Friday, December 30, 2011


Prediction of Another in the Line of Supreme Court Confrontation Clause Decisions

On December 6, 2011, the United States Supreme Court heard another confrontation clause case: Williams v. Illinois. In Williams, a rape case, the appellant contends that he should have had the right to cross-examine the laboratory analyst who generated the DNA profile from evidence taken from the crime scene. Illinois State Police Lab sent the evidence to a private lab in Maryland. The appellate prosecutor for Illinois argues that the defense had the opportunity to question a different analyst who compared the profile to the defendant’s and that this is a common practice and that the report was not introduced into evidence. Federal Rule of Evidence 703 and state rules of evidence allow experts to base their opinions on evidence that is normally relied upon by experts yet not admitted. If the relied upon report is testimonial in nature - intended for future prosecution in the case, shouldn't the defendant be given an opportunity to confront? The court might again offer the constitutional notice-and-demand statute as a balm as it did in Mendez-Dias. An it's-too-expensive-to-call-the-analysts argument isn't likely to cut it with the Court.

In recent years, the Supreme Court has decided a string of Confrontation Clause cases roughly two years apart with historian Scalia often guiding the way, as follows:

Crawford v. Washington, 541 U.S. 36 (2004): testimonial statements of a person unavailable for trial are inadmissible because they violate the Sixth Amendment Confrontation Clause. The decision dealt a blow to domestic violence prosecutions.

Davis v. Washington, 547 U.S. 813 (2006): 9-1-1 call was nontestimonial and therefore admissible hearsay not in violation of the Confrontation Clause. The court along the way referred to the forfeiture by wrongdoing exception to the hearsay rule – a hope for prosecutors.

Giles v. California, 554 U.S. 353 (2008): to fall under the forfeiture for wrongdoing exception it is insufficient that the defendant just intended to kill the person who made the statement, the defendant must be proven to have intended to make the person unavailable for trial.

Melendez-Diaz v. Massachusetts 129 S.Ct. 2527 (2009): Sixth Amendment violated when the court admitted the prosecutor offered chemical drug test report and did not call the analyst.

Bullcoming v. New Mexico 131 S.Ct. 2705 (2011): confrontation clause held violated when lab analyst testified to being familiar with the testing done on the defendant’s blood and lab testing procedures, but the analyst who did the testing did not testify. .

For an interesting New York Times Op-Ed piece see this article by Jeffrey Fisher.

Prediction: Given the Court’s track record and split, the Court will find a Confrontation Clause violation.

Tuesday, December 27, 2011


Acquittal of Owners on December 27, 1911

A hundred years ago today after four ballots, the jury acquitted Max Blanck and Isaac Harris, owners of the Triangle Waist Company, of manslaughter. To convict the owners of manslaughter the jury would have had to find that the owners knew the door to the ninth-floor door was locked at the time of the fire at their garment factory in Lower Manhattan. As consequence of the door being locked, the women garment workers were unable to escape the fire.

146 garment workers died, either from the fire itself or in jumping from the windows. The funeral procession was attended by 350,000 and was described as one of the “most impressive spectacles of sorrow New York has ever known.”

The last page of this month’s ABA Journal commemorates the acquittal and notes, “(t)he trial was partly shaped by famed defense attorney Max Steuer, who shifted the blame to the victims, arguing that their panicked attempts to flee had sealed their fate.” The Journal does not mention Steuer’s skillful cross-examination of the prosecution’s witness, which is covered in Cross-Examination Handbook.

The public was outraged by the Triangle fire catastrophe. The disaster caused the labor movement to grow and led to work place safety standards, the minimum wage and the New Deal. Thirty six statutes were passed setting factory safety standards.

Friday, December 23, 2011


Learning Cross-Examination Techniques by Experience

The best way to learn how to conduct winning cross-examinations in civil cases is through experience. Cross-Examination Handbook offers opportunities for cross-examinations in two civil cases that can be used in either professional development workshops for practicing lawyers or law school classes.

Case Files, Actors’ Guide and Teacher’s Manual

Cross-Examination Handbook 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 civil cases are Rufus T. Jones v. Brahmin Preparatory School and Terry O’Brien v. Jamner County. Both fact patterns are based on actual cases.

Terry O’Brien v. Jamner County

The O’Brien case involves a single car rollover accident (pictured left) which resulted in the death of the driver, 32-year-old Terry O’Brien. O’Brien was driving an eight year old Suzuki SUV southbound on Pioneer Road when the vehicle had drifted off the west edge of new asphalt that had recently been applied to the surface of the road. There was neither channeling nor traffic control signs or devices on Pioneer Road in the construction area.

Rufus T. Jones v. Brahmin Preparatory School

The Jones case involves Rufus T. Jones, an African American teacher, who sues Brahmin Preparatory School, an elite private high school, claiming racially disparate treatment and retaliation against him for engaging in the protected activity of opposing what he believe to be incidents showing discrimination against faculty of color.

The Assignments

The 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 deposition and assignments and Case File materials are provided so that law students and practicing lawyers can perform an impeachment with a deposition. 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.

For more information about the two civil cases and Cross-Examination Handbook, visit the book’s website here. Purchase Cross-Examination Handbook by clicking on image of the book in the right column.