Although the fictional legal world of TV, movies, and mass-market paperbacks often turns on dramatic courtroom surprises, trying to sneak in unexpected witness testimony can destroy your case in real life. David Kravets over at Ars Technica reports on the fate of Matthew Crippen, who the government accused of running “a small business from his Anaheim home modifying the firmware on Xbox 360 optical drives to make them capable of running pirated or unauthorized games” in violation of the Digital Millennium Copyright Act. The trouble started on the prosecution’s very first witness, who
said Crippen inserted a pirated video game into the console to verify that the hack worked. That was a new detail that helped the government meet an obligation imposed by the judge that very morning, when [the judge] ruled that the government had to prove Crippen knew he was breaking the law by modding Xboxes.
Unfortunately, this was the first time any witness for the prosecution accused Crippen of actually running a pirated game:
nowhere in [the witness’s] reports or sworn declarations was it mentioned that Crippen put a pirated game into the console.
This was a huge mistake by the prosecution and deeply unfair to Crippen. With the judge chewing them out and their case unraveling, the prosecution decided,
[i]n light of that omission and “based on fairness and justice,” [to move] to dismiss the case, conceding that the government had made errors….
Unlike the fictional worlds of David E. Kelley, the real law doesn’t like surprises.