Litigation Support

“Taylored” Testimony, Tailored Closing

A very recent case out of Division I holds that the following narrative during closing argument did not violate a defendant’s right to be present at trial: “(the defendant) had the opportunity to read this discovery for 18 months, that he had the op- portunity to hear what every witness said, and that he had the opportunity to tailor his story to fit the evidence after he heard it all.”

By Lance M. Hester, March 2002

BIAS is Not Harmless

Who is telling the truth is a fact of consequence in any criminal case. I have experi- enced too often a judge sustaining a prosecutor’s objections to a question which is designed to demonstrate the bias of a witness for the state. The claim most often used as a basis for the objection is that the question deals with a matter that is collateral.

By Monte Hester, March 2004

Cat's Out of the Bag

Recently we have seen police practices that include an officer who has developed a suspi- cion of criminal activity engaging the suspect while in custody (not free to leave) in pre- Miranda questioning, including eliciting incriminating statements followed by searches which produced evidence. These pre-Miranda activities are followed by the giving of Miranda warn- ings and the request to search and informing the suspect of his right to stop the search unless a warrant is obtained.

By Monte Hester, June 2011

Davis Update

A year ago Brett Purtzer wrote about State v. Davis in the pages of this publication. See, Just News, July 2005. Since writing that article, the US Supreme Court has accepted certiorari and has published its opinion affirming our state supreme court. This is an important opinion in the post-Crawford era dealing with the confrontation clause and witnesses who fail to show for trial.

By Lance M. Hester, July 2006

Don't Waive or it's Bye Bye

The appearance of a potential language difficulty requires the court to make a record of the defendant’s level of English proficiency.

By Monte Hester, October 2003

Expanded Use of ER 608 (b) Evidence

ER 608(b) governs the admission of specific act evidence, and if a witness is crucial to the state’s case, and the alleged misconduct constitutes the only available impeachment evi- dence, a trial court abuses its discretion if the defense is not allowed to inquire about said evidence. State v. McSorley, ____ Wn.App. _____, 116 P.3d 431 (2005).

By Brett Purtzer, October 2005

Expert?

Watch out for sneak attacks by fact witnesses. Not uncommonly, a prosecutor will call a police fact witness and will, along the way, begin questioning him about his “training and experience” and ultimately, will attempt to elicit various conclusions he made while investigating the case based on his training and experience.

By Lance M. Hester, December 2006

False Reporting

I am involved in some research that led me to an article entitled “Unfounded Cases and False Allegations, ” which is a report/study done for the FBI. This article contains an appendix authored by C.P. McDowell and N.S. Hibler.

By Monte Hester, May 2007

Freedom of Choice

Recently, Division III of the Court of Appeals decided a case confirming that the dou- ble jeopardy clause is alive and well in the State of Washington.

By Wayne Fricke, March 2004

He said he did it. Did he?

Champion, a magazine published by the National Association of Criminal Defense Law- yers, in its December, 2007 issue, contains an article regarding false confessions. A review of this article is must for criminal defense lawyers.

By Monte Hester, February 2008

Missing Witness Abuse

Our Supreme Court, in an opinion filed May 15, 2008 and authored by Justice Chambers, State v. Montgomery, Docket #79564-9, found that the trial court’s giving of a missing witness instruction, followed by the State’s argument regarding the missing witnesses, was an abuse of discretion which was not harmless.

By Monte Hester, June 2008

One Too Many

Recently, I was confronted with a situation wherein a Pierce County prosecutor in- sisted upon witnesses being interviewed jointly. The witnesses happened to be two wildlife agents who headed the investigation against my client. I was forced to file a motion before the prosecutor agreed to change his position.

By Wayne Fricke, March 2004

Recent Cases of Interest

Two recent decisions, one civil and one criminal, may significantly impact practitioners in the way they handle certain cases. Because of their significance, we all need to be aware of their impact so we can properly advise our clients when the following issues arise.

By Brett Purtzer, October 2003

Representing the Absent Client

Occasionally, we must appear in court when our clients unexpectedly don’t. Under such circumstances, we must be careful as to what information we relay to the court regarding our clients’ non-appearance so we don’t violate RPC 1.6. RPC 1.6 prohibits lawyers from re- vealing client confidences or secrets, without the client’s consultation and consent.

By Brett Purtzer, April 2003

Rule of Completness

Oftentimes, the state or defense will seek to introduce favorable testimony through a witness by asking limited questions to evoke a limited response. Evidence Rule 106, however, allows the adverse party to require the party at that time, to introduce any other part, or any other writing or recorded statement, that ought, in fairness, be considered contemporaneously with it.

By Brett Purtzer, May 2006

Say No to Poly

Evidence of a plea agreement between the state and a snitch, which includes a provi- sion that the snitch be required to submit to a polygraph to verify his truthfulness, is not ad- missible in court.

By Monte Hester, April 2003

The Conscience of a Jury is Alive!

The analysis and observations found in State of Washington v. Roberta J. Elmore, Wash- ington Supreme Court Docket No. 75637-6, filed November 10, 2005, in my humble opinion are wonderful.

By Monte Hester, January 2006

The Garrity Guarantee

Many years ago the United States Supreme Court, in Garrity v. State of New Jersey, 385 U.S. 493, 87 S.Ct. 616 (1967), held the Fourteenth Amendment prohibits use in subsequent criminal proceedings of confessions obtained under threat of removal from office. The pro- tection extends to all, whether they are policemen or other members of body politic.

By Monte Hester, March 2002

Time for High Tech Reasoning When There is Low Tech Law

Cops carry cell phones. They also are adorned with two way radios. And many, if not most, of their patrol vehicles are equipped with laptop computers.

By Lance M. Hester, October 2005

Who Am I?

As we all know, a defendant’s identity is an issue that exists in every case, but rarely one that draws much attention during trial unless an alibi defense is raised.

By Brett Purtzer, October 2005

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