Author: Jules Epstein

Checklist

Do Lawyers Need Checklists to Reduce Error?

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Can checklists reduce lawyer error? As they do for doctors or airline pilots or building engineers? Although the focus on this technique has largely been outside of the realm of the legal system, there is enough known to say that its application to lawyers is both necessary and likely to be beneficial. That lawyers do make errors, and errors of grave consequence, cannot be doubted. While it has been written that “[n]o empirical research exists regarding error rates by lawyers, but it is reasonable to assume they make errors as often as doctors[,]’ McClurg, FIGHT CLUB: DOCTORS VS. LAWYERS – A PEACE PLAN GROUNDED IN SELF-INTEREST, 83 Temp. L. Rev. 309, 349 (2011), there are some estimates if not hard data. The late Justice Scalia, when defending death penalty jurisprudence and practice, famously (or perhaps infamously) quoted a New York Times article that “the error rate [in criminal cases is] .027 percent–or, to put it another way, a success rate of 99.973 percent.” Kansas v. Marsh, 548 U.S. 163, 198 (U.S. 2006). Of course, this …

Reptile

Reptiles in the Courtroom

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It is remarkable, as one reads cases, to find a series of published ORDERS in which judges tell lawyers to keep the “reptile” theory out of the courtroom. THIS MATTER having come before the Court on Defendant Ruta Obergfell, M.D.’s Motion in Limine #1 to Preclude Impermissible Use of the Reptile Theory, and the Court being fully advised in the premises, IT IS HEREBY ORDERED that Defendant’s Motion is GRANTED. The Plaintiffs and their counsel are hereby barred from arguing or soliciting testimony based on the REPTILE theory including, but not limited to, making arguments or soliciting evidence concerning “community safety or protection,” “public safety or protection,” “safety rules,” “sending a message, “needlessly endangering patients,” or “being guardians of the community.” Hopper v. Ruta, 2013 Colo. Dist. LEXIS 249, *1 (Colo. Dist. Ct. 2013). See also, Pracht v. Saga Freight Logistics, LLC, 2015 U.S. Dist. LEXIS 149775, *4 (W.D.N.C. Oct. 30, 2015)(“ Defendants’ motion to prohibit any Golden Rule argument and/or Reptile Theory questions and argument is GRANTED.”). A less successful attempt occurred more recently, …

Moot Court Room Judges Bench

When Judges May Not Judge

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Perhaps it is not a startling position, but “when a judge earlier had significant, personal involvement as a prosecutor in a critical decision regarding the defendant’s case[,]” that judge must recuse himself or herself from judicial or appellate review. That principal is now enshrined not merely as one of professional conduct, but as a guarantee of Due Process. And this came about in a case with some Temple Law connections. The decision came on June 9 in a 5-3 ruling from the United States Supreme Court in a case from Pennsylvania. In Williams v. Pennsylvania, Terry Williams, a death row inmate, had won a last minute reprieve and the right to a new penalty trial when a Philadelphia Judge determined that “the trial prosecutor had suppressed material, exculpatory evidence…and engaged in ‘prosecutorial gamesmanship.’” When the prosecution appealed that ruling the case went to the Pennsylvania Supreme Court, presided over by then-Chief Justice Ronald Castille. There was only one problem – the Chief Justice had been the District Attorney at the time of Williams’ original trial …

Witness Impeachment

Impeaching By Omission

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The art of witness impeachment is inextricably bound with the substantive law of evidence. Evidence rules explicitly allow for impeachment of any witness (even one called by the party) and set the procedures for attacking with inconsistencies – the impeaching document need not be shown to the witness, and impeachment must occur with there being some opportunity for the witness to respond and explain. But the rules are silent on at least two critical issues – the why of impeachment, and a definition of what exactly makes a prior statement “inconsistent.” The former question is one answered not in evidence law but in the art and techniques of advocacy. We impeach witnesses to discredit in-court testimony and show them to be liars or mistaken and unreliable. We impeach witnesses to tell or support our own story. We impeach witnesses for the drama it brings to the courtroom and the control it places in the hands of the questioner. As to when a prior statement is “inconsistent,” there is little in terms of a definition beyond inconsistency being in the eye of the advocate/beholder, with a judge viewing …

Man Signing Document

The Prior Statement: If It Isn’t Signed, Is It Impeachment Material?

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How should judges approach a case where a testifying witness is going to be impeached, but the impeaching document was not created or adopted by the witness?  What is the rule when the impeaching lawyer has a report by person “B” that avers what testifying witness “A” allegedly said?  The rule, as is developed below, should be to allow the impeachment if the examiner has a good faith reason to believe the statement was made. The impeachment of a witness with her/his own words, showing a change of story that establishes poor memory, unreliability, or outright mendacity, creates excitement in the courtroom.   As explained by Wigmore, “the purpose is to induce the tribunal to discard the one statement because the witness had also made another statement which cannot at the same time be true.”  3A Wigmore, Evidence § 1040 at 1048 (Chadbourn rev. 1970).  See also, United States v. Damatta-Olivera, 37 M.J. 474, 477-478 (C.M.A. 1993).  A Pennsylvania case put it more eloquently: The question of credibility sometimes depends on the slightest inclination of the …

“Gruesome” Evidence, Science, and Rule 403

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Can science step in and assist in Rule 403 determinations of “unfair prejudice”? When confronted with “gruesome” evidence, all too often autopsy photos or images of severe injuries, judges must assess whether there is a risk of unfair prejudice or misleading the jury and then, if the risk is present, “may” exclude the proof.1 Yet there is no court-dictated workable metric for assessing when either risk is present beyond boilerplate terminology such as whether the “[e]vidence… makes a conviction more likely because it provokes an emotional response in the jury or otherwise tends to affect adversely the jury’s attitude toward the defendant wholly apart from its judgment as to his guilt or innocence of the crime charged.”2 The standard is akin to that used to describe when material is obscene — an “I know it when I see it” approach to decision-making.3 This approach begets arbitrariness. That this is so may be seen by contrasting claims of unfair prejudice in criminal and civil cases. The default in criminal seems to be that of admissibility, demonstrated in the extreme …