Professor Jules Epstein expressed skepticism about a judge’s decision to permit prospective jurors to be asked whether they have watched the popular Netflix docuseries. Read the Full Story
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 …
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 …
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 …
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 …
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 …
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 …
Rule 703 of the Federal Rules of Evidence was not intended to abolish the hearsay rule and to allow a witness, under the guise of giving expert testimony, to in effect become the mouthpiece of the witness on whose statements or opinions the expert purports to base his opinion.
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 …
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 …
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