The Jail House Snitch

There is no lower form of testimony, of evidence. Yet, it is one of the most prevalent kinds of evidence in criminal cases. Police rely on jail house informants to make arrests, prosecutors rely on the evidence to obtain convictions, and appellate courts routinely uphold convictions when jail house informants testify against the defendant.

Even though this type of testimony should be viewed through the most critical lens, it is still relevant and admissible at trial.

What is a jail house informant? An incarcerated person who testifies against another incarcerated person based on conversations the two had.

As a prosecutor, I frequently received letters from inmates telling me they had "information" on a case I was prosecuting. The correspondence was always in a handwritten envelope and letter from the correctional facility. The author provided me just enough details to pique my interest, but not enough to vet the accuracy of any alleged confession.

There were a few steps required when receiving a letter like this:

1) Check whether the proposed informant had access to the defendant I was prosecuting to even have the ability to obtain a confession.
2) Check why the proposed informant was in custody. Did he have an attorney because he had pending charges?
3) Set up a meeting.
4) Investigate the information.

I was always a hopeful skeptic at these meetings. No prosecution should be built based solely on the testimony of a jailhouse informant, but additional evidence never hurt. The key to these meetings was to obtain details of the conversations between the informant and the defendant. Details were the key. Anyone could come in and say, "Johnny told me he killed that guy." What did Johnny the defendant say about how he did it, about where he hid the evidence? I was looking for the details that were not reported in the media or not elicited in court. I needed details only the culprit would know.

Ninety percent of the time these meetings proved to be a waste. The informant either did not have enough information or I could not help the informant enough in their requests. This was a quid pro quo after all. If I wanted the informant's testimony, I needed to give him something. Did he want to plead to a lower charge? Have his case dropped totally? Commute his sentence? If I wanted the testimony, I could usually negotiate a plea deal for the informant. But I never did, and never wanted to, drop charges or attempt to get a person out of their sentence.

Another reason the potential testimony failed? Discovery. If the defendant had already received his discovery and his or her attorney had provided him a copy, how could I prove the defendant's confession came from his mouth as opposed to facts the informant put together from the police paperwork.

When a prosecutor makes a deal like this, there is always a stain on the case and even on the prosecutor depending on how good the deal was. The defense attorney would say, "Look at the evidence. Look at the witnesses. The informant holds a gun to a little old lady and takes her purse. He gets a slap on the wrist as long as he will say what the prosecutor wants." I only used jail house informant testimony if it would be window dressing on an already solid foundation of a case.

There is also a legal analysis required. A person has a Sixth Amendment right to have an attorney present for all questioning by authorities. In New York State, this right attaches, and cannot be waived, when a person is formally accused of a crime. Essentially, the informant cannot have been acting as an agent of the police at the time he obtained the information from the defendant. It does not matter that he was doing it purely in his own self-interest with the intention of going to the authorities. The only rule is that he cannot have been doing it at the direction of law enforcement. A judge is required to conduct a Cardona hearing to determine if the informant was acting as a law enforcement agent or not. The minute the informant approaches law enforcement and volunteers to tell them about his conversations with the defendant, he is an agent. Therefore, any conversations obtained following the informant reaching out to the prosecutor or police will be inadmissible.

Once an informant gets a deal for testifying against a defendant, the odds are the informant will appear just about every time they get arrested. They know that they can get lower charges and sentences just by getting information for the police. We used to call these guys professional snitches. They know the game, the system, and the laws so well that they have the ability to say whatever is necessary to save their own neck. It is an even lower form of evidence than an informant used one time.

A good defense attorney can destroy informants on cross and a prosecutor should never rest his or her case on only this evidence. But just because this testimony has drawbacks, doesn't mean it should never be used. As a legendary prosecutor in my old office once said in his closing argument, "If you play around in the sewer long enough, you're going to become friends with some rats."

By the way, the case that gave rise to that quote was reversed for prosecutorial misconduct for improper comments on summation.

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A Trial Nobody Cares About

Part of this site's purpose is to provide a glimpse into the world of the prosecutor. I want to give you a view into who we are and what we really do. There are television shows, books, and movies where famous actors portray the prosecutors and defense attorneys as they battle in some high profile case.

That's not me. I'm one of thousands of anonymous women and men. I'm in the trenches fighting over territory long abandoned by most of society. I'm what you'd call an upper middle class prosecutor. The cases I'm assigned are very serious, very complex, but not usually the ones that end up in the news. The cases that receive daily coverage are reserved for a few select prosecutors. The only ones that end up caring about the results of my cases are the defendant and the attorneys, and sometimes the victims.

That's part of the reason you have not heard from me in so long. I just finished a trial where a defendant tried to execute three people on a city street. His target was one man who he had a feud with and two other people who happened to be witnesses. There is a pending co-defendant whose trial is a few weeks away so I am barred from saying much more than that right now.

The amazing part to me is that the media ignored this horrific and brutal violence. The local news reported on fist fights at wealthy locations, graffiti at high schools, and other low level crimes during this trial. A reporter never set foot in the courtroom to catch a glimpse of what life is truly like on some of the streets in a major urban center. No one ever asked a question of what motivated a man to commit such heinous crimes.

It's not that I want my cases in the news. Heightened media attention brings with it a heightened scrutiny both from within the office and outside of it. I do my best work in anonymity and far away from the spotlight that shines when a case is on the front page. It just struck me as a reflection on the world we live in where this horrific act, which would have been a mass homicide if successful, barely registers as news because of where it occurred and maybe who the targets were. One of the frustrations with this blog is that I cannot shine the light on cases or issues that should get attention. It's part of the rules I created this by though. I cannot discuss pending cases.

Plenty of drama occurred in this trial, including witness intimidation, the defendant discussing how good our opening statement was in his jail calls, and how we waited for the defendant to open the door to allow us to use his confession as evidence. But it all has to wait. The verdict was guilty, which is another story for a different post.

I apologize for the delay between posts, but maybe I should take more breaks. My daily and monthly views are more than double than when I was posting a few times a week. Supply and demand? Absence makes the heart grow fonder? There's probably no correlation, but I do hope a few new readers and old ones enjoy when the curtain is pulled back a bit in the criminal world.

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A Hung Jury

It was the first time it's happened to me. After a week of testimony and hours of deliberation, the jury declared they would never be able to reach a verdict. They were "hopelessly deadlocked" as the law requires.

What it really means is that I must endure the stress of a trial again. The victim and witnesses must answer questions on cross-examination about their past misdeeds. The police officers must recount their  investigative steps and what they missed. All the secrets are exposed and both sides have to regroup to try it again.

Everyone says the hung jury is better than an acquittal, which is true. But the only benefit to an acquittal is a finality to the proceedings. The loss is difficult to take and usually creates a tremendous amount of self-examination, but that chapter is closed both for myself and the victim. A hung jury pushes all of my work into a state of limbo. I can't really proceed with other cases as this one will be tried again soon.

The advantage of a retrial is the case weaknesses were clearly exposed. I need to do a better job in jury selection addressing the issues and a better job at trial explaining why the police did some things, but not others. I've stopped counting the number of trials I've done at this point. During every trial, I encounter something I've never seen before. It's what keeps me coming back I guess. It never gets boring.

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Never Ask Me How Long the Jury Was Out

I'm just as guilty of it as the next lawyer. We see our colleagues in their office biting their nails or aimlessly looking through files. The lawyer had just finished their closing statements and the court had instructed the jury on the legal charges, sending the jury to perform their sworn duty.

Every few minutes a well-intentioned co-worker pops their head in and asks, "What time did the jury get the case?" or "How long have they been out?"

When asked, I answer quickly and tersely, hoping to cut off further conversation. During my last trial, someone even asked me how I felt about the length of deliberations. My answer, "Worse every minute they are out." The questions are meant to be supportive or to strike up a conversation so that we can discuss the case. But it is the last topic I want to engage in while the jury is deliberating. Talk to me about anything else--sports, the weather, the stock market, a crazy conspiracy theory about the JFK assassination. I'll take anything other than the questions about the length of deliberations or what a note from the jury means.

The jury deliberated for seven hours over two days during my most recent trial. Considering there were two defendants and ten counts in the indictment, that does not seem like a long time. In another recent case in my office, where a 21 year old man admitted to murdering and raping a 13 year old girl and his DNA corroborated this confession, the jury deliberated for nine hours over three days. 

We can all posit theories about why it takes the time it did. I'm sure the defendants wonder why it took such a short time. The truth is we pick persons to serve on juries based on gut reactions and then pray they can play nice with others and reach a decision. We ask twelve strangers to decide the fate of a person and then we question what took them so long?

If I ever serve on a jury, especially in a murder trial, I would spend as much time as it took to make sure the decision was correct. The attorneys who try cases usually understand this much better than the ones who don't. 

We can save the theories about what jury notes mean and why it took the time it did to reach a decision after the case is completely over. There will be plenty of time for war stories then. While the jury is out? Just tell me a funny story.

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The Verdict

Twenty days of actual testimony. 65 witnesses presented by the prosecution. 260 exhibits admitted into evidence. Too many straight days at the office to count. A diet of pretzels and Pepsi for most of the month. Two defense attorneys clocking in their closing arguments at 1 hour and 45 combined. My closing argument coming in at 1 hour and 40 minutes (which is too long, but this was an exceptionally long and complicated case).

Seven hours of deliberation culminated in a verdict Friday afternoon after two days of jury deliberation. The first two defendants on trial (out of 5) were found guilty on all 14 counts.

The cold I'd been running from caught up with me this weekend and the sleep I'd been missing has finally exhausted me. There's so many posts to come out of this trial and I'll begin this week. Sorry to those of you that have emailed and found no response and sorry to my fellow bloggers for not checking in. Talk to you all very soon.

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Hostile Witness

The trial will be ending soon. I cannot wait to get back to my family and some down time. A coming post will definitely be on the handling of hostile witnesses, which I had to do for the first time during this trial. Twice.

See you all in a week.

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Trials

33 witnesses down, 30 more to go. See you all when we get to the finish line (which actually might be next week).

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Cameras in the Corridor

After the seventh day of trial, tomorrow is a day off due to a New York State court holiday. The holiday does not extend to us lowly county employees so I am working, although with the trial in full swing I would have been in anyway. As a sign of rebellion though, I am thinking of dressing business casual tomorrow. Scandal, I know.

I came home today to the news and saw that they were reporting on my current trial. Both defense attorneys gave interviews to the media, but I declined. As a prosecutor, getting your face in front of the camera is never a good thing unless you are the big boss. But then the news story shifted and I watched video of my witnesses leaving the courtroom.

Trials are public affairs and the media has a duty to report on them. But there is something unsettling about witnesses being displayed for the world to see. I am sure the witnesses don't want it and I certainly don't. It can only negatively affect my ability to convince witnesses to do the right thing and testify if they have to be recorded doing the right thing.

Judges usually leave the decision on whether to allow cameras to the defense attorneys as their clients will be the ones on camera all the time. During trials though, I object to any filming of witnesses or jurors. A person should not have to be subjected to that simply because they are performing their civic duty or because a person was unlucky enough to be a witness to a crime.

For those of you that have emailed me, I appreciate your patience. I'll get back to you as quick as I can. My day job gets in the way of this blog a lot of the time.

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The Long and Winding Road

We began jury selection today and are moving slowly. I'll post a recap once all is said and one in a month (yes a month).

For now, I just hope to provide you all some good stories and insight as we move forward. Thanks to one of our commenters for providing this story about the trouble of a prosecutor speaking about the case over social media while the case is in progress.

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Severance, Ugh!

Severed. It was the court's ruling. There are four defendants, all charged with various acts in a string of coordinated crimes. Two defendants asked to be tried separately from the two worst defendants because the more violent acts the worst defendants committed had the potential to prejudice a jury against the two not as violent defendants.

The court agreed. So as I gear up for this trial next week, my witness list tops 111 witnesses right now. I will be flying witnesses in from California, Florida, New Jersey, and Kansas (yes, Kansas!). The court  has already issued four material witness warrants to arrest witnesses because they have not shown up.

The court, two defense attorneys, and myself have blocked off all of February for the trial. And now, due to the court's severance ruling, I get to do it all over again in April. I'm really looking forward to May.

On a different note, I was thinking about tweeting updates from the trial daily, such as how many jurors were selected, types of evidence. There are three concerns: 1) Is it proper? I really don't know. Everything would probably be public so it seems okay. 2) Will I have time? Probably not, but I can get 140 characters out if any of you are interested. 3) Should I?

What do you think?

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Why I Don't Speak to Jurors after Verdicts

How do you get to a verdict?

Start with weeks of preparation, copying discovery, finding evidence stored all over the city, and speaking with witnesses. Mix in a string of days with little sleep as the trial moves into gear and a dash of evenings spent at the office analyzing paperwork and testimony. Increase blood pressure and knock years off your life due to the stress. Tie it all together in a ten second event when the foreperson of the jury announces a verdict to make either relief or frustration.

The cases I indict are carefully investigated before I even present them to the grand jury, with the majority of the investigation completed by then (There are always witnesses and paperwork that pop up as a case moves closer to trial). A quarter of the files I handle are dismissed prior to indictment because there is not enough evidence to prove the defendant committed the crime and another 50% are resolved through pre-indictment plea bargaining. Only a small percentage of cases progress to trial. I don't indict a case unless I am confident beyond a reasonable doubt the defendant committed the crime.

By the time trial rolls around, all the heavy lifting is done. The rest of the work is detail related, but it is the most time consuming. All the work, stress, worry, aggravation, and fear must be put aside in an effort to make the facts and case seem effortless in front of the jury. Crimes are, by their nature, messy and sordid affairs, which rarely follow a straightforward factual pattern. Look at many homicides, which are usually based on circumstantial evidence (because the only witness is deceased) and the motivation might be as simple as a misdirected insult. The job of a trial attorney is to make the convoluted facts move forward in a logical and understandable stream so the jury understands the importance and relevance of each witness and piece of evidence as they hear the testimony.

After closing arguments, the work is over and my mind begins to unwind. I feel myself losing the sharp edge that I had honed in the previous weeks and my thoughts begin to scatter, unable to focus on any task while I wait for the phone call announcing the verdict. Because I have investigated the case so thoroughly and put so much time into it, I am convinced of the defendant's guilt. It is difficult not to become emotionally invested after so much. The thought of an acquittal seems like the jury is personally insulting me.

I never speak to the jurors after a verdict. They are human, which means they are at times rational and irrational, stubborn and easily persuaded. They latch onto extraneous details that had no significance in the case. They declare one attorney better dressed or more likable. A person will drive himself crazy listening to twelve strangers critique and explain their decision.

The moment the closing arguments end, the attorney loses control over the case, which is a difficult moment for any lawyer. You spend so much time working and shaping a case to display its best features to a jury and then you have to leave it all and hope they make the decision you want. Speaking to the jurors after the verdict can only negatively affect me, whatever the verdict. There explanations for an acquittal usually center on saying there wasn’t enough evidence or some form of speculation that was completely irrelevant to the case.  Why talk to them after a guilty verdict? I don’t need the positive reinforcement and all they can say is something like they searched on Google, visited the crime scene, or some other inappropriate conduct I’d have to report to the court that has the possibility to impair the conviction.

Deliberations are a secret process and I will respect that for as long as I am a trial attorney, mainly for my own sanity.

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A Grinding Halt

Waiting for a jury verdict is one of the greatest anxieties on earth. Waiting on the verdict overnight is tortuous. Waiting on it overnight and knowing that it will be a mistrial if they don't get a verdict by a certain time because a juror had a prior commitment that she cannot get out of is downright hell.

I thought I'd try to post something thought provoking about how much I enjoy jury selection and speaking to people, but it turns out I am unable to focus on anything requiring brainwaves while the jury is deliberating. Since my thoughts are tangled and incoherent right now, I thought I'd just let Jerry Seinfeld explain the irrationalities of the fear of public speaking.

See More:

Wins and Losses
"We've Got a Verdict"

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I'm Telling the Truth, Basically

Watch your language. It's not something you expect to say to adults getting ready to place their hand on the Bible and swear to tell the truth.

In preparing a case for trial, it is obviously important to speak with your witnesses prior to testifying. I absolutely prepare my witnesses for trial, but I do not script out what I am going to say and what they are going to say. I make bullet points of the issues I need to hit and then I let the questioning flow organically from that based on all the conversations we've had and the elements of a given case. This way I can respond to what the witness actually says, not just read the next question on my list.

But there comes a time when every attorney must instruct a witness to refrain from doing something. These are often things like pointing out an annoying nervous habit that will distract the jury. Lately, what I find is I need to speak to the witnesses about language qualifiers.

Not sure what I mean?

Q:  Were you working on April 16?
A:  Yes.
Q:  Did you respond to 184 Lasalle?
A:  I believe I did.

You believe? You either did or you didn't, especially when you proceed to discuss everything that happened at 184 Lasalle.

Q:  Did you stab him?
A:  Yes.
Q:  With what?
A:  A knife.
Q:  Was that because you were defending yourself?
A:  Basically.

Basically? This is what the entire case comes down to and the witness is using basically like it is an affirmation. Jurors take this to mean that most of what is said is true, but it's not everything.

Q:  What color was the jacket the robber was wearing?
A:  If I remember correctly, it was red.

This usually happens after the witness had told me unequivocally that the jacket was red ten minutes before testifying.

My favorite:

Q:  What was the weather like?
A:  To tell you the truth, it was rainy.

To tell you the truth? Was everything said up until that point a lie?

Most of these are verbal crutches we all have, or phrases we fall back on when we are nervous. Testifying in front of an audience, especially about events a person would rather forget about, induce many nerves. Also, once a witness is on the stand getting grilled during cross-examination, they can truly question if the jacket was red. Once you are under oath, are you really certain of anything?

I tell my witnesses to avoid these and other crutches. They were there and witnessed the events so testify with conviction. A witness is free to say "I don't know" or "I don't recall", but if they do know and recall just say what they observed or heard without the hesitation.

Every attorney needs to be a witness under oath at some point to see the process from the other side. I've done it a few times now, and while it's never a comfortable experience, I've successfully avoided using all of the above phrases.

Basically.

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The Sentencing Answer

Last week I laid out a factual scenario here, asking for your comments and emails about what sentence the defendant should receive.

Most of your replies tended on the high end of the range, around 14 years. After all, many of you argued, she already received the benefit of a reduced plea bargaining bringing her max sentence down from 50 years to 14 years.

And the judge sentenced the defendant to . . . . 2 years of local time and no parole.

Thoughts?

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You Get to Be the Judge

What would you do?

I am heading down to sentencing this morning for a defendant who committed a robbery and a separate home invasion. We have wrestled with what an appropriate sentence should be for months as the case dragged on. This is a summary of the facts and I thought it would be a good exercise to see the real decisions prosecutors must make on a daily basis.

On day 1, the female defendant (call her Sara) and her boyfriend (call him Sam) went to an antique store, where Sam robbed a man at gunpoint and pistol whipped him, while Sara orchestrated the getaway.

On day 2, Sara went to her 81 year old aunt's house, saying she wanted to help with her errands. While Sara and her aunt were out, Sara called Sam and told him to steal things while they were out. Sam couldn't get in and waited for aunt and Sara to get home. Sara left the door unlocked when she went in with the aunt and Sam burst in at gunpoint. Sam and Sara duct taped the aunt, and Sam beat her with the gun, choked her, and stomped her into unconsciousness, leaving her for dead. Sam and Sara stole everything valuable from aunt's home and then stole her car.

The aunt survived and identified Sara, but could not identify Sam. Sara confesses and agrees to cooperate against Sam. She leads us to evidence of the crimes to tie Sam to them and testifies against him at trial. Sara has Sam's baby while the case proceeds and actually marries Sam while he is in jail awaiting his trial.

Sam is convicted of robbery and burglary and is setenced as a persistnet violent offender (3 violent felonies in 10 years) to 25 to life in jail.

The aunt wants Sara to have a similar sentence, but the plea deal only allows the judge to sentence Sara anywhere from probation up to 14 years in state prison.

Be the judge and leave a comment or send me an email. What should Sara's sentence be taking into account the horrible crimes, but also that we could not have convicted her boyfriend/husband without her?

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What Happens When a Witness Lies

First, your insides squeeze together so tightly that you think they might explode. Second, sweat immediately begins to drip between your shoulder blades like a river. Third, you try not to react to any of this in front of the jury.

After the initial shock and dreams of running up to the witness on the stand and screaming in their face, shouting, “why would you do this,” a few things happen, depending on if it is your witness or your opponent’s.

The easy one is when your opponent’s witness lies on the stand. When that happens, you put your pen down on, let a small smile crest your lips, and prepare to slam a truck through the opening the witness created.

This post is about happens when your witness lies. Maybe even your star witness (Many of these posts are created in response to actual events so you can only imagine what happened during my trial last week).

If the witness lies when I’m asking questions, I move on and circle back to the topic. I’m sure my pace and composure breaks slightly, but the main goal is to keep it as professional and ordinary as possible. Never let the jury see that an answer was unexpected. The reason that I leave the topic and come back is for two reasons: 1) I want to see if it was just a mistake and give the witness a chance to correct it, and 2) I don’t want the witness to dig themselves a bigger hole.

After I ask the questions again and am confident the witness is lying as opposed to mistaken, I’ll ask the court for a recess so we can discuss legal issues outside the jury. Once the jury’s gone, I inform the court of what happened. Attorneys cannot suborn perjured testimony and prosecutor’s cannot allow perjured testimony to go uncorrected. Plus, the witness has now transformed himself into a defendant and he needs his rights protected. The court then will assign an attorney to the witness.

If the witness recants the perjured testimony, he must do so on the witness stand in front of the jury and his credibility is probably just below a pedophile who takes the stand. If the witness refuses to recant, I must state on the record in front of the jury that I know the testimony to be false and then the witness is basically cannon fodder for the defense attorney. All I get to do is sit back and writhe silently in my chair as a hope of conviction usually drifts away.

There are many reasons witnesses will lie on the stand:

-Protect themselves from retribution for testimony
-Protect the defendant
-They actually lied the first time and are now telling the truth
-They don't believe they will get in trouble.

What does it all boil down to? I become a witness in the perjury case against the former witness. Turns out I'm a very cooperative witness.

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The Ups and Downs

I'm on trial this week, which means that my emotions change every hour. They shift from feeling like I hit a home run to win a World Series to feeling like my dog just died and I lost my home. It's the nature of trial. One witness pushes the case forward and another moves it backward. They key is to act like every piece of evidence and word uttered is expected. Don't show the exultation or fear.

After Monday's testimony, I turned to my co-counsel and said, "Well, we can put today in the win column for the good guys." What was I thinking? Who am I to tempt the trial gods like that? As the witnesses continued through Tuesday and today, that creeping fear seeped in. That fear that the case is slipping away, no matter what we do about it. Witnesses were pushing us backwards instead of towards the goal.

We haven't won any of the other days' testimony since my remark. When will I learn to not celebrate the high points before the verdict is in? Stay tuned for how this shakes out.

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The Uncontrollable Witness

Let's call this Charles Ramsey week in America.

We've all watched the unfolding events in Cleveland this week with a mix of disgust and awe. The disgust is for Ariel Castro and his twisted actions. The awe is in the men who helped to free the girls. Many have written about one of the heroes of the drama, Charles Ramsey. As a prosecutor, I could not help but envision Ramsey on the witness stand in this case.

To analyze Ramsey as a witness, I have to tell you about my general rules for witnesses and preparation. The first time I meet with a witness, I let them know the outline of events in a criminal case in addition to discussing the crime. We don't go over the specifics of trial testimony because it is too early and the events are too fresh. I don't want courtroom testimony to come off scripted because it's been rehearsed so many times. I cannot tell a witness whether to speak to anyone or not, but I do tell them they have the right not to speak if they wish. I remind witnesses of this for two reasons: 1) the media, and 2) defendants.

It is never a good idea for a witness to give media interviews. The interviews are taped and are now prior statements where even the slightest misstatement may come back to haunt them at trial. The more interviews, the more possible inconsistencies. Plus, a person's hidden past might emerge once the media begins digging.

A witness does not need to broadcast their involvement to their neighborhood either and begin to feel any pressure associated with testifying. Defendants, their family, their friends, and defense investigators will try to speak with a witness once the secret is out and a witness does not need this kind of attention.

As we get closer to trial, I sit down with a witness for trial prep. This consists of explaining how the courtroom is set up and the trial procedure. I then go over the general rules of testifying - only answer the question being asked, do not get combative, tell the truth, say "I don't know" if you don't know, say "I don't recall" if you don't remember. There are others and every trial is different, but this advice never changes.

Ramsey is fantastic. He does not shade the truth and does not try to hide who he is. He is the type of witness every attorney loves and fears. Put him on the stand and let the jury see how direct and credible he is. The only problem is he will be absolutely uncontrollable on the witness stand. He has already violated just about every rule by speaking to every media outlet. On the stand, he would expound and elaborate every question. A yes or no question would not necessarily get a yes or no response. He would be funny, combative, and sympathetic at the same time.

We attorneys crave control and he'd be everything an attorney is afraid of at trial, and the jury would love him for it. Sometimes rules need to get broken, though.

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Interview with a Winning Attorney

It's a long video, but listening to those who have succeeded in your field is never a waste of time.

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The Decision

Remember that?  Well, this post is not about that farce. An actually important decision is made in American courtrooms every day.  One that is of far more importance than Lebron's television special.

It's the decision to be tried by a jury or a judge.  Did you even know a person had a choice?

In New York State, every defendant has a right to be tried by a jury when charged with a misdemeanor or felony.  There are two exceptions:  1) defendants charged with class "B" misdemeanors in New York City, and 2) defendants eligible for youthful offender adjudication and charged with any misdemeanor.  In both those cases, the trial must be a bench, or non-jury, trial.  Criminal Procedure Law 340.40.

The reason for the first exception is mainly to expedite cases through a crowded court system.  It allows prosecutors to reduce charges from class "A" misdemeanors to class "B" misdemeanors and try the case in front of a judge.  A case that would take three days to a week to try can now be tried in an afternoon.  The discretion for this lies solely with the prosecutor though.

A defendant can waive their right to a jury trial in any felony or misdemeanor case that is not murder in the first degree.  It must be done in writing, on the record in open court, and the defendant must answer a litany of question from the judge relating to his understanding of the waiver.  If it is waived, the judge will decide the defendant's guilt.

Why would anyone want to waive the right to a jury trial that our revolutionary forefathers fought so hard for?  Some reasons:

1) The judge has already indicated his/her negative thoughts about the merits of the case,
2) The case is based on legal distinctions that a jury might not understand or care about,
3) The facts of the case might prejudice the jury (e.g. defendant is on parole, has a criminal history, drug/alcohol abuse, clear gang affiliation), or
4) The judge might be more inclined to convict of a lesser charge

In New York, if the defendant wishes to waive his right to a jury trial, the prosecution's position does not matter.  In federal court, both the prosecution and defendant must consent to waive a jury trial.

Waiving a jury trial is only appropriate in a limited number of cases.  There are plenty of negative consequences.  Only one person is making the decision, not twelve citizens with no legal training and no familiarity with each other.  Arguments on appeal are significantly reduced.  Generally, both the defense attorney and the prosecutor agree to admit certain evidence and stipulate to some testimony leaving less room for cross-examination.

A person facing the prospect of criminal prosecution has many decision to make before arriving at the ultimate question - bench or jury.  Once there, a candid conversation with their attorney is warranted concerning the merits of a jury and bench trial.

The reason this topic came to me is that I prepped for a jury trial for the last two weeks.  It was slated to begin this week, but the defense attorney waived a jury trial the day before it was set to begin.  I always feel relieved and disappointed when this happens.  The relief is because I do not have to put on a show and have my every move scrutinized by twelve strangers for a week.  The disappointment is because I really love when I get to put on a show and get scrutinized by strangers.  

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