Let’s give a helping hand to young lawyers . . . those up and coming. Hard-workers looking for ways to defend difficult forensic evidence cases. Since the most satisfying reputation any lawyer can develop is one for taking difficult cases others don’t want, learning to develop defensive ideas in forensic laden cases is a invaluable skill. Here’s a simple beginning.
Your client is charged with possessing a particular weapon. Maybe a knife, gun, or club. Of course, it’s the prosecutor’s burden to prove guilt beyond a reasonable doubt. But more specifically, it’s their burden to prove your client knowingly exercised care, custody, control, or management over the knife, gun, or club . (See TEX. PENAL CODE, sec. 1.07(a)(39) (2011)). How will the prosecution prove both your client’s knowledge andpossession? More importantly, how will you develop reasonable doubt? Or imagine your client is charged with driving while intoxicated and the state relies on blood test evidence to prove your client was driving over the legal limit. How do you attack the blood test results? Do you attack the evidence collection, storage, or actual forensic testing of the blood? And what about DNA tests used against your most recent court-appointment. How will you defend the case? Will you attack the forensic science, the method, the data collection process, or the conclusions made by the prosecution’s expert? A good Bryan-College Station felony attorney can help you develop creative ideas on defending these cases.
The impact of television programs focusing on forensic evidence—what some have called the “CSI Effect”— have influenced potential jurors everywhere. Many jurors expect to see forensic evidence in criminal trials and this expectation can be used to the defense lawyer’s advantage. Particularly, when the lack of forensic evidence is effectively tied to the prosecution’s burden of proof you can develop reasonable doubt in the juror’s minds about whether they proved their case beyond a reasonable doubt. The “things not done” defense. Understanding forensics now becomes important. Obviously, if your client’s fingerprints are on the knife you may have a problem. But I find (and the police are quick to point out) that usable fingerprints are rarely obtained from the surfaces of weapons utilized in crimes. So what about your client’s DNA? Did they swab the weapon for trace evidence? Did they obtain a search warrant for your client’s DNA to compare? Recently we convinced a jury to acquit our client of a knife assault because the police failed to test the weapon for his DNA. The state’s principle witness testified the client had brandished the knife in a threatening and aggressive manner. However, the client denied ever touching it. On cross-examination the arresting officer admitted the existence and availability of forensic DNA testing. But the cops had failed to test the knife. That was enough to legitimately argue the prosecution failed to satisfy their burden to prove our client guilty.
Defense lawyers should be aware of the variety of forensic evidence available for use in criminal litigation. If you believe the prosecutor may use forensic evidence, start digging into the literature and learn about it. If it’s a serious threat to your case you should consider hiring your own expert to help your preparation for cross-examination. You may even need a testifying expert for trial. Start early and get a jump. Don’t procrastinate. If we decided the best approach to challenging the prosecution forensics was presenting a contrary opinion, we located and hired a good expert. However, finding a competent expert and one who can also testify persuasively can be a challenge. We typically tapped into our network of fellow defense lawyers, posted questions on defense lawyer list-serves, and discussed our case with other experts to help us develop a working list of potential witnesses.
Money to pay for an expert can be a limiting factor when using forensic evidence. If your client is indigent and you were appointed by the court, learn how to effectively prepare motions for expert assistance. In most states these motions are filed “ex parte” and without the knowledge of the prosecutor since the motions require the defense lawyer to reveal their defensive theory. (See Ake v. Oklahoma, 470 U.S. 68, 105 S.Ct. 1087 (1985); DeFreece v. State, 848 S.W.2d 150 (Tex. Crim. App. 1993)) Even if the judge denies your motion you still have developed a good record for an appeal. Retained clients will need to fund expert assistance on their own. However, if a persuasive case is made for the assistance we’ve seen judges approve expert fees when it was shown the client had exhausted their personal funds.
I’ll touch on additional forensic evidence tips in later posts. Hopefully, this is a good start.
Stephen Gustitis is a criminal defense lawyer in Bryan-College Station. He is Board Certified in Criminal Law by the Texas Board of Legal Specialization. He is also a husband, father, and retired amateur bicycle racer.