Check Sound Check Mike

Check Sound Check Mike Time

Today’s Lecture: The Game of Evidence: Rules and Techniques of Witness Interrogation 1. Introduction to Evidence and the Rules for Witness Questioning 2. Interrogation Techniques

Lecture Organization: • Class Announcements • Brief Review • Introduction to the Rules of Evidence • Lay and Expert Witnesses • Rules for Questioning Witnesses • The Evidence Game • Direct Examination • Cross Examination Time • Impeachment • Privileges

Class Announcements 1. Quiz Answers Are Up 2. Next quiz: probably posted next Monday evening, before Monday Night Football 3. Questions for interview papers are posted on ANGEL Questions? Time

Review • 1. Settlement • -- criminal system was more formalistic • judge’s interrogation of the defendant in open court (“plea hearing”) • plea had to have a factual basis • agreements are a three-party transaction • -- binding and non-binding pleas • -- civil system was really nothing but an exchange of paperwork between attorneys

Review • 2. Jury Selection • -- looked at the procedure for selection • -- striking jurors for cause (based upon the judge’s or attorney questions) • -- peremptory challenges (striking for reasons of strategy) • 3. Trial procedure • -- opening, closing statements • -- plaintiff/defendant’s case • -- jury indoctrination (“instructions”), deliberation & verdict Time

Introduction to the Rules of Evidence • 1. So far, we have examined basic procedure in trial courts. • 2. Now we want to examine something different: • -- what is evidence? • -- what is Edith allowed to see? • -- what is relevant and who determines this? • 3. The rules of evidence are what answers these questions. • -- every lawyer who wants to try a case in a trial court has to learn them • 4. You instinctively know something about them .. • [Television: lawyer … “I object”]

Evidence Hurdles Witnesses Privileges Relevance Hearsay You have to pass all of the hurdles to have “good evidence” (evidence that is not excluded) Type of; Form of questioning Good versus bad issues “Secrets” Gossip? Time

Lay and Expert Witnesses • Examples” • whether doctor X committed malpractice based upon a review of the medical records and the course of treatment • an accident reconstruction expert who gives his opinion about whether someone was speeding based upon an analysis of the wreckage • a police officer who catches speeders for a living may be able to accurately estimate speed with direct perception [explain] • -- this is a kind of educated or scientific speculation. It is something EXTRA or BEYOND merely reporting what your 5 senses encounter • 1. Two basic types of witnesses • -- testimony must be based upon the 5 senses • -- “just the facts” [just what you see, hear, touch, etc] • -- can go beyond the 5 senses if within the person’s field of expertise • (e.g., the standard of care for medical malpractice) • -- can give “intelligent opinions” as opposed to opinions about things directly observed Lay Witness Expert Witness Question: What is the difference between the two?

Lay and Expert Witnesses • 2. Becoming qualified as an expert • -- two basic ways: • by degree/accomplishment [e.g, go to school] • by experience • (silly example: Cheech testifying about what a “bong” is used for, what is the going rate for a bag a marijuana or what constitutes a “high grade” narcotic) Rare Time

The Rules for Questioning Witnesses • 1. The Form of the Question • -- before you can properly examine someone on the witness stand, you have to know how to ask questions properly • -- there are a set of rules that explain this ….

Narration • Testimony is not a Larry King Live interview. • It is supposed to be structured around discrete events • -- Example: “Would you describe in your own words what happened?” • -- this question requires a story-telling response [explain] • -- proper objection: “Objection, your honor, the question calls for a narrative response” • (short form: “Objection, Narration”) Leading Question Compound Question Foundation Notice that the basis of the objection is stated (More about this later) Argumentative Cumulative

Questions that suggest their answer • -- It is helpful to think of two concepts here • structurally leading • “ you didn’t take your medications, did you?” • (the “did you” at the end will always make this leading) • substantively leading • “Isn’t it true that you took 100 mg of Valium thirty minutes before you started driving the vehicle at a high rate of speed?” Narration Leading Question Compound Question Foundation Dropping the “did you” or “isn’t that correct” at the end of the question doesn’t save it Argumentative Cumulative

-- A question that is not leading: • “Did you take your medications that day?” Narration Leading Question • Leading questions are ALLOWED on cross examination and PROHIBITED on direct examination • -- If it is your witness, you cannot lead him/her • (some exceptions: children and the feeble, or a hostile witness etc.) • -- form of the objection: • “Objection, leading” Very important rule: Compound Question Foundation Argumentative Cumulative

Narration Leading Question • -- asking two questions at once: • “Did you take your medications that day and how fast did you drive?” • - “Objection, compound Question” Compound Question Foundation Argumentative Cumulative

-- Do it this way: • “do you have any medical conditions?” • “are you being treated for the condition?” • “do you take medication for the problem?” • “does the medication prevent your seizures?” • “are you able to drive safely after taking the medication?” • “did you take the medication before you drove on the night of November 3rd?” Narration • You get ahead of the story • “did you take your prescribed anti-seizure medications before you drove in the accident?” • -- “Objection, leading” Leading Question Compound Question Foundation “assuming a fact not in” evidence Argumentative Cumulative

Narration Leading Question • -- straight forward: • “Why are you such a scumbag” • “I bet that beating your wife make you feel real good” [depending on context] • -- “objection, argumentative” Compound Question Foundation Argumentative Cumulative

-- Where you ask a question that you have already asked earlier • “So Pete, did you ever bet on baseball?” • “Are you telling me you never once bet on baseball?” • -- if asking twice is for rhetorical purposes, probably will have some latitude (cross examination technique) • -- but if you are asking just because you don’t like the answer or are confused, probably get flagged Narration Leading Question Compound Question Foundation Argumentative “asked and answered” Time Cumulative

The Evidence “Game” • -- Let’s look at how lawyers structure witness examination • -- First, some introductory points about “the evidence game” • (a) you are only going to object to the form of a question if the question is harmful to the case • (the point is never to enforce the rule for its own sake) • -- so if your opponent is asking leading or narrative or compound questions about non-important matters, you will not waste your time objecting. • (In fact, doing otherwise would irritate the Court) • (b) as a general rule, you cannot make the objection late and you must state the basis – or else you lose.

The Evidence “Game” • -- for example, you can’t say, “your honor, I object to what was said a few minutes ago” • -- this makes objection a kind of game • -- if your opponent is not skillful or prepared enough to make the right objection at the right time, you can slide things by Time

Imagine a fact that is important to the jury … • E.g., the decapitated head of Nicole Brown Simpson. (shows that this OJ thing isn’t superficial; it is real) • Imagine you are the prosecution questioning a police officer: • “In what condition did you find Nicole’s body?” • -- answer, she was virtually decapitated. • “Can you describe what you mean by virtually decapitated?” • “How did you come to realize her head was so severely separated from her body Direct Examination • “After you found the decapitated head, what portion of the body did you look at next? “ • After you had found the decapitated head, did you call anyone else to look at it?” • Upon reporting to others about decapitation, did you have occasion to have the body photographed for investigative purposes? • Do you have those photos of the decapitation with you? • -- now let’s look at direct examination • chances are, you will have interviewed and prepped the witness • you will lay out each piece of the story in an interesting way without violating the rules of foundation • you want the witness to tell the story, not the questioner (no leading) • try to end with something dramatic (the jury may be nodding asleep during the middle boring stuff) • -- here is an interesting questioning technique • “Introductory-clause intensifier” (my words!) Note how many questions start with a restatement of the word decapitation. You mention it several times while making the officer answer little, non-important questions. This is a technique that good trial lawyers will indulge on direct examination Note a style point here about calling her “Nicole.” If the person knows her, this is good for personalization. If not, you would call her “Ms Simpson” or something. Calling her the victim really is poor scripting of the direct Time

Cross Examination • 1. now let’s look at techniques for cross examination • be friendly at first (sneak up) • organize the cross into (a) easy, friendly stuff; and (b) the hard stuff [ask easy stuff first] • you will drop a few set-up questions in the middle, causing the cross to appear disorganized – that’s ok. • (You are not organizing it for English composition; you are a boxer trying to score points. Sometimes boxers spend a few rounds jabbing or moving before they throw their best punch) • -- an example is badly needed …. • Example: a trial for a burglary where there are two witnesses. • The police officer who arrived at the scene, seeing the defendant fleeing the building with stolen goods • The witness neighbor who saw the defendant enter the building • A map …

Defendant’s Location Neighbor’s Location Neighbor’s House Burglary Neighbor claims to see defendant enter the building through his window But there is a tree here The defendant runs, and the police offer chases Then the police come …

“the window that you pointed to is the kitchen window?” • “its located next to the dining area?” • “dining area has the television set?” • “television set was on during your 911 call • “You were watching a game show called Wheel of Fortune?” • “You were not in the kitchen the entire time” • “There’s a Maple tree outside of that kitchen window.” • “The tree is larger than the house” • “In order to see the entry to your neighbor’s house, you have to stand in the corner of the kitchen Cross Examination • go into the background stuff • “you are divorced?” • “no one else lives in your home besides you?” • You don’t work right now, correct? • Is this a picture of your apartment? • Can you point to the window where you were looking out of on the day of the incident? • Now you go for the hit • -- you may not be able to score very many points. But whatever you can, take your punches and then sit down! Notice how some of these questions suggest he might be seen in a negative light (loser?). This is helpful if he is weird on the stand to begin with. [explain] • Questioning the neighbor: • be friendly at first • “Hello Mr. Smith, how do you want me to address you today?” • “I want to ask you some questions about this incident, ok?” • “Would you help me clear up some things?” • start with introductory stuff • “you live at 2325 North Riverview, correct?” • “how long have you lived there now?” • -- you have enough here to argue that his view was tough and that it was limited. Now get what else you can and sit down • “you didn’t see the defendant knock on the door?” • “you didn’t see the defendant ring the doorbell?” • “to this day, you do not know whether or not the defendant and Mr. Smith are acquaintances?” • “You don’t know whether the door was locked?” • -- now let’s look at techniques for cross examination • be friendly at first (sneak up) • organize the cross into (a) easy, friendly stuff; and (b) the hard stuff [ask easy stuff first] • you will drop a few set-up questions in the middle, causing the cross to appear disorganized – that’s ok. • (You are not organizing it for English composition; you are a boxer trying to score points. Sometimes boxers spend a few rounds jabbing or moving before they throw their best punch) • -- an example is badly needed …. You know these things because you have the tape and because you have done some investigatory work. If you lies on any of these matters, you can expose it Note how nice this question is – you get a friendly yes. He will agree with you. That cuts down the hostility factor. Mention the truth in this case: 1. didn’t see Δ #2; 2. denied the tree obstructed when I had a picture 3. hooked him on a “black friends” question Again, you start the process of ask and answer. You are practicing with him right now. Getting him to answer correctly what you say. You build these questions around your theory. If you have the evidence, other themes could be: (a) he was drinking; (b) he has bad vision; (c) he has bad racial feelings (if the client is of another race); (d) that he is doing his neighbor a favor Note that these are not questions. They are staccato statements. This is a technique to get the witness to “parrot.”

Time • -- the good stuff • “you didn’t actually see my client enter the apartment” • “you didn’t even see him exit the apartment?” • “you just saw him running away with a suitcase?” • “upon arrest, he was cooperative with you?” • “… waived Miranda rights?” • “… freely talked with you?” • “ .. He told you what happened?” • “He denied involvement” • “He said he didn’t enter the house; that the other guy did” • “he said the other guy threw him the suitcase and he ran out of fear” Cross Examination Note how this officer’s testimony now is not in contradiction with our theory. He actually just restated everything that will later support our view. The point is to get them parroting the things you want. You are just up there to get a couple of jabs, like a boxer. • One more: the police officer. • -- these are the easiest to get “parroting” • -- example (background) • “you work for the Morgantown police department.” • “you’ve been there for 6 years?” • “you were on duty the night of the burglary.” • “you were driving unit 5” • “you were dispatched at 9:00 p.m.” • “you arrived at the scene at 9:03” • -- now let’s look at techniques for cross examination • be friendly at first (sneak up) • organize the cross into (a) easy, friendly stuff; and (b) the hard stuff [ask easy stuff first] • you will drop a few set-up questions in the middle, causing the cross to appear disorganized – that’s ok. • (You are not organizing it for English composition; you are a boxer trying to score points. Sometimes boxers spend a few rounds jabbing or moving before they throw their best punch) • -- an example is badly needed ….

Impeachment • 1. there are two types of cross examination • -- you cast doubt upon the 5 senses or upon memory • -- the person is mistaken • poor vision, didn’t take medications, view was too quick or obstructed, was too excited, etc. • -- call the person a liar. • you are racist; you are related to the victim; you stand to benefit from the case; you are accusing Kobe because you want to sue him for millions Regular Cross-X Question: What is the difference between the two? Impeachment

Time Impeachment • Things lawyers use for impeachment • -- Prior inconsistent statement • -- Showing of bias/motive to misrepresent • -- Prior conviction if: • 1. Not more than 10 yrs old, and: • (a) crime of dishonesty? [Fraud, perjury] [yes] • (b) felony without dishonesty? DUI? [perhaps] • (c) misdemeanor with no dishonesty? [no] • -- Reputation Evidence • 1. bad reputation for truth and veracity

Privileges • 1. These are things that do not have to be disclosed in Court • Attorney-Client privilege • -- anything you say to an attorney is confidential • -- excludes giving physical, tangible evidence (e.g., the murder weapon) • -- one exception: if you tell the lawyer you are going to kill someone, and he reasonably believes it. Duty to contact authorities). Question: What does this have to do with finding the truth?

Privileges • physician-patient • -- anything you tell your doctor for purposes of facilitating treatment is privileged, unless: • (a) you are suing the doctor • (b) public safety requires disclosure (a statute) • (c) criminal cases! • [example -- If O.J. tells his doctor where he got the cut on his finger]

Privileges • husband-wife • -- there are two types of privileges here: • -- your spouse can’t testify against you in a criminal case, period. Doesn’t matter when the communication occurred or what it is about • [example: honey I robbed the bank] • -- only applies to things said during the marriage and which are naturally secretive or private. • [bank robbery wouldn’t be a marital confidence] • Application: • Husband is drunk and driving home with Wife in the front seat. Husband wrecks on the side of the road. Both are not injured. • A police officer comes to the scene • Wife is sitting on the drivers side, husband in passenger side • Question: can you prosecute the Husband for DUI? • How can you prove who was driving the car? Spousal Immunity Question: What does this have to do with finding the truth? Spousal Confidence

Privileges • -- couple of things to remember: • -- in most state courts, the defendant spouse controls the privilege. So if the witness-spouse wants to testify, he/she can’t. • -- in federal court, it is the other way around • -- divorce destroys the privilege Time

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