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
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
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
When may a lawyer, seeking to challenge the credibility of a witness, prove that the witness lied in a different trial [or a pre-trial proceeding in a different case]? One may turn to Federal Rule of Evidence 608(b) for a partial answer; but not all states have adopted 608(b) – Pennsylvania being one example –
A house on fire, an occupant wakes up and yells “my brother, my brother.” The occupant dies, and his brother is charged with murder. Are the words “an assertion,” are they offered for the truth of the matter asserted, and should they be admissible? This precise scenario was at the heart of a recent decision
Reduced criminal charges and status as an illegal immigrant. What role may each play in assessing whether the witness who has received reduced charges, or who is an illegal immigrant, is being truthful and accurate? A recent petition for writ of certiorari in the United States Supreme Court addresses the former; and a new decision
Visuals are essential in today’s trials. Many jurors are visual learners; many have reduced attention spans from years of watching television or online video; and many jurors ‘expect’ a show as part of a modern trial. And Powerpoint and other visuals can be potent evidence, crystalizing complex legal concepts and hitting powerful emotional chords. This
We profile people all the time – not necessarily in the pernicious way that is condemned for stops and searches, but in using a person’s character or behavioral patterns as a proxy to estimate how they would conduct themselves in a particular situation. It is a form of “fast” thinking, an intuitive response that leads