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,”
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 –
Everyone should know the story of Clarence Gideon. Charged with Burglary, he asked for but was denied a lawyer: The Defendant: Your Honor, I said: I request this court to appoint Counsel to represent me in this trial. The Court: Mr. Gideon, I am sorry, but I cannot appoint Counsel to represent you in this
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;
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.
Prosecutors cross-examine much less frequently than do defense counsel, for good reason. Often defendants do not testify (with some data sets putting the number below the 50% threshold for felony cases that go to trial), whether because they have little too say, there is ample impeachment evidence the jury will not hear if they remain
The Hollywood lawyer – whether Gregory Peck, Kate Hepburn, Paul Newman or Denzel Washington – never speaks from notes. And Cousin Vinny, although he never had to give a closing, certainly had no paper in hand when he delivered his inimitable opening statement of “everything that guy said is [expletive deleted].” But it is the
For forty-plus years, learning the art of trial advocacy has included the obligatory viewing of a tape of Irving Younger’s “10 Commandments of Cross-Examination” lecture. And every lawyer who has ventured into the courtroom has seen – if not personally experienced – the dire consequences when a commandment is violated, in particular when the cross-examiner