Building the Case for Innocence from Advisement to Verdict : Building the Case for Innocence from Advisement to Verdict
Didn’t Prove it Beyond a Reasonable Doubt is NOT a theory of innocence, and at the end of the day it is NOT Powerful, Creative, or Persuasive : Didn’t Prove it Beyond a Reasonable Doubt is NOT a theory of innocence, and at the end of the day it is NOT Powerful, Creative, or Persuasive
What are the six basic theories of innocence available to you? : What are the six basic theories of innocence available to you? Never happened;
It happened, it was a crime, but I didn’t do it;
It happened, I did it, it wasn’t a crime;
It happened, I did it, it was a crime, but I was legally justified;
It happened, I did it, it was a crime, but it wasn’t this crime;
It happened, I did it, it was a crime, so the fuck what?
Winning a Case is about Normalizing a Client’s Behavior : Winning a Case is about Normalizing a Client’s Behavior
The Admin Staff is On the Front Lines: : The Admin Staff is On the Front Lines:
When a File is Opened to the Lawyer:Application : When a File is Opened to the Lawyer:Application Contact Information;
Information about resources, family, friends;
Helpful to find out if there are any other cases pending.
Observations: : Observations: Injuries
Mental Health Issues
Drug Issues
Alcohol Issues
The lawyer starts developing their theory of innocence by looking at the law : The lawyer starts developing their theory of innocence by looking at the law
Charging Information: : Charging Information: To begin to create a defense to the charge/normalize our client’s behavior we need to know what the actual charge is;
Often the file is all we have;
More information that is on there the better, the subsections help the lawyer identify –
Actual basis of the charges
Potential consequences
Slide 10 :
Slide 11 : Disregarded Stop Sign:
(1) The department of transportation and local authorities, within their respective jurisdictions, may erect and maintain stop signs, yield signs, or other official traffic control devices to designate through highways or to designate intersections or other roadway junctions at which vehicular traffic on one or more of the roadways is directed to yield or to stop and yield before entering the intersection or junction. In the case of state highways, such regulations shall be subject to the provisions of section 43-2-135(1)(g), C.R.S.
(2) Every sign erected pursuant to subsection (1) of this section shall be a standard sign adopted by the department of transportation.
(3) Except when directed to proceed by a police officer, every driver of a vehicle approaching a stop sign shall stop at a clearly marked stop line, but if none, before entering the crosswalk on the near side of the intersection, or if none, then at the point nearest the intersecting roadway where the driver has a view of approaching traffic on the intersecting roadway before entering it. After having stopped, the driver shall yield the right-of-way to any vehicle in the intersection or approaching on another roadway so closely as to constitute an immediate hazard during the time when such driver is moving across or within the intersection or junction of roadways.
Slide 12 : 43) “Highway” means the entire width between the boundary lines of every way publicly maintained when any part thereof is open to the use of the public for purposes of vehicular travel or the entire width of every way declared to be a public highway by any law of this state.
Discovery : Discovery
Slide 14 :
Adams County : Adams County
WHY? : WHY?
Discovery can tell us about the witnesses against our client: : Discovery can tell us about the witnesses against our client: Witness review:
Odd behaviors;
Direct reference to drug/alcohol use;
Physical health conditions;
Inconsistencies within statements;
Inconsistencies with other witnesses;
Inconsistencies with Physical Evidence;
Relationship between witness and accused;
Criminal history + status (parole/probation/DJ)
Discovery can tell us what they know or think they know about our client: : Discovery can tell us what they know or think they know about our client: The Client
Conduct which goes to the charged elements;
Demeanor
Criminal History
Bizarre behavior/mental health
Direct references to drug/alcohol use
Physical health conditions
Who has your client spoken with and what have they said
Law enforcement
Lay witnesses
Red Flag: an officer is referenced as having spoken to client but does not you do not have a written report
Discovery can tell us what physical evidence has been collected… : Discovery can tell us what physical evidence has been collected… Identify all pieces of physical evidence:
What was seized?
Who seized it?
When was it seized?
Where was it put?
How was it seized?
Who had contact with it after booking?
Testing? By whom? What was tested?
How was it transported/handled?
What wasn’t seized? What evidence wasn’t tested and should have been?
Frequently missing discovery…results in the filing of letters, and motions : Frequently missing discovery…results in the filing of letters, and motions Photographs/videos taken by law enforcement or witness;
Color copies of any photo line up;
Tape recordings of 911/dispatch traffic;
Tape/video recordings of witness interviews conducted by police.
If you did not get these with your initial discovery, you need to send a letter to DA requesting them.
Which theories of innocence remain? : Which theories of innocence remain?
Communicating with Your Client: : Communicating with Your Client: Basics are covered in the Client Interview Form
Remember to have HIPAA compliant releases signed by client at first meeting
Get a list from client of all places ever educated, treated, military service
Ascertain client’s criminal history to the extent it can impact your present case
Make an informed decision about how to talk to your client about what happened
When you do talk to client about what they know about the allegations, get a list from client of potential witnesses and their contact information who might be able help you
Slide 23 :
INVESTIGATION : INVESTIGATION
Investigation : Investigation Identify and Exploit potential sources of information:
Witnesses to be interviewed: mentioned in discovery or provided by your client:
Write out questions to help guide your investigator
If it is a critical witness, go to the interview yourself
Lawyers always do expert interviews
Expert Witnesses:
Obtain a complete CV
Determine what their opinion is
Get more information about the basis of their opinion
Get transcripts of this witnesses’ testimony in other cases
Obtain copies of the articles they have written
Transcription and Impeachment : Transcription and Impeachment
Investigation: Physical Evidence : Investigation: Physical Evidence Records to be obtained:
Mental Health/Physical Health
Criminal History/Files
Social Services
School Records
Methods of obtaining Records
Release
Subponea Duces Tecum
Physical Evidence to be Viewed or Tested;
Scenes to Visit and Photograph;
You should visit scenes of importance to your case, don’t just send your investigator out with a camera.
Why do lawyers seem to hate trees? : Why do lawyers seem to hate trees?
Slide 29 :
Motions: Issue Spotting : Motions: Issue Spotting When you think about what motions to file do
not be limited by those motions you know other
people have filed, instead, think about the
process that will be used in the trial, and about
the evidence in your case that you either like
and want to make sure is admitted, or that you
do not like and want excluded.
The only limit to the motions you file if your own
imagination.
Motions: Issue Spotting, Some Substantive Areas to Look : Motions: Issue Spotting, Some Substantive Areas to Look Suppress Statements
Client
Other witnesses
Suppress Physical Evidence
Suppress Identification or Require Non-Suggestive Out-of-Court Identification Procedures
Severance
Notice of 404(b)
Subsequent Objection to 404(b)
Bill of Particulars
Shreck Motions
Motions in Limine
The sky is the limit on these
Question is often when to file these motions
Motions: Issue Spotting, Some Procedural Areas to Look : Motions: Issue Spotting, Some Procedural Areas to Look Things your judge does that you don’t like
Example: Judge tells the jury in every trial, look we all know something happened but…
More time for voir dire
Jury questionaires
Prosecution use of technology in the courtroom
Photos:
Format, use, publication
Method of Jury Selection
Use of demonstrative aids
Parameters of Expert Witness Testimony
Who is allowed in the courtroom, when
Witness and lawyer behavior in the courtroom
Motions: Issue Spotting : Motions: Issue Spotting Remember do not self-censor….oh, Im not
gonna win that motion so Im not gonna file it.
Make the motion, use the burdens, make the
Prosecution prove it up, and the judge rule.
Slide 34 :
Slide 35 :
The Prosecution Whore Exposed : The Prosecution Whore Exposed Too bad for Cindy the
cops name is actually
Officer Fazio, not Officer
Salvatore
The Motions Hearing: : The Motions Hearing: Motions are prosecuted for a number of reasons:
Winning the issue and having the motion granted
Setting the tone for litigation in the case
Establishing a factual record from witnesses, who often will not speak to us, for use at trial
Preserving issues for Appeal
The Motions Hearing: The Facts : The Motions Hearing: The Facts In order to establish the facts the lawyer needs to win the motion or at trial the lawyer must be prepared:
Subpoena witnesses who will advance your motions – don’t just show up and see who the DA’s got there
Use demonstratives/photographs to illustrate your point to the judge
Motions should also not be a wild goose chase where you just rehash all the DA’s questions, such swinging around in the dark will tire out the judge, and lead to more sustained relevancy objections, and a less useable transcript.
Theory of Innocence at Trial : Theory of Innocence at Trial The theory of innocence is the engine
that drives the presentation of case
through jury selection, opening, cross-
examination, the witnesses the team choses to
call and direct, jury instructions, and closing.
Theory of Innocence at Trial : Theory of Innocence at Trial In building your case for innocence, you have
identified the facts that either support or detract
from your theory of innocence.
At trial, you must use baseline voir dire to identify those jurors who
are open to your theory of innocence.
You must then present the facts and the law which support
your chosen theory to the jury, while also
undermining/shaping those facts which contradict your
theory.
Slide 41 :
Thank you for all you do to get us to not guilty! : Thank you for all you do to get us to not guilty!