![\"\"](\"https:\/\/law-dev.temple.edu\/aer\/wp-content\/uploads\/sites\/3\/2019\/08\/LAST-PLACE-2-163x300.jpg\")
<\/p>\nIt is arrogant to claim that what happens in the United States is the best \u2013 or here, worst – in the world.\u00a0 But the following transcript excerpt displays such a deficient performance that it may be fair to claim the title of \u201cworld\u2019s worst,\u201d and certainly lawyers in other countries would be happy to cede this title.<\/p>\n
<\/p>\n
The context is simple.\u00a0 In a criminal trial, the defendant was charged with sexually assaulting someone he was in a relationship with.\u00a0 The scene was a motel room, with some of the pre-event conduct captured on\u00a0 a security camera at the pool area.\u00a0 The prosecution evidence included a taped post-incident phone call.\u00a0 The defense was that the sexual conduct was consensual.<\/p>\n
The entirety of the direct [with some names changed solely for anonymity] is as follows:<\/p>\n
Q:\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0 Please state your name.<\/p>\n
A:\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0 [defendant\u2019s name]<\/p>\n
Q:\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0 You had the opportunity to view the video yesterday, correct?<\/p>\n
A:\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0 Yes.<\/p>\n
Q:\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0 Were you the individual with the [name of University] shirt on?<\/p>\n
A:\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0 Yes.<\/p>\n
Q:\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0 Are you a graduate of [name of University]?<\/p>\n
A:\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0 Yes.<\/p>\n
Q:\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0 And what did you study there?<\/p>\n
A:\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0 Liberal arts degree with a minor in communications and sociology.<\/p>\n
Q:\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0 The evidence the prosecution presented included a jacket with the name of a second University.\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0 Are you affiliated with that University?<\/p>\n
A:\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0 Yes.<\/p>\n
Q:\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0 And what is your affiliation?<\/p>\n
A:\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0 I was a crisis response technician in the emergency triage in [name of neighborhood].<\/p>\n
Q:\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0 You also had the opportunity to hear the recorded conversations?<\/p>\n
A:\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0 Yes.<\/p>\n
Q:\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0 Was that you on the recorded conversations?<\/p>\n
A:\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0 Yes.<\/p>\n
Q:\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0 No further questions.<\/p>\n
<\/p>\n
The abandonment of the client here was complete.\u00a0 Primacy and recency were ignored; there was no story to limit or frame the prosecution cross; there was not even a denial of culpability; and there was no attempt to address equivocal behavior and statements made by the accused during the police investigation, conduct and words that could have been contextualized and normalized.\u00a0 Instead, the jury heard the story only through cross-examination, here one that extended for more than forty pages.<\/p>\n
To ensure that I was not missing the boat and unable to discern an incredible, sophisticated strategy, I re-read the balance of the trial.\u00a0 There was none.\u00a0 That was confirmed by the opening, where the lawyer promised the jurors that they would hear from the two other individuals who were in the motel room where the sexual contact occurred but then called no witness other than his client; the misstating of the burden of proof in closing argument, when defense counsel told the jury that consent had \u00a0to be shown beyond a reasonable doubt; and the Judge\u2019s behavior by finally objecting from the bench when counsel sat back in the face of improper prosecution questioning.<\/p>\n
So, is this truly the worst there is?\u00a0 That is impossible to determine, although a more deficient performance is hard to imagine.\u00a0 And are there any lessons attainable from reading something so inadequate?\u00a0 The answer is \u201cyes,\u201d because as soon as we see this the reaction is \u201cwhy didn\u2019t counsel at least do\u2026?\u201d\u00a0 And what are some of those \u2018achievables\u2019 in a direct examination?<\/p>\n
There is at least one more, and that is demonstrating that the lawyer is in the client\u2019s corner.\u00a0 Here, the lawyer could not have been more distant, disconnected, and uncaring.\u00a0 That was its own, devastating, message.<\/p>\n
Given this performance, the outcome of this trial was a foregone conclusion.\u00a0 Whether a reviewing court will see this as significant enough to warrant relief cannot be predicted; but this direct examination is the template for what not to do, and a lawyer who believes otherwise should not be trying cases where liberty (or even a traffic ticket) is at issue.<\/p>\n","protected":false},"excerpt":{"rendered":"
It is arrogant to claim that what happens in the United States is the best \u2013 or here, worst – in the world.\u00a0 But the following transcript excerpt displays such a deficient performance that it may be fair to claim the title of \u201cworld\u2019s worst,\u201d and certainly lawyers in other countries would be happy to<\/p>\n","protected":false},"author":31,"featured_media":0,"comment_status":"closed","ping_status":"closed","sticky":false,"template":"","format":"standard","meta":{"generate_page_header":"","_jetpack_memberships_contains_paid_content":false,"footnotes":""},"categories":[2,3,11],"tags":[],"coauthors":[238],"class_list":["post-2413","post","type-post","status-publish","format-standard","hentry","category-advocacy","category-advocacy-and-evidence-blog","category-trial-advocacy"],"yoast_head":"\n