A Dummy Cross Examination

Courtrooms are often sites for memorable “theater.” For example, can anyone who watched the mid-1990′s murder trial of OJ Simpson ever forget his conveniently unsuccessful struggle to put on the glove that the police found at the murder scene? The prosecution’s failed experiment gave rise to defense lawyer Johnnie Cochran’s famous catch-phrase summary, “If the glove don’t fit you must acquit.”

More recently, a creative California prosecutor tried to use a mannequin to help prove that a defendant had committed a gruesome murder. Testifying at trial, the defendant admitted to strangling his male lover-victim to death. But the defendant tried to lessen his punishment by testifying that he did so in the heat of sudden passion. If the jury accepted this defense, the defendant could have been convicted only of voluntary manslaughter, a far less serious crime than first degree murder. Trying to undermine the “heat of passion” claim, the prosecutor told the defendant to pretend that the prosecutor was the victim and to show the jury how the strangulation took place. (Even in open court this was a brave experiment. After all, the defendant had admitted to one strangulation already!)

The defense lawyer objected, but said that it might be OK if the prosecutor used a mannequin. The judge declared a recess, telling the prosecutor to “go find yourself a dummy.” The prosecutor returned to court with a female dummy. The dummy (not the prosecutor) was “wearing a blue dress, a pink ribbon and a hat.” The defense attorney again objected, pointing out that the female mannequin did not resemble the male victim.

Then matter got even more bizarre. The judge ordered the defense attorney to disrobe the mannequin. The defense lawyer did so reluctantly, stating that “I still object, but that’s better.” Responding to the prosecutor’s (and the judge’s) directions on cross examination, the defendant then spent considerable time using his hands and a strap that the prosecutor found in a trash can to strangle the helpless naked female dummy.

How any of this helped to prove that the defendant had committed an intentional murder was not apparent to three judges on the California Court of Appeal. The judges opined that the re-enactment was “suggestive of a slapstick parody,” “inflammatory,” and an “absurd, indecorous courtroom spectacle.” But they decided that while the trial judge never should have allowed the re-enactment, the defendant was so obviously guilty as charged that they unanimously allowed the defendant’s conviction of first degree murder to stand. The case is People v. Rivera, 133 Cal. Rptr.3d 721 (2011)

The bottom line: “Go get yourself a dummy” is probably not a catch-phrase that this prosecutor will ever want to hear again!