Investigating a Criminal Case: Experts, Investigators, and Subpoenas

Posted by Chris Morales on Fri, Jul 31, 2015 @ 09:00 AM

Preparing for trial shouldn’t involve simply reviewing discovery. Rather, the defense should use various investigative means to present the best possible case.

Interviewing prosecution witnesses can be a critical component of preparing a defense in a criminal case. But there are other forms of investigation that might also provide or reveal essential information. The defense might:

  • Bring in a scientific expert to test evidence or review the work of others, including, for example, police laboratory technicians. It’s often beneficial for such an expert to testify, too.
  • Hire a private investigator to locate and interview witnesses who are—or could be—helpful to the defense. The defense attorney might then be able to meet with those witnesses and prepare them for their eventual testimony. The defense can also serve them with subpoenas that require them to appear in court to testify.
  • Take depositions of friendly or neutral witnesses—in the rare states that allow depositions in criminal cases. These depositions can serve several purposes, including preserving testimony should witnesses later become unavailable or change their stories.

Costs and Benefits

Whether to incur the costs associated with investigative tasks is a judgment for each defendant to make. The defendant should try to determine the likely costs, the chances the tasks will help the case, and the cost (literal and figurative) of conviction. In most instances, it makes sense to do anything within the rules to help your chances at trial. Even if a conviction doesn’t carry jail time or a significant fine, it usually has long-lasting ramifications—for example, making finding a job more difficult.

Hunting and Gathering

Defense attorneys must often pry documents loose from government agencies and private businesses. Those who need to obtain relevant materials from uncooperative people or offices can serve them with subpoenas duces tecum. This term refers to a court order requiring the person or organization in question to deliver the specified documents, records, or objects to court for the judge, defense, or both to inspect.

Subpoenas duces tecum don’t always work the first go round. Some parties who receive them file motions to “quash,” while others simply ignore the subpoenas. In these instances, the defense typically has to file a pleading asking the judge to order the third party to comply with the subpoena. This often means persuading the court that the requested materials are important to the defense’s case or narrowing the information requested in the subpoena. For example, a defense attorney requesting cellphone records of a witness might have to explain that the records could show that the witness was on the phone at the time she claims she was meeting with the defendant. If the phone company objects that the defense has requested too much material, the attorney might have to narrow the timeframe for the requested records.

Others Who Can Help

Plenty of professionals other than lawyers, experts, and investigators can be vital to criminal cases, including but not limited to:

  • photographers (who can document, for example, the scene of the crime)
  • jury consultants (who help the defense attorney pick the jury)
  • trial presentation specialists (who help the defense display information at trial, usually through use of computers), and
  • sentencing experts (oftentimes former probation officers who help the defense present a convincing case for a lenient—or at least reasonable—sentence).

Get a Lawyer

If you’re facing criminal charges, consult an experienced criminal defense lawyer. Only such a lawyer can protect your rights and effectively investigate your case. An attorney will also be able to tell you what you should—and shouldn’t—do to help. For example, your lawyer may ask you to provide all the information you can possibly think of regarding witnesses, locations, events, and even people who have nice things to say about you.

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Tags: Criminal Charges, subpoenas, trial, Investigation, witnesses, discovery, criminal defense lawyer

Face-to-Face Eyewitness Identification: “Showups”

Posted by Chris Morales on Mon, Mar 30, 2015 @ 08:55 AM

Showups bring suspects and witnesses or victims of a crime together in face-to-face meetings.

At a showup, a witness or victim is con­fronted with only one person rather than a group of people. And whereas lineups almost always take place in police stations, showups may occur in a station or in the field, even at the crime scene. A crime-scene showup is especially likely when the police capture a suspect shortly after a crime has occurred.

Because showups almost always take place before charges are filed, suspects don’t have a right to have an attorney present. (For more on the right to an attorney during identification procedures and a variety of information on identification law, seeEyewitness Identification.)

More Reliable?

Research experiments haven’t demon­strated differences in reliability between identifications resulting from showups and those produced by lineups. Showups often take place soon after a crime, meaning that memory is less of a problem. But on the other hand, witnesses may still be under great stress when the police return soon after a crime with a possible suspect in tow. And nothing, short of telling the witness who committed the crime, could be more suggestive than presenting a single, in-custody person for identification. Further, regardless of what police officers say, an unsure witness might feel pressure to point the finger at the person on display.

One for Two

It’s possible that the police will require a suspect to participate in both a showup and a lineup. They might, for instance, conduct the initial showup, then arrange for a lineup after the filing of charges. At least theoretically, the lineup can substantiate the showup identification and provide a basis to determine whether additional witnesses can also identify the suspect as the perpetrator.

Different Criteria

In deciding whether to admit evidence of a pretrial identification, judges don’t apply the same standard to all ID procedures. The burden is even higher for defendants seeking to suppress a showup identification: In most jurisdictions, the evidence comes in unless they can establish a “very substantial likelihood of irreparable misidentification.” (Simmons v. United States, 390 U.S. 377 (1968).) The questions that judges consider when determining the validity of a showup include:

  • How carefully did the eyewitness observe the suspect during the crime?
  • How closely does the suspect match the description that the eyewitness gave the police?
  • How confident was the eyewitness that the suspect was the perpetrator? (Eyewitness identification research casts doubt on the legitimacy of this factor.)
  • How much time elapsed between the crime and the showup?

Consult a Lawyer

Consult an experienced lawyer if you have been or might be the subject of an eyewitness identification procedure. Your attorney can determine whether you have a viable challenge to any ID that's occurred. If the judge admits evidence of the pretrial identification, your lawyer may be able to formulate an approach that causes the jury to doubt the witness.

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Tags: victim, suspect, witnesses, jurisdictions, lineups, crime, charges, showup

Introduction to Rules of Evidence

Posted by Chris Morales on Fri, Jun 27, 2014 @ 03:00 PM

The rules of evidence determine which information comes in a trial. They also determine how that information comes in.

Rules of evidence are the trial system’s equivalent of the rules of grammar. Just as grammar rules govern how we speak and write, evidence rules control courtroom procedures. Evidence rules limit not only what witnesses and lawyers can say during trials, but also how they can say it.

The Purpose of Evidence Rules

Evidence rules guide the process by which information (evidence) flows from witnesses to a judge or jury. The rules control both the content of evidence and the manner in which it’s presented. To take a familiar rule, witnesses may testify only in response to questions, rather than by telling a long, uninterrupted narrative. Another widely known rule deals with hearsay—it bars witnesses from testifying about certain statements made outside the courtroom.

The Origins of Rules of Evidence

Most evidence rules developed through “common law” judicial decisions. Today, most evidence rules are found in statutes. California was one of the first states to enact a comprehensive set of evidence laws, known as the California Evidence Code. The California code was a primary model for the Federal Rules of Evidence (“FRE”), a set of laws that governs trials in federal courts. About 40 states have enacted evidence rules based on the FRE. Because every jurisdiction’s evidence rules are based on the common law and on each other, evidence rules are largely similar throughout the country.

Judges and the Rules

For the most part, judges no longer make evidence rules. With some exceptions, legislatures have taken over the development of evidence law. Lawmakers know that evidence rules are vital in determining the outcomes of cases, and they want to have primary influence in shaping those rules. Of course, it’s up to judges to interpret the evidence rules that legislators produce, and, in doing so, they can substantially alter the scope and meaning of those rules.

Many evidence rules consist of general guidelines, leaving judges to interpret them according to the circumstances of each case. For example, assume that an evidence rule provides that certain kinds of documents have to be shown to have been prepared in a trustworthy manner before a judge can admit them into evidence. What’s trustworthy to one judge might not be to another, and will depend on the circumstances of preparation. For example, a judge is likely to hold a sophisticated police laboratory to a different standard than a mom-and-pop grocery store when it comes to documenting transactions.

Similarity to Civil Cases

In most jurisdictions, the evidence rules in criminal cases are largely the same as those in civil cases. The FRE, for example, apply to both civil and criminal trials. However, certain evidence rules apply differently depending on the kind of case involved. An example is FRE 404(a), which allows criminal defendants to introduce evidence about their or their alleged victims’ character in many cases. (Character evidence is otherwise generally inadmissible.)

Use a Lawyer

If you’re facing criminal charges, you’re almost always best off letting a lawyer represent you. The rules of evidence are tremendously complex and nuanced; only an experienced attorney will be familiar enough with them to provide a competent defense to criminal charges.

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Tags: trial, evidence, witnesses, testify, courtroom, rules