Comments on: NLS Tactics and Strategy http://bennettandbennett.com/blog/2008/08/nls-tactics-and-strategy.html the tao of criminal defense trial lawyering Tue, 16 Mar 2010 05:38:00 +0000 http://wordpress.org/?v=2.9.2 hourly 1 By: Links to Good Stuff « 26th St. Bar Association http://bennettandbennett.com/blog/2008/08/nls-tactics-and-strategy.html/comment-page-1#comment-4867 Links to Good Stuff « 26th St. Bar Association Wed, 10 Sep 2008 16:31:54 +0000 http://bennettandbennett.com/blog/2008/08/nls-tactics-and-strategy.html#comment-4867 [...] Bennett points out that springing nasty little surprises on the prosecution can be a long term negotiating [...] [...] Bennett points out that springing nasty little surprises on the prosecution can be a long term negotiating [...]

]]> By: Blawg Review #175 | Dui Lawyers http://bennettandbennett.com/blog/2008/08/nls-tactics-and-strategy.html/comment-page-1#comment-4797 Blawg Review #175 | Dui Lawyers Wed, 03 Sep 2008 02:57:02 +0000 http://bennettandbennett.com/blog/2008/08/nls-tactics-and-strategy.html#comment-4797 [...] tell or not to tell? Mark Bennett expounds on the theory of what to do with a Nasty Little Surprise in a criminal case. Gideon follows up with his own thoughts on the [...] [...] tell or not to tell? Mark Bennett expounds on the theory of what to do with a Nasty Little Surprise in a criminal case. Gideon follows up with his own thoughts on the [...]

]]> By: Edintally http://bennettandbennett.com/blog/2008/08/nls-tactics-and-strategy.html/comment-page-1#comment-4735 Edintally Thu, 28 Aug 2008 15:09:21 +0000 http://bennettandbennett.com/blog/2008/08/nls-tactics-and-strategy.html#comment-4735 /filed away for future use Thanks /filed away for future use

Thanks

]]> By: Remy http://bennettandbennett.com/blog/2008/08/nls-tactics-and-strategy.html/comment-page-1#comment-4733 Remy Thu, 28 Aug 2008 05:07:13 +0000 http://bennettandbennett.com/blog/2008/08/nls-tactics-and-strategy.html#comment-4733 I am with you Mark, I have learned my lesson never to share any information or tactic with the State!!! When I first started I would go and talk to the State about my motions and only to have them use what I told them against my client. Since then, I used to set the ambush and let them walk into it and open up with everything I had. Now I have learned to be more precise and civil about it. I am with you Mark,

I have learned my lesson never to share any information or tactic with the State!!! When I first started I would go and talk to the State about my motions and only to have them use what I told them against my client.

Since then, I used to set the ambush and let them walk into it and open up with everything I had. Now I have learned to be more precise and civil about it.

]]> By: PJ http://bennettandbennett.com/blog/2008/08/nls-tactics-and-strategy.html/comment-page-1#comment-4731 PJ Thu, 28 Aug 2008 00:11:35 +0000 http://bennettandbennett.com/blog/2008/08/nls-tactics-and-strategy.html#comment-4731 Confirmation bias plays a role. By the time a trial is in the works, the prosecutor has convinced himself or herself that the defendant is guilty (even though that's not his or her job). So when a defense lawyer gives the prosecutor exculpatory evidence for which rational, dispassioned evaluation demands dismissal, it is by no means assured that will be the response of the prosecutor, who, because they have utterly failed to understand their role in the American criminal justice system, may only redouble his efforts to ensure the conviction of the person he has already judged to be the guilty perpetrator. This of course all depends on the persuasiveness of the exculpatory evidence. An alibi witness is easy for a confirmation-biased prosecutor to dismiss. Something like DNA results excluding the defendant as a contributor to a biological sample from a rape kit would typically be so strong that even the most confirmation-biased prosecutor could not fall prey to his prejudgment. Then again, some people (even, nay especially, lawyers) are so dense that even this kind of evidence cannot override their confirmation bias. Hence you have Rosenthal refusing to admit Josiah Sutton's innocence despite DNA evidence conclusively showing it. Do not underestimate the power of confirmation bias. Confirmation bias plays a role. By the time a trial is in the works, the prosecutor has convinced himself or herself that the defendant is guilty (even though that’s not his or her job). So when a defense lawyer gives the prosecutor exculpatory evidence for which rational, dispassioned evaluation demands dismissal, it is by no means assured that will be the response of the prosecutor, who, because they have utterly failed to understand their role in the American criminal justice system, may only redouble his efforts to ensure the conviction of the person he has already judged to be the guilty perpetrator.

This of course all depends on the persuasiveness of the exculpatory evidence. An alibi witness is easy for a confirmation-biased prosecutor to dismiss. Something like DNA results excluding the defendant as a contributor to a biological sample from a rape kit would typically be so strong that even the most confirmation-biased prosecutor could not fall prey to his prejudgment. Then again, some people (even, nay especially, lawyers) are so dense that even this kind of evidence cannot override their confirmation bias. Hence you have Rosenthal refusing to admit Josiah Sutton’s innocence despite DNA evidence conclusively showing it.

Do not underestimate the power of confirmation bias.

]]> By: Glen R. Graham http://bennettandbennett.com/blog/2008/08/nls-tactics-and-strategy.html/comment-page-1#comment-4730 Glen R. Graham Wed, 27 Aug 2008 23:28:18 +0000 http://bennettandbennett.com/blog/2008/08/nls-tactics-and-strategy.html#comment-4730 I agree that most of the time, it is best not to give the prosecutor the opportunity to try to unduly influence a critical defense piece of evidence. I agree that most of the time, it is best not to give the prosecutor the opportunity to try to unduly influence a critical defense piece of evidence.

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