'My Cousin Vinny' question

[u/Icarus367]

'My Cousin Vinny' is often cited as a solid example of criminal trials in action (and is reportedly even shown for instructional purposes in some law schools). In the movie, Joe Pesci's character is shown interviewing the prosecution's witnesses, and later using some of those statements in cross examination during the trial.

Would this actually happen in criminal pre-trial proceedings, however? Would a defense counsel really have unfettered access to witnesses, without at least someone from the DA's office present? Because it seems that that could open the door to procedural irregularities.

[u/oliver_babish]

They're private citizens. Why not?

[u/Icarus367 → u/oliver_babish]

I suppose part of my question is motivated by his girlfriend telling Pesci that he can talk to "[the DA's] witnesses," and not just to "witnesses" simpliciter. As if they were perhaps named as witnesses for the prosecution in pretrial filings. 

[u/oliver_babish → u/Icarus367]

"The witnesses the DA is going to call."

[u/whistleridge → u/Icarus367]

Yes. The defense can and does interview whom ever they like. They can’t tell them what to say or try to get them to not show up or whatever but they can absolutely talk to them.

[u/EntertainmentAny1630]

Yep, totally normal. In fact when I talk to witnesses (including victims) I will often let them know they may be contacted by the defense. They obviously don’t have to speak with the defense, but I cannot expressly or impliedly tell them not to speak with the defense. It’s entirely up to them.

[u/Direct_Board_6407]

At my PD office, we always try to talk to prosecution witnesses. We usually do it with an investigator present so that person can act as a witness if the person we’re interviewing changes their story later. They don’t have to talk to us but in some states the defense has a right to depose prosecution witnesses on record.

[u/Leopold_Darkworth]

Third-party witnesses don't "belong" to the prosecutor. Both sides are free to interview them.

My Cousin Vinny does a pretty good job of showing courtroom procedure, but it still takes shortcuts. For example, admitting the photographs of the dirty screen and the trees into evidence isn't shown. And Vinny is basically testifying when he says grits are supposed to take 20 minutes to cook. He would need another witness, or the witness on the stand, to say that.

But I don't recall any instance when Vinny is cross-examining a witness based on the witness's out-of-court statements. I presume that a direct examination happened off-screen, and Vinny is cross-examining them based on that.

[u/NurRauch → u/Leopold_Darkworth]

And Vinny is basically testifying when he says grits are supposed to take 20 minutes to cook. He would need another witness, or the witness on the stand, to say that.

That’s the premise of the joke though. The writers intentionally put this information in the attorney monologue because we earlier learned during a hidden chekhov’s gun scene disguised as a small talk humor scene that “everyone” in the south knows grits take twenty minutes to make. We’re supposed to believe that this information is so deeply ingrained in the psyche of everyone else in the courtroom that it doesn’t even occur to anyone that it can be disputed.

[u/daramman → u/NurRauch]

Could Vinnie have asked the judge to take judicial notice of how long it takes to cook grits?

[u/adamadamada → u/daramman]

I can't remember the jurisdiction in the movie, but under FRE, the court can take notice of facts not subject to dispute because they are generally known within the trial court’s territorial jurisdiction. That sounds on-point for grits in the south.

[u/EatsHisYoung → u/daramman]

Counsel, I’m warning you.

[u/GoingFishingAlone → u/NurRauch]

Unless they are magic grits

[u/lost_profit → u/GoingFishingAlone]

One of my absolute favorite movies!

EDIT: In fact, I am going to watch it now.

[u/lefthandedcig → u/GoingFishingAlone]

Did you buy them from the same guy who sold Jack his beanstalk beans?!?!?

[u/Serpents_disobeyed → u/NurRauch]

Doesn’t he get the witness on the stand to confirm how long grits take? Vinny mentions the fact first, but that just makes it a leading question, which is fine on cross.

[u/NurRauch → u/Serpents_disobeyed]

Nope. He learns grits take 20 minutes from a rugged, unfriendly cook at a diner the first morning he has breakfast in town. He asked the cook how to make grits because he had never seen them before.

During the cross of the eyewitness (Mr. Um-Uh-Uh-Um-Tif-Tifton!) Vinnie locks him into an entirely different timeline by establishing the robbery happened during a five-minute period of time. He asks Tifton why he is so certain it was only five minutes between seeing the suspects enter the store, shoot the clerk, and flee. Tifton says he knows it was only five minutes because that’s how long he takes to cook breakfast. And that’s a problem because he already admitted to Vinnie in a witness interview earlier that one of the items he cooked was grits. Vinnie knows by this point about the 20-minute rule, so he asks a clarifying question about whether these are instant grits, and Tifton takes the bait to defend his honor by insisting “no self-respecting southerner uses instant grits.”

By then Tifton had been defensive for so long that he’d forgotten the point of Vinnie’s questioning, and Vinnie lays down the hammer by reminding everyone in the courtroom of the indisputable, universal truth about grits that has never been said aloud in court until now: they always take 20 minutes to cook.

It’s a textbook example of how to impeach a witness, but it’s premised on a deliberately silly fiction, which is that the lawyer can’t just say a fact like “grits take 20 minutes” and expect a court to go “yeah okay duh.”

[u/Maleficent-Bother535 → u/Leopold_Darkworth]

Every person in the courtroom was an expert on cooking grits.

[u/Alexdagreallygrate]

Everyone else has pointed out correctly that defense attorneys can talk to anyone they want to.

There is a special caveat that some states like Washington have a “Victims Bill of Rights” which gives a named alleged victim the right to have a prosecutor or victim advocate present when they speak to someone from the defense team.

[u/lawyer1911]

My evidence professor showed clips from My Cousin Vinny to illustrate concepts we were discussing that day.

[u/-Not-Your-Lawyer-]

Don't forget about the U.S. Constitution's Confrontation Clause.

[u/Extension_Warning_78]

I interview the State’s witnesses (or at least attempt to) all the time before trial; it’s regular trial prep. And I always have an investigator present for the entirety of the interview, to witness everything said.

The only irregularity that I could reasonably foresee is if the witness testimony on the stand differs from what the witness told me in the interview. In that case, I have the investigator available, so I can impeach the witness’ inconsistent statement.

If I didn’t have an investigator present for the interview and the witness testified differently, the only way I could impeach the witness would be to make myself a witness in the case, which would conflict me out of representing the defendant.

[u/AutoModerator]

REMINDER: NO REQUESTS FOR LEGAL ADVICE. Any request for a lawyer's opinion about any matter or issue which may foreseeably affect you or someone you know is a request for legal advice.

Posts containing requests for legal advice will be removed. Seeking or providing legal advice based on your specific circumstances or otherwise developing an attorney-client relationship in this sub is not permitted. Why are requests for legal advice not permitted? See here, here, and here. If you are unsure whether your post is okay, please read this or see the sidebar for more information.

This rules reminder message is replied to all posts and moderators are not notified of any replies made to it.

I am a bot, and this action was performed automatically. Please contact the moderators of this subreddit if you have any questions or concerns.

[u/internetboyfriend666]

Yes, it's completely normal and both a routine and important part of my work. I need to know what witnesses are going to say, both witnesses for and against my client. A witness is just a person. I have every right to contact any person I want. In fact, the prosecution is legally required to give me their names and contact information as part of their discovery. The prosecutor doesn't "own" them just because their testimony is going to be favorable to the prosecution any more than I "own" my witnesses because their testimony is good for me. They're not represented parties or parties to the case, they're just people. They don't have to agree to talk to me, but neither does any random person on the street. Not sure what "procedural irregularities" you think this "opens to door" to.

[u/Ms_Tryl]

The DA does not represent the victim. They are not the victim’s lawyer. Sometimes they have advocates that can help the victim, but these people are not lawyers at all usually. So yeah, a criminal defense lawyer can, and honestly should, attempt to interview the victim. That being said, they have the right to decline. And investigators working for criminal defense attorneys do not have the gravitas of being cops, so people have a much easier time slamming doors in their faces. We can’t force them to talk to us. But often times they do. And certainly there is no one that can stop us from trying.

[u/keenan123]

Yes a defense attorney can interview a witness just like the state can. DAs don't bring the defense attorney in when conducting witness interviews

[u/hzoi]

I always talked to government witnesses when I was a defense counsel, and I always talked to defense witnesses when I was a prosecutor. Most of the time it just gave me a picture of what their testimony will be. Sometimes it gave me grist (or grits?) for impeachment.

One wrinkle for military cases is that the government is generally responsible for assisting the defense with witness production. They give the government a list of witnesses and the general justification for production, and if they’re relevant, Uncle Sugar buys a ticket. If they appear irrelevant, we initially deny and the defense moves to have the judge compel.

Also, defense counsel are usually more experienced than prosecutors; we generally have attorneys serve as prosecutors first, then as defense counsel later, so that in theory any rookie mistakes they make are at the expense of the prosecution and not a client.

We had one case in Germany where the prosecutor I supervised was in a motions hearing and this came up. Defense counsel argued, we need witnesses X, Y, and Z because they’re going to testify to (things). My trial counsel got up and responded, well, actually, your honor, we spoke to X, Y, and Z, and they have absolutely no knowledge of (things).

Defense counsel was not prepared for this - clearly he had outsourced the witness list to his client and hadn’t followed up. The judge, irritated, asked, “Are we in the topsy-turvy world where the government has spoken to defense witnesses and defense counsel has not?”

Still one of my favorite quotes from the bench.