Thoughts On A Preliminary Hearing

I recently had the opportunity to do a preliminary hearing for a woman who was charged with obstruction of justice. The charge was dismissed with prejudice because the a local city with an infamously incompetent police force improperly charged her. I had several thoughts after this victory, ranging from how great my performance was, to how significant my mistakes were in spite of my victory.

I’ll go over what I felt I did right and wrong in the hopes that it will benefit some other attorney, or myself, at some point.

What Happened

A woman was charged with Obstruction of Justice, which is a fairly long statute. The situation was that a police officer came to her home to investigate a crime. Her son had some active warrants, but the police officer didn’t know that at the time. The officer had both the son and the woman outside, asking them questions about his investigation. He then asked her for her personal info. Then he asked the son. The son gave the officer incorrect information, and the woman said nothing. It is safe to assume that this woman knew, better than anyone else, her son’s birthday and name. She may have even known he had warrants. She stayed silent, however, when he gave his information. While the officer was clarifying the spelling of the son’s first name, she said in jest “did I spell it wrong?”

Before we proceed further, you should know that this woman was fairly old, born in the earlier half of the 20th century. She also has documented issues with her hearing. It is thus entirely possible that she failed to hear what was going on. Whether she heard is not important. The real question is if she had heard, was it wrong for her to have remained silent?

A Right To Remain Silent?

The good city of West Valley believed that silence in the face of lies when you know better is a punishable offense. The prosecutor, with a straight face, argued to the judge that her silence was enough to convict her of obstructing justice. Your first instinct may also be to condemn someone who remained silent when they knew someone was lying to a police officer. There’s nothing wrong with wanting to uphold the law.

But know, despite the identity of our current president, that we do not live in some draconian, inquisition where you are required to surrender information to law enforcement regardless of whether they ask you. Just as we have heard on numerous occasions on countless police officer programs: You have the right to remain silent. That means you do not need to speak to a police officer, even if they’re asking you a direct question (unless of course, it’s a question like “what’s your name”).

The Preliminary Hearing

In preparation for this hearing, I read through the police report and I watched the body cam footage the officer helpfully recorded. My conclusion at the end of reviewing this information was that I had absolutely no idea why this poor woman was being charged with a Class A Misdemeanor. I read the statute and I couldn’t see one provision in which she was even possibly guilty. I knew there was an attorney on the other side that had seen the same things I had. So how in the world did this prosecutor think it was OK to charge her with this crime?

During the hearing, the officer and prosecutor attempted to convince us that it was both of them who had provided false information. This rookie officer (at the time of the hearing, he had only been working as an officer for less than 2 years) embellished the story quite a bit. Upon cross examination, I led the officer carefully through his testimony to make sure that we correctly understood the events as the actually unfolded. When he didn’t remember, we watched his video to help jog his memory. When I was done, the officer specifically stated that he believed she was obstructing justice because she was remaining silent.

Shortly thereafter, I began my closing argument by pointing out that the city had charged my client with obstructing justice, but failed to make clear which provision of the statute they were charging her under. The judge interrupted me to voice a similar question. Quite uncharacteristically, the judge here asked the prosecutor to clarify on what grounds she was being charged.

Did I need to go on at that point? It was clear I had already won. Being the showman that I am, and full of rage that we were even here in the first place, I had to proceed. With all of the force I could muster, I attempted to convey my outrage and my legal acumen to cement in the judge’s mind that we had just wasted everyone’s time. Wasted is not the right word. This was an insult and an affront to our justice system. It should have never occurred. Just as seeing one mouse means 10 more you don’t see, this will not be the last time wee see officers expecting you to speak to them in contravention of your personal rights.

A Victory of Skill or Luck?

I have no doubt that I did an excellent job at cross-examining the police officer. I made sure to cover each possible avenue of prosecution and rule them out. I made sure that I gave the proper foundation before I introduced video taken by the police officer. I advised my client not to testify because I correctly recognized that it was not necessary to win. I gave a passionate closing argument that further cemented my position in the the judge’s mind.

But I also made mistakes. My victory high was short lived, for there was a very clear path for the prosecutor to win at this point. I had overlooked a very valid question. There was a question as to whether she had given the officer an incorrect first name. Of course, the actuality was that she had never spelled his name and after the officer had learned the truth of the son’s lie, she then attempted to spell the first name. But I did not explore that area in the police officer’s testimony, and I muddled the issue in the closing statements. Had the prosecutor been paying attention, she could have won by arguing that giving a misspelling of a first name was an attempt to delay the officer’s investigation. That may have been enough to charge her with obstruction of justice.

In other words, as much as I would like to believe I am a skilled attorney, I owe much of my victory to the mistakes of my opponent, and that her mistakes were greater than mine. Here are the lessons I learned from this experience.

1. Don’t talk more than you have to. The more you attempt to explain away something that isn’t clear, the bigger your holes become.

2. You cannot prepare for every avenue, so you need to make sure that you sell the avenues you do have to the best of your ability.

3. If you can make the court see the absurdity of the other side’s position, they will be eager to overlook the flaws in your arguments.

Let’s hope I’m better next time.

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