A pragmatic approach to criminal law.
…because it appears that some attorneys have to learn cross examination on youtube.
Believe it or not, many attorneys skipped the trial skills in law school, scoffed at the entry-level jobs after law school (the low paying jobs that stressed time in court, anyway), and now they’re watching youtube to get ready for your speeding trial. Think I’m joking? That video has over 65,000 views.
Can anybody tell me why the police are a little bit edgy about cameras popping up everywhere? That’s what the American Bar Association is saying… it’s a pretty interesting read. This might come as a surprise to the 99.92343% who are not experienced, bitter, and cranky criminal defense attorneys, but it’s not us who oppose recording police-citizen interactions. It’s them.
There’s a been a trend to mandate that “confessions” be recorded in certain circumstances. Of course it’s been opposed. Not by us, though. Why is that? You would think having all of these “blatantly guilty” people on video would make our jobs harder, right? Maybe… if that’s what the videos showed.
I was talking this over with a couple other lawyers last week. I’m all for video recording everything that happens between the police and non-police. And, by that I mean that I want the cameras rolling from the minute a suspect/witness/interviewee walks into a police station to the time he is released or taken to jail. Seems simple enough.
Even when police video a confession, they don’t do it like you’d think. They may have somebody in custody for hours. They may be interrogating him for hours. Once they know what the person is going to say, then they turn on the cameras. What is there to hide? Shouldn’t we be able to see what the government is doing? There are no secrets in a police interrogation… are there? There are no secrets at trial, why should there be any in an interrogation?
If traffic stops can be recorded in their entirety, there’s no reason interviews can’t… except that the police don’t want the cameras on. That’s all I’m saying.
I’ll stop preaching this once people start listening. I left court at about 3:00 p.m. this afternoon. As of that time, plenty of folks had still been talking to the cops. Enough to keep me and a whole bunch of other guys like me in business. Such a shame.
Rather than explain (again) why this might not be the best thing you ever did (even if you are innocent especially if you are innocent), I offer you the views of people smarter than me.
This video is a law school professor giving a little lecture. At the end, he lets a cop talk to the congregation. Watching it might be the best 48 minutes you spend today. So, put “American Idol” on pause and take a gander. Then tell me I’m wrong.
It’s called “Never Talk to the Police.”
The last couple of weeks I had the pleasure of reading over the transcripts of a jury trial. By the time all was said and done, it was nearly 1,000 pages of documents. Towards the end of that, when I was tired, wary, and probably a little bit cranky, I went through the closing arguments. It took about one page before the prosecutor started reading the jury instructions to the jury. Not fun reading. I could barely muster the energy to plod through them, let alone manage the strength to post on twitter. I fought through it, though, and managed to write as follows:
Am I the only lawyer on the planet who thinks reading jury instructions in a closing can put jurors to sleep? They put me to sleep.
What I said there was a little bit harsh. I’ve got my own way of doing things. I like to come out firing on closing. I try to start by telling a story based on the facts the jurors heard… a reasonable story. If I can tell a reasonable story about how my client isn’t guilty, there’s reasonable doubt, right? Somewhere in there, usually towards the end, I’ve keyed on the important language of the jury instructions. So, I can use the instructions in my closing.
What I was talking about is the common way you see them used. As much as you see it in court, it’s probably the way some “trial skills” manual or course teach. Check out the first 45 seconds of this prosecutor’s opening:
Put yourself in the juror’s shoes. You’ve missed a couple days of work to pay your civic duties. You’ve heard the evidence and you’re chomping at the bit to get to deliberations so you can finally start making some decisions. The prosecutor put on her red power suit. She steps up to the podium like she’s about to break you off some Law & Order closing argument mastery, and it’s only 19 seconds in you’re being barraged with “consciously disregarded a substantial and unjustifiable blah, blah, blah, blabberblahblah.” 19 seconds after starting to talk, and I’m the juror looking to see if I might have accidentally smuggled in some cheetos and a Sudoku. Maybe your attention span is better than mine, and you made it farther than that. If so, please don’t hold my attention deficit disorder (or my multiple lawyer personality disorder) against me.
Anyhow, I’m not saying her closing argument is bad. Or that her use of the law is bad. I don’t know anything about that case… she probably won. What I am saying is that that style of reading the law, when not broken up and mixed into the “exciting” facts, is not one I can pull off. Thankfully, the best thing about this job is that everybody has their own style, and what works for one person might not for another. Based on the amount of times I see closings like this, it seems like most lawyers do something similar. That’s what I meant with the message.
On a related note, the rest of her argument might be outstanding (I can’t get past the first 40 seconds), I don’t know. On another stylistic note, though, I’d come out of the box a little different. “Three people are dead because of the conduct and the actions of this man” is a little dry. I’d opt for something more like, “This guy killed three people. That’s the only reason we’re here.” Hopefully nobody would pull out cheetos and sudoku. Never know, though.
It’s usually a good idea to know what you’re going to say before you start to talk. This guy did. Not sure it ended how he wanted, but it does seem that he got some stuff off his chest. He’ll probably sleep well.
Interesting things to note:
1. His attorney just lets him go, and steps away. I’ve been there. Sometimes people are going to get a little worked up. It happens. Most Judges get that. This judge seemed to do ok keeping her cool.
2. The prosecutor keeps throwing gas on the fire by talking directly to this guy. Even challenging him (“any time”) at points. Why? Poor job of diffusing the situation. And, really, how tough are you if you’re talking to a guy shackled in chains being watched closely by guys with guns? Not very tough.