The (criminal law) water cooler
by Richard Barbuto
Standing around the criminal law water cooler has exposed me to lots of different words and phrases that have a different meaning in the criminal law world than you might think at first blush. Many, but not all, of these phrases pop up in criminal trials and are either substitutes for reason or codes to deliver messages to jurors, attorneys or judges. I thought it might be fun to let everybody in on these things so there is no mistaking what is really going on.
"Common sense" - This is something one hears prosecutors use all the time. It will sometimes be used during jury selection and always in the prosecutor's summation. We hear this when the prosecutor implores the jury to use their common sense. Translation: Ladies and gentlemen, I do not have a shred of evidence as to why you should convict this dirtbag defendant but we all know he is guilty so let's get on with this and then go have a beer.
"Common sense" - This is something one hears prosecutors use all the time. It will sometimes be used during jury selection and always in the prosecutor's summation. We hear this when the prosecutor implores the jury to use their common sense. Translation: Ladies and gentlemen, I do not have a shred of evidence as to why you should convict this dirtbag defendant but we all know he is guilty so let's get on with this and then go have a beer.
Closely allied with "common sense" is the "so what" argument. We see this one when the prosecutor has either a huge evidentiary hole in his case or the defense lawyer has come up with an irrefutable argument. I once exposed to a jury that the chief prosecution witness was a liar, a fraud and a drug user. The prosecutor's response: So what. I am not kidding. This really happened.
"Prosecution oriented" - This term refers to judges and means the judge will assist the prosecutor in every way possible to convict the defendant. I have been told that there are defense oriented judges but I have never actually seen one.
"Defense oriented" - This is a term used by prosecutors to describe a judge who once made a ruling in favor of a defendant before he knew better.
"Counselor" - This is one of my personal favorites. It is mainly used by detectives testifying at trial. It comes up in the following way. A defense lawyer will ask the question of a detective and a detective who will respond with "Well counselor" followed by the answer. The jury will then think that the detective is showing a lawyer some respect. What the detective is really doing in his answer is saying "Well asshole" followed by his answer. The idea here is for the detective to appear to be showing respect while in truth he or she normally hates defense lawyers. Parenthetically, the hate for defense lawyers evaporates when cops themselves are arrested.
"Flake" - A person is "flaked" when evidence is planted on or around them. The word can be used interchangeably with "lay down." The word originated when cops would carry an extra gun to lay down near a person they just shot who turned out to be unarmed. As you might imagine it is a lot easier to claim self defense when the guy you shot was armed. Of course, once there is a "flake" perjury will soon follow which brings us to ...
"Testilying" - I am not positive but I think this term was first used by Alan Dershowitz, but it really doesn't matter who thought of it first. This word refers to police types getting on a witness stand, swearing to tell the truth and then lying through the teeth. Let's face it, if a cop "flakes" you know he is not going to admit it now, is he?
The next time you have jury duty watch out for these words and phrases. If you are lucky you might be treated to a prosecution triple header. That's when the witness says "So what counselor, use your common sense." That witness might be testilying.
"Prosecution oriented" - This term refers to judges and means the judge will assist the prosecutor in every way possible to convict the defendant. I have been told that there are defense oriented judges but I have never actually seen one.
"Defense oriented" - This is a term used by prosecutors to describe a judge who once made a ruling in favor of a defendant before he knew better.
"Counselor" - This is one of my personal favorites. It is mainly used by detectives testifying at trial. It comes up in the following way. A defense lawyer will ask the question of a detective and a detective who will respond with "Well counselor" followed by the answer. The jury will then think that the detective is showing a lawyer some respect. What the detective is really doing in his answer is saying "Well asshole" followed by his answer. The idea here is for the detective to appear to be showing respect while in truth he or she normally hates defense lawyers. Parenthetically, the hate for defense lawyers evaporates when cops themselves are arrested.
"Flake" - A person is "flaked" when evidence is planted on or around them. The word can be used interchangeably with "lay down." The word originated when cops would carry an extra gun to lay down near a person they just shot who turned out to be unarmed. As you might imagine it is a lot easier to claim self defense when the guy you shot was armed. Of course, once there is a "flake" perjury will soon follow which brings us to ...
"Testilying" - I am not positive but I think this term was first used by Alan Dershowitz, but it really doesn't matter who thought of it first. This word refers to police types getting on a witness stand, swearing to tell the truth and then lying through the teeth. Let's face it, if a cop "flakes" you know he is not going to admit it now, is he?
The next time you have jury duty watch out for these words and phrases. If you are lucky you might be treated to a prosecution triple header. That's when the witness says "So what counselor, use your common sense." That witness might be testilying.
0 Comments:
Post a Comment
Subscribe to Post Comments [Atom]
<< Home