Chapter 15 Trial Presentation

• Library: How to Try a Murder Case: Pretrial and Trial Guidelines for Prosecution and Defense (ABA) (2011 Ed.)

CHAPTER 15 Trial Presentation

Murder trials may last longer, receive more publicity, and involve more witnesses than other criminal trials. Trial presentation practices should, however, remain much the same as in any other criminal trial. There are still a few diverse subjects that deserve discussion.

Forensic Pathology

A pathologist is a physician who may have a special knowledge of the causes of death. A forensic pathologist has additional training in relating those issues to the law. The forensic pathologists who work for a jurisdiction, such as a state, are often called medical examiners, though the terminology will vary from one jurisdiction to another. Less often, the office of the medical examiner is called a coroner's office.¹ However, in many jurisdictions there are coroners who are elected officials and not physicians. On the other hand, typically (but not always) medical examiners are forensic pathologists.

Forensic pathologists can participate in determining cause of death, examine injuries due to crime or negligence, and examine tissue specimens that may be relevant to crimes such as rape. Medical examiners conduct autopsies on behalf of the government and frequently testify in court as to causes of death. The causes of death in most jurisdictions fall into five categories: homicide, accidental, natural, suicide, and undetermined.² Forensic pathologists can often opine on related issues such as time of death, whether the body was moved prior to discovery by the authorities, which injuries occurred first, whether injuries were premortem or postmortem, and the type of weapon used.

Medical examiners' offices usually employ investigators to assist in collecting evidence for the office.³ These investigators may or may not be certified by the American Board of Medicolegal Death Investigators.

Dangerous Weapons

Here is a simple principle: Handle dangerous weapons, such as firearms, as though they were dangerous. Why is this? If you are the prosecutor, you want the jury to understand that this really is a dangerous weapon; it can and did kill. If you are the defense counsel, you don't want to be viewed as flippant, nor do you want the judge snarling at you for not observing safety precautions. You might also have people on the jury who own firearms and are respectful of weapons. They will be aghast at seeing a firearm handled improperly.⁴

Prosecutors can ask the law enforcement officer who authenticates the weapon to examine it to ensure it has been rendered safe. Even though this has been done before trial, one might ask again in the courtroom for this reassurance. The officer could testify that there is a trigger lock on the weapon or that a cable has been locked through the barrel, for example. This testimony emphasizes the dangerous nature of a firearm. Of course, if you intend on handling the weapon, never point the weapon at anyone. You might even consider not handling the weapon at all, instead asking the firearms witness to point to particular parts of the weapons or show how a particular mechanism works.

If the caliber of ammunition is an issue, consider having a firearms expert prepare an exhibit showing different calibers. If a weapon has been disposed of, but the make and model is known, then prosecutors should consider obtaining another weapon of the same make and model for use as an exhibit in court.

Counsel should familiarize themselves with weapons, particularly firearms. Know the difference between a revolver and a semiautomatic pistol. Know the difference between a shotgun and a rifle. Know how many rounds of ammunition the magazine holds. Know which weapons are called "rifles" and which are called "guns." These terms are not synonymous. There may be one or more jurors who know the difference, so an attorney who uses these terms improperly will lose credibility. Any firearms expert, including...