Discovery: Penetrating the Mystery
Discovery is the part of the pre-trial litigation process during which the attorney requests relevant information to discover pertinent facts about the case at hand. The attorney seeks to answer, "What is it that makes the prosecution believe that a crime was committed and that the defendant committed it?" The process of discovery can be traced to the Jencks Act (18 U.S.C.A. 3500) in 1957. This act entitles a defendant to obtain access to prosecution documents necessary to impeach the testimony of a prosecution witness. This process serves as a check on our system of justice by enabling the accused to examine evidence in the case against him or her.
The process of being charged can be overwhelming to your client, and the pressure to make this uncomfortable situation go away (accept a plea bargain) can be immense. Discovery is also a means to... Read More
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Eye Witness: Did They Really See What They Say They Saw?
Erroneous eyewitness testimony is the single greatest cause of wrongful convictions. And yet, having an eyewitness to a crime greatly strengthens the weight of the case. So the question must be asked, "How reliable is eyewitness testimony?" And further, "When there is an eyewitness, how can the defense team accurately analyze eyewitness reliability?" In truth, some eyewitnesses are better than others. Consider this example: In the 1970's I responded to a call at Disneyland in Anaheim, CA. A teller at the admissions booth had received a counterfeit bill and claimed she could recognize the person who gave it to her. We responded. We searched the grounds with the employee and escorts, and she identified the man out of thousands of guests in the park. We also found more counterfeit bills on his person. This was a great eyewitness!
Conversely, many stories in the news tell of rape victims who identified their assailants in court, the assailant is found guilty and sentenced, and years later the conviction is overturned due to DNA analysis. In each of these cases, an innocent man was wrongly identified as the attacker. There are many possible explanations for this. Victims are often attacked from behind, in the dark or semi-light, and may be blindfolded. Trauma can impair human memory, making it difficult for... Read More
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