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,
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
What does the President of the United States have to do with forensic science? Answering that could take one, indirectly, back to Abraham Lincoln, who signed the legislation that led to the creation of the National Academy of Sciences. The NAS, in 2009, issued a report that called into question the validity and precision
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
How should judges evaluate lawyers’ alleged mishandling of forensic science evidence when the challenge is brought years after the trial? One recent United States Supreme Court decision grapples with this; and this article contextualizes that holding, analyzes its weaknesses, and suggests some factors for judges to weigh. In criminal cases, the importance of science (and
Rule 703 of the Federal Rules of Evidence was not intended to abolish the hearsay rule and to allow a witness, under the guise of giving expert testimony, to in effect become the mouthpiece of the witness on whose statements or opinions the expert purports to base his opinion.
When is a photograph more disturbing than useful, particularly in an emotionally-charged trial such as a homicide case (and, more particularly, in a homicide trial where the victim is a young child)? At once a seemingly narrow inquiry, how this question is answered resonates in all sorts of cases, particularly criminal and personal injury, where