He's the Guy Sitting Next To the Defense Attorney

At some point in any trial the prosecutor is going to ask a witness to identify the defendant as the person who is accused in the complaint or indictment. A fair amount of the time this witness doesn’t know the defendant personally – may never have met him – especially if it’s a police officer making an on the spot arrest for a crime alleged to have been committed within his presence or view.

Juries probably suspect the rule I’m about to annunciate. Judges, prosecutors and defense lawyers certainly know it:

Sometimes when the police officer says he remembers the defendant, he doesn’t really remember the defendant.

Not really really remember.

Of course there may be a few clues for the officer.

It’s probably the person sitting next to the lawyer. No, not the one next to the prosecutor who is asking the question. Most likely that’s another prosecutor.

The other lawyer at the other table. The guy next to him. Yeah, that’s the defendant.

Which is what makes this next story so interesting. Missouri DWI lawyer Will Worsham advised a client that he may as well try his DWI case instead of taking a plea bargain agreement, because he had nothing to lose.

And then – and for my non-lawyer readers I hate to do it, but I’m going to use the technical legal term for it – a miracle occured:

I advised my client to proceed with trial.  Even though we would likely lose, he really had nothing to lose because pleading guilty provided no benefit.  He agreed. 

Shortly after the trial began the prosecutor asked the Officer if he saw the driver in the courtroom.  Mind you, my client is sitting next to me at counsel table. 

After looking around for about 30 seconds at the 6 or so people in the courtroom.  The officer replies, "Honestly, I can't say that I do." 

I'm surprised, the prosecutor is shocked and the case is shortly thereafter dismissed.

Nice. I guess he didn’t know that whole “sitting next to the defense lawyer” trick that so many officers rely on…

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Simple Justice - July 27, 2008 7:42 AM

July 28, 1868:

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San Antonio Attorney - September 8, 2008 9:29 AM

I can't believe that really works, that's a pretty good trick. So does it mean most of the arresting officers have poor memory or they just don't look at the faces of people they are arresting. This is an amazing observation.

Ricky - September 17, 2008 5:38 AM

The other lawyer at the other table. The guy next to him. Yeah, that’s the defendant.Which is what makes this next story so interesting. Missouri DWI lawyer Will Worsham advised a client that he may as well try his DWI case instead of taking a plea bargain agreement, because he had nothing to lose.

SFJD - October 21, 2008 6:27 PM

I was interning for a judge once and sitting at the bailiff's table behind defense counsel. It was a pretty cut and dry misdo battery case, and ID wasn't an issue. The witness, a salty local store owner, was called by the prosecution. He was asked to identify the defendant, who he claims he saw smack the victim. The witness pointed his finger and identified me, instead of the defendant (who was sitting next to defense counsel) and even described my outfit and tie to be sure he was (mis)identifying me correctly to the jury.

The jury broke out in hushed laughter and he tone of the trial really changed after that, and they even asked the judge if she realized the witness had incorrectly ID'd the defendant. At the time I was surprised that neither lawyers nor the judge thought it was a big deal. The guy ended up being found not guilty and some of the jurors recited the ID issue as one of the reasons. (Even though there really was no question to ID, the issue was self defense.)

Jurors pick up funny things sometimes.

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