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Univ. of South Carolina School of Law

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Monday, May 12, 2014

When Prosecutors Object to Compelling Defense Evidence

The Richmond Times Dispatch is reporting on a recent kidnapping conviction (of Mark Weiner) called into doubt by one of the alternate jurors, who claims the absence of any corroboration left him “quite convinced, beyond any doubt, that the accusation against [the defendant] was pure fabrication.”  (The other jurors, obviously, disagreed).  Apart from the factual questions underlying the conviction, the story presents compelling evidentiary and prosecutorial tactics questions.  The article states that the defense offered evidence that AT&T cellphone tower data, interpreted by an expert, showed that the victim’s cell phone (which sent text messages to the victim's boyfriend during the abduction) never accessed the cell tower closest to the alleged abduction site, while regularly accessing a tower near the victim’s home during the time she was alleged to be abducted.  According to the story, the prosecutor, “objected to the introduction of the records because [the defense counsel] had not subpoenaed the custodian of the records with the telephone company.” 

Apart from this technical objection, there does not seem to be any question about the authenticity of the records (presumably subpoenaed from AT&T by the defense or perhaps even turned over by the prosecution) or their interpretation, with the prosecutor simply claiming “the cellphone data can show only which cell towers were accessed by the telephone, not where the telephone was when the calls were made.”  (The expert responds to this point by stating that “[w]hile a phone may skip a tower, to skip a much closer tower numerous times is highly unlikely.”)

Absent some argument that the cell phone records are inaccurate, I have trouble understanding the prosecutor’s thinking in keeping them from the jury.  Even if the prosecutor was convinced of the defendant’s guilt (as the story reports), a conviction obtained in what appears to be a close case, without letting the jury hear this compelling evidence, seems sure to be a pyrrhic victory.  Putting aside any ethical considerations, the conviction (as described in the story) appears to be either the product of trial court error (if the cell phone evidence was properly offered) or ineffective assistance of counsel (if it was not).  A prosecutor who keeps out such evidence (in close cases) is playing with fire -- effectively providing the defendant with a free chance at an acquittal, due to the strong likelihood of reversal on appeal, and courting a best case scenario of a temporary conviction, followed by the significant costs (financial and otherwise) of a retrial where the jury will ultimately hear the cellphone evidence.

http://lawprofessors.typepad.com/evidenceprof/2014/05/when-prosecutors-object-to-compelling-defense-evidence.html

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