Chapter 17: You be the Lawyer. How strong is your case?

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Pic: Library of Congress Alger Hiss is going on trial for perjury. This Podcast is a survey, at 23,000 feet, of the possible arguments for The Prosecution and for The Hiss Defense. Of each side’s possible arguments, which are strong and which are weak? This may be of special interest to real trial lawyers, or to the inner Perry Mason who lurks within each of us. If you were The Prosecution, what would you emphasize to the jury? What are Chambers’ strengths as a witness? What are his weaknesses? You also have all the documents Chambers produced, of course. Do you have anything else — any other witnesses you would call? When you cross-examine Hiss, is there anything you would like him to admit to? Suppose you were The Hiss Defense and you decided to mount a fighting defense (not resting on the presumption of innocence that is the right of every criminal defendant). Would you concentrate on attacking Chambers (who is a target-rich environment)? Or would you emphasize building up Hiss’ sterling past acts and glowing character references? Can you give Chambers a plausible motive for lying about Hiss? Can you explain Chambers’ possession of documents by Hiss and his wife, obviously prepared for espionage in 1938, that Chambers produced in 1948? The Grand Jury didn’t buy Hiss’s Exculpatory Theory #1. What is your Exculpatory Theory #2? Further Research: This Podcast is about the arguments for The Prosecution, and the arguments for The Hiss Defense, in the upcoming trial of Alger Hiss for perjury. Suppose you were The Prosecution. Two crucial points to bear in mind: first, you must prove BEYOND A REASONABLE DOUBT that Hiss lied when he denied passing government documents to Chambers in 1937 and 1938. The jury must be left with no doubt, based in reason, that Hiss did that. Also, something called The Federal Perjury Rule says that the testimony of one witness — Chambers, obviously — is not enough. The Prosecution must have two witnesses, or one witness plus independent corroboration. Assuming Chambers is your only witness, what is your independent corroboration? How do you make Chambers credible, overcoming his strangeness, his being a confessed traitor, his possibly disreputable ratting out of his best friend, and his past denials under oath that any spying took place? Is there some way you can make Hiss look worse than Chambers? How would you prove that the handwritten documents were in Hiss’s handwriting and that the typed documents were typed on the Hiss home typewriter? There is almost no record of what The Prosecution was thinking about these matters. Much about the FBI’s factual investigations, of which there are extensive (and sometimes hilarious) records, is described in a much later Podcast, #37, about what did not come out at the trials. Suppose you were The Hiss Defense? You need do absolutely nothing — The Prosecution has the burden of proof and Hiss is innocent until proven guilty. But suppose you want to mount a fighting defense. How can you weaken The Prosecution’s Case? Other than Chambers’ weaknesses that were just described, would you dredge up his past strange behavior and try to make him seem insane, or mentally ill, or at least not believable BEYOND A REASONABLE DOUBT? Would you introduce evidence that Chambers was a homosexual? (Remember this is 1948, not today.). How do you explain Chambers’ possession in 1948 of documents, obviously prepared for spying, in Hiss’s handwriting and typed on the Hiss home typewriter? Hiss’s Exculpatory Theory #1 didn’t work before The Grand Jury. What’s your Theory #2? Might Chambers be concealing a real Soviet spy in the State Department, someone who had access to the papers in Alger’s office? Would you, like The Prosecution, search for the Hiss home typewriter? The limited history of the internal strategic deliberations of The Hiss Defense is in Marbury’s above-cited 1981 law review article beginning at page 85, in Smith’s book at 272-90, and in Weinstein’s book at 399-424. It’s fascinating reading for any lawyer who has ever planned or carried out strategy in a complicated high-profile case in which both sides have great strengths and great weaknesses. One fact that makes the thinking of Hiss’s counsel relatively available is that they were in different cities. In the 1940s, long distance telephone calls were expensive and conference calls were a minor nightmare to arrange. So, many opinions that would normally be spoken over coffee were, in Hiss’s case, committed to paper.

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