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Amazing Defensive Technique

I was recently required to come tes­tify on an old case I worked for a local police depart­ment a num­ber of years ago. The actual work I per­formed was hardly a “case breaker”.

I sim­ply looked at cas­ings and pro­jec­tiles recov­ered by police and inter-compared them, so see if they were fired from the same gun. No firearm was actu­ally recov­ered in the case.

What I was actu­ally wanted for was the state wanted me to per­form an “on the stand shoot­ing recon­struc­tion”. That is with lit­tle to no warn­ing, an attor­ney is going to ask you to deter­mine which per­son in a vehi­cle based on if the cas­ings were recov­ered out­side, or inside the vehicle.

Something that pretty much can’t be done with­out a lot of exper­i­men­ta­tion. Even then the results would prob­a­bly not be con­clu­sive, but rather more strongly sug­gest one per­son over the other.

Considering in this case the actual firearm/ammunition com­bi­na­tion used in the shoot­ing was never recov­ered, it just sim­ply isn’t some­thing that could be done with any certainty.

Then the defense attor­ney took to cross-examining me. They used that most bril­liant of cross-examination styles — to com­pletely go back over every­thing the pros­e­cu­tion did, almost word for word, point by point.

There is noth­ing like rein­forc­ing the pros­e­cu­tions case, by get­ting the exact same answers to the exact same ques­tions back to back to drive the points home to the jury.

The best part about the case was being con­tacted by the defense after trial to find out about a data­base of gen­eral rifling char­ac­ter­is­tics I used to base my opin­ion as to what pos­si­ble guns could have fired the bullets/casings. Apparently their expert said he didn’t have access to such database.

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1 comment to Amazing Defensive Technique

  • There are a lot of bad defense lawyers out there, aren’t there? The prob­lem, I sug­gest is two fold: first, law schools and sec­ond, lack of required spe­cial­iza­tion or reg­u­la­tion of attorneys.

    First,
    Advocacy is not really taught in law schools. Well, not proper and effec­tive advo­cacy any way. Heck, in my old law school, now, the stu­dents are not even required to learn the Rules of Evidence any more. Frequently the peo­ple who teach trial advo­cacy them­selves can­not do it well or never did it to begin with or they are/were civil prac­ti­tion­ers who have done less than a hand­ful of tri­als but maybe have done a lot of depo­si­tions (which is use­less expe­ri­ence in the crim­i­nal world). Also, the adjunct pro­fes­sors they gen­er­ally bring in to help teach in small groups are them­selves not real pro­lific trial attor­neys gen­er­ally of any note. It is small won­der (to be read sar­cas­ti­cally) why young attor­neys can­not cross-examine experts or any one for that mat­ter. Then, we seem shocked when the young attor­neys who can­not cross mature and turn into older attor­neys who can­not cross. It is not like puberty in that mag­i­cally on your 13–15 year of exis­tence you turn into a man or a woman. Because they have invested no time into learn­ing their craft they do a chrono­log­i­cal respon­sive and reac­tive cross like you described. They have no idea of the impor­tance of pri­macy and recency or the dan­ger of ask­ing totally open-ended ques­tions or even how to effec­tively “paint the pic­ture” of the point they want to make to the Jury with­out ask­ing ques­tions that are con­clu­sions. Finally, they actu­ally think that espe­cially when it comes to a cross of an expert that they can get away with doing no home­work. They do not request detailed reports with source mate­r­ial that are relied upon by the expert in form­ing his/her opin­ion. If sourced mate­r­ial is pro­vided in a foot­note, it is never read and/or ana­lyzed. They unfor­giv­ably do not request SOPs and method­olo­gies of any test­ing that is pre­formed and/or don’t seek proof of cer­ti­fi­ca­tion of the tester and/or the full resume of the tester, and/or don’t seek pro­fi­ciency test­ing of the ana­lyst. In short, they don’t work dis­cov­ery to their advan­tage. They fre­quently read noth­ing on the sub­ject area even gen­er­ally. Most impor­tantly they for­get how Frye and Daubert all but require in any pur­ported empir­i­cal sci­en­tific test that a full Bayesian-like uncer­tainty bud­get be quan­ti­fied and expressed. They don’t pull tran­scripts from prior tes­ti­mony of the expert. They don’t even hit Google. They exer­cise no due dili­gence at all. It is maddening.

    Second,
    Simply put, you do not become an expert by doing 14,000 things. You become an expert by doing 14 things 1000 times each. Just like a doc­tor should know his/her lim­its, So should a lawyer. Sadly, many lawyers do not. There is an ever increas­ing need in my opin­ion in law in gen­eral and espe­cially in crim­i­nal law (where a person’s lib­erty and, yes, even their life is on the line) to require demon­strated and mean­ing­ful spe­cial­iza­tion prior to allow­ing that per­son to prac­tice in that area. This is the 21st cen­tury. No longer should this be the day where we allow some­one who han­dles eso­teric SEC and civil/quasi crim­i­nal tax eva­sion cases effec­tively in one day to then turn around the very next day with admit­tedly no prac­ti­cal expe­ri­ence, no local aware­ness of the juris­dic­tion and allow him/her to try a high pro­file rape case (think V.F. and Mike Tyson).

    But you are right. You should style your cross along only two lines:
    1, Do my ques­tions help estab­lish my the­ory of the case?
    2. Do my ques­tions hurt the Government’s the­ory of the case?

    If it is not #1 or #2, then sit own and don’t ask any ques­tions. Especially of an expert.

    To extrap­o­late your good point and make an even broader obser­va­tion that I would like to make (for what it is worth) is that the fault of the pre­sen­ta­tion and the BLIND accep­tance both in pop­u­lar cul­ture and in the Courts of all forms of expert tes­ti­mony (both good and bad) is really the fault of the crim­i­nal defense lawyer.

    Good post.

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