How a defense attorney with prosecutorial experience makes a difference

Part of the advantage of being a criminal defense attorney with experience as a prosecutor is viewing the State's case through a different lens. Instead of only trying to identify the holes in the government's case from the defense side, I consider how I would prove the case if I was the prosecutor - what I view as the best path to reach "beyond a reasonable doubt" - and then analyze the State's witness list, exhibits, and other discovery to discern what strategy the State actually intends to use to prove its case.

It also helps to have knowledge of standard police procedures and the ways they go about investigating issues that fall outside their common training and experience.

This all came to great advantage in a recent jury trial where I represented a client charged with illegally possessing a prescription drug. I knew that if I was the prosecutor, my strategy would include testimony of the investigating officers, putting the drugs into evidence, and testimony about and introducing lab results to prove that the drug was what the State claimed it to be. But the State let it be known they only intended to call a single officer to testify and had not disclosed any lab results in discovery.

I knew that the State was going to rely on that officer to prove what the drug was. But I also knew that the pill bottle was labeled as one drug and my client was charged with possessing a different drug. And from my time as a prosecutor, I know that officers routinely use a website or a phone app to identify drugs by inputing information about the shape and color of, and markings on, individual pills.

So as the officer testified, I patiently waited for the moment that I knew was coming: testimony that amounted to hearsay and was inadmissible. Sure enough, the officer testified that he found a pill bottle in my client's bag and that the label said "Drug X," but that he later learned it was not "Drug X."

"Judge, I'd like to ask a couple foundational questions, if I may."

So I asked the officer how he learned that it was not "Drug X." He stated that based on the shape, color, and markings, he was able to put information about the pills into an app on his department-issued phone and retrieve information that let him know the pills were not "Drug X." He also stated that the same method was used to identify what the pills actually were.

I objected to his previous statement that the pills were not "Drug X" on the basis that the information he relayed to the jury was hearsay. He had only come to know that the pills were not "Drug X" because of the third-party information he gained from the app. And for the same reason, I objected to what was coming next - his identification that the pills were what my client was charged with possessing.

The Court sustained my objections, struck his statements from the record, and, after the State rested, granted a motion for directed verdict, which resulted in my client's acquittal!

If you are in need of a criminal defense attorney, call Ahler and Robbins today and learn how our experience can work for you.