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Bar News - January 13, 2012


Criminal Law: "Aha!" Moments in Criminal Law

By:


Aliza Anvari
"Do you know the story of wise King Solomon?" I finally yelled in exasperation. I had been on the phone for what seemed like an eternity with an individual who was the victim in a case I had just lost (a.k.a. "failed to meet my burden of proof.") To say she was taking it pretty hard would be an understatement.

It was a hotly contested criminal case and the parties involved shared not only a nasty break-up, but an even nastier child custody and visitation fight. Allegations had shot back and forth – before, during and after the state’s involvement with the criminal matter. At one point during the trial, my victim was shouting from the courtroom gallery during defense witness testimony, which, as you can imagine, did not go over too well with the Court. I was not that surprised with the verdict, especially given my victim’s demeanor during cross-examination. Defense counsel had effectively done what they came to do, despite my best attempts at witness preparation. The case brought new meaning to "hell hath no fury like a woman scorned…"

Now, I was left with the aftermath-a woman convinced she should just give up on her kid because everyone was against her and believed him instead. I made several futile attempts to placate her by explaining how the burden of proof for criminal prosecution is the highest standard of proof there is, that the Trial process has merits without a finding of Guilty and many other words of comfort I have mastered over the years. But, she was inconsolable, and I was reaching my threshold level for frustration. From deep within me, this biblical reference came and, to my amazement, there was finally silence on the other end, and then, softly, a whisper, "No?"

Encouraged, slowly but surely, I began to talk about how King Solomon ruled between two women claiming to be the mother of a child. He devised a subterfuge strategy to determine the truth. Specifically, he asked for a sword and pretended he was going to split the live infant in two-so each woman would receive half. Upon hearing this terrible verdict, the boy’s true mother cried out and begged the King to give the child to the other woman, so that it may live. The other woman did not make attempts to spare the child. The King gave the baby to its true mother, realizing that the true mother’s instincts would be to save her child. Bringing the story into modern day, I advised my victim that, so long as she cared for her child and took the high road, that the truth would set her free. To my amazement, I was finally able to extricate from the phone that evening. I felt as though I just had an epiphany. It was after this (what I believe Oprah would call an "Aha!" moment), I began developing my own personal list of tips and pointers that have guided me over the past 4+ years working in criminal law. The Civil Clinic program I participated in at law school had a similar process with our case reviews. There were three categories we had to articulate our experiences in: "Things that went well," "Things that did not go well," and "Things I will never, ever do again so long as I live." It was a great way for all the students to learn from each other-sharing our highs and lows. That day on the phone, I crafted my very own version of an "Aha!" moment.

Take a Risk to Connect

Sometimes taking a risk and connecting with a person in a real and personal way can resonate far better than any other perfectly canned script. I have never been one to quote scripture, let alone routinely attend church, but this story I remembered from childhood came from within my soul, which yearned for her to stop her sniveling and see the light! And it worked! I started to use this strategy with other people, too. No one likes hearing a telemarketer recite a script. But, when someone humanizes or even, humors, a conversation, results are often better. For example, when I am giving a Defendant an offer and I can tell their body language is tensing up after reciting the State’s conditions, you can comment on what you witness. "You don’t seem too happy about that…" You’ll be amazed at the flood gates you can open up, simply taking the time to comment on how the person in front of you appears… Other icebreakers include, "Sounds like you had a really rough night on…" or simply sharing a story or experience in your own life. Again, taking the time to notice or comment on these things that are outside the box of the standard canned speech can prove invaluable. I even find myself gleaning a bit of more joy from work-related conversations that have heart.

Find Common Ground

One Detective I know said that, before he goes into an interrogation room, he tries to find something he has in common with the suspect because then the individual will feel more comfortable and open up. It may be a simple as commenting on where the person grew up or their favorite sports team. Commonality is helpful dating and obtaining confessions.

Confirm the Details

When you make a phone call, confirm addresses, phone numbers, and always ask if it is a good time to talk. This lesson is paramount. In my line of work, intentional hang-ups are an occupational hazard. You will want to confirm where the subpoena needs to be served before this happens. So, muster as much kindness you can and say, "Is this ___________? And are you still at__________? And just in case we get cut off, is this the best number to reach you at? Do you have other numbers? Then, is this a good time to talk? Sometimes people are in front of others and do not want their conversation heard. Sometimes they are busy and can get snippy. It is always best to ask first, so when they get mad at what you have to say and make an excuse to leave, you know that there is no real excuse.

Guard Your Words

Be careful what and where you say things-especially in Court areas. I remember going into court prepared for Trial one day and was greeted at the metal detector by the bailiffs. They were being friendly and asked who I was going up against. I responded simply, "Oh-just a Public Defender." In my mind, I didn’t mean this in any negative way what-so-ever, I was simply distinguishing that defense counsel was not a private practice attorney. However, little did I know and much to my chagrin, the very Public Defender in question was standing nearby, obscured by the staircase and stairwell. He sauntered up to me and chirped, "Just a Public Defender, huh?" I was mortified. I never meant it as a dig, but I remember thinking, if the roles were reversed, how would I feel? Needless to say, the gods of karma were against me that day, and that particular Public Defender kicked my butt in Court. When it comes to your court house, eyes and ears are everywhere. And what you thought that Defendant looked like at Arraignment can change by Trial. So, mind what you say and, perhaps even more, where you say it.

Watch and Learn

Take the time to watch and learn from others in your profession. Some of the best lessons I have learned have come from being challenged by different attorneys. Sure, objecting to the "Motion to Suppress" sucked at the time, but, afterwards, I learned so much about the subject that I was even grateful. There is always something you can learn from watching others-especially when you are not vested in the case.

Guard Your Words

Be careful what and where you say things-especially in Court areas. I remember going into court prepared for Trial one day and was greeted at the metal detector by the bailiffs. They were being friendly and asked who I was going up against. I responded simply, “Oh-just a Public Defender.” In my mind, I didn’t mean this in any negative way what-so-ever, I was simply distinguishing that defense counsel was not a private practice attorney. However, little did I know and much to my chagrin, the very Public Defender in question was standing nearby, obscured by the staircase and stairwell. He sauntered up to me and chirped, “Just a Public Defender, huh?” I was mortified. I never meant it as a dig, but I remember thinking, if the roles were reversed, how would I feel? Needless to say, the gods of karma were against me that day, and that particular Public Defender kicked my butt in Court. When it comes to your court house, eyes and ears are everywhere. And what you thought that Defendant looked like at Arraignment can change by Trial. So, mind what you say and, perhaps even more, where you say it.

Watch and Learn

Take the time to watch and learn from others in your profession. Some of the best lessons I have learned have come from being challenged by different attorneys. Sure, objecting to the “Motion to Suppress” sucked at the time, but, afterwards, I learned so much about the subject that I was even grateful. There is always something you can learn from watching others-especially when you are not vested in the case.

Observe Courts in Session

I was invited to watch how another Court processes Arraignments, and, to my surprise, the new thing I learned came from simply sitting with the Defendants. One of them had a sheet given to them at the time of their arrest with all the valuable information that they may need to understand the criminal process and procedures. The sheet had valuable contact information, directions, etc. I immediately recognized how a simple sheet issued at the time of arrest could be such a timesaver from incessantly explaining routine court matters. I vowed to copy the agency that drafted it and craft a similar version catered for my office.

Ask for Feedback

One of the most painful things for a litigator to accept is constructive criticism on their performance, but I can assure you that there is no better way to improve than to hear other thoughts on how you did-for better or for worse. If you ask even one person what they thought of a case they watched you in, you will be amazed at how helpful it is. This is why jury consulting is such a big business. In my law school Trial Advocacy course, the students involved in preparing and presenting a mock trial would be allowed to watch their mock jury deliberate. It was phenomenal to watch how people reached their conclusions-rendering verdicts by connecting dots that the attorneys failed to even present or emphasize in Court. It was as if the jury was listening when the attorneys were not. When you ask for feedback, you will be able to ascertain what you are doing that is effective and what is not. Sometimes, just listening to a recording of your case can be helpful. For example, I had to go back and listen to an old hearing of mine and was absolutely appalled at how many “ums” and “o.k’s” I used. I never would have known that I possessed this unconscious bad habit until I listened to the recording.

Don’t Burn Your Bridges

If there is a question I have or a hypothetical scenario I want to run by someone, there is no better resource than a defense attorney specializing in that area. One of my law professors mentioned a vignette that remains with me to this day. A new associate for a firm was given a file and told by the partner to write a brief arguing whether or not the firm’s client had a valid claim against the other party. So, the associate worked all day and night and came back with a brief that listed all the reasons why, yes indeed, the firm’s client had a strong case. But, after the associate reported to the partner on the research and arguments, the partner said, “Well, that’s good to know, because we actually represent other side.” This story illustrated how, depending on what side you represent, you may have some bias that your side is right. It is always good to see things from the other side’s perspective. So, while they are opposing counsel one day, they could offer the best insight against opposing counsel in other cases.

Remember the Power of Concessions

One thing that can hurt any case is having a witness who fails to concede anything. It is almost as bad as a witness who concedes everything (the mindless “yes, yes, yes”). If a witness refuses to acknowledge something obvious, just because opposing counsel is asking, that witness will appear to be unreasonable. I have had witnesses refuse to recognize something small (like approximating distance) and completely irrelevant to the case. I bet they thought they were doing their side a favor. I always tell the witnesses that only the truth is expected from them, but I think they also should be told, don’t sweat the small stuff. It is o.k. to acknowledge, yes, they said a profanity or yes, they were drinking at home before the assault occurred. The same holds true for motion writing. Acknowledge the weaknesses in your case, but then distinguish how the facts of your case still fit with the favorable case law. By picking your battles, you will appear more credible and reliable.

Know your Collateral Consequences

I will never forget the female judge who emphasized to me how important it was for me, as a Prosecutor, to learn as much as I can about collateral consequences. She introduced me to the Sentencing Order sheets judges use for DWI plea agreements, so that I would know exactly what was required for these types of plea agreements. So, whether it is loss of license by the Dept. of Motor Vehicles, the loss of the right to possess a weapon under the Federal Gun Control Act, the potential loss of the ability to obtain a student loan or how many more points it will take before they will be declared a Habitual Offender, I do my best to keep Defendants informed, even if it means we will no longer have a plea. I may not know all the collateral consequences that can happen after a plea, but I do my best to stay informed.

Train, Train, Train

I go to free trainings whenever I can-even if I have to pay out of pocket for mileage or use my own personal time. You can always learn something new, especially in our ever changing world of the law. The best agencies and skilled individuals are those that invest their time and resources into training.

Know your Local Resources

Nothing is worse than ordering a person into program, only to discover that program no longer exists. Network with local agencies and find out what is and is not available in the community and under what conditions. For example, by meeting with my local mental health agency, I learned there was a severe lack of Licensed Alcohol and Drug Counselors (LADC’s) and, additionally, these evaluations were quite costly. After speaking with the agency, I learned that if a Defendant was ordered to complete a “mental health assessment focusing on substance abuse,” instead, they could get counselors for these assessments with reduced wait time and fees.

Try Walking in the Moccasins of Another

I often feel Prosecution can be the most thankless job, right under Parking Enforcement (I’ve even seen bumper stickers which say, “Meter Maids Eat Their Children”). This is because we are trying to comprise with everybody, but inevitably, end up pleasing no one. On a daily basis, I get to feel the heat from Defendants, their family members, the victims, defense attorneys, law enforcement Officers and the top person, the Judge. It is no wonder I have gained weight stress eating these past four years. Remember, behind every arrest is an Officer who invested time and energy into the investigation, writing the narrative and dealing the Defendant on-scene. Many times, Officers will just condense what happened-so being called vile names for hours on end by an arrestee may end up as the following watered-down phrase, “he was extremely belligerent.” So, it is important for both Prosecutors and defense counsel to understand why an Officer may feel a nominal fine and suspended sentence is not appropriate. It is important to know what other factors each side is considering. It may surprise one to know, that these days, with all the budget cuts, a Prosecutor often even has to factor in what is the most cost-effective for the State (this can relate to witness fees for Officers down to paper/ink costs for discovery).

My favorite phrases (good for just about any area of the law):

“I wasn’t privy to that conversation.” This is great phrase to use when someone is complaining to you about what another person said. It is also good to use when they are relying statements of third party and you are unsure of their veracity. This phrase buys you time to follow up with the original speakers, while also expressing you are simply an innocent caught in the middle.

“I think that ______is a fair offer.” Preface offers with this and you really have volleyed the burden in opposing counsel’s court to explain why it is not fair.

“It may have been an oversight on my/ our part.” We are human. We all make mistakes. Sometimes things get misfiled and sometimes fax machines just don’t work. But, simply recognizing their may have been an oversight really diffuses the heat in the blame game.

“I’m sure this Court can give this evidence its appropriate weight” or “That goes to the weight of the evidence, not admissibility.” Criminal law is all about what you can get into evidence. When objections arise that the evidence is not admissible for some reason or another, then this is a good standby when your mind goes blank.

“Punishment, deterrence and rehabilitation.” If you can argue how your sentencing recommendation fits with this mantra, then you are in good shape.

“I will take that under advisement.” On any given day, I will see a spectrum of sentencing recommendations from people. Some victim’s want the Defendant’s head on a stake, others are upset they were even arrested in the first place. I try to be fair and uniform in sentencing and account for all the mitigating and aggravating factors. But, when confronted with someone who feels strongly about their own recommendations, this old political standby comes in handy!

As I continue to immerse myself in this intriguing world of criminal law, more “Aha!” moments will be had. Sometimes, I even find myself revising my old beliefs based on a new experience or encounter. But, it is the gray areas in life and the law that make it so exciting.

Aliza Anvari is a prosecutor with the Littleton Police Department.

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