by

Mark D. Hosken, Supervisory Assistant Federal Public Defender.

Western District of New York


What should happen when the government knowingly introduces a witness’ false testimony in a trial. That question was recently before the Seventh Circuit in United States v. Freeman, No. 09-4043, ___ F.3d ___ (7th Cir. June 17, 2011). There, the panel affirmed the District Court’s order granting the defendant a new trial. While taking place in the Seventh Circuit, the panel’s holding serves as a reminder as to what defense counsel should do if you are faced with the government introducing testimony known to be false.


In Freeman, an individual charged in a multi-defendant drug conspiracy decides to cooperate, and testifies before the grand jury. He told the grand jury that he participated in the drug conspiracy by mixing and bagging up the drugs for one of the other defendants, and explains how the other defendants fit into the operation. He chronicles his meetings with the defendants and the occasions when he witnessed them together. He testifies to a specific time frame (2003) when he saw all of the defendants at a specific location known as the “penthouse.” That testimony was not true. It was undisputed that one of the defendants, Brian Wilbourn, was incarcerated during a three and a half year period (between 2002 and 2005) when the witness claimed he was present while the defendants were bagging drugs at a specific location.


Defense counsel reviews the witness’ grand jury testimony while preparing for trial. He notifies the government that his client could not have been seen with the other defendants as the witness claimed because his client was incarcerated. As the Seventh Circuit panel noted, “the government plowed ahead and still had [its witness] testify. It solicited testimony about Wilbourn’s presence at the penthouse; it even encouraged [its witness]to specifically detail Wilbourn’s participation in [the] operation there. . . . What’s more, when Wilbourn’s attorney began cross-examining [the witness] about the impossibility of Wilbourn being at the penthouse, the prosecutor objected, stating in the presence of the jury, ‘Objection. That’s not true.’” Freeman, 2011 WL 2417091, at *2-3.


Near the end of the trial the government stipulated that that Wilbourn was in prison from April 2002 until September 2005. Twelve days after the government’s witness testified, the stipulation was read to the jury. Notwithstanding the stipulation, the government relied on its witness’ testimony during its closing argument. According to the government, its witness did not lie during his testimony. Rather, the government argued that he was just imprecise or mildly mistaken about the dates on which some events occurred.


The District Court sustained several defense objections, and informed the government that its argument was both inaccurate and an attempt to bolster its witness’ testimony. The District Court later determined that this constituted prosecutorial misconduct. The defendants were ultimately found guilty of the conspiracy charge. However, the defendants moved for a new trial on the ground that the false testimony of the government’s witness violated their due process rights. The District Court agreed.


In Freeman, 2011 WL 2417091, a 7th Circuit panel affirmed the district court’s grant of a new trial. Relying on the Supreme Court’s holdings in Napue v. Illinois, 360 U.S. 264 (1959), United States v. Bagley, 473 U.S. 667 (1984), and United States v. Agurs, 427 U.S. 97 (1976), the panel upheld the district court’s determination that there was a reasonable likelihood that the false testimony could have affected the jury’s judgment and that if not for the improprieties, the defendants would have been acquitted.


More importantly, the panel extended the government’s duty beyond merely determining the accuracy of its claims. Now, the government must not forgo its duty to investigate its witnesses.

The government’s duty to assure the accuracy of its representations has been well stated many times before. . . . This means that when the government learns that part of its case may be inaccurate, it must investigate. . . . It cannot simply ignore evidence that its witness is lying. . . . Here, the government abdicated its responsibility by failing to investigate and determine whether (the defendant) could have been (where the witness) claimed he was.

2011 WL 2417091 *5. (internal cites omitted).


In United States v. Agurs, 427 U.S. 97 (1976), the Supreme Court explained that the rule of Brady v. Maryland, 373 U.S. 83 (1963), applied in different situations. The first being those instances when the prosecution knew or should have known about perjured testimony. These situations are fundamentally unfair. Convictions obtained therein must be set aside. This requires a finding that there existed a reasonable likelihood that the false testimony could have affected the jury’s judgment. Agurs, 427 U.S. at 103.


The Second Circuit has applied the Agurs analysis to set aside convictions when the government’s witnesses have presented perjured testimony. See, United States v. Mele, 462 F.2d 918 (2d Cir. 1972) (the government’s deceit including untruthful testimony, deliberate excisions from reports, preparation of false reports and repeated misrepresentations required a new trial); Perkins v. LeFevre, 691 F.2d 616 (2d Cir. 1982) (the prosecution’s failure to provide the witness’ rap sheet to the defense after the witness denied any convictions which were recorded on his criminal history resulted in the granting of a writ of habeas corpus.); United States v. Wallach, 935 F.2d 445 (2d Cir. 1991) (the perjury of the government’s witness required a reversal of the convictions when the government in redirect and in closing argument made much of the witness’ motive for telling the truth.); United States v. Vozzella, 124 F.3d 389 (2d Cir. 1997) (the government’s use of business record evidence that it knew contained fictitious entries, and according to its author were false in their entirety, required reversal when the government conducted no further inquiry into the veracity of the records.); Jenkins v. Artuz, 294 F.3d 284 (2d Cir. 2002) (the prosecutor’s failure to correct the record in spite of the witness’ false testimony and her argument in summation relying on that false testimony was sufficient basis to grant a writ of habeas corpus); and Drake v. Portuondo, 553 F.3d 230 (2d Cir. 2009) (the prosecutor knowingly elicited false statements from a witness and did not correct the record when the witness testified falsely about conversations he had with the prosecutor - this was sufficient to grant a writ of habeas corpus.).


The importance of the Freeman decision is the imposition of a duty on the prosecutor to investigate his/her witnesses. The government’s counsel may no longer contend “I didn’t know,” or “the witness was simply mistaken,” or “the defense attorney had a sufficient opportunity to cross examine the witness.” Defense counsel should put the government on notice of a witness’ perjury, record proper objections, and challenge the government’s failure to correct the record. Building on the Supreme Court decisions and adding the direction in Freeman, counsel should argue the government’s failure to fully investigate its witnesses is a sufficient basis to set aside a conviction, obtain a new trial or otherwise secure a dismissal in the appropriate criminal prosecution.

by
Mark D. Hosken, Supervisory Assistant Federal Public Defender.
Western District of New York

What should happen when the government knowingly introduces a witness’ false testimony in a trial. That question was recently before the Seventh Circuit in United States v. Freeman, No. 09-4043, ___ F.3d ___ (7th Cir. June 17, 2011). There, the panel affirmed the District Court’s order granting the defendant a new trial. While taking place in the Seventh Circuit, the panel’s holding serves as a reminder as to what defense counsel should do if you are faced with the government introducing testimony known to be false.

In Freeman, an individual charged in a multi-defendant drug conspiracy decides to cooperate, and testifies before the grand jury. He told the grand jury that he participated in the drug conspiracy by mixing and bagging up the drugs for one of the other defendants, and explains how the other defendants fit into the operation. He chronicles his meetings with the defendants and the occasions when he witnessed them together. He testifies to a specific time frame (2003) when he saw all of the defendants at a specific location known as the “penthouse.” That testimony was not true. It was undisputed that one of the defendants, Brian Wilbourn, was incarcerated during a three and a half year period (between 2002 and 2005) when the witness claimed he was present while the defendants were bagging drugs at a specific location.

Defense counsel reviews the witness’ grand jury testimony while preparing for trial. He notifies the government that his client could not have been seen with the other defendants as the witness claimed because his client was incarcerated. As the Seventh Circuit panel noted, “the government plowed ahead and still had [its witness] testify. It solicited testimony about Wilbourn’s presence at the penthouse; it even encouraged [its witness]to specifically detail Wilbourn’s participation in [the] operation there. . . . What’s more, when Wilbourn’s attorney began cross-examining [the witness] about the impossibility of Wilbourn being at the penthouse, the prosecutor objected, stating in the presence of the jury, ‘Objection. That’s not true.’” Freeman, 2011 WL 2417091, at *2-3.

Near the end of the trial the government stipulated that that Wilbourn was in prison from April 2002 until September 2005. Twelve days after the government’s witness testified, the stipulation was read to the jury. Notwithstanding the stipulation, the government relied on its witness’ testimony during its closing argument. According to the government, its witness did not lie during his testimony. Rather, the government argued that he was just imprecise or mildly mistaken about the dates on which some events occurred.

The District Court sustained several defense objections, and informed the government that its argument was both inaccurate and an attempt to bolster its witness’ testimony. The District Court later determined that this constituted prosecutorial misconduct. The defendants were ultimately found guilty of the conspiracy charge. However, the defendants moved for a new trial on the ground that the false testimony of the government’s witness violated their due process rights. The District Court agreed.

In Freeman, 2011 WL 2417091, a 7th Circuit panel affirmed the district court’s grant of a new trial. Relying on the Supreme Court’s holdings in Napue v. Illinois, 360 U.S. 264 (1959), United States v. Bagley, 473 U.S. 667 (1984), and United States v. Agurs, 427 U.S. 97 (1976), the panel upheld the district court’s determination that there was a reasonable likelihood that the false testimony could have affected the jury’s judgment and that if not for the improprieties, the defendants would have been acquitted.

More importantly, the panel extended the government’s duty beyond merely determining the accuracy of its claims. Now, the government must not forgo its duty to investigate its witnesses.

The government’s duty to assure the accuracy of its representations has been well stated many times before. . . . This means that when the government learns that part of its case may be inaccurate, it must investigate. . . . It cannot simply ignore evidence that its witness is lying. . . . Here, the government abdicated its responsibility by failing to investigate and determine whether (the defendant) could have been (where the witness) claimed he was.

2011 WL 2417091 *5. (internal cites omitted).

In United States v. Agurs, 427 U.S. 97 (1976), the Supreme Court explained that the rule of Brady v. Maryland, 373 U.S. 83 (1963), applied in different situations. The first being those instances when the prosecution knew or should have known about perjured testimony. These situations are fundamentally unfair. Convictions obtained therein must be set aside. This requires a finding that there existed a reasonable likelihood that the false testimony could have affected the jury’s judgment. Agurs, 427 U.S. at 103.

The Second Circuit has applied the Agurs analysis to set aside convictions when the government’s witnesses have presented perjured testimony. See, United States v. Mele, 462 F.2d 918 (2d Cir. 1972) (the government’s deceit including untruthful testimony, deliberate excisions from reports, preparation of false reports and repeated misrepresentations required a new trial); Perkins v. LeFevre, 691 F.2d 616 (2d Cir. 1982) (the prosecution’s failure to provide the witness’ rap sheet to the defense after the witness denied any convictions which were recorded on his criminal history resulted in the granting of a writ of habeas corpus.); United States v. Wallach, 935 F.2d 445 (2d Cir. 1991) (the perjury of the government’s witness required a reversal of the convictions when the government in redirect and in closing argument made much of the witness’ motive for telling the truth.); United States v. Vozzella, 124 F.3d 389 (2d Cir. 1997) (the government’s use of business record evidence that it knew contained fictitious entries, and according to its author were false in their entirety, required reversal when the government conducted no further inquiry into the veracity of the records.); Jenkins v. Artuz, 294 F.3d 284 (2d Cir. 2002) (the prosecutor’s failure to correct the record in spite of the witness’ false testimony and her argument in summation relying on that false testimony was sufficient basis to grant a writ of habeas corpus); and Drake v. Portuondo, 553 F.3d 230 (2d Cir. 2009) (the prosecutor knowingly elicited false statements from a witness and did not correct the record when the witness testified falsely about conversations he had with the prosecutor - this was sufficient to grant a writ of habeas corpus.).

The importance of the Freeman decision is the imposition of a duty on the prosecutor to investigate his/her witnesses. The government’s counsel may no longer contend “I didn’t know,” or “the witness was simply mistaken,” or “the defense attorney had a sufficient opportunity to cross examine the witness.” Defense counsel should put the government on notice of a witness’ perjury, record proper objections, and challenge the government’s failure to correct the record. Building on the Supreme Court decisions and adding the direction in Freeman, counsel should argue the government’s failure to fully investigate its witnesses is a sufficient basis to set aside a conviction, obtain a new trial or otherwise secure a dismissal in the appropriate criminal prosecution.

Some Thoughts on Felony Sentencing in New York

Jill Paperno

Second Assistant Monroe County Public Defender


Plea and sentence negotiations are a part of our practice that requires social skills, strategy, and yes, a knowledge of the sentencing laws. If a client is facing a much higher sentence, maybe the deal on the table is a good one. But if they're not, it may not be. Very often DAs and judges are not familiar with the details of the sentencing laws and might, out of lack of familiarity, misstate the sentence exposure your client faces. We have to know what the possible sentences are in a case before we walk into the conference. But unfortunately, the sentencing statutes are dense and poorly written. But we still have to know them. There are some common errors defense attorneys make that I'd like to address broadly. Remember - it's always important to read the applicable statutes - after all these years all the experienced attorneys I know review them time and time again. And for some of these statutes, the practice commentaries and cases interpreting the statutes are a must-read as well.


Persistent offender statutes

Prosecutors often enjoy raising the specter of persistent felony sentencing if a defendant does not accept a lousy offer.


There are two kinds of persistent felony sentencing statutes - the persistent felony offender statute and the persistent violent felony offender statute. Each one elevates the minimum sentence a defendant may receive, and makes the maximum sentence life. But there are important distinctions between the two.


Persistent violent felony offender


Penal Law Section 70.08 addresses persistent violent felony offender sentencing. The procedure a court must use in determining whether a defendant should be subjected to such sentencing is contained in CPL 400.16. Generally speaking, a person who has been convicted of a violent felony offense or predatory sex offense and has two prior violent felonies for two separate convictions within a ten year period (not counting time spent incarcerated) is a persistent violent felony offender. If a court makes the determination a person is a PVFO then persistent violent felony offender sentencing is mandatory. The second predicate offense must be committed after the first felony offense for a person to be found to be a PVFO. It is NOT required that a person serve two prior state sentences. Each prior violent felony must be within ten years of the current felony, but the ten years is tolled during periods of incarceration. (See, e.g. People v. Ogarra, 757 NYS2d 683.)


So some of the important things to know about PVFO sentencing are that the crimes must be sequential, the sentence is mandatory if applicable, and there is a ten year period within which the two prior violent felonies must have occurred.


Persistent felony offender


Penal Law Section 70.10 addresses persistent felony offender sentencing. Notably, that statute does not require that the two prior felonies occur within a specified period. It does, however, require that the felonies be sequential and that the defendant served a state prison bid on at least two prior felony convictions (by requiring the sentence for each conviction be in excess of one year or death under Penal Law 70.10(1)(b)(i)) (Death? Then isn't persistent a bit of overkill, if you'll pardon the pun?) Persistent felony offender sentencing is within the discretion of the judge, and may be based on factors other than simply prior sentences. Therefore, it has been challenged as unconstitutional (but found constitutional by the NYCA and Second Circuit) and may yet be reviewed by the Supreme Court (the cert. petition in People v Battles is pending) The procedure used to determine whether a defendant is a persistent felony offender is contained in CPL Section 400.20.


With any kind of predicate sentence, out of state charges may be considered to be felonies, but you actually have to analyze whether they constitute felonies under New York law, first by looking at the face of the statute, and sometimes by looking at the accusatory. (For example, in some states, breaking into a car may be considered a burglary. Not a felony in New York even if a person did state time in the other state, and even if it was your car. Thus, not a predicate felony for sentencing purposes.) See 70.04(1)(b)(i) and 70.06(1)(b)(i) for the requirements for out of state felonies, as well as cases interpreting that statute.


So some of the most important things to know about PFO sentencing are that the crimes must be sequential, the sentence is NOT mandatory if applicable, there is no statutory period in which the two felonies must have occurred, but each must have resulted in a sentence of state prison (70.10[1][b][i]).


So if the judge or prosecutor is threatening persistent sentencing, make sure you have reviewed your client's record and determined whether it supports that sentence.


Mandatory consecutive


Penal Law Section 70.25 governs when sentences must be concurrent or consecutive. Importantly, although a defendant may be a second felony offender, that does not automatically mean that s/he is required to serve consecutive time. The specific circumstances that require consecutive time are contained within the statute. They include when a person is sentenced as a predicate or persistent felony offender (but do not apply to all predicates/persistents - read the statute) and are on parole (which is described as an "undischarged sentence of imprisonment imposed prior to the date on which the present crime was committed"), defendants charged with escape, bail jumping, VFOs while released on pending felonies, etc.


Prior violent felonies


Keep in mind that certain E felonies charged as attempts to commit D felonies may not be prior violent felonies. See Penal Law Section 70.02(d).

Some Thoughts on Felony Sentencing in New York

Jill Paperno
Second Assistant Monroe County Public Defender

Plea and sentence negotiations are a part of our practice that requires social skills, strategy, and yes, a knowledge of the sentencing laws. If a client is facing a much higher sentence, maybe the deal on the table is a good one. But if they're not, it may not be. Very often DAs and judges are not familiar with the details of the sentencing laws and might, out of lack of familiarity, misstate the sentence exposure your client faces. We have to know what the possible sentences are in a case before we walk into the conference. But unfortunately, the sentencing statutes are dense and poorly written. But we still have to know them. There are some common errors defense attorneys make that I'd like to address broadly. Remember - it's always important to read the applicable statutes - after all these years all the experienced attorneys I know review them time and time again. And for some of these statutes, the practice commentaries and cases interpreting the statutes are a must-read as well.

Persistent offender statutes
Prosecutors often enjoy raising the specter of persistent felony sentencing if a defendant does not accept a lousy offer.

There are two kinds of persistent felony sentencing statutes - the persistent felony offender statute and the persistent violent felony offender statute. Each one elevates the minimum sentence a defendant may receive, and makes the maximum sentence life. But there are important distinctions between the two.

Persistent violent felony offender

Penal Law Section 70.08 addresses persistent violent felony offender sentencing. The procedure a court must use in determining whether a defendant should be subjected to such sentencing is contained in CPL 400.16. Generally speaking, a person who has been convicted of a violent felony offense or predatory sex offense and has two prior violent felonies for two separate convictions within a ten year period (not counting time spent incarcerated) is a persistent violent felony offender. If a court makes the determination a person is a PVFO then persistent violent felony offender sentencing is mandatory. The second predicate offense must be committed after the first felony offense for a person to be found to be a PVFO. It is NOT required that a person serve two prior state sentences. Each prior violent felony must be within ten years of the current felony, but the ten years is tolled during periods of incarceration. (See, e.g. People v. Ogarra, 757 NYS2d 683.)

So some of the important things to know about PVFO sentencing are that the crimes must be sequential, the sentence is mandatory if applicable, and there is a ten year period within which the two prior violent felonies must have occurred.

Persistent felony offender

Penal Law Section 70.10 addresses persistent felony offender sentencing. Notably, that statute does not require that the two prior felonies occur within a specified period. It does, however, require that the felonies be sequential and that the defendant served a state prison bid on at least two prior felony convictions (by requiring the sentence for each conviction be in excess of one year or death under Penal Law 70.10(1)(b)(i)) (Death? Then isn't persistent a bit of overkill, if you'll pardon the pun?) Persistent felony offender sentencing is within the discretion of the judge, and may be based on factors other than simply prior sentences. Therefore, it has been challenged as unconstitutional (but found constitutional by the NYCA and Second Circuit) and may yet be reviewed by the Supreme Court (the cert. petition in People v Battles is pending) The procedure used to determine whether a defendant is a persistent felony offender is contained in CPL Section 400.20.

With any kind of predicate sentence, out of state charges may be considered to be felonies, but you actually have to analyze whether they constitute felonies under New York law, first by looking at the face of the statute, and sometimes by looking at the accusatory. (For example, in some states, breaking into a car may be considered a burglary. Not a felony in New York even if a person did state time in the other state, and even if it was your car. Thus, not a predicate felony for sentencing purposes.) See 70.04(1)(b)(i) and 70.06(1)(b)(i) for the requirements for out of state felonies, as well as cases interpreting that statute.

So some of the most important things to know about PFO sentencing are that the crimes must be sequential, the sentence is NOT mandatory if applicable, there is no statutory period in which the two felonies must have occurred, but each must have resulted in a sentence of state prison (70.10[1][b][i]).

So if the judge or prosecutor is threatening persistent sentencing, make sure you have reviewed your client's record and determined whether it supports that sentence.

Mandatory consecutive

Penal Law Section 70.25 governs when sentences must be concurrent or consecutive. Importantly, although a defendant may be a second felony offender, that does not automatically mean that s/he is required to serve consecutive time. The specific circumstances that require consecutive time are contained within the statute. They include when a person is sentenced as a predicate or persistent felony offender (but do not apply to all predicates/persistents - read the statute) and are on parole (which is described as an "undischarged sentence of imprisonment imposed prior to the date on which the present crime was committed"), defendants charged with escape, bail jumping, VFOs while released on pending felonies, etc.

Prior violent felonies

Keep in mind that certain E felonies charged as attempts to commit D felonies may not be prior violent felonies. See Penal Law Section 70.02(d).

Strategies for Defending Sex Crimes

Frequent contributor to this blog, Second Assistant Monroe County Public Defender Jill Paperno, is a very knowledgeable and successful trial attorney. Her posts usually consist of practical advice to trial counsel in which she shares her expertise. Now, in a longer and more formal setting, Jill is sharing her expertise in a book. Jill is one of the co-authors of a the newly published "Strategies for Defending Sex Crimes: Leading Lawyers on Understanding the Current Sex Crimes Environment and Building a Thorough Defense (Inside the Minds)" in which experienced attorneys provide detailed advice on the defense of sex crimes from the initial client interview and investigation, through preparation for psychosexual evaluations, examination of scientific evidence, trial, and, if necessary, sentencing.

Strategies for Defending Sex Crimes

Frequent contributor to this blog, Second Assistant Monroe County Public Defender Jill Paperno, is a very knowledgeable and successful trial attorney. Her posts usually consist of practical advice to trial counsel in which she shares her expertise. Now, in a longer and more formal setting, Jill is sharing her expertise in a book. Jill is one of the co-authors of a the newly published "Strategies for Defending Sex Crimes: Leading Lawyers on Understanding the Current Sex Crimes Environment and Building a Thorough Defense (Inside the Minds)" in which experienced attorneys provide detailed advice on the defense of sex crimes from the initial client interview and investigation, through preparation for psychosexual evaluations, examination of scientific evidence, trial, and, if necessary, sentencing.

Picture This: Photographs and Criminal Trials

by
Jill Paperno, Esq.
Second Assistant Monroe County Public Defender

A picture is worth a thousand words. In a case I tried a month ago I was once again reminded of the helpfulness of photos at trial. Even the prosecutor’s. Sometimes especially the prosecutor’s. But in order to take full advantage of photos you have to carefully examine them, know the scene or location which they depict, know your case, and know how to introduce them into evidence.

First Things First

Did the police take photographs? When you get your discovery packet, make sure you look for the technicians’ reports and property reports. Sometimes they are not included with the original packet. The Rochester Police Department has a protocol for how a technician must record photos that are taken. The protocol includes location, subject, roll of film (okay, it’s a little outdated) and other information. It is in their directives. If you have reason to believe that photos were taken and you have not received them, request them of the prosecutor. Sometimes photos are taken of the rape complainant at the hospital, and they are always taken by the Medical Examiner during autopsies, so make sure you have those too. If you need a picture of the defendant after arrest to show injuries, clothing, or other aspects of his or her appearance, consider subpoenaing the booking photo. If you want photos of the client to establish injuries that might not have been observed by police or jail staff, get an investigator to call the jail, get permission to come in with a camera, and take pictures of your client.

Look At The Photos. Then Look Again

Read your discovery packet and review the photos. Then look at them again. Show them to your colleagues. Show them to your client. Sometimes the smallest things will become significant. Sometimes you will see evidence that is damaging, and you must prepare for it. Sometimes the photos help you out.

Your Photos

I’ve been asked by younger attorneys whether we have the obligation to provide the prosecutor all of our photos. Heck, no! We do have to provide the photos we’ll be using at trial, but figure out which those are likely to be before turning them over. I’ve had a prosecutor ask the judge to order me to provide my box of photos to him. I had said no. So did the judge. He had the ones I was going to use. See CPL 240 for guidance on what the defense has to provide in discovery.

Foundation According To The Experts

According to Richardson on Evidence, "Properly authenticated photographs are admissible whenever relevant to describe the physical characteristics of a person, place or thing (cites omitted)...Photographs are properly authenticated by the testimony of a witness familiar with the subject portrayed that the photograph is a correct representation of the person, place object or condition depicted (cites omitted). The witness need not be the photographer (cite omitted)." Prince, Richardson on Evidence (11th Edition) Section 4-212.
According to Imwinkelreid, "Like other articles, still photographs must be authenticated or verified. In the past, some courts insisted that the photographer appear as the sponsoring witness. Modernly, the prevailing view is that any person familiar with the scene or object depicted may verify the photograph. The foundational elements are as follows: 1. The witness is familiar with the object or scene. 2. The witness explains the basis for his or her familiarity with the object or scene. 3. The witness recognizes the object or scene in the photograph. 4. The photograph is a 'fair,' 'accurate,' 'true,' or 'good' depiction of teh object or scene at the relevant time." Evidentiary Foundations, Section 4.09(1), Sixth Edition, Edward J. Imwinkelried.

Getting The Photographs In

You do not have to use your own witness to get a photo in. You do not have to use the person who took the photo. All you need is someone who can testify that the photo fairly and accurately depicts the location/appearance of the item/scene/whatever as it appeared on the date and time in question.
So this is the dance – show the picture to the prosecutor, give it to the stenographer to mark the picture, tell the witness “I’m now showing you what’s been marked as defendant’s exhibit (whatever it’s marked as) for identification.” If it’s your witness you can ask what the photo depicts. If it’s the prosecutor’s you might have to lead them – I always do. “Does this photograph depict the front of the store at (address)? Does this photograph appear to fairly and accurately depict the appearance of the front of the store at that address on (date of incident). “ Then, if you want the photo in evidence – that is, if you want to show it to the jury, tell the Judge, “Your honor, I would now offer defendant’s exhibit A into evidence. “ The judge will ask the prosecutor if there are any objections. Sometimes they object that the witness did not take the photo. That’s an incorrect objection and you shouldn’t even have to respond to it. If there is no objection or the judge says s/he’ll receive the exhibit, then hand it to the stenographer to mark as received. You cannot show a photo to the jury until it is received and marked as received.

A few pointers – keep your exhibits that are received separate from those that have not been received so you don’t accidentally show the photos that are not in evidence to the witness. Keep them in a special file so they are accessible at the end of the case when all of the received exhibits are collected to provide to the jury during deliberations.

If there’s a gruesome or damning photo left up on display for the jury to view by the prosecutor during the trial, by all means, feel free when you are getting up to question to take it down. If it’s left up and no longer relevant to the questioning, ask the judge if you can remove it.

If you are using photos that you have marked, make sure you offer them before the witness leaves. You definitely don’t want to offer it too late, face an objection by the prosecutor, and not be able to have the witness testify to provide any further foundation that is necessary. I keep a checklist or note in my examination the point at which I’ll be offering certain photos.

If a photo has something helpful and something that’s been precluded, consider cutting the photo. But don’t leave the prosecutor’s scissors on the table by your client. (Oops – my bad.)

If you don’t know if you will get the testimony out through an adverse witness, don’t be afraid to try. In one case last year in which my client was accused of selling drugs to an undercover officer, the officer written in his report and noted on the audio recording that the seller wore a black hoody. My investigator had taken a picture of my client wearing the black leather jacket with the red emblem that my client said he was wearing that day. So I asked the officer if the jacket in the picture my investigator was wearing appeared to be the jacket he was wearing when he was arrested shortly after the buy(and if it fairly and accurately represented the appearance of the jacket on the date in question). Much to my surprise, he said it did. Phew – my client would not have been a great witness and we had no other way to establish that jacket was the one my client was wearing. The disparity between the jacket and the officer’s description, among other things, helped in that case.

Using The Photographs

The best way to explain some of the ways photos can help is to go through some experiences I’ve had with photos at trial. I’m not a big fan of war stories, but I think that sometimes shared experiences help us find different ways to handle cases.

In the last trial I had, my client was charged with Criminal Possession of a Weapon in the Second Degree. The allegation was that he possessed a weapon that was in a vehicle. He was in the passenger seat when the police approached the parked car. His co-defendant was in the driver’s seat. The gun was photographed by police wedged against the right side of the driver’s seat. My client informed me that the gun was not visible when he sat in the passenger seat; there was a stuffed animal obscuring its visibility. The location was important because although my client could be presumed to possess the weapon based on the statutory presumption (more on that another time), the prosecution also had to prove my client knew the weapon was there (though a presumption might have been applied by the jury on that element too, but again, another day). In order to prove my client knowingly possessed the weapon, the prosecutor wanted to establish that anybody would have known the gun was in the vehicle.

Since my client had told me that the stuffed animal had been moved, I asked the officer at the pre-trial hearing about whether the gun appeared in the vehicle when he observed it as it did in the photo. He acknowledged that it did not, and that a “small, tiny” stuffed animal was placed in front of it. At trial the prosecutor had the officer mark with black marker on the photo of the gun two lines which indicated which parts of the gun were visible. He marked off two narrow horizontal areas – one toward the front of the gun along the barrel, the other behind the cylinder. I then took my picture, had the stenographer mark it, and asked him to make the identical lines on my exhibit. Then I asked him to black out everything that was obscured by the animal. He blacked out everything underneath the lines he made – most of the gun. So what we were left with was the small areas of the gun next to a seat behind a stuffed animal in a van at night. Thoughts on that – use your own exhibit – not the prosecutor’s - so everyone doesn’t freak out, and consider the impact of how much of the item would remain visible if you do this experiment. It was only after the officer had marked the lines for the prosecutor that this occurred to me, because I could see that very little would be left visible.

Other photos in that trial helped establish the officer’s bias. He claimed he did not know if a flash was necessary for the photos because it was so light out that night. So I took the photos and used the technician to establish that a flash was used for each picture, and pointed out through the technician the glare of the flash in each exhibit. (“I’m now showing you People’s Exhibit 1 in evidence. Is this a photograph of the interior of the car?” “ Yes.” “ And I’m now pointing to a brighter area along the handbrake. Is that a reflection of the flash you used when taking that photo?” “ Yes.”

In summation I noted to the jury that we all knew why we were arguing about how much lighting there was and what part of the gun was visible – it was because the prosecution had to prove my client had knowing possession of the gun. And if he couldn’t see it, he couldn’t know it was there. I argued that the lights of the photos didn’t accurately reflect what my client could see.

In a trial a few months ago, the witness described a particular type of toy he had received on a particular date, claiming that helped him remember when the sexual abuse had occurred. I noticed that a similar toy was hanging on the bedroom wall in one of the photos, but its colors were slightly different. So I asked him if that was another toy of the same type on the wall. I asked how many he had (four) and when he got them (he listed four dates). None of the dates was the one he’d testified to on direct. Once again, photos helped save the day.

In one case several years ago, my client was charged with rape. He claimed he was involved in a healing ritual of Santeria and did not rape the complainants. My investigator had gone to the scene early on and photographed everything while my client was in jail. We retained an expert and she confirmed items present in the house were consistent with Santeria practices. In a homicide case years ago the trail of blood was inconsistent with the testimony of the witness.

In another case the complainants alleged my client had intimidated them into having sex with them. But why did one of them ask him to the prom? The picture of her, smiling, with her prom date (my client), on a date after the alleged abuse was a basis for reasonable doubt.

Photos may show the proximity of bedrooms which make it unlikely for events to have occurred a certain way. They may show that the car the prosecutor claims is worth $20,000 is really worth far less because the various parts have been taken from other cars so it’s not an original.

If you have a case in which the prosecutor is claiming events happened on certain dates, see if your client’s family has photos from those dates. I’ve actually had two cases in which complainants’ assertions of events on certain dates were refuted by photos – one a birthday picture in which the complainant was not present (she didn’t realize my client’s daughter’s birthday was the same date she said he’d raped her).

Once The Photographs Are Admitted, USE THEM

Strut your stuff! I’ve seen too many attorney s offer the photos and then not use them to their fullest advantage. Once the photo is in, if you don’t have further questions for the witness about the photo, ask the judge if you can publish it. That just means showing it to the jury. That can be done by giving it to the deputy and having the deputy hand it to the jurors, holding it up yourself and walking it past the jury, or if there’s a “visualizer” in court (photo display equipment) put it on the bed of the machine and display it. It’s often helpful to have a few questions to ask the witness to emphasize the importance of the photos. Even if it’s restating the obvious – “So, directing your attention to defendant’s exhibit A in evidence, the photo of the gun, the portions I am now pointing to above the black marked out area were all you could observe before moving the stuffed animal, is that correct?”

Make sure when you’re using the photos, you both refer to the exhibit number and describe what’s in the photo. You don’t want a read back during deliberations in which the testimony you elicited is unclear. (“Yes – I was standing there, and he was there, and then he pushed me into that area there.”) If you are having the witness describe items in the photo, note what the item is and where it is in the photo – “Now, directing your attention to the upper right hand corner of defendant’s exhibit B, the picture of the house, there is a window there, is that correct?”

And please- PLEASE – do not have your back to the jury as you are questioning the witness or working with the exhibits. Stand next to the witness facing the jury. Or, if there’s a visualizer, you can stand by that item and ask to have the witness step down. Or you can ask to have the witness step down in front of the jury to work with the exhibit. But don’t have your back to the jury.

Summing Up

Don’t forget to use the photos during summation. I find they’re a great way to get me moving around the courtroom. You may wish to note in your summation notes when you’ll use certain pictures or other evidence. Use the prosecutor’s photos either to support your argument, or to explain how they’re awful, but the jury must decide this on the facts, not their emotions, and that the prosecutor may hold up these photos during his or her summation in an effort to appeal to their emotions.