The Man On The Cigarette Packet

This is the tenth post of the series 'LegalTrek'. The last post was 'Art of Cross Examination'. This post explains why many witnesses are honestly mistaken about the identification and why leading question are not allowed in the Examination-in-Chief.

LegalTrek 

How I Became A Lawyer।। Allahabad High Court Is Born।।Lucknow Bench - Historical Necessity।। Introduction to Setalvad।। Benches and The Law Commission।। Court of Appeal – Not A Good Idea: Some Suggestions।। Courtroom - Finest Legal Biography।।Leibowitz - The First Case।। Art of Cross Examination।। The Man On The Cigarette Packet

Leibowitz was often skeptical on identification of the accused. He used to say that witnesses can look at something without seeing it. But maintain that they do not knowingly give false statement because they bonafide believe it. 

After Leibowitz became a judge, he was once invited to speak before Lawyers' club dinner. The toastmaster introduced him by saying that in his court a new judicial presumption has been established - 'The eyewitness may well be mistaken' and 'no defendant was ever convicted in his court on false or mistaken testimony of eyewitness'

When Leibowitz got up to speak, he talked about some cases of mistaken identity and then asked how many of them smoked Camel cigarettes. At that time, it was a popular cigarette in US. About one quarter, including the toastmaster, raised their hands.  He chose the toastmaster and four others. 

Leibowitz asked the toastmaster how many he smoked per day. The toastmaster said that he smoked two packets a day, for last twenty years. Leibowitz roughly calculated - two packets a day or about seven hundred packets a year or fourteen thousand packets in the last twenty year. 'With 20 cigarettes in a packet, you must have taken out the packet half a million times' he said.

Leibowitz gave five of them a piece of paper and asked them to write an answer to the question, 'In the picture on the packet, is the man leading the camel, or sitting on its back'. 

The men wrote their answers on the paper and gave it to  Leibowitz. He read the answers, 'Two of you say that the man is leading the camel; two say that he is on the back and one writes that there is no man'. He asked them to take out the packet and see the answer. To their surprise, they found no man in the picture. 

Then, Leibowitz explained the difference between seeing and perceiving.  They had seen the picture but had not perceived it and there was element of suggestion that there was a man. This is common in real life.

We all know that in the examination in chief, leading questions are not permitted but in cross examination, they are permitted. The reason is to obviate the bias due to suggestion. 

  

However,  Leibowitz would not be remembered for  all this. He would be remembered for Scottsboro Boys' case: the most important constitutional case in US in the twentieth century; the case that inspired Harper Lee to write 'To Kill A Mocking Bird'. The trial of Scottsboro Boys' case took place in Alabama. Lee was also from Alabama and, at that time, was of the same age as Scout, the protagonist of the book. In the next few posts, we will talk about this case.

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