An Ethical Prosecutor Confronts Her Own Witness

BY DEFENSE COUNSEL ON CROSS

Q: Ms. Smith, do you have an email account?

A: Do I have an e-mail account?

Q: Yes.

A: I do.

Q: Is it a Yahoo account?

A: No.

Q: What is your e-mail?

A: It’s –

Q: Actually, let me ask you this way. Are you familiar with an e-mail account Tamara1540@nullyahoo.com?

A: I am not familiar with that account.

THE COURT: I’m sorry. Counsel, could you say it again or spell it out so that we are clear about the spelling of it.

DEFENSE COUNSEL: Absolutely.  It’s the email account T-A-M-A-R-A 1540 at Yahoo.com.

Q: That doesn’t ring a bell with you?

A: No.

Q: You have never used that email account?

A: No . . .

PROSECUTOR ON RE-DIRECT

Q: Okay. Ms. Smith, you do have a Yahoo e-mail account, right?

DEFENSE COUNSEL: Objection. Leading.

PROSECUTOR: May I approach with counsel, Your Honor?

THE COURT: Sure. (To witness). If you would step down to one of those jury chairs again, if you would. Thank you.

THE COURT: Okay.

DEFENSE COUNSEL: Two things. First, it’s leading. This is the government’s witness, not mine. Second, she never acknowledged that she had a Yahoo account.

PROSECUTOR: And, Your Honor, I am attempting to impeach the witness. I do have – I would just like to ask her if that is her e-mail account because I have communicated with her through that e-mail account, so if I could just be allowed to ask her again to give the email account with the numbers and ask her if she uses that account. It’s leading, and it would be my intent to impeach my own witness, and it’s just my responsibility as candor to the Court.

THE COURT: Okay.

(Open court.)

THE COURT: Okay. You can come back up to the chair, please. Thank you.

BY THE PROSECUTOR:

Q: Ms. Smith, do you use a Yahoo account?

A: No.

Q: Have you ever used a Yahoo account T-A-M-A-R-A 1504 at Yahoo.com?

A: No.

Q: Have you ever communicated with me through the Yahoo account?

A: I used my school account.

Q: Okay. If I showed you something –

PROSECUTOR: Showing defense counsel what’s been marked for identification purposes as Government’s Exhibit 3. May I approach, Your Honor?

THE COURT: Yes.

BY THE PROSECUTOR:

Q: I’m showing you what’s been marked as Government’s Exhibit 3. Do you recognize this at all?

A: Yes, I recognize it from my I-Phone, yes.

Q: Okay. What is it?

A: It’s a subpoena.

Q: What is this piece of paper right here?

A: It’s a piece of paper from you.

Q: Is it an e-mail?

A: Yes.

Q: Did you respond to that e-mail?

A: I did.

Q: And from what e-mail account did you respond?

A: Well, it says the – it says Yahoo.

Q: Does it say T-A-M-A-R-A 1450 at Yahoo.com?

A: Yes.

Q: Okay. Do you use that e-mail?

A: Yes. . .