Steve Palmer [00:00:00]:
All right, we're back with another they don't teach you that in law school series. Troy here with us, our resident law student. Almost done though, right?
Troy [00:00:11]:
Yep.
Troy Hendrickson [00:00:11]:
I'm finishing up this fall.
Troy [00:00:13]:
I don't know.
Steve Palmer [00:00:13]:
I don't know what we're gonna do next year. Somebody's gotta fill that chair.
Troy Hendrickson [00:00:16]:
Well, I. I finished a little. I still have to wait to take the bar. Everybody was asked like, oh, you start being a lawyer fall, And I'm like, no, I have to take the bar.
Steve Palmer [00:00:22]:
And then wait on the pesky bar exam. We're gonna talk about that in detail when you have to do it anyway. They don't teach you that in law school series, LawyerTalkPodcast.com. check us out. The idea here is we talk about stuff. Maybe you learn the academics on the law school side, and in the real side, when we do criminal defense practice, day in, day out, you learn how it really works. Like, there's. There's like, the theoretical and then boots on the ground, like the classic debate, like Bruce Willis in the movie where they had to go drill the.
Steve Palmer [00:00:49]:
What is that movie? Yeah, drill the. The meteor.
Troy Hendrickson [00:00:56]:
Oh, Armageddon.
Steve Palmer [00:00:57]:
Armageddon.
Troy Hendrickson [00:00:57]:
Yeah.
Steve Palmer [00:00:58]:
I know how to drill. Right. So don't tell me. I know how to drill. So, look, the idea is, as we deal with stuff day in and day out in the law practice, I think there's some education here for law students where, you know, maybe they don't teach you that in law school. And I think this is really the stuff that everybody else wants to know, too. Today I'm going to talk to you about discovery and specifically criminal discovery in a case and how that really works, because we just had this issue come up.
Troy [00:01:24]:
Yeah.
Steve Palmer [00:01:25]:
So generally speaking, there's. And this is in federal, state, in almost every court I've ever practiced, there's something called Rule 16. Did you. They even teach you what Rule 16 is?
Troy Hendrickson [00:01:34]:
No, they don't really teach us any of, like, those rules, criminal procedures, more like the constitutional issues, that kind of deal. So we don't learn any of the rules. The only class we have on discovery is electronical discovery, where they teach you how Matrix rules. That's about it.
Troy [00:01:49]:
Yeah.
Steve Palmer [00:01:49]:
Yeah, that's. See, it's unbelievable to me because I am a criminal defense lawyer. I've done it for 30 years. I got out of law school, I was working for lawyers upstairs, great ones. And while I was in law school, I got out of law school, and I had the same revelation that you just had. Wait a minute. We have a whole Thing in Ohio and in federal courts called the rules of Criminal Procedure. And in law school, I didn't even know they existed and I didn't read them.
Steve Palmer [00:02:19]:
Yeah, it is not the same with civil procedure. You actually read the rules.
Troy Hendrickson [00:02:22]:
Yeah. Civil procedure. You memorize all the rules. That's why I thought Crim was going to be like. And I'm kind of happy it wasn't like that. It was. It was much. It was a lot more entertaining learning all the constitutional issues in criminal law.
Troy Hendrickson [00:02:33]:
But it's very important to probably learn all the criminal rules.
Steve Palmer [00:02:36]:
Right. So criminal procedure in law school is not really criminal procedure. It's constitutional stuff. As my buddy once said, it's all the stuff that bastards can't do to you.
Troy Hendrickson [00:02:46]:
Yeah, it's. It's pretty much three con law classes. You have your two con laws and then constitutional law, but they never focus on the criminal stuff. Really. They kind of do very little. But it's only. It's bigger issues. And then Crimpro is just.
Troy Hendrickson [00:02:59]:
We're just only going to hone in on the Constitution.
Steve Palmer [00:03:01]:
All right, so here's how. Look, the. The day in and day out of discovery, we file something called a demand for discovery. They never taught you that in law school?
Troy Hendrickson [00:03:10]:
No, but I. Based on just upstairs, it's pretty much like the first one of the first things getting filed, like immediately.
Troy [00:03:16]:
Yeah.
Steve Palmer [00:03:17]:
So my client pleads not guilty. First thing we file is a demand for discovery. And the prosecutor has to give us. When I tell clients what they're giving us and I say now they have to give us all the evidence that they have. And what does that encompass? Well, if our client made a statement, we get that. If they're witness statements, we get those whether they're written or they're recorded. If there's expert test case we're going to talk about in a minute, there's really two experts. One for cell phone forensics, another for accident reconstruction.
Troy [00:03:45]:
Yep.
Steve Palmer [00:03:46]:
We get the results of those tests and examinations and all the underlying data that is relied upon to support those results. We get our clients and every other witnesses criminal record and criminal history, we get. What am I missing here?
Troy Hendrickson [00:04:03]:
I think you might have touched on. But the biggest one is just body cams.
Steve Palmer [00:04:06]:
Oh, body. I was going to talk about body cam footage. So audio, visual evidence, body cam punch. And look, this was a 15 years ago. We used to get. Say we had a DUI or an OVI case and you're pulled over. We would get a VHS tape with about 30, 20, 30 minutes, maybe an hour of dash cam footage and we would have to watch it. And we loved it.
Steve Palmer [00:04:32]:
We loved it because we could see what was going on. So before that we didn't get anything. It was just the cops written version. Then we started getting dash cam footage and we loved it because we could verify what the cop was saying. Didn't always match.
Troy Hendrickson [00:04:44]:
Imagine that.
Steve Palmer [00:04:45]:
But anyway, then we got. Now we have body cam footage. And it's one of those be careful what you ask for because what do you spend a lot of days doing?
Troy Hendrickson [00:04:52]:
Just watching and transcribing them. That's terrible.
Steve Palmer [00:04:55]:
How many hours? Like so think about it. You get say there's a. Like our current case. How many cops were at the scene?
Troy Hendrickson [00:05:01]:
I go with around 10.
Troy [00:05:03]:
All right.
Steve Palmer [00:05:04]:
And the scene was how many hours long?
Troy Hendrickson [00:05:06]:
They were at the scene for at least probably four hours. Okay.
Steve Palmer [00:05:10]:
It.
Troy Hendrickson [00:05:11]:
Some of them longer cuz some they don't stay there that long. Some they do, but it's. It's a pickle cuz.
Steve Palmer [00:05:17]:
And we have police cruisers that have dash cam and a lot of times those are two angles. Then you have police officers and patrolman wandering around with body cams.
Troy [00:05:31]:
Yep.
Steve Palmer [00:05:32]:
And there's times five. Five hours each. Yeah, do the math. I mean we spend, you can spend a week of legal time reviewing that stuff. Now look, you know, be careful what you wish for. We used to say, I'd love to have body cam footage. Now we have it and we have to watch it. And you not only have to watch it, you have to watch it even if you don't think that it matters.
Steve Palmer [00:05:55]:
Because what if it does? You know, this is, this is like that, that problem. And everybody's like, well, what's the big deal? Well, it costs time and money. I mean, as old honest Abe Lincoln said, you know, you know, this quote, probably the lawyer's time is a stock and trade. We don't sell goods, I don't sell inventory. I don't have a store. I sell my time. And if I'm going to spend 40 or 50 hours of my time watching body cam footage on say a DUI case, like where's that math? Math? I mean it doesn't, there's no way you could recoup that time yet you have to watch it. I mean, our solution of course is Law Clerks.
Steve Palmer [00:06:35]:
And not that I don't watch any of it. I watch a lot of it. But you know, I, I have people screen it for me and help me understand it. I've sped it up at times.
Troy [00:06:43]:
I.
Steve Palmer [00:06:44]:
Sometimes I put it on the background and put headphones on. So. Because it's mostly audio. I mean, look. But I have also found that if I, I watch it all or we, we get through all of it in our cases. But I've found stuff in cases that I never would have thought existed ever. So you have to watch it anyway. That's part of discovery.
Troy Hendrickson [00:07:04]:
I would go with like 95 of the body cam footage is like worthless. But it does, like you have to go through it because it'd be nice if they just turned their body cam on when they found something or like something was going on. But they, they don't do that.
Steve Palmer [00:07:14]:
Well, you don't want them to do that.
Troy Hendrickson [00:07:15]:
Well, yes, yeah, I understand that. But like, it'd be nice if they're like, oh, we're about to have a discussion. I'm like, we're gonna turn this on. But it's actually usually the opposite. Hold on, we're about to have a discussion. They all turn it off.
Steve Palmer [00:07:23]:
Well, that's a good point. So explain what you're talking about. So that like two cops or three. A group of cops.
Troy [00:07:28]:
Yep.
Troy Hendrickson [00:07:29]:
They're at a scene, they're looking at something. And then like you can see them all look at each other like they're about to have a talk. And then they'll signal and then they'll all turn the audio off. And I'm sitting there, I'm like one. Why, why would you even do, do that?
Steve Palmer [00:07:41]:
Right?
Troy Hendrickson [00:07:42]:
Like what are you guys talking about that you don't want us to hear?
Steve Palmer [00:07:45]:
It's the appearance of impropriety. And sometimes like I here, this has happened in a case I worked on a couple years ago. Same kind of thing. A group of cops out making an arrest. And it was out in the middle of the country and they were walking up on somebody who was in the wood. Anyway, you see them going sort of like, you know, making like pointing at their chest. Like they all turn about. But one of them didn't, one of them didn't get the, didn't get the cue.
Steve Palmer [00:08:10]:
And we got to hear it and it made the case. It's like it made the case.
Troy Hendrickson [00:08:15]:
It just doesn't make sense to me, like why they would.
Steve Palmer [00:08:18]:
I mean, because look, I support police officers and people ask how that happens. Like, like all the time I, I, I butt heads with police officers. You've seen me cross examining. And sometimes it does get sort of crossed. Most of the time I try to do it in a friendly, at least a nice way.
Troy Hendrickson [00:08:36]:
Yeah, as nice as you can do.
Steve Palmer [00:08:38]:
It, well, like you don't have to be mean to people, you just have to ask questions and get answers. But I recognize that they're also human and we are all human folks. The idea of the system is we get to challenge the other side's case. Not necessarily because we think they're going to intentionally construct a case or frame somebody, but we all come into things with certain biases and this will get us to the point we're talking about. We're working on a case, it's going to trial next week. We're not going to talk about what it is.
Troy [00:09:10]:
Yep.
Steve Palmer [00:09:11]:
But it's, you know, we have maybe one business day before trial and I get an email from a prosecutor and it says, oh, by the way, we were doing some trial preparation and we found some more information and for discovery we're not going to use it necessarily, but we thought we should get it to you.
Troy [00:09:35]:
Yeah.
Steve Palmer [00:09:36]:
How long did it take you to get through that lesson?
Troy Hendrickson [00:09:38]:
It took me a couple hours. But like this is also the eve of like a holiday week. It's not something like normally people would do, but it was a lot of stuff that I don't really understand and that was a big thing we talked about yesterday. It's a lot of cell phone cellbrite data, which that stuff's massive. It's confusing and it was like, it was crash reconstruction data stuff that I don't even know. You know, I'm looking up all this stuff like trying to figure out what all these acronyms mean.
Steve Palmer [00:10:06]:
The kind of stuff you need an expert to look at.
Troy [00:10:08]:
Yes.
Steve Palmer [00:10:08]:
Right. So here's the deal. We made decisions in this case based on what we initially received and discovered. One of the decisions is we consult with experts. We, we don't necessarily need them to testify and this could change that. So when a prosecutor tells me, don't worry, it's no big deal, we're not going to use it, my response is, what if I need to use it?
Troy [00:10:27]:
Yeah.
Steve Palmer [00:10:28]:
And usually you get a crickets response from that. You know, then it was crickets when I said that. It's like, look, what if I need to use it? And it's like, listen dude, it's not all your, it's not, this isn't a one way street. We get to defend this case. And I look, you convict my client if that's what you want to try to do, but do it fairly. So the discovery rules. The stuff they don't teach you in law school about discovery is there has to be timely discovery and it's not just they have to give you stuff, but they can't ambush you on the eve of trial with additional information. Now, you don't know.
Steve Palmer [00:11:01]:
They also don't teach you in law school what happens when this occurs. I mean, any thoughts of where this goes next?
Troy Hendrickson [00:11:07]:
I mean, in my head we would motion to continue because this is expert material. I mean, even when I was running stuff through, you know, software, I'm not an expert. I'm trying to run through softwares. I'm just fighting online everything. And we're getting different results than what they're expert, saying I'm not an expert. But now I'm seeing conflicts like I just, I just want to know the answer here. And we can't figure it out. And this is enough where, yes, we want to consult an expert.
Troy Hendrickson [00:11:32]:
So imagine we motion continue and our argument is, I understand that, like you want us to go to trial, but we need to figure out what this evidence is that we just got and whether or not it can help our client and whether or not we need to use at trial. And we can't do that until we talk to somebody who can interpret the evidence for us, which is an expert. And then can we use that expert then to help interpret it to a jury correctly?
Steve Palmer [00:11:53]:
Right. So here's the question we're going to get. So generally speaking, when there's a discovery violation, meaning we have caught, not caught, but the prosecutor delivers discovery like this late. And I'm not suggesting this was done intentionally, sometimes it is, but I'm not suggesting that here necessarily. I don't know yet. But we get discovery late. You go to a judge and the judge is like, well, what is it? And you know, well, it's a bunch of data and calculated. How's it going to help your case? And I don't know.
Steve Palmer [00:12:23]:
Yeah, that's the problem. This isn't stuff that I can just look at and say, yeah, no big deal. It may be no big deal, but let's sort of shift the narrative or shift the, the camera view to the person sitting next to us. So say that individual, the client now knows that this evidence is out there and he gets convicted because whatever, he goes to trial and gets convicted and then he looks over and says, what was that other stuff they gave us before trial all about? I don't know. Yeah, should we have had somebody look at it? I don't know. It's like, I can't just now say, no big deal, judge. We know what the case is about. Otherwise.
Steve Palmer [00:13:09]:
So it's sort of like when we prepare a case for trial, it starts, like, huge, and you have to look at everything. It's not unlike a term paper. Anybody who's written a term paper without AI knows how this works. You, you go get, you, you go research everything. So in law school, you go look at all the cases.
Troy [00:13:26]:
Yeah.
Steve Palmer [00:13:27]:
So we have an issue. And you're going to be looking at them in discovery violations very soon. But you look at all the cases and the cases talk about crap that is completely irrelevant to what we're dealing with. But you know that. So you know that this case is this and this scenario and this scenario in this scenario. And then you can narrow it down to our scenario, and then you can focus on what's important, important in a case. But you can't do that unless you've looked at all of it first.
Troy [00:13:49]:
Yeah.
Steve Palmer [00:13:50]:
Because you don't know what's out there. So what's going to happen? How's this unfold in the context of our case? There are generally three remedies for discovery violations. And they don't teach you this in law school, but they do teach you this in the real world. The first is, and in the rules, there are three discovery, there are three remedies. And the court should choose the least drastic remedy from bottom to top continuance, to allow the other side a chance to review this and figure out what's going on.
Troy [00:14:22]:
Yep.
Steve Palmer [00:14:24]:
Exclusion of the evidence, meaning the side that didn't provide it can't use it. And then third, a dismissal. If it's really egregious or done intentionally, you know what's going to happen here? The, the problem is, number two, the middle one doesn't work for us.
Troy [00:14:45]:
No.
Steve Palmer [00:14:45]:
Because it's not just, it's not just the prosecutor sort of already. He's not offering not to use all of it. He's offering not to use some of it. I'm like, well, yeah, but what if I. So here's the thing. When a prosecutor says, look, here's all the evidence, but it's no big deal, we're not going to use it in our case. What. I mean, what's the natural reaction or.
Troy Hendrickson [00:15:01]:
Conclusion that they, they still can use it? And then we're going to object. A trust trial.
Steve Palmer [00:15:05]:
No, no, no, Go, go, keep going.
Troy Hendrickson [00:15:08]:
Like, what if they do use it?
Steve Palmer [00:15:11]:
So one side doesn't want to use it? What does that tell you about the evidence?
Troy Hendrickson [00:15:16]:
It's like it hurts them.
Steve Palmer [00:15:17]:
Maybe it's helpful to the other side. Yeah, just, just maybe. I, I don't mean to put you on the spot.
Troy Hendrickson [00:15:21]:
Yeah, no, okay, that. That makes sense.
Steve Palmer [00:15:24]:
So. And that's. That was my question in response. Like, look, he says, I'm not going to use it. Yeah, but what if I want to? And this is the problem with number two, excluding it doesn't work because I don't even know what I'm dealing with yet. Yeah, a continuance really is the only remedy. Now, if the judge says, look, guys, I'm sick of this crap. This case is over a year old.
Steve Palmer [00:15:45]:
I'm not continuing it. You're going to trial. Well, then I say, look, Judge, here's my record. I don't have all the discovery. I can't look at my client and say, I've done everything I should do for you. I can't look at my client and say, all your constitutional rights are protected because we've consulted with experts, we have evaluated all the evidence, we have considered the pros and cons of using it or not using it. We know what the government's case is all about. I can't say that now, Judge, but I'll go to trial if that's what you want.
Steve Palmer [00:16:11]:
And now we're talking about an appeal if we lose. And that's just all we can do. You know, if the judge says no, or the judge could say, no, case is old. I'm not continuing it. I understand, guys. You can't represent your client, so we're going to look over to this other table and say, sorry, Mr. Prosecutor, I'm dismissing. This happens.
Steve Palmer [00:16:33]:
Doesn't happen a lot, but sometimes that does happen. I suspect we're going to end up with a continuance in this. Because it's the right outcome. Yeah, it's the right outcome. Now, there's one other area of discovery we should talk about that isn't in the criminal. Well, it's in the criminal rules, but it's also constitutionally backed. Know what I'm talking about?
Troy [00:16:56]:
No.
Steve Palmer [00:16:56]:
Brady versus Maryland.
Troy Hendrickson [00:16:57]:
Oh, yeah.
Steve Palmer [00:16:58]:
Okay. So look again, I'm putting you on the spot. Yeah. So prosecutors not only have to give us things like the results of examinations, witness statements, audio, visual evidence, prior records, expert reports, what, all the normal stuff. They are also required, not only in the rules of criminal rule 16, but constitutionally required, to give to the defense favorable evidence. The word is exculpatory, which is fancy talk for things that might help the defense, either with respect to guilt or punishment. That matters because not just help you find, be found not guilty, but if it's mitigating things Punishment purposes. You should get that too.
Steve Palmer [00:17:43]:
The problem is this is like the, the fox guarding the hen house because we don't know what exculpatory evidence is out there. Yeah, the prosecutor does. And the, the Brady case basically puts the decision making on whether this is exculpatory into the fox's hands. And again, I'm not suggesting all prosecutors are evil, but they, they don't do what we do. Like they don't, they don't know what's going to be helpful to my case because they don't necessarily know my strategy. And it creates this sort of cat mouse game that's been played now for years and years and years and years. That's why we have to do our own independent investigation. Never trust that you're going to get everything.
Steve Palmer [00:18:20]:
Get an investigator, work up the case. If your lawyer is not doing that, talk to him.
Troy Hendrickson [00:18:27]:
Yeah, it is difficult because we don't know what they have. It would be interesting to see like, so this is. No prosecutor's gonna just come out and say, yeah, I just hide evidence. Like nobody's gonna say that.
Steve Palmer [00:18:37]:
But I have. Interesting. I have found exculpatory. I used to say this every time I try a case, I find something. Every time. I'll tell you a war story. I try to avoid worse. I'll tell you a war story.
Steve Palmer [00:18:49]:
I tried an arson case and the case was basically this. It was a boyfriend, girlfriend, and they were fighting about something. Girlfriend gets pissed off, says, oh yeah, watch what I'm gonna do. Gets his. She picks up his shoes, says, I'm gonna burn your favorite shoes. I'm gonna destroy your favorite shoes. You know, never really understood sneaker guys.
Troy Hendrickson [00:19:16]:
So.
Steve Palmer [00:19:16]:
But look, guys collect this stuff.
Troy Hendrickson [00:19:18]:
So I mean, if she burned my Crocs, I guess I understand. I'm pretty frustrated.
Steve Palmer [00:19:22]:
So she burned the shoes. And so she, she lights the shoes on fire, throws them down, leaves. Well, guess what happens. They're in a multi family residence with a condo comp. Like three or four doors and curtains catch on fire, place goes up. Nobody's hurt. Mercifully, nobody's hurt. But my client's indicted on the worst form of arson, which is basically purposely setting something on fire with the intent of cause physical harm or serious like.
Steve Palmer [00:19:50]:
Like it was overindicted. It was, it was too much. It wasn't just property damage arson. It was like real arson. Yeah, like I want to kill somebody. Arson or cause harm. We go to trial and we get an acquittal. Meaning I won the case because of that.
Steve Palmer [00:20:05]:
There was a Bridge too far. So basically there was the serious arson and then the property damage arson. We got not guilty verdicts on the serious arson. We got a guilty verdict on the not so serious arson, which I think might even been a misdemeanor. And, oh, we hung it. We hung it on the. On the property one. So the jury didn't reach a verdict.
Steve Palmer [00:20:28]:
So the prosecutor comes up to me afterwards and says, hey, look, if your client wants to plead guilty to the felony, we can do it. I looked at him, I said, dude, we won. I'm not pleading guilty. Anything. Anyway, he was. He's a buddy of mine now, but then he made a state, like later on, he made a statement to me. He's like, yeah, when our arson expert was testifying, I was worried that you were going to ask him these questions. You didn't ask him.
Steve Palmer [00:20:53]:
I said, well, do tell, my friend. And he says, well, it turns out that when you. The rubber on those shoes, when it lights on fire, it turns into something akin to like Greek fire, if anybody knows what Greek fire is. The Greeks used to have this substance they would light on fire was sort of like napalm, I guess, where it would hit and spread, you know, and the. The rubber would melt and. And ooze across the room and end up lighting the curtains on fire. Because I think it mattered. Like they were saying it wasn't just the shoes.
Steve Palmer [00:21:25]:
She actually started torching places around the room. And this would have explained why there was. Was something called a full room involvement. If you do firework anyway turned into this full room involvement and flashed out. And this would have helped explain that. And I looked at him, I said, dude, you're supposed to tell me that stuff. Said, what do you mean? This isn't a game. Yeah, this is.
Steve Palmer [00:21:48]:
That's exculpatory information. You had exculpatory information that your expert would have explained how this happened without this intent to torch the entire residence. And he just looked at me sort of dumbfounded. I was like, man, I'm serious. You had to give me that. And we ended up. The case worked out. Yeah, it was dismissed, I think after that, whatever.
Steve Palmer [00:22:09]:
But that just shows you. And he's not an. A dishonorable guy. But he just didn't see how that.
Troy [00:22:16]:
Yeah.
Steve Palmer [00:22:16]:
Why he should have to give me that. Because here's what happens. It's an adversarial system. It's like you, when you play basketball, like, you're not going to let that. You're not going to. You're not going to say, look, Man, I'm really weak with my left hand. So when I make this move over to the left, all you got to do is just give me a little drop step and I, you know, whatever. You're not going to say that.
Troy [00:22:32]:
Yeah.
Steve Palmer [00:22:33]:
You're going to try to win the damn game and hide all the stuff, hide your weaknesses. And it's a natural thing to do. The rules are designed to smoke that out. But there's that bottleneck at the end where the, the, the fox has to guard the hen house. Not all prosecutors are. Are bad. I don't mean to say that, but, but they're all human and this is the stuff. When's the last time you had this conversation? In law school?
Troy Hendrickson [00:22:55]:
I don't think.
Troy [00:22:56]:
Ever.
Steve Palmer [00:22:56]:
Ever. I would love to go teach this stuff. Anyway, look, we're going to wrap it up there. They don't teach you that in law school. Discovery war stories coming at you from LawyerTalkPodcast.com. if you've got a question, you want us to cover it at the law school table, we'll do it. Or at the rest of it, check out the what's the appeal, the Q and A, the dui, whatever. Just give me, give me a shot.
Steve Palmer [00:23:16]:
I'll be happy to answer your question or cover your topic. Lots of guests coming up in the future. Check us out. Lawyer talk off the record, on the air, law school style.