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Welcome to Beat the Prosecution, presented by Northern Virginia criminal defense and DUI lawyer Jonathan Katz, where we are here to regularly present you information and ideas for beating your prosecution as best as possible. Nothing on any of our media sources, such as our podcast or website, is legal advice. John Katz only provides legal advice to current clients or for individuals who have paid for a consultation. And now for your host, John Katz.

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Hello, everybody. This is John Katz of Beat the Prosecution. I'm a criminal defense and DUI defense laura in Fairfax, Northern Virginia. I often tell you I'm excited to have the guest on that we have, but this time my guest is myself. My expected guest for this week is going to be on next week instead. This is your first show where it's just with me alone in over a year. The topic today is going to be a little shorter than it usually is, usually go for about an hour. We're going to be together about five to 15 minutes. I'm going to talk to you about what I talk about all the time, which is persuasion through storytelling, scenery enactment, and also I'm going to be talking about misidentification. This is the story of club A versus Club Blah. My client, Steve, one night goes to club A with his friends. He likes that place. It's gritty, it's real, it's down to earth. They have the music that he likes. He would never be caught dead setting his foot in club blah across the street. It has a bunch of preppies. He's not a preppy. He's probably an anti-preppy. His friends are not preppies. He has no reason to go to club blah. They have the wrong music, the wrong setting, the wrong feel, the wrong clientele for him. Steve calls me up and tells me he's been arrested the day after an alleged assault at club blah. If he had just called me up and hired me a day before the trial, I wouldn't have been able to dig deep into finding the story. You cannot find the persuasive story uh in a heartbeat, usually. You got to dig into it. So without revealing my communications with Steve, let's just say I spent a lot of time with Steve. I spoke with his friends and we developed an alibi that worked, which was what I just told you. Steve would never get caught dead in club blah. We didn't put Steve up as a witness. I didn't think he would testify very well. And furthermore, he had two good alibi witnesses. When I say uh wouldn't testify well, just because you're testifying honestly doesn't always mean that you're going to testify persuasively. Heck, I had two clients I thought were telling the truth. We got a uh a private polygrapher to test them out uh to check out if they would pass. They failed miserably. They were just so nervous, even though they were both telling the truth, in my view, and we just didn't use that polygraph. We didn't have to tell anyone where we were doing the polygraph. It was in private. That's the great thing about private polygraph. We go to trial, and Jim gets up on the witness stand and tells a story. So, how how was Steve found, my client Steve, if Jim didn't know him? Well, uh, after Jim got assaulted, he was telling his friends about what happened. Uh, this was uh two bars uh near a college town, Club A and Club Blah. And Steve was describing uh his assailant, and one of them said, That's no, Jim. Let's not get the names wrong. Jim is the uh alleged victim. Jim is describing his assailant to his friends, and one or two of his friends says, That sounds like Steve. So uh the friends pull out a picture of Steve, and Jim says, That's who assaulted me. Now, naturally, if we're the victim of an assault, if we're the victim of a robbery, unless we're very uh opposed to the criminal justice system, uh, we want that person not to get off scot-free. We want that person to be prosecuted, we want that person to have uh justice served upon them. When I say we, I'm not necessarily including myself. Uh, but by the same token, we don't want to choose the wrong person. We don't want the wrong person convicted of committing a crime that they never committed. So that was a theme, uh, a sub-theme without saying so much at this trial. This was a bench trial in a court uh that didn't have juries, and if we had lost, we could appeal and have a whole new trial in the higher court, the circuit court. We didn't have to do that. Uh Jim testifies, and on cross-examination, I established that the entire interaction between uh Jim and Steve was not for more than about five or ten seconds. It went like this. Now, uh, for those who watch this visually, this will be disseminated visually later on. I don't have a camera person with me. I guess if I stood up, uh this might work because this is actually the story I took and closed didn't closing. Let's see if we'll can't see me. Sorry. Can't see me if I step up with this camera. We need to be uh using another camera, so I'll just sell it for my seat. Okay, maybe we could do some visuals this way. All right, so here's Jim in this dark nightclub, and here's Steve, okay? So me being both Steve and Jim during closing argument. You stole my jacket. No, I didn't. Yes, you did. No, I didn't. And he falls to the ground. Now, how many seconds was that? How many seconds was that that Jim could have seen Steve? And what was Jim looking at? Jim was looking at self-preservation. How do you self-preserve yourself? You might look at the face of your assailant just to make eye contact to see what they're doing, because our eyes sometimes tell uh what we're going to be doing about punching or whatever. But other than that, uh, we don't expect that uh Jim was looking at Steve very long. Jim was looking at self-preservation, Jim was looking at that fist. Jim went to the ground, Jim never saw Steve again. So during my closing argument, I said to the judge, well, I essentially reenacted that. And by this time, the judge is laughing. Now, there's a risk that I was taking over there. I got in front of counsel table. There was no more than a few feet between me and the judge's bench. I fell to the ground. I was being very theatrical, not for the purpose of being theatrical, but for the purpose of telling the story, being persuasive. The judge was laughing. I already knew about the judge. Knew that he wouldn't be offended. And if the judge said he was offended, I would say, judge, this is what the evidence, this is consistent with what the evidence uh showed. I'm not trying to be disrespectful to the uh complaining witness here. Uh, you don't want to convict the wrong person. There's reasonable doubt about whether this was Steve. You've heard uh Steve's two friends who were with him at the club who testified that they went there with Steve, left the club with Steve. Steve was never out of their eyesight. None of them like club blah. They all love club ah. So therefore, Steve was not at club ah. Sorry, Steve was not a club blah. Steve was a club ah. It was the complainant who was at club blah, the club that Steve would never go to. For Laura to do this kind of persuasive storytelling, the Laura has to take himself out of the Laura mode and into the human mode and put himself or herself into the center of the story, ideally, visit the scene of the incident, and while performing the story, telling the story, emoting the story, however the story is being conveyed, the lawyer wants to picture themselves, transport themselves into that scene, into the circle of the story. If the lawyer does not believe the possibility of the truth of their client's representation, their client's witnesses' representation of what happened, how on earth is the judge and jury going to believe it? For me, it was a completely believable story. I knew very well about club A, not as much about Club Blah, and I would have preferred club A myself. So I think that pretty much covers it. The story the lawyer has to find the story. The most persuasive story possible, and talking about the criminal defense lawyer must find that. The story needs to be told, not only in opening statement, which I sometimes call opening argument and closing argument, but throughout. Through opening statement, through void year, jury selection, which precedes opening statement, through direct examination, through cross-examination. The story must be told and retold without it seeming like it's getting tedious. But the uh the the theme there was there of club A versus club law. The story was there, the persuasive story was there, and the judge found my client not guilty. When you're looking for a criminal defense lawyer, find out the extent to which your lawyer is going to work with you to find the story, not to just listen to you the first time or second time, but more than that, and really put your lawyer completely into the case, completely into how he's going to be, he or she is going to be as persuasive as possible for you. So we've talked about storytelling, we've talked about misidentification. Just because you're accused of a crime does not mean you're going to be found guilty. You have two choices when uh accused of a crime. You can fight, fight, fight, or throw in the towel. The choice is obvious. This is John Katza Beat the Prosecution. I'm a criminal defense and DUI defense lawyer in Fairfax, Northern Virginia. Stay tuned for next week when we've got a great guest. Thank you.

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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. Nothing discussed on our media sources, such as our podcast or website, is legal advice. John Katz only provides legal advice to current clients or to individuals who have paid for a consultation. We welcome you contacting us via email at info at beatheprosecution.com by calling our office at 703 383 1100 or texting us at 571 406 7268.