“Holy #$%^ I Cannot Believe I did that”

What NOT to overlook in trialHow to do it better

Ten Things I Have DoneYou shouldn’t!

•Pick a Juror with a toupee.

•Not go to the crime scene.

•Talk about case at lunch. Can you say mistrial!

•Think the case is going to settle. It won’t

•Fail to catalog evidence for easy access.

10 Things I wish I didn’t do

•Failed to go to the courtroom before trial.

•Spoke with a witness alone.

•Went without a significant knowledge of my tool box.

•Ever walked by a bathroom during trial. Any bathroom. ANY. Really. ANY.

•Lost sight of the fact that I have never convicted anyone nor have I acquitted anyone.

My Trial Tips •Five P’s: Prepare, Prepare,

Prepare, Prepare, Pee

•Know the File

•Break down ALL statements.

•Review ALL evidence with Police.

•Follow up ALL unanswered questions.

Crime Scene

•If possible with v/w AND investigator

•Can Wit See/Hear what they said they did

•Any pictures don’t have but want

•Adds credibility with jurors

•Puts adverse wits on notice you’ve done your homework

Organize •Keep evidence log,

items, foundation, admitted

•Witness List

•All statements

•Have multiple copies

•Practice Electronics

Go to the courtroom

•Learn ropes of clerk. Most important.

•Learn ropes of judge. Secondary

•Due diligence with other lawyers

•Takes away nervousness

How to Convey to Jury

•Electronic Evidence

•Video

•Photos

•Real Evidence

Start with the End in Mind•Covey’s rule--huge for Trial Lawyer

•Every question builds for Closing

•Every piece of evidence for Closing

•Your jurors won’t change their mind based on your closing--Arguing to give ammo to your best jurors

•Revise/Add/Subtract/Quotes during trial

Tools of Trade

•Rules of Evidence

•Crawford

•801, 803, 804, 806

•612, 613(b), 608, 609

Crawford •Declarant available and subject to cross-ex? No

Crawford issue

•Declarant unavailable but prior testimony subject to cross? No Crawford issue

•Declarant unavailable, no cross? Depends

•Testimonial--

•Crawford issue

•Non-testimonial--

•No Crawford issue--Hearsay law governs

Crawford•Not for truth

•Declarant appears for cross at trial

•Unavailable but prior opportunity to cross

•Forfeiture by wrongdoing

•Not Testimonial

Nontestimonial•Casual remarks to acquaintance

•Off hand, overheard remarks

•Statements in furtherance of conspiracy

•Most business records

•Statements to govt where objective primary purpose is to meet ongoing emergency

Testimonial•Solemn declarations

•Prior testimony at a preliminary hearing, grand jury, or at a former trial

•Govt statements with eye toward trial

•Police interrogations with no emergency/primary purpose is for use at trial

Primary Purpose Test •Describes past events—not as happening

•Declarant not facing emergency

•Statement formality:

•Calm circumstances/no danger

•At Station house

•Series of questions

•Recorded

•Custody and miranda

•Separation of declarant and suspect•Obvious substitute for live testimony

Crawford

•Davis/Hammon

•Bryant

•Bullcoming

•Melendez-Diaz

•Williams

801(d)(1)•Not hearsay if:

•Declarant testifies at trial

•A. statement is inconsistent and was at prior trial, hearing or under oath

•B. statement was consistent

•C. Statement was one of identification

Automatically Admissible?

•No.

•There may be other objections to the evidence...Personal knowledge, competency etc.

801(d)(1)(A) PIS•Must comply with 613(b)

•Declarant must testify,

•For truth

•Prior statement is inconsistent with (trial) testimony

•Prior Statement under oath

•Prior Statement at “proceeding”

•N.B. No cross needed for prior statement

•If prior statement not under oath, impeachment only

NOT UNDER OATH

• If prior statement not under oath not for the truth of prior statement, only to impeach

Inconsistent?

•104(a) determination by court

•“I don’t remember”

•Genuine/Ploy

“I don’t remember”

•Not necessarily inconsistent

•Refresh recollection first 612

•Can use anything

•Show document

•Direct witness to the area have them read

•Ask if it refreshes

•If yes, move on

I don’t remember

•If no, past recollection recorded 803(5)if you can

•Statement fresh,

•adopted as true

•read into evidence

•PROBLEM--what if wit says lying at time of exhibit

I don’t remember.

•Go to the judge 104(a)

•If ploy, now I don’t remember is inconsistent.

•Q: A is the truth right

•A: if yes—you win

•If no—continue

•Q: Did you speak to someone

•Get out the circumstances

•Especially all the reasons it is better than trial testimony

•Identify the prior statement

•Re-ask about A

•Q: The truth is A, right?

•A: If yes—you win

•If maybe, or I don’t know, you probably won

•If no—continue

•Then read the Prior statement

•Follow along while I read this

•Did I read that correctly?

Prior Consistent

•Used to re-hab witness

•Because the statement was made closer in time, before lawyers and court system.

Prior Consistent Statement

•PIS admitted to attack witness, or

•Express or implied charge of fabrication or bias, and

•Consistent statement was made before the PIS

Temporal Requirement

•In case of recantation:

•To teacher 5/11 Dad molested me

•To cop 6/11 “dad did not molest me”

•To mom 8/11“dad did molest me”

•To cop 9/11 dad did not molest me

•Trial 1/12“dad did molest me”

•You impeach with first statement, PX testimony is NOT AMISSIBLE.

PCS

• On cross, your witness is impeached

• Ask when/where W talked to police

• Establish the time frame and who W talked to

• Talk about the interview

• what was asked, that W told the truth etch

• Then ask what they said

801(d)(2) Party Opponent

•Other side said it, we put it in

•Does NOT have to be an admission

•Does NOT have to be inculpatory

•Does NOT have to be against interest

•They said it, we use it. Period.

•If they want to address it, they are 25 feet from the truth

Party Opponent

•Defense cannot put their sob story on

•Be careful not to open door

Questions and Answers

•Defense may argue that questions by detective are not admissible.

•Detective statements give context to the answers, should be admissible.

•Defense may argue that D did not adopt statements by detective

•A limiting instruction can cure any issue 105

Party Opponent

•Defense says inadmissible character evidence in statement by detective again a 105 limiting

•Defense says officer gives opinion on truth 105 limiting instruction

Adoptive Admission 801(d)(2)(B)

•D is present when another says something.

•D takes action which indicates adoption or

•D remains silent in circumstances where one would naturally have denied; silence is acquiesence

Adoptive Admissions

•(1) statement must have been heard

•(2) statement must have been understood

•(3) subject matter must have been within

• hearer's knowledge

•(4) no impediments to response (eg

• confusion/injury after accident)

•(5) statement must be such as would, if untrue,

• call for a denial under the circumstances

•(6) criminal: if accused in custody, can't use

• silence against him; if pre-custody, okay

Prior ID

•Evidence of any earlier ID of D

•Whether or not W can ID at trial

•Substantive evidence

•If lineup/show up/photo ID

•Must be fair—burden on you

•Description is also admissible

Prior ID•Substantive Evidence if:

•Id was made when crime fresh in memory and

•Witness made ID and it was true opinion at time

•Declarant MUST testify

•Both witness and cop can testify to id.

•Prior ID considered BETTER than id at trial

•Trial too suggestive

•Fear of retaliation for ID not present at time of prior ID

•Fritz’ case Stoppleworth

U.S. v. Owens

•Low Bar for competency

•Prior Id

•Past recollection recorded

Character

•608; 609

•Non-character, 404(b)

•Never coming in

Impeachment

•Reputation for dishonesty 608

•Prior convictions 609

•Bias, motive, interest

•Conflict in evidence

•Defect of witness (Owens)

608

•Impeachment because wit/D lacks

•Truthfulness

•

Admissibility

•4 Factors

•Relevant 401, 404(a)

•Form of evidence (reputation, opinion, specific instances)

•403

608•Opinion reputation only

•Either side can initiate

•Rebuttal only available after other side has attacked through opinion, rep

•b Specific instances, court’s discretion on cross, of that witness, or another subscribing wit

608 Cross•W may be asked about his own

specific lies (no extrinsic evidence)

•W may be asked about specific lies of the witness he is testifying for (no extrinsic evidence)

•403 balancing applies

•Good faith basis for question

•If 609 would exclude- then it will not be “back door” by 608

609

•Prior conviction will be admitted against wit if subject to excess of 1 yr

•403

•10 year rule

•Prior conviction shall be admitted regardless of punishment if crimen falsi NO 403

609 •Defendant

•Prior will be admitted provided

•Probative value outweighs prejudicial effect; reverse 403

•Idea is to allow D to testify

•Have prior docs available if wit denies

609

• Authenticate the document

• Two options

• Impeach witness while on stand (better)

• Wait and introduce the document after witness testified (Not as much sting)

• Brilliant if D denies

Other Stuff To Help

•We love 803

•Get uncrossed information to our jurors

Fresh Complaint

•Victim made a complaint

•V made complaint shortly after

•V said she was the victim of crime

•Id’d perp

•NO FACTS

•NON-hearsay purpose

•Argue with caution

Beg Officers to Take Pictures

•Our jurors want “evidence”

•Most cited reason for aquittal

•“incomplete investigation”

•“not enough evidence”