Author: Jules Epstein

Baggage

Taking the Sting Out: Using Direct Examination to Anticipate and Undercut Attacks on Your Witness

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Sadly, it can be the rare witness who does not come with some baggage – a criminal conviction, a potential bias, an inconsistent statement, or some other challenge to her/his credibility. So, the proponent of that witness has to make a choice – bring it out first, or simply wait for the sting of cross-examination. The suggestion of this article is to do the former, a technique supported by law and, as importantly, by the tenets of solid advocacy. As litigators, we are told emphatically that a witness’ credibility may not be bolstered before it is attacked. But this is wrong in two regards – the limitation is actually as to bolstering with character for truthfulness, which may occur only after an averment of the witness having an untruthful character; and it is inapposite when the form of bolstering has the appearance of attacking one’s own witness. Abundant caselaw makes this point. As explained by the First Circuit nearly thirty years ago, “[t]he prosecution, having called a witness, may then ‘take the wind out of …

Empty Jury Box in Nebraska

When There’s Only “Reasonable Doubt”

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Law students are taught that the ‘beyond a reasonable doubt’ standard is the bedrock of the justice system, one that is desirable because, as Blackstone declared, it is “better that ten guilty persons escape than that one innocent suffer.” But does that resonate with jurors? In other words, when a lawyer argues that “the prosecution can’t prove this person guilty beyond a reasonable doubt’ is the message not one of innocence but of a concession of probable or potential guilt? Does it smack of gamesmanship? And is it easy for lay persons, not in the halls of academe but in courts in cities where crime may be prevalent, to apply? These questions were brought to mind when reading a news account of a high profile murder trial with substantial evidence of guilt but also some reasons to doubt. As reported in the news media (not necessarily the source for a verbatim accounting of a courtroom proceeding), the defense lawyer’s opening emphasized that there was no physical evidence linking the accused to the killings, no gun …

Man Charged in Son’s Death 23 Years After Shaking Him

Featuring

Director of Advocacy Programs Jules Epstein is quoted in this piece on ABC News of a Pennsylvania man who has been charged with homicide after his passed away at age 23, after spending his life in a vegetative state as a result of being shaken as an infant. Can the father, who already served five years aggravated assault and related offenses, be convicted of a more serious crime? Read the Full Story

Courtroom

The “Personal Knowledge” Rule: An Evidence Principle Worth Considering

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Rare is the case [excepting expert testimony] where a witness is not describing what s/he claims to have seen, heard, smelled, touched or tasted. Without that sensory connection to the item at issue, there would be no relevance; and most lawyers abstain from calling a witness to testify to what was behind a closed door or occurring in a far-away location. So what’s the “personal knowledge” fuss? Perhaps the answer comes, first, from acknowledging that for some reason the drafters of the Federal Rules [and corresponding state codes of evidence] felt the need to include it in addition to the foundational requirement that only relevant evidence be admitted. Indeed, the comment to the personal knowledge rule – Rule 602 – makes clear that it is merely “a specialized application of the provisions of Rule 104(b) on conditional relevancy.” Yet the Rule is there – so it must have some meaning. For the advocate, the reason for the ‘fuss’ derives directly from the existence of the rule – it is now a tool available to a …

Microscope

When Must Lawyers Learn Science?

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How should judges evaluate lawyers’ alleged mishandling of forensic science evidence when the challenge is brought years after the trial? One recent United States Supreme Court decision grapples with this; and this article contextualizes that holding, analyzes its weaknesses, and suggests some factors for judges to weigh. In criminal cases, the importance of science (and understanding the limits of science) cannot be gainsaid. The statistics are clear: in a review of homicide cases in Cleveland, Ohio, the clearance rate was higher [63.1%] for cases with probative results — either matches or exclusions — than in cases without such evidence [56.3%], and the average sentence imposed was higher in the former category. Yet there is a confounding problem – the consumers of forensic evidence have little or no scientific training, either at the college level or ‘on the job.’ Perhaps 5% of lawyers [and judges] studied science, a number presented in research papers and confirmed repeatedly by polling attendees at legal education conferences. And the consequences are severe. The scientific illiteracy of lawyers was highlighted in …

PA Debates: Is a [Gruesome] Picture Worth 1,000 Words?

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When is a photograph more disturbing than useful, particularly in an emotionally-charged trial such as a homicide case (and, more particularly, in a homicide trial where the victim is a young child)? At once a seemingly narrow inquiry, how this question is answered resonates in all sorts of cases, particularly criminal and personal injury, where a photograph or video showing severe injuries is offered as evidence. The Pennsylvania Supreme Court debated this in Commonwealth v. Woodard, 2015 Pa. LEXIS 2786 (decided December 3, 2015). The views of both the majority and dissent warrant discussion, as they frame the issue radically differently and in so doing invite further and science-informed litigation on this issue. Woodard was accused of killing the two-year-old child of his one-time paramour when the child was left in his custody. The injuries were “blunt trauma,” i.e., injuries caused by blows from a fist or other hard object.  “Following a hearing where expert medical testimony was presented, the trial court granted the Commonwealth’s motion and ruled that thirteen autopsy photos (twelve color and …

Cross-Examination

The Prosecutor Cross-Examines: A Guide to Avoiding Unfairness and Reversible Error

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Prosecutors cross-examine much less frequently than do defense counsel, for good reason. Often defendants do not testify (with some data sets putting the number below the 50% threshold for felony cases that go to trial), whether because they have little too say, there is ample impeachment evidence the jury will not hear if they remain silent, or their educational and developmental limitations make them poor candidates for taking the witness stand. And the proportion of defendants who do testify may vary region to region and crime to crime. All of these factors make cross of a criminal accused a less practiced art. Just as fundamental skills may become rusty with limited use, knowledge of controlling principles of law may also erode or become lost entirely when the cross of a defendant is a relative rarity. And there is enough developed law to warn prosecutors away from potential pitfalls, areas of cross-examination that can end in a mis-trial or reversal on appeal. “Are you calling the police witnesses liars?” In the heat of battle and the …

Temple Trial Team

When “I Object” Is Not Enough

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The words “I object” should be passe. The availability of pre-trial motions in limine, as guaranteed by FRE 103, should ensure that evidentiary issues are thoughtfully considered and resolved before trial begins. But time constraints or unexpected developments may require a time-of-trial challenge to the admission of evidence, so knowing the “why” and “how” of objecting is essential. And, as is developed below, a mere “I object” may serve no legal or practical end.

Pen on a Notepad

Should You Use Notes During a Closing Argument?

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The Hollywood lawyer – whether Gregory Peck, Kate Hepburn, Paul Newman or Denzel Washington – never speaks from notes. And Cousin Vinny, although he never had to give a closing, certainly had no paper in hand when he delivered his inimitable opening statement of “everything that guy said is [expletive deleted].” But it is the rare lawyer who has spoken without notes and then not thought “darn, I wish I’d remembered to say that.” Whatever Hollywood and television have done to shape audience perceptions, there is no reason to conclude that audience expectations are that an attorney will never use notes (except in student mock trial competitions), or that an attorney who does so somehow has diminished credibility or effectiveness. Given the edict that preparation is key to success in advocacy, or as words attributed to Abraham Lincoln explain, “Give me six hours to chop down a tree and I will spend the first four sharpening the axe,” reliance on memory, that incredibly faulty and distractible tool, is a less than desirable approach. Consider this …