Friday, March 13, 2009

PRETRIAL VISIT TO THE SCENE

Really Understanding Your Case

This Tuesday evening, my Seattle University Law School Pretrial Advocacy class, Judge Dean Lum (my co-teacher) and I visited The Garage tavern in the Capitol Hill neighborhood. During the Pretrial Ad course, the law students work with cases growing out of a Saturday night shooting in The Garage tavern. The shooting led to both a criminal (murder charges) and a civil case (wrongful death).

The visit to the scene of the shooting is intended to get to know the students better in a social setting and to spice up the course with some practical, real world experience. Most of all, it is designed to drive home the point that a scene visit is a critical part of case development. No lawyer can completely understand the case without visiting the scene where the event took place. The visit gives the trial lawyer a grasp of distances, sight lines, ambient sounds, the look of objects and so on.

For the Pretrial Advocacy class, we use the Case File that comes with the Pretrial Advocacy: Planning, Analysis and Strategy book. The class assignment is to view a DVD, which comes with the Pretrial book, in which the prosecutor’s investigator leads a tour of the Garage. You can view a clip of that tour. When we meet at The Garage, the students are asked to explain what they learned by going to the scene that they could not learn by watching the video. The list includes things like learning how loud The Garage is in the evening hours when compared with the daytime tour on the video.

Three Other Teaching Points

Three other points are covered when discussing the scene visit with the students.

1. Sooner the Better - The visit should be scheduled for the earliest opportunity before any changes can be made. And, it should be at the same time of day as when the event occurred because the scene may change during the day, such being noisier and more crowded. Ideally, you would also visit the scene with a person who is familiar with what took place where and when.

2. Creating Trial Visuals - The scene is where you will get ideas for trial visuals to create. You can take photographs of the scene. You or your investigator can take photographs, measure so a to-scale diagram can be drawn, inspect the scene, make a video. All the time, you think about the witnesses who would identify and authenticate the exhibits at trial.

3. Jury Scene Visit - While you are at the scene, you will also be contemplating whether or not to ask the judge for a jury scene visit. At trial, you can request that the jury be taken to the scene. If the motion is granted, the jurors will be transported there and permitted to walk and inspect the scene. A jury visit could be helpful or harmful to the case theory. For example, where a defendant claims self-defense, asserting that he was frightened when the victim approached him in an alley, a trip to the secluded, dark alley crowded with drug addicts may give the jurors the sense of apprehension that the defendant felt as he was approached by the victim in that alley and lead to the conclusion the defendant did act in self-defense and should be found not guilty.

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