Don’t Skip This Essential Pre-Trial Preparation Step!

Murder crime sceneIt might be the back alley of a dive bar where a man was bludgeoned to death, the potato chip aisle at a local grocery store where the plaintiff claims he slipped and fell, or a tiled and antiseptic operating room where your client’s husband died during routine surgery. In each instance, regardless of whether the case is civil or criminal, the location is the same: it’s the “scene of the crime.”

In your last case, how many times did you visit the “scene of the crime” before trial began? Once? Twice? Half a dozen times?

Unfortunately, if you’re like many lawyers, the answer is probably “none.” Oh sure, you looked at photos, examined a map of the area, and listened intently as your witnesses described the scene, but when it comes right down to it, you never actually left the comfort of your office to go visit the scene.

For as long as I’ve been a lawyer, I’ve always heard how important it was to visit the scene. Law school buddies said I should visit the scene, but I didn’t listen. Trial partners told me that I should visit the scene, but I didn’t listen. Judges and senior attorneys said, “Go!”, but I didn’t listen.

To be candid, I rarely went to the scene because I always came up with an excuse for why I didn’t need to go:

“Hey, I’ve got a full caseload, with dozens of pending cases. 99% of all cases never go to trial, so why waste my time visiting scenes on cases that I know will be resolved?”

“You don’t really expect me to go to the scene of the murder, do you? That place is dangerous! Heck, a guy got killed there! (Um, I mean a guy was ‘allegedly’ killed there…)”

“I’ve seen the photos and a map of the area, so I’ve got a pretty good idea of what the place looks like.”

(Do any of my excuses sound familiar?)

Then one day, I found myself listening to someone whose advice I really trusted. This man’s worldly wisdom was more valuable than anything I’d ever learned in law school. He wasn’t a lawyer, but lawyers listened to him. In fact, his influence extended far beyond the courthouse walls. I have it on good authority that countless legislators, law school professors, judges (even a few Supreme Court Justices) still listen to everything he says, and will go out of their way to see him if he visits their town.

So who was this sage? Perhaps you’ve heard of him: His name is Jimmy Buffett, and the advice he extolled came from the song “Mañana” on his Son of a Son of a Sailor album. Here’s what he told me:

“Don’t try to describe the ocean if you’ve never seen it —
Don’t ever forget that you just may wind up being wrong…”

Buffett has given us some great advice over the years (“I took off for a weekend last month, just to try and recall the whole year,” “Come Monday, it’ll be all right,” “Barmaid, bring a pitcher, another round of brew…”) but this is probably the most useful advice he’s ever given to aid your pre-trial preparations. And if Jimmy Buffett’s recommendation isn’t enough to get you out of the office, here are three more reasons why you’ll want to visit the scene of the crime:

1. You’ll present better opening statements. If I asked you to tell me what one of the courtrooms in your courthouse looks like, you could probably describe it in great detail, couldn’t you? That’s because, in your mind’s eye, you can “see” where the jury box is located, the height of the judge’s bench, and the distance between the witness box and the attorney’s tables. When I ask you to describe the courtroom, you simply access your visual memory and tell me what you “see.”

In much the same way, going to the scene helps you “see” how the events unfolded, which lets you bring the action to life during your opening statement. Instead of cobbling together random details from witness statements and various reports, you simply transfer the images from your mind’s eye into your jurors’ minds.

2. You’ll extract more detail during direct examination. Possibly the greatest benefit of visiting the scene is that you’ll start pulling far more detail out of your witnesses during direct examination. For example, compare these two direct examinations from Driving Under the Influence (DUI) cases. The first is by a prosecutor who only read the police reports and talked with his witnesses:

Q: Officer, when you turned on your lights and sirens, how close were you to the defendant’s car?

A: About 2 car lengths behind him.

Q: Where were you when you turned on your lights and sirens?

A: On Main St., just past the Dunkin’ Donuts.

Q: Once you turned on your lights and sirens, did he stop his car?

A: No, he didn’t stop for about 250 yards, until he reached Miller’s Pub.

Q: Were there any other safe places to stop his car?

A: There were several, but he didn’t stop in any of them.

That’s not too bad, right? You know that the driver didn’t stop his car, even though the police officer’s lights were flashing and his sirens were wailing. You also know that he passed by several other safe places to stop his car. At this point, you might even be thinking that the reason why he didn’t stop the car was alcohol-related. But look at how much better the direct examination becomes if the prosecutor actually has first hand knowledge of how the scene looks:

Q: Officer, when you turned on your lights and sirens, how close were you to the defendant’s car?

A: About 2 car lengths behind him.

Q: Where were you when you turned on your lights and sirens?

A: On Main St., just past the Dunkin’ Donuts.

Q: Just past the Dunkin’ Donuts is a Waffle House, right? Is that a safe, well lit, place to stop?

A: Yes.

Q: Once you turned on your lights and sirens, did he stop in the Waffle House parking lot?

A: No.

Q: What about the Applebee’s after that? Is that a safe, well lit, place to stop?

A: Yes.

Q: Did he stop in the Applebee’s parking lot?

A: No, he didn’t.

Q: How about Bennigan’s? Is that a safe, well lit, place to stop?

A: Yes.

Q: Did he stop in the Bennigan’s parking lot?

A: No, he didn’t stop there, either.

Q: Tell us about McDonald’s. Is that a safe, well lit, place to stop?

A: Yes.

Q: Did he pull over into the McDonald’s parking lot?

A: No, he kept driving.

Q: Bob’s Big Boy? Is that a safe, well lit, place to stop?

A: Yes.

Q: Did he stop in the Bob’s Big Boy parking lot?

A: No, he drove right past it.

Q: The Hess gas station, is that a safe, well lit, place to stop?

A: Yes.

Q: Did he stop in the Hess gas station?

A: No, he didn’t.

Q: Officer, where did the defendant finally stop his car?

A: About 250 yards after I first turned on my lights and sirens, at Miller’s Pub.

By visiting the scene, you can ask more intelligent questions and elicit more details from your witnesses. This lets you fill in all of the “holes” in their testimony and present a complete picture for the jurors.

3. Your cross-examination will be more lethal. Your witnesses and investigators don’t know as much about the case as you do, so they can easily overlook cross-examination insights which would seem obvious to you. When you visit the scene (rather than relying on second hand information) you will uncover clues that others wouldn’t even recognize as being important. Those clues may be the winning edge you need to poke holes in opposing witness’s testimony.

  • “You said you were sitting in the Starbucks at 4:25 PM, looked out the window, and saw my client, Money Richpockets, run a red light and hit your best friend, Harvey Deadbeat, isn’t that right?”
  • “That day was a clear day, wasn’t it?”
  • “Not a cloud in the sky, right?”
  • “The sun was shining brightly from the west.”
  • “Earlier, you said that you had a clear view of the crash, because the sun was directly behind you as you looked out the window, right?”
  • “The Morgan St. glass shop is directly across the street from the Starbucks, isn’t it?”
  • “The glass shop has a 20′ x 10′ mirror in the front of the store, doesn’t it?”
  • “And between 3:50 PM and 4:45 PM, the sun shines directly onto that mirrored window, doesn’t it?”
  • “In fact, the light reflects directly into the Starbucks, blinding the barristas.”
  • “They close the front blinds as soon as the light hits the espresso machines, so that no one in the store gets blinded, don’t they?”

Visiting the scene of the crime can make the difference between whether the jury “sees” what happened to your client or not. Your pre-trial preparation won’t be complete until you’ve visited the scene of the crime, so block off some time in your calendar and go. You’ll be glad you did, and so will your client!

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2 thoughts on “Don’t Skip This Essential Pre-Trial Preparation Step!

  1. My Evidence prof was a former Navy JAG. He had his whole jury visit a ship to see the angle from which a witness viewed an alleged sexual assault. The defense attorney had been arguing that no witness could have seen the bunk in question in the dark, cramped quarters of the ship. But each juror got to see for him- or herself that, strange though it may seem, there was a perfect line of sight from that sailor’s particular bunk, and probably few others. And the JAG never would have noticed that fact unless he had visited the site first.

  2. I’m surprised at how often young lawyers overlook this critical step in trial preparation. Unfortunately, the practice of law in many jurisdictions is similar to work in a triage unit. Many young prosecutors and public defenders are so overburdened with huge caseloads that it’s impossible for them to get out of the office and visit crime scenes. But if they would take the time to visit the scenes in their most important cases, they’d be surprised at what a huge difference it makes for trial.

    I can think of several occasions where witnesses testified to seemingly innocuous details during direct examination, but because I’d been to the scene, I knew why that detail made an important difference in the case. Because I’d been to the scene, I was able to properly amplify the fact’s importance for the jury, resulting in several positive verdicts for my clients.

    Keep up the great articles, Elliott, I really appreciate the great tips.

    BTW, do you plan to release another video anytime soon?

    -Ralph