Because Transcripts Can Be Unforgiving
by Jamison Koehler on December 30, 2010
When I was a public defender in Philadelphia, my office mate used to come across me reading transcripts from court hearings I had done and kid me. I thought I was being conscientious, working to make myself a better lawyer. He thought I was being vain.
Testimony from every preliminary hearing we did was automatically transcribed in advance of the trial date. The “notes of testimony” were then posted on our office intranet. You could type in your name and – ta da! – you had access to every transcript that had your name on it.
This meant that you could savor those great courtroom moments we all live for in which you had the witness in the palm of your hand. It also meant you were slapped in the face with every instance in which you stumbled over a question or missed a possible area of inquiry. Because, after all, transcripts can be very unforgiving.
The notes of testimony from trials were a different story. Unlike preliminary hearings in which the notes of testimony would be needed either for trial or for plea negotiations, trial transcripts were only ordered after a loss. This meant that the great moments that resulted in a “not guilty” verdict were forever lost to posterity. It meant that, for the most part, you were left with your lesser moments at trial as you tried to figure out what had gone wrong so that you could correct it.
Win or lose, reading your words on the printed page sometimes lived up to your memory of the hearing. Sometimes it didn’t. One of the cross examinations I was most proud of sounded strangely flat on the printed page. Other times what I remembered as a fairly ho-hum cross looked surprisingly good when reduced to writing. Whatever the case, re-reading the testimony helped me eliminate many verbal tics. It also gave me a better appreciation for the written record.
In addition to reading your own notes of testimony as my office mate kidded me for doing, we at the Philadelphia public defender’s office, by necessity, also read other people’s transcripts. The office in Philadelphia uses a “horizontal” system of representation whereby one lawyer will handle the preliminary hearing, another lawyer the arraignment and plea negotiations, and still another lawyer the trial. This meant that your success at trial often depended on the competence of the lawyer who had handled the case before you.
Sometimes the lawyer got it right. I won one case almost solely on the basis of a single question another lawyer had asked during the preliminary hearing. I will be forever grateful to that lawyer. Sometimes the lawyer got it wrong, either pursuing a different line of inquiry or missing an issue altogether.
This meant that we were often each other’s own harshest critics.
I also read transcripts from my colleagues, particularly when I was just beginning, on other cases in which I was not directly involved. If I had a preliminary hearing or trial coming up on an unfamiliar offense, I would select the name of a more senior defender I admired and review every hearing or trial that person had conducted on the offense. I learned little tricks and areas for inquiry that bore fruit. I learned which tactics or areas to avoid.
Finally, I would often read previous testimony from a police officer I was about to face in court. For example, the prosecutor’s office in Philadelphia uses a number of officers to testify as “experts” in drug cases. By reviewing old notes of testimony from other cases in which that officer testified, particularly when the defender was been able to pin down the officer on the grounds for his opinion, you could look for potential inconsistencies to exploit during a motion or at trial. While I never had that “TV gotcha” moment in which I was able to confront the officer with his previous testimony on another case, it did help me get a general feel for the officer. It helped me anticipate, for example, how cooperative the officer might be on the stand.
As a private attorney, I miss the camaraderie and competition and the wealth of information and resources that are available to you as a public defender. And ready access to old notes of testimony – for all sorts of reasons, including vanity — is a big part of what I miss.