psa

The Windypundit finishes his story about his experience in traffic court with this final post and falls victim to testilying. The facts:

[The trooper] walked up and told me I had passed an emergency vehicle parked on the shoulder without changing lanes. My confusion must have shown, because he explained that there was a truck with flashing lights on the shoulder in the construction zone.

While he went back to his car to write the ticket, my wife and I discussed the situation, and neither of us could remember the truck. When the trooper returned, my wife asked him to explain what had happened, and he again said there was a truck with flashing lights on the shoulder, and that my lane change had taken me closer to it when I should have been giving it more room.

So he hired a lawyer [my previous post on the hiring process here] and went to trial. Lo and behold, the testilying:

The prosecutor said he was ready, so the cop and I were sworn in together in preparation for our testimony. Then the prosecutor started questioning the cop, and a strange thing happened.

The cop changed his story.

Sad as it may sound, it’s not that strange. Moving on,

When he originally stopped me, he had told me twice that I passed a truck. In court, however, he testified that I passed a State Police car that had pulled someone over. He also said there were no other vehicles nearby, and that I didn’t slow down.

My first thought was that he had changed the vehicle to a police car because that sounds worse than a construction truck. When I thought about it later, however, I remembered that one of the elements of the crime was that the emergency vehicle had to be engaged in its official duties. My lawyer had thought he might have a chance of getting a dismissal if nobody was able to put it on the record that the construction truck was on duty. How would the trooper know? Did he go back and interview the occupants? I wondered if maybe he changed his story because a police car performing a traffic stop is clearly doing its official duties.

There are more benign explanations as well, such as bad memory. The scenario he described is typical of a special enforcement effort for this law: One cop spots an unrelated infraction and pulls the offender over, then a second cop pulls over people who pass the first cop. If the trooper did a lot of those recently, maybe he just got one of them confused with my case. Or maybe, despite identifying me as the guy he pulled over, he has no actual memory of the stop and just made up something plausible. In either case, he should have taken notes, but maybe he’s bad at that, or he forgot, or his dog ate them.

What’s the likeliest scenario? I’m going with “he has no actual memory and made something up”. One might say, in this case it’s not that big a deal. Yes, there is a conviction, but it’s a traffic violation and the penalty is a fine. But it is indicative of a greater problem, which has far more serious impact in felony trials. Exaggerations are routine, blamed on bad memory. Sometimes they’re written off as harmless, but never should be. Witnesses have to be held to the highest standard, for in criminal cases, someone’s liberty hangs on the veracity of their statements. The State is often quick to prosecute lay witnesses that perjure themselves, but rarely do you hear of the law enforcement official that is similarly charged.

Here is the text of Alan Dershowitz’s testimony before Congress in 1998, wherein he discussed perjury and testilying. Here is a copy of a 1996 Law Review Article from the University of Colorado Law School by Christopher Slobogin, entitled “Testilying: Police perjury and what to do about it”.

Combining the themes of two of my posts this week, Anita Witness has this post (OOPS! Just realized this post is from January, but it is still pertinent and she says it way better than I do anyway) about the ability of private sector criminal defense attorneys to select the types of cases they take on. She writes:

When you work in a public defender’s office, you don’t have the opportunity to be selective about the cases you work on. In the private sector, however, you can make the choice to avoid certain kinds of cases. For instance, there are a number of investigators and attorneys who choose not to do death penalty cases because they find them to be too stressful. It’s good to know your limits.

It seems like the most common kind of case that defense- minded people seek to avoid are those that involve crimes against children. A former co-worker of mine used to say that he simply would not do cases that involved crimes against children once he was a father. At the time, I wondered how I would feel once I had children, especially as a woman, since these cases have a tendency to come knocking at your door as a female investigator. Now that I have a kid, I can say that I have no problem taking a case that involves crimes against children, anymore than I have a problem taking a case involving exclusively adults.

For defendants charged with crimes against children, the battle to get a fair trial can be steep and rough. They are often villified in the press and given three part names. A criminal defense investigator may be more likely to encounter animosity in the process of doing your job, like being questioned by witnesses as to one’s personal motivation in representing an accused child (fill in the blank here)-er.

Which is part of the reason why I am unsure of statements like: “I don’t represent snitches” or “I won’t take child molester cases”. As Miranda and I were discussing yesterday, I could understand if there is a case with a particular set of circumstances that hits close to home and does, indeed, affect the attorneys ability to provide an adequate defense and the attorney chooses not to represent that client. However, I don’t think that equates to not trying all cases where the defendant was charged with a certain offense.

Here’s a great resource for the trial lawyer. Anne Reed, of Deliberations, announced a “Juror Questionnaire Library” section of her website.

Maybe you’re working ahead, because you know that thinking early about the jury makes you think about the case in new ways.  Or maybe your trial is Monday morning; your jury instructions and motions in limine and exhibits are in, and you’re turning to voir dire because you finally can.   You may already have an outline and are looking for a checklist to see what you missed, or you may be starting from scratch.

…

For you, voir dire question searcher, Deliberations announces its new Sample Juror Questionnaires library.  (There’s a link on the sidebar.)  On this page is a growing collection of jury questionnaires, either given or proposed, from actual cases.  Use them to brainstorm or cross-check your own voir dire questions; as source material in asking your judge to allow a jury questionnaire; or just as a way to think about how an individual juror’s background and experiences might shape the way she hears your case.

Please feel free to submit questionnaires for this page, whether approved by the court or merely proposed, and ask your friends to do the same.  If you send one, I’ll credit you as author or contributor, and link to your website if you’d like.

Great stuff. The more resources, the better.