Friday, July 25, 2014
Good evening:
I write this evening to discuss litigation strategies in criminal trials.
The prosecution goes first and last, since it has the burden of proof.
To survive a halftime defense motion to dismiss one or more charges against the defendant, the prosecution must present substantial evidence to support every element of each charge.
“Substantial evidence” is a legal term. Basically, the judge has to consider all of the evidence introduced by the prosecution during its case in chief and assume, for the purpose of ruling on the motion, that all of it is true, together with all reasonable assumptions that flow from that evidence, and decide whether the evidence would establish every element of each crime charged.
For example, Wafer is charged with second-degree murder. The elements of a second degree murder charge are committing an act with intent to cause the death of another person that results in the death of that person. The prosecution has introduced Wafer’s 911 call and his statements about the shooting. If we assume those statements are true together with all reasonable assumptions that flow from that evidence, we can conclude that the prosecution has introduced “substantial” or legally sufficient evidence to establish every element of the crime of second degree murder, except causation.
The prosecution will fill in that gap next week when the medical examiner testifies that the gunshot wound to her face caused Renisha McBride’s death.
That is the bare bones minimum amount of evidence that the prosecution has to introduce to survive a halftime defense motion to dismiss the murder charge.
The rules of evidence do not preclude the prosecution from introducing additional evidence, so long as it is relevant to an issue in the case. For example, evidence that Wafer was not in imminent danger of being killed or suffering serious bodily injury would be relevant and admissible to prove he did not fire his shotgun in self-defense. Evidence has been introduced that the peep hole in the front door was functioning and both the front door and the screen door were closed and locked until he unlocked and opened the inner door and fired the shotgun through the screen door. Also Wafer’s two contradictory statements about why he fired the shotgun constitute substantial evidence that he did not believe he was in imminent danger of death or serious bodily injury when he pulled the trigger.
Note that a judge is not required to determine witness credibility or weigh evidence to decide a motion challenging the sufficiency of the evidence. The judge assumes the evidence introduced by the non-moving party was true and based on that assumption she will decide whether to grant or deny the motion to dismiss.
If she denies the motion, then the murder charge will go to the jury after both sides rest.
Roderick and Fauxmccoy have been arguing in the comments about whether the prosecution made a bad tactical decision when it introduced evidence that McBride was impaired by alcohol and marijuana when she drove her vehicle into a parked car four hours before the shooting. For example, the prosecution presented the testimony of Renisha’s friend, Amber Jenkins, that Renisha had consumed both drugs and the blood toxicology reports will state how much was in her blood.
I believe the prosecution wisely decided to introduce that evidence to avoid the appearance of withholding it. They knew the defense was going to introduce it, so they seized the opportunity to introduce it themselves. I would have done the same thing.
The prosecution screwed up in the Zimmerman trial by introducing all of Zimmerman’s contradictory self-serving statements without aggressively attacking the credibility of any of them.
Attacks on credibility are usually presented during closing arguments and I am anticipating that the prosecution in the Wafer case will do that at the proper time.
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Thanks,
Fred
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