Dealing with Government Trickery at Trial

IMPORTANT TOPICS FOR FEDERAL PRACTICE 2017

EVIDENTIARY STIPULATIONS

� Review each exhibit before you agree to stipulate to it.

� Consider how the prosecution will use the exhibit.

� Consider whether you will want to be able to cross examine a witness on it.

� Demand reciprocal stipulations.

� Explain why you are stipulating to your client.

“Don’t ever take a fence down until you know why it

was put up.”

- Robert Frost

REASONS WE STIPULATE

� Makes trial less boring

� Who wants to cross examine a document custodian?

� Pressure: Judge wants to move trial along –defense lawyer always blamed for delays.

� Reward: ”Early” production of 3500 material, government exhibits and witness list.

� Appearing “reasonable”

� “How can this hurt us?”

� “It’s coming in anyway.”

Case Study: The Resume

� $370 million Ponzi scheme

� Victims are mostly working-class people from Long Island

� Mastermind pled guilty and sentenced to 25 years in prison

� Brokers on trial – client is naïve, unquestioning of authority, and financially unsophisticated

� Sold interests in business bridge loans and merchant advances

� Among exhibits were client’s corporate email attaching her resume

� Government provided stipulation to attorneys to sign claiming business record

� How could this hurt us?

Here it comes

How can this hurt us?

Warning: Emails as Business Records

� Inspect each and every exhibit

� Look at the language and watch out for evidentiary foundations

� Demand separate stipulations

� Documents admissible as business records

� Authenticity of electronic records

BEFORE

AFTER

“Publishing”

FIGHT BACK!

Rules of Evidence� FED. R. EVID. 611 (a)

� Mode and Order of Interrogation and Presentation: Control by Court

� The court shall exercise reasonable control over� The mode and order of

interrogating witnesses and� Presenting evidence

� FED R. EVID. 403

� The court may exclude relevant evidence if its probative value is substantially outweighed by a danger of one or more of the following:� Unfair prejudice� Confusing the issues� Misleading the jury� Undue delay� Wasting time� Needlessly presenting

cumulative evidence

Motion in Limine

AMBUSH

EXHIBIT LISTS & 3500 MATERIAL

2-3 weeks before trial, EXPECT:

� Rapid evolution of draft transcripts

� Lengthy, unrealistic, and byzantine exhibit lists

� “Recently discovered” evidence

� Rolling 3500 material, starting with deceased or otherwise non-testifying witnesses

� Demanding responses to pointless stipulations, motions, and “reverse Jencks”

“Never yield to force; never yield to the apparently

overwhelming might of the enemy.”

- Winston Churchill

Transcripts – What They Do

• Provide transcripts of full recordings

• Transcripts riddled with misattributions, inaccuracies, and omissions

• Repeated demands to stipulate

• Transcripts of snippets – perfectly done

• Misleading and out-of-context

Transcripts – What You Do• Review recordings and text messages as

early in the case as possible

• Identify portions you want to introduce and anticipate what government will use

• Rule 106: ”If a party introduces all or part of a writing or recorded statement, an adverse party may require the introduction, at that time, of any other part – or any other writing or recorded statement – that in fairness ought to be considered at the same time.”

Rule 106 Application

Fruits of Labor

What Else You Do• Don’t be pressured to stipulate to transcripts –

Don’t even stipulate!

• Pick your battles with motions

• Understand the rules of reciprocal discovery and reverse Jencks

• Draft your own motions

• Give them something to complain about

• Call them out

Law on Reciprocal Discovery

� Rule 16(b): Must produce if:

� The item is within the defendant’s possession, custody, and control; and

� The defendant intends to use the item in the defendant’s case-in-chief at trial

� What’s sauce for the goose…

No “Reverse Jencks” for Defendant

No Obligation to Create Jencks

“Gamesmanship”

Taste of their own medicine

Don’t Put Up With It

Motion To ComplyWith Court Order

Summary Witnesses and

Exhibits

General Principles:

� Exhibits always contain prejudicial language

� Information selectively used and presented

� No personal information about case

� Everything provided by the prosecution team

� Get paid $$$

“He wanted AFFIRMATION rather than INFORMATION.”

- Barbara W. TuchmanThe March of Folley:

From Troy to Vietnam

Get the Jury Outraged

Expose The Bias

Make them Pay

Inflaming the Jury

“It has been too often too easy for rulers and

governments to incite man to war.”

- Lester B. Pearson

Eliciting and Looping Misleading Testimony

Eliciting Misleading Testimony-Make them Pay

Pointing the Finger-Opening

Government Defense

That Man!

Identification

• From witness stand:

• Concede identification

• Stand up

• Object to admission of pictures of client

• Demand and supply flattering photograph

• Do the same with co-conspirators

No photos of client

Photos of Co-Conspirators

Porn

Full Exposure

Rebuttal Summations• Object if:

• Defense counsel’s integrity is questioned

• Client called names or “liar” repeated

• Vouch for witnesses

• Comment on Defendant not testifying

• Capitalize on evidence erroneously excluded under Rule 106

To Object Now or Later?

Better now than later