I tried my best not to get sucked into this blogversation, but I’m weak. So here it goes.
Mark Bennett, the Texas Tornado, prodded by a query by prosecutorial blog Western Justice, contrasted with an old post by PD turned private turned PD again, Blonde Justice, has decided to address the WJ’s question, “why would someone wait until trial to show the prosecutor exculpatory information like that?”
Tactically, the criminal defense lawyer has to decide whether, and when, to reveal his NLSes [Nasty Little Surprises] to maximum effect. Some NLSes might be bombshells that will change the outcome of a trial (like the “complainant” swearing that the crime didn’t happen), and some might be less earthshaking revelations that might affect the outcome of a trial. The former might, if revealed before trial, convince the trustworthy prosecutor to dismiss outright even what he believed to be a whale. The latter might shift the tone of negotiations and convince him to offer a more favorable plea agreement, or dismiss the case that he had doubts about before.
The Defense should (as The Blonde illustrates) not reveal either kind of NLS to an untrustworthy prosecutor.
But this would have been too simple had my other brother Gideon not decided to join in. But he did, in a well-titled post called “Do you gamble?” And while Bennett and Blonde prefer the surprise attack, Gideon is more cautious:
When a jury of six or twelve is sitting in that box, watching every move, evaluating every word that comes out of every witnesses mouth (and the lawyers’ too), then it’s always a gamble. Do you have the perfect factual defense? Maybe, but who the hell knows what juries do. Do you want to take that risk?
I think, for the most part, if you have the exculpatory information that should result in a dismissal, you should try and utilize it pre-trial. After all, that too is part of our jobs as criminal defense attorneys.
Everyone agrees that these generalizations are subject to the particular circumstances of the case, ranging from the trustworthiness of the prosecutor to the strength of the exculpatory evidence. But that said, ceteris parabus, what to do?
Gideon’s point, that if something goes awry in the execution of the “Perry Mason Moment,” the whole thing blows up in the defense’s face, is well taken. I’ve seen far too many trials where lawyers thought they had things under control, only to have some unanticipated intervening event blow what they thought was a sweet gig. If things go south, and somehow the big bang evidence loses some of its big bang, the result could be disaster for the defense.
On the other hand, Bennett’s and Blonde’s point that some prosecutors can’t be trusted to do the right thing, and if you show them your hand, will do whatever they can to undermine or circumvent your evidence, is similarly true. In deference to Westy’s point, since it’s up to the prosecutor to make the call whether to toss the case in light of new evidence, it puts an awful lot of power and trust in the hands of someone with adverse interests and a significantly different perspective. Most defense lawyers have been burned by prosecutors who are trustworthy, but in their own eyes only.
Addressing Bennett’s dichotomy of big bang exculpatory evidence from little bang stuff, the former being the sort that will blow the case out of the water, and the latter being helpful but not quite overwhelming, it seems clear that giving the prosecution a heads-up on little bang stuff is tantamount to malpractice. If it’s not of the sort that will convince a prosecutor to toss a case, then there is no choice but to keep it to yourself. Anything else would be foolish.
As to the big bang stuff, my reaction depends on whether the defense has it completely locked up or whether the prosecution can find a way to spoil your moment if it knows about it ahead of time. I agree with Gideon that if it can effectively used before trial, without risking the defendant’s case at trial, then there is an obligation to try and avoid the trial. After all, even when you think you’ve got the big bang locked up, trials are still trials, and nobody ever knows how they play out.
Key to all of this is a real assessment of the strength of your evidence, even more so than your trust of the prosecutor. A trustworthy prosecutor still has an obligation to his job to circumvent your proof if he believes it susceptible to challenge. He may be trustworthy, but don’t assume that he won’t do his job if he still believes the defendant guilty. Remember, the prosecutor sees the glass half empty, no matter how you see the glass.
On the other hand, if the big bang evidence is as strong as you believe it to be, and of the sort that will compel a dismissal, then there should be little risk to revealing it to even the most untrustworthy prosecutor. He may refuse to dismiss, and may try to circumvent the evidence at trial, but that’s where your honest assessment of its strength comes in. If its that strong, it should be immune from prosecutorial shenanigans. If it isn’t immune, it may not be nearly as big a bombshell as you think.
All in all, it’s a balancing act, taking into account all of the factors that have already been discussed. But no matter how tempting the “Perry Mason Moment,” and no matter how cool it is to watch the prosecutor fall on the floor, sobbing and writhing, as his case crumbles, our duty is to the defendant first, and we must put our desire to cause prosecutorial paroxysms aside in the best interests of the defense.