Articles Posted in Trial Tactics

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The internet is a powerful tool.  It allows us to instantly look up the score of a game, figure out who was the 14th president of the US  and find out how many miles away mars is.  But is everything on the internet to be relied on?  What if  a police officer pulls a motorist over. The driver is asked to get out of the car.  The officer says, “May I search you?”  The driver answers, ” Of course officer.”  During the search the officer finds numerous different pills in the driver’s pockets.  He suspects the pills are controlled substances and decides to arrest the driver.  When the case comes to court, can the prosecution expert rely on the internet to identify the pills as illegal?  Doesn’t the crime lab have to do it’s scientific analysis?  What can the prosecution expert rely on in stating his opinion?
You would think that under the rule stated in People v Sanchez (2016) 63 Cal. 4th 665, a very important California Supreme Court case, which basically held that experts can’t use testimonial hearsay in trial as the basis of their opinions, the internet couldn’t be used as the basis of their opinions.  This issue would come up routinely in gang prosecutions where the police expert would testify that one of the bases of his opinion that a defendant was a gangster was interviews with other police officers in prior contacts with law enforcement.  The court said that those prior statements were testimonial hearsay and couldn’t be used in court against the defendant.  Well, if that’s the case, obviously statements on the internet are something that can’t be quoted…right?  Wrong.
Recently in People v Espinosa 2018 D.A. R. 4531 decided May 14, 2018, the 2nd District Court of Appeal ruled that an expert called by the prosecution could rely on Ident-A-Drug to presumptively identify the pills found in the above driver’s pockets as illegal.  Ident-A-Drug is an internet drug reference compilation that is used by law enforcement and others to look at the pills pictured and compare them to the drugs found.  Evidence Code section 1340 basically is how the hearsay objection was defeated.  Evidence Code section 1340 says that if the compilation is “generally used and relied upon as accurate in the course of business” it’s admissible.
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A Defendant was accused of being a gang member and committing a murder for the benefit of the gang.  The District Attorney wanted the testimony from one of the Defendant’s fellow gang members.  This potential witness had seen the shooting and had crucial relevant testimony that was wanted by the District Attorney.  The witness refused to testify when he was subpoenaed into court.  He asserted his privilege against self incrimination, since he could have been accused of being a co-conspirator, and refused to testify.  The District Attorney sought to force him to testify by seeking and obtaining a grant of immunity under Penal Code section 1324.  
Penal Code section 1324 provides that the prosecutor can ask a judge to grant an order of immunity for a witness whose testimony is important to the prosecution as long as the grant of immunity doesn’t do more harm to the public than the good to society that is going to be obtained by having the testimony given by the witness.  A grant of immunity under these circumstances means that the prosecution cannot use the testimony the witness gives against him in any future prosecution.
In this case the judge granted the immunity order and ordered the witness to testify.  The witness looked at the judge and told him, “with all due respect, your honor I refuse to answer any questions”.  The judge ordered the witness jailed until he changed his mind.  The witness was led away in handcuffs and the trial proceeded with other witnesses.
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New Rule of Professional Conduct
RPC 5-110(D)
Defense attorneys used to argue all the time with the prosecutors about whether or not they were required to turn over exculpatory evidence (evidence pointing towards innocence) they, the prosecutors, didn’t deem “material”.  In other words, the prosecutor got to decide what would information would be turned over to the defense and what wouldn’t be turned over. If the prosecutor didn’t think it made a difference to the Defendant they were the ones who decided the defense doesn’t get it.  It was like asking the fox who was guarding the hen house if the hens needed protecting…of course the answer from the fox was …no, of course not, I’ll let you know when they’re in danger…Such was the state of the burden on the prosecutors until recently.
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Can prosecutors strike minorities from a jury simply because of their race?

Since 1978 criminal attorneys in California have not been allowed to remove potential jurors from a jury simply because of their race. During voir dire, or jury selection, counsel on both sides have preemptory challenges and can remove jurors for basically any reason, from being too young, too old, too mean looking, you name it. But minorities are a protected class and a person can’t be excluded from a jury simply because of their racial profile.

But even with this so-called Batson/Wheeler protection, minorities have been getting kicked off of juries for decades. Attorneys who thought having a certain race on the jury panel would disadvantage their case would just kick them off and give other excuses, even if those excuses were flimsy. People v. Gutierrez, 2017 DJDAR 5100 (June 1, 2017), a new case from the California Supreme Court, has recently put some teeth back into Batson/Wheeler challenges.

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The DA has the right to charge a DUI where injury is claimed, with either a felony or a misdemeanor. What makes it a felony charge or a less severe misdemeanor is the extent of the injury suffered by the victim. Sometimes it’s obvious that a case is a felony. A clear example of this is a DUI driver who runs a red light and injures another driver, cutting off his leg in the collision. The law is clear that, if as a result of a DUI, there’s a collision that is the fault of the DUI driver and there is injury caused by the DUI driver then the DUI driver could e charged with a DUI With Injury (CVC 23153).

The issue of fault is really important because if, for example, a DUI driver is stopped at a stop sign and another driver rear ends him and is injured, the DUI driver can’t be charged with DUI With Injury because the fact he was DUI has nothing to do with the injury.

I recently tried a case with a DUI driver who had a .33 blood alcohol level, who rear ended another driver on the freeway. There was no doubt who was a fault. But, the driver who was hit claimed soft tissue injury. She treated at a chiropractor who she was referred to by her lawyer. The DA bought the “victim’s” story that she was injured and charged my client with a misdemeanor DUI With Injury. I wouldn’t accept the idea that she was guilty of a DUI With Injury and offered to plead her to a straight DUI. We want to trial. There was only one issue; did my client, who was obviously DUI, cause this “victim” injury?

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Secret-Bail-Hearing.jpgThink secret bail hearings only exist in fiction? Unfortunately the answer is no, even though the 6th amendment to the constitution guarantees everyone the right to a public trial if they’re accused of a criminal act. The United States Supreme Court has long held that this right extends to pre-trial hearings and motions. (Waller v. Georgia)

Bail hearings are no different, as the outcome of a bail hearing directly decides whether or not defendants must remain in custody while they await trial! (United States v. Abuhamra). That’s what makes the recent decision in In Re Carrillo so unsettling. (In Re Carrillo 219 Cal.App.4th 572). Mr. Carrillo was arrested on charges of committing assault with a deadly weapon. At his initial bail hearing, Mr. Carrillo’s bail was set at $90,000. Then, without any notice to Mr. Carrillo, and without giving him a chance to contest, the Judge and Prosecutors held a second, closed door bail hearing. At this bail hearing Prosecutors presented “confidential” evidence indicating they believed Mr. Carrillo was a threat to the community and should post a larger bail. The Judge took the Prosecution at its word, and set Mr. Carrillo’s bail at $1,000,000.

Mr. Carrillo had no chance to contest the information presented to the Judge. He didn’t even know what was presented to the Judge. He just knew that without his knowledge a warrant was issued for his arrest, even though as far as he knew he had posted bail. The Court in his case found this to be a violation of his rights, but in doing so laid out a perfect plan for any Prosecutor wishing to repeat this feat without getting in trouble. What are the magic steps? Well, the Prosecutor has to give notice, but the defendant still doesn’t have the right to be present! As long as he knows the “gist” of what is being presented at this hearing, and as long as the Judge makes an independent determination that the information being presented is reliable, well then it’s just fine to raise a defendant’s bail to $1,000,000! It’s now possible to have secret search warrants (People v. Hobbs 7 Cal.4th 948), anonymous juries (People v. Thomas 53 Cal.4th 771), and secret witnesses (US v. Jesus-Casteneda 705 Fed.3d 1117). With this new attack on the fundamental concept of presumption of innocence, it’s no wonder the average defendant thinks he faces a presumption of guilt regardless of what the Constitution says.

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Wittness-Cant-Appear.jpg
The justice system has to be able to conduct lengthy criminal trials even when important witnesses can’t be there. For example, a typical murder trial will last at least two to three weeks, and may require the testimony of dozens of witnesses. Because of the backlog in our court system, it can be fairly unpredictable as to exactly when a trial will start. For instance, even after all the formal delays in starting a trial (known as asking for a “continuance”), the state still has 10 days to “trail” the case as they wait for a courtroom to become available. And none of this takes into account the time between when an alleged crime occurs and when a case actually goes to trial. In fact, a trial can be years in the making.

So what happens if a witness who has important testimony simply won’t be available when a case finally goes to trial? Sometimes an important witness for either the prosecutor or the defendant will fall ill, move out of the country, or any other number of things happen which would make them unavailable to appear at the trial. The solution to this dilemma is what is known as a “conditional examination.” The procedure to be used in such an examination is carefully crafted to protect the prosecution and the defense and the ability of both to have a fair trial when that time comes.

California Penal Code Sections 1335 through 1345 set forth the circumstances when a conditional examination may be conducted. A conditional examination is appropriate when a witness is: 1) About to leave the state, 2) So sick or disabled that their ability to testify is in doubt, 3) Sixty-five years of age or older, or 4) A dependent adult. For purposes of the “conditional examination” the witness’ testimony is taken in a normal courtroom setting. The Judge, Prosecutor, Defendant and his counsel are all present. While a jury is not present, the testimony is audio and video recorded. If the witness is truly unavailable for trial the tape recording can be played for the jury during the trial. The testimony given at a conditional examination has the same force and effect as if the testimony were conducted live and in person in front of the jury.

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One of the bedrocks of our justice system is the right to have a fair trial. Part and parcel of this is your right to have a jury of your peers impartially weigh the facts of your case and decide whether they believe you broke the law or not. Sometimes the only way to know whether or not you received a fair trial from a jury is to make sure you get out there and talk to them right after a verdict. A defense attorney or defendant is allowed to interview jurors if they are willing to talk, and this is an invaluable tool in making sure your trial was fair.

Recently I found out through an interview with a juror that my client very likely did not receive a fair trial. This juror was horrified at the behavior of her fellow colleagues. She informed me that some of the other jurors were improperly acting as if they had expert knowledge on certain technical subjects, and were openly persuading their fellow juror members that the experts who testified at this trial were wrong! Not only that, but they were belligerent and forceful! In the end this juror felt horrible for voting the way she did because she felt like she gave in to pressure and someone was wrongly found guilty because of it. She couldn’t believe the bias of her fellow jurors and their willingness to convict someone based on their “intuition” when so much evidence pointed to a different outcome.

Since I’ve been doing this for a long time, I knew instantly that I needed to file a “Motion for New Trial”, and let the judge know that the verdict against my client was improper. But I worry that less experienced or dedicated attorneys would never have caught this huge issue. It takes time and effort and a strong resolve to calmly meet and try to talk with a jury after a verdict, but it’s absolutely necessary to insuring a client received a fair trial by impartial, honest jurors. A good attorney knows that their obligation to a client is a full one, and it continues even after a trial.

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Everyone has heard the term “hung jury”, but what exactly does it mean? In a criminal case in California, the jury verdict must be unanimous. All 12 jurors must agree that either the defendant is either guilty or not guilty. A hung jury happens when the jurors simply can’t reach a unanimous verdict. It doesn’t matter what the split is. It could be 6 jurors for guilty and 6 jurors for not guilty or 11 jurors for one side and only one lone “holdout” juror for the other. Sometimes the jury will come back in and inform the judge that they can’t reach a verdict and the judge will send them back to deliberate further and give them a suggestion as to how to break the deadlock, such as the people who are voting for not guilty argue the other side, and the jurors who want to acquit argue for guilty. In any case, once the judge determines that the jury is not ever going to reach a unanimous verdict a mistrial is declared.

According to The Encyclopedia Britannica, a mistrial is “a trial that has been terminated and declared void before the tribunal can hand down a decision or render a verdict. The termination of a trial prematurely nullifies the preceding proceedings as if they had not taken place. Therefore, should another trial on the same charges, with the same defendants, be ordered, that trial would start from the beginning, with the previous testimony or other findings not necessarily relevant in the new court proceedings.

I recently had a driving under the influence trial that resulted in a mistrial. In the end, the jury split was 10 jurors for guilty and 2 for not guilty. To show you how influential fellow jurors can be on each other, when the jury took their first vote, it was 9 jurors for NOT guilty and 3 for guilty. Clearly there were some very persuasive jurors in the room who argued their case with enough passion to change the minds of 7 jurors who initially thought the defendant was not guilty. This is what trial lawyers hope or fear depending on which side they happen to be on.

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Feel like you’re being tried in a kangaroo court? Has someone falsely accused you of committing a serious crime and then disappeared before you have a chance to defend yourself in court? It happens more often than you think. You get accused by someone in a “he said she said” situation of committing a serious crime. That person gives a statement to the police or provides testimony in a preliminary hearing against you. Then they disappear! And the District Attorney suddenly says your accuser is “unavailable” for trial.

An inexperienced defense attorney might not know that you have a Constitutional right to confront your accusers in court. Without a chance to have a jury evaluate your accuser’s statements for themselves you might find yourself in jail for a long time. An experienced defense attorney however would know that a District Attorney has to try a little harder than simply saying “they’re gone!” For instance, a District Attorney is required to subpoena witnesses, and even put out warrants for their arrest if they refuse to testify and instead try to disappear. Even if they flee to another country like Mexico, a District Attorney has a duty to use things like U-Visas to get those witnesses back! A U-Visa is a temporary visa that a state or federal official can grant to a witness who has vital knowledge of a crime being prosecuted in the USA.

Before you get railroaded in court by a system that seems stacked against you, make sure you have an experienced attorney on your side to hold the government accountable!