Defense Attorneys: The Record is Your Friend

The court record, although potentially expensive to reproduce, can be a lawyer’s best friend. This is especially true in criminal cases, where clients can later assert an attorney’s ineffectiveness. The court record is an objective transcript of what actually happened. That means it is even better than your own notes when fighting claims for malpractice or ineffectiveness. Beyond its use as a defense against future litigation, a well-preserved court record can also prevent waiver and assist appellate courts in understanding the trial.

Protect Yourself

Recent Supreme Court decisions make it clear that ineffective recommendations at the plea bargaining stage could be grounds for a new trial. The defense attorney can and should use the record to explain her recommendation and reasoning related to the plea offer.

But there is a line between protecting yourself and throwing your client under the bus. Just because you think it is a great offer and your client should take it does not mean your client has to take it. All the attorney can do is advise. It is the client’s life at stake. I have seen attorneys practically beat their client into a plea on the record, in the guise of protecting themselves.

Leslie Ridge, a public defender in Washington County, agrees. “It’s important to tell clients what their options are and what they could be facing at sentencing, but at the end of the day it’s your recommendation and their decision. One of the things I explain to clients is that they’re the ones who have to serve the sentence, not me. But it’s also important to actually make some kind of recommendation. Clients want that from their lawyer.”

Help the Appellate Courts

I have reviewed trial transcripts in every legal job I’ve had. It’s not a fun task. But what makes it difficult is when attorneys don’t explain things for the record. Using pronouns, especially third-person neuter pronouns, such as “that” and “it,” make understanding the proceedings nearly impossible. Take, for example, this exchange:

Q: I just handed you an exhibit. Is that an accurate representation of the scene as it appeared at the time?
A: Yes.
Q: I’m going to ask you to step down and use this enlargement to show the members of the jury. Can you please indicate where the victim was standing?
A: Right here.
Q: Thank you. Now, where were you standing when he was shot?
A: I was right over here.

As you can see, an appellate court would have no idea what happened in this exchange. In some situations the details will have been fleshed out with other witnesses. But I have read many transcripts where an exchange like this is the only evidence of important information. At trial, the jury was able to convict based on the information, but an appellate court will have a hard time making a decision on the sufficiency of the evidence.

To prevent this kind of issue, just be clear. Clarify things that a witness does. For instance, you can say “Ms. Smith, you’re pointing to the sidewalk about five feet from where you said the victim was standing?” This also gives you the opportunity to repeat what the witness has said without actually repeating it.

Avoid Waiver

Trial objections are a tough issue. You have to know how to make them, but then there is debate about when to make objections. Andy makes the argument that jurors don’t like objections, so you should only use them when “absolutely necessary to keep crucial inadmissible evidence out.”

I agree that jurors don’t like objections. But at the same time, you have to be mindful of your client’s potential appellate issues. Sometimes things come up during trial that you weren’t expecting. Even when you do your best to handle evidentiary issues ahead of time, there will be surprises. When something comes up that you think the jury shouldn’t hear, object.

No matter how often you choose to make objections, you always have to place them properly on the record. The Federal Rules of Evidence dictate that the objecting party must state the specific grounds for the objection, unless it is apparent from the context. But the context during the heat of trial is completely different from a cold trial transcript. To err on the side of caution, always quickly state your grounds for objection. For example, you can just say, “Objection your honor, hearsay.” Short, sweet, and to the point. And most importantly, your client’s appellate rights are protected.

(photo: http://www.flickr.com/photos/crunchyfootsteps/4322493690/)

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  • Wes

    Josh, great write up. I am forcing myself daily to be much more articulate on the record, not just for my client’s sake but for everyone involved. Additionally, I found myself in court having almost the same conversation about the use of timely objections for appellate courts and trial strategy. Thanks for a practical on-point piece!!!