SPEAKER_01 0:00

Welcome to Beat the Prosecution, presented by Northern Virginia Criminal Defense and DUI lawyer Jonathan Katz. We are here to regularly present you information and ideas for beating your prosecution as best as possible. Now for your host, John Katz.

SPEAKER_00 0:17

Hello, everybody. This is John Katz. I'm a criminal defense lawyer and DUI Defense Lawyer in Fairfax, Virginia. This is our eighth episode of Beat the Prosecution, and here we are once again with our podcast master, Abby. Abby, thank you so much for helping us with each and every podcast and with getting our podcast set up.

SPEAKER_01 0:37

You're welcome. I hope you all have been enjoying and following along on our eighth installation.

SPEAKER_00 0:42

What is the number eight when we put it on its side by 45 degrees?

SPEAKER_01 0:47

Infinity.

SPEAKER_00 0:48

Yes, well, that might be the number of podcasts we end up having. We've been going weekly.

SPEAKER_01 0:52

And hopefully you listen to that many as well.

SPEAKER_00 0:54

There you go. What is our topic today?

SPEAKER_01 0:57

So your court date's arrived, and it's navigating that court date with your attorney and potentially testifying what to expect.

SPEAKER_00 1:06

Well, how is that not just common sense? Why do we have to do a podcast about that?

SPEAKER_01 1:11

Well, some people have never stepped foot in a courtroom before. It's unknown territory. It's can be overwhelming with all the outcomes that could happen, and you could just be anxious, and it's good to go over that with your attorney before you even have to step foot.

SPEAKER_00 1:25

Of course, I was kidding around. Know that stage you go into. Know that gladiator arena you go into. And it is like a gladiator arena in so many ways, maybe not violently, but in many other ways. Did you see the gladiator, Abby?

SPEAKER_01 1:40

Yes, I have a few times.

SPEAKER_00 1:41

Now, how much do I like the gladiator?

SPEAKER_01 1:43

A lot.

SPEAKER_00 1:44

What do I have about the gladiator in my office?

SPEAKER_01 1:46

A little the picture in the background.

SPEAKER_00 1:49

I love the gladiator in many ways because it is about winning even when there are no rules supporting the winner, even when there are no people supporting the winner. I love winning in court, and I also love winning all the more when the judge seems to be uh on the prosecutor's side, when the prosecutor is trying to sh to throw dirt in my face. One of my favorite scenes in Gladiator is where the gladiators with Russell Crow are leaving the uh gladiator pit, and there's this big mace uh being swung, and it's taking people's heads off, and still uh the Russell Crowe and the rest of his crew win. I just love it.

SPEAKER_01 2:28

Total underdogs.

SPEAKER_00 2:30

I don't love violence, but I I just love right underdogs. Well, you know the name of my blog?

SPEAKER_01 2:35

Is oh gosh, beating the prosecution.

SPEAKER_00 2:39

Well, that's one of underdog blogs. Oh, speaking of beat the prosecution, how do people reach us?

SPEAKER_01 2:44

You can send us an email at info at beat the prosecution.com. Our office can you can give us a call at 703-383-1100, or give us a text at 571-406-7268.

SPEAKER_00 3:01

What is our web address?

SPEAKER_01 3:02

Catsjustice.com, and that's K-A-T-Z.

SPEAKER_00 3:06

My favorite one instead is beatheprosecution.com. And there we have tabs on the top right for our blog, which has been around now for over 15 years, as well as our podcast. Okay, let's talk about today's topic. What do you think is one of the most burning questions for people about dealing with the courthouse other than getting on the witness stand, which we are also going to cover today?

SPEAKER_01 3:31

Uh, I would say what to prepare before that date. So it's the night before. What can you do to get yourself ready?

SPEAKER_00 3:39

Do more than the night before. Talk to your lawyer about visiting the courthouse prior to your first court date, ideally with your lawyer. Go into the uh one or two courtrooms that are similar to what you're going to be in the courtroom. I don't know if the courthouse personnel will let you sit on the witness stand in case you might be testifying, but if you can't sit on the witness stand, get as close to that witness stand as possible, look out at the audience, and you get a different perspective of what it looks like otherwise. Um, also, I mean, know things as specific as where to park and how long you need to give yourself to park. Know about what to wear. I tell my clients, no blue jeans, no athletic shoes, no shorts. I think I'm missing a fourth one. Dress conservatively enough to go to a house of worship. Uh, Abby, I think you coined it as uh dress conservatively enough to go to your grandparents' home.

SPEAKER_01 4:38

Right. You don't want, you know, grandma getting mad you're wearing rip ripped jeans or like something flashy showing off a lot of skin. Similar, I feel like, in the courtroom. You want to have some kind of, you know, professional appearance.

SPEAKER_00 4:51

But of course, that's one genre of grandparents, because plenty of grandparents are uh are former hippies and they were showing it all at Woodstock.

SPEAKER_01 4:58

True. You can dress like you're coming to see Abby's grandma.

SPEAKER_00 5:01

There you go. Okay, so what you're doing with your lawyer is you're not just talking about what's happening at the courthouse, you're talking about how you're gonna beat the prosecution as best you can. We've talked in one or two previous podcasts episodes about choosing your right lawyer. So once you choose the right lawyer, well, first of all, you're gonna get a sense of whether you have the right lawyer because when you talk to your lawyer, your lawyer is gonna be receptive to your questions and ideas if it is the right lawyer. Your lawyer is gonna work as a team with you. Uh don't expect your lawyer to hold your hand in a way that a psychologist would, but you should be able to tell your lawyer, look, I've been having a lot of trouble going to sleep at night for your lawyer to help reassure you why you need to sleep and how to sleep. I mean, I can even show mindfulness techniques for that. I think we may have talked about that before. Uh but let's uh take the Fairfax Courthouse as an example. What we do uh for our clients is uh prior to the court date, we get them an email and text telling them where to come. Uh I actually point out to them when they're in my office prior to the court date that they're going to enter the rear entrance of the courthouse. It's a shorter line. I hand them a parking pass, or else if they're talking to me on the phone, I tell them we're going to have a parking pass hanging from the door for them. And I tell them, you know, if we have 9:30 court, arrive at my office before 9 o'clock, put the parking pass on your dashboard, enter the courthouse, get to your hallway outside your courtroom by a certain time, usually at least 15 minutes before court starts, and I'll see you over there by a certain time. I tell my clients whether it's a courthouse where they can bring their cell phone. So be ready to feel naked without a cell phone at the courts where you're not allowed to bring them, which includes at least three of them in Northern Virginia. You're able to bring them in Fairfax. I made clear to my clients: do not let your cell phone be seen or heard in the courtroom, lest it be confiscated, lest it throw the judge out of shape and be unfavorable to you when you go in front of your judge with your lawyer. I had a client who said to me, Yeah, I've got all my clothes together for court, and I said, What do you got? He said, I have a blue dress shirt, uh, I've got black pants, I've got brown shoes. I said, That sounds great. And I showed up in court with him the next day and I was almost blinded. This was one of the most bright turquoise-colored shirts I ever have seen. So I tell my clients, you know, if you're gonna wear a blue shirt, make it be baby blue, because turquoise is not baby blue. What else might people want to know about before we start talking about talking to the judge and talking from the witness stand as a criminal defendant?

SPEAKER_01 7:47

Well, I think going off on the appearance thing, you don't have to break the bank and buy a brand new outfit for court. You can always try to borrow from family or friends. We're not expecting you to go on a shop and splurge.

SPEAKER_00 7:59

Exactly.

SPEAKER_01 8:00

So keep that in mind. We're not, you know, we want you to look presentable, but with your own wardrobe.

SPEAKER_00 8:06

Right. You know, furthermore, I tell my clients, you know, it's ideal to dress down. Even Martha Stewart, who had plenty of money when she was going to court in her uh uh financial uh case over in uh in New York, she would dress down. So if she can dress down, you can dress down. You don't have to break the bank. You know, for for a male, I usually say, you know, ideally wear dark dress shoes, but if you have some other sort of shoes, just make sure they're not work shoes or or sneakers, uh solid color socks, beige beige gray or navy blue pants, a baby blue dress shirt or a white dress shirt, a buckle that's not huge with a huge belt buckle. And you know, uh for for a woman, you know, we can just take it similar to that. Uh anything else before we go into testimony?

SPEAKER_01 8:53

Real quick, would those guidelines that you give your client apply to any friends or family that might be accompanying them?

SPEAKER_00 9:01

Oh yes, yes, indeed. Yeah, you know, choose wisely among your friends and family members who are going to come to the courthouse. Too many times I've seen some friends and family members, we'll just call them friends, I suppose, of some defendants, and they're acting like they're in the peanut gallery. They are being total uh nincom poops and laughing hyenas. You don't want that. You you you want uh the judge to know and the prosecutor know that you're taking your case seriously. You know which of your friends are really fun outside, but will be buffoons in the courthouse. Don't bring the buffoons. Bring the uh your serious and intelligent family members and friends to back you up.

SPEAKER_01 9:40

I think that was my question, my last question for you know, preparing before you get on the stand.

SPEAKER_00 9:47

Testimony. You have a right to remain silent as a criminal defendant, but make sure your lawyer at least prepares your testimony, at least tells you what's gonna happen if you decide to testify. Why not have your lawyer do practice questions and answers in the remote uh possibility that you're gonna testify where you say you're not going to? Or maybe you want to testify. Talk to your lawyer about whether you should testify. Well, that's for another episode. We've talked a lot in the past about uh keeping your right to remain silent, but let's talk about talking to the judge and testifying. A lot of people get stage fright. Have we talked on the podcast before about my performance experience and my experience before the in front of the camera and the mic?

SPEAKER_01 10:31

I don't think we have, but I'm sure the listeners would love to hear it.

SPEAKER_00 10:34

Well, for me, I did myself a big favor when I joined the uh the elementary school band playing trumpet at nine years old and then started performing amateur magic for children's birthday party starting at 10 years old. I ran my own business and didn't do a whole lot of marketing, but word got out, and um then I got in front of the microphone with my former law partner uh Jay Marks on Spanish Radio during the first two years of our law firm together, and that was a lot of fun. It improved my Spanish as well, and the microphone would just disappear uh while we were on the mic, and then I even when I would be on TV, I've been on TV many times about many legal issues, criminal cases, etc. Sometimes in the studio where they have these really bright lights on you. I guess the idea is not to have your shadow showing, and even there the lights in the camera would just disappear because for me, I liked having the platform to get the word out about justice, to get the word out about criminal defendants' rights, to get the word out about civil liberties. So for me, I have, I suppose, over 50 years of stage experience, so that's easy for me. But for a lot of people, uh getting in front of an audience is creates more fear than their mortality. Did you know that?

SPEAKER_01 11:56

Yeah, that's I think one of the number one fears is public speaking of people.

SPEAKER_00 12:01

Uh one lawyer I was aware of one of the best lawyers there is vomiting uh before ever going to court each time. Jul Brenner, who was a great actor, and he would uh do that role of the king and the king and I so many times, and apparently even even he, when he was doing a role they'd already performed hundreds of times on stage, uh he would be seen with his pressing his wrist against the wall uh to just go ahead and overcome nervousness. That doesn't happen with me, but if that even happens with Yule Brenner and a great lau of vomiting, I know how some of my clients feel.

SPEAKER_01 12:36

It's only it sounds so it's just natural, listeners, that you could be anxious or nervous when you have to sit up there on the witness stand.

SPEAKER_00 12:43

Right. So if I have to ask my client, you know, is is there a reason why you're so nervous? Uh the hoped for honest answer is not, well, I'm nervous about how well I'm gonna be able to lie, but I'm just nervous because I'm in front of an audience and I know that my liberty is on the line, and I know that I'm telling the truth, but I know that uh the judge or jury might get that wrong about whether I'm telling the truth. I want them to know that I'm telling the truth. Honesty is the best policy. Now, of course, silence is the best, and we've talked on the other shows before sometimes about how sometimes it's just best to keep silent. Did you know that, Abby, that if a criminal defendant testifies regarding the legality of the stop of them, the search of them, or the arrest of them, that testimony cannot be used in the separate trial if there's a separate trial phase to consider their guilt or innocence if that defendant doesn't get up on the witness stand.

SPEAKER_01 13:43

And that's stuff that your lawyer should be advising you of before.

SPEAKER_00 13:48

That's right, because there are nuances to that, because that comes from the case of Simmons versus United States from the U.S. Supreme Court, whereas there are no such protections if you want to get up on the witness stand and say, Well, yes, I did answer those questions to the cops, but it was without being memandized. So those limitations and protections apply to testifying about your Fourth Amendment right against unlawful search and seizure, but does not apply to your right to remain silent with the cops.

SPEAKER_01 14:16

So first and foremost, you even if you're anxious, you want your client to be honest, but you also want them to be natural, though, right? Understand?

SPEAKER_00 14:23

Yes. And silence is also honesty. I keep saying that. Now, there are other times we're gonna be talking to the cop with to the judge or the jury uh when you're not testifying. Uh for instance, if the uh if your lawyer is asked to continue the case based on your dog having just died, for instance, and that the dog's funeral is gonna be the next day, the judge may ask you the name of your dog. When did you when did your dog die? Even such simple answers as that can be difficult. But once again, if you're honest and if you're brief, all the better. We've talked about haiku before on the show, right?

SPEAKER_01 14:58

Yes, I think the last few episodes.

SPEAKER_00 15:00

Haiku, be as brief as possible. And when you're testifying, answer the question and only the question. I think we were talking before we got on air about uh where you put your eyes when you're testifying in court.

SPEAKER_01 15:14

Right. Where should you be looking? Are you looking at your attorney, down at your hands? What do you suggest for your clients?

SPEAKER_00 15:21

Don't look at your toes, look at the person asking the question. If your lawyer is asking the question, now check with your own lawyer, see if he or she differs, but this is the way I tell my clients. If your lawyer is asking the question, then when you're answering, look at the judge with one caveat, which is don't do the Amber Heard, which was so unnatural. Many of you, I'm sure, watched the Amber Heard versus Johnny Depper, that was the Johnny Depp versus Amber Heard trial. And uh it looks so unnatural. Her lawyers had told her, look at the jury when you're answering the questions. Yeah, do it naturally, but it was almost like as if someone's at a tennis game, you know, the audience of the tennis game looking back and forth, back and forth at the ball. Be natural about it. Oh, now we got a little vignette, a little uh a little tangent here, the Johnny Depp trial. Well, where was the Johnny Depp trial held?

SPEAKER_01 16:14

Right here in Fairfax, Virginia.

SPEAKER_00 16:16

And who saw all of Johnny Depp's fans lined up along the uh street for days upon days?

SPEAKER_01 16:22

Right outside our office.

SPEAKER_00 16:24

And uh not only that, uh what a nice man uh who's one of Johnny Depp's uh lead lords. I think his first name was Benjamin. Benjamin Shu. And my son was interested in knowing if Elon Musk was going to be testifying at that trial. So I went over to the courthouse on a Friday. They weren't doing the trials on Fridays, but instead motions, hearings, etc. And who was walking down the hallway when I was waiting to talk to one of the lords after a few minutes, but Benjamin Shu. And he actually took the time, shook my hand, we just chat a little bit, and uh I told him my son was interested to know if Elon Musk was coming, because then my son might have camped out and waited in line for uh to see the trial at 2 a.m. uh to get a ticket for for there, but he said, no, he didn't think that Elon Musk was interested in uh in going there. Now, off that tangent. Oh, except the other one was about the alpacas. So a couple of times I saw the alpacas out there. Yes, it was quite the show. Okay, now back to testifying. When the prosecutor is asking you questions, I tell my clients, keep your eyes on the prosecutor. Do you know why that is?

SPEAKER_01 17:32

Maybe it could intimidate them a little bit about the questions they're about to ask, fluster them.

SPEAKER_00 17:36

Oh, I like that one. Don't take your eyes off the opponent. I mean, it's just like with uh Korean karate, uh, our teacher, Master Lee, would say, What did you just do? He said to me. You just bowed to your opponent and took your eyes off of him? Even when you bow to your opponent, you keep your eyes on him. So if the prosecutor says to my client, I say to my clients, if the prosecutor asks you on the witness stand, I notice that when you're answering Mr. Katz's questions, you're looking at the judge, but when you're answering my questions, you keep your eyes on me. Why is that? Because I don't believe in taking my eyes off the opponent. It's true and it gets laughs. Now, not every criminal defendant gets found not guilty. Not even my clients, even some of my clients get found guilty. And then if they get found guilty, unless there's an agreed sentence in front of the judge, my clients often have to talk to the judge. Well, that can be especially nerve-wracking. They've just been found guilty, and now they know they might be getting jail or other adverse collateral consequences. What to do then? I tell my clients then, oh, we got another vignette. Did I ever tell you about the finger and the cake?

SPEAKER_01 18:51

No, I don't think I've heard that one.

SPEAKER_00 18:53

So when I worked at my summer camp kitchen uh during the summer before uh college, I'd gone there as a camper overnight for four years, and then I uh worked there during the the uh summer before college. I uh filled in for the baker's assistant one day. I was in another part of the kitchen before, and the baker was showing me how to slice sheet cakes. And he said, you take the knife, you put your finger here, here, and here, and you make a little slit, and then he turns it around 45 degrees with a sheet and said, here, here, here, and here. And he said, now you slice. And he said, You don't slice unless you have your finger on there. Now, here's a real tangent. If people are putting their fingers on my cake that I'm eating in the restaurant, I hope they wash that hand very carefully. Don't slice unless your finger's on there. So I was talking to a client of mine who's about to be sentenced uh for having been a dingling, an alleged dingling, and having rented a car for these two guys to uh to shoot a crossbow at uh someone else's car to scare them off. I don't think a crossbow can really hurt someone if they're inside the car, as long as the windows are closed. And I said to him, as I say to all my clients as an example, when you talk to the judge, keep it simple. Keep it as simple as making sure you're not slicing that cake unless you have your finger on it. And you focus on, as they do in the military, yes, sir, no, sir, no excuse, sir. After you give your short explanation of how sorry and remorseful you are, how you acknowledge, you better speak from your heart, how you acknowledge how wrong it was, and how committed you are to fixing it, and how you have been fixing it, stick to those three things remorse, acknowledging that it was wrong, confirming you're gonna fix it. And if the judge asks you any questions about it, stick as close to that as you can. Keep your finger on that cake. What else do you think people want to know?

SPEAKER_01 20:56

Well, when your client is speaking, is it okay for them to get emotional? And what would how would you tell them to handle getting emotional?

SPEAKER_00 21:05

Balance, balance, and balance. And then the H word, honesty, honesty, honesty, and the F word, follow. I will follow your sentence. As long as you're keeping it honest, balanced, and looking the judge in the eye, in a polite way, not in a slasher movie way. Uh, yes, you can get emotional, but you know, let let's keep let's keep a lid on that. You know, I represented a woman in a personal entry case way back when when I did some car accident cases, and here a car maybe going five or ten miles an hour hit her when she was crossing the street and she fell on the road. And so she's testifying at her deposition before trial, and she's asked by the other lawyer, do you see uh my client here? And uh then all of a sudden she sees the she sees uh the guy who drove into her, and she just she just broke down weeping. I mean it it just was not believable. So, you know, balance, balance, and more balance.

SPEAKER_01 22:11

And that's all the good thing about you know, preparing with your client and telling them, you know, you might have to speak and going over those things with them beforehand so they're prepared, you know, so they maybe don't have as big emotional breakdowns or they can manage their anxiety beforehand.

SPEAKER_00 22:27

Well, prepare, prepare, prepare. I don't watch a whole lot of TV, but I think Britney Spears was on the Grammys once a few years ago, and you could tell she hadn't prepared. This was after she had all these videos where she just wowing the audience and later on she would do it, but she was just awful. I think it was this was the one where Sly Stone was on. Did you see that one?

unknown 22:46

No.

SPEAKER_00 22:46

Okay. Uh prepare, prepare, prepare. Make sure your lawyer is prepared. And if your lawyers have been doing this for years and years, it's great for it to be second nature for your lawyer. And when you feel more confident in your lawyer, you will feel more comfortable. Do you think that wraps it up, Abby?

SPEAKER_01 23:03

I think that goes over it pretty well and what everyone can expect.

SPEAKER_00 23:08

Now, where can people reach us?

SPEAKER_01 23:10

So you can visit us at beat the prosecution.com or you can send us an em email at info at beatheprosecution.com. And our phone number is 703-383-1100. Texting, as always, is 571-406-7268.

SPEAKER_00 23:28

Thanks everyone for listening. This has been the eighth podcast of Beat the Prosecution. We look forward to seeing you next time. This is John Katz, a Fairfax Criminal Defense Laura and DWI Defense Laura. Thanks again.

SPEAKER_01 23:42

Thank you for listening to this week's episode from Beat the Prosecution. This is a regular podcast giving people a leg up against police investigations and prosecutions. We welcome you contacting us at info at beatheprosecution.com by calling seven zero three three eight three one one zero zero or texting us at five seven one four zero six seven two six eight.