ASSERTION AND HEARSAY

Hearsay.  A simple word, one misunderstood by lawyers and many judges.  To some, repetition of words (or even sounds) is automatically hearsay, a clearly over-inclusive approach; to others, the view is under-inclusive, failing to recognize some words as having assertive quality. Hearsay scholarship is extraordinarily varied, but little has started off from the point addressed

THE ART AND SCIENCE OF VOIR DIRE: EMPIRICAL RESEARCH, ANECDOTAL LESSONS FROM THE MASTERS, AND ILLUSTRATIONS SUPPORTING THE TEN COMMANDMENTS OF VOIR DIRE

As with Irving Younger’s “10 Commandments of Cross-Examination,” there are wise rules for other processes occurring before or during trial.  This article posits “10 Commandments” for jury selection: Be personable and professional Personalize client and self Eliminate barriers Escalate gradually Use open-ended questions Initiate a group discussion Use disclosure to obtain disclosure Avoid blue-sky questions

COUNTER THE COUNTERSTORY: NARRATIVE APPROACHES TO NARRATIVES,

Stories inform, reinforce and ultimately control beliefs; and beliefs inform how stories are heard and valued.  In a society with advantaged and disadvantaged groups, the predominant narrative generally favors those with power.  To rectify that, a counter-story with particular persuasiveness must be crafted and communicated. But counter-stories are not always the last word.  The advantaged

Appropriating Women’s Thoughts: The Admissibility of Sexual Fantasies and Dreams Under the Consent Exception to Rape Shield Laws

This Article examines the admissibility of women’s sexual fantasies and dreams under the consent exception, traces its origins, highlights its application, argues that sexual fantasies and dreams should not be admissible under the consent exception, and proposes a practical solution to address this problem.

ARTICLE: Mise en Scène and the Decisive Moment of Visual Legal Rhetoric

The French phrase “mise en scene” translates to a: the arrangement of actors and scenery on a stage for a theatrical production b : stage setting 2a : the physical setting of an action (as of a narrative or a motion picture) : context https://www.merriam-webster.com/dictionary/mise-en-sc%C3%A8ne In this important article, Professor Michael Murray uses the 15

Your Bias Is Rubbing Off on Me: The Impact of Pretrial Publicity and Jury Type on Guilt Decisions, Trial Evidence Interpretation, and Impression Formation

Does pre-trial publicity have a lasting effect on juror bias, predisposition, and verdict votes?  The answer, according to this study, is “yes,” at least sometimes.  More importantly, judicial inquiries of “can you put that outside of your mind” and judicial admonishments to “decide this case on the facts, and not on anything you read or

THEATER AND FILM TECHNIQUES, PERSUASION AND COURTROOM CHOREOGRAPHY

Lawyers must be persuaders, and to persuade they must tell and show stories.  Keith Belzer, an exceptionally gifted lawyer and trainer, details how lawyers may and should use techniques from theater and film – particularly in ‘staging’ the courtroom and using and manipulating space – to most effectively communicate the story of the case.

“WERE THEY LYING?” QUESTIONS: A PRACTITIONER’S LOOK AT THE CALIFORNIA RULE VERSUS THE FEDERAL RULE,

When is it permissible for a lawyer questioning a witness to ask that person whether a previous witness or someone whose out-of-court statement was admitted was lying?  This article confirms that the basic approach, especially for federal court trials, is “never.”  It also shows that California may recognize limited exceptions to the general proscription. This

What Kahneman Means for Lawyers: Some Reflections on Thinking, Fast and Slow

Written for economists, the classic THINKING FAST AND SLOW by Daniel Kahnemann should be recommended reading for lawyers.  Until advocates in and out of the courtroom understand thinking/decision-making processes, in particular what Kahnemann dubs “thinking fast” and “thinking slow,” they cannot expect to convince decision makers to think their way. Although several years old, this