Category Archives: Trial
Everyone has their own style of how to practice and there are countless articles, books, etc. on how to give a proper summation. Truth is that there is just no one way. Who knows if the summation is what worked or not? Maybe the case was won or lost before you even gave your opening? There is just no way to really know unless you are in one of those jurisdictions where someone gets to speak to the jury after the trial. In my opinion, your summation should be drafted well in advance of you giving your opening. I know this is foreign for some attorneys but it has served me well. Of course, the summation will be edited as the trial move forward. However, I have found that having most of the trial scripted ahead of time allows me to have a very relaxed approach as I don’t have to worry about what to say at any given time. I can concentrate more on listening to the testimony and thinking creatively about how to adapt my strategy as unexpected issues arise. For me at least, my track record shows that this is a sound strategy.
Just like with the opening statement, the summation should be hard hitting right out of the box. Tear apart the State’s case and go through each witness. Explain how the State failed to prove its case and why the witnesses actually support the defense’s case. I like to explain why we got here to begin with which is usually a haphazard investigation that focused solely on the defendant’s guilty instead of what really happened. The State will have likely left a lot of stones unturned and its the defense’s job to expose them all. The jury instructions should also be explained but only those that focus on the defense’s theme, I.e reasonable doubt and the element or elements of the crime you are attacking. Remind the jury about your laser like focus on the issues that create reasonable doubt and how the State danced around those issues by wasting our time with various nonsense that does not prove anything.
Should the Defendant testify?
Some criminal defense attorneys take the position that the defendant should never testify. This is foolish and I have had great success with the defendant testifying. Of course, if you do it enough, it is bound to blow up in your face. Like anything else in defense work, I only do what it necessary. If it isn’t necessary, don’t take the chance. If you call your client because it was necessary and it blows up in your face, then you are likely in the same position if you didn’t call the defendant anyway.
The best trial run for a defendant is a Miranda hearing (assuming the client made a statement). The defendant can really be put through his paces and see how they handle the witness stand and more importantly, cross examination. In one child pornography case I had, I called my client during the Miranda hearing. The prosecutor destroyed him and from that point on, we decided that he would not be called during trial. Luckily, we won the trial without having to call him because we adapted our strategy well ahead of time.
While I am open to all options, I think the prime scenario for calling a defendant to testify is where he/she made a statement that needs further explanation due to ambiguities that the State can go far with. If these problems are not cleared up, the case may be hopeless. Thankfully, I haven’t had to do this in my own practice but I have seen a few cases on appeal where this was an issue. Again, it should be the last resort. Of course, the final decision as to whether or not the defendant should testify is the defendant’s alone but I have found that almost all will follow their attorney’s advice.
The witnesses that the State will call
Of course, every child pornography case is different and who the State will case is dependent upon the facts of the case, the possible defenses and the personal style of the prosecutor. Nevertheless, there are some patterns that emerge. In no real order, the State may call the following witnesses in a typical child pornography P2P trial:
Case agent, lead detective, initial detective, undercover detective
Whatever you want to call this person, he/she is the person that was in charge of the initial downloading process although they may have had limited involvement at the time of the arrest. Typically, they will search for the child pornography, download it from the client, prepare and send out subpoenas and then prepare the search warrant. They may not actually execute the search warrant or have any other involvement after that except for possibly a supervisory role. However, during their testimony they may testify as a non-expert on how a P2P program works. In the end, this witness will be a big nothing as they will not have any interaction with the client and this fact should be brought out in a number of ways on cross. I will not detail them here however.
If the undercover detective does not participate in the execution of the search warrant, two other detectives will likely take over the case from there. Along with over a dozen other officers from a SWAT type unit, they will execute the search warrant, collect the computer(s) and bring the client down to a local police station to be questioned. While short of doing the good cop bad cop routine, these officers will question the client and it should all be recorded.
This may be the most important witness(es) as these detectives helped to determine who will be interviewed, what will be asked, etc. The defense attorney needs to get very creative with cross examination here.
Witness with regard to return on search warrant
A minor witness may be a chain of custody witness that drafted the return on the search warrant and transported seized equipment from one place or another. Sometimes, both sides can stipulate to the documents that the witness would introduce to avoid pointless testimony.
Prior to any search warrant, there is at least one detective that performs serveillance on the premises about to be raided. This witness was normally never called as there was no real testimony at issue here. However, the State is now making it a point to verify whether or not there was an open wi-fi signal outside of the defendant’s house/business thus attempting to foreclose this defense at trial. As a result, this witness will likely come to trial more often in the future. Of course, there are ways to attack this witness.
Computer Forensics Technician
Perhaps the State’s star witness. This is the person that will put it all together. This is also the person that may show the files to the jury (but not always). Despite this witnesses extensive training and experience, the State may not qualify this witness as an expert. This may limit the witness in what he or she can say. The defense attorney should have a brief on this issue ready to go to be faxed to the Court or to at least make an oral argument. I don’t like handing a Court a ready made brief as it makes it clear that you anticipated the argument.
Don’t let the witnesses (likely) nerdy appearance fool you. They are out to bury your client and they are trained in how to testify and how to respond to cross examination. Thus, questions must be very carefully scripted. They will do anything they can to get around your questions. Your job is to nail them down and not let them escape. Most of the witnesses have a script and if you can get them off script, they may quickly crumble. This is where computer forensics knowledge is vital. I cannot see how a defense attorney can spar with such a witness if they cannot speak the lingo and understand the concepts. This witness will likely try to use their superior knowledge to pull a fast one on everyone. Don’t let it happen! A skilled cross examiner and quickly turn this witness into one of the best tools for the defense.
The opening statement in any trial can be the most difficult part of the trial for the defense attorney in any case. After all, we don’t known exactly what the witnesses will say and most of the time, we are not going to put on a case or we don’t know exactly what our case will look like. We don’t have the burden of proof so we don’t really have to do anything. I am not here to give a seminar on opening statements in general so I won’t. However, there are a few points the defense attorney should cover.
While the defense attorney doesn’t know what the testimony will bring, the basic defense should well known. In fact, a rough draft of the summation should already be drafted. Thus, the jury should be introduced to the defense via the theme of the case at least in general terms. The first sentence or two should be a hard hitting statement(s) that go to the heart of the defense. Don’t waste your time thanking the jury or telling some stupid story. Your job is to sell the case, not make friends. Use your best material in the beginning and end of your opening statement. Just Google primacy and recency to learn more about why this is important. The end of the opening statement should again tie up, in general terms, why the defendant is not guilty. Of course, we use the client’s name and never call him/her the defendant.
The middle of the opening statement could introduce the jury to a number of legal concepts such as what beyond a reasonable doubt means by going over some jury instructions and a descriptive analogy. I also like to tear apart the State’s opening statement by arguing that it is 90% fluff and that they buried the meat of the case in the middle. In a successful child pornography trial, I pointed out that it took the State 22 minutes to get to the fact that my client made a statement. Why did they wait so long? Because they wanted to bury it and that is their whole strategy, bury my client’s statement because it doesn’t help them. Instead, they want to distract the jury with all this other nonsense before and after the statement when in fact, the entire case (for both sides) rises or falls based upon the client’s statement.
Finally, the opening statement should never be waived! That is insane. Some lawyers actually do it though. If you are not sure about your style, hire a litigation consultant and give the opening statement to him/her. The consultant can not only critique the statement but your entire presentation style which may need to be tweaked. Unfortunately, I have seen too many lawyers do the same boring, passionless opening statement for 30 years that they don’t want to change. As a lawyer, you can never stop improving and you will never know it all; in fact, you probably won’t know half of what you need to know even after 50 years of practice so don’t hesitate to get suggestions every now and then.
Selecting a jury for a child pornography case will be extremely difficult. Unfortunately, not every jurisdiction allows for attorney conducted voir dire or an voir dire statement by the attorney. Clearly, in those jurisdictions, the attorney’s task is a little easier. Regardless, the task is clear: the defense attorney must hammer home to the jury pool that what they will hear and see will be some of the worst things they will encounter. There is no reason to sugarcoat it. Be blunt. They must understand that it is OK to say that they can’t handle it. Not everyone is cut out for this and in fact, most aren’t. In other words, its very acceptable to say no, I cannot serve on this jury.
In those cases where the attorney’s have limited participation in voir dire, the attorney should have a conference with the court ahead of time to discuss the voir dire process and how difficult it may be to pick a jury. Thankfully, New Jersey has allowed more attorney involvement in the jury selection process but it is not perfect. Some judges will allow both sides to draft supplemental voir dire questions. If you submit 20 of them, I doubt the court will use even half that number so while the attorney should get creative, you don’t want to be seen as reaching. Keep it simple. Also, check with the State to see what they will be asking for as you may find yourself on the same page with some of the questions.
The State may focus their questions more on computer knowledge than the content of the files. They may not want someone that knows little to nothing about computers as technical terms may go over their head. Neither side may want computer experts who will second guess either side’s argument because they think they know it all. Thus, most of the jurors picked may wind up in the middle.
Crafting questions to find out if prospective jurors are too squeamish for this type of case is not difficult. The difficulty comes from those jurors who are too wishy-washy to make a decision. This comes from the prospective juror trying to balance their feelings about the charges versus their civic duty to serve the jury and to please the judge who they see as an authority figure. If a judge asks a prospective juror if they can serve and they say “I guess so” or “I think so”, most judges will accept that answer. It is the defense attorney’s job at that point to question that juror and make it clear to them that they need to be 100% sure and if they are not, it is OK. If they get picked, they cannot raise their hand in the middle of the trial to tell us that they changed their mind. These files may be the most horrific things they will ever see in their life but the defendant must be given a fair trial and if they would be better suited for another case, its OK to tell us that. In my experience, 9 out of 10 prospective jurors will indicate that they shouldn’t serve after it is explained to them like that.