20 July 2006

Making A Record.

A good factual presentation in a trial court can turn a difficult appeal into a clear cut case. The 10th Circuit's search and seizure case of United States v. Carrizales-Toledo is an excellent example of a prosecutor presenting testimony that overcomes any objections on appeal. By the time the recital of facts from the record is done on page seven of the opinion, the outcome is a foregone conclusion. The facts brought out are the kind of facts that are present in most search and seizure cases, but few prosecutors are sharp enough, and pay enough attention to the details, to articulate them in a manner that turns a mere hunch into probable cause with a solid factual basis.

Details like the fact that the officer patrolled the area for four years (which in turn makes the fact that he doesn't recognize the vehicle stopped relevant), that a similar bust had been made a week earlier, like a conversation with a local resident about who they knew was behind them on the road, and an exceedingly detailed account of the step by step process by which the bust was carried out (with nuances like the officer smelling marijuana before the suspect said anything, and removing a gun from a holster, but not pointing it at the suspect), made the case easy.

Maybe the statements weren't true. They are almost too good to be true. But, getting that kind of direct examination into a trial transcript, in a way that sounds entirely plausible and even a little funny, is a fine art.

The law in question, concerning confessions obtained after a Miranda warning based on statements made before such a warning, is hopelessly muddy and presented a reviewing court with an opportunity to set aside the conviction. But, because the officer's direct exam was so convincing and was credited by the trial court, it didn't happen. The appellate court, somehow, found its way through the morass, even though it didn't agree with the trial judge's legal reasoning, and affirmed the trial court's decision not to suppress the defendant's incriminating statements.

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