Today, Mr. Akio Toyoda, President of Toyota Motor Group, appeared before the United States Congress offering apologies, condolences and acknowledgements of problems with Toyota vehicles.
Meanwhile, back at the Justice Department, Federal Prosecutors were floating the idea of filing criminal charges.
No doubt Mr. Toyoda's Corporate advisors assured him that testifying made excellent business sense. And if his lawyers advised the Boss that the Rules of Court bar evidence of subsequent remedial measures in a civil trial, their advice was technically correct.
In the Public Relations business, the advice de jour is to get out in front of the news with frank admissions and profuse apologies. But even the great Akio Toyoda can't run a global car company from a jail cell.
On the criminal law side of the equation, the advice is quite the opposite. At trial, all evidence comes through the mouths of witnesses (even physical evidence is introduced through testimony). So in every trial, the Defendant's entire fate turns on the words spoken from the witness stand. And few items of trial evidence can be more devastating than the Criminal Defendant's own statements.
In the context of a Criminal Trial, the Defendant's words fall into two categories: Admissions and Confessions. Under current Michigan case law, an admission is any relevant statement made by the Defendant. In contrast, a confession is any statement that supports all of the elements of the criminal charge. In other words, an admission is a mere brick in the wall, while a confession is the entire structure.
That said, the Criminal Defense Lawyer's best advice ahead of testifying before the Congressional panel yesterday would have been: Use the "IF" word.
For example - instead of Mr. Toyoda stating "We pursued growth over the speed at which we were able to develop our people and our organization, and we should sincerely be mindful of that", Mr. Toyoda should have said: "IF we pursued growth over the speed at which we were able to develop our people and our organization, we should sincerely be mindful of that.
What difference can a simple two letter word make? In this case - perhaps the difference between jail and freedom.
UPDATE 1-Toyoda says 'deeply sorry' for accidents, Reuters US Edition, February 23, 2010
