Examiner Discretion How Far Should It Go?

[Gerald Clough]

Lisa: I think your linked Mass. Instructions on the subject is the real motivator. That has to do with how the jury weights what's before them. It's not logical, but there's an effective difference, when exactly the same evidence is presented, between a lack of additional evidence after a reasonable attempt to develop it and a lack of additional evidence after a failure to make it possible to examine when there was a reasonable chance of it being useful. And it doesn't really take instructions from the bench to get the idea before the jury. Jurors don't always know exactly what the bad smell coming from a case really means, but they generally figure it's not a good thing. You can tell the jury there's no Constitutional right to a thorough investigation, but they'll still judge the quality of the investigation, and appeals issues don't make a dang bit of difference if you don't get a conviction.