Under Analysis: An eye-popping witness

Lisa Henderson-Newlin, The Levison Group

Chances are if you get a group of litigators together, stories will materialize about witnesses on the stand whose testimony didn’t go as planned. Chances also are that only approximately 57.4 percent of those stories will be accurate. Litigators like to embellish. It’s what makes us good at our job (and great at storytelling).

The remaining percentage of stories, whatever that number calculates to,* typically consist of stories of a witness changing his or her testimony unexpectedly on the stand. (*I’m a lawyer, not an accountant. I can’t be expected to do math AND practice law.)

An unexpected incident with a witness is rarely a good thing. Jaw-dropping testimony isn’t usually what is expected when a witness takes the stand. In fact, testimony of that nature is what litigators seek to avoid through numerous hours of preparation and numerous deliveries of Chinese take-out (followed promptly by numerous doses of Pepto Bismol.)

However, sometimes, despite the excessive planning and antacids, eye-popping testimony emerges. Literally.

In the assault trial of Commonwealth v. Brunelli, the plaintiff took the stand to testify about the permanent injuries he sustained as a result of a bar fight, which resulted in the loss of his eye, and its replacement with a prosthetic. He started crying while telling his version of his events, and more than tears came out. His prosthetic eye joined the flow of tears, popping out of his eye socket and into his hand.

Who could have seen that coming? Obviously not the witness, at least not with his eye sitting in his hand.

In Brunelli, the judge ultimately declared a mistrial, as he determined the jurors would have a hard time keeping their eye on the facts of the case. I suspect he also worried their eyes were on the elephant in the room, which in this case was a glass eye bouncing off the witness stand.

The judge surmised the incident would always be in the jurors’ minds’ eye, and he worried the defendant would be viewed differently by the jury. Perhaps he was worried about the jurors blurring the legal issues and losing focus of what was really important in the assault case.

I can’t even begin to visualize the scene of events, and the resulting outburst in the courtroom. What a vision to behold. Literally.

What are the chances of an eye witnesses taking the stand only to have the courtroom witness the loss of said eye? Was it a sight for sore eyes when the jurors viewed this debacle? Did it discredit his testimony at all, or did the jury disregard it as being too farsighted?

In Brunelli, the judge granted a mistrial, citing an unfortunate and unforeseen event. It’s not in the record, and I don’t know this for a fact, but I suspect the judge considered taking a poll of the courtroom to see if others were in favor of a mistrial as well. Had he done so, he probably would have found the “eyes” had it.

I’m sure the witness was visionary, and had great perspective on his case. In fact, his point of view was probably the best, as he was able to see the case through different eyes. Unfortunately, one of those eyes happened to roll off the witness stand.

What’s even more unfortunate is the case rolled away with the prosthetic eye; but the witness didn’t have the foresight to see it.

Perhaps if the attorney had an eye for detail, he could have envisioned how the case would turn out. If only he would have kept his eye on the prize.

So the next time a witness’s testimony doesn’t go as planned, and you’re feeling down and out, just remember it could be worse. Your witness could lose his eye on the stand. I guess it’s better than losing his lunch; now that that would be a real eye opener.


Lisa Henderson-Newlin is a member of the law firm McAnany Van Cleave and Phillips. Contact Under Analysis by email at comments@levisongroup.com.
© 2013 Under Analysis L.L.C.


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