Trial Ad

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stac8199
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120564
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Trial Ad
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2011-12-03 22:14:00
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Trial Ad
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  1. Theory of the case should be
    • Simple
    • Logical
    • Persuasive
    • A story of what happened
  2. Theory of the case must be consistent with:
    • credible evidence
    • the jury's perception of the way life works
    • the law
  3. The theory of the case should answer 3 questions:
    • 1. What happened?
    • 2. Why did it happen?
    • 3. Why does that mean my C should prevail?
  4. What is the theme of your case?
    A short way to describe your theory of the case
  5. The theme of the case should be:
    • short
    • memorable
    • consistent with your theory of the case
    • used consistently at different points to help tie things together for the jury
  6. Closing Argument Structure/Organization
    • 1. grabber/theme/theory of the case
    • 2. body
    • 3. closing
  7. different ways to organize your information in the body of your closing
    • 1. element by element
    • 2. chronologically
    • 3. point by point
    • 4. witness by witness
    • 5. any combination of these
  8. If you are the prosecution and you do your closing by the elements of the charge you should talk about?
    the evidence that proves each element
  9. If you are the defense and using the elements of the charge in your closing you should talk about:
    • the elements that show the weaknesses or lack of evidence in the state's case
    • attack the BoP
    • show how the evidence you offered disporves a specific element
  10. if using point by point in your closing you should:
    • 1. tell the jury the topic or point you want them to conclude
    • 2. then go thru the evidence that establishes that point
  11. Pointers for closing arguments
    • 1. use jury instructions
    • 2. emphasize by making things memorable
    • 3. word choice - choose your words carefully for effect
    • 4. never use "I think" or "I believe b/c makes you seem uncertain of yourself
    • 5. DON'T READ!!!
    • 6. Proxemics - be mindful of the proximity b/t you and the jury and don't invade their space
    • 7. primacy and recency
  12. Things to make sure you include:
    • 1. persuasive story
    • 2. tie up your cross examinations
    • 3. comment on promises
    • 4. discuss damages
    • 5. use the verdict form
    • 6. don't say "thank you" unless you can do it sincerely
  13. Direct Examination Controlling Rules
    • FRE 601 - everyone is competent to be a W
    • FRE 602 - W can't testify unless there is ESSF that W has PK of hte matter
  14. What will disqualify person from testifying?
    • 1. incapable of expressing himself concerning the matter
    • 2. incapable of understanding duty to tell the truth
  15. Refreshing a W memory
    • 1. establish the W memory is exhausted concerning a specific event/issue
    • 2. determine his memory may be refreshed if allowed to reference a certain thing
    • 3. show the W the thing and allow him to examine it
    • 4. ask if W memory has been refreshed
    • 5. remove the thing
    • 6. request W to continue his testimony
  16. Can you refresh the recollection of a W who simply gave the wrong answer to your question?
    No - if this happens have to impeach your own W
  17. Can use leading questions on direct if:
    • 1. transitioning
    • 2. disabled W
    • 3. laying a foundation
    • 4. hostile or adverse W
  18. Order of direct testimony
    • 1. accredit the W
    • 2.Tickler - connection to case
    • 3. set the stage
    • 4. action
    • 5. anticipate the cross examination
    • 6. end on a high note
  19. Techniques for direct examination
    • 1. use short open-ended questions
    • 2. use simple language
    • 3. use questions that build incrementally
    • 4. use repetition with looping
  20. things to avoid on direct examination
    • 1. leading questions
    • 2. narratives
    • 3. questions that elicit opinion from a lay W b/c can only give opinion as to what they perceived
  21. Rules disallowing leading questions on direct
    • FRE 611 - court shall exercise reasonable control over the mode/order of interrogating W and presenting evidence
    • FRE 612 - leading questions should not be used on the direct exam of W except as may be nec to develop W testimony
  22. purpose of cross examination
    • 1. elicit favorable testimony which is helpful and establishes a foundation
    • 2. repair or minimize damage
    • 3. discredit testimony of the W
    • 4. discredit credibility of W
    • 5. discredit credibility of another W
  23. Organization of Cross Examination
    • 1. topical
    • 2. don't repeat direct testimony
    • 3. get W to agree with you on facts
    • 4. stack up inferences and innuendos
    • 5. end with a zinger
  24. Classic format of cross
    • 1. start friendly and get affirmative info about things you can agree on
    • 2. inquire about incontrovertible info
    • 3. inquire about challenging info
    • 4. confront W to obtain hostile info
    • 5. zinger
  25. tips for cross
    • 1. don't repeat direct examination
    • 2. ask leading questions
    • 3. don't ask why
    • 4. use facts, not subjective terms
    • 5. one fact at a time
    • 6. get answers to your questions
    • 7. get positive points from W before you begin impeachment
    • 8. use W words
    • 9. don't ask one question too many
    • 10. choose proper attitude and tone
  26. questions that lose control
    • 1. non-leading
    • 2. why
    • 3. fishing questions
    • 4. long questions
    • 5. "You testified" questions
    • 6. characterizations that invite a fight
    • 7. conclusions
  27. 3 types of exhibits and non-testimonial evidence
    • 1. real
    • 2. demonstrative/illustrative
    • 3. documentary
  28. 4 key areas when handling exhibits
    • 1. type
    • 2. ritual
    • 3. foundation
    • 4. persuasion
  29. exhibit ritual
    • 1. have the exhibit marked
    • 2. show the exhibit to the opposing side
    • 3. ask court's permission to approach the W
    • 4. ask W to identify the exhibit
    • 5. examine W to lay foundation for the exhibit
    • 6. move for the admission of the exhibit into evidence
    • 7. publish, show, or read exhibit to jury
    • 8. use the exhibit with W
  30. general foundation for exhibit
    • 1. relevant
    • 2. authentic
    • 3. admissible
  31. When can you introduce exhibits in NC?
    during your case in chief only
  32. authentication of photos depends on:
    • what the photo claims to be
    • 1. general depiction of a place - demonstrative
    • 2. image of robbery in progress - real evidence
  33. items that are self authenticating
    • 1. certain publications under seal
    • 2. official publications
    • 3. newspapers & periodicals
    • 4. trade inscriptions
  34. duplicates are admissible under best evidence rule unless
    • 1. genuine question raised as to the authenticity of the original
    • 2. circumstances would make it unfair to admit the duplicate in lieu of the original
  35. 2 categories of real evidence
    • unique item
    • non unique tangible items
  36. requirements for admitting unique item
    • 1. Competent W with first hand knowledge of the item
    • 2. relevance
    • 3. authenticity
    • 4. substantially the same condition as it was at the time of the event
  37. common objections to unique items
    • 1. item hasn't been proven to be authentic
    • 2. item hasn't been shown to be in substantially the same condition
    • 3. item is irrelevant
    • 4. unfairly prejudicial (FRE 403)
  38. requirements for admitting non-unique tangible items
    • 1. competent W with first hand knowledge
    • 2. relevant
    • 3. authentic
    • 4. item is in substantially the same condition as it was at the time of the event
    • 5. chain of custody
  39. what is demonstrative/illustrative evidence used for?
    • 1. to clarify testimony
    • 2. to assist the W in giving his testimony
  40. requirements for admitting demonstrative evidence
    • 1. competent W having first hand knowledge of what the exhibit illustrates
    • 2. relevant
    • 3. authentic - fair and accurate representation
    • 4. ask "Will use of this exhibit assist the W in giving relevant testimony?" or "Will this exhibit assist the jury in understanding the W testimony?"
  41. tips for using demonstrative evidence
    • 1. ensure jury can see the exhibit after admission (hide it until admitted)
    • 2. make sure W is comfortable using it
    • 3. talk to the jury, NOT the exhibit
  42. common objections to demonstrative evidence
    • 1. W lacks personal knowledge
    • 2. irrelevant
    • 3. misleading
    • 4. confusing
    • 5. contains marks that would lead the W in his testimony
  43. 5 keys to laying foundation for documentary evidence
    • BARPH!!!
    • 1. relevance
    • 2. authentication
    • 3. hearsay
    • 4. best evidence rule
    • 5. privilege
  44. common objections/pitfalls of documentary evidence
    • 1. Not relevant
    • 2. not authentic
    • 3. best evidence rule
    • 4. incomplete foundation
  45. Motions in limine allows an attorney to
    secure advance decisions on the admissibility of exhibits
  46. common use of motions in limine
    obtain exclusion of evidence
  47. once a motion in limine exlcuding evidence is granted, it excludes
    all references to the evidence at trial
  48. What does denial of a motion in limine to exclude mean
    that there is insufficient grounds for excluding prior to the trial
  49. if a motion in limine to exclude is denied, does that mean that the evidence is absolutely admissible?
    NO
  50. 7 rules to making objections
    • 1. stand up
    • 2. be specific
    • 3. watch the door
    • 4. make or request a line of objections
    • 5. have a reason
    • 6. make an objection in advance whenever possible
    • 7. use trial memos as much as you can or develop clear responsive objections
  51. purpose of an objection
    • bring to the attention of the judge that something has occurred that is improper
    • 1. inadmissible evidence
    • 2. improper conduct
    • 3. improper procedure
  52. How to preserve an issue for appeal
    • 1. obtain a ruling from the court and make certain that the record is correct
    • 2. must be timely
    • 3. objection must be specific
  53. how to preserve an issue for appeal if the party claims the court has erroneously excluded evidence
    • offer of proof must be made
    • 1. make the substance of the evidence known to the court
    • 2. substance of the evidence must have been apparent from the context
  54. Preserving error for review
    • 1. preserve issue for appeal
    • 2. make an offer of proof if needed
    • 3. persuade the appellate court that the trial court committed an error in the admission or exclusion of the evidence
    • 4. error affected a substantial right of the party - was prejudicial
  55. purpose of opening statements
    to permit parties to present to judge/jury the issues invovled in the case and allow them to give a general forecast of what the evidence will be
  56. practically the opening statement should
    • 1. advance your theory of the case
    • 2. give jury a perspective from which to view the evidence
    • 3. persuade the jury that your side should win
  57. limitations on opening statements
    • 1. time
    • 2. scope
  58. scope & content permissible in opening statement
    • 1. state legal claim or defense in basic terms
    • 2. ask jury to give attention to all witnesses & evidence
    • 3. comment on BoP and presumption of innocence
    • 4. use admissible exhibits or visual aids
  59. scope and content impermissible in opening statements
    • 1. reference to inadmissible evidence
    • 2. exaggerate or overstate the evidence
    • 3. discuss evidence counsel expects the opponent to introduce
    • 4. argue - facts or law
  60. basic template of opening statements
    • 1. grabber
    • 2. tell
    • 3. focus
    • 4. charge
  61. what does the grabber in an opening statement do?
    • get the jurys attention
    • set up your theme - why you are in court and why you should win!
  62. what is the "focus" of opening statement?
    • provide the jury with your perspective of the story
    • focus the jury attention on what you think is important
  63. what to avoid in opening arguments
    • 1. giving jury a civics lesson
    • 2. reading
    • 3. telling jury what you say isn't evidence
    • 4. lawyer talk
    • 5. W by W summary
    • 6. promising more than you can deliver
    • 7. deliberately trying to hide or avoid weaknesses
    • 8. referencing inadmissible evidence
  64. purposes of impeachment
    • 1. reduce credibility of W being cross examined
    • 2. reduce the plausibility of a story or theory
    • 3. reduce credibitliy of another W who's already testified
  65. modes of impeachment
    • 1. bias
    • 2. capacity
    • 3. character
    • 4. inconsistencies
    • 5. contradiction
  66. what is bias?
    • 1. W has motive to hurt a party
    • 2. W has motive for favor of party
    • 3. W has motive to protect self-interests
    • 4. prejudice or other motive
  67. What is capacity (impeachment)?
    • 1. deals with W physical ability to observe, remember, and relate those observations
    • 2. probs with perception
    • 3. probs with recollection
    • 4. probs with ability to accurately relate observations
  68. what is involved with character (impeachment)?
    • 1. once you take the stand your character for truthfulness is fair game
    • 2. opinion and reputation evidence is ok to show bad character for truthfulness
    • 3. prior convictions
    • 4. prior misconduct relevant to truthfulness
  69. Who may be impeached?
    • 1. any W who has given evidence may be impeached
    • 2. parties may impeach their own Ws
  70. when may you impeach?
    after the W has testified
  71. targets of impeachment opportunities
    1. W testify totally contrary to their depo or statements
  72. 3 forms of evidence of W's character for truthfulness
    • 1. opinion & reputation
    • 2. specific instances of conduct
    • 3. criminal convictions
  73. opinion & reputation character evidence
    • can only refer to W character for untruthfulness
    • evidence of character for truthfulness only admissible when W character for truthfulness has first been attacked
  74. specific instances of conduct that can be used for impeachment
    • those involving telling the truth or lying
    • a. prior use of false name
    • b. filing false tax return
    • c. forgery
    • d. attempts to threaten potential W to keep them from testifying
  75. use of criminal convictions for impeachment
    • - must suggest character for untruthfulness
    • - must be punishable by > 1 year in prison
  76. Criminal Convictions - FRE 609(a)(1) when the W is the accused party
    • - evidence of prior crime admitted only if PV > PE to the accused
    • - slanted towards inadmissiblity
  77. Criminal convictions - FRE 609(a)(1) when W is not the accused
    • - evidence of prior conviction inadmissible only if the PE > PV
    • - slanted toward admissiblity
  78. Criminal convictions - FRE 609(a)(2) and crime is one invovling dishonesty or false statement
    • - evidence of the crime shall be admitted against any W
    • 2. fraud, deceit, deception
    • 3. court has no discretion in admitting these
  79. Balancing test factors for criminal convictions
    • 1. recency of offense
    • 2. nature of prior offense
    • 3. similarity of prior offense to offense at hand
    • 4. extent/nature of W overall record
    • 5. importance of credibility of Ws
    • 6. importance of D testimony
  80. when can a criminal D offer evidence of a pertinent character trait (i.e. - honesty, peacefulness, etc)
    • always by either opinion or reputation evidence
    • only then can P attack it!!!
  81. Can conduct, but not convictions, that is relevant to one's character for truthfulness be inquired into on cross?
    yes but may not be proven by extrinsic evidence - you are stuck with W answer
  82. how to impeach a W
    • 1. commit the W to the testimony
    • 2. credit the prior statement
    • 3. confront the W with the inconsistency
  83. if are impeaching with prior consistent statement, must you show the W the prior statement?
    no but have to show the opposing counsel upon request
  84. is extrinsic evidence of prior inconsistent statement admissible?
    not unless the W has an opportunity to explain or deny it
  85. extrinsic evidence that contradicts must be relevant for something other than:
    • the mere fact of contradiction
    • the contradiction must be relevant and can't be a contradiction of a collateral matter
  86. tips for impeachment
    • elicit favorable info first
    • avoid attacking trivial matters
    • make sure hte jury knows that something important just took place
  87. 2 approaches to expert testimony
    • 1. don't try to understand it, just accept it
    • 2. teach the jury
  88. 6 key questions regarding experts
    • 1. do I need an expert?
    • 2. what type of expert do I need?
    • 3. what methods & principles will the expert apply to the problem?
    • 4. are those methods reliable?
    • 5. do we have sufficient facts & data to apply the methods to?
    • 6. did the expert apply the methods correctly?
  89. Things to avoid when using experts
    • 1. usurping the judge/jury's role
    • 2. opinion applying law to fact
    • 3. opinion as to what law applies
  90. Expert testimony must:
    • 1. come from qualified W
    • 2. deal with some scientific, technical, or other specialized knowledge
    • 3. testimony must assist the jury
    • 4. testimony must be ground upon reliable methods & principles
    • 5. testimony must be the product of accurate application of the reliable methods and principles
  91. Do I need an expert?
    • could be required by substantive law
    • helpful to the jury
  92. What type of expert do i need?
    • a good one!!
    • appropriate subject matter - science, tech, other specialized knowledge, FRE 704
    • qualifications (knowledge, skill, experience, training, education)
  93. what methods and principles apply? (EW)
    reliability standard
  94. are the principles and methods reliable? (EW)
    • accepted by the courts?
    • tested/accepted by relevant sci/tech discipline?
    • known/potential error rate?
    • reliable when used to answer questions raised in this case?
    • how reliable is the underlying evidence to support the existence of the fact?
  95. common stumbling blocks in application of EW
    • 1. impropr extrapolation
    • 2. reliance on ancedotal evidence
    • 3. reliance on temporal proximity
    • 4. disconnect b/t opinion and facts of case
    • 5. failure to rule out other causes
    • 6. insufficient factual or scientific foundation
  96. template for presenting EW
    • 1. intro
    • 2. tickler
    • 3. qualifications
    • 4. tender
    • 5. opinion
    • 6. basis of opinion
    • 7. prepare for cross/undermine opposing expert
  97. 3 major questions to ask yourself when preparing to cross an EW
    • 1. what facts/info/opinions does this expert have that are consistent with my theory of case?
    • 2. what facts/info/opinions does this expert have that are inconsistent with my opponent's theory of the case?
    • 3. what impeachment info is available on this W?
  98. When crossing an EW do:
    • 1. bring out areas of agreement with your expert
    • 2. bring out facts/opinions favorable to your case
    • 3. bring out facts/opinions unfavorable to opponent's case
    • 4. challenge factual assumptions
    • 5. undermine reliability
    • 6. impeach
  99. when crossing EW don't:
    • 1. argue over the correctness of an opinion
    • 2. expect an expert to change their opinion

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