Category Archives: Trial Practice

Preliminary Hearings – Hang on loosely

I was in court yesterday for a preliminary hearing. Most lawyers say that prelims are a waste of time. To a large extent I agree: The burden of proof is ridiculously low; hearsay testimony is not only allowed, but encouraged; and the defense can’t put up any evidence. Why bother?

We bother because sometimes there is no case. A prelim is a good way to get the case dismissed. There are other good reasons. Sometimes you get a case and the State’s evidence just doesn’t make sense. That’s as good a reason as any for a preliminary hearing.

Preliminary hearings are held in Horry County on Friday mornings. All cases are noticed for 8:30 and the judge usually starts at 9:00. There is no particular order in which the cases are called. I like to think of it as a secret, yet arbitrary method of calling the docket. No one complains, nor should they. Someone has to go first and someone has to go last.

Anyway, I’m sitting in the courtroom waiting for my client’s case to be called. A police officer is testifying about some particularly gruesome event. Other police officers, defense lawyers, clients, family and friends are milling about. No one is paying much attention. It’s a typical day in the criminal court system.

From the witness stand I hear the following: I applied the term loosely.

I stopped what I was doing. I looked up at the witness and over to the judge. It was cross-examination. I glanced at the prosecutor and I looked around at the other lawyers. Maybe I didn’t hear it right.

Criminal defense lawyers develop a sense or a feel for certain words. Maybe it’s a type of radar. Usually it alerts us when the prosecutor is asking about hearsay or other objectionable evidence. Sometimes though it alerts us to a word used by the witness.

Turns out that I did hear it right and so did the defense lawyer in that case. He heard it and he hammered on it. It was the turning point in the case. That “term” was a statutory definition. It defined who could be charged with this crime. The defendant did not fit the definition. There were codefendants charged with this crime. They fit the definition. The case against this defendant should be dismissed.

It’s not.

Was that preliminary hearing a waste of time? Maybe it was because the charge didn’t get dismissed. Maybe it wasn’t because the defense now has some pretty good evidence. Sometimes that is all you can hope for at a prelim.

In the meantime though, the case is not dismissed. It’s just hanging on – loosely.

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Funny the Things You Learn When You RTFM

I “borrowed” the title of this post from one of Mark Bennett’s old ones. The two posts don’t have anything to do with each other; I just thought the title went well with this one. It is funny sometimes what we learn when we read the manual, especially if it’s a forty year old traffic statute.

A driver charged with passing a stopped school bus was found not guilty by a Virginia judge according to the Washington Post.  According to the article, John G. Mendez, zipped past a school bus, while it was picking up children with its lights flashing and stop sign extended. That’s against the law in Virginia, and in every other state.

The judge found Mendez not guilty based on the poorly drafted statute, which states:

A person is guilty of reckless driving who fails to stop, when approaching from any direction, any school bus which is stopped on any highway, private road or school driveway for the purpose of taking on or discharging children.

The statute has been on the books for forty years since it was amended. The amendment omitted the word “at” and that, according to the defendant’s lawyer, changed the statute’s meaning.  The previous version of the statute read: …who fails to stop at, when approaching from any direction, any school bus … See the difference? The judge did. Referring to the defendant:

He can only be guilty if he failed to stop any school bus.  And there’s no evidence he did.

This article may be funny to some and to others it may be another reason to hate all lawyers. To me it’s another example of why we trial lawyers need to read the manual – every time, every case.

H/T: Legal Writing Prof Blog

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Objections and Umpires

Don’t waste time making objections to little things.  We have all heard that expression or a form of it before. Like most good advice, it’s easy to say but often hard to do. Many times I have seen lawyers object to the most trivial things during a trial. If you are objecting to every little thing, you are probably doing three other things: One, you are not helping advance your cause; two, you are annoying the judge; and three, you are alienating the jury.

I just got back from a baseball game where I saw a great example of this. College baseball is a great sport and it has loyal fans. Some fans complain about every umpire’s call that doesn’t go their way. It’s typical and it’s annoying. There was a lot of it today and none of it mattered. Well, almost none of it mattered. There was one.

The umpire made a blatantly bad call. The fans made their typical boos. Then a grandmother screamed out her protest. I have seen her at all the games but I never noticed her. I noticed her today and so did everyone else including the coach. Talk about credibility? She exemplified it.  I can’t describe how it felt other than it was a moment that couldn’t be ignored. The umpire did something that umpires rarely do: he reversed his call.

During a trial, just like a baseball game, there will be many things you may find objectionable. If it’s not hurting your case, don’t worry about it. When you do object to something that matters, everyone will notice. They will also notice your credibility.

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Filed under Trial Practice

Traffic Court Judge Reprimanded for Appearance of Bias

The New York State Commission on Judicial Conduct reprimanded a Village Court Justice for delaying the disposition of traffic court cases based on the police officer’s schedules according to the Legal Profession Blog. The opinion is here.

The judge held court based on the availability of the police officer. If the officer wasn’t working on the day of court, the judge simply continued the case. His rational behind his policy was to cut down on overtime payments to the officers and thereby save the town some cash. As you can probably guess, this resulted in a huge backlog of pending cases. Over a five year period there were over 500 unresolved cases and some were as old as five years and five months. The majority of the cases, however, were two to three years old.

The judge may have had good intentions, but his conduct was improper nonetheless.

[The judge's] blanket policy of scheduling cases solely on the officers’ schedules created a bias and/or the appearance of bias in favor of the police department…

I bet it did create the appearance of something.

This case has some pretty bad statistics in it. We can, however, learn something from it in our practice. First, I want to point out that Village Courts are similar to our Municipal and Magistrate Courts in South Carolina. Second, I think the important part of the case is the appearance of bias more so than the actual delay.

Fortunately for us, our magistrate and municipal judges have always been pretty fair with motions for continuances. However, if a police officer is not available he’s not available and the case shouldn’t be put off indefinitely.  The judge should never grant a continuance unilaterally. The defendant’s proper response is a motion to dismiss for failure to prosecute.

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Filed under Motions, Trial Practice