Legal Questions for Our VERIFIED Lawyers #2

[AZlawyer]

At what point can a witness "resign" as a witness (for lack of a better term). Specifically, if they have not been paid, agree they are pro bono, but have had depositions taken, can they refuse/choose not to testify for the defense, or would the court order them to at that point?

A regular witness can't refuse to testify. I assume you mean an expert witness? They can refuse at any time to testify regarding their opinions. However, I suppose you could subpoena an expert as a "regular" witness to testify regarding their observations, assuming there was some dispute about the evidence they observed.

 

[Dells]

Okay, I am sure this is a stupid question, but here goes...

Is it possible that Judge Perry could allow some of the Universal interview in and suppress some?

For example, the beginning of the interview the detectives made a point to say something along the lines that she is there of her own free will and that she took them there to help them help her find her daughter. So could Judge Perry allow the potion of the interview up until they confront her of her lies, or is it an all or nothing kind of thing?

Also, if the interview at Universal in thrown out, does that mean that any reference to Universal can't be used at trial? Could the prosecution still bring up that Casey led the detectives around Universal and then finally when at the end of the hallway admitted that she didn't work there?

 

[AZlawyer]

Okay, I am sure this is a stupid question, but here goes...

Is it possible that Judge Perry could allow some of the Universal interview in and suppress some?

For example, the beginning of the interview the detectives made a point to say something along the lines that she is there of her own free will and that she took them there to help them help her find her daughter. So could Judge Perry allow the potion of the interview up until they confront her of her lies, or is it an all or nothing kind of thing?

Also, if the interview at Universal in thrown out, does that mean that any reference to Universal can't be used at trial? Could the prosecution still bring up that Casey led the detectives around Universal and then finally when at the end of the hallway admitted that she didn't work there?

Yes, he could allow some but not all of the interview in.

Throwing out the statement would not require throwing out all reference to the trip, but depending on where the judge draws the line for when Casey was "in custody," the statement admitting that she didn't work there might be one of the statements thrown out.

 

[Katprint]

A regular witness can't refuse to testify. I assume you mean an expert witness? They can refuse at any time to testify regarding their opinions. However, I suppose you could subpoena an expert as a "regular" witness to testify regarding their observations, assuming there was some dispute about the evidence they observed.

After seeing my boss having trouble with an expert witness who chose to take a 3-week European vacation instead of making himself available for trial (kind of like Dr. Lee's trip to China during the Spector trial), I have always made sure that I subpoena my own expert witnesses. I do it in a friendly way. I include a pleasant letter explaining that if they are subpoenaed witnesses then if they have some unforeseeable emergency or become ill or otherwise are prevented from being able to testify, I will be able to get the trial continued. I don't really highlight the fact that if the judge has to continue a trial due to an important subpoenaed witness who failed to show up, that witness will probably be facing a bench warrant.

If the other side's expert witnesses don't show up, fine with me. I'm OK with my experts being the only ones to testify.

If the other side withdraws an expert, I would expect the Attorney Work Product privilege to protect the vast majority of that expert's observations, opinions, conclusions, etc. I agree that a possible exception would be if the expert had done something to create a dispute in the evidence like Dr. Lee's alleged taking of the fingernail in the Spector case or Dr. Lee's alleged finding of additional hairs in the Casey Anthony case. However, if they merely gave an expert opinion at deposition that was helpful to the other side and then they were withdrawn as an expert because of that, I don't see the other side being able to call them as an expert.

I have seen this litigated in the context of there being only 3 experts in the world on a particular subject and the defense hired all 3 experts even though the defense would not be allowed to present the needlessly cumulative, duplicative testimony from all 3 experts at trial, solely to prevent the plaintiff from being able to hire any expert on that subject. The plaintiff successfully filed a motion asking the judge to order that 1 of the experts be assigned to the plaintiff. The decision was a close call and the case went all the way up to the California Supreme Court.

Katprint
Always only my own opinions

 

[JWG]

Yes, he could allow some but not all of the interview in.

Throwing out the statement would not require throwing out all reference to the trip, but depending on where the judge draws the line for when Casey was "in custody," the statement admitting that she didn't work there might be one of the statements thrown out.

But while her statement admitting she did not work there may not be allowed, that the investigation uncovered the fact she did not work there would come in, correct? Cindy, George, Tony, everyone could testify that she told them she worked there, emails would be produced from the computer purporting to show she worked there, and then evidence would be presented from Universal that she had not been working there for some time - that it was all a charade...

 

[JWG]

Here's a question I keep meaning to ask of AZlawyer:

You have opined for some time that the Universal statements won't be allowed, so I would suspect that the prosecution might feel that is likely as well. They may even feel that it would form a basis for appeal should KC be convicted, if they were allowed.

Is it possible that the prosecution has decided - much as they did with the jailhouse video of KC's reaction - to not use the Universal interview at all, but argue for it to be admitted in order to give HHJP a clear point at which he can declare KC was in custody? :waitasec: Toss him a bone, so to speak, and make it less likely for an appeal to succeed? Even if he allows it, they may not feel the risk of using it and facing an appeal is worth it. Would that be a reasonable strategy?

 

[ynotdivein]

After seeing my boss having trouble with an expert witness who chose to take a 3-week European vacation instead of making himself available for trial (kind of like Dr. Lee's trip to China during the Spector trial), I have always made sure that I subpoena my own expert witnesses. I do it in a friendly way. I include a pleasant letter explaining that if they are subpoenaed witnesses then if they have some unforeseeable emergency or become ill or otherwise are prevented from being able to testify, I will be able to get the trial continued. I don't really highlight the fact that if the judge has to continue a trial due to an important subpoenaed witness who failed to show up, that witness will probably be facing a bench warrant.

If the other side's expert witnesses don't show up, fine with me. I'm OK with my experts being the only ones to testify.

If the other side withdraws an expert, I would expect the Attorney Work Product privilege to protect the vast majority of that expert's observations, opinions, conclusions, etc. I agree that a possible exception would be if the expert had done something to create a dispute in the evidence like Dr. Lee's alleged taking of the fingernail in the Spector case or Dr. Lee's alleged finding of additional hairs in the Casey Anthony case. However, if they merely gave an expert opinion at deposition that was helpful to the other side and then they were withdrawn as an expert because of that, I don't see the other side being able to call them as an expert.

I have seen this litigated in the context of there being only 3 experts in the world on a particular subject and the defense hired all 3 experts even though the defense would not be allowed to present the needlessly cumulative, duplicative testimony from all 3 experts at trial, solely to prevent the plaintiff from being able to hire any expert on that subject. The plaintiff successfully filed a motion asking the judge to order that 1 of the experts be assigned to the plaintiff. The decision was a close call and the case went all the way up to the California Supreme Court.

Katprint
Always only my own opinions

Kat, thank you for this very clear explanation. No follow-up question, just want to express appreciation to you and all our VL's who help us make sense of these complexities! (Well, maybe they don't seem like complexities to you, because you are all clearly excellent at what you do, and very very smart.)

And a further :twocents:--I absolutely LOVE when you guys share stories of your real-life experiences! It helps so much when you turn the theoretical into the concrete. Thank you! :blowkiss:

 

[Dignity4Victims]

After seeing my boss having trouble with an expert witness who chose to take a 3-week European vacation instead of making himself available for trial (kind of like Dr. Lee's trip to China during the Spector trial), I have always made sure that I subpoena my own expert witnesses. I do it in a friendly way. I include a pleasant letter explaining that if they are subpoenaed witnesses then if they have some unforeseeable emergency or become ill or otherwise are prevented from being able to testify, I will be able to get the trial continued. I don't really highlight the fact that if the judge has to continue a trial due to an important subpoenaed witness who failed to show up, that witness will probably be facing a bench warrant.

If the other side's expert witnesses don't show up, fine with me. I'm OK with my experts being the only ones to testify.

If the other side withdraws an expert, I would expect the Attorney Work Product privilege to protect the vast majority of that expert's observations, opinions, conclusions, etc. I agree that a possible exception would be if the expert had done something to create a dispute in the evidence like Dr. Lee's alleged taking of the fingernail in the Spector case or Dr. Lee's alleged finding of additional hairs in the Casey Anthony case. However, if they merely gave an expert opinion at deposition that was helpful to the other side and then they were withdrawn as an expert because of that, I don't see the other side being able to call them as an expert.

I have seen this litigated in the context of there being only 3 experts in the world on a particular subject and the defense hired all 3 experts even though the defense would not be allowed to present the needlessly cumulative, duplicative testimony from all 3 experts at trial, solely to prevent the plaintiff from being able to hire any expert on that subject. The plaintiff successfully filed a motion asking the judge to order that 1 of the experts be assigned to the plaintiff. The decision was a close call and the case went all the way up to the California Supreme Court.

Katprint
Always only my own opinions

Good to see you, Kat. Question - HHJP suggested that the Defense review the Parks vs. State case. I don't expect you to deeply investigate the case, but offhand based on what I have posted below which is the ruling on Parks, do you see any variance between Parks vs. State and Casey Anthony vs. State that would lead you to believe the ruling would be any different?

TIA!

Parks v. State 644 So.2d 106

"The evidence shows appellant freely and voluntarily gave his statement to police. Even if the police lacked probable cause for the arrest on the unrelated charge, the fact appellant was released from custody and voluntarily remained to answer questions breaks the causal link between the arrest and his making of the incriminating statements to police. Appellant's agreement to discuss the crime when he was free to decline and go home was an act of free will sufficient to purge any possible taint from the arrest. We find the trial court properly denied the motion to suppress appellant's incriminating statements."

 

[AZlawyer]

But while her statement admitting she did not work there may not be allowed, that the investigation uncovered the fact she did not work there would come in, correct? Cindy, George, Tony, everyone could testify that she told them she worked there, emails would be produced from the computer purporting to show she worked there, and then evidence would be presented from Universal that she had not been working there for some time - that it was all a charade...

Yes, they will be able to show that they discovered she had not worked there for years.

Here's a question I keep meaning to ask of AZlawyer:

You have opined for some time that the Universal statements won't be allowed, so I would suspect that the prosecution might feel that is likely as well. They may even feel that it would form a basis for appeal should KC be convicted, if they were allowed.

Is it possible that the prosecution has decided - much as they did with the jailhouse video of KC's reaction - to not use the Universal interview at all, but argue for it to be admitted in order to give HHJP a clear point at which he can declare KC was in custody? :waitasec: Toss him a bone, so to speak, and make it less likely for an appeal to succeed? Even if he allows it, they may not feel the risk of using it and facing an appeal is worth it. Would that be a reasonable strategy?

That would be a pretty good strategy--act like you want to use ALL the pre-arrest statements, including the Universal one, in hopes that HHJP will "compromise" and just let you use the only ones you thought you could use anyway. Like when your kids ask for 3 cookies hoping that you'll let them have 2.

Good to see you, Kat. Question - HHJP suggested that the Defense review the Parks vs. State case. I don't expect you to deeply investigate the case, but offhand based on what I have posted below which is the ruling on Parks, do you see any variance between Parks vs. State and Casey Anthony vs. State that would lead you to believe the ruling would be any different?

TIA!

Parks v. State 644 So.2d 106

"The evidence shows appellant freely and voluntarily gave his statement to police. Even if the police lacked probable cause for the arrest on the unrelated charge, the fact appellant was released from custody and voluntarily remained to answer questions breaks the causal link between the arrest and his making of the incriminating statements to police. Appellant's agreement to discuss the crime when he was free to decline and go home was an act of free will sufficient to purge any possible taint from the arrest. We find the trial court properly denied the motion to suppress appellant's incriminating statements."

Hopefully Kat will stop by and answer as well, but one critical piece of information not in this summary is that the defendant was read his Miranda rights before the questioning! So the issue in the Parks case was not at all the same as the issue here.

 

[Dignity4Victims]

Hopefully Kat will stop by and answer as well, but one critical piece of information not in this summary is that the defendant was read his Miranda rights before the questioning!

snipped for focus

Referencing Mason's claim that there is no such thing as "arrest and UNarrest" was the point of my focus.

There either is such a thing, or there isn't and either way as in Casey's case where she wasn't Mirandized, or Parks, in which case they were read, both parties continued to answer questions during what's been deemed by the State as a state of "UNarrest".

If your opinion is that there is some huge, gaping difference, then why did HHJP suggest that the Defense review Parks vs. State?

 

[AZlawyer]

snipped for focus

Referencing Mason's claim that there is no such thing as "arrest and UNarrest" was the point of my focus.

There either is such a thing, or there isn't and either way as in Casey's case where she wasn't Mirandized, or Parks, in which case they were read, both parties continued to answer questions during what's been deemed by the State as a state of "UNarrest".

If your opinion is that there is some huge, gaping difference, then why did HHJP suggest that the Defense review Parks vs. State?

Perhaps because the defense was saying there was no such thing as "unarrest." So the case is applicable to knock out that argument. But even granting that Casey was "unarrested" after the handcuffs came off (and I agree that she probably was), the main issue for HHJP is whether or not she was IN CUSTODY (not "arrested" but in custody) later on when she was giving statements to LE.

Remember, the handcuffing issue was a late addition to this scenario that added the arrest/unarrest wrinkle. But long before that, some of us (pretty much just the lawyers lol) were worried about the fact that Casey was not read her Miranda rights before she made the Universal statement. Not because she had been arrested (because we didn't know about the handcuffs), but because it appeared to have been a custodial interrogation.

So the questions for HHJP are: (1) was she "arrested" when the handcuffs went on? (probably yes), (2) was she still under arrest when she was questioned by LE and gave her statements? (probably no--and this is where Parks might apply), (3) was she IN CUSTODY when she was questioned by LE and gave her statements? (IMO yes for Universal after the door was closed but probably not before that--and Parks doesn't help with this issue). So the Parks issue is just a "pit stop" before we get to the main question.

 

[LolaMoon08]

Do you think that CM is simply using the threat of an appeal to get what he wants? *even though he made no such threat at the hearing, I do remember him saying he would take things to the Supreme Court some time ago?*

I ask this because I just see it as a veiled threat to get what the defense wants NOW. I have a hard time believing that any of the attorneys will be working for Casey Anthony, or even care about Casey Anthony, once this trial is over and she is hopefully convicted? Is it simply a tactic that defense attorneys use?

 

[Capri]

AZ, please tell me there is a cap on what the JAC will put out financially on one case. So far, it's around $80K to the defense, and JB now saying he'll need $12k more (per WESH). ( That doesn't even include the $275K they spent before she was declared indigent, but that's a different issue.) Will the JAC keep funding ICA indefinitely. I'm guessing no, but what is the standard of when to stop?

 

[Katprint]

Hopefully Kat will stop by and answer as well, but one critical piece of information not in this summary is that the defendant was read his Miranda rights before the questioning! So the issue in the Parks case was not at all the same as the issue here.

I don't really know what HHJP was getting at. Perhaps he was referring to the portion of the opinion referring to the "harmlessness" of an improper statement being admitted which was merely duplicative of what the jury already knew from other proper statements/evidence.

In other words, if Casey's Zanny the Imagi-nanny, bogus job at Universal Studios, bogus call from Caylee earlier that day, etc. stories to the 9-1-1 operator are properly admissible (and IMO there is really no dispute that they will be determined to be admissible) and sources other than Casey can establish the falseness of these statements, then excluding the Universal Studios interview really doesn't help Casey because the jury already knows that Casey lied about this stuff. Suppressing Casey's statements may reduce the number of counts of False Statements to Law Enforcement but that is really the pimple on the elephant's butt compared to First Degree Murder with Death Penalty Special Circumstances.

Katprint
Always only my own opinions

 

[AZlawyer]

Do you think that CM is simply using the threat of an appeal to get what he wants? *even though he made no such threat at the hearing, I do remember him saying he would take things to the Supreme Court some time ago?*

I ask this because I just see it as a veiled threat to get what the defense wants NOW. I have a hard time believing that any of the attorneys will be working for Casey Anthony, or even care about Casey Anthony, once this trial is over and she is hopefully convicted? Is it simply a tactic that defense attorneys use?

Yes, the defense is hoping that HHJP will be so scared of the appeal issues that he will give them whatever they want.

AZ, please tell me there is a cap on what the JAC will put out financially on one case. So far, it's around $80K to the defense, and JB now saying he'll need $12k more (per WESH). ( That doesn't even include the $275K they spent before she was declared indigent, but that's a different issue.) Will the JAC keep funding ICA indefinitely. I'm guessing no, but what is the standard of when to stop?

AFAIK there is no cap except what's "necessary". HHJP seems to be reaching the end of his rope on this.

I don't really know what HHJP was getting at. Perhaps he was referring to the portion of the opinion referring to the "harmlessness" of an improper statement being admitted which was merely duplicative of what the jury already knew from other proper statements/evidence.

In other words, if Casey's Zanny the Imagi-nanny, bogus job at Universal Studios, bogus call from Caylee earlier that day, etc. stories to the 9-1-1 operator are properly admissible (and IMO there is really no dispute that they will be determined to be admissible) and sources other than Casey can establish the falseness of these statements, then excluding the Universal Studios interview really doesn't help Casey because the jury already knows that Casey lied about this stuff. Suppressing Casey's statements may reduce the number of counts of False Statements to Law Enforcement but that is really the pimple on the elephant's butt compared to First Degree Murder with Death Penalty Special Circumstances.

Katprint
Always only my own opinions

Could be. Either way, I think we agree his mention of the case was related to a more minor issue than whether the statements were obtained in violation of Miranda. There was no Miranda question in Parks, because Parks was read his Miranda rights before he was questioned. So perhaps the judge was just trying to move the defense beyond the "arrest/unarrest" issue, or pointing out that they would have to prevail as to ALL the statements in order to gain any real benefit.

 

[ZsaZsa]

From what I have read HHJP has only had one decision reversed, in his entire career as a Judge, so JB's odds are not good. Do Judges really feel that intimidated by this kind of posturing ?

 

[AZlawyer]

From what I have read HHJP has only had one decision reversed, in his entire career as a Judge, so JB's odds are not good. Do Judges really feel that intimidated by this kind of posturing ?

IMO most judges are just annoyed by it.

 

[LambChop]

So if CM continues to play the she's a kid and does not know the difference between in custody and not in custody wouldn't KC assume she was no longer being held because the cuffs came off and she was free to go back into her home, having no experience with being arrested. That she could go to the fridge, go take a shower, go to her room alone. Would someone not familiar with the law think that she was pretty much free to tell the officers I'm tired I need to go lay down, or I feel sick I need to lie down? And would we not expect that with a close relative such as GA hearing every word that was being said, watching his daughter being handcuffed would have asked that very question when LE took those handcuffs off? Is she under arrest and did YOU read her her rights? Her own father did not feel she was under arrest.

 

[logicalgirl]

AZLawyer, do you think there is any possibility this young OCSD person put cuffs on ICA and very briefly sat her in his squad car to get CA out of his face and get her to calm down while he tried to sort out stories?

 

[AZlawyer]

So if CM continues to play the she's a kid and does not know the difference between in custody and not in custody wouldn't KC assume she was no longer being held because the cuffs came off and she was free to go back into her home, having no experience with being arrested. That she could go to the fridge, go take a shower, go to her room alone. Would someone not familiar with the law think that she was pretty much free to tell the officers I'm tired I need to go lay down, or I feel sick I need to lie down? And would we not expect that with a close relative such as GA hearing every word that was being said, watching his daughter being handcuffed would have asked that very question when LE took those handcuffs off? Is she under arrest and did YOU read her her rights? Her own father did not feel she was under arrest.

I agree, I think she was most likely not in custody while at the home.

AZLawyer, do you think there is any possibility this young OCSD person put cuffs on ICA and very briefly sat her in his squad car to get CA out of his face and get her to calm down while he tried to sort out stories?

Probably lol.