Thursday, September 14, 2006

Magic Phrases, Trial Ad, and the KFC Robber

Greetings and welcome back to The Un-Zone, the only site that I know of on the World Wide Web devoted to all things related to Un. Yes, this is the original and only site when it comes to things related to Un. You don't accept cheap and poor knock-off imitations when it comes to other things in life, so why not when it comes to the websites you see?

I just came back from Trial Ad small section. I played the role of two witnesses--an investigator and a college professor. It wasn't too bad, though there were a bunch of facts and names to remember. I also got a really weird problem that threw me for a loop. It involved an armed robbery where my witness got robbed at gunpoint. On the surface, it seems like a simple problem of getting a gun entered into evidence. Not so with this problem. Then again, I could have received the case where you couldn't get the exhibit in no matter how hard you tried. Yes, a trick fact pattern.
In general, if you are prosecuting such a case, you do a direct examination of the witness first and then you do a direct examination of the police officer who evenually nabs the crook. During the examination of the police officer, you enter the gun into evidence once you lay down the foundation. By foundation, it means asking questions that establish three things:
1. Qualifying witness is competent (first hand knowledge)
2. Exhibit must be relevant and reliable (related to the case and can be trusted)
3. Exhibit must be authenticated (it's what you say it is)
Depending on the object, you can ask the right questions in the right order to get the stuff in. They've got nice patterns where you just replace "exhibit" with things like "gun," "picture," and so forth. (Sorry about all of this legal jargon that I'm using, but it's necessary. You can always impress people with your legal knowledge at this point.)
Well, to make a long explanation short, this fact pattern is well messed up because it's a Trial Advocacy problem. All academic testing with little to do with how things are done in the real world. Pure fantasy to test your knowledge of evidence and how to get exhibits in. This is quite common in law school.
Anyways, my examination is going pretty well. I'm breezing through without any notes and maintaining eye contact and all that other good stuff. I have a few problems articulating certain things, but all in all, it's all good.
Then comes the problem of coming up with an argument on why the gun should be entered into evidence. Problem.
I had the correct answer somewhere in my head. I know because I had been musing about why anyone would do an examination as the problem book had and how would I counter any objections. Someone had offhandedly given me the real-world answer and the magic phrases to use. A powerful WMD to nuke eivdentiary objections into nothingness and make me supreme ruler.
Right at the tip of my tongue and I forget them. So I come up with what I think is brilliant stuff, but the Trial Advocacy adjunct, a seasoned federal attorney, stops and explains what I should have said. The resulting lecture is very informative and she reminds everyone of the magic words I should have said. Apparently, one of the cases she tried is connected to this problem. As a Fed prosecutor, she tried the infamous KFC Robber Case, where the defendant armed with a gun robbed Kentucky Fried Chicken restaurants. The witnesses only could describe the gun as "a black gun" which later turned out to be a Glock. What were the lessons learned from this pertinent case:
1. The chain of custody relates to the weight of evidence and not the admission of evidence.
2. The magical phrase is "probative of identity" which is why she could enter the Glock the police found into evidence when witnesses could not say that it was exactly the same gun, but "similar to" the exhibit.
After that, I end pretty well. The shield of invincibility got dented, but I manage to pull one out. Next time, I should try to explain things in my language and not like a freaking rule book. After all, textbooks and statutes make for tedious and lousy reading material.
It's now time to read up on the next case I am doing a direct. I need to cover my bases a lot better. That and writing an article for the September issue of the Brief-Brief.

That's all for now.

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