Why impeach a witness? Hopefully, with good cause. We impeach witnesses to weaken their credibility and/or to advance our own stories. As described by Charles Rose in FUNDAMENTAL TRIAL ADVOCACY, “[a] properly planned impeachment is an effective exclamation point to a strong cross-examination.” But to be effective – and indeed to be warranted – another
To some lawyers, it is not clear when the duty to correct errors from old cases expires. If you prosecuted a case in 2001, and learn of new evidence in 2017 that casts doubt on the conviction, must you notify anyone? And if you represented someone convicted long ago, or a witness, and now have
It can be argued that the notion of the trial as a “search for the truth” is incompatible with the adversarial system. After all, the adversarial system – except possibly as governed by the ethical commands prosecutors face to “seek justice” – is one based upon zealous representation and the desire of each side to
Rule 703 embodies a tension between letting experts do their jobs of gathering information and forming opinions and limiting disclosure of what information the experts gathered. Experts who are good go to lots and lots of sources before they reach a conclusion. And this is encouraged under Rule 703, as long as those sources are
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
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