Creative Control

Miscellaneous Mental Musings of an Emerging Artist

Material witness.


There’s a famous, possibly apocryphal story that sometimes but not always features Abraham Lincoln as a novice attorney, which is told often in legal circles and classrooms as a lesson in cross-examination and how one can ask either the wrong questions or one too many of them.

A witness is on the stand in the case of a man who stood accused of biting off another man’s ear in a fight. (Sometimes in the telling it’s a piece of the victim’s nose.) The attorney for the accused asks the witness:

“Did you see the fight occur?”
“No, sir,” says the witness.
“Did you see my client bite off the other man’s ear?”
“No, sir.”
“Then how can you be sure my client bit the other man’s ear off?”
“Because I saw him spit it out, sir.”

There are other versions of this tale that go on to describe how the attorney works out of this jam by noting that the incident occurred at night and the witness was more than 30 yards away, only to fall into another trap in which the witness replies that the moon was full. Other versions see the attorney finally turn the situation around by consulting an almanac to prove that there was no moon that night at all.

The thing I want to draw attention to is that in the first exchange the attorney tries to undermine the credibility of the witness by leaning on the fact that he had zero firsthand knowledge of the crime, only to end up flatfooted when the witness provides damning testimony of the crime’s aftermath. The president’s defenders in Congress are leaning very heavily on the idea that the witnesses before them are only providing hearsay evidence while trying to dance around the fact that each of them could see the way the crimes in question were having an effect on the stability and security of Ukraine.

They did not have to see Trump, Giuliani, Mulvaney, or Sondland bite off Ukraine’s ear.

They saw them spit it out.

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This entry was posted on November 15, 2019 by in History, Impeachment, Politics, Society.
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