All posts filed under: Faculty Commentary

Man Yelling in Microphone

Yell, Compel, or Soft-Sell: How Blatant Must Cross-Examination Be?

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Among Irving Younger’s commandments were the well-known dictates of “be brief” and “save the ultimate point of your cross for summation.” The latter was the model for an eyewitness cross-examination at a recent training on litigating mistaken identification cases, but when we polled the mock jury one of its members – discussing the cross – said “I had no idea what the lawyer was doing or what his purpose was.” It was only one juror, and others ‘got it,’ but the experience gave me pause. The question was, and remains – is it better to make your points and leave the rest for closing; or must we re-examine Younger’s proscription and ‘push’ the point more explicitly? Let me first present the cross as delivered and then the analysis. The cross was designed to make three essential points: that the witness had barely any time to view the perpetrator (and was looking at the gun rather than the robber’s face); that police ‘bad practices’ created the false memory; and that the accused did not fit the …

Clarence Gideon

Gideon’s Heritage Comes to Pennsylvania: Toward A Metric For The Right To Counsel

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Everyone should know the story of Clarence Gideon.  Charged with Burglary, he asked for but was denied a lawyer: The Defendant: Your Honor, I said: I request this court to appoint Counsel to represent me in this trial. The Court: Mr. Gideon, I am sorry, but I cannot appoint Counsel to represent you in this case. Under the laws of the state of Florida, the only time the Court can appoint Counsel to represent a Defendant is when that person is charged with a capital offense. I am sorry, but I will have to deny your request to appoint Counsel to represent you in this case. The rest, as they say, is history.  With a self-prepared petition on Florida’s prison paperwork, Gideon brought the Supreme Court to rule that “in our adversary system of criminal justice, any person haled into court, who is too poor to hire a lawyer, cannot be assured a fair trial unless counsel is provided for him.” That was 1963.  This year, for the first time, the Pennsylvania Supreme Court had …

Donald Trump

Bankruptcies Shaped Trump Political Style

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Restructuring a failing business requires puffery, threats, gambles and head fakes. Sound familiar? Donald Trump’s campaign for president often seems baffling. That’s because he is playing a very different game from what we expect in general elections. He learned it in bankruptcy proceedings. Having taken his Atlantic City casinos through bankruptcy multiple times, this is a game Trump knows how to play and win — at least for himself, if not necessarily for his companies or others who may depend on him. The process of restructuring troubled businesses such as Trump’s casinos is replete with posturing, table pounding, empty threats, puffery, head-fakes, and the occasional desperate gamble. If all that sounds familiar, it’s probably because you heard it from Trump in this week’s presidential debate. Bankruptcy may be the real model behind his unconventional political behavior. Corporate bankruptcies are complex and contentious affairs. Scores of creditors and shareholders grapple for slices of a pie that is too small to feed all of them. Ordinarily, the expectation is that shareholders will be wiped out, because the company is insolvent, and managers will …

Why are Feminist Judgments Necessary?

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Last week marked the passing of Phyllis Schlafly, who arguably did more to undermine the equal rights of women than any other woman in United States history. As most know, Mrs. Schlafly tirelessly campaigned against the Equal Rights Amendment to the US Constitution (“ERA”). First drafted in 1923, the ERA stated that “[e]quality of rights under the law shall not be denied or abridged by the United States or by any State on account of sex.” The ERA failed to obtain ratification in the requisite number of states and Mrs. Schlafly is usually seen as a key architect of its demise. Mrs. Schlafly’s death made me ponder what American law, particularly American Constitutional law, would have looked like without her – that is, with an ERA. Would an ERA have allowed Title VII to have a bona fide occupational qualification, a provision that says that sex is a genuine job requirement for some employment? Would Geduldig v. Aiello (1974), the case finding that pregnancy discrimination was not an equal protection violation, have been decided differently …

Reading a Story

Learning From Mistakes: Failing to Story Tell in a Defense Opening

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A successful opening statement: Draws in the listener from the first sentences Narrates facts into a story-board or framework that the audience – judge or jury – is familiar and comfortable with Tells that story with less attention to finite details and more to ensuring that the gist is grasped Is persuasive without becoming argumentative Strikes an emotionally resonant chord Leaves the listener desirous of and receptive to confirmation as the evidence unfolds The dilemma is for the defense lawyer, he/she who opens second. If the moving party has indeed set the stage with a compelling narration, the defense must quickly move the listener to a new narrative, a story at least as compelling, familiar and morally satisfying. If this does not occur, there is only one framework and one set of expectations. One author has described this as having and setting a “hook,” much as in fishing: An ordinary opening statement relies upon each juror to supply the motivation to actively listen. A hook is a story device that functions in three important ways: …

Sorting hat from Harry Potter series

Abreu: McGonagall Replies to Snape on Taxes—’Be Proud Of The Tax Law You Have, Rather Than The One You Wish You Had’

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Because Professor Minerva McGonagall is my favorite member of the Hogwarts faculty, particularly as played by the inimitable Dame Maggie Smith, and because she and Severus Snape led rival houses, here’s how I think she would reply to Adam Chodorow’s reimagined Snape, who as a TaxProf warns his students on the first day of class that because there is “little foolish argument by analogy here, many of you will hardly believe this is law.” Humph . . . It’s high time you learned to be proud of the tax law you’ve got, rather than the one you think you ought to have. Our rival houses are the House of Tax Exceptionalism and the House of Tax as Everylaw. Snape as a TaxProf may wish that the tax law were exceptional, different from other fields of law in such fundamental ways that it is perhaps not law at all, but that is not the tax law we actually have. Our actual tax law has reveled in analogical reasoning from the early days in which some of …

Microscope

Unreasonable Certainty: A Call To Abandon “Reasonable Degree of Scientific Testimony” Terminology

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The prevailing practice in many jurisdictions, usually compelled by custom rather than law, is to ask a testifying expert whether the opinion proffered or the conclusion drawn is held “to a reasonable degree of scientific certainty.” Yet scientists do not proclaim certainty in their domains; instead they acknowledge and embrace scientific knowledge as an area of change and evolution. And any attempt to define the term fails – how certain is “reasonable” certainty, and how is that measured except as a subjective appraisal rather than a uniform measure within a discipline? The origins of the term also confirm its inutility and inappropriateness in most if not all circumstances. The history of this legal term – and its beginnings with medical experts – was traced in Lewin, The Genesis and Evolution of Legal Uncertainty About “Reasonable Medical Certainty,”, 57 Md. L. Rev. 380 (1988). The emergence of this terminology came from early precedent in regard to expert testimony predicting future consequences such as the need for medical care in years to come or the likely harm …

Film Equipment

Learning Lawyering From Film: “Let Him Have It”

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Film, Hollywood and otherwise, draws attention to what it means to be a lawyer, both good and bad. Think Atticus Finch, heroically portrayed by Gregory Peck and of such iconic stature that “the American Film Institute deemed Atticus Finch the number one movie hero of all time…” McMillian. A DIALOGUE COMMEMORATING THE FIFTIETH ANNIVERSARY OF TO KILL A MOCKINGBIRD’S PUBLICATION: ATTICUS FINCH-Christian?, 77 Tenn. L. Rev. 739, 748 (Summer, 2010). But filmed versions of trials, real and imagined, also do much more. As described by Professor Thomas Sullivan: Just as film audiences may learn from filmmakers, the writers, directors, actors, and cinematographers are able to create art that informs lawyers and other actors in the legal system about how film viewers may perceive them. Of course, it is equally true that filmmakers may create wholly unreal pictures of the legal system and the work of lawyers that distort, rather than inform film viewers of this process. SYMPOSIUM: IMAGINING THE CRIMINAL LAW: WHEN CLIENT AND LAWYER MEET IN THE MOVIES*, 25 U. Ark. Little Rock L. Rev. …

witness pointing at defendant while judge looks on

In-Court Eyewitness Identifications – What Process is “Due” Process?

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In any case where identification is at issue, the proverbial drumroll sounds at the crescendo of the witness examination when the prosecution asks “and do you see the person, here in this courtroom, who committed this crime?” And invariably the finger points at the accused. Who else would it be pointed at? The lawyers are known and obvious, the defendant is often a person of color and/or not in the garb of the courtroom professionals, and the courtroom security people are seated nearby. Although there have been rare instances of witnesses pointing to the court reporter or, in one case, the judge, the easy and recurring choice is the obvious one – as if there were an arrow with neon lights shouting “pick him” pointing at the accused. The science is clear – an identification in a courtroom, months or years after an encounter, is much less reliable and probative than one in the immediate aftermath of a crime, a point brought home by the 2014 report IDENTIFYING THE CULPRIT: ASSESSING EYEWITNESS IDENTIFICATION, a survey …

Nuclear symbol with binary code and random images

Russia and the DNC Hack: What Future for a Duty of Non-Intervention?

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There are lots of important issues implicated by this morning’s above-the-fold story in the New York Times that U.S. officials and certain cybersecurity experts (e.g., Crowdstrike) have concluded Russian government agencies bear responsibility for hacking the Democratic National Committee’s servers and leaking internal e-mails stored on them to Wikileaks (Russian responsibility for the hack itself was alleged more than a month ago).  The domestic fall-out is already on evidence with theresignation of Debbie Wasserman Schultz and I’m sure we’ll see other impacts here in Philadelphia at this week’s Convention (although Senator Sanders so far is not using the event to walk back his endorsement of Hillary Clinton). U.S. national security officials are treating the news as a national security and counter-intelligence issue (as they absolutely should). But what does international law have to say about a foreign government obtaining and leaking e-mails about another country’s on-going election processes? This is obviously not a case violating Article 2(4) since that only prohibits the “threat or use of force against the territorial integrity or political independence of any state” …