Pity the poor prosecutor


Whenever a court declares, “It cannot be said that. . . ” it’s a dead giveaway that they’re about to say something that can very well be said. Just like when they say “clearly,” “plainly” or “obviously,” you know that whatever follows will be totally controversial.

In the Appellate Division’s latest hit, we’re told that “it cannot be said” that the prejudice outweighed the probative value in a Bronx case where the prosecution showed the jury a videotape of somebody picking the defendant out of a photo array as the shooter in a completely unrelated incident.

The justification? The defendant had “saddled the People” with the “heavy burden” of proving the voluntariness of his confession, and “chose to inject” this “additional element” into the case. People v. Andrade, AD1 2011. The noive! This clearly, plainly and obviously opens the door to any inadmissible evidence that the poor, oppressed prosecution can come up with to meet its heavy, heavy burden.

Here’s an excerpt from the trial:

Humpty Dumpty: Your Honor, we want to play this videotape to the jury showing somebody identifying the defendant as the shooter in a nearby incident on the same night.

Alice: Objection! That’s totally unreliable and irrelevant.

Red Queen: If it were relevant and true, it would be inadmissible hearsay, counsel. Since it’s irrelevant and unreliable, it can’t be admitted for its truth, so it’s admissible, counsel.

Alice: But –

Humpty Dumpty: (collapsing) Oh, oh, the burden of proof, it’s killing me! It’s crushing me! Help!

Red Queen: (to Alice) Now, see what you’ve done! Saddling the People with additional burdens!

Humpty Dumpty: (moaning) Ohh! I’ve been poisoned!The defense has injected issues into the case!

Red Queen: Don’t worry, my curative instructions give fast, fast, fast relief from that nagging burden of proof.

Humpty Dumpty: Why! It’s completely gone!

About Appellate Squawk

A satirical blog for criminal defense lawyers and their friends who won't give up without a squawk.
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