Defendant had a confession surpression hearing, in which he stated during the tapings he was under the influance of drugs and alcohol.(the police recorded 3 tapes in 5 days, the first on 7-12, then 7-13, and last 7-15 ) the time in between the police had put him in a padded cell to detox,pepper sprayed- caused duress to the defendant. During the hearing the prosecution had 50 police deputies testify that he was not on drugs or alcohol, he was fine. So the confessions stayed as evidence.During trial the prosecution's opening statement and through out the trial prosecution used that the defedant was on drugs and alcohol and commited the crimes. If they established in the confession hearing that he was not on drugs and alcohol, then how is it that he could use that as his case ?This is a murder case.
The prosecutor should not take inconsistent positions at two different proceedings in the same case. I assume this is something the defendant's attorney is aware of. Whether it rises to the level of misconduct and whether it can be a basis for a new trial are issues to discuss with the defendant's attorney.
That is an issue that might be worth looking into in the event that there is a conviction and the case has to be appealed. Whether there is error or impropriety in the case and, if so, whether relief would be available on appeal, cannot be determined on the basis of a short summary question. The attorney who is handling defendant's appeal would have to evaluate the claim, along with all other potentially appealable issues, in light of the entire record.
If the defendant has an attorney representing him, that is the person who should be answering your questions. I will note, however, that police testimony that the defendnat was not under the influence of drugs or alcohol "at the time of his post-arrest statements", is not necessarily inconsistent with evidence that the defendant was under the influence at "the time the crime was committed" (especially since he was apparently in custody for a few days when the statements were being made). I will add that police testimony at the motion that is inconsistent with their testimony at trial (if there are inconsistencies) allows the defense attorney to impeach the trial testimony of those witnesses AND use the prior inconsistent testimony as substantive evidence at trial (assuming that doing so would help the defendant's case). www.galivanlaw.net
Prosecutorial misconduct is a serious allegation that typically arises from suppressing exculpatory evidence or knowingly permitting false testimony. The statements that you have troubling may not be improper considering that the confessions were made over 5 days; whereas, the statements at trial were not related to the confessions. That being said, I find troubling about the statements is that they may be improper because they seem to be have been made to inflame the passions of the jury, which could be reversible error. You should consult an appellate attorney if your friend was found guilty.
Years licensed, work experience, educationLegal community recognition
Peer endorsements, associations, awardsLegal thought leadership
Publications, speaking engagementsDiscipline