While doing my thesis for my Masters program, I was fortunate to be able to interview hundreds of jurors and study the socio-economic and racial influences between a juror and defendant. What I found was that each allegation which is being charged has a different jury make-up. To put it in a simple analogy: Not every salad is the same. There is the Cobb salad, Greek salad and so on. The same is for a jury trial. A rape and murder trial will have a different makeup.
Would you have the same jury makeup in a murder case as you would in a rape case?
Statistics and research show that women tend to be more critical of other women – especially hispanic women. In a rape trial you want women, especially women who are culturally integrated with the Hispanic culture. These same studies show not only are Hispanic women harsher on other women who accuse males of rape, but also have a higher tendency not to call law enforcement when they were victims themselves. These crimes included domestic violence and rape. In those cultures, some factors considered by Hispanic female victims of abuse by a male were: (1) privacy (2) stigma of victim (3) fear of retaliation from aggressor (4) shift of blame to victim (5) fear of loss of income. Men seem to be more harsh on the male. The data tends to show men tend to believe the victim more than women. Therefore, when picking a jury for a rape case, look for a minority female whose culture frowns upon women who call the police to handle a “family issue.”
This is your time to pick your jury. A wrong pick can mean you threw away your case before it even got started. Don’t use this time to educate your jury or get them to like you. Your only goal is to pick your chess pieces to beat your opponent. The chess pieces are there, you just have to know how to identify them. For example, in a case of where the victim is the police officer (Ex. Resisting Arrest charge), you want to strike any juror with a remote relationship with a police officer. I’ve picked jurors with friends who were police officers only to regret it in the end. I’ve found that they harbor an affinity to police officers which they neglect to disclose during jury selection. Sometimes these are jurors with an agenda. Either way, don’t risk it! Their are plenty of other great jurors waiting to get picked.
If your not sure who to pick, try to pick young jurors, they tend to be more open-minded. Most minorities could be picked where it is a male-female crime. Persons who are integrated in the Asian culture with very little or no assimilation in the American culture will have a much higher percentage to find a defendant guilty than another minority. This is not being written to offend the Asian community, rather to identify the socio-economic and cultural differences and stigmas jurors harbor. To think that a juror will tell you the truth about themselves is naive and will do your client a great injustice. Look behind the veil by asking the right questions. More importantly, listen to their answer. If you still don’t know, use your best judgment.
Remember, picking a jury is the only opportunity you have to interview the 12 people who will potentially let your client go free. Treat this as like a job-interview. You need 12 people who will, more likely than not, find your client not-guilty. Your job is to find them.
The primary and most important difference between Penal Code Section 148(a) (Resisting Arrest/Misdemeanor) and Penal Code Section 69 (Resisting Arrest/Felony) is that under Penal Code Section 69, there is a requirement that there be evidence of resistance caused “..by the use of force or violence.”
Most resisting arrest charges in Los Angeles County are nothing more than a fallback charge when the Officer doesn’t have other valid charges to arrest for or a charge used to cover-up excessive force or even blatant police corruption.
An law enforcement officer that is trigger happy with PC 148 or 69 most likely have a record of people who have filed complaints against them for either excessive force or falsifying complains and so forth. What do you do? Always file a Pitichess Motion.
The key is to develop a “plausible factual scenario” in your motion and in your declaration. Remember: you are asking the court for the Officer’s personnel file, therefore, you must assert the reason for your request (provides an affirmative defense), that you can not obtain the material otherwise and you believe in good faith (based on your client’s statement of facts and the way the report is written) that the Officers in question used excessive force and/or lied in their reports in order to justify a false arrest
This author has never lost a Pitchess motion in PC 148 or 69 cases. The reason is simple: Your request in these types of cases are not unreasonable, somewhat expected, the requested material is Brady Material which could not be readily discovered by you and your good faith belief that there will be exclulpatory evidence which should be brought to the jury’s attention to consider during the trial.
If you get any “hits” (names of complainants), have your investigator immediately contact them for a statement. You should remember that even oral statements to the investigator is discoverable information. Not taking notes will not absolve your discovery obligations and may ultimately result in the judge excluding the testimony if prejudice to the prosecutor is shown.
Second, if you have a PC 148(a) case, you should find out first if there was probable cause to stop the vehicle (if the arrest stems from a traffic stop) or the initial contact and investigation with your client. Filing a 1538.5 motion will force the Officers to tell their version of the facts again which opens the door for inconsistent statements at the very least. In the best case scenario, it may cause a Judge to lean towards the defense side before trial if he doesn’t find the Officer completely credible. He may even dismiss the case at the 1538.5 hearing! The important thing to remember is that in a misdemeanor case, you don’t want to find out how the Officers will testify for the first time at trial. That’s why these pretrial motions are so important.
Third, make sure your 1054 discovery request is very detailed. You should request the MDT logs, dispatch records, 911 calls, supplemental police reports, color photos, videos, audio-tapes, Use of Force Reports, Police Policy and Training Material relating to POST and Excessive Force and so on. It is a good practice to keep a list of items you need before trial starts so that you don’t have to assume the prosecutor gave you everything because they rarely due. Follow up and even file a motion to compel if need be.
Fourth, decide the benefits of filing a 17(b)(4) motion (motion to reduce the felony to a misdemeanor) or to keep it a Felony. It may be easier winning a case which is overcharged but weigh the facts and the consequences of a conviction of a Felony before making this strategic and risky choice. With great rewards also comes great responsibility. The last thing you want is an ineffective assistance of Counsel (Strickland error) raised on appeal should you lose. If your confident in your skills, than proceed with care and caution.
Summarize each hearing transcript (1538.5 and preliminary hearing) carefully and highlight the inconsistencies. During closing argument, you should prepare a list of all the statements he testified to at the 1538.5 which were different at the preliminary which were different in his police report. You can raise serious doubt by doing this effectively.
Also, make sure you DON’T educate the prosecutor in yours case. Most prosecutors have a hard time believing Officers in California lie in police reports, use excessive force or even make false arrests to cover their civil liability and in some cases their crimes. Prosecutors like to portray the image of fairness but in reality their only doing their job and have their marching orders from upstairs. Fly your plane stealth and your odds are higher to win your case.
Try to stay away from using character witnesses. 90% of the time these witnesses say something damaging to your case. Stick with effective cross examination of the Officers combined with your use of the Pitchess witnesses (if you can) or you client (if you can). Although you can arguably keep your client off the stand, it is always a good idea to use your client if you can. The simple reason is despite the law, jurors harbor a negative opinion over defendants who don’t testify in these types of cases. Use your client unless there is clearly a reasonable doubt case and don’t need them. However, if this is the case, then it sounds like you should file a 1538.5.
Lastly, try your case using a powerpoint presentation during your closing arguments to explain where there are inconsistencies in the Officer’s testimony and why reasonable doubt has not been proven . These cases are difficult to follow and a presentation always keep the jurors awake and on their toes. If you set up your legal chess pieces in advance and carefully, you will checkmate each PC 148 and 69 case every time!
California Penal Code ยงยง 148(a), 69 Pitchess v. Superior Court (1974) 11 Cal. 3d 531, 535. City of Santa Cruz v. Municipal Court (1989) 49 Cal. 3d. 74, 84.) Brady v. Maryland (1963) 373 U.S. 83, 86-87