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A court reporter is the lawyer's best weapon.

 

Of all of the weapons in a criminal defense lawyer's arsenal, a court reporter is the biggest weapon with the most lasting impact. Every lawyers should always, always, always take a court reporter to any hearing. Most trial level courts have official court reporters, but administrative courts, misdemeanor courts and municipal courts don't. Court reporters are especially important at preliminary hearings.

 

I once tried a preliminary hearing in which my client was accused of two counts of attempted murder. The prosecutor, prior to the hearing, offered to give me his entire file if I waved the hearing. He said to me, as prosecutors always do, "There's nothing you'll find out in the hearing that you won't find out from getting a copy of the file."

 

A great many criminal defense lawyers fall for that. I don't.

 

Here's why: During the officer's testimony, hearsay evidence (admissible in preliminary hearings in Alabama) was presented that my client allegedly picked up a gun during an argument with his girlfriend and her daughter and pointed a pistol at them and pulled the trigger. The gun misfired. The officer arrived at the scene and seized the gun from the alleged victim –  the mother. 

 

Did you catch that? The mother had the gun. Not the alleged offender. That's potentially exculpatory.

 

It gets better. The officer testified that the accused was not there when he arrived. He further testified that before he left the scene he returned the gun back to the victim, the mother. The next day he turned the case file over to a detective. 

 

The detective testified that, after he read the report, he telephoned the victim and asked her to bring the gun in to his office. He testified that the victim later delivered a gun to his office.

 

You see what's happening here, right? The prosecutor has no chain of custody as to the weapon. For the prosecutor to have established a chain of custody, the officer who arrived at the scene had to seize the pistol at the time that he was on the scene. 

 

The prosecutor now had a two-fold problem with the gun. 

 

Firstly, the prosecutor had no way to prove conclusively whether the pistol brought to the detective was the same weapon that was allegedly in my client's hand at the time of the offense. It's compromised. It's not pristine evidence for forensic testing. It's contaminated. Secondly, there is no chain of custody.

 

The prosecutor has to then prove the weapon by testimony of the victim, which is subject to cross-examination.

 

This exculpatory evidence would not have been gleaned by waiving the preliminary hearing and reading a copy of the police report. Why?

 

The paperwork generated by the officer and the detective did not contain this information. The officer, to his credit, testified truthfully during the preliminary hearing. The detective, to his credit, testified truthfully. This was vital evidence for jury trial later. 

 

The result for our defense case was simple: We now had something to present at trial. The prosecutor arguably proved probable cause for the attempted murder charge to the court, and the judge bound my client over to the grand jury but we had something to use for our defense case as well. 

 

And it was preserved in a written record by a licensed court reporter.

 

The end result was the client pleaded guilty to a much-reduced charge and not to attempted murder.

 

This is why court reporters are so important.

 

(Required by Alabama law: No representation is made that the services of the attorney are greater than other lawyers.)

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