Steve Martini - Compelling Evidence

“Your witness.”

“Mrs. Foster, do you know for a fact that the vehicle you saw parked in the driveway of the Potter residence was Mr. Potter’s car?”

“Oh yes, it was his car. I know that car very well. I’ve seen it many times.”

She is wrinkled and age-spotted, but a pleasant soul. She smiles occasionally at Talia, so one would think that to Mrs. Foster, her appearance here is some good, neighborly deed. This is the kind of witness who can hurt you with a jury, the kind with no obvious or even remote personal agenda.

“Your Honor, may I approach the witness?”

Acosta waves me on.

I drop an envelope on Nelson’s table and carry another to the witness box, where I pull out three photographs.

“Mrs. Foster, I have three pictures here of vehicles, all the same color, late-model cars. Can you look at these and tell me if any of them is Mr. Potter’s car, the car you saw that evening parked in his driveway?”

She looks at them, studying them top to bottom, adjusting her glasses that hang from a gold chain around her neck. She works at these photos like it is some multiple-choice examination, putting first one aside, then another, picking up the first one again, trying to exclude at least one of the distractors to give herself a fair guess between the other two.

“Your Honor, I object to this.” Nelson can see she is having trouble. “Mrs. Foster is not an expert on car design. She says she saw Mr. Potter’s car in the driveway that night. This is a vehicle she has seen many times and would clearly recognize. Now defense counsel is trying to confuse her.”

“Your Honor, I just want to know if she can identify the car.”

Acosta is looking at me over the top of his glasses.

“Get on with it,” he says.

“Mrs. Foster, can you tell me if any of the cars in these pictures looks like the car you saw at the Potter residence that night?”

“This one looks a little familiar,” she says.

“Is that the car?” I ask her.

She’s looking at me, searchingly, pleading as if for some hint.

“They all look so much alike,” she says.

“Cars can do that,” I tell her. “Both in pictures and in driveways.”

“I think this is it,” she says.

I turn it over and read the number on the back.

“Your Honor, let the record reflect that the witness has identified a late-model Toyota Cressida owned by my secretary.” I then turn back to the witness. “She will be happy, Mrs. Foster.”

The old lady looks at me.

“My secretary, to know that she drives a car that looks like a Rolls. It may keep her from putting the touch on me for a raise.”

There are smiles, a little laughter in the jury box.

Mrs. Foster shrugs her shoulders, a good-natured gesture, like she did the best that she could.

Harry has been less than forthright on this, shooting all of the pictures to avoid the give-away grill on Ben’s car.

“Picture number three, Mrs. Foster. That was Mr. Potter’s car.”

“Oh,” she says.

“Even trained police officers have a hard time telling some cars apart,” I say, a little balm for a bruised ego. Nelson doesn’t object. She seems to accept this with good grace.

I’m back at the counsel table now. “Mrs. Foster, I think you testified that the night that you saw this vehicle, whatever it was, in the driveway, you never actually saw Mr. Potter, in the vehicle or around it, is that correct?”

“Yes, that’s right.”

“Did you see him around the outside of the house or in the house, through any of the windows?”

“No.”

“So you don’t know whether Mr. Potter was actually at home that night or not?”

“His car was there,” she says.

“A car that looked like his was there.” I correct her.

“If you say so.” She makes a face. The path to old age, I think, must be like Mrs. Foster, obdurate and unbending.

“But you never actually saw Mr. Potter?”

“No.”

“Did you see Mrs. Potter that evening about the time that you saw this car in the driveway?”

“No,” she says. “Her car wasn’t there.” To the witness, it seems, possession of a vehicle is more than a sign of status, it is the sole evidence of existence.

“So you never actually saw either Mr. or Mrs. Potter at or around the Potter residence on the night in question?”

“No.”

“Did you hear anything unusual that night, any noises coming from the Potter residence?”

“No.” She shakes her head.

“No sharp sounds like firecrackers, or a car backfiring?”

“I didn’t hear a shot if that’s what you mean.”

“That’s what I mean, Mrs. Foster.” This lady is not as far gone as she looks.

“This car that was parked in the driveway of the Potter residence, did you notice what time it left?”

“I looked out about nine. It was gone,” she says.

“But you didn’t see who drove it away?”

“No.”

“Nothing further, Your Honor.”

“Redirect?”

“Just a couple, Your Honor.” Nelson is on his feet approaching the witness.

“Mrs. Foster, how far is it between your house and the Potter residence, approximately?”

She looks at him like this is the same as trying to tell cars apart.

“Let me see if I can make this easier on you.” Nelson thinks for a moment. “You’ve seen a tennis court, from one end to the other?”

She nods.

“Good. How many tennis courts could be laid from end-to-end between your house and the Potter residence?”

She mulls this over for a long time before answering.

“Three, maybe four,” she says.

“So it’s a considerable distance between your houses. These are not suburban homes on postage-stamp lots?”

“Oh no,” she says. “It’s a good walk to your neighbor’s.”

“So if someone fired a small handgun, inside of the Potter residence, it’s not inconceivable that you might not hear it?”

“Objection, calls for speculation.”

“Sustained.”

She shrugs but doesn’t really answer the question. He moves on.

“I suppose you were watching television on the night you saw Mr. Potter’s car in the driveway.”

“Objection, leading. The question also assumes facts not in evidence, that the vehicle observed by the witness was in fact the victim’s car.”

“Sustained.”

“Fine,” says Nelson. “Mrs. Foster, were you watching television on the night in question, when you saw the car in the driveway?”

“I don’t watch television,” she says.

“What were you doing that evening?”

“Playing with my cats,” she says. “I have six cats.”

“Ah.” Nelson is nodding his head like he understands this, an old lady and her cats. But it gets him no closer to where he wants to be, the inference that if Talia fired a bazooka at Ben inside their house, Mrs. Foster wouldn’t have heard it.

“But it’s possible,” he says, “that if a shot was fired in that house, you might not have heard it?” He finally does it head-on.

“Objection, calls for speculation on the part of the witness. She says she didn’t hear a shot. The jury can form its own conclusions,” I say.

The Coconut is making faces like he might actually allow the witness to venture a guess on this.

Mrs. Foster is pursing her lips, about to respond.

“If a tree falls in the forest, but there is no one there to hear it, does it make a sound?” I ask.

“Excuse me,” says Acosta.

“It’s an ancient conundrum of logic, Your Honor. Counsel may as well ask the witness that one while he’s at it. Philosophers have been speculating about it without an answer for five thousand years,” I say.

Acosta is bristling at my sarcasm. But it achieves its point. The witness is now thoroughly confused. I think she would rather look at pictures of cars again.