Trial Tactics

Published on: September 6, 2013

What Exactly is a Hung Jury?

by Law Offices of Rudolph E. Loewenstein

Everyone has heard the term “hung jury”, but what exactly does it mean? In a criminal case in California, the jury verdict must be unanimous. All 12 jurors must agree that either the defendant is either guilty or not guilty. A hung jury happens when the jurors simply can’t reach a unanimous verdict. It doesn’t matter what the split is. It could be 6 jurors for guilty and 6 jurors for not guilty or 11 jurors for one side and only one lone “holdout” juror for the other. Sometimes the jury will come back in and inform the judge that they can’t reach a verdict and the judge will send them back to deliberate further and give them a suggestion as to how to break the deadlock, such as the people who are voting for not guilty argue the other side, and the jurors who want to acquit argue for guilty. In any case, once the judge determines that the jury is not ever going to reach a unanimous verdict a mistrial is declared.

According to The Encyclopedia Britannica, a mistrial is “a trial that has been terminated and declared void before the tribunal can hand down a decision or render a verdict. The termination of a trial prematurely nullifies the preceding proceedings as if they had not taken place. Therefore, should another trial on the same charges, with the same defendants, be ordered, that trial would start from the beginning, with the previous testimony or other findings not necessarily relevant in the new court proceedings.

I recently had a driving under the influence trial that resulted in a mistrial. In the end, the jury split was 10 jurors for guilty and 2 for not guilty. To show you how influential fellow jurors can be on each other, when the jury took their first vote, it was 9 jurors for NOT guilty and 3 for guilty. Clearly there were some very persuasive jurors in the room who argued their case with enough passion to change the minds of 7 jurors who initially thought the defendant was not guilty. This is what trial lawyers hope or fear depending on which side they happen to be on.

Published on: June 27, 2013

What If Your Accuser Refuses to Testify?

by Law Offices of Rudolph E. Loewenstein

Feel like you’re being tried in a kangaroo court? Has someone falsely accused you of committing a serious crime and then disappeared before you have a chance to defend yourself in court? It happens more often than you think. You get accused by someone in a “he said she said” situation of committing a serious crime. That person gives a statement to the police or provides testimony in a preliminary hearing against you. Then they disappear! And the District Attorney suddenly says your accuser is “unavailable” for trial.

An inexperienced defense attorney might not know that you have a Constitutional right to confront your accusers in court. Without a chance to have a jury evaluate your accuser’s statements for themselves you might find yourself in jail for a long time. An experienced defense attorney however would know that a District Attorney has to try a little harder than simply saying “they’re gone!” For instance, a District Attorney is required to subpoena witnesses, and even put out warrants for their arrest if they refuse to testify and instead try to disappear. Even if they flee to another country like Mexico, a District Attorney has a duty to use things like U-Visas to get those witnesses back! A U-Visa is a temporary visa that a state or federal official can grant to a witness who has vital knowledge of a crime being prosecuted in the USA.

Before you get railroaded in court by a system that seems stacked against you, make sure you have an experienced attorney on your side to hold the government accountable!

Published on: May 10, 2013

A Jury of Your Peers in Orange County, CA?

by Law Offices of Rudolph E. Loewenstein

Recently I visited the ongoing trial of a man accused of murder. The defendant was a Hispanic man in his twenties and was an admitted member of a Hispanic gang in Santa Ana. I walked into the courtroom, sat down and took a look at the jury. I almost laughed out loud. Here was this rough and tumble Hispanic gang member and the jury judging him was totally made up of white people. The jury members looked about as far removed from the life the defendant had lived as was possible.

The sixth amendment of the United States Constitution provides in part, “In all criminal prosecutions, the accused shall enjoy the right to a speedy and public trial, by an impartial jury of the State and district wherein the crime shall have been committed…” It is commonly thought that a defendant is entitled to a “jury of his peers” but that is not what the Constitution guarantees. The Constitution only guarantees an impartial jury, not one that in reality has anything in common with the defendant other than they are all human.

However, the Supreme Court noted over a century ago in Strauder v. West Virginia, the jury should be drawn from a group “composed of the peers or equals [of the defendant]; that is, of his neighbors, fellows, associates, persons having the same legal status in society as he holds.” This case involved an African American defendant and a jury in which other African Americans were excluded as a matter of law. This was held to be unconstitutional.

Published on: March 25, 2013

The Loneliness of the Hold Out Juror

by Law Offices of Rudolph E. Loewenstein

What happens when just one of twelve refuses to vote for guilty? That juror becomes the Hold Out Juror. It takes twelve guilty votes to convict. A jury has twelve members. All twelve have to agree and vote for guilt before a guilty verdict can be returned.

The Hold Out Juror is the one who won’t go along with the other eleven jurors voting to convict. All kinds of pressure is applied. Shouting at the juror often occurs. Finger pointing in an angry manner is directed at the Hold Out Juror. When this abusive conduct doesn’t succeed in swaying the Hold Out Juror irrefutable logic is attempted. The other jurors usually appoint one of their brethren to explain how it just couldn’t have happened the way the Hold Out Juror sees the evidence. Of course, he will say, logic dictates that the Defendant’s story is full of holes. How could you believe his testimony when it flies in the face of what makes sense to all eleven of us? What is it about you that you don’t get it?

When logic fails to bring the Hold Out Juror into the unanimous fold, it becomes a case of, if we don’t reach a verdict then all of our time, the taxpayers’ money, and all of our effort has been wasted. You, the Hold Out Juror don’t want that do you?

Published on: February 20, 2013

What Not to Do In Court

by Law Offices of Rudolph E. Loewenstein

Recently an 18 year old appeared by way of a video arraignment. She was in jail and the judge was in the courtroom. The original charge was pretty simple. However, she was in jail having just been arrested the night before. The Defendant was standing at the podium in the jail looking at the camera. The judge was Hispanic and spoke with an accent. An older gentleman he had a “no nonsense” approach to his court calendar.

The Defendant giggled and played with her hair. She laughed and was practically twirling when she spoke to the judge. He was set to handle her case very promptly and would have released her from jail in all likelihood had she played her cards right. Instead, after laughing and twirling her hair throughout the process the judge didn’t see anything funny about her attitude and set her bail at $20,000.00. She turned and said “adios” to the judge. After turning away, she realized that her bail had been set at an amount she couldn’t make she protested and told the judge “F….You”. Now this, obviously, didn’t sit well with the judge.

The judge demanded to know if he had heard her correctly. The Defendant not being smart enough to leave well enough alone repeated her unfortunate comment and gave the judge “the finger”. This gesture is universally known to be one exhibiting an extreme amount of contempt towards the recipient. Since the judge was the recipient he took offense. Having taken offense, he found her in direct criminal contempt of court and promptly sentenced her to 30 days in jail. The Defendant was last seen walking out of view still saluting the judge.

Published on: January 24, 2013

Trials in Orange County, CA: Breathing Life Into Your Case

by Law Offices of Rudolph E. Loewenstein

The police reports pain an ugly picture. They clearly show that the Defendant is guilty. What to do? How does your attorney get the District Attorney to reduce or dismiss the charge against you? The experienced trial attorney tries to paint a picture that accurately shows the client for who he is and not just for what he did. Many times good people do something ill-advised or out of character. These “bad judgment” moments can have devastating life-long effects on people who deserve a second chance. How to get the client that second chance?

Most important is the charge against the client. Sometimes no matter who you are, or the devastating effect on your future, or the fact that even millions depend on you, the result is mandatory if you are convicted. However, very often these facts can and do make a difference to a prosecutor who is seeking to do justice and not just gain a conviction. How to reach that prosecutor is the key.

Reaching a just outcome requires the defense attorney to paint a picture. Depending on the circumstances it can be a picture of the facts of the case and establish the facts that lessen the responsibility of the defendant. It might involve proving that there were contributing factors which were not the fault of the defendant or showing the prosecutor the facts dictate the client deserves consideration. The second prong of the defense attorney’s job is to breathe humanity into the ink on the police report from the client’s perspective. The trial attorney needs to show the prosecutor the defendant is human. He is a good person, perhaps he has done community service (before or after the crime), been a role model in the community, or won awards in business and the disastrous effects a conviction will have on his individual future.

Published on: January 18, 2013

Picking the “Right” Jury in Orange County, CA

by Law Offices of Rudolph E. Loewenstein

A defendant has a right to a jury trial in most misdemeanor trials and in all felony trials. Many times the case is won or lost in jury selection. A prosecutor told me the other day that he won the case in jury selection after the case was concluded. He realized his case was not rock solid and could have generated a lot of sympathy for the defendant. The important part of what he told me was that he thought about what kind of a juror he wanted before the case started. That means that he didn’t have a “one size fits all” formula of what kind of juror he wanted. Instead, he tailored his efforts to find jurors who fit the mind-set he wanted for that particular case..

Each side’s lawyer is thinking about what kind of juror will vote the way that lawyer is advocating. For example, in a prosecution of police officers the prosecutor might want people who had bad experiences with police officers in the past. The lawyer for the defendant (the police officer) may decide he wants people who have supported the police in the past and sympathize with the difficult and dangerous jobs the police have. For the trial lawyer, figuring out who will understand your case, sympathize with your cause, and vote for your side, is the essence of picking a “good” jury.

The lawyers who have experienced the process of picking a jury know that it is the most important part of the case. It’s not just exploring the attitudes about crime, law enforcement, family relationships to victims, people charged with crimes, or ability to follow the judge’s instructions; it’s about finding the juror who will listen to your side’s facts and argument and believe the “right” thing to do is vote for whatever side you, the lawyer, is advocating.

Published on: October 3, 2012

How to Cross Examine A Testifying Co-Defendant

by Law Offices of Rudolph E. Loewenstein

Crimes occur with many participants. Murders, car-jacking, embezzlement, fraud, white collar crime, insurance fraud, and almost any crime you can imagine can happen with more than one defendant. Anytime there is a case involving multiple defendants there is the possibility that one of the defendants will turn “state’s evidence”. In other words, one defendant works out a deal with the District Attorney or United States Attorney for a lesser sentence, lesser charges, or even a complete dismissal in return for testifying against the remaining defendants.

What should the defense attorney do who is faced with the co-defendant who is now cooperating with the prosecutor? Of course, the first thing the prosecutor will do is require the cooperating defendant to “tell the truth, the whole truth and nothing but the truth, no matter who is asking the questions”. The “truth” is an elusive term. Ideally, it means that the testifying co-defendant will, in fact, reveal all to the jury and to anyone who asks the questions.

In reality, for the prosecutor the “truth” means testify to the same statement that the cooperating defendant gave when arrested. When looking to give a deal to one or more defendants, one of the most desirable qualities is that the statement given when arrested is the one the prosecutor wants to use as the “truth” of the case. Then when the testimony is given it is consistent with the earlier statement and makes it easy for the prosecutor to argue to the jury that testimony is the same as the earlier statement and thus is “truthful” since when the first statement was made there wasn’t anything promised in return.

Published on: September 24, 2012

TESTIFYING CO-DEFENDANTS in Orange County, CA

by Law Offices of Rudolph E. Loewenstein

Many times a case has multiple defendants. A crime will occur and several people will get arrested. Some might be friends or they might be strangers to each other. But, like most events in our lives, we do what we do with people we know.

So what happens when several people are prosecuted in the same case? All the defendants have their own lawyers because each defendant has his own point of view, his own measure of responsibility and his own interests in how the case comes out. Because of this, the defendants are often offered a chance to cut a deal with the District Attorney and get a lesser sentence in return for testimony against the other defendants.

Why would the District Attorney agree to make a deal with a defendant in a case? First of all, there may be a lack of evidence. In other words, the District Attorney can’t prove the case without one of the defendant’s help. Second, the District Attorney might see the case as one with different measures of responsibility such that it makes sense to give one or more of the defendants a deal because the defendant is a minor “player” in the case. Finally, if a case simply has too many defendants to efficiently prosecute in a timely manner one or more of the defendants could be allowed to testify against the remaining defendants. This eliminates one more roadblock to the District Attorney’s case.

Published on: August 15, 2012

Orange County, CA, Burglary Suspect Freed After Diligent Pre-Trial Preparation

by Law Offices of Rudolph E. Loewenstein

Defendant was charged with residential burglary. The young man was Hispanic and was known to associate with gang members. He denied being a gang member himself but the police were constantly stopping him and conducting interviews in “consensual encounters”. He wasn’t consenting to being stopped by the police but unless he walked away that’s how the law looks at it.

When the burglary happened in his neighborhood, the police immediately suspected him even though they didn’t have any reasonable basis for their “hunch”. When the burglary occurred, the homeowner was home and frightened the burglar away. The police showed the homeowner two photos of the Defendant one at a time even though after each she could not say he was the one who had committed the burglary. A short time later the police returned with a photo line-up of six photos, only one of which had been shown to the homeowner before. Of course that would be the Defendant’s photo, and lo and behold, she identified him as the perpetrator.

Defendant was arrested three weeks after the burglary and questioned. He gave three different possibilities about where he was the night of the burglary changing his story each time.