There is in the old adage in the practice of law. It reads, “If the facts are on your side, pound on the facts. If the law is on your side, pound on the law. If neither are on your side, pound on the table. ”

Perhaps this gives some glimpse into the “chicken and egg” issue of how much evidence is enough to win a case. Although I have handled many civil cases, my expertise is the practice of criminal law. Therefore I will restrict my conversation herein to criminal trials.

We spend a fair amount of time in the Boston Criminal Lawyer Blog talking about law. We talk about the applications of the law, the changes in the law and the need to have experienced criminal defense attorney on your side who understands the law. Today, let’s talk about the issue of evidence.

Sometimes, I am horrified when reminded how little people understand about evidence. I’m not so shocked to hear that they don’t understand all the rules of evidence. How would they when they have never had to deal with it before? But I am amazed to learn that people actually think that a mountain of evidence is necessary in order for the Commonwealth to win a criminal trial.

This is not true.

Many cases, particularly sex crimes, come down to a “he said – she said” issue. In such cases, I am often advised by a prospective client that there is no way the prosecution can win because they only have her word for it. I then have to break the news that her word is plenty if the jury believes her word beyond a reasonable doubt.

“But Sam, what if she is a bad person? Surely, when you show the judge that he will dismiss the charges.”

No such luck

“You mean to tell me that it doesn’t matter at all about the so-called victims history?”

It matters, but not in the way that you might think. First of all, telling the prosecutor or the judge that the complainant is not a person worthy of belief is a waste of time. They are not going to dismiss the charges because you say she is a “bad person”. Further, whether the complainant is worthy of belief is a question for the fact finder, usually the jury, at trial. Finally, revealing all you know about the complainant is usually a bad tactic. You are tipping off the prosecution as to what evidence you have about her credibility so that she can be prepared on those issues at trial.

And the issue of credibility is what is what it is all about. Especially in cases like this.

The trial is when you want to bring out that which you are allowed to present to attack her credibility

“What do you mean what you’re allowed to present? “

There are rules of evidence, as well as other applicable statutes, which limit what an attorney can bring out on cross-examination to attack the complainant.

“Well, what if the complainant has a long history of convictions for fraud and perjury?”

Then, assuming you can show the convictions via certified records, you can probably cross examine her about that.

“What if she is accusing me of raping her and you can show that she practically has a new boyfriend, with whom she has sex, every other day?”

Nope. In most cases, unless you can find an exception to the rule, that type of evidence is not admissible. There are so-called rape shield laws which prevent it.

“But she is a slut and she is acting practically virginal up there!”


“That’s not fair! I’m on trial for my life here.”

You are, to some extent, preaching to the choir here. I think that more items should be admissible for purposes of credibility than the law allows. But I am a criminal defense attorney, and you know what everybody thinks of them.

The issue of character evidence, such as whether or not someone is a good or bad person, is a tricky one in and of itself. Many people seem to believe that you can simply put somebody on the stand to tell the jury their opinion that the defendant is a really really good guy and couldn’t possibly be guilty of the crime.

It is not nearly that simple.

The rules of evidence are extremely strict when it comes to when character evidence can be presented and what kind of character evidence is admissible.

Can’t evidence of bad character help you show the complainant is not worthy of belief?”

Sure. However, evidence has to be tested as to its reliability. There are not many people on the planet, I think, who could not get somebody to testify that they are wonderful human beings. Likewise, I don’t know many people who need not fear someone taking the stand and labeling them as something not quite as nice.

The fact is, a regular person’s opinion about another person’s character is really not considered reliable. In fact, opinion evidence is generally limited to expert witnesses.

No, there are no experts to testify that someone is a good or bad guy.

“Character evidence” is generally limited to a person’s reputation in the community for either truth and veracity or violent tendencies.

However, some of the evidence about which you may have in mind can still come before a jury. But, it must be offered into evidence a different way in order to be used to attack credibility.

We will discuss some of those ways in my next blog.

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