All posts filed under: Faculty Commentary

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 …

Broad Street Run

I Beat The Broad Street Run

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This past Sunday, I awoke at the crack of dawn, stood in the chilling rain for over an hour, and then ran ten soggy miles down Broad Street. The occasion? The annual Blue Cross Broad Street Run. Founded in 1980, the Broad Street Run is now the largest ten-mile race in the United States, with forty thousand participants chosen by lottery. The race, held annually on the first Sunday in May, starts on North Broad Street at Fisher Avenue, in front of Central High School and Einstein Medical Center. The race culminates south of the stadiums at the Philadelphia Navy Yard. The Broad Street Run is a quintessential Philadelphia event, not only for the runners, but also for scores of folks who come out to cheer as the runners pass. Even in the pouring rain, neighbors lined the streets to applaud, hold up signs, offer high-fives or otherwise buoy the spirits of the runners. There is also entertainment along the way, which takes on the flavor of each of the many neighborhoods – a church …

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 …

Couple Hugging

Hugs I’ve Received, Hugs I’ve Given

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A client hugged me last week and I was happy. I still am and am still thinking about it. The man did not really even have to come in for an appointment and I was not really sure why he was there. Over five years, my students and I had represented him in an Supplemental Security Income (SSI) case and had stuck with him. We had finally won with him. He had severe health problems that slowed him but they did not obviously qualify him for benefits. He was often too sick or disorganized to go to his doctor, meaning his medical records were not very supportive. He often missed appointments with us. His fiancé helped him drink, a vice I could absolutely forgive him as he tried to find a way to live with no income in a state with no General Assistance and little other help. Judges and the law were less forgiving. His drinking only made his case harder. But we stuck with him, and eventually convinced a judge that he needed …

Stressed Out

Do You Have the Time to Listen to Me Whine?

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Yes. Seriously. About nothing and everything all at once. And it’s not whining. Law students and lawyers tend to put their heads in the sand when thinking about issues in their own lives. As lawyers, we are so busy solving other people’s problems – defending a criminal charge, drafting a contract, bringing a workers’ compensation claim, or working on whatever is put in front of us by a client – that sometimes we forget to check in with our own health and well-being. Perhaps because of our role in society (and, if we are being honest, our egos) we tend to think that we can handle our problems ourselves. This perception is misguided and can lead to serious consequences if the stakes are high. Trying to tackle our own issues of mental health or addiction without professional help can be an uphill battle. Yet, a lack of self-care is particularly pronounced when it comes to these issues. We suffer in silence, letting the repercussions affect our work, personal life, and well-being. If one of us …

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 …

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 …

Uber

Uber’s Algorithms Could Spot Crimes in Progress. But Do We Want Them To?

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The news out of Kalamazoo, Mich., this past weekend was grim: Authorities say Jason Brian Dalton, an Uber driver, shot and killed at least six people in different locations in the space of a few hours. Chillingly, Dalton apparently took several fares in between his alleged attacks. The case raises difficult questions about Uber’s responsibility toward passengers and the public. For example, could the company have prevented Dalton’s crimes? And if so, how should Uber and regulators respond? More stringent background checks are one option, but they can be discriminatory. They also quickly lead to diminishing returns, since they measure past behavior, and it is incredibly difficult, even based on current behavior, to predict who will become a mass shooter. There is one thing Uber probably could do using its existing technology and the massive amounts of data it already collects about its drivers and passengers: The company could spot crimes in progress by their drivers as they take place. But while that approach might be more effective than implementing more background checks (and more allegedly misleading “safety …

Mindfulness

Why Mindfulness is Increasingly Popular With Lawyers and Law Students

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Mindfulness is the practice of paying attention to what is happening in the present moment without judgment. It includes both a formal, usually seated, meditation practice and a more general approach to life. Mindfulness practitioners seek to bring their full attention to whatever they are doing throughout the day. Mindfulness is a wonderfully simple idea that many of us – particularly high achieving lawyers and law students – find very difficult to implement. Our minds tend to dwell on the past (“Did that interview/exam go well?”) or race to the future (“Will I pass the bar/get a job after graduation?”). Keeping our attention in the present can be a formidable challenge, yet studies show that being mindful increases our health, productivity, and happiness. The documented benefits of mindfulness range from reducing stress and anxiety, to improving focus and concentration, enhancing listening and communications skills, and increasing overall wellbeing. Jon Kabat-Zinn, one of the first people to promote mindfulness in the U.S., and others at the University of Massachusetts Medical School, have shown that mindfulness provides …