I recently mentioned that part of being prepared for trial is having “nasty surprises for the State prepared.” For each of the cases I have set for trial, I have an NLS prepared. Often the Nasty Little Surprise (“NLS”) is the cornerstone of the successful defense of a criminal case.
An NLS can be a piece of evidence that I have that the State doesn’t have; it can be a fact that I know that the State doesn’t know; it can be something that the State doesn’t realize it should have done, but hasn’t; or it can even be a bit of law that the State isn’t aware of.
Four examples of NLSes in past cases:
1. In a weed-in-the-car case, the fact that my (testifying) client was a lay preacher whose brother (who owned the car) had been convicted of possession of marijuana.
How you gonna convict a preacher for driving his brother’s car with a roach in the ashtray?
2. In a two-kilo cocaine case, the law requiring the State to corroborate the testimony of the police informant.
This shouldn’t have been an NLS — the two prosecutors (one of whom is now running for DA) had no good reason to be unaware enough of this law. They should at least have been up to speed enough not to object so vociferously to my accurate statement of the law during jury selection. But I’ll take what I can get — the jury convicted my client’s codefendant and acquitted my client.
3. In a murder case, the victim’s mother’s request that the jury put my client on probation.
This isn’t the best example of an NLS for two reasons. First, I’m not sure this was a surprise to the prosecution, but if they knew of it they had a duty under Brady to disclose it. Second, I wasn’t certain before she took the stand that she was going to ask for probation for my client, but I followed my gut and was right. My client got probation.
4. In another weed-in-the-car case, a video recording of the marijuana’s owner confessing to my client that he’d left his dope in my client’s car when he borrowed it.
This NLS I had before setting the case for trial; I didn’t tell the prosecutor because I thought having the surprise sprung on him in trial might be a valuable lesson. At the next appearance a different prosecutor was assigned to the case. I told him that the case needed dismissing, but didn’t tell him about the video until he was signing the motion to dismiss. (Prosecutors, you really should stop taking weed-in-the-car cases. When you’re on intake and the cops call you with one, tell them to dispose of the weed and cut the guy loose unless they have something more than “he was driving the car and the weed was in the ashtray.” Even if you think possession of less than a gram of marijuana should be a crime, these cases waste everyone’s time.)