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How a Bogus Witness Is Brought to Court and Made to Appear Genuine

Written by: Peter Christopher Lomtevas

Reputation Level 14

Family Family Court

Posted almost 3 years ago. 2 helpful votes, 0 comments

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The Shill Witness is Selected

Assume a child neglect/abuse proceeding is ongoing before a family court judge. The middle class client lost all contact with his child as a result and brief visits are supervised. A government opponent greedy for federal funds working in synergy with a court wishes to build a record against your client. A genuine witness is not available and that witness would not otherwise testify. This could be a refusal to testify because in actuality, nothing happened, or this could be a fear to testify because of future reprisals by your client. The shill witness is typically a "supervisor" of the main witness. This has the effect of giving the appearance of greater authenticity and believability than if the real witness appeared and testified. In a forensic setting, the shill could be a therapist instead of the evaluator. The evaluator may have failed to make a diagnosis but the subject may have been forced into "therapy". The treating entity appears to speak with authority and genuineness.

The Shill Witness Speaks

Typically, the shill witness has little to nothing to say. "The child was afraid of her father" is the feature of the testimony, but no foundation is possible because the shill never saw the child and the father. The court will sustain objections of the proponent of the witness to foundational questions: how long have you worked there is sustained as irrelevant; what education do you have is sustained as there being no intent to qualify the witness as an expert; where is your office located is sustained as outside the scope of direct. Foundational questions require the witness to place herself in date, time and place near the observation so as to properly offer testimony as to personal, first hand knowledge. The proponent of the shill witness wants to prevent that foundation for fear of exposure that the witness is a shill.

The Role of the Court

The court's participation is crucial to this ruse because a motion to strike the testimony of the shill becomes impossible and the single observation germane to the issue is repeatedly placed on the record by the shill. The Court's role is to be the final arbiter of the record, but with the shill witness, the court helps to fabricate the record. In the ordinary course, all the court has to do is to sustain objections that tend to reveal the failure of foundation of the shill and overrule objections that tend to bolster the testimony. Realizing this situation, the typical practitioner runs off to serve a subpoena upon the actual fact witness - the subordinate - but the court will grant motions to quash the subpoena on the ground that the witness is "cumulative". The Court will allow extensive questioning of the shill within parameters that will secure the record: that the shill's account is credible and that she is a supervisor in a position to report her findings.

The Damage Done

On appeal, the shill appears to be ultra-authentic. The trial court found the witness to be especially credible because of the supervisory position. Further, continued sustained objections as to foundation makes you appear to be petulant and non accepting of the important testimony of the witness. This opens up a side show: the sanctioning of the misbehaving attorney. Here, the case is completely diverted to the erring lawyer rather than the genuineness of the witness. Forensic reports are used to sanction attorneys and shill psychologists are allowed to decide important issues in a case. The appellate court will affirm the trial court. This is intended to make the client feel as if you, the attorney, don't know what you are doing and acts as a coercive method to get the client to abdicate his position and accept a settlement. Assuming this is a child abuse/neglect proceeding, the agreement may include termination of parental rights or a change of custody of a child.

The Policy of the Government

This reflects a policy of manufacturing coerced settlements: the false witness, the sustained objections, the overriding acceptance of the opponent's position and the lack of performance of the loser's lawyer. If the loser is paying money for private representation, then the appearance is that this money is being wasted. The losing attorney is fired and replaced by another programmed loser. This tends to support the creation of pools of lawyers who tank the case on the expectation that in later litigation, they will be handed a win. Lawyers who participate in this circle of losses and wins are referred to as "good" attorneys. Assigned counsel (free attorneys) are compelled to work under these conditions. The difference is that the client's case may appear before the court at a time of a win, so that client wins.

Why is This Happening

In modern family litigation, the remedy is granted up front, for example, the allegation of abuse yields a take away of the child first, and then a case is manufactured later. If the removal was bogus subjecting the government to possible suit, the court with its shill witness serves as a cure to the falsity of the removal. False removals include: a child's alleging he was beaten, but a prior report of the abuse was unfounded; the wrong child was removed; an oppositional defiant child was removed and the list goes on and on. The shill can be a lay witness or an expert witness. In both cases, there is never any foundational documentation as to the authenticity of the witness and the witness is shielded from foundational questions as to their presence and actual observation of the events testified to.

What to Do

Announce prior to any testimony that you object to the introduction of a supervisor. Declare that there is a missing witness in the case. The Court will announce that a missing witness charge is a charge to a criminal jury. State your declaration again. Demand a voir dire of the witness prior to any testimony. Demand a curricular vitae to determine whether the witness is actually a supervisor anywhere. The typical shill is a stranger to the case and has been programmed to make the one assertion your opponent seeks. This anonymity makes it impossible to later prosecute the shill for perjury. Speed up the proceedings. The shill slows down the tempo of the case so the child remains remanded and your client continues under supervised visitation. Locate your federal funding unit and report these proceedings. Appeal to the highest court to invoke their supervisory jurisdiction. Use your right to vote.