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David T. Kaye                                                             jury nullified

Jury Nullified is a must read that everyone will find interesting and information. Jury Nullified explores and reveals the hidden truth about the coveted jury trial system in America. While jurors conscientiously struggle to reach a fair and just verdict, the judge may have already determined the verdict.
Jury Nullified by attorney David T. Kaye

Copyright @ 2019

Author: David T. Kaye, Esq.

Publisher: David Taylor Kaye

ISBN 978-0-578-42820-8

Lulu printing

Available at




Many books have been written over the years about jury trials. Some of the most well known trial attorneys in the country have authored books about famous high profile cases. There are humorous lawyer joke books, and books about various captivating and sensational trials. There are authoritative books by authors with unquestionably impressive pedigree and credentials, and there are scholarly legal treatises where each page contains more citations than text.  

Jury Nullified is none of these. Jury Nullified is a book written by a veteran trial attorney who spent more than two decades wearing out the leather of his shoes traveling from courthouse to courthouse engaged in trial. In this book the author shares a unique perspective and the opportunity to compare and contrast the manner in which different judges preside over criminal jury trials, and the impact those differences can make on the outcome of the trial. 

criminal defense attorney david t kaye

Outline of Jury Nullified:


Chapter 1: A Little Background on the Sixth Amendment..1


Chapter 2: Meet the Players……………………….…..…....5

- The prosecutor: Champion of the people 

- The defense attorney

- The friendly, honest bailiff

- The court reporter

- The impartial and omnipotent judge


Chapter 3: Pre-conviction Proceedings…………………...23

- Justice delayed is justice denied

- The challenges of trials

- The unofficial meeting

- Prior convictions - back so soon?

- Pretrial motions

- Behind closed doors


Chapter 4: Courtroom Logistics (Diagram)………………47

- On the record

- Prosecutor sits nearest to the jury

- Bailiff watches the defendant                                               


Chapter 5: Voir Dire for Cause…………………………....57

- A shooting in the courtroom                         

- Rehab for jurors 


Chapter 6: The Witnesses………………………………...64

- First impressions

- Defendant gets a special welcome

- The battle of experts

- Officer friendly protected on cross-examination

- Judicial time management

- Relevant witnesses


Chapter 7: Reading the Jury Instructions…………….....94


Chapter 8: Closing Argument………………………….....96

- Prosecutor goes first 

- Equal time limits

- Just the facts


Chapter 9: A New Trial Sounds Appealing…………….100


Chapter 10: The Requiem……………………………….105


Escondido, California

San Marcos, California

Carlsbad, California

San Diego, California

Las Vegas, Nevada 

Chapter 1: A Little Background on the Sixth Amendment


No idea is more central to our judicial system than the concept of trial by jury. Citizens of the United States need not be fearful of a trial outcome determined by the King, or Star Chamber, or blue ribbon panel, or land owners, or some other elite sanctioned body. Citizens will decide the legal fate of citizens.  

The United States Constitution has represented the foundation of the United States of America since March 04, 1789. The Constitution has only been Amended twenty-seven times since its inception almost two hundred and thirty years ago. The first ten amendments are collectively referred to as the Bill of Rights. Proposed to assuage the fears of Anti-Federalists who had opposed Constitutional ratification, these Amendments guarantee a number of personal freedoms, limit the government’s power in judicial and other proceedings, and reserve some powers to the states and the public. Originally the Amendments applied only to the Federal Government, however, most were subsequently applied to the government of each state by way of the Fourteenth Amendment, through a process known as incorporation.

The Sixth Amendment to the United States Constitution holds that:          

In all criminal prosecutions, the accused shall   enjoy the right to a speedy and public trial, by an impartial jury. . . .

Today the concept of a trial by jury in the United States is commonly understood and is ingrained in our culture. The concept of the jury trial is represented everywhere in our society and is depicted in movies, television, and even pop songs have lyrics about the jury. Social media is now playing a role in depicting sensational jury trials and high profile cases. Although jury trials are quite common in civil trials, they are particularly important in criminal trials because in criminal trials a person can be deprived of their liberty or life - Jail or Execution!       

Citizens are called upon by the government to act as jurors in criminal matters. They appear at the courthouse for jury duty after receiving some sort of jury summons. Jurors appear at the courthouse and are identified, assembled, processed by a jury commissioner, or other courthouse official, and sent off to an awaiting courtroom for service.

Jurors bring a lifetime of experiences with them to the courtroom. Most have an opinion about various high profile cases such as the O. J. Simpson trial. Many have heard about some of the Innocence Project successes where citizens, who were previously convicted by a jury, are subsequently released from death row, or decades of incarceration, after evidence establishes their factual innocence. They have seen videos of law enforcement misconduct, and usually have been the victims of some sort of crime. All of these life experiences are brought to the courtroom by jurors who will be asked to decide the case.           

There are many specific jury instructions, but essentially jurors are told by the judge in the courtroom to accept the relevant law as given to them by the judge, sort through the facts as determined by them throughout the trial by the evidence presented, and apply some sort of common sense analysis to reach a verdict. In a criminal trial the verdict must be unanimous and each juror must affirm their verdict. Jurors are told by the judge that in order to convict and reach a verdict of guilty, they must be convinced of guilt beyond a reasonable doubt.    

Jury nullification is not a new concept, but it is a term that really came into vogue after the infamous O. J. Simpson trial, although the term has been modified somewhat from its true meaning. Jury nullification involves a jury acquitting a criminal defendant who is technically guilty, but who does not deserve punishment in the minds of the jurors. It seems that most people use the term to describe a situation where they believe the defendant is guilty, but the jury mistakenly reaches a verdict of not guilty. The idea that the verdict of not guilty is being reached because the jurors do not believe the defendant should be held criminally liable seems to have been lost. The vast majority of people believe that O. J. Simpson was guilty, and that he deserved punishment for the murders, and that the jury reached the wrong verdict.

Jury nullification might occur in a marijuana use case or a prostitution case. The prosecutor proves the marijuana use, or the prostitution. The judge instructs on the law making it illegal to use marijuana or to engage in sexual acts for money. But the jurors return a verdict of not guilty because they do not personally believe marijuana use or prostitution should be illegal, and that the government should not be involved in criminal prosecutions for those crimes, due to the belief that these are victimless crimes. In fact, these two crimes present such difficulty for prosecutors that prospective jurors are often asked about their feelings regarding these crimes, prior to being selected as jurors to hear these types of cases.             

To nullify something is to make it legally null and void, or to invalidate something. Nullifying a jury would be to cause the jury to lose its value, or to render the jury ineffective. I use the term "jury nullified", to suggest that the role of the jury can be made null and void by the presiding trial judge if certain efforts are made to steer the jury toward a desired outcome.  

Many judicial officers view the jury with contempt. They feel they are much smarter than the collective jurors. They know they have more experience. They believe they are less likely to become confused by complicated evidence. They are convinced they are less likely to become fooled by prosecution or defense trial tactics. They are confident in their own mind that they could reach a "correct" verdict faster and more reliably than the jury.                       

This brand of judicial arrogance reminds us of the original concerns which created the need for the Bill of Rights protections provided for in the United States Constitution.   


Chapter 2: Meet the Players


You can’t understand the game unless you understand the players. Each player in a jury trial comes into the process with different backgrounds and vastly different agendas. The prosecutor and defense attorney are participants in an adversarial process with polar opposite agendas, although they would both probably claim to be seeking justice. In a criminal case, loss of liberty (jail) and loss of life (execution) can be at stake, so a trial is a serious matter with serious consequences.  

The Prosecutor: Champion of the People

The prosecutor is an attorney working for the government and is there at trial seeking to obtain a conviction. In a criminal case the prosecutor works closely with the arresting law enforcement agency to present all of the incriminating evidence which establishes guilt of the crime. Prosecutors come in many shapes and sizes but there is some obvious commonality among them.

First, to be a successful prosecutor you must publicly affirm that being a prosecutor is not just a job but is a lifelong calling. If you espouse less than zeal for being a lifelong prosecutor you are unlikely to be hired by the prosecution agencies. If you express less than zeal once hired, you might quickly find yourself assigned to a less than desirable position such as juvenile prosecutions. There are many stories of top Harvard Law School graduates who decide they want to spend some time contributing to the community by working in the prosecutor’s office, only to find themselves rejected. The top brass in the office who do the hiring are the true believers, and they do not want to spend time and money training part-timers and heretics who might publicly renounce the word of law enforcement and righteousness. There are two sides to every story in their mind. There is the officer’s story, and then there is the defendant’s story, which they know is a total lie.

If you accept the proposition that some law enforcement officers might lie, exaggerate, or manufacture evidence, then you are probably not a strong viable candidate for the prosecutor’s office. If you believe that all law enforcement officers are well trained, highly skilled, brave men and women who have sworn to protect and serve our community to the best of their abilities, then drink a little more of the purple Kool-Aid and welcome aboard. Obviously, I’m being overly simplistic and numerous and varied beliefs are held by prosecutors, but generally defense attorneys and prosecutors are at the polar extremes of the spectrum. Think of the relationship between prosecutors and defense attorneys as similar to that of conservatives and liberals, or Democrats and Republicans, or even cats and dogs at times. 

I was first a prosecutor and then a defense attorney, which sort of makes me like Switzerland in some sense. Some defense attorneys have concerns about me because they know I am a former prosecutor, and some prosecutors have concerns because many believe in their heart that I "betrayed them" and switched to the "dark side" to use their verbiage.

Moving from prosecutor to defense attorney is generally much easier than moving from defense attorney to prosecutor because it is very difficult to be hired by any prosecution office if you are a criminal defense attorney. Again, the top brass almost universally do not like defense attorneys despite the smokescreen of courthouse professionalism.

One of the common prosecution office job interview trick questions involves asking the job applicant why they want to be a prosecutor. The applicant will enthusiastically respond by explaining that they enjoy criminal law, and the excitement of jury trials, and maybe even something about helping the community. The next question is then about their willingness to work in the Office of the Public Defender as a defense attorney if all of that is true. Anyone who does not see the trap and indicates that they are open to working as a defense attorney fails the test and is considered by almost all of the top brass to be a less desirable applicant.             

The Defense Attorney                     

Criminal defense attorneys represent the citizens charged with violating the law. The defense attorney may choose to present exculpatory evidence at trial which establishes innocence, or the defense attorney may choose to merely scrutinize the prosecution evidence attempting to establish that the evidence presented is inadequate under the law to establish guilt, according to the legal standard, which is guilt beyond a reasonable doubt.

Some might ask, what kind of scum bag would defend a guilty person who committed a crime? The issue for trial of course is whether the defendant is guilty of committing a crime. Our system of justice requires far more for guilt than being arrested by law enforcement and being charged with a crime by the local prosecutor.

The word scum means a low, worthless, or an evil person. Despite their phony courtroom professionalism which includes smiles, handshakes, and courtesy, this is what many prosecutors truly feel about criminal defense attorneys. A few prosecutors are openly hostile toward defense attorneys but they are careful to maintain civility and avoid crossing any boundaries. I remember meeting a veteran prosecutor for a trial that I had never met before. The prosecutor refused to shake my hand when I introduced myself. I was so freaked out (a common legal term) by the incident that I researched this prosecutor and learned that there were several Court of Appeals cases involving him relating to prosecutorial misconduct. One case involved the prosecutor trying to kick all the minorities off the jury. He was a true believer in every sense of the word.     

Similarly, many defense attorneys despise prosecutors to a certain extent. They are always ready to share a story of a reasonable prosecutor and a reasonable case outcome, but then they also have their complaint list. The word "Nazi" for some reason seems to be a common word of choice. I never quite understood the analogy between being a member of the National Socialist German Worker’s party and being a criminal prosecutor, but I know it’s no compliment and I’ve heard the word countless times. Maybe the meaning is that the prosecutor (a Nazi party member) is blindly following the orders of a madman like Hitler (top brass in the prosecutor’s office) to prosecute the case no matter how objectively outrageous. Anyway, it just doesn’t sound very flattering to me, and when I hear the term I take care to avoid disclosing that I used to be a prosecutor.

The dichotomy between prosecutors and defense attorneys can be much worse than Democrats and Republicans in a heated election year, although there are loving spouses who vote for competing party candidates. A juror is generally not aware of the relationship between the parties unless they start bickering and feuding in front of the jury.  

Although many Democrats and Republicans are able to cooperate and get along despite their divergent starting points and differing philosophies, there can always be that underlying distrust. It is difficult to make sweeping generalizations, but criminal defense attorneys and prosecutors are almost always very different types of people with differing beliefs, and very different roles in the courtroom. 

Most people do not fully appreciate the role of the criminal defense attorney. Being a criminal defense attorney is not about "beating the charges" and helping guilty people "get off". Being a criminal defense attorney is mostly about providing legal assistance and sage advice to clients who are charged with various crimes, safeguarding the integrity of the criminal judicial process, and acting as a deterrent to prosecutorial abuses.

Imagine that a citizen retains a defense attorney after being arrested for possession of drugs - for the third time. The role of the defense attorney is not to immediately assert that the drugs were planted by crooked cops out to frame an innocent man. The defense attorney will typically follow a systematic process for establishing the facts and resolving the matter. As a formality, the defense attorney would appear in court with his client and would enter a plea of not guilty to the charges. People seem confused by this, but it makes no sense to plead guilty at this point until it can be ascertained if the prosecution has sufficient evidence to establish guilt. 

The defense attorney would normally make some type of information request from the prosecution in order to obtain the chemical test results, and a copy of the police report. After reviewing the lab results and police reports, the defense attorney would meet with his client to discuss the matter. Some clients might candidly admit to possessing the drugs, and others will swear that the drugs belonged to someone else, or were planted, which could be a remote possibility. The defense attorney might then explain to his client that the information in the police report appears to establish guilt because the chemical lab results confirm the sample was crack cocaine, and the police report indicates that the client admitted to the police that the crack belonged to him. The client immediately responds that he only told the police it was his crack is because the police promised him more crack if he admitted that the crack belonged to him. Yes, this is what he said. The defense attorney now knows that the case is not defensible at trial, and that his client is unlikely to be a credible witness at trial, and that the attorney needs a more paternalistic approach to help the client achieve the best outcome. The defense attorney demands that his client immediately enroll in a residential drug treatment program.             

Next, the defense attorney contacts the prosecutor and discusses a resolution. But the prosecutor is tired of this third time drug user and wants three years in prison and so no agreements are reached.

At the first settlement conference the prosecutor and the defense attorney make their best sales presentations to the settlement judge. Each side explains their positions and their opinion about a reasonable outcome for the case. The defense attorney is well prepared and has a "good guy" package ready to give to the judge, which includes all of the client’s volunteer work, charity work, employment history, family history, and explains that the client wants treatment and voluntarily chose to enroll in a residential drug treatment facility. Although there was some prodding, and the primary motivation was to avoid jail, the client did agree to treatment and does want treatment.

The prosecutor refuses to negotiate or reduce the charges to a lesser offense because this is the third drug offense. Having the more serious offense on the client’s record really doesn’t damage his employment opportunities since he already has a criminal record with two felony charges for possession of drugs. But, the prosecutor is impressed with the drug program and agrees to let the client stay in the program since he really wants the defendant to work on his drug problem to avoid future problems and cases.        

The judge agrees to allow the client to remain in the four month drug program, and then serve six months in jail upon successful completion of the drug program. 

This is an example of the role of the criminal defense attorney. The defense attorney didn’t "beat the charges", and didn’t "get his client off". However, after evaluating the case and the evidence, the defense attorney dissuaded his client from pursuing an ill-advised path of denying his confession and blaming the drugs on others. The defense attorney persuaded his client to seek immediate treatment, presented his client in the most favorable and sympathetic manner possible to the judge and the prosecutor, and achieved the best possible outcome for client.

The client spent four months in treatment and then six months in jail. If the client had not hired an attorney to assist him, he would have surely spent at least three years in prison after the judge heard his ridiculous story and sentenced him accordingly for his lack of remorse, honesty, and acceptance of responsibility.  

The Friendly, Honest Bailiff

The courtroom bailiff is a law enforcement officer assigned to maintain the security of the courtroom and is conspicuously visible in the courtroom throughout the trial. A few courthouses are trying to cut costs by using community officers, but generally sworn law enforcement work as bailiffs.               

In a criminal trial the parties are instructed not to have any contact with the jurors because of the possibility of influence and to avoid any perception of influence. Therefore, it is the bailiff who principally interacts with the jurors during the course of the trial when not in session.

The bailiff is usually assigned to the same courtroom with the same judge and they develop some type professional working relationship. The bailiff might not be a close friend and might not be invited to dinner, but at some point the bailiff learns the expectations and general philosophy of the judge. The bailiff will know whether the judge is a former prosecutor, or whether the judge makes disparaging remarks about various criminal defense attorneys, and his conduct will undoubtedly reflect those observations to an extent. 

In a criminal trial some type of law enforcement officer will usually be called as a witness by the prosecutor. A portion of the defense might involve an attack of that officer as untruthful, mistaken, aggressive, or incompetent. Therefore, one of the considerations for a judge is to ensure that his bailiff exhibits behavior which is the antithesis of these attacks. The bailiff should be friendly, professional, courteous, intelligent, and well spoken. It just doesn’t matter to most lay jurors that the witness works for the police and the bailiff is a sheriff, or that the bailiff is a different human being than the arresting officer. Jurors with little close interaction with law enforcement officers will almost universally associate some sort of feeling about the courtroom bailiff with some sort of opinion about the arresting officer. It’s the strangest phenomenon but an experienced trial judge is aware of it and picking the wrong bailiff could help the defense.

So if the criminal case involves a battery upon a peace officer during the arrest, the courtroom bailiff will know, explicitly or implicitly, that the judge wants him to go out of his way to be cordial, courteous, and friendly to the jurors.

If the criminal case involves charges of violence, the bailiff might hover over the defendant and seem concerned by every furtive gesture and movement and noise. By watching the bailiff one might easily conclude that the defendant posed a serious threat to the courtroom security and was a dangerous and violent person. Oh wait, the charges the jury will be asked to decide involve violence by the defendant. Notice that the bailiff never said a word to the jurors and the record does not reveal any indication of bias or influence, and yet the judge’s courtroom bailiff has communicated something about the defendant to the jurors.  

As the jurors sit patiently in the courthouse hallway waiting to start their day the bailiff might make a point to tell the jurors with a sigh and a look of disappointment, We are just waiting for the defense again. A subtle message has been sent about the defense attorney but certainly not enough to concern the appellate court about an unfair trial. The judge’s bailiff is making an intentional, conscious decision to tell the jurors that it is the defense who is making them wait instead of telling them that we will be starting shortly, or telling them that we have been delayed and expect to start in a few minutes, or telling them generically that we are waiting on the attorneys to start. A very subtle advantage has been gained on the long road toward steering the jury.

The prosecutor’s office is usually in the same government building as the courthouse, or it might be conveniently located across the street. The defense attorney might be located somewhere in the neighborhood, or might be across town, or might even be out of the county, which creates a situation where the defense attorney seems to run late more than the prosecution.           

Can I borrow a piece of chalk? Counsel, it’s not my job to provide you with supplies the bailiff tells the defense attorney. But there is a large six-foot high chalk board in the courtroom which I expected to use to present my case to the jury. Surely you have some broken pieces of chalk in your desk drawer or there are supplies in the back hallway. Sorry counsel! The bailiff barks like a military drill sergeant as he squares up to the defense attorney and his hand slides down his right thigh nearer to his gun. You should have brought chalk! The prosecutors use the county courthouse chalkboard regularly and the bailiff knows exactly where the chalk is kept because he keeps it in his desk drawer. The courtroom bailiff is almost always assigned to a particular courtroom with the same judge and they have a close working relationship and the bailiff is well aware of the judge’s philosophy and mindset. The defense attorney quickly scrambles to revise his presentation which is now not quite as polished as it would have been had he used the chalkboard as anticipated. Another cumulative incremental advantage for the prosecution has been achieved when both parties are trying to persuade the jury.

How about another bailiff story? . I had trial once where I tried to engage the bailiff in some water-cooler type, friendly chatter. There was almost no response and the bailiff was clearly trying to ignore me. The situation quickly became awkward. Since I was going to spend about a week in the courtroom with this guy I asked him if everything was okay just to clear the air. The bailiff stopped what he was doing, which was reading the paper, and peered at me through his reading glasses telling me that, "Everything is fine. I just don’t like defense attorneys". Holy Shit! This is gonna be a long week. I could hardly wait to meet the judge that allowed or encouraged this Adam Henry (cop slang for Ass Hole).    

I did what any self-respecting man of principle would do under the circumstance. I immediately broke into a story about being a former prosecutor and agreed with him about defense attorneys. When in Rome, do as the Romans do. 

I should mention that I have met many friendly and professional bailiffs who are very pleasant and offer me every courtesy. They ask if I want water. They ask if I need anything. They mention the bathroom in the back hallway for the attorneys to use. It’s like flying first class. The week was filled with nothing but mutual respect, daily pleasantries, and a few funny jokes when we are in a recess and out of the presence of the jury. And guess what type of judge is on the bench? With this type of a bailiff, the judge is almost always a fair and impartial straight shooter who just calls balls and strikes and gives everyone an honest trial and lets the jury decide.    

The court reporter:

The court reporter is the stenographer who usually sits near the front of the judges’ bench at that funny little machine typing some sort of morse code that only they can understand. If requested to do so at a later time, they can produce a certified transcript of everything that was said during a proceeding or trial. Some courthouses use audio recordings of the courtroom proceedings and trials with a monitor supervising the recording process, and later the recordings can be transcribed if necessary.

Now generally the court reporter is just a neutral recorder of the facts and has almost no opportunity to editorialize or influence the jury. But you can image the significance between a transcript that reads, "I killed the man" as opposed to "I did NOT kill the man". Potentially all those present in the courtroom would submit sworn declarations attesting to the fact that the witness clearly testified that he did NOT kill the man and that the court reporter’s transcript is erroneous.                 

How else could such a courtroom fixture influence the proceedings? I remember doing a criminal trial in San Bernardino, California. The case was assigned to a new judge who had just spent the past twenty years as a senior prosecutor in the Office of the District Attorney. Within a very short period of time I knew exactly where the Judge stood and she was definitely standing right next to the prosecutor. Can you imagine being the quarterback of a professional team knowing that the referee was going to do everything within his discretion to help the other team win the game?

From the time I first appeared in this courtroom I could see that the court report seemed very friendly and confident and comfortable with the judge during various social exchanges but didn’t think anything about it. So the trial commenced and the court reporter seemed to be typing along pretty well without incident. The prosecutor then called the police officer who was obviously a critical witness in this criminal trial and proceeded to elicit his background, training and his observations during this arrest. Things were moving along smoothly and the court reporter looked relaxed and comfortable. That appearance of comfort abruptly ended when it was my opportunity to cross-examine the office about a number of inconsistencies between his testimony and his report. It was a miraculous change because all of the sudden it was as if I was speaking Japanese. As I pointed out the officer’s inconsistencies, the court report couldn’t seem to understand a word I was saying. I would ask a question such as, "now officer you just testified that you saw the defendant wearing a RED jacket but in your report you wrote that you saw the defendant wearing a BLUE jacket, isn’t that true?" The court report would burst out with a SLOW DOWN COUNSEL! Can you repeat that question counsel? I would then repeat the exact same question much slower and so the officer had much more time to gather himself and compose his answer. This went on throughout my entire cross examination so that the officer had the distinct advantage of being able to hear virtually all of my questions twice before answering. After several of these interruptions and outbursts by the court reporter the Judge would then scold me in front of the jury that I was obviously speaking too fast for the court reporter and that she was having trouble recording my questions.          

So not only did the court report assist the arresting office on cross-examination by giving him additional time to answer my questions, but the Judge was now scolding me in front of the jury creating the impression that I was somehow doing something improper. Now I didn’t have a metronome that day on my desk but I can assure you the rate of my speech was similar that of every other person in the trial.

In addition, since I was asking almost all of my questions twice,  the prosecutor had much more time to decide whether to object to the form or substance of the questions. Sure enough, every time the prosecutor would object to one of my questions the judge would sustain the objection which would force me to rephrase my question. So the officer was then answering a tough question he had just heard three times providing the opportunity for a much more composed response.

Who would have thought that a court reporter just typing all of the spoken words in shorthand into a little machine could have such a significant impact on the trial and the jury.

If this court reporter had been assigned to a fair and unbiased judge it is highly unlikely that she would have ever tried to impact the trial the way she chose to do so. And she would have never felt comfortable bursting out at me in front of the jury and telling me to slow down. She would have been quickly replaced by the judge with a different court reporter after her first trial had she pretended to not be able to keep up, or barked at one of the attorneys in front of the jury. It is the judge who allowed and condoned this behavior which effects the juries perception and opinion of the parties, and prejudices the defendants’ ability to receive a fair trial.                

The Impartial and Omnipotent Judge

Judges preside over the court proceedings. Judges are trained to an extent to exude an aura of confidence. The nature of the position invites them to present themselves as authoritative, willing to listen, but never in doubt about their determinations. Depending upon the case and the personalities involved, the prosecutor and defense might conduct themselves professionally and dispassionately throughout the trial making life easier for the judge. But many times these adversaries become contentious during the trial and can even be outwardly hostile toward each other, forcing the judge to intervene in order to maintain civility and decorum in the courtroom. Judges oversee and facilitate the trial process, make legal rulings, and instruct the jurors on the applicable law. 

Curiously, judges in criminal cases are quite often former veteran prosecutors, but it is far less common for a defense attorney to become a judge. The reason for this disparity is due principally to the way in which an attorney becomes a judge.

Generally, to become a local county judge you must either be appointed by the Governor of the state, or be elected to the position in a general election. Federal Judges are appointed by the President of the United States and must be confirmed by a simple majority of the Senate. The Governor is a political animal who looks to appoint well-qualified individuals who are usually from his political party, and less well-qualified supporters, who are politically viable, and will not embarrass the Governor sometime in the future in a high profile case. It also doesn’t hurt if you privately agree to support the Governor at the next gubernatorial election.

Being a candidate for judge in an election is a difficult and expensive proposition. A county judicial seat requires a county wide campaign to be successful in a contested election. Speaking engagements at the Rotary Club or Elks Lodge are time consuming. Participating in election debates and media interviews is hard work. Being published in the voter pamphlet materials, putting up hundreds of those silly little signs on every corner, and paying for some advertising, will cost thousands. In a large county, a judicial candidate might spend more than one hundred thousand dollars to successfully run for a contested judicial seat.

The law enforcement community and the local prosecutor’s office are by far the most important supporters in a local judicial race. Being tough on crime is a powerful and popular message. Touting your intolerance of abuse by landlords in landlord/tenant eviction cases is not going to garner much support from the voters. If you want to run for a judicial seat, you almost always need the support of your local police and prosecutorial agencies. But how can you garner the support from the police chief and the police unions? You must be tough on crime and promise to support law enforcement if you want support. And what is the surest way to convince the law enforcement community that you are tough on crime and will support them once on the bench? You’re a prosecutor trying to become a judge.

Think about the politics behind the process and the ramifications. What interest could the prosecutor’s office and local law enforcement possibly have in the outcome of a local judicial race? If judges are all fair and impartial, who just mechanically decide contested issues based upon the facts and the law, then these groups should really be indifferent as to who becomes a judge. Aren’t judges in criminal cases just making legal rulings based upon facts and the applicable law? Why would it matter who is on the bench hearing a case? It turns out that judges have a lot of discretion in the way they handle matters and decide issues and their background and experience impacts their view of those issues. 

Judicial candidates spend untold hours telling the community that they will be fair and impartial to all criminal defendants in all cases, while out of the other side of their mouths they proudly boast about being endorsed by every law enforcement union and police chief in the community.             

There are obvious reasons which explain why far more judges are former prosecutors than former defense attorneys. As a judge, being fair and impartial usually means something different to a former criminal defense attorney and a former prosecutor. 

Judges are often thought of as referees in a sporting event. Can you imagine being in a baseball game where the plate umpire widened the strike zone for the opposing team? Can you imagine being in a football game were all fouls were called on your team but only the most egregious fouls where called on the opposing team? Can you imagine playing in a basketball game. . . you get the point. But haven’t we discovered gambling and game fixing by referees in almost every major professional sport? Why would you believe that judicial officers are beyond reproach?     

A criminal jury trial is an adversarial process and a presiding judge is supposed to be a neutral and unbiased participant in the process. There are many former prosecutors who have become judges and have been successful in completely abandoning their former allegiance, and they embrace their new role of neutrality. As a veteran jury trial attorney I have appeared before many judges who were formerly veteran prosecutors, but I always knew from past trial experiences with that judge that I was assured a fair trial. It takes a serious effort and deep commitment to make the transition from prosecutor to judge but it can be done, and has been done by many judicial officers.

Likewise, there are times when a criminal defense attorney somehow makes it to the bench and suffers from bias. But fear not! The presiding judge, the judge who assigns judges to particular courtrooms, will swiftly reassign them to civil trials or speeding ticket cases after a few whispers in chambers and complaints from the prosecutors or law enforcement.  

CHapter 3: Pre-conviction Proceedings


Justice Delayed is Justice Denied

At the beginning of the trial process the parties appear for trial call in a courtroom and announce to the judge that they are ready for trial. The judge then attempts to assign the case to an available trial courtroom based upon the length of the trial, the type of case, and whatever else concerns the assignment judge.

Courthouses can be busy places. Sometimes there are no courtrooms available to start a trial, and so the assignment judge trails the case to the afternoon, or the following day, or the following week. As long as the defendant agrees to the continuance, the case can be continued to anytime in the future. If the defendant does not agree to the continuance, the case will still be continued, but the length of the continuance is limited by statute, which is usually no more than ten days.

In addition, the trial may be continued for more than ten days over the defendant’s objection, if the prosecutor can demonstrate Agood cause@ for the continuance. Some judges will rule that almost any reason the prosecutor recites is good cause warranting a prosecution request for a continuance of the trial. The Appellate Court has determined that court congestion is not good cause for a continuance, although it is permissible for the judge to trail the trial within the statutory period due to court congestion. The reason for a continuance beyond the statutory period usually comes from the prosecutor.

Here we see another opportunity for judicial discretion to have a chilling effect on the Constitutional right to a jury trial. The judges and the prosecutors are government employees and are paid a salary to be at the courthouse every day. Each continuance requires an appearance by the defense attorney, and the defense attorney must be ready to start the trial at each of those appearances. The process at various courthouses results in trials being delayed for days, weeks, or months. Some judges will even order the defendant to be present for each court appearance. This type of order has a punitive effect and results in the defendant and his or her attorney sitting in the courthouse hallway for dozens of hours, over multiple days, waiting to learn if their trial will start, or be continued again. Most citizens find it difficult to leave work for a jury trial. Almost all citizens are unable to take innumerable days off from work to wait for a trial to commence. This courthouse process puts pressure on citizens to give up their right to a jury trial and either plead guilty or accept a plea bargain which they would not otherwise accept.

In addition, criminal defense attorneys charge money for their services and the more time a trial takes to start and complete, the more money a private defense attorney will need to charge for their services. These increased costs make hiring an attorney for trial very expensive and deters citizens from electing to proceed to trial.

What is the most common reason for court congestion? Unreasonable prosecutors bog down the wheels of justice. When prosecutors do not make reasonable offers to resolve cases, defendants and their attorneys elect to go to trial instead of taking a bad deal because there is a reasonable chance of being acquitted, and even if convicted, the trial judge is likely to sentence the defendant to something less than, or equal to, what the prosecutor was initially offering prior to the trial. This is what causes court congestion.

I remember several years ago in Riverside County, California, when the trial call departments were dismissing a handful of criminal cases each day because the cases had been trailed to the statutory limit, and there were no courtrooms available to commence the trial. The notorious District Attorney refused to modify his tough on crime approach and created a civil backlog for several years because the county court administrators were forced to use civil trial resources to accommodate the unusual criminal case overload. Having civil judges preside over criminal trials is a bad idea for a number of reasons, and most courthouses distinguish between civil and criminal departments.      

I should note that many courthouses are very efficient, and the day a case is set for the trial is usually the day you can expect to start the trial, barring something unusual. Also, I have appeared before many assignment judges over the years who have been very flexible about trailing and continuing the case. A judge might tell you that there are no courtrooms available, and then might ask the defense attorney for a preference regarding the next available trial date. Some judges even allow the defense attorney to call the assignment department to check on the daily congestion. I have encountered many very reasonable and accommodating judges who are willing to work through any periods of court congestion. But, this book is about the jury trial process, and the opportunities it presents for judges to impact the outcome of the jury trial. It seems appropriate to illustrate how those same judges can make exercising the right to trial a needlessly time consuming, expensive, and punitive experience.

The Challenges of Trials

Once the case is assigned to a judge, each of the parties usually, depending upon state law, has the right to exercise one challenge to the first judge assigned to them. Trial attorneys are like elephants when it comes to remembering how they were mistreated by a judge in a past trial. Often attorneys will share trial stories about particular judges and the word will spread through the courthouse like a raging wildfire.

But exercising a challenge to a judge is an awkward move because a copy of the paperwork usually makes its way back to the judge you challenge. You do not need to explain the challenge, or make any accusations, but you know that the judge will learn about your challenge. In a smaller courthouse that decision will follow you around for quite some time. High school politics seem so remote from courthouse politics, but I promise you that other judges will also learn which defense attorney challenged a particular judge who might end up being their personal friend or golf buddy. All judges at a courthouse stay connected by meetings, memos, luncheons, and personal relationships. When reelection time comes around every few years for a judge, he or she will look to the other judges at the courthouse for some sort of help or support.          

The prosecutor will almost never challenge a judge without the express approval of the top brass in the prosecutor’s office. The decision for a prosecutor to challenge a judge is a big deal and can create a political firestorm at the courthouse. When the prosecutors challenge a judge, they effectively remove the judge from hearing criminal trials because no criminal case can be assigned to the judge without a flurry of challenges being filed. Sometimes only one of the many prosecution agencies is challenging a judge, but the other prosecution agencies will still appear before the judge for trial, and so the assignment judge has to consider this factor by looking at the court file to see who filed the criminal charges. Although technically the case should be assigned, allowing the challenge to then be filed, and then the case is reassigned; it doesn’t work out that way and no one has the ability to audit the inner thoughts of the assignment judge.      

Both parties also have the right to challenge a judge for actual bias and prejudice. If the case involves the burglary of a store, and the judge’s wife owns the store, then everyone can agree, without a formal hearing, that the judge should not hear the case. But if you want to hold an evidentiary hearing to argue that the judge is a former veteran prosecutor, and is biased against all criminal defendants, in all criminal cases . . . good luck. 

Once a judge is assigned, the prosecutor and the defense attorney make their way to the trial department to check in with the courtroom clerk or bailiff. Sometimes the assignment department clerk or bailiff will take the court file to the trial courtroom, but often the court file is handed to the prosecutor to bring to the trial courtroom. For some peculiar reason, the defense attorney, who is an officer of the court and a member of the state bar, is never entrusted with the court file. This preference seems odd since there are many stories of prosecutors falsifying, hiding, and destroying evidence prior to being terminated for the misconduct. If the trial courtroom is locked and the parties have to wait, the prosecutor has the advantage of being able to peruse the court file for information while waiting for the trial courtroom to be opened by the bailiff.  

The Unofficial Meeting

When the parties and the court file find their way to the trial courtroom, the judge will almost always conduct an informal pretrial meeting in the judge’s chambers. A chamber sounds impressive but it’s just the judge’s office which is usually located somewhere off the hallway behind the courtroom. The government building offices are universally unimpressive with the rare exceptions. When you see a beautiful building being used as a courthouse it is often because many of the elected government officials are also located within the building as well. Money and politics are ever-present. Some judges are willing to use the old, grey steel government file cabinets from the 1980's, but some judges pay to furnish their own chambers to spruce up the place.       

Smiles and handshakes quickly give way to the business at hand. There are countless ways to conduct a chambers conference and all judges have their own style and personality, but generally, they boil down to the following litany.

"So what’s this case all about?" the judge will ask the prosecutor. The prosecutor immediately recites some version of a partially memorized opening statement about the charges and evidence. The judge maintains his best poker face, obviously convinced of complete guilt, and turns to the defense attorney with the next question, "So what’s the problem?" The defense attorney politely explains that perhaps not everything the prosecutor told you is completely accurate and we think the evidence at trial will establish innocence. Obviously everything said to the judge will be used by the prosecutor to help him prepare his case, and to better understand the particular defense issues.  

"What was the last settlement offer?" the judge asks the prosecutor. "And your client doesn’t want to take that deal?" as the judge turns his head and engages the defense attorney. "What is your client interested in?" he asks. "Well, your honor, we would like a dismissal of all the charges and a personal apology from the county prosecutor himself, and a free car wash . . . but barring that, we would be willing to agree to plead guilty to the reduced charge of such and such if the court would agree to a sentence of no more than such and such."

Even if the defendant is completely innocent, it might be prudent to plead guilty to a lesser charge, with an agreed upon a sentence, to avoid the risk that a jury might return a verdict of guilty on the more serious charge, despite his innocence. If convicted, the judge will be forced to impose a sentence in accordance with the sentencing guidelines which pertain to the more serious charge. Although it is rare in my opinion, innocent people are wrongly convicted by juries every single day in the United States and guilty people are acquitted by juries every single day.

When I say wrongful convictions are "rare" what do I mean? Let’s say there about 150,000 State and Federal jury trials per year in this country. If the jury gets it right 99% of the time that means that 1% of the time an innocent person is being wrongly convicted because a witness mistakenly identified them, or a prosecution witness lied, or someone hid exculpatory evidence, or something else. That means that 1,500 innocent citizens per year are wrongly convicted. If you place even more trust in our system and believe that the juries get it right 99.9% of the time then you still have to accept that about 150 people per year are wrongly convicted. But what if you have a lifetime of jury experience and you think juries are only accurate about 95% of the time? And what if some of those trials happen to be death penalty cases, or serious felony cases involving decades in prison?

I have a trial story to illustrate the point. Many years ago I had a client who was charged with a misdemeanor hit and run in Los Angeles, California. Let’s call him Pablo Escobar for fun because his name turns out to be important to the story. Pablo and his immediate family were sitting around their proverbial crib one Saturday night drinking up a storm and chillaxin. Apparently they were ill-prepared for the booze festival and began runnin low on gin and juice. So Pablo’s brother, Hector Escobar, took Pablo’s wheels, with or without Pablo’s permission, to buy some liquid supplies. Well it turns out, unbeknownst to Hector, that alcohol interferes with the ability to drive a vehicle - who knew? So Hector T-boned another vehicle on the way to the liquor store. Hector, being an honorable man did what any other civic minded person would do, he ran like hell from the scene into the night. Well, the next morning Hector decided to confess to the crime and decided to take responsibility for the accident. Just kidding! The brothers went to the police station to report the car as stolen the night before. The cops were already upset because they knew the vehicle was in an accident the night before and also they knew the real driver was standing before them trying to report it stolen. Despite the pressure from the sergeant and a few threats about filing a false report, the cops were forced to accept the stolen car report. Incidentally, there was no sign of a broken ignition so apparently the well-prepared auto thief had a key.

But this is where the story takes a turn. It turns out that the driver of the vehicle that was hit by Hector did not have auto insurance and her vehicle sustained about seven thousand dollars in damage. If Pablo’s car was being driven by Pablo then his insurance company would pay for the repairs. But if the vehicle was stolen and had been driven by an unknown thief who ran off into the night, then Pablo’s insurance company would not pay to repair her car.

So the police are sure it’s a bogus stolen car report and they bring the victim into the police station for a photo lineup. Generally, a photo lineup is where the cops show a witness or victim several similar looking subjects and ask the person if they can identify the suspect from the photo lineup. The photos can be mug shots from arrests or Department of Motor Vehicle driver license photographs. The police are supposed to follow a specific careful protocol to avoid being suggestive, or to suggest that the suspect is even represented in the photo lineup.

Anyway, somehow she identifies Pablo as the driver. I was never able to figure out if the police helped her, or she did her own detective work to see what he looked like from Facebook, or something else. After the identification, the case was sent to the local County District Attorney, who filed misdemeanor hit and run charges against Pablo.

At the trial I knew that the victim had seven thousand reasons to identify Pablo, but didn’t know how she pulled it off. I also knew that Hector was the driver from interviewing several family members. So during the trial, as expected, the victim is asked by the prosecutor if she sees the person who was driving the vehicle that crashed into her and she identified Pablo. I always get a little nervous that they are going to point to me - but she pointed at Pablo.

On cross-examination of the victim I try the standard identification questions but she has been coached by the Deputy District Attorney better than any Superbowl team. The answers are obviously coached.

Q: How far away was the driver?

A: He seemed very close.

Q: Could you clearly see the drivers face?

A: The image is burned into my mind.

Q: How was the lighting?

A: There was plenty of light from every direction, then she recited the location and distance of every light source.

Q: How long did you see him?

A: After the impact he froze and we stared at each other for what seemed like eternity.

Q: Did you speak to the prosecutor about your ability to identify the driver prior to testifying here today?

A: Yes.

Q: Are you aware that if Pablo was the driver you can make a claim against his insurance company?

A: Yes.

Q: But if the driver was an unknown thief you cannot make a claim?

A: Yes.

So the misidentification approach goes absolutely nowhere but I have a plan. I show the victim a picture of Mr. Escobar and ask her to take a long look at the picture of Mr. Escobar. I wait several seconds as she looks at the photo for maximum effect. I ask her if she was absolutely sure that the man in the picture was the man driving the vehicle that night. She tells me she is absolutely sure and there is no doubt about it. She had clearly practiced the answer to that question at least a dozen times in the mirror before the trial. 

Then, I call my first witness, momma Escobar, who is the mother of Pablo and Hector. I show her the picture of Mr. Escobar and I ask her if she can identify the man depicted in the picture. Momma Escobar testifies that the man in the picture is her son, Hector. Kaboom! This was one of the best Perry Mason moments I had experienced in years. The judge even flashed a quick smile in my direction. 

The witness has now identified both Hector Escobar and Pablo Escobar as the driver. I had successfully established reasonable doubt about guilt. In closing argument I pointed out the misidentification and the fact that the victim had seven thousand reasons to identify Pablo. The prosecutor argued that I somehow unfairly tricked the victim and that she clearly identified Pablo as the driver from the police photo lineup and in the courtroom. 

The jury convicted Pablo in just a few hours and the judge put him in jail for ninety days. Hector was the driver of the hit and run vehicle. Should I have appealed? No. The judge was a pleasant, fair, and evenhanded judge who didn’t make one legal ruling against me that could possibly form the basis of any appeal. The fact that the jury believed the victim cannot be the basis of any appeal since there was evidence (her identification) that Pablo was the driver. Think about what can happen in a jury trial when a judge intervenes, takes sides, and tries to steer the verdict.             

So sometimes cutting a deal in a pre-trial chambers conference can be a smart move even if you are innocent. During plea negotiations the prosecutors control the charges. There is no such thing as judges dismissing charges as part of negotiations without the consent of the prosecutor. Judges can only dismiss charges after a hearing, or trial, when they are making a legal determination about the charges. Judges control sentencing within the sentencing parameters proscribed by the sentencing laws. For example, if a person is sentenced for a burglary charge the sentencing law might mandate that a judge impose something between three and six years. A sentence of two years or seven years would be illegal, and the aggrieved party would appeal the sentence ultimately resulting in a new sentence. 

People think that you hire a great lawyer for the courtroom trial, but being a great lawyer starts long before trial and includes the chambers conference, and a lot of deals are reached prior to trial. I have cut many deals in chambers and I have seen quite a few skilled attorneys in chambers negotiate so well that Donald Trump would be envious.

Some judges are not interested in deals. Some judges take the position that all negotiations should have been completed long before the day of trial and as a trial judge their only role is to facilitate the trial. For many, once they hear about the case from the prosecutor they are completely on board and ready to join the team as co-prosecutor. They make it their mission to steer the jury toward the verdict they decided upon when the prosecutor first told them about the case. 

Prior Convictions - Back so Soon?  

Repeat customers are something that almost every business would aspire to achieve, unless you are a criminal defense attorney. Unfortunately, recidivism rates are high and repeat customers are common.

When a person requests a jury trial in a criminal case, the jury verdict must be unanimous and each juror must be convinced of guilt, according to the legal standard, which is beyond a reasonable doubt. If a person pleads guilty, or is found guilty by the jury, then the judge will impose a sentence. The subject of sentencing can be rather complicated and entire law school courses are dedicated to sentencing laws and issues.

At sentencing, the judge will typically impose a sentence, but then suspend that sentence, place the defendant on probation for a period of time, and impose certain terms and conditions of probation. The judge might alternatively suspend imposition of the sentence, and then place the defendant on probation for a period of time with certain terms and conditions. In the first instance we know the sentence that is imposed and then suspended, but in the second instance the actual sentence remains unknown but can be imposed later on if the defendant does not complete the probationary terms, or violates probation in some way.  

For example, let’s say a person is charged with selling drugs and the charge carries a maximum sentence of three years in prison. The judge looks at the facts of the case, the defendant’s criminal history, and many other factors, and determines that six months in jail is the appropriate punishment. The judge will almost always impose something less than three years or the defendant would have no incentive to plead guilty and would simply choose to fight the case, proceeding to a jury trial no matter how hopeless the case seemed. For example, in a death penalty case there is no such thing as "taking the deal" since the deal is death.

In our example, the judge at sentencing might impose two years in jail, but suspend eighteen months, and place the defendant on probation for five years, with the conditions that he serve six months in jail, attend narcotics anonymous classes, participate in a drug treatment program for six months upon release from jail, and remain law abiding.

What if the defendant hears the proposed sentence and tells the judge, "I ain’t doin shit, your honor! My cousin did the drug treatment program and it sucks!" Well, the judge, or his attorney, will explain that the charge allows for a maximum of three years in jail. Therefore, the defendant can agree to either the terms of probation and the six months, or the judge will "max him out" by imposing three years in jail. Life is full of choices.

Once the case is resolved and the sentence is imposed, the matter would now be considered a prior in any subsequent criminal matter. So six months later when the defendant is released from jail, he is arrested again for selling drugs. Actually, the defendant would probably be released in about three months due to jail overcrowding and early release programs but why confuse the story. Anyway, the first arrest is now considered a prior criminal conviction for sentencing considerations by the judge. In addition, because the second arrest occurred within the five years of probation, it will be considered a probation violation if proved.

Here’s where things get interesting. The defendant has the right to have a jury trial on the new drug sales charge which must be proven beyond a reasonable doubt. But the probation violation allegation only requires an evidentiary hearing, does not entitle the defendant to a jury, and only needs to be proved by a "preponderance of the evidence" which is generally understood to be "more likely than not" or "51%." Judges almost always find the person in violation of probation using this standard even if the jury finds the person not guilty using the beyond a reasonable doubt standard.

So how do we typically handle such a hearing? The defendant is under a great deal of pressure to settle the new case knowing that the judge has the power to impose a sentence on the probation violation. If the defendant proceeds to trial on the new case and wins, the judge can simply use the trial evidence as the required evidence for the evidentiary hearing on the probation violation and will most likely find the defendant in violation. In our example, the judge could impose another eighteen months for the probation violation since two years  was imposed and eighteen months was suspended.                

You have the constitutional right to a jury trial in all criminal cases. However, the judge can deny you the right to a jury trial for all practical purposes by exercising his discretion on the sentencing of any probation violation.

If the judge offers nine months for both the new drug sales case and the probation violation on the prior case, what do you think the defendant should do? It’s clearly a seller’s market and you are basically forced to buy what the judge is selling. If the maximum sentence on the current charge is not significantly longer than the sentencing exposure on the probation violation, then the judge can force you to plead guilty on the new charge by controlling the sentence on the probation violation. Even if you are innocent of the new charges it might be prudent to plead guilty in order to limit your sentencing exposure on the probation violation.   

I should probably point out the distinction between jail and prison at this point. Although the terms are often used interchangeably, people involved in the criminal justice system understand the distinctions between jail and prison. Jail is used for short term incarceration by local jurisdictions such as cities and counties. A citizen might be housed in jail awaiting arraignment, trial, sentencing, or serving a sentence, which is usually less than a year. There have been several recent changes in the law which involve housing state prison inmates in local jails, but generally jail is for shorter durations. Strangely, you might have a convicted killer in a local jail waiting for his sentencing hearing where he will be sentenced to prison for the rest of his life, and in the same jail you might also have a mother of two children serving sixty days for stealing money from her employer. Obviously, there is a huge difference between Los Angeles County Jail and a small rural town jail.

Prisons are administered by the states and are used to house convicted criminals for longer durations. Many inmates in prison will never leave the prison and will remain in prison until executed, or will remain in prison for the rest of their lives. Prisons are dangerous places and some refer to prison as gladiator school due to the level of violence and mortal combat. On average, about 160 inmates are killed each year by other inmates, and thousands are seriously injured. In prison, they fight by prison rules. Shoving a pencil through a person’s eyeball, or smashing their skull repeatedly into the concrete, would be considered acceptable during a fight under prison rules. Everyone has heard some sort of comment about "prison rapes" and that’s because there are about 6,000 prison rapes occurring each year. This number only represents reported rapes. Prison crimes are often unreported because reporting a crime and becoming a "snitch" in prison can get you killed. There are also about 2,000 corrections personnel each year who are injured significantly enough to require medical attention.

When Judges grant probation, and sentence a person to several months in jail as a more lenient sentence than prison, they will often warn the person that an additional offense will result in a sentence to prison. The judge’s cautionary warning shows a clear understanding of the difference between jail and prison.

Pretrial Motions

After the pretrial conference concludes, the parties have the opportunity to discuss trial issues and to file any pretrial motions. Motions are used by the parties to settle any anticipated evidentiary disputes outside the presence of the jury before those matters occur in front of the jury.

For example, the prosecutor might disclose a dozen bloody photos of the victim to the defense attorney. The prosecutor is certainly entitled to show at least one of the photos to the jury to establish his case, but the defense attorney feels that the cumulative effect of all of the bloody photos is too prejudicial, unnecessary, and inflammatory. The defense attorney might file a motion to limit the prosecutor to picking just one bloody photo of the victim. If the defense attorney waited until the jury was present, the prosecutor would display all of the photos in front of the jury, leaving the defense attorney to object in front of the jury, but then it’s too late because the jury has already seen the photos in the hands of the prosecutor.

To avoid trial delays the prosecutor might make a motion to introduce certain evidence so that the issue is resolved before the jury is called to the courtroom. This avoids trial objections and trial delays regarding the evidence. It also helps to know what will be allowed into evidence when each party prepares their presentations. 

A judge has discretion when allowing or excluding evidence which can have a tremendous impact on the outcome of a jury trial. For example, the jury was never aware that O. J. Simpson received military training with a knife during the filming of a movie in which he starred because this evidence was excluded via a motion. The physical evidence established that the killer of Nicole Simpson and Ronald Goldman was quite skillful with a knife. In this example, the pretrial ruling on the knife training issue appears to have assisted the defense, but pretrial rulings can be devastating to the defense such as allowing the admission of prior criminal convictions or prior bad acts.

Sometimes in the middle of a jury trial the client can sabotage the entire trial by saying something that allows evidence of his prior convictions to be introduced into the trial although they were already excluded by the judge prior to trial. For example, imagine a defendant being on trial in a driving under the influence case. He takes the stand and proudly declares that he only drank one beer and the cop is full of bologna. On cross-examination the prosecutor asks the defendant about his poor performance on the various field sobriety tests. The defendant quickly blurts out that those tests were too hard, the instructions were too confusing, and he has never done those tests before.

Well it turns out that the defendant has two prior driving under the influence convictions that his brilliant defense attorney skillfully persuaded the judge to exclude from the trial as not relevant to the current driving under the influence charge, and so prejudicial that the defendant would not receive a fair trial from the jury if the jurors became aware of those two prior convictions.

But now the defendant has claimed that his poor performance on the field sobriety tests was due to the instructions being too confusing, and his lack of familiarity with the tests. The prosecutor interrupts the cross-examination and asks for a sidebar. At sidebar the prosecutor argues to the judge that what the defendant said is not true. The defendant has two prior drunk driving convictions and performed field sobriety tests on both of those occasions. Therefore, the defendant is very familiar with the tests and the instructions, which actually would give him a performance advantage on the tests since the tests are designed for the novice with no prior testing experience. The judge agrees and the prosecutor is now allowed to ask the defendant about the two prior arrests and the field sobriety tests on each occasion. This outcome is fair and a fair judge would rule against the defendant and would not allow the defendant to mislead the jury with his untruthful excuse.

It really goes without saying that when a jury hears about the defendant’s prior convictions for the exact same charge they are far more likely to convict. Jurors usually do not engage in the mental gymnastics needed to compartmentalize the prior convictions, and to reason that those prior convictions are not really relevant to guilt or innocence of the current charge.          

Judges who want to lead a jury toward guilt can successfully use this type of situation to achieve that end. Imagine a similar situation where the defendant is on trial charged with driving under the influence. The defendant takes the stand and proudly declares that he only drank one beer and the cop is full of bologna. Upon cross-examination the defendant is asked why he didn’t call a cab. The defendant testifies that he doesn’t like to drink and drive and would have called a cab if he believed he was under the influence of alcohol. The prosecutor interrupts the cross-examination and asks for a sidebar. At sidebar the prosecutor argues to the judge that what the defendant said is not true. The defendant does like to drink and drive and has two prior drunk driving convictions to show for it and the prosecutor wants to ask the defendant about those two priors in front of the jury. The defense attorney laughs at the twisted logic and argues that what the defendant said is true. He has suffered the negative consequences of the two prior convictions and does not like to drink and drive, and he only drove because he felt okay to drive. Having the two priors does not demonstrate any affinity for driving under the influence of alcohol. The judge stretches the bounds of logic and imagination and allows the prosecutor to inquire about the two prior convictions which virtually assures a conviction. In the middle of the trial the judge has found a way to sabotage the entire defense.  

Some would not be bothered by this ruling because they feel the jury should know everything in order to make their decision. Again, it is difficult for jurors to keep the prior conviction information from influencing their current decision which really has nothing to do with the prior convictions. The rules of evidence which are used throughout the jury trial process are in place to ensure a fair trial. Judges exercise discretion when they make rulings regarding the rules of evidence which can have a  devastating impact on the jury verdict.

A judge can lay a trap for the defendant. Before the trial the judge can rule that the evidence of the prior conviction is excluded. Based upon this ruling, a decision is made to have the defendant testify during the trial because the defense attorney knows the defendant cannot be questioned about the prior. Then, in the middle of the trial, while the defendant is testifying, the judge will interrupt the testimony and ask the parties to come forward for a sidebar. At sidebar the judge will advise the parties that based upon the statements of the defendant, he is reconsidering his prior ruling and will now allow evidence relating to the prior conviction. Gotcha!

It turns out that the defendant testified that he was wearing jeans the night of the arrest which he claimed interfered with his ability to stand on one leg and it turns out that the defendant was wearing jeans during both prior arrests. The judge has made a monumental leap in logic to trap the defendant and ensure a conviction.  

Behind Closed Doors

Some types of hearings are confidential and not open to the public. For example, a mental health/psychological evaluation hearing must be confidential. Or a hearing to view the personnel records of a law enforcement officer would be confidential. If a person arrested reads the arrest report and is appalled at the work of fiction then you might suspect that the officer is a liar. If the officer is a consistent liar then you would expect him to have lied in other matters. So, one thing that can occur is that the defense attorney would file a motion seeking to view the law enforcement officer’s personnel records. Now they don’t just hand over the officer’s personnel file to any defense attorney who has a client moaning about the arresting officer being a liar.

After the defense attorney files the motion seeking records, with proper justification, a hearing is scheduled. The law enforcement agency sends some sort of custodian of records with the personnel file to the hearing. The judge and the custodian of records go into chambers, without the defense attorney, and the judge views all of the records. In this particular instance the judge is supposed to disclose to the defense attorney any citizen complaints, or police discipline, that reasonably relate to dishonesty. If the defense motion involves allegations of excessive force by the arresting officer then the review of the personnel records would be limited to prior incidents or complaints of excessive force by the officer.

Do you see the opportunity for abuse? The judge decides what will be disclosed and you have no way to know whether there was some incident of dishonesty or excessive force that should have been disclosed. Documents and information are discoverable only if the judge orders it to be disclosed. The law enforcement custodian of records is unlikely to tell the defense attorney about the judge exercising his discretion not to disclose a relevant incident and so I have no idea if a judge has ever failed to disclose potentially exculpatory evidence from one of these hearings. Although, based upon the conduct I have observed in open court, I have concerns. You can image how this type of information could affect a jury decision. The judge has tremendous ability to impact the outcome of the trial by stretching his analysis of the disclosure and relevancy of information.

For example, an officer’s personnel records might contain a non injury domestic violence incident where police were called to the officer’s residence but no arrest was made. However, the police agency took some sort of internal disciplinary action. Of course no arrest was made! He is a police officer and the police officers who responded to the call handled the matter quietly. The disciplinary incident, however, is documented in the personnel file. The judge, who knows he wants to help the prosecutor, rationalizes his decision by telling himself that this incident did not involve the officer while on official duty, did not relate to an arrest, so it is not relevant, and the jury should not be told about it. Therefore, he does not order that it be disclosed to the defense attorney.

But if the charges involve a battery on a police officer and the defense involves the officer’s unreasonable use of force, shouldn’t the defense attorney be able to bring up the officer’s prior violence? Imagine that right after the officer testifies that the defendant attacked him, the defendant testifies that he insulted the officer while intoxicated and the officer then threw him to the ground and punches were exchanged. Could a jury be assisted in determining the truth and reaching a verdict by knowing that the officer attacked his wife previously?