December 2013 - Pg 16-Attorney Question
Attorney Question Of The Month
This month’s topic comes from an Affiliated Attorney who asked the other Affiliates the following series of related questions–
Would you allow a client who used deadly force in self defense to be administered a polygraph, voice stress analysis, hypnosis, eye examination, blood analysis and/or psychiatric evaluation. When and why?
Would you allow the client to perform a test of shooting or weapon manipulation skill? Are the results of such evaluations presented to the grand jury or admissible at trial in your jurisdiction? Do prosecutors use them in making charging decisions? If you do this kind of testing on your own are the results discoverable by the state in a criminal case? In a civil liability trial?
We were very interested in the questions our Affiliated Attorney from FL outlined, and even more interested with the answers sent in by other Affiliated Attorneys. We think you will find their responses instructive, too.
Attorney at Law
2931 Rockefeller, Everett, WA 98201
That’s a complicated question with a lot of variables. But, here’s an approach that I will generally use–
(1) there’s all the evidence in the world, some reliable and some not so reliable; and (2) there’s the limited amount of evidence that might get into the courtroom and into the sight and ears of jurors, all of which is supposed to be reliable. That is—
(1) All worldly evidence can be used to try to influence a prosecutor’s decision whether to file or not, whose decision can be based in part on this type of evidence, which may never see the inside of a courtroom.
If the evidence is not so reliable, the prosecutor will let you know, but that does not mean the prosecutor will ignore it. This type of evidence includes the polygraph, voice stress analysis, hypnosis, eye examination and usually a psychiatric evaluation.
The reliability of this out-of-court evidence usually depends upon how the evidence is gathered—(a) is it simply a self-interested person trying to advance a theory through self-reporting, such as he can or can’t read an eye chart clearly, he did or didn’t drink too much, he is or is not hearing voices, his memory was or was not recalled through hypnosis, he does or does have enough strength in his left hand to pull a trigger, etc.; or, (b) is it merely the opinion of a person who wasn’t there, such as an expert, saying that another can or can’t see, another was or wasn’t trying to deceive when answering certain questions, another was or wasn’t hallucinating at the time, etc.?
Regardless if it will ever see the inside of a courtroom, this type of evidence can generally be safely pushed upon a prosecutor as part of settlement (plea) negotiations under Evidence Rule 410, and thus not be later used against the client. If it might help, I suggest using it for this purpose.
(2) Evidence that makes it past the threshold of the courtroom door and might reach the eyes and ears of a jury is supposed to be the most reliable evidence available as to whether or not something in the past happened. Most of the evidence in the world never makes it this far, and what evidence does get this far depends upon who wants it—the party who wants the jury to hear the remaining evidence will argue that it is very reliable, and the party who doesn’t want the jury to even know about it will argue that, while it generally may be reliable, it is not reliable this time for any number of reasons (e.g., the chain of custody was bungled).
Blood and ballistic evidence fits this type of evidence, as does most physical evidence.