persuading the jurors.  On the other hand, the Defendant completely escaped accountability, which makes me feel angry.  His bad attitude made this even worse, especially the way he acted outraged even after the judge had saved his case from the jaws of defeat.  He was not even grateful for this last minute generosity.  At the end of the day, it was just a misdemeanor, and maybe he learned his lesson regardless of whether he goes to jail.

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