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					          Today’s Lecture:




     Trials, Evidence & Witnesses




Session


  8
             Let’s Get Some Perspective


1. The rules of monopoly …
2. temporal organization ..
                    going to court



What      What                Pretrial
                  Pleadings                  Trial
Court?    For?                practice

                       Right             Getting
                Type ofpaperwork         information
                Case,
         Court structure,
                Remedy
         Organization                    Settling
         and Culture                     Cases
                                         Frivolous or
                                         deficient
         Rules of Monopoly!
                                         cases
                    Trial Procedure


1. Opening Statement
   -- not allowed to argue.
   -- simply tell the jury what the case is about from your
   vantage point; tell them what they can expect to see.
   -- like giving an orientation to your case, not arguing it.
   … examples:
   [your own examples:]
       • case involving a burglary of a PlayStation
       • case involving a incest of an adopted daughter
                    Trial Procedure


1. Opening Statement
   -- not allowed to argue.
   -- simply tell the jury what the case is about from your
   vantage point; tell them what they can expect to see.
   -- like giving an orientation to your case, not arguing it.
                            Question:
   … examples:
            What do you think the prosecutor said
   [your own examples:]
           in opening statement for the rape case
          we read about in “false a PlayStation
       • case involving a burglary ofcases” earlier in
                        the semester?
       • case involving a incest of an adopted daughter
    what did
   prosecutor
say in opening   0
  statement in   0
 rape case we    0
  read about?
                    Trial Procedure


1. Opening Statement
   -- not allowed to argue.
   -- simply tell the jury what the case is about from your
   vantage point; tell them what they can expect to see.
   -- like giving an orientation to your case, not arguing it.
                              Question:
   … examples:
             What do you think the defendant’s
   [your own examples:]
               opening statement was like?
       • case involving a burglary of a PlayStation
       • case involving a incest of an adopted daughter
defendant’s
  opening
 statement    0
              0
              0
                      Trial Procedure


2. Plaintiff’s Case
    -- call one plaintiff’s witness at a time
    -- witness testifies (direct testimony)
    -- then is subjected to cross examination
    -- then redirect (if needed) and re-cross (if needed)
        (excused unless needed further)
    -- repeat this procedure until you are out of witnesses
                      Trial Procedure


2. Plaintiff’s Case
                                                      illustration
    -- call one plaintiff’s witness at a time
   Assume the plaintiff’s case has 5 witnesses
    -- witness testifies (direct testimony)
             ¶1     direct, then cross
    -- then is subjected to cross examination
             ¶2     direct, then cross
    -- then redirect (if needed) and re-cross (if needed)
             ¶3     direct, then cross
         (excused unless needed further)
             ¶4     direct, then cross
    -- repeat this procedure until you are out of witnesses
             ¶5     direct, then cross

           “Plaintiff rests”
                    Trial Procedure


2. Plaintiff’s Case/ Defendant’s Case
                                                     illustration
   -- call one plaintiff’s witness at a time
  The defense goes next (assume a 3 witnesses)
   -- witness testifies (direct testimony)
            Δ1     direct, then cross
   -- then is subjected to cross examination
            Δ 2 direct, then cross
   -- then redirect (if needed) and re-cross (if needed)
           Δ3      direct, then cross
   -- repeat this procedure until you are out of witnesses
         Defense rests
                    Trial Procedure


2. Plaintiff’s Case/ Defendant’s Case
                                                     illustration
  Plaintiff can elect “rebuttal”
   -- call one plaintiff’s witness at a time
           ¶ 6 direct, then cross
   -- witness testifies (direct testimony) But can only be
           ¶ 7 direct, then cross          for rebuttal
   -- then is subjected to cross examination
                                           purposes; not for
            ¶ 8 direct, then cross
                                           new or forgotten
   -- then redirect (if needed) and re-cross (if needed)
         Plaintiff rests                   evidence
   -- repeat this procedure until you are out of witnesses
                    Trial Procedure


2. Plaintiff’s Case/ Defendant’s Case
                                                       illustration
  The defense then has the right of “surrebuttal”
   -- call one plaintiff’s witness at a time
           Δ 4 direct, then cross
   -- witness testifies (direct testimony)     Again, only for
           Δ 5 direct, then cross              rebuttal purposes
   -- then is subjected to cross examination
         Defense (if needed) and re-cross (if needed)
   -- then redirectrests
   -- repeat this procedure until you are out of witnesses
   -- Defendant takes his/her turn (same process)
                    Trial Procedure


3. Jury Instructions (Jury Indoctrination)
   -- extremely important
   -- judge instructs the jury on what the law says
       [e.g.,]: if the jury doesn’t know that self-defense is a
       defense to the charge of battery, how is it going to be
       able to judge who is innocent or guilty?
       [e.g.:] the jury needs to know that (a) consent is a
       defense to rape; and (b) what both rape and consent
       consist of
   -- jurors are told what the elements of the offense are, what
   the defenses are, what the burden of proof is, and how to
   properly discharge their function.
                    Trial Procedure


3. Jury Instructions (Jury Indoctrination)
                                                  illustration
   -- extremely important
Burden of Proof: the jury on what the law says
   -- judge instructs
       [e.g.,]: if the jury doesn’t know that self-defense is a
 1. criminal = beyond a
       defense to the charge of battery, how is it going to ???
                                                        90% be
 reasonable doubt who is innocent or guilty?
       able to judge
       [e.g.:] the jury needs of
 2. civil = preponderance to know that (a) consent is a
                                                  50%
       defense to rape; and (b) what both rape and consent
 evidence
       consist of
   -- jurors are told what the elements of the offense are, what
   the defenses are, what the burden of proof is, and how to
   properly discharge their function.
                    Trial Procedure


4. Closing Argument
   -- most important part of the trial
   -- studies show it is most central to the jury’s verdict
   -- this is where each side takes turns arguing what it
   believed was proven in the trial
5. Deliberation and Verdict
   -- retire to the jury room, foreperson selected
   -- begin deliberations (secret)
   -- unanimity is generally required (but not in all states)
        Introduction to the Rules of Evidence


1. Main issue:
   -- what is evidence?
   -- what is Edith allowed to see?
   -- what is relevant and who determines this?
2. The rules of evidence are what answers these questions.
   -- every lawyer who wants to try a case in a trial court has to
   learn them
3. You instinctively know something about them ..
   [Television: lawyer … “I object”]
                 Evidence Hurdles




Witnesses    Privileges     Relevance      Hearsay

   You have to pass all of the hurdles to have
     Type of;                    Good
   “good evidence” (evidence that is not
     Form of                     versus bad
   excluded)     “Secrets”                       Gossip?
     questioning                 issues
                                                   Time
           Lay and Expert Witnesses


1. Two basic types of witnesses
    Lay Witness                         Question:
                                  What is the difference
                                   between the two?
   Expert Witness
what is the
 difference
between lay   0
 and expert   0
testimony?    0
            Lay and Expert Witnesses


1. Two basic types of witnesses
    Lay Witness
   -- testimony must be based upon the 5 senses
   -- “just the facts” [just what you see, hear, touch, etc]

   Expert Witness
   -- can go beyond the 5 senses if within the person’s field of
   expertise
       (e.g., the standard of care for medical malpractice)
   -- can give “intelligent opinions” as opposed to opinions
   about things directly observed
Examples:
    •an accident reconstruction expert who gives his
    opinion about whether someone was speeding
    based upon an analysis of the wreckage
    • a police officer who catches speeders for a living
    may be able to accurately estimate speed with
    direct perception [explain]
-- this is a kind of educated or scientific speculation. It
is something EXTRA or BEYOND merely reporting
what your 5 senses encounter
           Lay and Expert Witnesses


2. Becoming qualified as an expert
   -- two basic ways:
       • by degree/accomplishment [e.g, go to school]
       • by experience   Rare
          (silly example: Cheech testifying about what a
          “bong” is used for, what is the going rate for a bag a
          marijuana or what constitutes a “high grade”
          narcotic)
         The Rules for Questioning Witnesses


1. The Form of the Question
   -- before you can properly examine someone on the
   witness stand, you have to know how to ask questions
   properly
   -- there are a set of rules that explain this ….
Narration      • Testimony is not a Larry King Live
               interview.
              • It
Leading Question is supposed to be structured around
              discrete events
            -- Example: “Would you describe in your
Compound Question
            own words what happened?”
               -- this question requires a story-telling
Foundation     response [explain]
             -- Notice that the basis of the objection is
Argumentative proper objection: “Objection, your honor,
                                 stated
             the question calls for a narrative response”
                          (More about Narration”)
               (short form: “Objection,this later)
Cumulative
                       • Questions that suggest their answer
  Narration
                       -- It is helpful to think of two concepts
                       here
  Leading Question
                          • structurally leading
                          “ you didn’t take your medications,
 Compound Question        did you?”
                          (the “did you” at the end will always
  Foundation              make this leading)
Dropping the “did
 you” or “isn’t that      •substantively leading
  Argumentative
correct” at the end       “Isn’t it true that you took 100 mg of
  of the question         Valium thirty minutes before you
  doesn’t save
  Cumulative it           started driving the vehicle at a high
                          rate of speed?”
  Narration          -- A question that is not leading:
                         “Did you take your medications that
                         day?”
  Leading Question

                     • Leading questions are ALLOWED on
Very important rule: cross examination and PROHIBITED on
 Compound Question
                     direct examination
 Foundation          -- If it is your witness, you cannot lead
                     him/her
 Argumentative          (some exceptions: children and the
                        feeble, or a hostile witness etc.)
 Cumulative          -- form of the objection:
                        “Objection, leading”
Narration


Leading Question

                    -- asking two questions at once:
Compound Question
                       “Did you take your medications
                       that day and how fast did you
Foundation             drive?”
                    - “Objection, compound Question”
Argumentative


Cumulative
                • -- Do it this way:
Narration         “do you have of the story
              • You get ahead any medical conditions?”
                   “did you take treated for the anti-seizure
                  “are you beingyour prescribedcondition?”
Leading Question
                   medications before you for the
                  “do you take medication drove in the
                   accident?”
                  problem?”
Compound Question “does the leading”
              -- “Objection,medication prevent your
                   seizures?”
Foundation        “are you able to drive safely after taking
                  the medication?”
 “assuming a fact not in” evidence
Argumentative     “did you take the medication before you
                   drove on the night of November 3rd?”
Cumulative
Narration


Leading Question

               -- straight forward:
Compound Question
                   “Why are you such a scumbag”
                   “I bet that beating your wife make you
Foundation
                   feel real good” [depending on context]

Argumentative   -- “objection, argumentative”


Cumulative
                -- Where you ask a question that you have
                already asked earlier
 Narration
                   “So Pete, did you ever bet on baseball?”

 Leading Question “Are you telling me you never once bet
                  on baseball?”
                 --
 Compound Question if asking twice is for rhetorical
                 purposes, probably will have some
                 latitude (cross examination technique)
 Foundation      -- but if you are asking just because you
                  don’t like the answer or are confused,
 Argumentative    probably get flagged
“asked and answered”
 Cumulative
                The Evidence “Game”


-- What the lawyers do with objections:
    (a) you are only going to object to the form of a question if
   the question is harmful to the case
       (the point is never to enforce the rule for its own sake)
       -- so if your opponent is asking leading or narrative or
       compound questions about non-important matters, you
       will not waste your time objecting.
       (In fact, doing otherwise would irritate the Court)
   (b) as a general rule, you cannot make the objection late
   and you must state the basis – or else you lose.
            The Evidence “Game”


   -- for example, you can’t say, “your honor, I object to
   what was said a few minutes ago”
-- this makes objection a kind of game
-- if your opponent is not skillful or prepared enough to
make the right objection at the right time, you can slide
things by
                  Direct Examination


-- now let’s look at direct examination
   • chances are, you will have interviewed and prepped the
   witness
   • you will lay out each piece of the story in an interesting
   way without violating the rules of foundation
   • you want the witness to tell the story, not the questioner
   (no leading)
   • try to end with something dramatic (the jury may be
   nodding asleep during the middle boring stuff)
   -- here is an interesting questioning technique
       “Introductory-clause intensifier” (my words!)
Imagine a fact that is important to the jury …
   E.g., the decapitated head of Nicole Brown
   Simpson. (shows that this OJ thing isn’t
   superficial; it is real)
Imagine you are the prosecution questioning a
police officer:
   “In what condition did you find Ms. Simpson’s
   body?”
       -- answer, she was virtually decapitated.
    “Can you describe what you mean by
   virtually decapitated?”
   “How did you come to realize her head was
   so severely separated from her body
Imagine a fact that is important to the jury …
              Direct Examination
   E.g., the decapitated head of Nicole Brown
   Simpson. (shows that this OJ thing isn’t
   superficial; it is real)
Imagine you are the prosecution questioning a
police officer:
   “In what condition did you find Ms. Simpson’s
   body?”

  Note-- answer, she was virtually decapitated.
        a style point about how the decapitated
    “Can you describe Calling her “the victim” is
 person is referred to. what you mean by
really a poor idea. Bring her to life and give her
   virtually decapitated?”
dignity. Maybe on key questions, call her by her
   “How did you come to realize her head was
                first name (risky?).
   so severely separated from her body
  “After you found the decapitated head, what
  portion of the body did you look at next? “
  After you had found the decapitated head, did
  you call anyone else to look at it?”
  Upon reporting to others about decapitation,
  did you have occasion to have the body
  photographed for investigative purposes?
  Do you have those photos of the decapitation
  with you?
     Note how many questions start with a
   restatement of the word decapitation. You
mention it several times while making the officer
answer little, non-important questions. This is a
technique that good trial lawyers will indulge on
                direct examination
                  Cross Examination


1. now let’s look at techniques for cross examination
   • be friendly at first (sneak up)
   • organize the cross into (a) easy, friendly stuff; and (b) the
   hard stuff [ask easy stuff first]
   • you will drop a few set-up questions in the middle, causing
   the cross to appear disorganized – that’s ok.
       (You are not organizing it for English composition; you
       are a boxer trying to score points. Sometimes boxers
       spend a few rounds jabbing or moving before they throw
       their best punch)
   -- an example is badly needed ….
Example: a trial for a burglary where there are two
witnesses.
   • The police officer who arrived at the scene,
   seeing the defendant fleeing the building with
   stolen goods
   • The witness neighbor who saw the defendant
   enter the building
   A map …
                       Defendant’s
    Neighbor’s
                       Location
    Location




Neighbor’s                    Burglary
House

      Neighbor runs, tree defendant
         But there is a to see
 The defendantclaims and here
      enter offer chasesthrough
                building
 the police the police come … his
      Then the
      window
Questioning the neighbor:
• be friendly at first
    “Hello Mr. Smith, how do you want me to
Note how nice this question is – you get a friendly
    address you today?”
yes. He will agree with you. That cuts down the
   “I want to ask you some questions about this
                  hostility factor.
    incident, ok?”
     “Would you help process of some things?”
Again, you start the me clear up ask and answer.
 You are practicing with him
 • start with introductory stuff right now. Getting
      him to answer correctly what you say.
    “you live at 2325 North Riverview, correct?”
    “how long have you lived there now?”
 • go into the background stuff
Notice how some of these questions suggest he
    “you seen in a negative light (loser?). This is
might be are divorced?”
    “no one is weird in the stand to begin with.
helpful if heelse lives onyour home besides you?”
                      [explain]
    You don’t work right now, correct?
    Is this a picture of your apartment?
    Can you point to the window where you were
    looking out of on the day of the incident?
 • Now you go for the hit
  -- you may not be able to score very many
 points. But whatever you can, take your punches
 and then sit down!
“the window that you pointed to is the kitchen
window?”
“its located next to the dining area?”
“dining area has the television set?”
“television set was on during your 911 call
        You know these things because you
“You were watching a game show called Wheelhave the
          tape and because you have done some
of Fortune?”
      investigatory work. If you lies on any of these
“You were not in the kitchen the entire time”
                  matters, you can expose it
“There’s a Maple tree outside of that kitchen
window.”
        Note that these are not questions. They are
“The tree is larger than the house”is a technique to get
      staccato statements. This
                    the witness to “parrot.”
“In order to see the entry to your neighbor’s
house, you have to stand in the corner of the
kitchen
-- you have enough here to argue that his view was
tough and that it was limited. Now get what else
you can and sit down
   “you didn’t see the defendant knock on the
   door?”
   “you didn’t see the defendant ring the
   doorbell?”
   “to this day, you do not know whether or not the
   defendant and Mr. Smith are acquaintances?”
                 Mention the truth in this case:
   “You don’t know whether the door was locked?”
       You build these questions around your theory. If
                        1. didn’t see Δ #2;
        you have the evidence, other themes could be:
           2. denied the tree obstructed when I had a
       (a) he was drinking; (b) he has bad vision; (c) he
                               picture
       has bad racial feelings (if the client is of another
          3. hooked him on doing his neighbor a favor
         race); (d) that he is a “black friends” question
One more: the police officer.
-- these are the easiest to get “parroting”
-- example (background)
   “you work for the Morgantown police department.”
   “you’ve been there for 6 years?”
   “you were on duty the night of the burglary.”
   “you were driving unit 5”
   “you were dispatched at 9:00 p.m.”
   “you arrived at the scene at 9:03”
-- the good stuff
   “you didn’t actually see my client enter the
   apartment”
   “you didn’t even see him exit the apartment?”
   “you just saw him running away with a suitcase?”
   “upon arrest, he was cooperative with you?”
   “… waived Miranda rights?”
   “… freely talked with you?”
   “ .. He told you what happened?”
   “He denied involvement”
   “He said he didn’t enter the house; that the other
   guy did”
   “he said the other guy threw him the suitcase and
   he ran out of fear”
 Note how this officer’s testimony now is not in
 contradiction with our theory. He actually just
 restated everything that will later support our
                      view.
The point is to get them parroting the things you
 want. You are just up there to get a couple of
                jabs, like a boxer.
 Material for Midterm
    Ends Here.

Material for Final Starts
   With Next Slide

				
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