Capital Defense Journal Volume 8 | Issue 2 Article 10 Spring 3-1-1996 TAKING THE OFFENSIVE: PROACTIVE USE OF THE RULES OF EVIDENCE Angela Dale Fields Follow this and additional works at: https://scholarlycommons.law.wlu.edu/wlucdj Part of the Criminal Procedure Commons, and the Law Enforcement and Corrections Commons Recommended Citation Angela Dale Fields, TAKING THE OFFENSIVE: PROACTIVE USE OF THE RULES OF EVIDENCE, 8 Cap. DEF J. 23 (1996). Available at: https://scholarlycommons.law.wlu.edu/wlucdj/vol8/iss2/10 This Article is brought to you for free and open access by the Law School Journals at Washington & Lee University School of Law Scholarly Commons. It has been accepted for inclusion in Capital Defense Journal by an authorized editor of Washington & Lee University School of Law Scholarly Commons. For more information, please contact [email protected]. CapitalDefense Journal,VoL 8, No. 2 - Page 23 jurisdiction. Counsel from outsidethejurisdiction (suchas aneighboring attorney should assume a different role in the defense. Co-counsel, who county) may be the shield that local counsel needs to test the court's has played a more passive role in the guilt-innocence phase, has pre- tolerance on sensitive issues without fear of negative consequences. For served energy, focus and neutrality and is thus better prepared to present example, outside counsel may be better able to raise issues of racial mitigating evidence to the jury during sentencing. Without that switch, discrimination by police or the Commonwealth Attorney's office or even it may be impossible to recover from a guilty verdict. the judge, and be more aggressive in claims ofprosecutorial misconduct, Jurors may also hold a single attorney to a much higher standard of thus giving the defense greater leeway in its approach to the case. consistency in the presentation of both phases of the trial. While it is always difficult for defense attorneys to synchronize post-guilt mitiga- I1. Maintaining Credibility in the Penalty Phase after a Guilty tion defenses with pre-verdict innocence theories so that the jury does not Verdict question the defense's sincerity, a new face in the sentencing phase may leaven the effect in the jury. The split trial approach can be especially Credibility is at theheart of an effective defense and, therefore, must effective if the defense decides to have the defendant express remorse at 4 be a key consideration in planning every capital defense strategy. The the penalty stage. jury's first impression of the defendant is paramount. Unfortunately, because of the dual nature of the capital case, the defense must, from the IV. Conclusion very beginning, investigate the potential jurors' views about the death penalty through voir dire. The defense may lose some credibility if the Defendants are constitutionally entitled to quality legal assistance same lawyer is in the odd position of having to argue the client's sufficient to prepare an adequate defense at trial; in the context of capital innocence just after asking the jurors questions about the appropriateness litigation, this means two attorneys must share the heavy responsibilities of the death penalty during voir dire if the defendant is found guilty. By of representation. Capital defense attorneys can use co-counsel to tackle using the attorney who will concentrate on the penalty phase to conduct the amount of material before them by using the natural division between voir dire, however, the defense can create a buffer between voir dire and the guilt-innocence and penalty phases. Splitting the trial responsibilities the guilt-innocence phase of the trial. according to the two phases will refine the focus of the defense attorneys Isolating the guilt-innocence attorney from any negative associa- involved. A more definite and manageable workload will allow for a tions with the penalty phase during voir dire will thus bolster defense more aggressive and attentive adversarial team. More importantly, this credibility at the guilt-innocence phase. The penalty phase will be division may be crucial to the credibility of the defense throughout the similarly benefited. The lawyer whose argument for acquittal has been trial. Not only might a jury be more likely not to convict, a credible rejected at the guilt-innocence phase is likely to be completely drained. defense team has a better chance of rescuing the penalty phase from the Capital cases require the defense to continue straight through sentencing, inherent prejudices against a defendant deemed guilty of a capital allowing no time for the defense to regroup. Instead of spending the offense. remaining stage of the trial trying to shift gears, the guilt-innocence 4 If the same attorney argues at the guilt-innocence phase that the by having the jury's verdict acknowledged by the new counsel ("al- defendant is innocent and thenhas the defendant "come clean" during the though we disagree, we accept the jury's hard work in rendering the penalty trial for mitigation, both counsel and defendant are likely to lose guilty verdict"), but then explaining that the trial has now moved into a credibility with the jury. Juries are likely to give more latitude to the completely different set of considerations ("even if guilty, does the client if the defense appears to be as consistent and forthright as possible. defendant deserve to die?"). At a minimum, a fresh face can soften the inconsistencies in the defense TAKING THE OFFENSIVE: PROACTIVE USE OF THE RULES OF EVIDENCE BY: ANGELA DALE FIELDS Defense attorneys tend to think of the rules of evidence defensively 1. Keeping The Government's Evidence In Context how do I minimize the damage? - rather than as tools for actively putting the defense case before thejury. However, the Virginia practitio- A. Federal Rule 106 ner often can use the evidentiary concepts behind the Federal Rules of Evidence to take a proactive stance in defending clients in the state Imagine that during the Commonwealth's case, the prosecutor courts. This article looks at the concepts behind several federal rules and introduced only the incriminating portions of your client's written suggests how the rules can be creatively used to make criminal defense statement. You knew that, read as a whole, the statement was exculpa- in Virginia more successful. While I focus on the federal rules, where tory. But by the time your case-in-chief is heard and the exculpatory parts possible, I have drawn parallels to Virginia evidence law. Therefore, this of the statement are finally read, the jury may have decided upon your article is intended not only for attorneys who defend against federal client's guilt. Persuading the jurors that there is another side to the story prosecutions, but for the Virginia state practitioner as well. I have will be difficult. Fortunately, Federal Rule 106 provides a more palatable compiled here just a fraction of the inventive uses possible for federal law option than waiting your turn: "When a writing or recorded statement or concepts in Virginia state courts. My hope is that experienced attorneys part thereof is introduced by a party, an adverse party may require the will not only use this article as a resource, but will allow it to inspire their introduction at that time of any other part or any other writing or recorded ability to invent other ways to use federal law concepts in state courts. Page 24 - CapitalDefense Journal, Vol. 8, No. 2 statement which ought in fairness to be considered contemporaneously the evidence is excludable under 403, then it is not admissible under with it."1 106.11 A request for a limiting instruction to correct any perceived Rule 106 allows defense counsel to do two things: to prevent a prejudice might help to avoid the applicability of Merrick.In situations misleading impression from being given to the jury, and, more impor- involving objections to admissibility based upon rules other than Rule tantly, to put the defense in front of the jury during the Commonwealth's 403, "fairness" may not dictate exclusion, and the Fourth Circuit may be case.2 The advisory committee notes stress that the rule does not "in any more likely to admit the evidence. way" prohibit cross examination on the matter by the defense or further Defense counsel should, of course, stress the other side of the coin: development of the subject during the defense's case.3 Use of the rule, "fairness" may require the admission of otherwise excludable evidence however, is limited to "writings and recorded statements." so that the jury will not be misled. For example, because of the specter Rule 106 is an expression of the rule of completeness, which has of promiscuity created by such testimony, it may seem unfairly prejudi- long been used to prevent one side from giving a misleading impression cial to allow a defendant to introduce documentary evidence that the to the jury.4 Most courts make the determination of admissibility under prosecutrix in a rape case had sexual intercourse with other men on the Rule 106 based upon "fitness for purpose" and necessity: the fitness of day of the alleged crime. However, if the defense is that the DNA tests the excluded portion to prevent the jury from being misled and the on the semen were incomplete and unreliable, such evidence may be 5 necessity for such prevention. necessary to explain to the jury why the tests were unreliable. An objection to the admissibility of 106 evidence for lack of Rule 106 also allows defense counsel some control over the timing necessity will claim that the written or recorded statement admitted into of the introduction of the evidence. It is not uncommon, for instance, for evidence was complete, and, therefore obviated the need for the particu- judges to justify exclusion of exculpatory testimony "for the time being" lar document or portion of a document the defense wants to introduce.