Berger v. United States

Charge: conspiracy to utter counterfeit notes.

SUTHERLAND, J.... That the United States prosecuting attorney overstepped the bounds of that propriety and fairness which should characterize the conduct of such an officer in the prosecution of a criminal offense is clearly shown by the record. He was guilty of misstating the facts in his cross-examination of witnesses; of putting into the mouths of such witnesses things which they had not said; of suggesting by his questions that statements had been made to him personally out of court, in respect of which no proof was offered; of pretending to understand that a witness had said something which he had not said and persistently cross-examining the witness upon that basis; of assuming prejudicial facts not in evidence; of bullying and arguing with witnesses; and in general, of conducting himself in a thoroughly indecorous and improper manner. We produce in the margin [FN1] a few excerpts from the record illustrating some of the various points of the foregoing summary. It is impossible, however, without reading the testimony at some length, and thereby obtaining a knowledge of the setting in which the objectionable matter occurred, to appreciate fully the extent of the misconduct. The trial judge, it is true, sustained objections to some of the questions, insinuations and misstatements, and instructed the jury to disregard them. But the situation was one which called for stern rebuke and repressive measures and, perhaps, if these were not successful, for the granting of a mistrial. It is impossible to say that the evil influence upon the jury of these acts of misconduct was removed by such mild judicial action as was taken.

A witness by the name of Goldie Goldstein had been called by the prosecution to identify the petitioner. She apparently had difficulty in doing so. The prosecuting attorney, in the course of his argument, said (italics added):

"Mrs. Goldie Goldstein takes the stand. She says she knows Jones, and you can bet your bottom dollar she knew Berger. She stood right where I am now and looked at him and was afraid to go over there, and when I waved my arm everybody started to holler, 'Don't point at him.' You know the rules of law. Well, it is the most complicated game in the world. I was examining a woman that I knew knew Berger and could identify him, she was standing right here looking at him, and I couldn't say, 'Isn't that the man?' Now, imagine that! But that is the rules of the game, and I have to play within those rules."

The jury was thus invited to conclude that the witness Goldstein knew Berger well but pretended otherwise; and that this was within the personal knowledge of the prosecuting attorney.

Again, at another point in his argument, after suggesting that defendants' counsel had the advantage of being able to charge the district attorney with being unfair, "of trying to twist a witness," he said:

"But, oh, they can twist the questions, ... they can sit up in their offices and devise ways to pass counterfeit money; 'but don't let the Government touch me, that is unfair; please leave my client alone."'

[FN1] [The defendant (petitioner) was on the stand; cross-examination by the United States attorney]:

Q: The man who didn't have his pants on and was running around the apartment, he wasn't there?
A: No, Mr. Singer. Mr. Godby told me about this, he told me, as long as you ask me about it, if you want it, I will tell you, he told me "If you give this man's name out, I will give you the works."
Q: Give me the works?
A: No, Mr. Godby told me that.
Q: You are going to give me the works?
A: Mr. Singer, you are a gentleman. I have got nothing against you. You are doing your duty.
Mr. Wegman: You are not going to give Mr. Singer the works. Apparently Mr. Singer misunderstood you. Who made that statement?
The Witness: Mr. Godby says that.
Q: Wait aminute. Are you going to give me the works?
A: Mr. Singer, you are absolutely a gentleman, in my opinion, you are doing your duty here.
Q: Thank you very much. But I am only asking you are you going to give me the works?
A: I do not give anybody such things, I never said it.
Q: All right. Then do not make the statement.
Mr. Wegman: The witness said that Mr. Godby said that.
The Court: The jury heard what was said. It is not for you or me to interpret the testimony.
Q: I asked you whether the man who was running around this apartment . . . , was he there in the Secret Service office on the morning that you were arrested?
A: I didn't see him.
Q: I wasn't in that apartment, was I?
A: No, Mr. Singer.
Q: I didn't pull the gun on you and stick you up against the wall?
A: No.
Q: I wasn't up in this apartment at any time, as far as you know, was I?
A: As far as I know, you weren't.
Q: You might have an idea that I may have been there?
A: No, I should say not.
Q: I just want to get that part of it straight. . . .
Q: Was I in that apartment that night?
A: No, but Mr. Godby--
Q: Was Mr. Godby in that apartment?
A: No, but he has been there. . . .
Q: Do you include as those who may have been there the Court and all the jurymen and your own counsel?
A: Mr. Singer, you asked me a question. May I answer it?
Mr. Wegman: I object to the question.
The Witness: Are you serious about that?
The Court: I am not going to stop him because the question includes the Court. I will let him answer it.
Mr. Singer: I would like to have an answer to it.
The Witness: Mr. Singer, you asked me the question before--
The Court: You answer this question.
(Question repeated by the reporter.)
A: I should say not; that is ridiculous. . . .
Q: Now Mr. Berger, do you remember yesterday when the court recessed for a few minutes and you saw me out in the hall; do you remember that?
A: I do, Mr. Singer.
Q: You talked to me out in the hall?
A: I talked to you?
Q: Yes.
A: No.
Q: You say you didn't say to me out in the hall yesterday, "You wait until I take the stand and I will take care of you"? You didn't say that yesterday?
A: No; I didn't. Mr. Singer, you are lying.
Q: I am lying, you are right. You didn't say that at all?
A: No.
Q: You didn't speak to me out in the hall?
A: I never did speak to you outside since this case started, except the day I was in your office, when you questioned me.
Q: I said yesterday.
A: No, Mr. Singer.
Q: Do you mean that seriously?
A: I said no.
Q: That never happened?
A: No, Mr. Singer, it did not.
Q: You did not say that to me?
A: I did not.
Q: Of course, have I just made that up?
A: What do you want me to answer you?
Q: I want you to tell me I am lying, is that so? . . .
[No effort was later made to prove that any such statement had ever been made.]
Q: Did she say she was going to meet me for anything except business purposes?
A: No.
Q: If she was to meet me?
A: Just told me that you gave her your home telephone number and told her to call you up after nine o'clock in the evening if she found out anything about the case that you could help me with, that is what she told me.
Q: Even if that is so, what is wrong about that, that you have been squawking about it all morning?

In what ways did the prosecuting attorney overstep the bounds of acceptable cross-examination? Would the same behavior by defense counsel be improper? When a lawyer is out to destroy the credibility of an opponent's witness who, let us assume, the lawyer believes is either lying or mistaken, how do you draw the line between permissible and impermissible attack?