Coming in the Near Future: New Edition of Evidence Book

 Good news today. Aspen Publishing wants to do a new edition of our Evidence book.

Working and Want a Law Degree--Flex JD Program

 

Beginning this Spring Seattle University Law School will offer my Comprehensive Pretrial Advocacy Flex JD course. It is a 4-credit course. Flex JD courses are designed for students who are working. They are hybrids—for example, my Pretrial Advocacy course involves one synchronous online Zoom session per week running from 6 to 7:30 p.m. and two in-person weekends at the law school. Students in the Flex JD program can graduate in four, rather than three, years.

The curriculum of my course while organized to fit this pattern will cover the same material and experiences that an in-person at the law school course covers. One big difference is that students will be interacting with and submitting work on a very robust Canvas web page. 

The text for the course is my Pretrial Advocacy: Planning, Analysis and Strategy 6th edition, which is being published by Aspen Publishing. 

Cross-Examining Donald Trump

 

Trump is currently in trial in the Trump civil fraud trial. He was called to the stand by the Attorney General’s office in the civil fraud trial. In a criminal trial, the government cannot call the defendant to testify because the defendant has a 5th Amendment right. In this civil case, however, the government could and did call the defendant Trump to testify, and defendant Trump could have  exercised his 5th Amendment right. However, in the civil case, the factfinder (in this bench trial, Judge Engoron) could draw an adverse inference if defendant Trump were to take the 5th. For example, if Trump refused to answer a question posing that he inflated the price of a piece of real estate, the judge could infer that he did inflate the price.

Why did the AG call Trump as a witness? It was because Trump had to admit facts supporting the government’s case, such as heading his business and ownership of his real estate, and so on. 

That brings us to the question—why didn’t the defense cross-examine Trump? First off, this is not the usual cross-examination. The usual cross involves counsel examining the other side's witness, using cross to elicit concessions and/or impeach the witness. 

Here, however, defense counsel is questioning the defendant, and ordinarily, the defense attorney would ask the defendant open-ended questions allowing the defendant to lay out information favorable to the defense case. This assumes that the defendant would benefit the defense case with the helpful testimony. Also, this assumes that the defendant is a normal person and a person who has at least a scintilla of information that would benefit the defense.

In this case, however, the defense, when defense counsel was offered the opportunity to examine Trump and gather beneficial evidence, defense counsel responded, “No questions.” Normally, defense counsel says “No questions” when the witness has not hurt the defense case and cannot benefit by asking any questions. 

Here, on the other hand, the defense risked that defendant Trump would further build the government’s case. Watch this interview with former US Attorney Chuck Rosenberg.

Book Review: "Companion to Enduring Cross-Examination Texts"

 

I wanted to share Munish Bharti's kind review of Cross-Examination Handbook. It reads as follows:

5.0 out of 5 stars Essential Companion to Enduring Cross-examination Texts

Cross-examination has been described as “the greatest legal engine ever invented for the discovery of truth.” JOHN H. WIGMORE, 5 WIGMORE, EVIDENCE §1367, at 32 (Chadbourn rev. 1974). Yet, according to authors Clark, Dekle, Sr., and Bailey, “[t]oo few trial lawyers are good at cross-examination.”

Readers rejoice: this book provides the building blocks for preparing and conducting winning cross-examinations. This book explains the concession-seeking cross, basic impeachment concepts, and how to use visuals and exercise control over the recalcitrant, unruly witness.

This book is an essential companion to:

(1) LARRY POZNER AND ROGER J. DODD, CROSS-EXAMINATION: SCIENCE AND TECHNIQUES (LexisNexis 2d ed. 2004);

(2) FRANCIS L. WELLMAN, THE ART OF CROSS-EXAMINATION (Macmillan Co. 4th ed. 1936); and

(3) JAMES H. MCCOMAS, DYNAMIC CROSS-EXAMINATION: A WHOLE NEW WAY TO CREATE OPPORTUNITIES TO WIN (Trial Guides 2011).

Questions about the Books

 

Critical Cross-Examination Checklists

 

Checklists are critical to cross-examination. To illustrate the importance of checklists, Dr. Atul Gawande tells the true story of an October 30, 1935 airplane flight competition that the U.S. Army Air Corps held at Wright Air Field in Dayton Ohio to determine which military-long range bomber to purchase. Boeing’s “flying fortress” was the likely winner. But, after the plane reached three hundred feet, it stalled, turned on its one wing and crashed, killing its pilot and another of its five crew members. The pilot had forgotten to release a new locking mechanism on the elevator and rudder controls. The plane was dubbed “too much airplane for one man to fly.”

Nevertheless, a few of the Boeing planes were purchased, and a group of test considered what to do. They decided that the solution was a simple pilot’s checklist. With the checklist in use, pilots flew the B-17 1.8 million miles without an accident. Dr. Gawande in his book The Checklist Manifesto: How to Get Things Right (p. 34) concludes, “Much of our work today has entered its own B-17 phase. Substantial parts of what software designers, financial managers, firefighters, police officers, lawyers, and most certainly clinicians do are now too complex for them to carry out reliably from memory alone. Multiple fields, in other words, have become too much airplane for one person to fly.”

Dr. Gawande who heads the World Health Organization’s Safe Surgery Saves Lives program recounts that after the World Health Organization introduced the use of checklists for surgeons, research of nearly 4000 patients showed the following: major complications fell 36 percent; deaths fell 45 percent; infections fell almost 50 percent. Rather than the expected 435 patients expected to develop complications, only 277 did. The checklist spared 150 patients from harm and they spared 27 of those 150 from death. (The Checklist Manifesto, p. 154)

Just as checklists are critical for pilots and doctors, they are necessary for cross-examiners as well. At the end of almost every chapter in Cross-Examination Handbook: Persuasion, Strategies and Techniques 2nd Edition is a checklist of matters that are essential to effective cross-examination. The following is an example of a checklist that follows the chapter in Cross-Examination Handbook that focuses on exposing the false or exaggerated nature of what the witness reports on the stand. 

Checklist: Impeachment Cross: 

    Improbability 

Evidence of improbability is relevant and therefore admissible because it makes what the witness claims less probable. Fed. R. Evid. 401402. 


Under Fed. R. Evid. 611(b) and a similar state rule, cross should be limited to “matters affecting the credibility of a witness,” and a cross that reveals that the testimony is improbable goes to the witness’s credibility. 


The reduction-to-the-absurd technique exposes improbability by extending the original premise of the witness to an absurd result. 


The common-sense technique highlights the witness’s assertion and shows that it is unlikely because it defies common sense. 


The contradictory-conduct technique emphasizes the witness’s claim and then contrasts it with the person’s actions under the theme that action speaks louder than words. 


Prior Inconsistent Statements 


Federal Rule of Evidence 613 and state equivalent rules provide that a witness may be examined about prior inconsistent statements. 

• If the witness admits the prior statement, extrinsic evidence of the statement 
may be excluded as cumulative under Rule 403. 


• If the witness does not unequivocally admit the prior statement, extrinsic evi
dence of the statement is admissible. 


• The witness must be given an opportunity to deny or explain the statement. 


• The prior statement is admissible only for impeachment, not substantive, purposes unless admissible under another rule of evidence. 


Avoid impeaching with minor inconsistencies, except: 


1. When the cumulative effect of the minor inconsistencies show the witness is not credible; or 


2. When necessary to force an evasive witness to yield concessions. 


Don’t pluck a prior statement out of context because, under the rule of complete- ness as stated in Fed. R. Evid 106, opposing counsel can have the rest of the statement introduced contemporaneously, which may open the door to what would 
otherwise be inadmissible evidence. 


Eight essential techniques for impeachment with a prior inconsistent statement are: 

1. Recognize the inconsistency; 


2. Retrieve the prior statement; 


3. Repeat the testimony; 


4. Reinforce the truthful statement with where said, when said, who heard, what 
said, and whether said;


5. Reference the prior statement; 


6. Resonate with the jury; 


7. Read or display; and 


8. Refute the witness’s denial. 


        Utilize the deposition strategy to extract the same answers from the witness that were given at the deposition.
 Apply the eight essential techniques when impeaching with a deposition.


         With video deposition clips the impeachment has a greater impact on the jury 
than with just the transcript. 


Impeach the witness’s trial testimony by revealing that the witness previously 
failed to act or relate the same information when it would have been human nature to do so. 


Contradiction 


Extrinsic evidence contradicting a witness is admissible if it is relevant and substantive, not collateral. 


Having a witness comment on the credibility of another witness—pitting—is improper. 


9 Golden Rules of Cross-Examination

 

The 9 golden rules of cross is advice from David Paul Jones’s Rules of Cross-Examination, a British barrister who wrote them over a century and a half ago. They still hold true today. The 9 are as follows:

1.                  Except in indifferent matters, never take your eye from that of the witness; this is a channel of communication from mind to mind, the loss of which nothing can compensate. Truth, falsehood, hatred, anger, scorn, despair, and all the passions--all the soul--is there.                         

2.                  Be not regardless, either, of the voice of the witness; next to the eye this is perhaps the best interpreter of his mind. The mental reservation of the witness--is often manifested in the tone or accent or emphasis of the voice.

3.                  Be mild with the mild; shrewd with the crafty; confiding with the honest; merciful to the young, the frail, or the fearful; rough to the ruffian, and a thunderbolt to the liar. But in all this, never be unmindful of your own dignity. Bring to bear all the powers of your mind, not that you may shine, but that virtue may triumph, and your cause may prosper.

4.                  An equivocal question is almost as much to be avoided and condemned as an equivocal answer; and it always leads to, or excuses, an equivocal answer. Singleness of purpose, clearly expressed is the best trait in the examination of witnesses, whether they be honest or the reverse. Falsehood is not detected by cunning, but by the light of truth.

5.                  But in any result, be careful that you do not lose your temper; anger is always either the precursor or evidence of assured defeat in every intellectual conflict.

6.                  Like a skillful chess-player, in every move, fix your mind upon the combinations and relations of the game--partial and temporary success may otherwise end in total and remediless defeat.

7.                  Never undervalue your adversary, but stand steadily upon your guard; a random blow may be just as fatal as though it were directed by the most consummate skill; the negligence of one often cures, and sometimes renders effective, the blunders of another.

8.                  Be respectful to the court and to the jury; kind to your colleague; civil to your antagonist; but never sacrifice the slightest principle of duty to an overweening deference toward either.

9.                  Thus, as you rise to cross-examine a witness, you should be armed with the skill to adopt the style required for this particular witness and jury, the technique to search out the truth, the knowledge of guidelines that have developed over the centuries, and, most important, the wisdom to discern the proper combination of style and technique you need to serve well the consummate role of the cross-examiner--the truth giver.