The Motion in “Non” Limine: Should Lawyers Ever Move For Admissibility?

  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

WITNESS INTERVIEWING LESSONS FROM EYEWITNESS ERROR CASES

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

Back to Basics – I Impeaching With Inconsistencies

  Advice on a listserve can be like medical, ‘scientific’ or political information on the internet – of questionable accuracy and dubious value.  Yet listserves persist and advice-givers proceed apace, sometimes requiring a cooler/older ‘head’ to intervene.  Such was the case on a criminal defense listserve, where a lawyer sought advice on how to impeach

LOOKING AT JURY TRIALS “OUTSIDE IN” – LESSONS FROM A JURY CONSULTANT

Until reading JURY TRIALS: OUTSIDE IN (NITA, 2016) by psychologist Melissa Gomez, I was more than skeptical regarding the value of jury consultants.  And I was not alone.  As of 2005, “[a]lthough jury consultants claim high success rates, little research ha[d] been conducted on the actual effect jury consultants have in the outcome of a

Seven Steps to (Hearsay) Heaven

The great jazz trumpeter Miles Davis recorded his classic Seven Steps to Heaven in 1963, with no explanation as to why this was the number of steps needed to ascend. He just laid down a seven beat, seven note structure and the music flew. Well, perhaps there are an equal number of steps to “hearsay heaven,”

Yell, Compel, or Soft-Sell: How Blatant Must Cross-Examination Be?

Among Irving Younger’s commandments were the well-known dictates of “be brief” and “save the ultimate point of your cross for summation.” The latter was the model for an eyewitness cross-examination at a recent training on litigating mistaken identification cases, but when we polled the mock jury one of its members – discussing the cross –

Gideon’s Heritage Comes to Pennsylvania: Toward A Metric For The Right To Counsel

Everyone should know the story of Clarence Gideon.  Charged with Burglary, he asked for but was denied a lawyer: The Defendant: Your Honor, I said: I request this court to appoint Counsel to represent me in this trial. The Court: Mr. Gideon, I am sorry, but I cannot appoint Counsel to represent you in this

Learning From Mistakes: Failing to Story Tell in a Defense Opening

A successful opening statement: Draws in the listener from the first sentences; Narrates facts into a story-board or framework that the audience – judge or jury – is familiar and comfortable with; Tells that story with less attention to finite details and more to ensuring that the gist is grasped; Is persuasive without becoming argumentative;

Unreasonable Certainty: A Call To Abandon “Reasonable Degree of Scientific Testimony” Terminology

The prevailing practice in many jurisdictions, usually compelled by custom rather than law, is to ask a testifying expert whether the opinion proffered or the conclusion drawn is held “to a reasonable degree of scientific certainty.” Yet scientists do not proclaim certainty in their domains; instead they acknowledge and embrace scientific knowledge as an area