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“Holy #$%^ I Cannot Believe I did that” What NOT to overlook in trial How to do it better What NOT to overlook in trial How to do it better.

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Presentation on theme: "“Holy #$%^ I Cannot Believe I did that” What NOT to overlook in trial How to do it better What NOT to overlook in trial How to do it better."— Presentation transcript:

1 “Holy #$%^ I Cannot Believe I did that” What NOT to overlook in trial How to do it better What NOT to overlook in trial How to do it better

2 Ten Things I Have Done You 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. 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.

3 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. 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.

4 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. 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.

5 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 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

6 Organize Keep evidence log, items, foundation, admitted Witness List All statements Have multiple copies Practice Electronics Keep evidence log, items, foundation, admitted Witness List All statements Have multiple copies Practice Electronics

7 Go to the courtroom Learn ropes of clerk. Most important. Learn ropes of judge. Secondary Due diligence with other lawyers Takes away nervousness Learn ropes of clerk. Most important. Learn ropes of judge. Secondary Due diligence with other lawyers Takes away nervousness

8 How to Convey to Jury Electronic Evidence Video Photos Real Evidence Electronic Evidence Video Photos Real Evidence

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11 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 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

12 Tools of Trade Rules of Evidence Crawford 801, 803, 804, , 613(b), 608, 609 Rules of Evidence Crawford 801, 803, 804, , 613(b), 608, 609

13 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 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

14 Crawford Not for truth Declarant appears for cross at trial Unavailable but prior opportunity to cross Forfeiture by wrongdoing Not Testimonial Not for truth Declarant appears for cross at trial Unavailable but prior opportunity to cross Forfeiture by wrongdoing Not Testimonial

15 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 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

16 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 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

17 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 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

18 Crawford Davis/Hammon Bryant Bullcoming Melendez-Diaz Williams Davis/Hammon Bryant Bullcoming Melendez-Diaz Williams

19 801(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 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

20 Automatically Admissible? No. There may be other objections to the evidence...Personal knowledge, competency etc. No. There may be other objections to the evidence...Personal knowledge, competency etc.

21 801(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 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

22 NOT UNDER OATH If prior statement not under oath not for the truth of prior statement, only to impeach

23 Inconsistent? 104(a) determination by court “I don’t remember” Genuine/Ploy 104(a) determination by court “I don’t remember” Genuine/Ploy

24 “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 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

25 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 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

26 I don’t remember. Go to the judge 104(a) If ploy, now I don’t remember is inconsistent. Go to the judge 104(a) If ploy, now I don’t remember is inconsistent.

27 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 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

28 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? 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?

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30 Prior Consistent Used to re-hab witness Because the statement was made closer in time, before lawyers and court system. Used to re-hab witness Because the statement was made closer in time, before lawyers and court system.

31 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 PIS admitted to attack witness, or Express or implied charge of fabrication or bias, and Consistent statement was made before the PIS

32 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. 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.

33 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 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

34 801(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 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

35 Party Opponent Defense cannot put their sob story on Be careful not to open door Defense cannot put their sob story on Be careful not to open door

36 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 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

37 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 Defense says inadmissible character evidence in statement by detective again a 105 limiting Defense says officer gives opinion on truth 105 limiting instruction

38 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 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

39 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 (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

40 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 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

41 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 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

42 U.S. v. Owens Low Bar for competency Prior Id Past recollection recorded Low Bar for competency Prior Id Past recollection recorded

43 Character 608; 609 Non-character, 404(b) Never coming in 608; 609 Non-character, 404(b) Never coming in

44 Impeachment Reputation for dishonesty 608 Prior convictions 609 Bias, motive, interest Conflict in evidence Defect of witness (Owens) Reputation for dishonesty 608 Prior convictions 609 Bias, motive, interest Conflict in evidence Defect of witness (Owens)

45 608 Impeachment because wit/D lacks Truthfulness Impeachment because wit/D lacks Truthfulness

46 Admissibility 4 Factors Relevant 401, 404(a) Form of evidence (reputation, opinion, specific instances) Factors Relevant 401, 404(a) Form of evidence (reputation, opinion, specific instances) 403

47 608 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 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

48 608 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 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

49 609 Prior conviction will be admitted against wit if subject to excess of 1 yr year rule Prior conviction shall be admitted regardless of punishment if crimen falsi NO 403 Prior conviction will be admitted against wit if subject to excess of 1 yr year rule Prior conviction shall be admitted regardless of punishment if crimen falsi NO 403

50 609 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 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

51 609 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 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

52 Other Stuff To Help We love 803 Get uncrossed information to our jurors We love 803 Get uncrossed information to our jurors

53 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 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

54 Beg Officers to Take Pictures Our jurors want “evidence” Most cited reason for aquittal “incomplete investigation” “not enough evidence” Our jurors want “evidence” Most cited reason for aquittal “incomplete investigation” “not enough evidence”

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