Author: Jules Epstein

Trial Team Temple Law

Hearsay: Debunking or Extolling the Evidence Once Admitted

Published by

Lawyers fight over hearsay admissibility, concentrating on whether foundational requirements have been met. But, once admitted, the hearsay is just ‘there.’ The leading textbooks on trial advocacy offer no advice on how to deal with hearsay, whether for the proponent to convince the jury of its reliability or the opponent to show its deficiencies. The lawyer’s toolbox seems empty. In actuality, the advocate has several mechanisms to attack or endorse hearsay evidence. For supporting the hearsay, the advocate has the reliability rationale for each hearsay exception. There is no barrier to the proponent incorporating those rationales into a closing argument and telling jurors Why does the law permit you to hear what the patient told the Doctor? Because when you go to get treatment, you tell the Doctor the truth to get the best care. You got to read the text message sent as the accident was unfolding. When people describe an event as it unfolds, it is the event talking, and not any mental manipulation. It’s in the daily business inventory. You know those …

Cross-Examination

Are The “10 Commandments of Cross-Examination” Sufficient?

Published by

For forty-plus years, learning the art of trial advocacy has included the obligatory viewing of a tape of Irving Younger’s “10 Commandments of Cross-Examination” lecture. And every lawyer who has ventured into the courtroom has seen – if not personally experienced – the dire consequences when a commandment is violated, in particular when the cross-examiner asks the one question too many or inquires about a subject where the answer is not already known. Younger himself acknowledged that the Commandments he posited were meant to be broken by masters of the craft, but urged that adherence to them ensured a safe, productive cross. And the latter point can’t be denied. Were every cross-examiner to follow Younger’s directives, there would be less error in courtroom proceedings. But are there more or different Commandments? Did Younger’s approach leave gaps? The answer to both questions is “yes.” Let’s first recall the 10 that Younger preached. They are: Be brief Use plain words Ask only leading questions Be prepared Listen Don’t get into a quarrel Avoid repetition Disallow witness explanations …

Did ‘Confirmation Bias’ Play a Role Espionage Case?

Published by

The report that all espionage charges against Temple University physicist Xiaoxing Xi have been withdrawn raises the obvious question: How could things have gone so wrong? According to published accounts, prosecutors and agents saw documents that appeared to be suspicious and concluded – erroneously – that they were schematics for a particular device. Reading the story raises a concern about cognitive biases at work. The term biases does not refer to a prejudice or dislike, but rather a process in which the brain biases the observer to favor a particular conclusion. One particular type, “confirmation bias,” is common and particularly human: What a person expects to see colors the perception of what is then examined. Confirmation bias is no stranger to criminal and forensic investigations. It played a part in the misidentification of a suspect in a 2004 terrorist train bombing in Madrid, and its effect has been shown repeatedly in research. Whether it is a DNA analyst or a fingerprint examiner, erroneous information or our expectations can cause the person to see what is …