On Trial Tactics — Intentional and Otherwise

by Jamison Koehler on October 5, 2011
D.C. skyline


I am sitting in court waiting for trial to begin.  The charge is assault on a police officer. I have just been given a video recording in another case and I decide to use this time to watch it. So I pull out my laptop and stick it in.

My viewing of the video seems to raise the attention – even consternation – of the prosecutor and police officer in this case, and it takes me a moment to realize why:  They think I have a video recording in the current case that I am planning to spring on them at trial.

While I will never know for sure how this unintentional tactic affected trial, the police officer is remarkably forthcoming in his testimony, even backing off a few things that were in the police report, and at the close of the government’s case, the judge grants my motion for judgment of acquittal. This is one of the few times I have ever had a judge do that.

A colleague in Philadelphia tells a similar story in which she used this tactic intentionally. Her client in a prostitution case told her that the undercover police officer had sampled her services before arresting her. He had used a condom.

On the morning of trial, my colleague unrolled a condom and squirted some hand lotion into it.  She then put the unused condom into a transparent ziplock baggie with the words “Defense Exhibit 1#” written across it in large black letters. She displayed this baggie prominently at counsel’s table before trial, making sure that both the prosecutor and police officer could see it.

When the case was finally called, the prosecutor announced that the government would be dismissing the charges.  The officer had concluded he would not be able to make the identification.

4 Comments on “On Trial Tactics — Intentional and Otherwise

  1. The problem with promoting gimmicks is that they sometimes work, usually the first time tried and usually when they happen accidentally, but more often fail, and create a backlash of animosity for trying to play a trick. This is the sort of thing that can really piss off a prosecutor, police officer and judge.

    When clients learn about the successful use of such tricks, they want them used on their behalf. If the lawyer says no, they become angry, as if they’re being denied their free pass to acquittal. If the lawyer accedes to the client’s request, he stands a good chance of making a bad situation worse. It can be a very dangerous ploy, and one that may give rise to a very unfortunate outcome.

  2. SHG:

    Point taken. There was a lawyer in Philadelphia who used an elaborate ploy to try to trick government witnesses on in-court identifications. I never saw it actually work, and it did create a lot of ill-feeling towards him from the court.

    In my case, I can claim that the ploy — if it in fact had any effect on the trial — was completely unintentional. And in my colleague’s case, well, it makes for a good story.

  3. Here’s a novel idea: If I am ever charged with a crime in which I am guilty, I will plead guilty. Saying that a guilty person is “lucky” to have a person such as Pattis, Donovan, etc. to “defend” them is saying that justice does not matter to attorneys. It’s simply an adversarial system in which each side is keeping score regardless of the truth. Even when the defense attorney knows the truth (or the prosecution knows the guilt) of the defendant, it all boils down to “winning” the case. And you wonder why the public is so disgusted with the system and why attorneys are so deplored? The assumption seems to be that escaping just punishment is what a person should clients should be seeking rather than “manning up” and taking the consequences. That may sound idealistic, but it seems that the self-described scorched-earth, slash-and-burn publicity-seeking attorneys (such as Pattis) who seem to think they are the modern-day embodiment of Attitus Finch love to discuss their ‘ideals’.

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