I recently had a misd. jury trial where the defendants (2) had not been charged until 14 months after the incident. The defense attorneys made a great deal of this fact to the jury throughout the trial.
The reason the charge took so long is that it was reduced from a felony assault on a public servant to resisting arrest (of a third person.
Would it have been proper to respond to defense in closing argument? How?
You can't respond to that sort of thing in closing argument unless you're referring to matters in evidence. (Correct argument only raises factual matters in evidence or reasonable deductions). Time to strike was (really carefully) in response/rebuttal of any defense questioning on the issue, e.g., if defense asked questions of state or defense witnesses that placed delay before the jury and left a false impression. At that point you'd have to be awfully careful not to overstep any door that was opened for answer -- this sort of thing is beyond extraneous offense evidence, because you obviously can't prove up the greater charge. In addition, if defense brought it up through defense witness you could get into improper impeachment issues pretty quickly. But if defense really raised issue of delay to suggest lack of diligence or imply that police doubted credibility of the witnesses, you're entitled at a minimum to respond with evidence that you were actually investigating and had filed an unspecified charge that was later modified to the current charge. Just don't go overboard.
Of course, it shouldn't take 14 months to evaluate a case and decide it was a misdemeanor instead of a felony.
Thanks John. That is pretty much what I felt also, so I didn't make any response. Didn't seem to hurt the jury any.
The officer who made the original report was suspended for 4 months on another matter. Then it went into the felony/misdemeanor mix. Really hope this issue doesn't come up again.
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