Yet another legal question

Do investigators have a legal obligation to remain impartial in an investigation, and should they fail to do so…can the defense make a case for dismissal?

EX: From the first episode of “Forensics, You Decide”.

Investigators and forensics ‘experts’ maintain during a suicide/or murder that the blood spray couldn’t have reached the defendant at 6 feet, the dead man has no powder burns on his hands, and it would be nearly impossible for a man to shoot himself in the back of the head with a Desert Eagle.

At NO time during the program did the question of whether or not the defendant had powder on his hands and at no time did the question of fingerprints on the weapon come up. So for the purposes of my question, let’s assume the following:

The investigators flat out did not check the for fingerprints nor did they test the defendants hand for powder. Can the defense claim the investigators deliberately were looking for a murder, not a suicide and once the investigators felt they had a strong enough case…they ‘declined’ to do any more testing. Can the defense at that point move for dismissal?
FTR, it took the jury about 3 hours to find the defendant innocent once the defense brought in their own experts to say, “You can easily shoot yourself in the back of your head, by…wait for it…turning your head.” And, “It’s a Desert Eagle, are you crazy! Blood can spray up to six feet and well beyond.”


The defense is unlikely in the extreme to win a motion for dismissal on those grounds. The jury is the finder of fact. The objections you raise can certainly be argued by the defense as a reason that the evidence presented should be distrusted, but there’s nothing that makes such evidence completely inadmissible. And as long as the evidence is admissible, the jury is permitted to consider it, and if it is legally sufficient to support a finding of guilt, the defense cannot simply dismiss the case.

I have another question:

Can and does the defense before the trial starts proper inform the jury not to go in with a completely unbiased and neutral position. Rather, they are legally required to go in believing the defendant is absolutely innocent and it is up to the prosecution to change your mind.

“Look at it like a gauge. Innocent on one side and guilty beyond a reasonable doubt on the other. You do not start off in the middle. You start off on the side of innocence”

I ask because it’s one thing to say “Innocent until proven guilty”, but I would think the defense wants to make sure the jury doesn’t see themselves as some sort of utterly neutral arbitrator.

Yes…sorta. But the actual place for that conversation to happen is at the conclusion of the trial’s evidence phase.

The first chance the defense (and the prosecution) get to talk to the jurors is during juror questioning (“voir dire”). While neither side is supposed to instruct the jurors on the law, asking questions with that as a predicate is not uncommon. (“Mr. Johnson, do you agree that as he sits here in front of you, right now, since you haven’t heard any evidence whatsoever, the defendant is innocent?”) Unfortunately, while a definite “No,” is certainly grounds to remove a prospective juror for cause, a juror who is merely uncertain about the truth of that proposition can be “rehabilitated” by further questions from the judge or even the prosecutor. If he ultimately agrees, then the defense has to either accept him or use a preemptory challenge to bounce him.

The defense’s opening statement is also a chance to talk to the jury. Technically, this statement is supposed to lay out the evidence that you’ll present, though, and should not include commentary on the burden of proof.

At the conclusion of evidence, each side can present closing argument. It is at this time that the most correct and opportune moment exists – you may argue to the jury that they should not have started with an unbiased and neutral position, but rather a belief that the accused was absolutely innocent, and then go on to explain why the prosecution’s evidence, whatever it was, did not rise to the level of “guilt beyond a reasonable doubt.” You can do that by claiming your guy is in fact utterly innocent, as pure as the driven snow, or by admitting that while the evidence might create some doubt in the jury’s mind, it is just that: doubt, reasonable doubt, and therefore they should acquit. Of course, the prosecution gets a turn to explain why that same evidence is clear and completely dispositive and they should convict.

Finally, the judge delivers his instructions as to each element of the law, and those instructions, too, will remind the jury about the allocation of the burden of proof.

Speaking of Voir Dire:

As a firm believer in Jury Nullification (yes, I know, you hate me), the 1 time I was witness to jury selection in a criminal case, I cannot remember either side approaching the subject. Admittedly, this was a misdemeanor assault case, not one where Nullification was a huge risk.

Is it approached, or do you hope to trip up such a person on another topic without mentioning the topic and potentially giving other jurors ideas?

It’s not proper to directly argue nullification. As a defense lawyer, my outcome would be helped more often than it was hurt – a jury can certainly “nullify” by convicting even in the absence of sufficient evidence, but in those cases I generally have a judge to correct the problem.

So nullification is more of an issue for the prosecution.

When it’s a danger – and let’s face it, armed robbery doesn’t usually generate a sympathetic fact pattern of a sympathetic defendant – prosecutors generally ask prospective jurors something along the lines of, “Can you put aside your own feelings and follow the judge’s instructions about what the law should be?” There’s also typically a jury questionnaire or verbal questioning about groups the juror belongs to, etc., in an effort to separate a contributor to NORML from a marijuana possession case.

In this 2009 Mailbag article on jury nullification, I mention the case of Laura Kriho:

I would add to what Bricker said that there is a tremendous potential for confusion and, as a result, issues on appeal if a lawyer gets too cute in instructing the jury on what their role is, so for the most part it’s left up to the judge to do the heavy lifting and the attorneys will sort of emphasize certain parts of the court’s instructions.

If I were a prosecutor and a defense attorney started in on the jury and said anything remotely suggestive of the idea that they should not be “completely unbiased and neutral,” I’d be asking for a little conference with the judge lickety split, because, frankly (and even though I know what you mean by it), I see a reasonable interpretation of that statement that results in a total misunderstanding of the law, and I believe that there’s a very good chance that the jury would be confused by it. I would say, Your Honor he just told the jury, in so many words, that they should be biased against the state. I would feel entitled to a subsequent instruction that, in terms of what to believe, the jury is obligated to be “utterly neutral,” and go only where the evidence leads them, and that by all means they should only convict if, once they’ve done that, they find there’s no reasonable doubt about the defendant’s guilt. But that’s already what it says in the exceedingly dry and painstaking standard jury instructions that the judge would be delivering.

As Bricker mentioned, peremptory challenges exist for situations where a particular juror seems to have other ideas about what the law means than what the law intends to mean, so there’s an opportunity to suss out whether there’s a preexisting bias and just get rid of them. But when the jury’s already heard the evidence and is getting instructed on what to do with that evidence, that’s not a great time to start arguing shades of meaning about what “neutrality” means, because that’s the whole jury, and an entire trial, up in smoke if some kind of misleading instruction gets in over an objection and subsequently successfully appealed.

The bit with the gauge, though, absolutely. Every defense attorney, if he’s any good at least, has his own standard device he uses to hammer home just how high a hurdle “reasonable doubt” is for the prosecution to clear.

As to the first question, it’s not directly on point, but the prosecutor does have to disclose any exculpatory evidence to the defense. When I worked at a D.A.'s office, our policy was simply to turn over everything, except notes and such that outlined our strategy. So the investigators don’t have to follow exculpatory leads or eliminate theories which might show innocence, but the fact that they didn’t would be available to the defense.

The case I had in mind was a Federal case against a man who grew large quantities of marijuana. This was in CA circa 2005 (Bush).
As I said - Federal case in a State with legal marijuana. What the jury was not allowed to hear was that the defendant was raising said crops with a license from the State for the State’s Medical Marijuana Program (Prop. 215).
Outside the court, a reporter asked a juror about her guilty vote, then informed her of his status under CA law. She was pissed and stated she would have never voted to convict had she known.

Under what theory was the Defense prohibited to inform the jury of this rather salient fact?
Yeah, it just might prejudice the jury - facts often do.

Not every fact is admissible. It’s a fact that the Alpha Centauri system is the closest star system to our solar system. But this fact is not admissible in a trial about possession of marijuana. At the risk of sounding Socratic, I’ll ask you why you think this is so.

And because a conversation with quick back and forth answers is hard to sustain on a message board, I’ll assume I know your answer: the distance to Alpha Centauri has no bearing on the facts at issue in the case. Evidence which is not relevant is not admissible. Evidence is relevant if it has any tendency to make the existence of any fact that is of consequence to the determination of the action at hand more probable or less probable than it would be without the evidence.

So: I don’t know what the precise charge was, but let’s imagine that the government had to prove that the accused, on or about the dates alleged in the indictment:

[li]Possessed marijuana, either actually or constructively;[/li][li]Did so with a specific intent to distribute the marijuana over which he had actual or constructive possession; and[/li][li]Did so knowingly and intentionally[/li][/ul]

Those three elements (we’ll pretend) constitute the federal crime of possession of marijuana with intent to distribute.

How does knowing the marijuana was being handled under a license from the state make it easier to determine the truth of those elements?

A defense attorney can file any motion he wants (here is one of my favorites), but a motion to dismiss because the investigators weren’t impartial would never fly. The things you’re describing - fingerprints, residue, etc. are jury issues.

As far as cops being impartial, I’d say that would be an exception rather than the rule. Once they’ve made an arrest, most cops figure making it stick is part of their job - IOW, they’re part of the prosecutor’s team.

If you could get a case dismissed because the cops were not impartial, no one would ever go to jail.

Does the concept of “Good Samaritan” still exist? He was simultaneously violating one set of laws while actually assisting others in need - remember, this is defined under California law as medicine.
If, to help another, he, of necessity, violates a law, can he not be excused under “Good Samaritan”? Yeah, there’s that pesky compensation problem, but some way the “Greater Good”/Necessity argument should be allowed.
Even if the argument(s) might not work, I should be able to present it; to present it, I would need to introduce his status under the provisions of Prop 215.
Cat is now out of bag,