How we Assist the Falsely Accused at
Trial
Allen Cowling
Cowling Investigations, Inc.
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What I do at trial depends entirely on the defense
attorney that I am working with, but my overall goal is to assist in any
manner I can to take as much pressure as possible off the attorney so they
can concentrate on defending the client. What I have done in prior trials
consists of:
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Preparing jury voir dire questions specific to
individual cases.
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Observing the jury panel during voir dire for
reactions and then assisting the defense attorney in weeding out problematic
individuals. I have found it relatively easy to identify potentially problematic
jurors based on their reactions to the questions asked during voir dire
.
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Preparing questions specific to experts who will
testify for the defense and using those questions as a means of controlling
testimony and assuring that important points and aspects get across to the
jury.
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Preparing experts as needed by discussing their
testimony and the important points the defense needs to get across to the
jury. In some cases, the attorney wants to do this themselves, in some, the
attorney wants me there as the expert is prepared and in some cases, the
attorney has simply instructed me to prepare the witness.
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Assisting the defense attorney with questions
for specific witnesses either in direct or cross examination.
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Assisting the defense attorney with testimony
as it comes in. In cases where I do assist at trial, I make detailed notes
as testimony takes place. There have been numerous occasions where I have
seen things that needed to be addressed with a specific witness that the
defense attorney missed. That is not because the attorney is unprepared or
unintelligent. The attorney is under a great deal of pressure when questioning
a witness and many times they may miss something. I have worked with attorneys
who would look at me before finishing with a witness. If I had something,
I would nod. The attorney would ask the Court for a moment, pick up my the
note and then determine whether it is something they wanted to pursue or
not. In one particular case, the defense attorney was attempting to have
an expert on the witness stand refer to and read a certain paragraph in their
report. The prosecution objected and continued to do so on the four occasions
the attorney attempted to reword his request but, instead of simply moving
on to something else, he glanced at me. I nodded and he picked up my note
advising him that the prosecutor had actually opened the door themselves
earlier, something that he had not heard or that he had simply missed. He
asked the doctor again the read the paragraph and again the prosecutor objected,
but the argument that time allowed the testimony. Again, that attorney was
far from stupid and had simply missed something that could happen to anyone.
What a pleasure it was working with him. He had no ego and was interested
only in proving his client's innocence. In another case, the prosecutor had
our client on the witness stand admit that he had a website with pictures
of his daughter. On re-direct, I wanted the defense attorney to have the
client explain his website and what kind of pictures he had of his daughter.
In that case, the attorney was simply doing his thing, not asking me for
anything and I was unable to even get his attention. It would have been a
very simple issue that was not covered and it ended up causing problems.
When the jury was deliberating, one member was concerned that the pictures
on the client's website might be pornographic. They were not, but that was
a perfect example of how testimony that is not made clear can cause an adverse
reaction.
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I carefully study the jury as the State and defense's
case comes in for problematic issues. It is easy to tell if the jury is paying
attention to witnesses and what impresses them and what does not.
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Assisting with upcoming witness questions based
on previous testimony from other witnesses. Some witnesses make points that
need to be clarified or dealt with in other witnesses and, on occasion an
attorney may not recall the exact words from a prior witness.
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Scheduling witnesses as necessary. Many times,
experts need to be scheduled and that schedule can quickly change as the
trial unfolds. The attorney usually does not have the time to worry with
that aspect of the case, but it can be critical because many experts, who
are required to sit for hours, waiting to testify, feel they are being abused.
I have had cases where out-of-state experts felt like their time was being
abused by the defense attorney and one even refused to testify until I literally
begged them. Again, the defense attorney has enough pressure without having
to worry about this aspect.
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Preparing the client to testify. I have had a
great deal of experience preparing my clients to testify. I know my client,
their personality, what they are apt to say or not say under pressure and
what problematic issues there might be, if any.
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Working with the client as to courtroom procedures.
I prepare the client by explaining exactly what happens during trial so potential
surprises do not unnerve and upset them.
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Working with the client as to their courtroom
demeanor. I work with my client as to the manner they need to conduct themselves
during trial. This includes their dress and how they interact with the
jury.
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Assisting in trial strategy as needed and as
issues develop. Strategy can change quickly during trial, and attorneys I
have worked closely with discuss various strategy changes as the trial
progresses. For example, the entire defense strategy could change drastically
after the testimony of the accuser is completed.
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Prepare diagrams used in the defense closing
arguments. Many times, we have prepared blow-up diagrams for the defense
attorney to use either while questioning an expert, or during closing arguments,
something that can have a drastic affect on the jury.
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Working with the client and their family as trial
progresses. Trial can be a very unnerving experience for the client and that
family and friends. On many occasions, a client will want to keep the attorney
at that end of a day and discuss every aspect and detail of what happened
that day. The defense attorney has many cases. They have been in trial all
day and usually they need to go back to their office and return phone calls
to other clients. I work with the client and their family to take that pressure
off the attorney.
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Assisting the defense attorney in any manner
they may need in addition to what has been discussed.
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Some attorneys I have assisted requested that
I sit at the defense table with them during trial. My preference would be
sitting in the audience, for several reasons. I can clearly see the entire
jury and their reactions, keep my eye on the client, the prosecutor, the
judge and the individuals sitting in the audience. That vantage point allows
me the best view of everyone and still allows me to keep precise trial notes
and pass information to the attorney as needed, but where I am situated is
the attorney's choice.
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Make no mistake, the attorney runs the show.
I am not there to tell them what to do or how to do it. I am simply there
to assist them in any manner that I can, but my overall objective in any
case or during any trial is to protect my client's best interest. On occasion,
a client may have an attorney that does not want any outside assistance or
participation. Usually those are attorneys who have put very little, or no
effort, into their client's defense. They are basically winging it as they
go and relying on their reputation and courtroom presence to win. Not the
best approach when someone's life is hanging in the balance. The last thing
that attorney will want is someone looking over their shoulder but, as I
said, my main objective is to protect my client so, in the event of a conviction,
I want to know what happened and why.
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