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Both defense and prosecution play to win; truth is secondary

  • Author: Darrel Gardner
  • Updated: June 29, 2016
  • Published February 25, 2015

In a commentary in the Alaska Dispatch News Feb. 7, headlined "Attorney doesn't tell the whole story," Val Van Brocklin criticizes two stories by Marcelle McDannel, a regular ADN contributor, regarding the role of "truth" at trial.

Van Brocklin is a former prosecutor and current law enforcement trainer. In an article for, she coaches police officers on techniques for "successfully testifying in court and winning courtroom confrontations." The article focuses not on the truth, but instead advises officers how to dress, make an entrance, take the oath, and otherwise appear credible and convincing to the jury. The article acknowledges that law enforcement officers are not neutral witnesses because Van Brocklin cautions officers to "resist the temptation" to "add information to your answer that you think helps advance the prosecutor's case."

In her ADN commentary, Van Brocklin also criticizes the National Association of Criminal Defense Lawyers, saying the association's website "argues that a criminal trial is not about the truth and urges its members to challenge any jury instruction that suggests it." Van Brocklin is likely not a member of NACDL, which precludes prosecutors from membership, and therefore does not have access to its full website. To put the NACDL article in context, one must remember that among the most fundamental principles of American criminal justice, as reflected in the due process clause of the U.S. Constitution, are the presumption of innocence and the governmental burden of proof of guilt beyond a reasonable doubt at trial. The NACDL article speaks to this concept by noting that the U.S. Supreme Court has held that "it is important for the jury instructions to assure the jurors understand that ... the question in a criminal case is not whether the defendant committed the acts of which he is accused. The question is whether the Government has carried its burden to prove its allegations. ..." (Mitchell v. U.S. (1999).

Van Brocklin states without further elaboration that "there are Alaska Rules of evidence and case law that prohibit juries from hearing certain relevant, truthful evidence." She then states that criminal defense lawyers "routinely argue these rules to keep such evidence from the jury," as if defense lawyers are somehow deceiving juries rather than doing their job by asking for the correct application of the law.

Alaska evidence rules do indeed preclude the introduction of relevant evidence "if its probative value is outweighed by the danger of unfair prejudice, confusion of the issues, or misleading the jury, or by considerations of undue delay, waste of time, or needless presentation of cumulative evidence." (Alaska Evidence Rule 403.) The rules also generally preclude the introduction of evidence that was illegally obtained, such as if the police interrogate a citizen in violation of the Miranda rule, or impermissibly search or seize persons or property in violation the of Fourth Amendment. (Alaska Evidence Rule 412.) Ultimately, however, it is the trial judge, not the defense lawyer, who decides whether certain evidence should be presented to the jury or not.

It is an unfortunate fact that "truth" does not always prevail at trial, rigorous cross-examination notwithstanding. If it did, no innocent person would be convicted. However, the Innocence Project reports that currently there have been 325 post-conviction DNA exonerations in the U.S. since 1989. Twenty people had been sentenced to death before DNA proved their innocence and led to their release. In almost 50 percent of DNA exoneration cases, the actual perpetrator has been identified by subsequent DNA testing. ( The vast majority of criminal prosecutions do not involve DNA evidence, yet the same factors that resulted in the wrongful conviction of DNA exonerees are present in many other cases -- eyewitness misidentification, invalid or improper forensic science, overzealous police and prosecutors, and inept defense counsel. The likely number of wrongful convictions is staggering.

Van Brocklin is correct, however, when she says that "ADN readers deserve a balance of reporting and opinions from which they can make up their own minds about their criminal justice system." I couldn't agree more.

Darrel J. Gardner was born and raised in Anchorage and admitted to the Alaska Bar in 1983. He is an assistant federal public defender. He is immediate past-president and a founding director of the Alaska Association of Criminal Defense Layers, past-president of the Alaska Chapter of the Federal Bar Association, lawyer representative to the Ninth Circuit Judicial Conference and a current member of the board of governors of the Alaska Bar Association. This commentary is his personal opinion.

The views expressed here are the writer's own and are not necessarily endorsed by Alaska Dispatch News, which welcomes a broad range of viewpoints. To submit a piece for consideration, email commentary(at)

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