Seven Steps to (Hearsay) Heaven

The great jazz trumpeter Miles Davis recorded his classic Seven Steps to Heaven in 1963, with no explanation as to why this was the number of steps needed to ascend. He just laid down a seven beat, seven note structure and the music flew. Well, perhaps there are an equal number of steps to “hearsay heaven,”

Yell, Compel, or Soft-Sell: How Blatant Must Cross-Examination Be?

Among Irving Younger’s commandments were the well-known dictates of “be brief” and “save the ultimate point of your cross for summation.” The latter was the model for an eyewitness cross-examination at a recent training on litigating mistaken identification cases, but when we polled the mock jury one of its members – discussing the cross –

Learning From Mistakes: Failing to Story Tell in a Defense Opening

A successful opening statement: Draws in the listener from the first sentences; Narrates facts into a story-board or framework that the audience – judge or jury – is familiar and comfortable with; Tells that story with less attention to finite details and more to ensuring that the gist is grasped; Is persuasive without becoming argumentative;

Unreasonable Certainty: A Call To Abandon “Reasonable Degree of Scientific Testimony” Terminology

The prevailing practice in many jurisdictions, usually compelled by custom rather than law, is to ask a testifying expert whether the opinion proffered or the conclusion drawn is held “to a reasonable degree of scientific certainty.” Yet scientists do not proclaim certainty in their domains; instead they acknowledge and embrace scientific knowledge as an area

Learning Lawyering From Film: “Let Him Have It”

Film, Hollywood and otherwise, draws attention to what it means to be a lawyer, both good and bad. Think Atticus Finch, heroically portrayed by Gregory Peck and of such iconic stature that “the American Film Institute deemed Atticus Finch the number one movie hero of all time…” McMillian. A DIALOGUE COMMEMORATING THE FIFTIETH ANNIVERSARY OF

In-Court Eyewitness Identifications – What Process is “Due” Process?

In any case where identification is at issue, the proverbial drumroll sounds at the crescendo of the witness examination when the prosecution asks “and do you see the person, here in this courtroom, who committed this crime?” And invariably the finger points at the accused. Who else would it be pointed at? The lawyers are

Learning From Mistakes: An Imperfect Cross-Examination

“By seeking and blundering we learn” – Goethe “I have not failed. I’ve just found 10,000 ways that won’t work” – Thomas Edison. “A spelling mistake in the DNA of a gene within the brain seems to impair the ability of a person to improve their performance based on knowledge of earlier errors.” – News

Do Lawyers Need Checklists to Reduce Error?

Can checklists reduce lawyer error? As they do for doctors or airline pilots or building engineers? Although the focus on this technique has largely been outside of the realm of the legal system, there is enough known to say that its application to lawyers is both necessary and likely to be beneficial. That lawyers do

Impeaching By Omission

The art of witness impeachment is inextricably bound with the substantive law of evidence. Evidence rules explicitly allow for impeachment of any witness (even one called by the party) and set the procedures for attacking with inconsistencies – the impeaching document need not be shown to the witness, and impeachment must occur with there being some opportunity for