The Volokh Conspiracy

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Don't Trust the Defendant—He's a Novelist!

An odd line of prosecutorial argument.


From McKinney v. State (Ala. Ct. Crim. App.), released last month but just mentioned in the Westlaw Bulletin; McKinney was convicted of murder, and there seemed to be a good deal of real evidence against him, but here's one exchange with the prosecutor to which he objected:

Q [prosecutor]. Okay. Now, what I was getting to a few minutes ago about these bags—now, you had another bag, too, didn't you?
A [McKinney]. Yes, sir.
Q. That's the one that had your books in it?
A. Yes.
Q. Now, when you say 'books,' are you talking about books that you read that somebody else wrote?
A. I mean, I'm not exactly sure what you mean.
Q. Well, didn't you have a book or maybe more than one book that you were trying to write, yourself?
A. Inside that book bag, I'm pretty sure my book was in it maybe.
Q. Okay. Now, so you were writing your own book, right?
A. Well, I had written a book, yes….
Q. And it was a work of fiction, I assume?
A. Yes, sir.
"Q. So you at least considered yourself a writer?
[McKinney's counsel]: Judge, objection. What's the relevance of this?
THE COURT: Overruled.
Q. Did you consider yourself a writer? Writer of fiction? …
A. I wouldn't call myself a writer, no, sir….
Q. But this book of yours is a work of fiction. But everything you're testifying here—now, you're telling us the truth today, aren't you?
A. Yes, sir.
Q. You know you're under oath and you're looking at these folks and you're going to tell them what happened that day, right?
A. Yes, sir.

Yes, the prosecution's theory—which the court seemed to endorse as at least plausible—was that, "[t]he obvious inference the prosecutor was trying to draw was that, if McKinney writes novels or other fiction, then his account of the murder of Mr. Jackson [was] also fiction." Really? Doesn't sound to me like a sensible inference. To be sure, it's perfectly plausible that McKinney was lying, just as it's plausible that anyone else is lying; but I don't think that would-be novelists are any more likely to lie on the stand than anyone else, or even any better at lying (unless perhaps they are novelists of proven and substantial gifts).

Now I'm skeptical that the question was particularly likely to prejudice the jury; McKinney's appellate brief labels this "nothing short of a character assassination," but I don't think a prosecutor can assassinate anyone's characters with this wet noodle of an argument. (Note that there was no evidence of what kind of book McKinney was writing, though the brief says it was a romance novel.) The evidence was irrelevant, I think, and shouldn't have been admitted, but I think the error was harmless, and thus not a basis for a reversal. Still, the appellate court's analysis strikes me as mistaken.

Here is the entirety of the court's analysis on this point:

McKinney is not entitled to relief on this issue. As the State notes, "[t]he obvious inference the prosecutor was trying to draw was that, if McKinney writes novels or other fiction, then his account of the murder of Mr. Jackson [was] also fiction …. Whether McKinney was telling the truth was very relevant and a proper subject for cross-examination." See generally Wiggins v. State (Ala. Crim. App. 2014) ("'Counsel is given wide latitude and has the right and duty to cross-examine vigorously a defendant who takes the stand in his own defense. "A [prosecutor] may ask a defendant … questions tending to discredit [his] testimony, no matter how disparaging the question may be."'").

UPDATE: I revised the post slightly to add the "or even any better at lying" clause in the first paragraph following the long block quote.