“I Want a Hearing . . .”

By Mark McBride

When I became a criminal lawyer at the age of 27, and after having my bar license for all of one month, I sought out great mentors and people who could give me not law-school-type advice, but real courtroom advice.

At the same time, I had just become part of the defense team in the notorious, albeit nationally publicized, Tom Green bigamy prosecution in Utah.  In speaking with lead counsel on that case (and we spoke a lot and spent a significant amount of time together), I asked him, “John, what is the best advice you can give a guy who wants to be a great criminal lawyer?”

I’ll never forget his response.  He said to me, “Kid, listen up. This is not complicated.  All the fancy education lawyers have somehow makes them forget one thing.  And I want you to listen to me real close.  Whenever there’s something in a courtroom which does not feel right, and whenever you think a judge or prosecutor or witness is not telling the truth or trying to slide one over on you, say these words, and never get tired of saying them, ‘Your honor, I want a hearing.’”

To this day, and after having handled hundreds of criminal cases, many of which are very high stakes and/or very gory, you can still hear me say, “Your honor, with all due respect to the DA and the witness, my client and I would like a separate hearing on that separate issue.”

That advice — where you request that the Court take evidence and take a much more careful approach before it decides a critical issue — is some of the best I’ve ever received.  The heart of this strategy is that the burden is on the system and the prosecutor to establish critical facts, and it also gives the courts, prosecutors, and witnesses the chance to show you what they have.  More to the point, it allows you to make a record through lethal cross-examination, which is the heart and soul of a criminal defense attorney’s arsenal.

I have received some other great advice over the years, but, in the last few days, that wisdom from nearly 10 years ago has really been resonating in my mind.  And it is wisdom that will never go out of style, and it is wisdom that I seek to employ in virtually every criminal case I handle, no matter how big or small the issue.

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