Category: Courtroom

Supreme Court to Decide Case About Eyewitness Identifications

11/3/2011

Yesterday, the United States Supreme Court heard oral arguments in a case where the question is whether an eyewitness identification of the defendant should have been allowed in court.

Eyewitness identifications are often believed to be among the strongest evidence possible. If someone says they saw the defendant commit the crime, chances are most people will believe the defendant is guilty.

Eyewitness identifications are also a common point of drama in crime stories. A witness looks the defendant in the eye, points from the witness stand, and says, "He's the one. I'm sure of it."

However, many studies have found that eyewitness testimony is notoriously untrustworthy. Of 250 exonerations based on DNA evidence, 190 prisoners had been convicted based on mistaken eyewitness identifications.

That said, identifications are generally only kept out of court when the police used unduly suggestive tactics to get the witness to identify a particular person. Otherwise, traditional trial protections, such as cross-examination, expert testimony, and jury instructions, are relied on to protect against a jury wrongfully convicting someone based on a faulty eyewitness identification.

Whether that will continue to be the case will be decided soon by the U.S. Supreme Court in Perry v. New Hampshire.

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Michael Jackson Death Trial Watch: Goals of Cross-Examining an Expert Witness

10/28/2011

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Several experts have testified for both sides in the manslaughter trial of Michael Jackson's doctor, Conrad Murray. There are two basic, and competing, goals when an attorney cross-examines an expert witness.

Generally, the side presenting the expert will have spent considerable time laying a foundation for the expert witness's expertise: their credentials, education, publications, and experience in the field about which they are testifying.

The opposing side may try to attack the expert's credentials. Maybe they have book knowledge, but little real-world experience. Perhaps their studies have been on a related subject but not directly about the matter in dispute at trial. Regardless, to the extent possible, the opposing attorney will try to minimize the expert's impact by challenging his or her expertise.

Before doing that, however, the opposing counsel should try to use the expert to advance his or her own case. For example, if a defense expert can offer anything in support of the prosecution's case, the prosecutor should try to get that information before the jury. It is very powerful evidence for a witness engaged and called by the other side to give favorable testimony for your case.

Eliciting any favorable testimony should be done before attacking the expert's testimony because the impact of the expert's testimony will be lessened after he or she has been discredited (hopefully).

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May It Please the Court: Know the Proper Protocol for the Court You're In

10/26/2011

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Courtrooms are generally very formal places. They are also places where particluar protocols of speaking and behavior are expected. Using proper court protocol can go a long way, and not using it can doom a lawyer in the judge's eyes.

Protocol is particularly important as a lawyer appears in higher courts - appellate courts and supreme courts. Federal courts are notorious about holding lawyers' feet to the fire for failing proper protocol. I once saw a federal district court judge scold a female FBI agent who was a witness for wearing a pants suit instead of a skirt suit. I also once saw a federal judge harshly scold an attorney for failing to immediately stand upon addressing the court.

Judges are in charge of the courtroom, and are generally the people deciding the outcome of a case, particularly once you get past trial. Even in trial, they make many legal rulings along the way that can greatly affect the outcome. Many believe they can even have an influence over a jury's decision at trial.

In short, a lawyer should try to keep the judge or judges happy. Or at least try not to irritate them. Failing to follow proper protocol (even a judge's idiosyncratic protocol applicable only in his or her courtroom) is one of the easiest ways to irritate a judge.

Some examples of courtroom protocols include: standing when speaking; addressing the court as "Your Honor"; stating "May it please the Court," before beginning an argument; asking to approach the witness before walking up to the witness stand; asking to move anywhere in the courtroom before leaving the lecturn; not making "speaking objections"; and keeping out of "the well."

To maintain authenticity in a fictional work, a writer should be aware of the common protocols in the courtrooms about which they are writing, so their fictional judges and lawyers may act accordingly.

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"The Prosecution Rests"

10/21/2011

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The prosecution is expected to rest today in the trial of Michael Jackson's doctor. What does it mean when the prosecution "rests?" It basically means the prosecution has finished presenting the evidence it has to try to prove the defendant guilty. It has finishind its case-in-chief. The defense then has the opportunity to put on evidence if it so chooses.

Unlike the prosecution, the defense in a criminal trial need not put on any case at all. This is because the prosecution has the burden of proof. To convict someone, the prosecution must prove the defendant is guilty beyond a reasonable doubt. Here, the prosecution must prove, beyond a reasonable doubt, that Dr. Murray committed involuntary manslaughter against Michael Jackson. (See prior posts here and here for more about the involuntary manslaughter charges.)

Once the prosecution has presented all the evidence it believes proves the defendant guilty, it rests its case. The defense then has the option of putting on its own case. However, the defendant need not do anything. He may simply attempt to poke holes in the prosecution's case, and argue to the jury that the prosecution did not meet its burden of proof.

If the jury has a reasonble doubt, whether based on weaknesses in the prosecution's case or the strength of the defense evidence or both, it must acquit. Although they need not do so, Dr. Conrad Murray's defense attorneys have indicated they intend to call witnesses in his defense. If Dr. Murray chose to testify, that would also happen during the defense case.

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One of the Best Courtroom Drama Scenes Broke the Rules

10/19/2011

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Knowing the rules of criminal law is essential to creating a piece with authenticity. However, that does not mean that the rules must always be followed. Breaking the rules for the sake of drama is perfectly acceptable and often necessary to create a compelling story. The key is to first know what the rules are, so you can then make an intelligent decision about how and when to break them.

One of the best courtroom drama scenes in movie history broke the rules and did it in a way that did not take away from the film's authenticity. Remember this exchange?

        Witness: You want answers?
        Attorney: I think I'm entitled to.
        Witness: You want answers?
        Attorney: I want the truth!
        Witness: You can't handle the truth!

Of course, this is the height of drama in the courtroom scene of A Few Good Men. This is the culmination of an epic battle between Tom Cruise as the defense attorney and Jack Nicholson as the witness.

This exchange is followed by a long recitation by the witness about the importance of the military to our ordered society even though we sometimes do not like the way they conduct their business.

This scene breaks the rules because trials are conducted in a question-and-answer format. The lawyer asks questions, and the witness answers. Here we have the opposite. The witness is asking questions and the lawyer is answering. Then the witness gives a long speech that is not in response to any question. (The objection there would be "nonresponsive" or "no question pending.")

However, it works for the story here because Tom Cruise's character is trying to push Jack Nicholson's character to admit that he gave the order that killed the victim and is therefore responsible for the death. It's an important reveal for the witness to explain why he does what he does even though most people would consider it "wrong."

More importantly, the movie can break these rules for the sake of drama without losing credibility because most of the movie is very authentic. There is an understanding of the way criminal cases and trials really operate that pervades the entire movie. That kind of authenticity throughout the story permits the knowledgeable viewer to forgive the occasional rule being broken. Especially when the result is such great drama!

The lesson is that breaking the rules doesn't take away from credibility when it is done conscientiously and with an understanding of the choices you are making.

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Crime Scene and Dead Body Photos: When Are They Permissible?

10/13/2011

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This week in the manslaughter trial against Michael Jackson's doctor, the prosecution showed a photo of Michael Jackson's dead naked body. News reports were that it was a shocking moment in court, with audible gasps and at least one spectator leaving the room. Why was the prosecution allowed to admit the photo?

In a homicide case, the prosecution must prove that the victim is dead and that the defendant is responsible for that death. Photos or sketches or diagrams are often introduced. They are generally relevant to show the person is dead, and sometimes to show how they died or did not die.

Unless there is some reason to exclude, evidence that is relevant to an issue in the case is generally admissible. Evidence is relevant if it has some tendency to prove the defendant committed the charged crime.

Even relevant evidence can be excluded, however, if it is unduly prejudicial, repetitive, confusing, or will take a long time. Often, crime scene photos or dead body photos will be excluded as unduly prejudicial. In other words, any value the evidence may have of proving a fact is substantially outweighed by prejudice to the defendant.

If a crime scene photo is especially gruesome, it may be excluded. The concern is that the jury would be so upset by the photo that they would judge the defendant guilty based on emotion rather than evidence. It is up to the judge to determine whether a photo will be admitted in a particular case.

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Competency versus Insanity

9/29/2011

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Yesterday, a judge considered the competency of the man charged in the Arizona January shooting rampage that killed six and injured Congresswoman Gabriel Giffords. Although Jared Loughner has been charged in the case, he cannot go to trial until he has been declared competent to do so. There was some indication that, once competent to stand trial, he may claim he is not guilty by reason of insanity.

This begs the question: what is the difference between competency to stand trial and the insanity defense? There are three basic differences:

The first difference is the timeframe considered. Determining someone’s competency to stand trial is concerned with their mental state at the time of legal proceedings and trial. Whether a person can be found not guilty by reason of insanity is determined by looking at the person’s mental state at the time the crime was committed. So, competency is concerned with today, whereas insanity is concerned with a distinct point in the past.

The second difference is the standard. Competency is determined by whether the defendant can understand the nature and consequences of the criminal proceedings against him and whether he can assist in his defense.

The insanity defense varies greatly from state to state. Federal courts use the M'Naghten test to determine if someone is legally insane. The M'Naghten test generally asks whether the defendant, because of a defect of reason, either did not understand the nature and quality of his acts or did not know that his acts were wrong. (Check out this post for more about the insanity defense and the M'Naghten test.)

The third difference is procedural. Competency is determined by the judge, and must be considered before a trial can take place. If found incompetent, the defendant is treated in a mental facility and is periodically evaluated to determine whether he has gained competence.

Insanity is determined by the jury (assuming the defendant has a jury trial). It is a complete defense to the crime charged. The idea is that if a person was insane at the time the crime was committed, he or she is excused from responsibility for the crime, and must be found not guilty. However, being found not guilty by reason of insanity does not mean he goes free. Generally, the person found legally insane can be locked up in a mental facility until doctors determine he or she is safe to return to society.

For more on the insanity defense, check out this post.

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Best Legal Comedy Ever!

8/26/2011

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There was a legal comedy that came out in the 90s, that scores Best All-Time Legal Comedy in my book!

A couple of New York college kids are driving out west when a criminal mix-up at a small-town southern store gets them picked up by the local sheriffs. The two unwittingly confess to murder, and now have to try to navigate Alabama's criminal justice system with the electric chair hanging over their heads.

One of the boys has an attorney in the family who travels from New York to help them out of their predicament. Of course, it's My Cousin Vinny!

This movie is hilarious, and gets extra points for its relative courtroom accuracy. Most criminal lawyers have appeared before a cranky old judge who's a stickler for the rules. Also, it's a well-known belief that an out-of-town attorney is not going to fair as well (with juries or judges) as a local. This fish-out-of-water story captures that beautifully! Finally, the vast difference between law-school law and courtroom law is on full display!

Close runner-up: Liar Liar - less realistic courtroom scenes but hilarious!

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Blythe Leszkay is a successful and experienced criminal attorney, criminal law professor, and consultant to writers and filmmakers. See About Me. This blog is intended to answer common criminal law questions, dispel misconceptions, and explain misunderstood criminal law concepts. It is also a place to discuss any crime or law related topics of interest. Contact me for a free initial consultation on your film or writing project.

Supreme Court to Decide Case About Eyewitness Identifications

Michael Jackson Death Trial Watch: Goals of Cross-Examining an Expert Witness

May It Please the Court: Know the Proper Protocol for the Court You're In

"The Prosecution Rests"

One of the Best Courtroom Drama Scenes Broke the Rules

Crime Scene and Dead Body Photos: When Are They Permissible?

Competency versus Insanity

Best Legal Comedy Ever!

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