D4vd on trial, Witnesses to take the stand

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1:10Anoushka Mutanda-Dougherty:Hello and welcome back to Fame Under Fire from BBC Sounds with me, Anushka Matanda-Doughty. Just a warning, we are jumping in with an update on the David case and as always with this one, the details are graphic and some listeners may find them upsetting. Now yesterday, that's June 17th for me, David was back in the courtroom. Remember, the 21-year-old singer has been accused of the murder, unlawful dismemberment and continuous sexual abuse of 14-year-old Celeste Rivas Hernandez, whose body was found decomposing in a car linked to him. David has entered a not guilty plea on all charges. Now, if you're not familiar with the case, we've done multiple episodes on this now that will catch you up and we'll meet you right back here when you're done.

1:46Anoushka Mutanda-Dougherty:But we had the status conference and now we know it won't be the last one. We found out that the preliminary hearing has been pushed back to the 21st of July. That's why the prosecution lay out all the evidence they claim to have to convince the judge this case should go to trial. But it's also being reported that they will coordinate witness schedules for the preliminary trial. So we could be hearing from some of those people who testified in front of the grand jury, like David's best friend, Neo. So this preliminary hearing does look like it's going to turn into a bit of a mini trial. Now, pushing back the status conference again and the preliminary hearing again, of course, means a delay to any future potential trial.

2:22Anoushka Mutanda-Dougherty:Now we haven't had a response from the family but their lawyer did say in a previously released statement that they're asking for time to grieve with a reminder that quote they still have bills to pay and jobs they go to every day although one is time to grieve and heal.

2:40Anoushka Mutanda-Dougherty:Now coming up we have Sean of course answering all of your questions about this potential trial and some big criminal case questions as well. But first, I'm hearing that some of you still don't have your tickets to come and see us at CrossWires. And that is just simply unacceptable. It's literally free. Not only is it a live recording, but we're giving you the lowdown, the behind the scenes of some of the world's biggest cases. You know, the stuff they don't let me say on air. We have Sean Kent coming from the States, the United States of America. Deep that for a second. the constitution's biggest fan the constitution's biggest nerd who's got the stars and stripes lining the inside of his jacket is coming to the united kingdom on the 4th of july on america's 250th birthday to hang out with the brits find us at the cole brothers stage in sheffield at crosswires visit crosswires.live forward slash fringe for the full list of programs and how to get free tickets get it together you don't want to miss this and you don't want to miss what's coming up right now, which is Dr.

3:41Anoushka Mutanda-Dougherty:Sean Kent back in the building telling us all about criminal trials and answering some of your big questions. So Sean, we've just been getting an update on the latest developments in the David case. And we're going to talk to you about that. But we've got so many questions and myths to bust about criminal cases in general that have been coming in. And I think people are forgetting the difference between criminal, between civil, between state, between federal. So we've got the expert here to go through them. But before that, What does everybody need to do? Buy chicken wings. Go again. Go again.

4:10Go again. Go again. Did I get it wrong? You got this, Grandpa. Come on. I got this. I got this. Everybody needs to go and create a MySpace account. Isn't that what it's called? I wouldn't know what that is, but okay. Everybody needs to get their tickets. I'm coming to London. God save the Queen. Idris Elba. Mind the gap. Sean, I hate to break it to you, baby, but the Queen is dead. Oh. Is this the first you're hearing of it? The Queen is dead? I'm coming to London. I'm looking forward to meeting as many people as we can possibly meet. So please, please, please grab some tickets so we can see and meet and greet and talk.

4:48And you guys can teach me about British culture. I've already learned that Kent, London is not a place, which made me very sad. Yeah. Sean also seems to think that the festival Crosswise is in London. It's in Sheffield, which are two separate places. But you try and explain that to an American and they're... It's all one place. I don't understand what you guys are talking about. It's only two hours to get there. It's all one place. Switzerland, Norway, London are all in the same town. Right? Just don't get violent with him when he comes over here. He means well. Thank you for that. Thank you for your video where you repeatedly referred to Sheffield as London.

5:24It's okay. We forgive you. We know you're having a hard time in the World Cup, so we'll let you off. Now, one of the biggest questions that I have, I'm going to be a bit sneaky because I'm going to go in with my first question first rather than the listeners. But this has been bugging me for a while. With a preliminary hearing where they're open to the press and the public and they lay out the evidence that they have in order for the judge to make a determination whether this should proceed to trial. How on earth is that not biasing a potential jury pool? Everything can bias a potential jury pool.

5:53Everything. And prosecutors are very, very slick. And that's why we always see these press conferences that they insist on doing. And the defense does them, too, to try to get their message out. But once we choose and select a jury, the judge is required to ask one question and one question only. Even given the information, you know, even given everything you've heard, can you personally be fair and impartial? More importantly, they focus on impartial. And if that juror member says, I've heard about it. I know about it. I've read about it. But I can put all that aside and listen to just the evidence that's presented in trial and be impartial.

6:28That's the only standard that is required. I'm sorry. I know you love it. But this seems like a real flawed system. Sorry. How could you listen to five days of a preliminary hearing with all of the evidence and then go, you know what? That didn't sway me an inch either way. It seems like it. But if lawyers do their job and do their back research and figure out who human beings are, And then we have some things called voir dire. And all that means is we get to ask potential jurors certain questions. And amongst them, you ask things like, are you on social media? Are you a criminal trial junkie?

7:00Do you watch certain things? And then as a lawyer, if we learn certain things of information about somebody, even though they say they're being fair and impartial, we can call peremptory strikes to get rid of somebody. We can say, look, judge, that person there, they may say they're being fair and impartial, but we want to use one of our strikes to remove this person because we don't want them on the jury. So it's an exclusion method. It's like a checks and balance to make sure we don't get someone who is biased on the jury. That's so funny to me because it's the crime and court junkies who are desperate to be on juries.

7:32And they're probably going to be the first ones to get struck off. You have a TikTok where you report on this stuff every damn day. out. You're not wrong. 100%. If I'm picking a jury and I see that you are a avid social media crimes junkie enthusiast, I want you on no part of my jury. I want you gone 100%. And I think prosecutors both sides feel that completely. That if you're posting, posting on cases, you think that you're the perfect juror, you are the worst juror humanly possible and we want you out. Sorry, guys. My other question is, do you have to put all your cards on the table at preliminary hearing?

8:09Or can you save some evidence, keep it up your sleeve for the trial? Or is everything going to be laid out? This is what we've got. Everything should be laid out because remember, we have a discovery system. This is not gotcha. And so what ends up happening is you are required to give everything you have to the defense anyway. And so a good prosecutor doesn't want to leave out some information so that the judge doesn't find probable cause. So they'll tell it all. They'll put their case. We are going to know the case against David once a preliminary hearing is over because you're almost required to do it because you have to give all the evidence to the defense anyway, so why hold anything back?

8:43There are no secrets. Well, yeah, we saw in some of those early filings, we've seen what the defense alleged that they have, but we haven't heard anything from the prosecution, but they keep saying what they have will prove that he was not the cause of Celeste Rivers Hernandez's death. So it will be interesting to see what it is that they exactly have then. But I still don't understand. It feels like a trial. This is a mini trial, no? It's completely a mini trial. In most circuits and most states, the prosecution has to give up all their information to the defense. The defense does not have to give up all their information to the prosecution.

9:19So the defense can leave some of their theories and some of their information for the way that they're going to cross-examine people. They don't have to tell the prosecution everything. So the defense can do trial by gotcha.

9:31Anoushka Mutanda-Dougherty:But how then does the judge make a determination that the defense and the prosecution have enough evidence to substantiate the case? It's not the question if the defense has enough. It's whether or not the prosecution has reached the burden to the court to say we have enough that David is most likely or there's a real chance. And let's think about it with preliminary hearing. Let's use that phrase. There's a real chance he probably did it. That's the only standard. The real question to the court is, does the prosecution have probable cause, a realistic belief that David could have done it and this case should go for it?

10:04It has nothing to do with the defense. As a matter of fact, technically, the defense doesn't have to be there to ask questions. So the defense could come and say nothing. They could say absolutely nothing. That's interesting. They don't have to put on witnesses. They don't have to ask questions. A lot of times when we do preliminary hearings, our client never testifies, never says anything. Sometimes, Anishka, when we do preliminary hearings, we tell the client not even to show up. And what we'll do is ask questions of the state, the challenge that they don't have probable cause or a real reason why they arrested somebody and why this case to go forward.

10:35Well, that kind of leads on to the next question that we got in from a listener, which I thought was a really interesting one. And the difference between civil and criminal that we talk about a lot in a civil trial, the defendant is deposed and they take the stand in a criminal case. you often don't hear from the defendant. They've asked, is there ever a scenario where the criminal defendant can be compelled to testify either by the judge, the jury, I don't know, somebody? Is that ever a possibility? Nope. Guaranteed by the United States Constitution, you do not have to incriminate yourself. So they cannot make you say anything.

11:06You cannot be forced to say anything if you do not want to. Even his own lawyer cannot force a client to get on the stand if they do not want to testify. There's no vehicle in which you can make somebody. It is a bedrock of our trial principle that you are innocent until proven guilty. And the judge even tells the jury, you cannot take into consideration that blank did not testify. You cannot even consider when you go back that the defendant did not testify. And the judge tells the rest of the jury, if somebody says that and considers it, you come back to me and we will change that right away.

11:39Anoushka Mutanda-Dougherty:What about a situation like it's alleged in this case that the prosecution say the crime took place in a closed door setting where Celeste Rivers Hernandez, the victim, is deceased and the perpetrator, who they allege is David, was the only other person there. So is it not a necessity that they testify as they were the only person in the room, according to the prosecution's theory? What a great question. Well, there are two types of evidence that people need to make sure they understand. we're looking at trial. The two types of evidence are direct evidence and circumstantial evidence. And the judge will explain this to potential jurors.

12:13Let's say direct evidence is what you just talked about. Eyewitness testimony. Somebody saying, you know what? I saw him doing this. There is a confession. There is a video. There is DNA. This is direct testimony that somebody did something. Now, there's another type of evidence that has the same evidentiary value of direct evidence. It's called circumstantial evidence. You say, what is circumstantial evidence? Well, it's your common sense. Circumstantial evidence is somebody walks into your office. They've got an umbrella. They've got a jacket on and they are wet. You look at them and you say, well, it must be raining outside.

12:52Well, that's you using circumstantial evidence that it could be raining outside. It doesn't mean that it's raining. It doesn't mean that you saw it was raining. You don't know for a fact and they didn't tell you it raining. Circumstantial evidence is a chain of facts that makes something more likely that can be utilized. There is no difference between the two. One is not stronger than the other. So the prosecution in this case will be putting forth a circumstantial evidence case utilizing chains of evidence. And that's all the stuff they'll put it together because, of course, they do not know for a fact what happened.

13:25They do not have David saying this is what happened. So in almost every trial in America, you get to use circumstantial evidence to prove your case to a jury. You cannot force him to testify. But the thing that you guys don't like is the hearsay. The judge, that was hearsay all the time. We do not like hearsay. What hearsay is, is an out of court statement used to prove the truth of the matter asserted. You're like, what in the world does that mean? All that means is we are big in America on what's called the confrontation cause. Meaning if you accuse me of something, I am allowed to face my accuser.

13:58You cannot say something nasty about me without me being able to ask and question you why. And so what hearsay, basically the bedrock of it is exactly that. You cannot put somebody on the stand who's going to say, well, you know what? Janie told me that David did it. Well, put Janie on the stand so I can confront her, so I can talk to her. You cannot put third hand information on because that's not fair to the defendant. And this other question is a bit more anecdotal, but we've had it a few times, actually. When you guys know each other, the defense and the prosecution, the teams know each other, probably go way back, etc.

14:33And one of you wins, shall we say, brutally defeats the other. Is there a post-match debrief? Is it icy? Do you have to give it like two or three days to cool off? How does that work? Depends. In some jurisdiction, people do take things very personal. But usually, like we had a pretty big trial a couple of weeks ago. I am dear friends with the prosecutor. We grew up together. We've tried cases together. We've known each other a long time. He does not take it personal. He does his job. I do my job. At the end of it, we shake our hand. You know, sometimes you do take time like normal human beings to process that somebody might be going to jail for the rest of their life or somebody's not guilty.

15:09But nine times out of 10, you don't take it personal and you work on the next case. And then this is a good final question, actually. What on earth do you do when you're, if you're, or potentially when your client gets up on the stand and starts bare face lying and you know, you know damn well it's a lie? I'm not even going to tell you that's a great question, but I love that question. People get views of attorneys so wrong initially. we cannot and will not. Now, that is something that no good lawyer will ever do. We will not lie for our clients. Just won't do it. Can't do it. I mean, that is a canon under the eyes of the law that you can't lie.

15:44And so you run into the situation that you cannot put a client on the stand to intentionally perjure themselves. Perjury is putting your hand on the Bible under oath and just telling a lie. So what ends up happening? We have to look at your question in a couple of ways. One, if the lawyer knows the client's going to lie, if the lawyer thinks the client's going to lie, and then the client gets on the stand and starts the lie. If the lawyer knows the client's going to lie, he cannot put him on the stand. He just cannot do it. It is impermissible. But the client is the boss. And so if the client comes to you and says, I'm testifying no matter what, and you know they're going to lie, you got two options.

16:24One, you can move to be removed from the case, and the judge is going to say, nah, bruh, you took the cash. you're going to represent him. So at that point in time, since we can't suborn perjury, we can't encourage someone to lie. We can't help them lie. We put them on the stand that the law allows them to do what's called testifying in the narrative. What that means is I'm not asking you questions. I'm not helping you lie. You get your tail on the stand and you just go at it. You tell the jury whatever you want to hear and you just let them talk and you don't help them perjure themselves. The second situation we talked about is what ends up happening is if you just think this guy's not telling the truth.

16:58They've always told you one story, but you're like, that's some suspicious, I don't necessarily trust you. Under that situation, you're still required to zealously advocate for them because you do not know for a fact that they're lying. Even though you might be suspicious, you have to take them as their word is what the truth is, even though you don't necessarily believe them because you don't have concrete proof. Yours is the weird situation. What happens if you know the client has told you a lie, you know what the truth is, they get on the stand and they start telling the truth, and then you know for a fact they are lying.

17:35Remember, you're not allowed to suborn perjury at all. And two, you're not allowed to tell the court that this guy is lying because that would be violating attorney-client privilege. So in that unique situation, you would have to require the court to take a break. You're like, Your Honor, at this point in time, we need to take a break. And then you would take a break. You would not tell the court what's going on. But you say, Your Honor, we'd like to put him on. And for the remainder of his testimony, remember the first thing I talked about, we would like him to testify in the narrative. And that signifies to anybody who understands the practice of the law, ah, this mug is about to lie.

18:07And this guy doesn't want to follow the line with that. Wow. It's tricky stuff, you know, tricky stuff. Well, that's why you hear the situation a lot of times. And, you know, over here, we hear people say, well, when you meet with a client or you see in the movies, don't tell me what happened. Don't tell me the truth, because that way I can put you on the stand. Yeah. You always hear that. But good lawyers do the opposite. Well, well, Sean, thank you very much. You're more than welcome. And you can hear more of Sean's brilliant analysis, his tidbits, his behind the scenes threats to the prosecution in Sheffield at the Crosswires Festival.

18:41In person. He'll say even more when he's live. Who knows what's going to come out of his mouth? Y 'all aren't going to be able to censor me? Let's go. Here we go. You guys don't have a big enough beep button to stop me. You got me in person? Bring it. We are breaking it. I'm going to assert that First Amendment right if it kills me. Well, come on, guys. It's free. Just come to Sheffield. Here's Sean Purger himself. Libel 50 people. Threaten 50 others. It's going to be a good time. Thank you very much, Sean. Thank you all so much for having me. I can't wait to see everybody in person.

19:19Anoushka Mutanda-Dougherty:That was our resident trial attorney, Sean Kent from South Carolina. And that's it for this episode of Fame Under Fire from BBC Sounds with me, Anushka Matandadauti. As always, if you've got any questions, send them to us on social media or you can WhatsApp us on 0330 678 1114. That's 0330 678 1114. Make sure you subscribe and turn on those push notifications so you never miss a thing. I'm Kate Lamble and from Understand from BBC Radio 4, this is Rinsed. Last time I was here, there was a tampon and there was a condom. A sewage scandal damaging our rivers. We had an enormous range of animals in the garden and that also started to disappear.

20:02Uncovered by ordinary folk taking on powerful people. And they told me there's nothing wrong with the river Windrush. basically go away and stop troubling us. This is the story of how a centuries-old battle between public good and private profit created an almighty stink. And who pays to clean it up? Rinsed. Listen first on BBC Sounds. And I thought, no, you're the problem.

20:36He's widely recognised as one of the greatest footballers in history. He's won the prestigious Ballon d 'Or award five times. He's the all-time leading goal scorer in professional football. And according to the Bloomberg Billionaires Index, he's the first active footballer in history to achieve billionaire status. Guess who we're talking about yet? That's right. Good Bad Billionaire is exploring the life and fortune of football icon Cristiano Ronaldo. That's Good Bad Billionaire from the BBC World Service. Listen now wherever you get your BBC podcasts.

21:10What do Beatles member Sir Paul McCartney, YouTube megastar Mr Beast and former Facebook executive Sheryl Sandberg all have in common? They're all being discussed in the new season of Good Bad Billionaire, the podcast which explores the lives and fortunes of the world's super rich. That's Good Bad Billionaire from the BBC World Service. Listen now, search for Good Bad Billionaire wherever you get your BBC podcasts.