About Jules M Epstein (hehimhis) Civil and criminal court litigators – beware. A new decision of the Pennsylvania Superior Court in a criminal appeal has radically upset the calculus lawyers must perform if they lose a motion in limine and want to decide whether to front (or “own”) the bad fact. Doing so may now cost a litigant the chance
Calling a witness a “Bimbo.” Making suggestive hand gestures. These were highlighted facets of two closing arguments in high-profile criminal trials in the calendar year 2022. Were they a reflection of our national political discourse; an attempt to be aggressive as part of zealous representation; or offensive, stupid and ineffectual? The final term – ineffectual
Many may believe (depending on the jurisdiction or the judge) it to be fundamental – indigent defendants are entitled not only to free counsel but to the essential services needed to investigate and present a defense: funds for an investigator to track down witnesses, funds for a psychiatrist or psychologist for a mental health defense,
Crotch-grabbing. “Bimbo.” These were highlighted facets of two closing arguments in high-profile criminal trials in the calendar year 2022. Were they a reflection of our national political discourse; an attempt to be aggressive as part of zealous representation; or offensive, stupid and ineffectual? The final term – ineffectual – has no metric; it is impossible
Anecdotally, we know these truths to be self-evident – jurors find trials boring (at least many trials, after a while) and resent repetition. Some juror notes published by Judge Christina Habas reveal how the trial’s captive audience may feel about repetition. One juror exhibited their frustration with repetition by drawing a doodle in their notes.
Capital cases – those where the death penalty was sought and then imposed – can last for decades. There are at least two reasons for this – they deserve the greatest attention and review because life is at stake; and the poor lawyering that led to so many capital convictions warrants that review and takes
Is trial advocacy art, science, or some of each? The answer is definitely the third, although the science part often gets lost in the shuffle or is alleged science with no data to back it up [think {80% of juries decide the case after opening” or “a picture plus words causes 60% fact retention”]. Finding
The following “one line lessons” for excellence in advocacy were contributed by members of the national trial advocacy listserv. The submissions are organized topically, with the contributors’ names preceding their contributions. CASE THEORY Brett Bayne Shamelessly stolen from Herb Brooks and the 1984 Miracle on Ice, he reportedly strolled the bench behind the players
More than a decade ago, the New Jersey Supreme Court wrote the following about eyewitnesses: “Without persuasive extrinsic evidence, one cannot know for certain which identifications are accurate and which are false—which are the product of reliable memories and which are distorted by one of a number of factors.” State v. Henderson, 208 N.J. 208,
It is a regular occurrence in trials for one party to approach the Judge and say “Your Honor,” they just opened the door to X; may I now ask questions or present evidence on that point?” The response may be more reactive than reasoned, and that is because we rarely discuss the legal principles underpinning