Ever wonder how a witness is brought into court, appears to not know anything yet makes a record in favor of your opponent. This guide explains how a "shill" witness is protected and what damage is done to your case.
1
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.
2
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.
3
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.
4
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.
5
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.
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