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
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 –
He did it because of a genetic predisposition; She did it because of a head injury from being abused as a child. Which story is more powerful? In the world of sentencing – be it in a capital case where life is literally on the line, or in a non-capital prosecution where loss of liberty
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