Witness memories, however flawed or imprecise, are often the core evidence at trial. Yet anyone who studies memory knows that recollection of event gist (“I’ll never forget being robbed”) may be long-lasting but accurate recall of event detail fades within hours, or at most a day, after the occurrence. This is shown in what
Part 1 of this article [https://www2.law.temple.edu/aer/confronting-oppo…trategies-part-1/] detailed the suggested approaches and checklists of several advocacy experts on how to confront and cross-examine the opposing expert witness. Those checklists, while all useful, paid inadequate heed to the interplay of courtroom skills and evidence law. In part 2, this article suggests a more comprehensive paradigm for
It needs no citation of authority to say that an expert is the most difficult witness to cross-examine. United States v. 23.76 Acres of Land, 32 F.R.D. 593, 596 (D. Md. 1963) Her job is not an easy one, because she is engaging in high stakes battle with an articulate, knowledgeable, and experienced adversary. Easton,
If we do not grasp the incredible power of credibility…we can argue with all the skill and artistry of the greatest orators ever spawned by history, but we will never win. Gerry Spence, HOW TO ARGUE AND WIN EVERY TIME. A lawyer’s credibility is key in the presentation of a case. That is not
The more a trial is based on live witness testimony, the more it is an exercise in assessing (and sometimes only guessing) whether memory equals fact. What has been written about eyewitness identification testimony – that “ in light of the malleable nature of memory, the effectiveness of scrutinising identification evidence at trial is dependent
The return of death sentences by the jury was inevitable in the case of Dylann Roof, who was on trial for killing nine black churchgoers during a Bible study in Charleston, S.C. But no one – fan or foe of capital punishment – should take comfort in how this came about; and an understanding
The adage “but I’ve always done it that way” is proof only of consistency and not of correctness. Yet there are hundreds if not thousands of lawyers who approach trials with little grasp of advocacy fundamentals and instead ‘try it the way I always have’ [or ‘try it the way others before me have’].
While judges believe the Rules of Evidence are their tools for controlling lawyers, I have always believed and taught that knowledge of the Rules is what permits lawyers to control the courtroom. This is true in at least two regards. Because the litigation process is adversarial, it is the lawyer who addresses evidence claims in
Lawyers regularly move, pre-trial, to exclude evidence. Shouldn’t the same approach be used to ensure inclusion of proof? The answer should be “of course,” but I recently came across a contrary view – one that is dead wrong. A Judge [yes, a sitting judge] gave the following advice – “A motion in limine should
That eyewitnesses make errors – errors of a catastrophic nature that can send an innocent person to jail for decades or even face a sentence of death – cannot be doubted. As confirmed by the INNOCENCE PROJECT, “[e]yewitness misidentification is the greatest contributing factor to wrongful convictions proven by DNA testing, playing a role in