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If the gloves don't fit, you didn't check your evidence: physical evidence can have a huge impact on jurors. Just make sure you know whether it will help or hurt your client.

It was a matter of trial strategy that backfired. The defense counsel had offered into evidence an ATM video of the defendant at a bank shortly before the alleged criminal battery. The intent was to show the jury that the defendant looked different than the victim's description of the perpetrator.

Unfortunately for the defendant, the jury did not agree. Unfortunately for the defense attorney, several jurors stated in a post-verdict interview that they were primarily convinced of the defendant's guilt based upon their viewing of the ATM video. It seems the jury's interpretation of the video was that the defendant's boots matched the description of those the victim claimed to be kicking him during the battery.

Following the dismissal of the jurors, the defense counsel and state's attorney went into Judge Justice's chambers for a critique of their trial advocacy. "I hope my trial exhibit didn't help convict my client," said Jane, the shocked public defender. "Those weren't boots, they were high-topped black sneakers."

The prosecutor, trying to be noble in victory, said, "I didn't even notice the shoes on the video and didn't mention them in my closing. The video was low quality and it was hard to tell much from it. There was plenty of other evidence to prove the defendant's guilt."

Both young attorneys looked toward Judge Justice for input.

He smiled as he considered some of his experiences with evidence while in practice and on the bench. "Real evidence, or physical evidence as they call it now, is extremely powerful but can cut in unexpected ways," he said.

Look inside and out

"Let me tell you about one of my first cases as a defense attorney. It was a bank robbery case and my client was a veteran of the criminal justice system. At one of our first meetings he asked to personally inspect all the physical evidence in possession of the state, including everything seized from him when he was arrested. I had already reviewed the items but arranged for the inspection, which took place under the watchful eye of government agents.

"My client scrutinized every inch of every item and paid particular attention to a flashlight. He unscrewed the end and looked inside. From my angle, I could only see the remaining residue inside the flashlight from the crime lab's search for finger prints.

"As soon as we were back in the conference area, my client demanded an investigation. He claimed that there had been several thousand dollars in the flashlight when he was arrested and it was now missing.

"I was skeptical, and said it might not be a good idea to point this out if the money could be marked. He insisted on a hearing, so the discovery issue was heard in open court.

"The investigator brought in the exhibit. The U.S. Attorney opened all the evidence bags, removed the flashlight, opened the end, and to the amazement of everyone pulled out $3,500 in cash.

"The possible conclusions were that someone from the lab took the money but got nervous and put it back or that the investigation was very incompetent. Either way, this was strike one against the government's case.

"The lesson here is to look over every piece of evidence critically and carefully, inside and out. Don't assume anything or take shortcuts, like missing the contents of a flashlight."

Pay attention to what isn't there

Judge Justice continued. "Next, the crime scene investigator at the site of the abandoned get-away car had recovered some human feces and collected it as possible evidence. Based on the CSI report, the government had obtained a pre-trial court order to require my client to provide anal hairs for comparison.

"I examined the lab reports and found no hair-feces comparison. During cross-examination, the officer who took custody of the feces reluctantly admitted that he disposed of it before giving it to the lab, because lab personnel chided him for making them handle such nasty material.

"The officer feared discipline and kept quiet about his spoliation of evidence, hoping that an inexperienced, over-worked defense attorney wouldn't discover it. Strike two for the prosecution.

"The lesson is to think about what physical evidence should exist and ask questions when those items--including lab reports--are missing. Missing evidence can be just as important as physical exhibits admitted at trial."

Use demonstrative evidence with care

"I very nearly snatched defeat from the jaws of victory, though" Judge Justice said. "During the arrest, the defendant had a paper sack that held one foot and part of the leg of a woman's panty hose.

"A close inspection of the exhibit convinced me it would be impossible to stretch it over an adult's head. I imagined the dramatic moment in closing argument when the jury watched the hose fail to go even a little way over my head. The night before closing, I tossed and turned in bed, going over and over the argument. Each time in the mock closing the hose demonstration won over the jury.

Suddenly, I sat upright, woke up my wife, and asked her for a pair of panty hose. I went into the bathroom and cut off the hose leg so it was the same size and shape of the court exhibit. Then I rehearsed the jury demonstration. Taking the hose leg in both hands, I placed it on the top of my head, expecting to only get it an inch or two down my face.

"To my amazement, the hose went completely down, with little resistance, and I was looking in the mirror at someone who looked a lot like a bank robber. Needless to say, I eliminated that part from my closing.

"The lesson was to never use a demonstration with physical evidence that you were not absolutely sure would work just as you expect.

"The jury deliberations went on for several hours and the prosecutor asked me if we could go back to the holding cell and see if the defendant would consider a plea agreement. We went back to the cell and my client had his coat off. It was apparent that he had shaved both arms and hands from the elbow to the finger tips.

"It was hard to know who was more shocked, me or the prosecutor. The defendant had testified and been cross-examined, but neither attorney noticed anything about his hands or arms. Several of the bank witnesses had testified that the robber had dark, hairy hands. Just as the prosecutor was preparing to call my client some unkind names, the bailiff informed us the jury had reached a verdict: not guilty.

"The lesson, of course, is that the defendant who takes the stand becomes a type of physical evidence and any relevant change of appearance is fair game for cross-examination. My client claimed that the shaving was because of bed bugs in the jail, but the case would probably have been lost if the prosecutor had noticed and asked him to remove his coat in front of the jury.

Testimony fades, physical evidence doesn't

"From that case, and hundreds of cases since, I can tell you that a jury often places great weight on exhibits that they can see and examine. Testimony fades from the juror's memory and is not literally in the jury room. The physical evidence they have with them is.

"They will closely scrutinize the exhibits and place their own interpretation on them, so you must take care what you give them. Make sure any physical evidence you plan to offer is legally admissible and will help and not hurt you. You must also be sure the bailiffs only gather up the legally admissible evidence to take into the jury room."

The two young attorneys thanked the judge, excused themselves, and left for the local pub to discuss their next case. As they left the room, Judge Justice smiled and said to himself, "'If those boots kicked, you must convict.' Works for the prosecution or defense if you change a word or two in either case." He pulled on his jacket, turned out the lights, and shut the door behind him.

Ronald D. Spears of Taylorville is a judge of the fourth judicial circuit and Third Vice President of the Illinois Judges Association.
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Author:Spears, Ron
Publication:Illinois Bar Journal
Date:Aug 1, 2007
Words:1378
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