“Holy #$%^ I Cannot Believe I did that”

1. “Holy #$%^ I Cannot Believe I did that” • What NOT to overlook in trial • How to do it better

2. Ten Things I Have DoneYou shouldn’t! • Pick a Juror with a toupee. • Not go to the crime scene. • Talk about case at lunch. Can you say mistrial! • Think the case is going to settle. It won’t • Fail to catalog evidence for easy access.

3. 10 Things I wish I didn’t do • Failed to go to the courtroom before trial. • Spoke with a witness alone. • Went without a significant knowledge of my tool box. • Ever walked by a bathroom during trial. Any bathroom. ANY. Really. ANY. • Lost sight of the fact that I have never convicted anyone nor have I acquitted anyone.

4. My Trial Tips • Five P’s: Prepare, Prepare, Prepare, Prepare, Pee • Know the File • Break down ALL statements. • Review ALL evidence with Police. • Follow up ALL unanswered questions.

5. Crime Scene • If possible with v/w AND investigator • Can Wit See/Hear what they said they did • Any pictures don’t have but want • Adds credibility with jurors • Puts adverse wits on notice you’ve done your homework

6. Organize • Keep evidence log, items, foundation, admitted • Witness List • All statements • Have multiple copies • Practice Electronics

7. Go to the courtroom • Learn ropes of clerk. Most important. • Learn ropes of judge. Secondary • Due diligence with other lawyers • Takes away nervousness

8. How to Convey to Jury • Electronic Evidence • Video • Photos • Real Evidence

11. Start with the End in Mind • Covey’s rule--huge for Trial Lawyer • Every question builds for Closing • Every piece of evidence for Closing • Your jurors won’t change their mind based on your closing--Arguing to give ammo to your best jurors • Revise/Add/Subtract/Quotes during trial

12. Tools of Trade • Rules of Evidence • Crawford • 801, 803, 804, 806 • 612, 613(b), 608, 609

13. Crawford • Declarant available and subject to cross-ex? No Crawford issue • Declarant unavailable but prior testimony subject to cross? No Crawford issue • Declarant unavailable, no cross? Depends • Testimonial-- • Crawford issue • Non-testimonial-- • No Crawford issue--Hearsay law governs

14. Crawford • Not for truth • Declarant appears for cross at trial • Unavailable but prior opportunity to cross • Forfeiture by wrongdoing • Not Testimonial

15. Nontestimonial • Casual remarks to acquaintance • Off hand, overheard remarks • Statements in furtherance of conspiracy • Most business records • Statements to govt where objective primary purpose is to meet ongoing emergency

16. Testimonial • Solemn declarations • Prior testimony at a preliminary hearing, grand jury, or at a former trial • Govt statements with eye toward trial • Police interrogations with no emergency/primary purpose is for use at trial

17. Primary Purpose Test • Describes past events—not as happening • Declarant not facing emergency • Statement formality: • Calm circumstances/no danger • At Station house • Series of questions • Recorded • Custody and miranda • Separation of declarant and suspect • Obvious substitute for live testimony

18. Crawford • Davis/Hammon • Bryant • Bullcoming • Melendez-Diaz • Williams

19. 801(d)(1) • Not hearsay if: • Declarant testifies at trial • A. statement is inconsistent and was at prior trial, hearing or under oath • B. statement was consistent • C. Statement was one of identification

20. Automatically Admissible? • No. • There may be other objections to the evidence...Personal knowledge, competency etc.

21. 801(d)(1)(A) PIS • Must comply with 613(b) • Declarant must testify, • For truth • Prior statement is inconsistent with (trial) testimony • Prior Statement under oath • Prior Statement at “proceeding” • N.B. No cross needed for prior statement • If prior statement not under oath, impeachment only

22. NOT UNDER OATH • If prior statement not under oath not for the truth of prior statement, only to impeach

23. Inconsistent? • 104(a) determination by court • “I don’t remember” • Genuine/Ploy

24. “I don’t remember” • Not necessarily inconsistent • Refresh recollection first 612 • Can use anything • Show document • Direct witness to the area have them read • Ask if it refreshes • If yes, move on

25. I don’t remember • If no, past recollection recorded 803(5)if you can • Statement fresh, • adopted as true • read into evidence • PROBLEM--what if wit says lying at time of exhibit

26. I don’t remember. • Go to the judge 104(a) • If ploy, now I don’t remember is inconsistent.

27. Q: A is the truth right • A: if yes—you win • If no—continue • Q: Did you speak to someone • Get out the circumstances • Especially all the reasons it is better than trial testimony • Identify the prior statement

28. Re-ask about A • Q: The truth is A, right? • A: If yes—you win • If maybe, or I don’t know, you probably won • If no—continue • Then read the Prior statement • Follow along while I read this • Did I read that correctly?

30. Prior Consistent • Used to re-hab witness • Because the statement was made closer in time, before lawyers and court system.

31. Prior Consistent Statement • PIS admitted to attack witness, or • Express or implied charge of fabrication or bias, and • Consistent statement was made before the PIS

32. Temporal Requirement • In case of recantation: • To teacher 5/11 Dad molested me • To cop 6/11 “dad did not molest me” • To mom 8/11“dad did molest me” • To cop 9/11 dad did not molest me • Trial 1/12“dad did molest me” • You impeach with first statement, PX testimony is NOT AMISSIBLE.

33. PCS • On cross, your witness is impeached • Ask when/where W talked to police • Establish the time frame and who W talked to • Talk about the interview • what was asked, that W told the truth etch • Then ask what they said

34. 801(d)(2) Party Opponent • Other side said it, we put it in • Does NOT have to be an admission • Does NOT have to be inculpatory • Does NOT have to be against interest • They said it, we use it. Period. • If they want to address it, they are 25 feet from the truth

35. Party Opponent • Defense cannot put their sob story on • Be careful not to open door

36. Questions and Answers • Defense may argue that questions by detective are not admissible. • Detective statements give context to the answers, should be admissible. • Defense may argue that D did not adopt statements by detective • A limiting instruction can cure any issue 105

37. Party Opponent • Defense says inadmissible character evidence in statement by detective again a 105 limiting • Defense says officer gives opinion on truth 105 limiting instruction

38. Adoptive Admission 801(d)(2)(B) • D is present when another says something. • D takes action which indicates adoption or • D remains silent in circumstances where one would naturally have denied; silence is acquiesence

39. Adoptive Admissions • (1) statement must have been heard • (2)statement must have been understood • (3)subject matter must have been within • hearer's knowledge • (4)no impediments to response (eg • confusion/injury after accident) • (5)statement must be such as would, if untrue, • call for a denial under the circumstances • (6)criminal: if accused in custody, can't use • silence against him; if pre-custody, okay

40. Prior ID • Evidence of any earlier ID of D • Whether or not W can ID at trial • Substantive evidence • If lineup/show up/photo ID • Must be fair—burden on you • Description is also admissible

41. Prior ID • Substantive Evidence if: • Id was made when crime fresh in memory and • Witness made ID and it was true opinion at time • Declarant MUST testify • Both witness and cop can testify to id. • Prior ID considered BETTER than id at trial • Trial too suggestive • Fear of retaliation for ID not present at time of prior ID • Fritz’ case Stoppleworth

42. U.S. v. Owens • Low Bar for competency • Prior Id • Past recollection recorded

43. Character • 608; 609 • Non-character, 404(b) • Never coming in

44. Impeachment • Reputation for dishonesty 608 • Prior convictions 609 • Bias, motive, interest • Conflict in evidence • Defect of witness (Owens)

45. 608 • Impeachment because wit/D lacks • Truthfulness

46. Admissibility • 4 Factors • Relevant 401, 404(a) • Form of evidence (reputation, opinion, specific instances) • 403

47. 608 • Opinion reputation only • Either side can initiate • Rebuttal only available after other side has attacked through opinion, rep • b Specific instances, court’s discretion on cross, of that witness, or another subscribing wit

48. 608 Cross • W may be asked about his own specific lies (no extrinsic evidence) • W may be asked about specific lies of the witness he is testifying for (no extrinsic evidence) • 403 balancing applies • Good faith basis for question • If 609 would exclude- then it will not be “back door” by 608

49. 609 • Prior conviction will be admitted against wit if subject to excess of 1 yr • 403 • 10 year rule • Prior conviction shall be admitted regardless of punishment if crimen falsi NO 403

50. 609 • Defendant • Prior will be admitted provided • Probative value outweighs prejudicial effect; reverse 403 • Idea is to allow D to testify • Have prior docs available if wit denies