Impeachment with Visuals

 

At Seattle University Law School I teach an online course entitled “Visual Litigation and Today’s Technology". Cross-examination visuals are featured because they can be extremely powerful weapons for cross-examination. They can be used to gain concessions either supporting your case theory or undermining the other side’s case theory. 

Visuals can also be very effective for impeaching a witness. For examples, impeachment visuals can include: 

1. a prior inconsistent statement either in a document or in a visual, such as a video deposition; 

2. a prior conviction—judgment and sentence document; 

3. a visual that establishes that the witness did not have personal knowledge about that which the witness testified; 

4. a visual that proves that the witness’s testimony is improbable; 

5. a visual that reveals the witness’s bias or interest; 

6. and a statement in a learned treatise that conflicts with the witness’s testimony.

“Visual Litigation and Today’s Technology” is a 2-credit course. In this online course, students interested in litigation learn how to integrate technology into their trial visual presentations and case. Just as visuals and technology have become a centerpiece in modern life, they also are the centerpiece in trial. Judges and jurors expect lawyers to use visuals with today’s technology.

The “Visuals” course is taught in the context of mock civil and criminal cases, giving students simulated real-world experiences working with visuals and cutting-edge technology. This experiential course will allow students in role-play assignments to plan the cross-examination of witnesses with visuals. 

This course is comprehensive in its exploration of visual communication strategies and technology, including, among other topics: the ethical and legal boundaries to what visuals may be displayed in trial; evidentiary foundations for visuals (animations, demonstrations, laser scanner images and so on); visual advocacy in both a pretrial venue and a courtroom, from opening statement through closing argument; the creation of visuals; litigation software, such as Sanction, TrialPad, and SmartDraw; and meeting the trial judge's expectations of a trial lawyer's competency when employing technology.

The text for the course is my book Visual Litigation: Visual Communication Strategies and Today’s Technology, which is being published by Full Court Press, the publishing arm of Fastcase. The text offers examples of how visuals were used on cross-examination in notable cases, such as Abraham Lincoln’s cross-examination with a Farmer’s Almanac or the prosecutor’s cross-examination of Richard Hauptmann in the Lindbergh kidnapping/murder case with a ransom note and Hauptmann’s diary.

Cross-Examination Checklist

A checklist can be a survival guide.  Checklists are critical to pretrial and trial work. 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 headed 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 trial lawyers as well. At the end of almost every chapter in both Pretrial Advocacy, 6th Edition and Trial Advocacy 5th Edition is a checklist of matters that are essential to effective pretrial and trial advocacy. The following is an example of a checklist that follows the Closing Argument chapter in Trial Advocacy

This post offers you a Cross-Examination Checklist for impeaching a witness on cross-examination . Kindly let me know what you think of the checklist? Would you like more?

Impeachment Cross-Examination Checklist 

Improbability 

Evidence of improbability is relevant and therefore admissible because it makes what the witness claims less probable. Fed. R. Evid. 401, 402. 


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 evidence
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. 


For more advocacy books go to ronclarkbooks.com

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Learning Cross-examination Techniques from the Lindberg Kidnapping Case

 

My co-author of  Cross-Examination Handbook, Bob Dekle wrote Lindbergh Kidnapping Case: A Critical Analysis of the Trial of Bruno Richard Hauptmann.  Although the Lindbergh kidnapping case has been written about innumerable times, never before has the trial of Bruno Richard Hauptmann been meticulously researched and analyzed. Bob and his co-author did just that.

The book is somewhat reminiscent of Vincent Bugliosi’s book Outrage: The Five Reasons O. J. Simpson Got Away With Murder. In Outrage, Bugliosi, who had prosecuted Charles Manson, explains how he would have prosecuted Simpson, along with providing examples of what he would have done, such as what he would have said in closing argument. 

Lindbergh Kidnapping Case is instructive on how to conduct a cross-examination. For instance, one of the prosecution witnesses at the Hauptman trial was John Conlon, an interloper who was involved in the negotiations over the ransom. This is how the book assesses defense counsel’s strategy in cross-examining Conlon: 

Reilly adopted the wrong strategy for the examination of Condon. Instead of attacking the implausibility of Condon’s testimony, he attacked Condon personally. What Reilly succeeded in doing by aggressive verbal sparring with Condon was to highlight Condon’s wit in repartee, which in turn masked the implausibility of his testimony. . .

Rather than merely criticizing the strategy, the book recommends effective techniques that could be utilized as follows:

Reilly should have attacked the plausibility of the testimony, not the personality of the testifier. Snide remarks and personal assaults proved counterproductive and resulted in this portion of the cross-examination being diverted down a rabbit trail of arguing over the meaning of words. He would have done better by asking a line of tight and controlling single-fact questions. Such a line of questioning might have gone thus: 

Q: You attended a lineup at the Greenwich Street police station in New York? 

A: Yes. 

Reilly should expect Condon to append a verbal barrage to his affirmation, but he should not take the bait. Rather he must relentlessly pursue the non-identification. 

Q: The police asked you if anyone appearing in the lineup was the John whom you met in the cemetery? 

A: Yes. 

Q: Bruno Richard Hauptmann was in the lineup? 

A: Yes. 

Q: At that time you did not identify Mr. Hauptmann as John? 

A: I identified Mr. Hauptmann at that time but I made no declaration of identification. 

The Lindbergh Kidnapping Case is the perfect read for anyone interested in the Lindbergh case, an insightful telling of the story of the Hauptman trial, and a superb tutorial on trial strategies and techniques with illustrations from this famous case.

Excited about Cross-Examination Handbook 2nd Edition

 

Excited about the 2nd Edition of the Cross-Examination Handbook! 📘 This comprehensive guide provides law students and trial lawyers with the essential skills and strategies needed for a persuasive cross-examination. With step-by-step instructions and real case examples, including two criminal and two civil case files, this book offers hands-on practice opportunities for students to enhance their planning and execution abilities. Get ready to master the art of cross-examination with this valuable resource! 

5 star reviews:  "This book really should be called The Cross-Examination Bible. Clark, Dekle and Bailey have done the heavy lifting, amassing the best strategies and techniques for any trial lawyer or student." For more reviews, click here.

A COMMON AND BIG MISTAKE ON CROSS-EXAMINATION: Don’t make this cross-examination mistake.

 

It is probably the most common mistake and a big one - the cross-examiner has the witness repeat their direct examination. Question: “On direct examination you told this jury that . . .” 

The error is grievous. It violates the 7th commandment of the famous Professor Irving Younger’s 10 Commandment of Cross-Examination: “Don't allow the witness to repeat his direct testimony.” Younger’s commandment directs the cross-examiner  to focus on accomplishing the goals of cross-examination which are to gain concessions that either bolster the cross-examiner’s case theory or undermine the opposing party’s case theory. If the cross-examiner instead allows or causes the witness to repeat the direct examination which contains things favorable to the opposing party, the examiner is defeating the purposes of cross. Worse than that, the examiner is repeating the information which the jury has already heard and that repetition will make it stick in the jurors’ minds. 

The Cause

Why would a cross-examiner ever have the witness repeat their direct examination? Why is it such a common mistake? The usual cause is poor preparation. Rather than having a well planned cross-examination, the cross-examiner mistakenly believes that it is possible to conduct a successful unscripted cross. Counsel has been taking notes during the direct examination and works off them to conduct the cross-examination.  Consequently, the examiner is reacting to what the witness testified to on direct, and thus repeats the direct examination. And, the examiner often does so in the order in which opposing counsel questioned the witness. 

The Cure

The cure that will prevent the cross-examiner from repeating the direct is to remember the core idea of cross-examination: Cross-examination is the cross-examiner’s opportunity to testify. Rarely if ever should cross-examination be done on the fly. It must be scripted to be effective. The examiner should know what the witness will testify to and that the examination will produce the desired responses.

The Two Exceptions

There are two exceptions to the rule that the cross should never repeat the direct. First, in those situations where the witness on direct testifies to information damaging to the other side’s case (such as when the other side it trying to pull the sting that is anticipated to be brought out on cross) or helpful to the cross-examiner’s case, then naturally it may be covered on cross. Second, in the odd case where the witness has been coached and memorized their testimony, the cross-examiner may want the witness to repeat direct. An example happened during the famous Triangle Shirtwaist Factory Fire trial when defense counsel’s cross revealed that a witness had been coached to give a memorized story by having the witness repeatedly tell her story in identical words during cross.

Click here for the Cross-Examination Handbook.

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.

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. 

FREE TRIAL ADVOCACY BOOK with Cross-Examination Discussed and Demonstrated

 

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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.

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. 

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

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.

 

Carolina Academic Press has just posted the 2024 Supplement to Jury Selection Handbook and note above that it is offering both the paper and ebook at a discounted price and if you are a professor teaching in the field, you can get a complimentary copy. Click here to go to the Carolina Academic Book website.

Here is the 2024 Supplement to the Jury Selection Handbook:

Jury Selection Handbook

THE NUTS AND BOLTS OF 

EFFECTIVE JURY SELECTION  

2024 SUPPLEMENT

Ronald H. Clark

DISTINGUISHED PRACTITIONER IN RESIDENCE  SEATTLE UNIVERSITY SCHOOL OF LAW

Thomas M. O'Toole

PRESIDENT  SOUND JURY CONSULTING

CAROLINA   ACADEMIC PRESS

Copyright © 2024 Carolina Academic Press, LLC All Rights Reserved Carolina Academic Press 700 Kent Street Durham, North Carolina 27701 Telephone (919) 489-7486 Fax (919) 493-5668 E-mail: cap@cap-press.com www.cap-press.com

For the New York Trump “hush money” case, the trial judge – the Honorable Juan M. Merchan, Judge of the Supreme Court of the State of New York – on April 8, 2024 provided counsel for both parties with a letter in which he laid out matters relating to jury selection that was scheduled to begin on April 15, 2024. Judge Merchan’s letter and attachments provide not only insight into how jury selection would be conducted in the People v. Trump case but also examples of subjects covered in Jury Selection Handbook. Judge Merchan’s materials can be helpful in understanding, preparing and conducting jury selection. 

The following are topics covered in Judge Mechan’s letter and attachment with references to pages in Jury Selection Handbook where you can read discussion of the topics and find other examples of the subjects under discussion. For example, Judge Merchan provides the People v. Trump juror questionnaire. 

The following list provides page references in the Jury Selection Handbook where you can find discussions of the subjects in Judge Merchan’s letter. 

TOPIC                             PAGE REFERENCE 

                                                                             IN JURY SELECTION HANDBOOK

How the Judge Conducts Voir Dire………………….......27-38   

The Permissible Scope of Voir Dire…………………………159-273

Grounds for a Challenge for Cause………………………….42-59

The Case Summary Read to the Jury…………………………24-27

Juror Questionnaire…………………………………………..102-105                                                                                            and 307-313

           Click here to view and download the 2024 Supplement at Carolina Academic Press

New Book Website - ronclarkbooks.com

 

I'm just delighted that my new website was published - ronclarkbooks.com Hope you visit it. 

Delivering a Powerful Presentation

 

The following is an excerpt from Powerful Presentation Handbook - a book that can serve as a guide whenever you are making a presentation whether it is given in or out of a courtroom.

CRAFTING THE CONTENT OF A PRESENTATION

There are three guiding principles for selecting and designing the content of your presentation: (1) a purpose and passion; (2) suitable to the audience; and (3) engage and entertain.

1. PURPOSE AND PASSION 

First, have a passion and a purpose. As Danielle Kennedy says, “The speaker’s objectives are like the writer’s thesis statement. What are you trying to say? Accomplish? What is the purpose of the speech? It’s mission statement? If you don’t know, should the audience guess?” Selling the Danielle Kennedy Way, Danielle Kennedy (1991)

What are you going to talk about? What are you trying to say? Accomplish? Is the subject of your presentation decided by others or is that left up to you? Usually, you will be asked to speak on the subject because you are knowledgeable about it. However, you might be assigned to speak on a subject upon which you are not well versed. 

No matter how you arrive at the assigned subject, you want to make the subject your own—to know what you want to get across to your audience—your purpose. When the subject of your talk is your own and you have a purpose, you will have a passion for your subject, enabling you to speak from your heart and mind to your audience. If you can’t make the speech your own, don’t give it.

Nothing is more dynamic than a person who has purpose and a passion for the subject and wants to deliver the message from the speaker’s heart to the hearts of people in the audience. In Chapter 3 “Lessons in Eloquent Rhetoric”, we can tell from their speeches that Reverend King, Oprah Winfrey, Abraham Lincoln, Barack Obama, and Gerry Spence each had a purpose and passion for their subject matter. Each of them radiated their purpose and passion to the audience. 

2. SUITABLE TO THE AUDIENCE

The second principle for crafting the content of a successful presentation is to make sure that the audience needs and wants to learn about the subject. If the presentation does not meet listeners’ needs and wants, it is not worth giving. 

The topic must fit what the audience wants and needs. Sometimes, while the audience members may need to learn about a subject, they do not want to listen to a talk on the subject. If that is the situation, they are not going to learn much. If the audience needs to learn about a subject but does not naturally want to learn about it, you must create the desire to know. 

Creating a want to know in the audience can be accomplished by explaining to the audience why they should care about the subject of your talk. For example, when I worked at the National Advocacy Center in Columbia, South Carolina, every week a new contingent of state and local prosecutors came to Columbia to receive training at the Center. They were there to become better prosecutors. What did they want? They wanted practical information that would help them perform their job. 

While the attendees at the Center needed a presentation on prosecutor professionalism—legal ethics—to become better prosecutors, a lecture on the subject was not one they, as a matter of course, were looking forward to and wanted.  Because the attendees did want practical information, it was important for the presenter to explain, with the aid of every-day practical examples, that ethics violations can result in mistrials and reversals of convictions. An ethic’s presentation framed around this practical information coupled with advice concerning how to avoid professional responsibility pitfalls was one that the prosecutors wanted in the lecture on prosecutorial professionalism.

3. ENGAGE AND ENTERTAIN

The third principle for selecting and crafting your powerful presentation is—find material that will engage and entertain the audience. Yes, entertain them. To accomplish this, the speaker must do the necessary brainstorming and research. Where do we get the material to include in the presentation? The first and best source is your creative mind. When you are motivated by either glee or fear that you are going to give a talk, ideas will start flowing. 

The ideas may include a joke, a story, a demonstration, a personal experience, an anecdote, and so on. Get out of the way and do not pass judgment on the ideas that come to you because you are brainstorming. Do not initially reject a train of thought because on later reflection what you initially thought was not a good idea, could indeed be usable.  

Write down your ideas.  Put them in a file on your computer. Label the file with the date of your talk and title of the presentation. When an idea comes to you, put it in the file. Keep a tablet by your bed or a phone so you can record the ideas when they come to you in the middle of the night.

Here are some notions that are winners:

• Naturally, anything supporting the message you want to impart to the audience.

• Stories: Use stories to make a point. 

• A joke that is pertinent to the topic.

• Quotations: They are useful to drive home a point. A quote is good if it is from a well-known, respected figure. 

• Transcript: If the subject is trial work, an excerpt from a trial transcript could fit in the talk. 

• Extended anecdotes work well. 

• Demonstrations: Demonstrations can highlight a point you want to make.

• Rhetorical devices, such as an analogy, simile or metaphor, which will be discussed in the next chapter.

The topic of your talk will dictate to you what research you need to do. Discuss your talk with the person who asked you to make the presentation; find out what the person wants to get across to the audience. Read everything can get your hands on about the subject. Talk to people who are knowledgeable on the subject. 

If you are interested in reading more of the book, you can locate it on Amazon by clicking here. It is only $7.99 in paperback and free on Kindle Unlimited.

Cross-Examining Trump

Trial lawyers think differently from other human beings when they evaluate a person. First, they evaluate what the person has to offer in the case in the context of the rules of evidence. The trial lawyer ponders whether or not what the witness has to offer is admissible in evidence. If the witness hurts the case, the lawyer may move to keep the witness off the stand or exclude part of the witness’s testimony as inadmissible under the rules of evidence. If what the witness offers is helpful, the lawyer comes to court prepared to argue it is admissible under the rules.

Second, the trial lawyer evaluates what the witness has to offer in terms of whether it helps or hurts the case. Obviously, if it hurts, the lawyer turns to the rules of evidence in hopes of being able to keep the witness off the stand or exclude the harmful part of the witness’s testimony. Conversely, if what the witness offers is good for the case, the trial lawyer will want the witness to take the take the stand and get the evidence the witness can provide admitted into evidence.

With those two concepts in mind, consider Donald Trump’s involvement in the E. Jean Carroll case in which the jury awarded plaintiff Carroll $83.3 million. Defense counsel called Trump to the stand, and he testified for around three minutes. 

Let’s evaluate Trump as a witness from the plaintiff’s lawyer’s perspective utilizing the two criteria—admissibility of the evidence and whether or not the evidence is helpful or harmful. Regarding admissibility of the evidence, to the extent that Trump wanted to continue denying he sexually assaulted Carroll, the plaintiff’s had the court’s ruling on the evidence that that issue had been resolved during the first trial and that testimony that the sexual harassment did not happen would not be allowed. 

Second and most fascinating is how the two sides evaluated what Trump contributed to the case in terms of whether it was good or bad. It’s hard to fathom why defense counsel put him on the stand and let him behave the way he did in the courtroom. He offered little during his three minutes on the stand.

Plaintiff’s counsel were delighted by Trump’s performance and gave it high marks for helping the plaintiff’s case. As they have said in public interviews after the trial, the plaintiff’s themes for the case were that Trump was a bully who thought the rules did not apply to him, and Trump’s courtroom behavior offered corroboration for those themes. Trump not only spoke loudly so the jury could hear him when he should not have done so, and he walked out the courtroom during opposing counsel’s closing argument, which is a breach of courtroom decorum. 

The court probably instructed the jury to evaluate a witness’s testimony in terms somewhat along these lines:

"In considering a witness's testimony, you may consider these things: the opportunity of the witness to observe or know the things they testify about; the ability of the witness to observe accurately; the quality of a witness's memory while testifying; the manner of the witness while testifying; any personal interest that the witness might have in the outcome or the issues; any bias or prejudice that the witness may have shown; the reasonableness of the witness's statements in the context of all of the other evidence; and any other factors that affect your evaluation or belief of a witness or your evaluation of his or her testimony." (Emphasis added)

Also, the jury was considering punitive damages - what it would take to stop Trump from defaming Carroll - and his demeanor and behavior didn't help him.

Clearly in the minds of E. Jean Carroll and her lawyers, Trump’s demeanor and behavior helped their case. Short cross-examination if any was called for.