After being elected by our legislature to be a judge, I began my formal training that was provided by the Administrative Office of the Courts. While I had been a substitute judge for six years, I still had a lot to learn. The training included me holding a mock trial with a seasoned judge watching and critiquing my rulings; learning about all of the types of evidence and when each was or was not admissible; and understanding the value of watching the witnesses including their body language in helping to evaluate the truth of what they were saying.
As I was hearing my first case as a substitute judge, before I had any on the bench training, I came to realize that I was expecting the lawyers to present their case and cross examine witnesses the way that I would have presented my case or cross-examined witnesses. They did not. As a result, I realized that I was missing much of the evidence that I was called upon to use in deciding the case.
It was a preliminary hearing for a felony shoplifting case, which required that the Commonwealth Attorney establish proof by a preponderance of the evidence rather than beyond a reasonable doubt, which is the requirement at trial. As I realized that I needed to listen differently, I also realized that the proof of the value of the item stolen had not been made.
Because the value of the property was critical in either sending the case to the Circuit Court or keeping it in District Court as a misdemeanor, there was a requirement that the Commonwealth Attorney prove the value of the stolen property was over $200. He did not do it with the owner of the store, who was the only witness for the prosecution.
The defense lawyer, however, as part of his cross examination managed to save the day for the prosecution when he asked what the value of the property was. With the witness responding that it was worth more than $200, the case was made to send it on to the grand jury for further action.
Often a case is made or lost because of a single question that should or should not have been asked. One of the classic ones from my days as a trial lawyer was a question asked by a lawyer friend of mine in a robbery case. The state had put on its case, and the time for the defendant came to present his alibi defense.
The defense went in very well from a witness that was the girlfriend of the defendant. She was very convincing as she explained that he was with her at the time of the robbery. There was one bit of evidence that had been left at the scene of the robbery. It was a very unusual hat that the victim said the robber had worn.
As an afterthought by the lawyer, he asked one final question of his excellent witness. He grabbed the unusual hat left at the robbery, turned to the witness, and asked if she had ever seen the hat before that day. It became immediately obvious that he had not asked her this question before trial, as her answer was that her friend did have a hat that looked like the one she was shown and that he lost it just about the time that the robbery had taken place. There went the alibi defense.
Knowing what witnesses will say is vital for a lawyer to know. What is also vital is that lawyers know when to ask a question and when not to ask one. It is an essential part of any trial preparation as the lawyer develops his or her vision of how the case might be presented and won. The lawyer’s silence might be the best thing that he or she can do for their client.
Plato Cacheris was an excellent and nationally known lawyer who practiced in the Washington, D.C. area. One day I was waiting in the Fairfax Circuit Court when he did what is called an “Alford” plea with a client. It, basically, is a guilty plea where the defendant asserts his or her innocence but admits that the evidence presented by the state would likely convince a judge or jury to find him or her guilty beyond a reasonable doubt.
After the defendant answered the required questions put to him by the judge, the Commonwealth Attorney presented a stipulation of the facts tat he had prepared without Plato’s help. Plato agreed with those facts.
When the judge asked for anything further from counsel, Plato then argued that the facts as offered to the court did not support a violation of the law. After hearing the argument and the available caselaw, the judge agreed, and the case was dismissed. Knowing when to elicit evidence, ask questions, or stay silent is an important part of being a good lawyer.
Thanks for reading. Please be in touch.
Judge Rideout is the former Chief Judge of the Alexandria, VA Juvenile and Domestic Relations District Court (1989-2004). From 2004 until the present he has consulted in different states to support their efforts to improve their child welfare systems. From 2016 to early 2021, he was the Ward 1 Commissioner on the Cambridge City Council. Throughout his career, he has been an advocate for improving the lives of children in his and other communities. He can be reached at firstname.lastname@example.org