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Laying Foundation in Trial: A Cute Story About Trial Work

Bullcoming’s talk about the Gas Chromatograph Spectrometer reminded me of one of my favorite trials and how lawyers have to lay the foundation in trials.

It was a three co-defendant case.  The police came to serve a search warrant on an old family property deep in a valley.  Like most warrants, they came on the property at dawn and busted in the main house.  My defendant and his wife came out of a small lean-to that looked thrown together.  Inside the lean-to was a denim pencil case. Inside the pencil case was some drugs.  They cooperated with the police in every way.  He was a 56-year-old local Portuguese gentleman who had lived the last few years in the back of his truck.  White hair, craggy skin, and hands that have worked on so many engines that they are permanently stained with oil.

When we got to the Drug Expert, in this case, she was an attractive local Japanese-Hawaiian. Maybe mid to late-20s. The Prosecutor laid the foundation like a foundation should be laid in trial, methodically.  Step by step he built up the credibility of the Drug Expert, the infallibility of her procedures, and the reliability of her results.  The next attorney up attacked the foundation of the Drug Expert but she was prepared.  She had answered these questions more than once, she had trained how to answer these questions, and the jury was loving her.  She had done everything right in their eyes.  The testimony using unpronounceable words had become monotonous.  Not monotonous like the jury would tune out and miss evidence, monotonous like the jury would tune out and assume she gave all the evidence she needed to.

And I was up next, time to throw a curveball.

I changed topics from the Drug Testing itself to the larger procedures of how things get tested.

  • Who orders the tests.
  • How these tests get requested.
  • Where the items go to get tested.
  • Could the pencil case could have been tested for different types of evidence.
  • To the best of your knowledge, was this pencil case tested for ANY type of evidence?

Then I switched tack. Time for the curveball.

  • I want you to look at this pencil case.
  • Is there a drawing or a marking on it?
  • Oh, it’s embroidery.
  • And are you familiar with this character on the embroidery?
  • Is this a character that you have seen before.

The purpose is to make the witness only answer “yes” to questions.  This is called a “yes ladder”.  A skilled attorney can make a witness climb a yes ladder until he admits to just about anything.  In practice, I’ve had witnesses admit to crimes I know they hadn’t done, just because they feel the pressure to say yes.  I was catching objections now, for relevance, but the questions were foundational and I think the judge wanted to know what I was doing.  Curiosity killed the cat, so to speak.

  • So you saw this character as a kid?
  • Did you own items featuring this character?
  • Your friends owned items featuring this character?
  • You bought or had your friends or family buy items featuring this character on it.
  • You saw ads or posters featuring this character when you were growing up.
  • And in your life you’ve experienced, owning, buying, seeing, or talking about this character, right?

This whole time, the Drug Expert was looking at the pencil case, but the jury had yet to see the case itself.  The proper foundation had been laid and it had been admitted into evidence, but in order to save time the Prosecutor had not “published” it (meaning shown it) before the jury, so when I asked the judge permission to publish the pencil case to the jury, it was the first time the jury got a chance to see which cute, familiar character I was talking about.  I held the pencil case in my hand, smiling, as I showed the jury.   I confirmed with the Drug Expert my next question:

  • And this character is known to you as “Hello Kitty”? Yes.

As the jury smiled at me, happy I stopped talking about the incessant drug testing issues, I balanced the pencil case on the beam in front of the jury box where they all could see.  I moved around the courtroom and stood behind my Defendant, put my hands on his shoulders, and asked the money question in my loudest accusatory courtroom voice:

  • Isn’t it true, based on your training and experience, including your life experience, that “Hello Kitty” is not marketed to 56-year-old Portuguese males!!!

The court broke out in laughter so loud, the prosecutor was laughing as he objected.  The judge was laughing as she sustained, and I was grinning ear-to-ear as I withdrew my question.  On this, the most solemn of occasions, the 12 stone faces in the jury box fell out of their chairs laughing their fool heads off.

This wasn’t the type of man who had a Hello Kitty pencil case, let alone use it to hold his drugs.  Unless he had a very well-developed ironic sense of humor, or he was a criminal mastermind (who remained homeless), that simply wasn’t his pencil case.

Not his pencil case, not his drugs.

Although I hear Sanrio is making in-roads in the Middle-Aged Mililani Portuguese community!