Jackson Case: Go To The Video!

Attorney Andrew Cohen analyzes legal issues for CBS News and CBSNews.com.

Waiting until the prosecution's rebuttal case to unveil the most emotional piece of evidence of the whole trail, and gambling that the judge would in the end allow it before jurors, Sneddon showed the panel Friday a police videotape of an interview conducted with Jackson's accuser soon after the young man's family had reported a crime.

The tape was raw, powerful, and emotional. In it the young man displayed the sort of sympathy-inducing demeanor and tone that was notably absent from his repertoire when he testified in person a few months ago. In chilling detail, he described the alleged acts of molestation that are at the core of this case. In other words, he acted like a genuine victim and not, as he had in court, like a street-wise punk.

In case that is all about credibility, the videotape does not answer the question of whether the young man is or is not lying. But it does offer jurors another perspective on the alleged victim that can only help prosecutors as they soon make their last-ditch plea for a conviction. The tape surely fills out and softens the image of Jackson's accuser that jurors will take with them into the jury room later this week. And in that sense its presentation to the jury, near the end of the case, is a great move for prosecutors who had seemed until this moment at trial to be always and obviously one step behind their defense counterparts.

What did the tape do? It humanized the alleged victim and made him seem sympathetic. Now, if you are thinking to yourself: "You mean, an alleged victim of child molestation, and a cancer survivor to boot, hasn't already been seen by jurors as sympathetic?" You have distilled into a single thought the problem prosecutors have had throughout this odd trial. Until the playing of the videotape, Jackson's accuser came off to many as more predator than prey; as someone who was so rough and gruff and misbehaved that there is no way the slender, frail, little defendant could have abused him.

The big reason for this pre-tape perception is the alleged victim himself, who testified a few months ago in a manner that must have dismayed prosecutors. He couldn't remember the exact number of times he said he was molested by Jackson. He snapped back with a snarl at lead defense attorney Thomas Mesereau when the latter pushed him on cross-examination. He was confused about dates and about prior statements he had made and heard. He was even forced to concede to jurors that he had told his former middle school dean that he had not been molested. If you score a witness' testimony on a scale of one to 10, his was about a three — and he was by far the most important prosecution witness who testified in the whole long trial.

But while you never get a second chance to make a first impression, you do get a chance as a lawyer in a long trial to shore up creaky evidence and witnesses. And that's what the videotape did for Sneddon and his team. Now jurors have two contrasting images of the young man to choose from.

Now they have a question to ask: "Which was the real young man, the one who testified or the one in tears with the cops?" The resolution of that question could arguably could lead to Jackson's conviction. For prosecutors, that question in the jury room is a lot better than this one: "Can you believe what a jerk that young kid was when he testified?"

Given the impact of the tape, some courtroom observers therefore were stunned when Mesereau, the defense attorney, chose not to respond to the videotape with any other witnesses or evidence. On Thursday, the defense had told the judge, and the rest of us, that if prosecutors were to be able to show the videotape they, Jackson's attorneys, would be forced to call back to the witness stand the alleged victim and his mother (whose testimony was just as bad for prosecutors). But after the videotape was shown, the defense merely rested. A grand concession on the part of the defense? A monumental mistake by careful attorneys? Fateful inaction brought on upon mere shock?

I don't think so. We won't know until after the verdict comes in precisely why Mesereau decided not to do anything to respond to the videotape. And, if Jackson is acquitted, we may not know for a long time. But it is fair to say, even now, that defense attorneys must have felt as though there was more risk than reward to bringing the young man and/or his mother back into court. Perhaps Team Jackson figured there was nothing the young man could do worse on the stand-that his testimony would only be improved (for prosecutors) the second time around?

Perhaps the defense felt that jurors would perceive it as unfair (or just plain a waste of time) to muddle the trial up further so close to the end? Perhaps Mesereau felt that the videotape in the end played into his theme that the alleged victim and his family are cunning actors, capable of playing victim, aggrieved party, or just plain pushy at the drop of a hat. Whatever the case, the defense was not surprised by the videotape-surely defense attorneys had been given a copy quite some time ago. And surely they knew, or at least should have known, that Sneddon ultimately would play the tape. About the only thing that could have prevented that was a smooth bit of testimony from Jackson's accuser and that wasn't close to what happened.

So the evidentiary part of the trial winds down with momentum in the prosecution's favor. The question is whether it's enough to offset weeks and weeks of hard hits against Sneddon's case. It's a question that jurors soon (and finally) will be able to begin to answer for themselves.