How We Assist the Falsely Accused at Trial
Provided by Allen N. Cowling
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:
- Preparing jury voir dire questions specific to individual
cases.
- 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 .
- 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.
- 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.
- Assisting the defense attorney with questions for specific
witnesses either in direct or cross examination.
- 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 to 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.
- 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.
- 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.
- 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.
- 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.
- 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.
- 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.
- 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.
- 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.
- 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.
- Assisting the defense attorney in any manner they may need in
addition to what has been discussed.
- 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.
- 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.
You have accessed one of the many pages here at the
Cowling Investigations, Inc., a False Allegation Defense Website. For an explanation of how we assist
our clients who have been falsely accused, see How I Assist the Falsely Accused. If you have
been falsely accused, see What to Do - What Not to Do When Falsely Accused.
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