Objection! by Nancy Grace

Author:Nancy Grace [Grace, Nancy]
Language: eng
Format: epub
Published: 2011-07-02T13:00:05+00:00

O B J E C T I O N !

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A C O U R T R O O M

R E A L I T Y C H E C K

Everything about how a case is handled in the justice system is meant to ensure that the defendant gets a fair trial. It begins with striking the jury. In many jurisdictions, the state gets ten strikes (people they can dismiss for any reason) and the defense gets twenty. You never hear too much about the state trying to suppress the defense’s evidence. Most often it’s the defense trying to get search warrants and testimony thrown out of trial.

During trial, if the state makes a blunder, the case is reversed, but if the defense makes a mistake, the state has little recourse. A mistrial will hardly ever be granted because the prosecution has been harmed.

If the state does something objectionable, the defense can also ask for a mistrial with prejudice, which means that not only is there a mistrial and the case ends but the state is not allowed to retry the case. This is possible only if the state’s error is extreme—one example of this would be if evidence has been excluded pretrial but the state gets it in anyway. It’s rare, but it can happen.

Mistrials almost always work in the defense’s favor. The defense has gotten a chance to see the state’s playbook during the first trial and can now go on a fishing expedition with the state’s witnesses, who are locked into previous testimony for the retrial. All of this allows the defense to better tailor its case on the second go-round. The state has the burden, rightfully, to go first and give its best shot. Yet if there’s a mistrial during the state’s case, the jury never hears the defense’s case.

Sometimes the defense doesn’t make an opening statement at first but waits until the defense’s case, after the state has rested. The reason for this strategy is a simple one: The attorneys want to tailor their defense to what the state puts up. Which to me means they don’t know what their defense is going to be at the beginning of the trial—which also means to me that their guy is guilty. If you don’t know what your 1 6 8

N A N C Y G R A C E

defense is—“I was not at the scene of the bank robbery. I was at home watching Murder, She Wrote”—why do you have to wait to give your alibi, unless you’re fabricating something? It’s just common sense. Here’s one example of how an entire defense can be tailored to fit the state’s case. The state will put up its case—the jury (and the defense) will hear that the eyewitness has a cataract or wears bifocals or that the light fix-ture wasn’t working in front of the bank the night of the robbery—and suddenly the defense will be saying, “He’s not a credible eyewitness. You can’t possibly convict on the word of this person.

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