Tuesday, May 28, 2024

New Free Book devoted to Successful Trial Skills and Strategies

 



In case you missed the previous offer of this NEW FREE BOOK about SUCCESSFUL TRIAL SKILLS AND STRATEGIES, here is another opportunity to get it. Just CLICK HERE & CONTINUE TO CLICK THROUGH and the book will be emailed to you. You can not only read about successful trial skills and strategies but also watch them in video clips. Cross-Examination skills and strategies are laid out.









Sunday, May 26, 2024

WITNESS PREPARATION FOR CROSS-EXAMINATION

 


Even when opposing counsel is equipped with the skills and strategies covered in Cross-Examination Handbook, they will not have enough to do damage to the credibility of a tough witness. A tough witness is one who is armed with the truth and has been thoroughly prepared to testify at trial. 

What is entailed in the thorough preparation of a witness for cross-examination? The following is an indispensable checklist along with notes for thorough and effective witness preparation that you can use when you prepare your witness. And, when you come up against the tough witness, you know that opposing counsel has relied upon a similar checklist. 

Preparation for the courthouse and courtroom:

Courthouse – where is it? Note: It is not unheard of that a witness will go to the wrong courthouse or courtroom. Tell your witness not only where the courthouse is but also where the courtroom is located.

Courtroom Layout. Notes: Much of your witness preparation is designed to familiarize the witness with everything. Most people have a fear of the unknown, and this preparation can alleviate some of that fear. Either show the witness a diagram of the courtroom or take the witness to the courtroom. If you have a child witness, definitely take the child to the courtroom, have the child sit in the witness chair and otherwise learn about the courtroom. Tell the witness who the courtroom players are and where they will be positioned in the courtroom, such as where the clerk, bailiff and court reporter are situated (except for the defendant in a criminal case which could result in a mistrial).

Don’ts: Notes: Tell the witness not to discuss case in or around the courthouse. because jurors may be on the street around the courthouse or in the halls or on the elevator. Instruct the witness to not enter the courtroom until summoned because witnesses are excluded. This does not apply to the client(s) and to the detective in a criminal case.

Preparation on the witness’s role and substance:

Witness’s Role. Notes: Tell your witness to tell the truth. If it hurts, tell the truth. Tell your witness that the only instruction that you have given them regarding what to say is—tell the truth. Ask the witness, “What damaging information is out there?” You need to know because only if you know what it is, can you deal with it.

Review Prior Witness Statements. Notes: Have the witness review all prior witness statements that the witness has given. Tell the witness before the witness goes over the statement that the witness should not feel wed to what is in the statement. If there is something erroneous, the witness should let you know.

Cover the Witness’s Story. Notes: Go over the witness’s story in detail and probe for any weaknesses. If there is a weakness, have the witness explain. Witnesses are commonly not good at estimating things like time and distance. Go over this. For example, if the witness says that the two individuals were five feet apart, have the witness show you how far they were apart using objects in the room.

Practice Direct Examination. Notes: Walk through it. Practice with exhibits and demonstrations

Practice Cross-Examination. Notes: Explain to the witness that you are going to step into opposing counsel’s shoes and conduct a cross-examination (you may have another colleague do it). Ask tough questions that you expect from the other side. Tell your witness not to worry about cross-examination because the witness is telling the truth.

Preparing the Witness on How to Testify:

MRPC 3.4(b) prohibits coaching to testify falsify. Notes: However, you can help the witness be a good communicator. Help the witness be Confident, Clear and Credible. 

1.  Have a Good Appearance. Notes: Tell the witness to dress appropriately for court. When sitting in the witness chair, the witness should have good posture—sit up straight.  Speak clearly, and here you can explain the role of the court reporter and the need to speak clearly and not to rapidly. The witness should avoid distracting habits, such as chewing gum or fiddling with a pen.

2.  Courtroom Rules. Notes: Tell the witness that if there is an objection, stop talking and listen for directions regarding what is to be done next. Tell the witness that if they can’t remember something, say so. And, explain how you may seek to refresh recollection if the witness can’t recall and the procedure for refreshing recollection.

3.  Communication on Direct. Notes: Tell your witness that only the jury counts, and that the witness should talk to them. If court procedures permit, explain that you will stand at the end of the jury box so that the witness will be looking down the jury box towards you. Tell the witness that this courtroom positioning is intended to remind the witness both to speak up so the furthest away jurors can hear and to look the jurors in the eyes and talk to them as though they were having coffee together. Tell the witness that the jurors have no axe to grind with the witness and they are just trying to learn the truth, which the witness will deliver.

4.  Communication on Cross. Notes: Discuss keeping composure on cross. You can explain that the witness should never get cute or argue with the questioner. To assist the witness with that endeavor, you can explain that while the witness will not be able to address the jury after testifying, counsel may and in doing so, counsel can comment on the witness’s lack of composure and how the witness’s demeanor showed the witness was not credible. Explain that contrary to direct examination when the witness should look at the jurors, during cross, the witness should look directly at counsel. Instruct the witness listen carefully to the question that is asked and answer it directly. Don’t volunteer information. 


Tuesday, April 30, 2024

FREE TRIAL ADVOCACY BOOK with Cross-Examination Discussed and Demonstrated

 


Get your FREE copy of TRIAL ADVOCACY GOES TO THE MOVIES BOOK - Click here.

What do My Cousin Vinny and Atticus Finch have in common? A lot more than you might think. While Atticus Finch’s closing argument in To Kill a Mockingbird continues to inspire viewers to attend law school, the cross-examinations in My Cousin Vinny—while hilariously funny—offers an equally compelling example of excellent trial advocacy. 

With the aid of movie clips that are just a click away, this book explores advocacy from pretrial preparation through closing argument.

Inside this concise yet comprehensible Book, which is includes movie clip gems that you can watch, you’ll learn: 

A methodology for writing the script for your trial performances from opening statement through closing argument

How to effectively engage and deliver a message to an audience—the jury

Trial advocacy strategies, techniques, and skills

Whom to cast as witnesses to be called at trial 

How to be successful in trial by watching movies based on real trials

The ethical and legal boundaries that trial lawyers should not cross

How to impart your message to a jury with storytelling and visuals

The concession-seeking cross-examination methodology 

And, so much more

Get your copy of the book with accompanying movie demonstrations of successful trial advocacy today.











Monday, April 29, 2024

HARVEY WEINSTEIN’S AND DONALD TRUMP’S PRIOR BAD ACTS

 


Previous posts here discussed the Sandoval notice of Trump’s prior bad acts and trial Judge Merchan’s rulings concerning what could and could not be used during cross-examination of Donald Trump in his “hush money” trial.  

Following Judge Merchan’s rulings on April 24, 2024, concerning what could and could not be inquired into on cross-examination of Trump, the State of New York Court of Appeals issued its decision in the Harvey Weinstein case. The Court overturned Weinstein’s conviction based upon the trial court’s error in holding that Weinstein’s alleged prior bad acts, which had been identified in a Sandoval notice, would be admissible during the cross of Weinstein. The New York Court of appeals held:

"Under our system of justice, the accused has a right to be held to account only for the crime charged and, thus, allegations of prior bad acts may not be admitted against them for the sole purpose of establishing their propensity for criminality (see People v Molineux, 168 NY 264 [1901]). Nor may the prosecution use “prior convictions or proof of the prior commission of specific, criminal, vicious or immoral acts” other than to impeach the accused’s credibility (People v Sandoval, 34 NY2d 371, 374 [1974]). It is our solemn duty to diligently guard these rights regardless of the crime charged, the reputation of the accused, or the pressure to convict (see Boyd v United States, 116 US 616, 635 [1886] [“It is the duty of courts to be watchful for the constitutional rights of the citizen, and against any stealthy encroachments thereon”]).

"Defendant was convicted by a jury for various sexual crimes against three named complainants and, on appeal, claims that he was judged, not on the conduct for which he was indicted, but on irrelevant, prejudicial, and untested allegations of prior bad acts. We conclude that the trial court erroneously admitted testimony of uncharged, alleged prior sexual acts against persons other than the complainants of the underlying crimes because that testimony served no material non-propensity purpose. The court compounded that error when it ruled that defendant, who had no criminal history, could be cross examined about those allegations as well as numerous allegations of misconduct that portrayed defendant in a highly prejudicial light. The synergistic effect of these errors was not harmless. The only evidence against defendant was the complainants’ testimony, and the result of the court’s rulings, on the one hand, was to bolster their credibility and diminish defendant’s character before the jury. On the other hand, the threat of a cross-examination highlighting these untested allegations undermined defendant’s right to testify. The remedy for these egregious errors is a new trial. (emphasis added)."

Click here for the appellate court’s full decision.

In light of the Weinstein appellate decision, will Judge Merchan modify his rulings, perhaps limiting the prior acts to those showing Trump’s lack of credibility because they constituted lies, such as the defamation of E. Jean Carroll? Watch Weinstein's criminal defense attorney discuss this question by clicking here.



What Trump Prior Bad Acts Can and Can’t be asked about on Cross-Examination?

 


In my prior post about the cross-examination of Donald Trump, you can read the government’s proposed subjects that they wish to cover during Trump’s cross-examination. This Sandoval disclosure is required under New York law so that the defendant can decide whether to take the stand. 

On Monday April 27th, 2024, trial Judge Juan Merchan ruled that the following prior acts of misconduct by Donald Trump could be explored during cross-examination:

The verdict in the New York civil fraud case brought by state Attorney General Letitia James that found he violated the law by fraudulently inflating the value of his properties. 

The two violations of Judge Arthur Engoron's gag order during that fraud trial when Trump was fined $15,000 for those violations.

The two E. Jean Carroll verdicts in federal court where juries found that Trump defamed Carroll by denying her allegations that he raped her. Trump was ordered to pay $83.3 million for defaming Carroll.

The settlement he reached with the New York attorney general that led to the dissolution of the Donald Trump Foundation.

Judge Merchan ruled that the prosecutors could not cover these subjects during cross: 

The ruling in Florida that sanctioned Trump for filing a frivolous lawsuit against Hillary Clinton.

A 2022 tax fraud conviction of the Trump Organization. 








Saturday, April 27, 2024

Humor - Lawyer Dumb Cross-Examination Questions

 


Lawyers ask some dumb questions on cross-examination. “Why?” being the dumbest of them all because it opens the door for the witness to say almost anything.

The following quotations are taken from official court records across the nation, showing how funny and embarrassing it is that recorders operate at all times in courts of law, so that even the slightest inadvertence is preserved for posterity. If you are looking for more lawyer humor, click here to get Lawyer Humor Handbook.

________________________________________

o Lawyer: "Was that the same nose you broke as a child?"

o Witness: "I only have one, you know."

________________________________________

o Lawyer: "Now, Mrs. Johnson, how was your first marriage terminated?"

o Witness: "By death."

o Lawyer: "And by whose death was it terminated?"

________________________________________

o Accused, Defending His Own Case: "Did you get a good look at my face when I took your purse?"

The defendant was found guilty and sentenced to ten years in jail.

________________________________________

o Lawyer: "What is your date of birth?"

o Witness: "July 15th."

o Lawyer: "What year?"

o Witness: "Every year."

________________________________________

o Lawyer: "Can you tell us what was stolen from your house?"

o Witness: "There was a rifle that belonged to my father that was stolen from the hall closet."

o Lawyer: "Can you identify the rifle?"

o Witness: "Yes. There was something written on the side of it."

o Lawyer: "And what did the writing say?"

o Witness: "'Winchester'!"

________________________________________

o Lawyer: "What gear were you in at the moment of the impact?"

o Witness: "Gucci sweats and Reeboks."

________________________________________

o Lawyer: "Can you describe what the person who attacked you looked like?"

o Witness: "No. He was wearing a mask."

o Lawyer: "What was he wearing under the mask?"

o Witness: "Er...his face."

________________________________________

o Lawyer: "This myasthenia gravis -- does it affect your memory at all?"

o Witness: "Yes."

o Lawyer: "And in what ways does it affect your memory?"

o Witness: "I forget."

o Lawyer: "You forget. Can you give us an example of something that you've forgotten?"

________________________________________

o Lawyer: "How old is your son, the one living with you?"

o Witness: "Thirty-eight or thirty-five, I can't remember which."

o Lawyer: "How long has he lived with you?"

o Witness: "Forty-five years."

________________________________________

o Lawyer: "What was the first thing your husband said to you when he woke that morning?"

o Witness: "He said, 'Where am I, Cathy?'"

o Lawyer: "And why did that upset you?"

o Witness: "My name is Susan."

________________________________________

o Lawyer: "Sir, what is your IQ?"

o Witness: "Well, I can see pretty well, I think."

________________________________________

o Lawyer: "Did you blow your horn or anything?"

o Witness: "After the accident?"

o Lawyer: "Before the accident."

o Witness: "Sure, I played for ten years. I even went to school for it."

________________________________________

o Lawyer: "Trooper, when you stopped the defendant, were your red and blue lights flashing?"

o Witness: "Yes."

o Lawyer: "Did the defendant say anything when she got out of her car?"

o Witness: "Yes, sir."

o Lawyer: "What did she say?"

o Witness: "'What disco am I at?'"

________________________________________

o Lawyer: "Doctor, before you performed the autopsy, did you check for a pulse?"

o Witness: "No."

o Lawyer: "Did you check for blood pressure?"

o Witness: "No."

o Lawyer: "Did you check for breathing?"

o Witness: "No."

o Lawyer: "So, then it is possible that the patient was alive when you began the autopsy?"

o Witness: "No."

o Lawyer: "How can you be so sure, Doctor?"

o Witness: "Because his brain was sitting on my desk in a jar."

o Lawyer: "But could the patient have still been alive nevertheless?"

o Witness: "Yes, it is possible that he could have been alive and practicing law somewhere."

________________________________________

o Lawyer: "How far apart were the vehicles at the time of the collision?"

________________________________________

o Lawyer: "And you check your radar unit frequently?"

o Officer: "Yes, I do."

o Lawyer: "And was your radar unit functioning correctly at the time you had the plaintiff on radar?"

o Officer: "Yes, it was malfunctioning correctly."

________________________________________

o Lawyer: "What happened then?"

o Witness: "He told me, he says, 'I have to kill you because you can identify me.'"

o Lawyer: "Did he kill you?"

o Witness: "No."

________________________________________

o Lawyer: "Now sir, I'm sure you are an intelligent and honest man--"

o Witness: "Thank you. If I weren't under oath, I'd return the compliment."

________________________________________

o Lawyer: "You were there until the time you left, is that true?"

________________________________________

o Lawyer: "So you were gone until you returned?"

________________________________________

o Lawyer: "The youngest son, the 20 year old, how old is he?"

________________________________________

o Lawyer: "Were you alone or by yourself?"

________________________________________

o Lawyer: "How long have you been a French Canadian?"

________________________________________

o Witness: "He was about medium height and had a beard."

o Lawyer: "Was this a male or a female?"

________________________________________

o Lawyer: "Mr. Slatery, you went on a rather elaborate honeymoon, didn't you?"

o Witness: "I went to Europe, sir."

o Lawyer: "And you took your new wife?"

________________________________________

o Lawyer: "I show you Exhibit 3 and ask you if you recognize that picture."

o Witness: "That's me."

o Lawyer: "Were you present when that picture was taken?"

________________________________________

o Lawyer: "Were you present in court this morning when you were sworn in?"

________________________________________

o Lawyer: "Do you know how far pregnant you are now?"

o Witness: "I'll be three months on November 8."

o Lawyer: "Apparently, then, the date of conception was August 8?"

o Witness: "Yes."

o Lawyer: "What were you doing at that time?"

________________________________________

o Lawyer: "How many times have you committed suicide?"

o Witness: "Four times."

________________________________________

o Lawyer: "Do you have any children or anything of that kind?"

________________________________________

o Lawyer: "She had three children, right?"

o Witness: "Yes."

o Lawyer: "How many were boys?"

o Witness: "None."

o Lawyer: "Were there girls?"

________________________________________

o Lawyer: "You don't know what it was, and you didn't know what it looked like, but can you describe it?"

________________________________________

o Lawyer: "You say that the stairs went down to the basement?"

o Witness: "Yes."

o Lawyer: "And these stairs, did they go up also?"

________________________________________

o Lawyer: "Have you lived in this town all your life?"

o Witness: "Not yet."

________________________________________

o Lawyer: (realizing he was on the verge of asking a stupid question) "Your Honor, I'd like to strike the next question."

________________________________________

o Lawyer: "Do you recall approximately the time that you examined the body of Mr. Eddington at the Rose Chapel?"

o Witness: "It was in the evening. The autopsy started about 8:30pm."

o Lawyer: "And Mr. Eddington was dead at the time, is that correct?"

________________________________________

o Lawyer: "What is your brother-in-law's name?"

o Witness: "Borofkin."

o Lawyer: "What's his first name?"

o Witness: "I can't remember."

o Lawyer: "He's been your brother-in-law for years, and you can't remember his first name?"

o Witness: "No. I tell you, I'm too excited." (rising and pointing to his brother-in-law) "Nathan, for heaven's sake, tell them your first name!"

________________________________________

o Lawyer: "Did you ever stay all night with this man in New York?"

o Witness: "I refuse to answer that question.

o Lawyer: "Did you ever stay all night with this man in Chicago?"

o Witness: "I refuse to answer that question.

o Lawyer: "Did you ever stay all night with this man in Miami?"

o Witness: "No."

________________________________________

o Lawyer: "Doctor, did you say he was shot in the woods?"

o Witness: "No, I said he was shot in the lumbar region."

________________________________________

o Lawyer: "What is your marital status?"

o Witness: "Fair."

________________________________________

o Lawyer: "Are you married?"

o Witness: "No, I'm divorced."

o Lawyer: "And what did your husband do before you divorced him?"

o Witness: "A lot of things I didn't know about."

________________________________________

o Lawyer: "And who is this person you are speaking of?"

o Witness: "My ex-widow said it.

________________________________________

o Lawyer: "How did you happen to go to Dr. Cherney?"

o Witness: "Well, a gal down the road had had several of her children by Dr. Cherney and said he was really good."

________________________________________

o Lawyer: "Doctor, how many autopsies have you performed on dead people?"

o Witness: "All my autopsies have been performed on dead people."

________________________________________

o Lawyer: "Were you acquainted with the deceased?"

o Witness: "Yes sir."

o Lawyer: "Before or after he died?"

________________________________________

o Lawyer: "Mrs. Jones, is your appearance this morning pursuant to a deposition notice which I sent to your attorney?"

o Witness: "No. This is how I dress when I go to work."

________________________________________

o The Court: "Now, as we begin, I must ask you to banish all present information and prejudice from your minds, if you have any."

________________________________________

o Lawyer: "Did he pick the dog up by the ears?"

o Witness: "No."

o Lawyer: "What was he doing with the dog's ears?"

o Witness: "Picking them up in the air."

o Lawyer: "Where was the dog at this time?"

o Witness: "Attached to the ears."

________________________________________

o Lawyer: "When he went, had you gone and had she, if she wanted to and were able, for the time being excluding all the restraints on her not to go, gone also, would he have brought you, meaning you and she, with him to the station?"

o Other Lawyer: "Objection. That question should be taken out and shot."

________________________________________

o Lawyer: "And lastly, Gary, all your responses must be oral. Ok? What school do you go to?"

o Witness: "Oral."

o Lawyer: "How old are you?"

o Witness: "Oral."

________________________________________

o Lawyer: "What is your relationship with the plaintiff?"

o Witness: "She is my daughter."

o Lawyer: "Was she your daughter on February 13, 1979?"

________________________________________

o Lawyer: "Now, you have investigated other murders, have you not, where there was a victim?"

________________________________________

o Lawyer: "Now, doctor, isn't it true that when a person dies in his sleep, in most cases he just passes quietly away and doesn't know anything about it until the next morning?"

________________________________________

o Lawyer: "And what did he do then?"

o Witness: "He came home, and next morning he was dead."

o Lawyer: "So when he woke up the next morning he was dead?"

________________________________________

o Lawyer: "Did you tell your lawyer that your husband had offered you indignities?"

o Witness: "He didn't offer me nothing. He just said I could have the furniture."

________________________________________

o Lawyer: "So, after the anesthesia, when you came out of it, what did you observe with respect to your scalp?"

o Witness: "I didn't see my scalp the whole time I was in the hospital."

o Lawyer: "It was covered?"

o Witness: "Yes, bandaged."

o Lawyer: "Then, later on...what did you see?"

o Witness: "I had a skin graft. My whole buttocks and leg were removed and put on top of my head."

________________________________________

o Lawyer: "Could you see him from where you were standing?"

o Witness: "I could see his head."

o Lawyer: "And where was his head?"

o Witness: "Just above his shoulders."

________________________________________

o Lawyer: "Do you drink when you're on duty?"

o Witness: "I don't drink when I'm on duty, unless I come on duty drunk."

________________________________________

o Lawyer: "Any suggestions as to what prevented this from being a murder trial instead of an attempted murder trial?"

o Witness: "The victim lived."

________________________________________

o Lawyer: "The truth of the matter is that you were not an unbiased, objective witness, isn't it? You too were shot in the fracas."

o Witness: "No, sir. I was shot midway between the fracas and the naval."

________________________________________

o Lawyer: "Officer, what led you to believe the defendant was under the influence?"

o Witness: "Because he was argumentary, and he couldn't pronunciate his words."

Attribution
















Wednesday, April 24, 2024

CROSS-EXAMINING TRUMP ON HIS PRIOR BAD ACTS

 


In the Trump “hush money” case, can the prosecutor cross-examine Trump about his prior  bad acts if Trump takes the stand in his own defense? The trial judge will decide this in what is called a Sandoval hearing.

In New York, if a  defendant testifies, the defendant  may be cross-examined concerning prior criminal, vicious or immoral acts which tend to impugn the defendant’s credibility?  People v. Sandoval, 34 N.Y.2d 371, 376, 314 N.E.2d 413, 417, 357 N.Y.S.2d 849, 854 (1974). However, the prosecution is prohibited from cross-examining the defendant  to show the defendant’s  criminal character or propensity.

The trial court is to conduct a hearing prior to the defendant taking the stand and rule upon the admissibility of the prior bad acts that the prosecution intends to ask about during cross of the defendant. In Sandoval, the court  laid out the court’s two-step inquiry: (1)  whether the evidence is the type of conduct which reflects upon credibility at all and (2) whether the risk of prejudice is so great that the evidence should be excluded notwithstanding its relevance. Sandoval grants the trial court broad discretion in deciding whether to permit the inquiry during cross.

Click here to read the Sandoval Notice.