“If I said my robe is white, would that be the truth or a lie?”
Word is that California plans to make it a felony for prosecutors to hide exculpatory evidence from the defense. That’s harsh: to the prosecutor cerebellum, “exculpatory evidence” is a contradiction in terms. After all, the defendant is obviously guilty or they wouldn’t have indicted him.
Instead of passing a law that can only contribute to mass incarceration, we have a better idea: subject all prosecutors to a swearability hearing to see if they understand the difference between the truth and a lie.
Swearability hearings are held when the prosecution witness is a very young child who, according to Ye Olde English legal tradition, is presumed not to understand the meaning of an oath. They typically go like this:
Scene: Two and a half-year old Stinky has accused her grandfather of violating the Federal Securities and Corporation Tax Law. Judge Treacle questions her in a closed courtroom from which the defendant is excluded lest he make scary faces.
Judge: Good morning, dearie, I’m Judgie Treacle and this nice lady ADA Kickbush is here to help you. There, there, you mustn’t throw up. Dammit, Ms. Kickbush, can’t you get her a dog or something to put her at ease?
ADA Kickbush: I told them to send Fluffy the Child Witness dog, but they brought Terminator the K-9 by mistake. Fortunately we managed to keep him from eating the witness.
Judge: Is that what that barking was about? I thought it was Judge Bludgeon doing a sentencing. All right, let’s get this little monster – I mean, key witness – over with. Honey, if I said my robe is white, would that be the truth or a lie?
Stinky: Baaaaww!
ADA Kickbush: She’s saying it’s a lie, Your Honor.
Judge: Very well. Sweetheart, if I were to say this blue pen is red, would that be the truth or a lie?
Stinky: Snuffle.
Judge: Correct. Do you understand that if you tell a lie, God will strike you dead and send you to Hell?
Stinky: Pee pee.
Judge: (Quickly) I find she’s clearly qualified to testify.
Stinky: I don’t think that’s an accurate description of God, Your Honor. God is the Ground of All Being who exists everywhere and nowhere – (ADA Kickbush hustles her out of the courtroom).
Judge: What’s next?
Clerk: A couple of prosecutors from the DA’s Office are here for a swearability hearing, Your Honor.
Judge: (To them) If I said my robe is white, would that be the truth or a lie?
DA #1: Golly, that’s a tough one. Depends what the People’s position is. I’d have to ask my supervisor.
DA Supervisor: Judge, we have no statutory duty to disclose our position at this time.
Judge: Well then, if someone said this blue pen is red, would that be a lie?
DA #2: Not if we said so. The pen would be red.
Judge: (to DA supervisor) I’m shocked, shocked to see prosecutors who don’t know the difference between the truth and a lie!
DA Supervisor: No worries Judge. We’ll put them in the Conviction Integrity Unit.
The true/false questions give them a 50% chance of answering each question correctly. Tougher would be: “In a murder case, there are witnesses describing three other possible suspects, which, if any, statements do you turn over to the defense?”