High profile cases have been proving me wrong lately.  Kind of. 

One of my big gripes with film and television crime shows is their common depiction of a criminal suspect or defendant talking to police while his lawyer sits idly by.  This is a common complaint of mine because criminal defense lawyers almost NEVER let their clients speak to police, and for good reason.  Criminal lawyers know that the best evidence against someone is often their own words. 

No matter how clever someone thinks they are, there is almost never anything they can say to help themselves once  the police have targeted them as a suspect, and certainly not once hthey have been charged. 

That said, Jerry Sandusky, a former Penn State football coach, who has been charged with 40 counts of molestation against 8 boys, spoke to sports reporter Bob Costas, this week.  During the interview, Sandusky admitted almost all of the allegations against him short of the ultimate sexual acts.  Most reports of the interview concluded that it did not help him at all, at least in the court of public opinion. 

Chances are good that if Sandusky goes  to trial, the prosecution will play the tape of his interview to the jury.  The jury will likely see Sandusky's words in a bad light as well, and it will come back to bite him. 

This is exactly what happened recently during the involuntary manslaughter trial against Michael Jackson's doctor, Conrad Murray.  I used that case as an example of why suspects should not, and usually do not once they have a lawyer, speak to police.  Speaking to a reporter is not any different.

Sandusky's lawyer has gotten a lot of flack as a result of letting Sandusky do the interview.  Of course, if a client insists on talking, there's really only so much a lawyer can do.  And who knows how things played out between Sandusky and his attorney.  At the end of the day, however, this case stands as yet another example of why suspects and defendants should not talk, and, more importantly, why criminal defense attorneys almost never let that happen.

Sign up for your free Writer's Guide:  Top 7 Mistakes Made by Writers of Crime, Mystery and Legal Drama, which includes more information about the value of remaining silent.

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. 

Closing arguments are set today in the trial of Michael Jackson's doctor, Conrad Murray.  This is the point where each side will pull together all the evidence the jury has heard, and explain why the evidence points to guilt or not.

Closing arguments are often the most exciting part of a trial because this is the only time that the lawyers are permitted to "argue."  They must confine their arguments to the evidence that was admitted at trial, or reasonable inferences that can be made from that evidence.  The lawyers must also tailor their arguments to the law that the jury is instructed to apply.

Procedurally, the prosecution goes first.  This is because the prosecution has the burden of proof.  The prosecution must prove the defendant guilty beyond a reasonable doubt.  During closing argument, the prosecutor will explain how the evidence proves the defendant guilty.

The defense then argues why the evidence does not prove the defendant's guilt beyond a reasonable doubt.  The defense attorney may even argue that the evidence demonstrates innocence, although such argument is rare.  Usually, the defense strategy is to poke holes in the prosecution's case, bit by bit, to show there is a reasonable doubt about guilt.

Finally, the prosecution is permitted a rebuttal argument to respond to the defense.  Again, because the prosecution has the burden of proof, they are permitted the last word.

In the end, however, the jury's decision must be based on the evidence and the law.  The attorneys' statements and arguments are not evidence.  They are merely provided as an attempt to guide the jury in its decision.

I had two articles published this week.  Check them out:
* Motive and Opportunity: Are They Necessary to Prove Murder?
* Writing With Authenticity, Even While Breaking the Rules

I was also named an expert by Ezinearticles.com in the fields of criminal law and creative writing! 

For other articles I've written, check out the Resources page.

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).

Can someone be tried and convicted of murder when there is no dead body?  The answer, as in much of the law, is "it depends."

To convict someone of murder, the prosecution must prove the defendant killed the victim.  This means there must be proof that the victim is in fact dead.  This is usually proven with the discovery and examination of the dead body. 

However, it may be possible to prove the victim's death in other ways.  For example, let's say the victim was last seen alone in her apartment on a Friday night, and the next morning, her apartment was found with a large pool of blood that matched the victim's  DNA, and she was never seen or heard from again.  That would be strong proof that she had died, even if the authorities never found her body.  It would be even stronger if an expert testified that the victim could not have survived after losing the amount of blood found.

Of course, there would still need to be evidence tying the defendant to the killing, but as far as the death is concerned, that could be proven even without a dead body. 

Without such strong evidence of death, the defense would likely argue that the victim simply ran away.  If there was no pool of blood in the example of above, but the victim was merely never seen or heard from again, the defense would have a good argument that no murder in fact occurred. 

I short, it is difficult to prove a murder case without a dead body, but not impossible.

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. 

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.

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.

Dr. Conrad Murray spoke to the police a couple days after Michael Jackson died.  Those statements were recorded, and the recording was played for the jury in his manslaughter trial today.  Why were such out-of-court statements admissible?

Generally, a statement made to another person outside of court, is inadmissible as hearsay.  The idea is that what someone told someone else at some other time is not subject to cross-examination, and is therefore unreliable.  There are, however, many exceptions to the hearsay rule.

One exception is called a "party admission" or an "admission by a party-opponent."  When a party to a court proceeding, a criminal defendant in this case, makes a statement to someone outside of court, those statements are allowed to be used against him in court.  This is because the person who made the statement - the defendant here - can testify to explain or deny the statement. 

It is important to note that only the prosecution can introduce a defendant's prior statements under this exception.  A defendant may not introduce his own out-of-court statements.  This is to prevent the defendant from presenting his story to the jury without undergoing cross-examination. 

To ensure the jury has a clear picture of what was said, however, the defendant may instroduce part of the statement if the prosecution presented only part of the statement.  This is called the rule of completeness.

Miranda and the Fifth Amendment right not to incriminate oneself may play a role as well where the statements sought to be introduced are a defendant's statements to the police.  But that is a different topic for another day.  See my prior related post about why someone suspected of a crime should almost never talk to the police.