5.Hearing on Questions Presupposing Teresa Halbach’s Death and Date
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MR. STRANG: I do. Uh, Your Honor, there have been, uh, I don't know, a number of occasions, most recently on the direct examination of, uh, Karen Halbach just before lunch, in which the prosecution has posed questions on direct examination that, um, assume as a fact, or presuppose, either a killing, um, in the case of the question as posed here today, or that it is somehow established beyond, uh, dispute, or tacitly conceded that, um, the murder alleged here actually did occur on October 31.
Those kinds of questions, um, not only invade the province of the jury, I mean, as -- assume the ultimate facts to be decided here, and the, uh, the actual elements of the, uh, most serious charge, but, also, tend to suggest superior knowledge on the part of the State or -- or of vouching, in effect.
I don't think they're properly put. Um, I don't think that's a -- a, uh, proper question. Um, we are coming up on three weeks into a trial, and not only has the State not established beyond dispute, um, the death, uh, of Ms. Halbach, or on any specific day, but almost three weeks in, we don't know -- we don't know at all how she died, when she died, uh, where, exactly, they say she died or why. Uh, the State says she died.
So, uh, I -- I -- I'd like the Court to instruct, um, Counsel that questions ought not be phrased in a way that tends to vouch for or invade the, uh, province of the jury in that way or to suggest some superior knowledge on the part of the, uh, State and its agents.
THE COURT: Mr. Kratz or Mr. Fallon? Who's going to be responding?
MR. KRATZ: Certainly is the theory of the prosecution, Judge, that Ms. Halbach, uh, was murdered. As I recall, uh, that was not going to be disputed by the defense. If they, once again, changed their theory of defense, then, once again, we'd like to know that.
That, not withstanding, Your Honor, phrasing the question regarding Ms. Halbach's murder is consistent with our theory of the prosecution, what we think is that the evidence that has already been, uh, elicited, uh, at this trial, both, uh, through expert and, uh -- and lay witnesses.
Uh, if Mr., um, Strang would like to argue to the -- the jury upon closing that Ms. Halbach, um, uh, was not, in fact, uh, murdered, uh, if some other reason exists for her not being in this courtroom, then I guess, uh, we, uh, can hear it at that time. But until that moment, uh, I do believe that it is, uh, within our province to frame those questions in that regard.
I suppose I could, um, always use the word "alleged" but since we are an advocate in this case, since we advocate for a position, we are advocating the position that Ms. Halbach was, in fact, murdered, and until the Court tells us we can't, uh, I intend to, um, um, elicit questions that, uh -- that presuppose that fact, because at least up to this point, the State believes that that has, in fact, been proven or a reasonable inference of -- can be drawn by this jury that that has occurred.
THE COURT: I don't remember the specific comments. I thought, going back to the defense opening statement, that there wasn't a dispute that the victim was murdered. But I -- When the date, October 31, was used, I guess that's what I thought that Mr. Strang's comments were going to be directed to. Mr. Strang?
MR. STRANG: Well, that -- that is primarily, you know, killed on October 31, killed on your father's birthday, um, you know, and there -- there's a difference between what we may choose to argue to a jury and the State's burden of proof on every essential element.
There's only one essential element of the four charges here that we've stipulated. That's it. One, that he was a convicted felon as of the relevant date in 2005.
Um, so what we actually choose to be -- argue to the jury has nothing to do with the form in which the State poses questions on direct examination of witnesses who are not hostile and are not appropriate either for leading or for vouching.
Uh, so I -- You know, it -- it's not the evidence that is objectionable, it is the form of the question that purportedly seeks to elicit the evidence, uh, that causes me to, um -- to ask for the Court's instruction.
THE COURT: All right. Well, um, as the trial has gone on, and I can only respond to objections as they're made, if I -- I may have misunderstood the, um -- the extent to which the defense was not contesting some of the items alleged by the State, but I understand your point and, um, if, uh, another question is made that the defense's feel objectionable, uh, object to it at the time and I'll rule on it.
Anything else before we bring the jury back in?
MR. STRANG: No, Your Honor.
MR. FALLON: I think we're just waiting for the clerk to finish marking exhibits.
(Jurors in at 1:10 p.m.)
THE COURT: You may be seated, and, uh, Mr. Fallon, you may call your next witness.