Prelims: Laying the Foundation; Bickering Defense Counsel

As I mentioned in a previous post, the elements are the most important thing. One thing that may be easy to overlook, particularly if you've become comfortable with preliminary hearings on the prosecution side, is that you must still establish that a police witness is, in fact, a police officer. Furthermore, in California, you should also establish the the officer has been a peace officer for more than 5 years, or has been POST-certified, so that he may, under Prop. 115, testify as to what others have said to him without such testimony being inadmissible hearsay.

The Stud took on a two-defendant narcotics sales case. The defendants were, essentially, the supplier and the hook, and the police witness was an undercover buyer. The Stud had laid out the basic facts of the case in his notes, but forgot at the beginning of direct examination to ask the officer what his occupation and assignment were, and the length of time for which he has been a peace officer. However, the Stud did recover and laid the foundation a little bit later on, and the defense attorneys were very nice about not giving him crap about it.

The case really became interesting later on, as the defense attorneys tried to shift the blame away from their respective clients to the other's client. In doing so, both attorneys failed to object when the officer, in answering their question, stated a pertinent piece of testimony that established who the supplier was. As for the hook, there was little his attorney could do, because the fact was that drugs and money (a pre-recorded $10 bill) had exchanged hands. The Stud and his supervising DDA were smiling at each other as the defense attorneys did what they had to do.

So, the morals of today are: (1) Always have a list of questions or a checklist of elements, even if you think you won't forget, especially when your experience is limited to one or two prelims a week; and (2) enjoy when defense attorneys try to blame each other's clients.

The result: The defendants were held to answer.

Track record: 4-0.