When I was about eight years old, I was having a discussion with my Mom. I forget the topic, but I do remember my mother's words ringing out as clear as a bell. "Robert. Stop using my words against me."
About the same time, my Dad was chiding me about some minor interpretation of what may or may not have been one of the rules. Or customs. And I offered my side of the story. And my Dad said,
Robert. Do you know what you are?
No.
Have you ever heard of the expression, a Philadelphia Lawyer?
No.
Well, that's what you are. You're a Philadelphia Lawyer.
And I was so proud.
I remembered that because I've been following the Murdaugh Murder Trial and paying close attention to the Defence Tactics.
The pressing question was a 404b objection. What 404b says is not in dispute; but my first thought was what was behind it.
It goes to motive.
If you have financial problems. And you murder your wife. Prosecution can infer motive. However, what if the real reason you murdered your wife is because she burned the toast at breakfast?
Now we enter Dr. Phil territory.
The fact that you are having financial difficulties leads you to have feelings of low self-esteem. And when you murdered your wife, it made you feel marginalised and low self-esteem. Then, when she gave you burnt toast, you felt disrespected. And this led to this socially/legally unacceptable response. And, yes, this really was a thing a few decades ago. A bit of this goes into post hoc ergo propter hoc.
But what if we eliminate motive? We've often heard, my client committed the murder because he was high on cocaine. Which also is a crime. Can we exclude the cocaine use? What if you rob a bank to buy cocaine. Then get high and commit murder? We are on the slippery slope of eliminating motive.
Reductio ad absurdum?
Your honour, I move that the bank security video be excluded because the video shows my client killing the bank teller. If the jury sees that video it could prejudice the jury. And the only other witness was the other teller. But she is the victim's sister. Her testimony will be prejudiced. I move that her testimony be excluded. Your honour, I move that the charges against my client be dismissed on the basis of lack of evidence.
Moving along, we have defence tactics. Repeating questions, rewording questions, restating and changing witness testimony. One Commentator said, I don't know what his strategy is. Well I do. His strategy is an attempt to trip up the witness, to provide the jury with confusing testimony, to give rise to reasonable doubt and to go for a hung jury.
The other tactic is to ask the witness questions about matter not within the witnesses field or purvu of jurisdiction. And the result is:
I don't know
I don't know
I don't know
These can be talking points in summation.
Years ago, two defence attorneys double teamed me during informal discovery. For example only:
My coworker attacked me, so I filed a complaint.
So what you're saying is that you attacked your coworker and he filed a complaint against you?
That strategy failed, but it was amusing to watch.
When did 404b become the basis for excluding motive?
The attorneys for the Defendant are attempting a brilliant but dangerous strategy. If I were sitting on the fence, and was undecided about the verdict, the attorneys' tactics would tilt me towar a guilty verdict.
Best wishes,
Slim.
Box 33
Pen Argyl, PA 18072
Etats-Unis
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The Quotations of Slim Fairview
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