“Holy #$%^ I Cannot
Believe I did that”
What NOT to overlook in trial
How to do it better
Ten Things I Have Done
You shouldn’t!
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Pick a Juror with a toupee.
Not go to the crime scene.
Talk about case at lunch. Can you say
mistrial!
Think the case is going to settle. It won’t
Fail to catalog evidence for easy access.
10 Things I wish I didn’t do
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Failed to go to the courtroom before trial.
Spoke with a witness alone.
Went without a significant knowledge of
my tool box.
Ever walked by a bathroom during trial.
Any bathroom. ANY. Really. ANY.
Lost sight of the fact that I have never
convicted anyone nor have I acquitted
anyone.
My Trial Tips
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Five P’s: Prepare, Prepare, Prepare,
Prepare, Pee
Know the File
Break down ALL statements.
Review ALL evidence with Police.
Follow up ALL unanswered questions.
Crime Scene
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If possible with v/w AND investigator
Can Wit See/Hear what they said they did
Any pictures don’t have but want
Adds credibility with jurors
Puts adverse wits on notice you’ve done
your homework
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Organize
Keep evidence log,
items, foundation,
admitted
Witness List
All statements
Have multiple
copies
Practice Electronics
Go to the courtroom
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Learn ropes of clerk. Most important.
Learn ropes of judge. Secondary
Due diligence with other lawyers
Takes away nervousness
How to Convey to Jury
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Electronic Evidence
Video
Photos
Real Evidence
Start with the End in Mind
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Covey’s rule--huge for Trial Lawyer
Every question builds for Closing
Every piece of evidence for Closing
Your jurors won’t change their mind based
on your closing--Arguing to give ammo to
your best jurors
Revise/Add/Subtract/Quotes during trial
Tools of Trade
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Rules of Evidence
Crawford
801, 803, 804, 806
612, 613(b), 608, 609
Crawford
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Declarant available and subject to cross-ex? No
Crawford issue
Declarant unavailable but prior testimony subject
to cross? No Crawford issue
Declarant unavailable, no cross? Depends
Testimonial--
Crawford issue
Non-testimonial--
No Crawford issue--Hearsay law governs
Crawford
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Not for truth
Declarant appears for cross at trial
Unavailable but prior opportunity to
cross
Forfeiture by wrongdoing
Not Testimonial
Nontestimonial
• Casual remarks to acquaintance
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Off hand, overheard remarks
Statements in furtherance of
conspiracy
Most business records
Statements to govt where objective
primary purpose is to meet ongoing
emergency
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Solemn declarations
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Govt statements with eye toward trial
Testimonial
Prior testimony at a preliminary
hearing, grand jury, or at a former
trial
Police interrogations with no
emergency/primary purpose is for use
at trial
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Primary Purpose Test
Describes past events—not as happening
Declarant not facing emergency
Statement formality:
Calm circumstances/no danger
At Station house
Series of questions
Recorded
Custody and miranda
Separation of declarant and suspect
Crawford
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Davis/Hammon
Bryant
Bullcoming
Melendez-Diaz
Williams
801(d)(1)
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Not hearsay if:
Declarant testifies at trial
A. statement is inconsistent and
was at prior trial, hearing or under
oath
B. statement was consistent
C. Statement was one of
identification
Automatically Admissible?
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No.
There may be other objections to
the evidence...Personal knowledge,
competency etc.
801(d)(1)(A) PIS
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Must comply with 613(b)
Declarant must testify,
For truth
Prior statement is inconsistent with (trial)
testimony
Prior Statement under oath
Prior Statement at “proceeding”
N.B. No cross needed for prior statement
If prior statement not under oath,
impeachment only
NOT UNDER OATH
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If prior statement not under oath not for the truth of
prior statement, only to impeach
Inconsistent?
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104(a) determination by court
“I don’t remember”
Genuine/Ploy
“I don’t remember”
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Not necessarily inconsistent
Refresh recollection first 612
Can use anything
Show document
Direct witness to the area have them read
Ask if it refreshes
If yes, move on
I don’t remember
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If no, past recollection recorded 803(5)if
you can
Statement fresh,
adopted as true
read into evidence
PROBLEM--what if wit says lying at time of
exhibit
I don’t remember.
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Go to the judge 104(a)
If ploy, now I don’t remember is
inconsistent.
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Q: A is the truth right
A: if yes—you win
If no—continue
Q: Did you speak to someone
Get out the circumstances
Especially all the reasons it is better than trial
testimony
Identify the prior statement
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Re-ask about A
Q: The truth is A, right?
A: If yes—you win
If maybe, or I don’t know, you
probably won
If no—continue
Then read the Prior statement
Follow along while I read this
Prior Consistent
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Used to re-hab witness
Because the statement was made
closer in time, before lawyers and
court system.
Prior Consistent Statement
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PIS admitted to attack witness, or
Express or implied charge of fabrication or bias,
and
Consistent statement was made before the PIS
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Temporal Requirement
In case of recantation:
To teacher 5/11 Dad molested me
To cop 6/11 “dad did not molest me”
To mom 8/11“dad did molest me”
To cop 9/11 dad did not molest me
Trial 1/12“dad did molest me”
You impeach with first statement, PX testimony
is NOT AMISSIBLE.
PCS
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On cross, your witness is impeached
Ask when/where W talked to police
Establish the time frame and who W talked to
Talk about the interview
what was asked, that W told the truth etch
Then ask what they said
801(d)(2) Party Opponent
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Other side said it, we put it in
Does NOT have to be an admission
Does NOT have to be inculpatory
Does NOT have to be against interest
They said it, we use it. Period.
If they want to address it, they are 25 feet
from the truth
Party Opponent
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Defense cannot put their sob story
on
Be careful not to open door
Questions and Answers
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Defense may argue that questions
by detective are not admissible.
Detective statements give context to
the answers, should be admissible.
Defense may argue that D did not
adopt statements by detective
A limiting instruction can cure any
issue 105
Party Opponent
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Defense says inadmissible
character evidence in statement by
detective again a 105 limiting
Defense says officer gives opinion
on truth 105 limiting instruction
Adoptive Admission 801(d)(2)(B)
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D is present when another says
something.
D takes action which indicates
adoption or
D remains silent in circumstances
where one would naturally have
denied; silence is acquiesence
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(1) statement must have been heard
(2) statement must have been understood
(3) subject matter must have been within
hearer's knowledge
(4) no impediments to response (eg
confusion/injury after accident)
(5) statement must be such as would, if
untrue,
call for a denial under the
circumstances
(6) criminal: if accused in custody, can't
use
Prior ID
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Evidence of any earlier ID of D
Whether or not W can ID at trial
Substantive evidence
If lineup/show up/photo ID
Must be fair—burden on you
Description is also admissible
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Prior ID
Substantive Evidence if:
Id was made when crime fresh in memory and
Witness made ID and it was true opinion at time
Declarant MUST testify
Both witness and cop can testify to id.
Prior ID considered BETTER than id at trial
Trial too suggestive
Fear of retaliation for ID not present at
time of prior ID
U.S. v. Owens
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Low Bar for competency
Prior Id
Past recollection recorded
Character
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608; 609
Non-character, 404(b)
Never coming in
Impeachment
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Reputation for dishonesty 608
Prior convictions 609
Bias, motive, interest
Conflict in evidence
Defect of witness (Owens)
608
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Impeachment because wit/D lacks
Truthfulness
Admissibility
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4 Factors
Relevant 401, 404(a)
Form of evidence (reputation, opinion,
specific instances)
403
608
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Opinion reputation only
Either side can initiate
Rebuttal only available after other
side has attacked through opinion,
rep
b Specific instances, court’s
discretion on cross, of that witness,
or another subscribing wit
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608 Cross
W may be asked about his own
specific lies (no extrinsic
evidence)
W may be asked about specific
lies of the witness he is testifying
for (no extrinsic evidence)
403 balancing applies
Good faith basis for question
If 609 would exclude- then it will
not be “back door” by 608
609
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Prior conviction will be admitted against
wit if subject to excess of 1 yr
403
10 year rule
Prior conviction shall be admitted
regardless of punishment if crimen falsi
NO 403
609
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Defendant
Prior will be admitted provided
Probative value outweighs
prejudicial effect; reverse 403
Idea is to allow D to testify
Have prior docs available if wit
denies
609
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Authenticate the document
Two options
Impeach witness while on stand (better)
Wait and introduce the document after witness
testified (Not as much sting)
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Brilliant if D denies
Other Stuff To Help
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We love 803
Get uncrossed information to our
jurors
Fresh Complaint
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Victim made a complaint
V made complaint shortly after
V said she was the victim of crime
Id’d perp
NO FACTS
NON-hearsay purpose
Argue with caution
Beg Officers to Take Pictures
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Our jurors want “evidence”
Most cited reason for aquittal
“incomplete investigation”
“not enough evidence”