Judge Kavanaugh and the End of the One Witness “Uncorroborated” Criminal Case

Will Prosecutors Announce Refusal to Continue to Prosecute “Uncorroborated” Single Witness cases in Wake of New Attitude About Fairness?

By Don Murray, Esq.

The hearings on Judge Kavanaugh have sparked outrage from politicians, the public, and the President of the United States that an “uncorroborated” accusation could derail the career trajectory of a person so that person might not get promoted to the job of his dreams.

As a criminal defense lawyer, I welcome the President’s and the public’s newfound uneasiness with single witness (“he said, she said”) sort of cases. I expect that on the heels of this wave of support for Judge Kavanaugh, and opposition to such “uncorroborated accusations”, that Prosecutor Offices across our land will no doubt eliminate the practice of prosecuting single witness identification or “he said, she said” cases.

In state criminal courts across our land, prosecutor offices routinely charge people with very serious crimes, including all manner of sex assault charges, robbery charges, assault charges, and even murder based entirely or principally on a single witness’s testimony. In many sex cases I have seen, accusations can reach years back and there is nobody but a defendant to complain about how hard it is to defend such claims.

The problems of defending accusations from a single witness only seem to generate sympathy from the public and our public officials when the target of the accusation is someone famous or politically powerful. To hear the Senators in the Kavanaugh hearing go on about the horrors of Judge Kavanaugh’s predicament, when all he might lose is a promotion to a job he might like more is astounding. If we give the Senators credit for honestly being horrified at the difficulty of responding to accusations from a single witness from the distant past, their reactions are a window into the elite fantasy world in which they live, where this seems so unfair. On the other hand, giving the Senators credit for knowing exactly the reality of the day to day criminal justice system (especially since so many of them claim to have been prosecutors themselves), their reactions are cynical political ploys to cause people to buy into a false notion about how our criminal justice system works for regular people charged with crimes.

For regular people charged with crimes where there is but a single principle witness, it is very different indeed. At the beginning of every jury trial where the case involves the testimony of a single crime victim that is “uncorroborated,” like a one witness ID case, virtually every prosecutor will spend precious jury selection time weeding out jurors who say they require “corroboration” or who are uncomfortable with the notion of there being only one witness. Jurors who expose themselves as “needing more than one witness” or needing “corroboration” of one witness will be removed from the jury pool by the Government. This is standard, accepted practice. It is standard, accepted practice because our law (at least in New York) is that one witness, who is sufficiently believable, is enough to convict a person of a crime, even at a burden of proof as high as beyond a reasonable doubt.

The prosecutor doesn’t bemoan the fate of the poor defendant who must defend against a single, “uncorroborated” witness. The President of the United States doesn’t tweet about how unfairly this defendant is being treated.

Such a basic notion of our law is it that one “uncorroborated” witness is perfectly fine to support a conviction for a crime, that just before the Jury in a one witness identification case leaves the Courtroom to begin deciding the case, the Judge will actually read a statement to them that reminds them essentially, that one witness is enough. Don’t worry about it. You can convict the defendant of the crime, whatever it is.

There is no public outcry. There are no political rallies where the President makes fun of the “uncorroborated” victim to huge crowds of supporters. There is no righteous indignation about how “This is America” where people are “presumed innocent.” There is only a presorted jury of people who all affirmatively say up front that they do not require more than one witness in order to be able to convict someone of a crime.

In fact, if I, as the defense lawyer, attempted to ridicule the law on this point or suggest that the law was wrong, in front of a jury, I would be quickly shut down by the Judge who would likely then read the instruction on how one witness is just fine all over again to “cure” my unprofessional outburst.

And thus, I would imagine that every single day in our country, someone is convicted of a serious crime where the only or principle evidence is the word of one witness. The most substantive difference from these numberless cases and Judge Kavanaugh’s situation is primarily that the people accused are not famous or politically powerful.

But I now wonder whether all the attention that has been focused on this issue of the unfairness of one witness cases will be changing Prosecutorial policies to reflect the country’s newfound attitude toward prosecution of criminal accusations. The fact that Judge Kavanaugh’s proceeding is not a criminal proceeding makes the situation that much worse. After all, if the President of the United States and all these Senators are concerned that Judge Kavanaugh is being treated so unfairly in a context where the worst that will happen to him will be that he might not get a better job than he currently has, how can we sit by and watch as people get sent off to prison for years or even executed on the word of one “uncorroborated” witness? Why it just seems barbaric. This is America, after all.

As a career criminal defense lawyer, these one witness identification cases have always troubled me. They are the sort of cases that give defense lawyers nightmares. I have had the experience of representing a person charged with robbery in a one witness identification case. My client, who I believed was innocent, was convicted on the basis of this one witness, he was sent to prison for years, and then deported. None of the outrage that seems to be surrounding Judge Kavanaugh having to suffer the accusations of a single witness was expressed by anyone at the time, let alone the Judge, the prosecutor, any of the jurors, or the President of the United States at the time. But, I am delighted that going forward I can expect a new dawn in prosecutorial policies in the DA’s Offices across the land.

Perhaps, going forward, on the strength of this wave of support for those accused by single witnesses whose accusations are “uncorroborated”, there will be a nationwide moratorium on the prosecution of crimes where there is only one witness and where the accused vigorously and angrily denies the accusation.

Perhaps District Attorney Offices across the land will undertake a review of their finished cases in order to vacate convictions after trial where defendants had angrily denied the accusations and where those accusations came from the “uncorroborated” testimony of a single principle witness. President Trump, the Senators appalled by the “uncorroborated” single witness, and Judge Kavanaugh could stand and applaud as our prisons disgorge their prisoners.

Or maybe this new standard of moral outrage will only apply to Judge Kavanaugh.

Don Murray is a founder of the New York City Criminal Law Firm Shalley and Murray. You can reach Shalley and Murray by calling or texting 718-268-2171.