Evidentiary Issues At Trial

What do you do if you know the trial court will ignore decisions from the Appellate and Supreme Courts?

There are times when the trial judge makes clear that he or she will continue to make decisions despite contrary legal precedent. This is most commonly seen when admissibility issues come to the fore. When this happens, a defense attorney needs to sights on diligently making a record for review on appeal. This includes presently facts, science, and legal argument that is thorough and clearly highlights the issues the appellate court will need to address after trial.

How do you deal with expert witnesses brought by the prosecution or the opposing party?

One can get a great deal more mileage out of what the experts do not know than what they do. Under the Rules of Evidence, an expert must demonstrate his or her expertise and knowledge of their field of expertise. One effective method for immediately discrediting an adverse witness is discussing authoritative texts and theories and then demonstrating that the expert is not familiar with these sources. The expert’s lack of familiarity will demolish the jury’s tendency to grant the witness additional deference or weight.

Are there any specific words or phrases that should prompt an immediate objection from defense counsel?

Never let any litigator use the word “disclosure.” This word has a psycholinguistic charge via subliminal connotation. When something is disclosed, people subconsciously imagine that it was hidden and now, due to someone’s wonderful work, it has been revealed. That’s the prosecutor’s game. We call it a “story.” We say “the child said” or “the child related.” Using the term “story” still leaves the jury with the possibility that the child’s version of events is either false or unreliable.

How should the defense team address forensic evidence at trial?

Latent fingerprint, DNA, and other forms of forensic evidence have been called into question in a number of recent cases. For example, recent research points out that there are no true standards or qualifications fingerprint analysts must meet before being deemed an “expert” and there remains a great deal of subjectivity involved in latent print analysis. Similarly, multiple convicted individuals have recently been exonerated after the alleged DNA evidence used in their cases was found to be incorrect or unreliable. The key is to take any and all steps to challenge forensic evidence. Defenses attorneys cannot let the mere threat of DNA or fingerprint evidence scare them from thoroughly challenging it.