Attorney Question of the Month
This month, we explore an interesting question with several affiliated attorneys in hopes of better understanding the challenges attorneys face when arguing a self-defense case at trial. Upon the suggestion of one of our Affiliated attorneys, we asked–
How many of our affiliated attorneys have been involved in self-defense cases where they have made motions to the court for a jury visit to the crime scene? What issues were they attempting to resolve with the visit? What sort of success did they have with the court in getting the motion granted? What limitations were they confronted with during the visit?
Kevin E.J. Regan
The Regan Law Firm, L.L.C.
1821 Wyandotte St., Ste. 200, Kansas City, MO 64108
A Motion for a Jury View in certain cases is a brilliant, yet unusual, piece of trial strategy.
In a self-defense type of case, under the right circumstances, you might be able to let the jury feel the fear and intimidation in a certain environment that your client, as a criminal defendant, may have faced at the time he/she was forced to us self-defense.
Here in Missouri, we call such a motion a Motion for a Jury View.
Many years ago, I volunteered to help a young man who was charged with Murder in the 2nd Degree. He was a U.S. Army veteran. He was on duty at an inner city gas station when he faced an individual who had been troublesome in the past. The individual had been known to carry a gun by certain individuals in the neighborhood.
On the night in question, the individual came on the premises, stole some merchandise and walked away. He grabbed inside his jacket and turned toward the gas station employee. The employee, believing that the individual was pulling a gun, drew a pistol and fired one shot. Unfortunately, the individual was struck by the lone shot and died.
No gun was found on the individual by police. However, numerous individuals had gotten close to the individual before police arrived and the opportunity existed for the weapon to be taken from him.
The neighborhood was one of the highest crime-riddled portions of the community, where gunshots at night were a frequent occurrence and bars covered the windows of most homes. Violent crime was rampant in the neighborhood and the station had been robbed numerous times recently.
I wanted the jury to feel the atmosphere of fear and intimidation that workers in that neighborhood felt on a nightly basis. I filed a Motion for a Jury View and the Court granted my Motion.
We had a sequestered jury.
Under color of darkness, the sequestered jury was brought to the gas station scene by bus and allowed to observe the gas station, the positions of the shooter and the individual who was shot, as well as the lighting conditions.
A Court Reporter accompanied the jury to record the proceedings. A very strict format was followed and no questions were allowed and no notes were allowed to be taken by the jurors. As I recall, the judge accompanied all involved to the scene.
Security was provided for the jury due to the high crime nature of the location. While at the scene, people from the neighborhood shouted threats at the jury and a bottle was thrown towards us by a passerby.
The particular judge in our case was known to be adventuresome, creative and progressive. He was a big fan of demonstrative evidence and a great trial judge.
I believe this type of view, when appropriate, could be a very valuable asset to your case in certain matters involving self defense. However, one should expect the Court to weigh factors such as cost, security for the jury, possibility of outside influence and the potential for the probative value of the visit being outweighed by the prejudicial nature of the visit to one party or the other.
Kelly & Chapman
PO Box 168, Portland, ME 04101
I have not done this. That said, one thing that is true about the process of crime scene processing is that it is "inherently destructive." After the crime lab gets done, all the fine bits will have been photographed, sifted and piled up in a heap.
Indeed, the new imaging tech may make the need for a “view” archaic. Multiple computer driven cameras taking thousands of images make a collage that allows one to "fly through" the scene, even looking behind and over things. That should be the first order of business to obtain in discovery.
John I. Harris III
501 Union Street, 7th Floor
PO Box 190676, Nashville, TN 37219
I have had one case where we were unable to resolve the matter prior to the necessity of a trial. In that case, I represented the owner of an armed security agency who shot someone while on duty and under attack. We could not negotiate a solution to the case that would have allowed the owner to keep the security company due to licensure qualification issues.
In that case, we considered requesting that the jury be taken to the location since the attacker had jumped from a second story balcony and charged across the property despite warnings to stop by the armed and uniformed security officer. In reviewing the issue we determined that the cost and delay of a jury view was not only unnecessary but perhaps even a risk that we wanted to avoid. Part of the reason for this is that the security officer had called 911 when he arrived on scene to request that a patrol car be dispatched and he had the training to remain on the phone with 911 until the officers arrived. Although they did not get there in time, the 911 audio record documented without dispute my client’s statements, observations and repeated warnings to stop.
Another consideration was that the law enforcement photographs were adequate to show only the aspects of the scene that we wanted the jury to see. Further, we already knew that what was written in the reports was good for us even if the investigating detective was inexperienced and decided to bring the assault charges despite the evidence.
Finally, since we already had a firm box around the evidence that the jury would see of the scene, we did not want to take them out there and show them the location which would give them a chance to see the scene after it had been fixed up, in daylight (the shooting was at night) or to be distracted with other issues like how easy it might have been for the security officer to run away or seek shelter among the cars in the parking lot. We did not want the jury speculating on anything but preferred to totally control the information that they received in that case.
Now, this is not to say that this would be our approach in each case – it was just our decision based on the facts of that case.
A big “Thank you!” to each Network Affiliated Attorney contributing to this interesting discussion. Please return next month when we’ll have a new question to ask our Network Affiliated Attorneys.
To read more of this month's journal, please click here.