Help! We are about to start trial on Monday & would like to know if anyone out there has had a case where they have alleged an unknown deadly weapon. If you have: How did you address it during voir dire? Did you include any special instruction in the jury charge? How did you overcome defense's arguement "If they don't know what it was, then that's reasonable doubt right there." In our case, the defendant robbed a bank & some witnesses say he was waving around what looked like a gun. Others say it looked like a knife. Defendant didn't shoot or cut anyone.

Thanks for any help you can give.

Your deadly weapon is not unknown, just uncertain. You should allege a firearm or a knife. Testimony should be presented to support a firearm or a knife. The jury should be instructed to find whether they believe beyond a reasonable doubt that the deadly weapon was a firearm or a knife. And you should voir dire on the fact that the weapon doesn't have to be recovered to be believed.

You allege an unknown deadly weapon when there is no evidence to support a particular type of weapon, but you have evidence to show that something caused serious bodily injury or death. The proof is in the result.

Here, you don't have a result, just a threat. So, you have to get the jury to believe in something -- a firearm or a knife.

Of course, the defendant (or his attorney) could simply argue that the firearm could have been a BB gun and the knife could have been fake. If the jury believes the defendant, you lose. If the jury believes the victim, you win.

You simply tell them in voir dire that if a crook is not caught at the time or shortly thereatfer then he controls whether we find the weapon or not. I've tried eight or ten "object unknown" cases and never had a juror who had a question on the matter. Remember that on the knife issue you will have to prove it was capable of causing SBI or death. Itis a bit late but I believe it should have been indicted "firearm or knife" because truly we do know that it was one or the other (probably a nickel or chrome firearm?). Read the cases: just enter "object unknown" in Westlaw.

Some of the larger offices keep a variety of firearms and knives to use as demonstrative evidence during trials. That way, you can ask the victim whether the demonstrative evidence looks similar to what the defendant used at the scene. Then, the jury gets to see something solid.

Don't offer the actual item into evidence, though, or you run out of demonstrative evidence. Just take a photo and offer it.

It occurred to me that your judge may rule that we did know what the item was depending on how the evidence comes in at trial. You should be ready with a member of the grand jury that indicted the case to show they exercised diligence in trying to determine exactly what the weapon was.