Massachusetts Criminal Defense Lawyer Blog

Last week during the Aaron Hernandez trial there were a few great examples of cross examination issues that reoccur at criminal trials. One was impeaching a witness with a prior inconsistent statement. During the Cross Examination of Hernandez Lawyer Michael Fee, the witness, Kwami Nicholas continued to deny making any prior statements. The witness was particularly difficult in that even after being shown video and audio recording of his statement he continued to deny making that statement. As a Criminal Defense lawyer in Massachusetts, the Hernandez trial has raised many interesting legal issues that have been covered on this Blog.

Fee was careful in his impeachment of the witness because he wanted the jury to accept the prior version of events recorded at the police station. He avoided giving the witness any opportunity to minimize his statements at the police station. When the witness denied remembering the statement he moved on to his next statement, as any response from the witness would have been unpredictable. His final series of questions after establishing that the witness did not remember anything from the recorded interview, he asked the witness if he a poor memory, which he denied, but given his prior statement it would be difficult to conceive of the jury placing any weight on his testimony.

The other interesting cross examination example came from the cross examination of the Commonwealth’s footprint expert, Steven Bennett, from the Massachusetts State Police.

The case against Aaron Hernandez is circumstantial; sometimes in the minds of the public this makes for a weaker case. While circumstantial evidence is viewed as lesser evidence by the public and likely by a jury, under the law, the two forms of evidence direct and circumstantial are viewed as the same, one form of evidence is not better than the other and either type of evidence can support a conviction.

At the end of the case, the judge will give the jury instructions on the definition and application of circumstantial evidence that will help the jurors understand how they should weight the evidence and the language of this instruction is one of the many important aspects of the case.

The judge will explain the difference between direct and circumstantial evidence. Circumstantial evidence is evidence where a witness cannot testify directly about a fact, but the witness presents evidence of other facts that the jury may draw reasonable inferences from.

The trial judge presiding over the Aaron Hernandez murder trial in Fall River has just reversed a critical decision she made on Wednesday that could have been fatal to Hernandez’s case. During trial on Wednesday, the prosecution called an employee of the gun manufacturer Glock to testify about home surveillance footage taken in Hernandez’s home only minutes after the murder of Odin Lloyd. My Fox Boston reported on the events.

The Testimony

The footage revealed an unclear depiction of Hernandez walking through his home at 3:30am carrying a black object that resembled a gun of some sorts. The prosecutor asked the witness whether he recognizes the object, and the witness testified that the object looked identical to what he recognizes from his experience as being a Glock 21. And although the defense attorneys attempted to strike that testimony from the record, the trial judge decided that the testimony was permissible. This testimony is arguably the most fatal part of Hernandez’s defense, since it connects Hernandez to the alleged murder weapon at the time of the crime.

The Supreme Judicial Court quashed a Grand Jury subpoena approved by a Suffolk Superior Court judge that required Aaron Hernandez’s defense lawyers to turn over his cellphone, the Boston Herald reports. According to the SJC, the subpoena was an attempt by prosecutors to misuse the Grand Jury to obtain evidence in the double homicide prosecution, rather than using the proper channels to obtain a valid warrant.

The authority and function of the Grand Jury is derived from the Fifth Amendment, and is regulated in Massachusetts by Mass. Rule of Criminal Procedure 5. The Grand Jury serves an entirely different function than the better known trial jury, also known as the “petit” jury because of its smaller size. In contrast to the petit jury that actually observes a trial and renders a verdict on either a criminal or civil case, the Grand Jury’s sole function is to investigate a crime at the direction of the prosecutor, and to determine whether the alleged suspect likely committed the crime (probable cause).

There are three more important distinctions between the Grand Jury and the petit/trial jury. First, the Grand Jury only hears from the prosecutor, and the witnesses which either the prosecutor presents or the Grand Jury summons. There is no judge, and no defense attorney present. Second, the identity of the Grand Jurors and the evidence presented in a Grand Jury are completely secret throughout the length of each Grand Jury. Only the prosecutor and any testifying witnesses could know what is said in a Grand Jury proceeding. The last important distinction is the investigative power wielded by the Grand Jury, the exercise of which triggered this SJC decision.