Thursday, March 29, 2018

AN EXCELLENT EXPOSITION OF A DIFFICULT TOPIC

George (Bob) Dekle

Bob Dekle recently reviewed Jury Selection Handbook as follows: Of all the portions of the trial, the part that I hated the most was jury selection. I had a keen sense of both how important it was and how inadequate I was to do a good job of it. I had not been practicing law very long before I decided that in most cases the trial is over when the judge says “Swear the jury.” If at that point you have the wrong jury, there is not much you can do—you’re not going to win. If, on the other hand, you have the right jury, there are many things you can do from that point forward to snatch defeat from the jaws of victory.

Despite the fact that it was a challenge to conduct a good jury selection, it was easy to see when other lawyers were conducting a bad jury selection. After a couple of decades of watching other lawyers fall flat on their faces, and falling flat on my face more times that I care to recall, I finally learned how to conduct a moderately competent jury selection. It wasn’t spectacular by any means, but at least I didn’t embarrass myself, and I was usually able to weed out the problem jurors. If only there had been a book like Jury Selection Handbook back when I was a rookie trial advocate. I would have read it, re-read it, learned from it, and chalked up W’s in quite a few cases that I had to put in the L column.

Jury Selection Handbook is a well-organized, easily understood explanation of the nuts and bolts of how to go about picking a jury. The pages are filled with gems of practical wisdom that it took me years to learn in the school of hard knocks, and the books prescriptions for organizing, planning, and executing the voir dire examination are on the mark.

One important point the book stresses, and a point which many young lawyers seem to miss, is that the primary purpose of jury selection is juror elimination. The most important thing you do in voir dire is to identify and eliminate the jurors who are going to torpedo your case. All other considerations are secondary to this objective.

The book does make a few points that I’d like to quibble with, however. On pages 164-165 it recommends liberal use of open-ended questions. Open-ended questions always frightened me because they completely surrendered control of the situation to an unknown party. Pages 152-153 tell the reader not to worry about tainting the pool, and this might not be a problem in a large jurisdiction where hundreds or even thousands of jurors might be summoned at a time. In the small jurisdictions where I practiced, open-ended questions would often taint an entire pool, delaying a trial for a month to six weeks before the next jury was scheduled to come in. A couple of zingers I’ll never forget:

Q: How is it that you know the defendant? A: Well, I don’t know him personally, but when I worked at the Constable’s Office, we served a lot of warrants on him.

***

A: No, I can’t be fair in this case. [A rape case].

Q: And why is that? A: Because the defendant raped my daughter.

I’m not a big fan of the forced-choice form of questioning recommended on pages 165-169. A forced-choice question works like this:

Q: Some people say cases only go to trial when there are genuine issues to be resolved. Others say that cases go to trial simply because one side or the other is too hard-headed to admit they’re wrong. Which of those opinions do you have?

I’m willing to wager that a large percentage of potential jurors on any panel never gave the issue a thought, and asking such a question only serves to embarrass them. I’m also willing to wager that a lot of potential jurors are like me—they resent being forced to choose among preselected answers which almost certainly do not reflect the nuances of a thoroughly considered opinion. When presented with a binary forced-choice question, my usual response is to get irritated and say “None of the above.”

One point the book made which I don’t think was made forcefully enough was on page 164 when talking about body language. In emphasizing the importance of picking up on nonverbal cues, the book listed a number of nonverbal actions and gave the conventional wisdom as to what those actions meant. In one sentence at the end of a paragraph, the book makes the point that the conventional wisdom of what these actions mean “ain’t necessarily so.” As Philip Houston and Michael Floyd say in "Spy the Lie: Former CIA Officers Teach You How to Detect Deception," such cues are not signposts pointing unerringly at what the conventional wisdom says they stand for. They are instead simply clues that the interrogator might want to look further to see whether they are truly signaling what they are supposed to stand for.

For example, the arms crossed stance is supposed to signal that the listener isn’t receptive to what you’re saying. Maybe. It may be that your listener is simply cold. Or he may be a narcissistic young man who wants to put his fists under his upper arms to enhance the size of his biceps. Use common sense and don’t slavishly follow the conventional wisdom about body language signals. You've been reading body language all your life. Where do you think that "gut reaction" that the authors talk about on pages 288-289 comes from?

Other than the foregoing quibbles, I found Jury Selection Handbook to be an excellent, informative book. I was responsible for supervising and training young prosecutors for over 20 years, and I taught a prosecution clinic for 10. If I were still in the business of training young prosecutors, I'd put this book on my required reading list.

Sunday, March 25, 2018

HOW TO START YOUR CROSS-EXAMINATION



In his book Examining Witnesses, Michael Tigar recommends how to commence cross-examination. He borrowed the technique from Terry McCarthy and it bears repeating here again. You don’t have to be cross to cross-examine. Tigar states:

To begin (cross-examination) strong you must choose an area in which the witness will agree with you. Preferably, the witness will also want to agree with you. What do I mean “want to”? If you are going to cross-examine a police officer on a defect in his report, you will begin by establishing how careful a report writer the witness is. The witness wants to tell you this.

Face the witness. Smile at the witness. The smile need not be friendly, but it must be polite. Remember, you want this witness to agree with you. You will see British barristers take a superior attitude toward the witness, lofty and disdainful. You will see American lawyers – real or on television – sneering and snarling. Don’t do any of that. With whom will the jury identify in a contest between a witness who is just sitting there and a snarling, sneering, supercilious lawyer? Oh, maybe later, when the jury is brought along to your point of view, you can change mien. But, for now, a polite smile.

The next idea is borrowed from terry MacCarthy. Actually, all good trial lawyers have done what he suggests, but Terry has refined the technique into a “method.” The idea is this: Don’t ask questions. Make statements with which the witness must agree or suffer impeachment. Most good cross examiners use leading questions.

Q. You were in charge of the city’s oil properties, right?

Q. It was your job to review the prices the city was paid, isn’t that right?

You can even eliminate the words “right” or “isn’t that right.”

Stand up. If the rules where you practice require you to examine from a seated position, start your cross with a document or exhibit that requires you to approach the witness so you have a reason to stand. After the obligatory smile, look the witness in the eyes, and make a positive statement, all the while smiling and nodding.

Q. You were in charge of the city’s oil properties?
You reviewed the prices the city was paid for its crude oil?

If the witness agrees with you, but does not answer audibly, give a reminder.
Q. That’s “yes”?

This method is particularly effective when you are leading the witness through a series of assertions, each on part of a picture.

Q. You were in the bar?
Q. You were with John?
Q. Somebody came in?
Q. He had a gun?
Q. This person had on a jacket?

The last in the series illustrates MacCarthy’s shining example of brevity, a one-word question. Brevity is, however, not a result but a means. This style of questions encourages the witness to agree with you by a series of “yes” answers. It leads from point to point, giving the jurors a picture of the action.

Best of all, the method lets you jettison most of the ten commandments as unnecessary. You will almost automatically be brief, short, plain, and nonrepetitive. Because your statements are questions only because you verbally punctuate them as such, you are not likely to ask “one question too many,” “permit the witness to explain,” or “ask the witness to repeat” the direct examination.

If the witness does not agree with you, have your impeachment material ready . . .

Now this is advice worth repeating and repeating.

Sunday, March 4, 2018

DON’T LEARN CROSS-EXAMINATION BY THE SINK OR SWIM METHOD



Learning Cross-Examination Techniques by Experience

Don’t learn cross-examination skills by trial and error in trial – the sink or swim method. It is not unusual for fledgling trial lawyers to learn by trial and error in trial. The downside is this sink-or-swim schooling in cross-examination can be not only the drowning of the cross-examiner but also someone else.  

Another method is to practice cross-examination in professional development workshops or in law school classes where no one is hurt in the process.  Cross-Examination Handbook offers opportunities for cross-examinations in two criminal cases that can be used in either law school or prosecutor or defense counsel workshops.

Case Files, Actors’ Guide and Teacher’s Manual

Cross-ExaminationHandbook comes with all the materials necessary for role-play performance exercises for cross-examination strategies and skills, including: case files; an Actors’ Guide with instructions for the witnesses, and a Teacher’s Manual (100 pages) covering how to conduct the cross-examination exercises as well as a schedule for professional development workshops and a syllabus for law school classes. The two criminal cases are State v. Gary Goodman and State v. Byron Ward Howland. Both fact patterns are based on actual cases.

State v. Gary Goodman

Gary Goodman and his brother Barry went to the Infernal Club for an evening of dancing.  Gary Goodman had a .38 caliber revolver in his coat pocket.  While they were inside the Infernal Club, Barry Goodman became engaged in a “staring” contest with Moe Helton, a local drug dealer who had a history of bad blood with Barry.  The staring contest escalated into a confrontation, and the confrontation escalated into a fistfight.  Barry came off second in the fistfight and Helton began to get the best of him.

Gary Goodman, who had been dancing on the dance floor, noticed the altercation and went over to intervene.  Goodman drew the revolver from his pocket and began shooting.  John Elder, a business associate of Helton in the drug trade, attempted to intervene in the fight, trying to disarm Gary.  Gary shot Elder in the stomach.  When Gary shot Elder, Shemp Campbell, another drug associate of Helton, also intervened and was able to disarm Gary Goodman.  When Goodman was disarmed, he and his brother fled the Club.  Moe Helton was pronounced dead on arrival at the Lincoln County Hospital, and John Elder underwent emergency surgery to repair the damage done to his stomach by the bullet.  Barry Goodman was treated at Riverton Hospital for trauma suffered in the fight with Helton. Gary Goodman is charged with murder in the second degree, attempted murder in the second degree, and carrying a concealed firearm. 

State v. Byron Ward Howland

State v. Byron Ward Howland is a high profile criminal case. The Lincoln County Prosecutor’s Office has charged state legislator Byron Howland with rape in the second degree, communicating with a minor for immoral purposes through electronic communication and three counts of child rape in the third degree.

The prosecution contends that Howland is an Internet predator who lured in 15 year-old Jenny Sells first through talks in a chat room and later by inviting her to his condominium where he resided when he is attending a legislative session is the state capitol of Georgetown. Allegedly, Howland raped her in his condo in December two years ago. Afterwards he expressed remorse, and their relationship continued until June last year when Jenny’s mother took printouts of their Internet exchanges to the Georgetown Police Department’s Detective Bill Hutchinson. Jenny told the Detective about her relationship with Howland. Howland has made no pretrial comments about the case except that it is “patently false.”

The Assignments   

The law school class or CLE workshop assignments for cross-examination correspond to chapters of Cross-Examination Handbook and provide practical experience in the areas covered by the chapters. For example, chapter 6 covers how to impeach a witness with a prior inconsistent statement and assignments and Case File materials are provided so that law students and practicing lawyers can perform such an impeachment with. The versatility of the materials allows the instructor to select as many or as few of the assignments for the students/attorneys to perform as the instructor wishes to cover.

Each assignment comes with suggested reading, which the instructor may assign. For instance, the instructor may assign readings in Cross-Examination Handbook to which the assignment is cross referenced with suggested selected readings for each assignment. 

Sunday, February 25, 2018

REVISITING IRVING YOUNGER’S TEN COMMANDMENTS OF CROSS-EXAMINATION


Or Better Yet – Ten Cross-Examination Guidelines

The late, great Professor Irving Younger (whose CLE videotapes are still gems and worth viewing) gave us the ten commandments of cross-examination. He could talk all day about them, using memorable and humorous illustrations. We cover these commandments in Cross-ExaminationHandbook.

Professor Younger threatened to haunt his listeners if they ever violated one his ten commandments. These ten commandments are still viable and important:
IRVING YOUNGER’S TEN COMMANDMENTS
OF CROSS-EXAMINATION
1.   Be brief.
2.   Short questions, plain words.
3.   Always ask leading questions.
4.   Don’t ask a question, the answer to which you do not know in advance.
5.   Listen to the witness’[s] answers.
6.   Don’t quarrel with the witness.
7.   Don’t allow the witness to repeat direct testimony.
8.   Don’t permit the witness to explain answers.
9.   Don’t ask the “one question too many.”
10. Save the ultimate point of your cross for summation.

The core reasoning behind these ten commandments is that if you adhere to them, you will control both the witness and the information delivered to the jury. If you lead, you provide the answer. If you know the answer, only the information you want the jury to hear will be heard. Follow these commandments and you are testifying. Break them, and suffer the consequences.

The ten commandments are valuable today, and should be reviewed before any trial. However, rather than being ten commandments, think of them as ten guidelines. There are times you may vary from them without suffering and there are times you should break a commandment.

Don’t Always Ask Leading Questions:  If you ask only leading questions, you may appear to be unfairly restricting the witness; not allowing the witness any latitude. You can loosen the reins if the answer couldn’t make any difference. Under certain circumstances discussed in Cross-Examination Handbook, you can even ask that “Why” question. Also, when the witness is fabricating, sometimes you should let go of the reins altogether and let the witness run. When the witness is lying and the examiner can prove the lie, non-leading questions are appropriate. In the Handbook, we go into how to expose a liar.

If the Situation Calls for It, Quarrel with the Witness: The demeanor of the cross-examiner and how questions are formed should vary depending upon the type of witness. While jurors will tend to be protective of a lay witness, who like the jurors is unaccustomed to a courtroom, they will tolerate and even expect that the lawyer will mix it up with a professional expert witness. The cross-examiner must adjust to the situation.

It Isn’t Always Necessary to Know the Answer Before Asking: Francis Wellman in the Art of Cross-Examination put it better when he wrote,  “A lawyer should never ask a witness in cross-examination a question unless in the first place the lawyer knows what the answer would be or in the second place didn’t care.”

What’s That Question?: “Avoid one too many questions,” commands Younger. Would any of us ask one too many questions if we knew which question was one too many? What does this commandment mean?

Younger’s ten points remain presumptive guidelines, and may only be ignored when a good reason exists.