Rarely if ever will the cross-examining attorney know more about a subject than the expert witness being confronted. Indeed, that is why discovery rules mandate pre-trial disclosure of expert reports – “They allow attorneys, not experts in the fields at issue, to prepare intelligently for trial and to solicit the views of other experts…” Metavante
On October 25, 2018, the Pennsylvania Supreme Court adopted two amendments to the Pennsylvania Rules of Evidence – the definitions of PRESENT SENSE IMPRESSIONS and EXCITED UTTERANCES both had new language added. Each rule now concludes with the following statement: When the declarant is unidentified, the proponent shall show by independent corroborating evidence that the
It is remarkable when lawyers decide that they won’t let the facts get in their way. And when the facts are medical/scientific, and they have no way around them, they hurt their clients when they just say the contrary is true. Instead of “fake news,” these become “fake facts.” What’s the proof? In a recent
To those who practice in the criminal law trenches, the ability to refresh recollection is a time-of-trial tool for both the sincerely forgetful and the convenient amnesiac witness – the lawyer shows the witness a document or photo and (leading or non-leading) pushes the witness to remember. The mnemonic – which is never to be
Imagine being the lawyer assigned to handle a high-profile, “cold” [twenty year old] murder case where the evidence was all scientific: The swab from [the victim’s] left fingernail included a mixture of DNA profiles…[and] defendant’s DNA profile matched the major donor’s. Vaginal and rectal swabs…also matched defendant’s DNA profile.“ What do you need? You need
If news accounts are accurate, Paul Manafort’s lawyers twice asked non-leading questions, on cross-examination, of the Government’s most important witnesses – the defendant’s accountant and Rick Gates, the latter the sometimes partner of or aide to Manafort. And again, if the news accounts are accurate, the answers hurt. What occurred? In each instance, the lawyer
The prohibition against using character – either explicitly, when we speak of a person’s traits and tendencies, or indirectly, when we use other acts as a proxy to show character – is longstanding. “By the turn of the nineteenth century, British and American courts were in agreement that prior act evidence introduced for the limited
If a client tells a lie to her/his lawyer, is that communication still privileged? The answer is indisputably “yes,” and if a report in the Philadelphia Inquirer (http://www.philly.com/philly/news/breaking/ex-state-chief-justice-backs-embattled-former-state-prosecutor-20180801.html) is accurate a former State Supreme Court Justice got that question wrong. What’s the background? A lawyer disciplinary hearing was looking into whether a former prosecutor improperly
Lawyers want (and need) easy tools for handling Evidence issues. Their understanding of the Rules, their application and their interplay may be hobbled by whether their Law School education was at the hands of a theorist rather than a practice-focused educator, the frequency with which they are in court, and their willingness to read, re-read
It is tempting, and understandably so, for any lawyer to argue to the jury that an opposing witness is a “liar,” that the witness’ story is “malarkey,” or that the story given was “an insult to the jury’s intelligence,” as long as the proof supports those conclusions. But a recent 1st Circuit decision warns prosecutors