Demystifying the Courtroom Experience Why Pre-trial Prep is Important!

1. Demystifying the Courtroom ExperienceWhy Pre-trial Prep is Important!

3. Pre-Trial Motion Hearings First Appearance Bond hearings Preliminary Hearing Motions to Suppress Evidence Statements Identification Judge - No Jury True Purpose Legal issue of hearing Actual Purpose Lay foundation for trial Test witness Gain discovery Trial Testimony Direct Cross Re-Direct Jury or Judge Same facts Different delivery Dual Purposes State: Establish facts Defense: Establish facts, confuse facts, lay record for appeal. Types of In-Court Appearances

4. De-Mystifying the Computer Case • Computer cases similar to “regular” cases. • Out of court procedure • Some differences • Specialized knowledge important • In court procedure • Generally no differences • Law the same • Presentation the same • Computer knowledge • PO needs / helpful to have • DA needs / PO may have to educate • Judge / PO & DA may have to educate

5. Motion to Suppress the Evidence Hearing • Basic overview • Limited motion to determine admissibility of evidence obtained in investigation • Pre-trial or during trial • Outside presence of jury if during trial • May be combined with other pre-trial hearings • Evidentiary rules (hearsay) apply • Facts presented through warrant and / or by testimony • Judge rules on facts and law • Possibly limited avenue of appeal • Outcome often determines case • Especially true in computer cases

6. Motion with warrant: Burden on defense Your search is presumed good Evidence very likely to be admissible Attack limited to “four-corners” Investigator role limited (and easier) May not be called as witness (although likely will) Defense will lose True purpose Lock down testimony Discovery Test witness Preserve for appeal Preparation important Motions without warrant: Burden on prosecution Your search is presumed no good Admissibility of evidence uncertain Full investigation open to attack Police officer role expanded (and more difficult) Will be called as witness Scope of motion hearing much broader Must find and fit PC and 4th exception True purpose to win hearing State: Ruling truly at issue Defense: Suppress plus all other Preparation (even more) crucial Warrant vs. No-Warrant

7. Preparation:Success in the Courtroom begins outside the Courtroom • Prosecutors do not lose cases! • Evidence, investigators, witnesses, juries and judges lose cases. • Demand the time you and your case deserves! • Don’t take “no,” “later,” “at hearing,” for an answer • Go over testimony, problems, objections • Bring all documents • Don’t assume DA knows; Expect to educate him/her. • Pre-supposes YOU know case • Facts • Chronology • Report • Evidence • Documents • “Behind-the-scenes”

8. Testimony must be Relevant • "Relevant Evidence" means evidence having any tendency to make the existence of any fact that is of consequence to the determination of the action more probable or less probable than it would be without the evidence. • Rule 401. Mississippi Rules of Evidence • Rule 401 makes no distinction between relevancy and materiality. The concept of materiality is merged into the concept of relevancy and retains no independent viability. • Evidence is relevant if it is likely to affect the probability of a fact of consequence in the case. If the evidence has any probative value at all, the rule favors its admission. • Evidence to prove a collateral fact is relevant if the collateral fact has a tendency to prove or disprove an issue in the case. • Lay or expert witness

9. Request a meeting CV Forensic report Be prepared to educate Insert picture Subpoena

10. Expert Testimony • If scientific, technical or other specialized knowledge will assist the trier of fact to understand the evidence or to determine a fact in issue, a witness qualified as an expert by knowledge, skill, experience, training or education, may testify thereto in the form of an opinion or otherwise. • Federal Rule of Evidence 702

11. Expert Testimony • Direct involvement in the case, offer testimony about findings and interpretations • Provide information about case, offer opinion about the information. • Used to educate a jury about the technical, behavioral or scientific issues without any specific information about the case, commenting on hypothetical.

12. Lay vs. Expert Witnesses • Lay witnesses testify as to the facts they personally know. • See • Taste • Touch • Smell • Hear • Experts offer an opinion about such facts. • YOU ARE INTERPRETING FINDINGS AND OFFERING AN OPINION, THEREFORE YOU ARE AN EXPERT WITNESS.

13. WhoWhatWhyWhereWhen

14. HOW? Are you going to get paid?

15. Professionals meet in person. Do not agree to multiple interviews or phone interviews. Never assume you are off the record. Always return defense attorney phone calls. Discuss remuneration Request to be put “on call”. Provide counsel with updated CV. Insert pictures Advice on Dealing with Attorneys

16. Key Role - Educate • Attorneys • Jury • Judge

17. Educate the Prosecutor About - Computers • Forensics • Structure/Acquisition of Storage Media • Authentication • Volume Analysis • File Systems • Data Recovery • Network Activity

18. Educate the AttorneysAbout - You • Education • Employment • Licensure or certifications • Membership in professional societies • Honors, awards, recognitions • Publications and Presentations • Grants • Skills • Consultation work • Experience

19. Ask to be educated • Court • Judge • Jury • Case Theory • Types of questions

20. ASK • When are you going to need me to testify? • What types of questions will you ask? • What types of questions do you anticipate opposing counsel to ask? • Will you need me to handle evidence? • Will you need me to draw or illustrate the injuries or my findings? • May I please be put on call?

21. Respect the Bench! Look at the attorney asking the question, answer to the jury. Speak frankly. Establish rapport with jury – look them in the eye, speak on their level, be interested in sharing your knowledge and expertise. Answer only the question asked. Court Room Etiquette

22. Direct Examination • Prosecutor – Burden of Proof • Open ended questions • State your name • Spell your last name for the record • What is your occupation? • Education/Credentialing • Did you…? • What did you…? • How did you…? • What did you find? • What is your opinion?

23. Cross Examination • Controlled questions, should be in response to direct, but in MS open cross. • Only five responses required: • Yes • No • I don’t recall • Please repeat the question.I don’t understand what you are asking. • I don’t know.

24. Potential Attacks

25. Fertile Ground for Cross Recollection Report missing information Inconsistencies Experience Credentials

26. Timely Tips

27. 10) Using Notes • Never read from notes unless absolutely necessary. • If you must read, announce that you are doing so and state the reason. (refreshing memory, need for specificity) • The defense will most likely have a right to see the notes at that time.

28. Arguing with the defense attorney She/he has every right to question you and the prosecutor will object if the question is inappropriate. If you lose your temper… Lose credibility Focus shifts to you vs the evidence GOAT picture 9) Arguing with the other side

29. If crossed with article, book, etc, ask to see it, read it and make sure that the attorney is not misinterpreting the document or a passage out of context. Bob Block picture… story 8) Pay Attention

30. Excuse me, will you please repeat the question? I did not understand, can you re-phrase the question? I don’t understand. What you are asking? 7) Answering with a Question

31. 6) Guessing • picture

32. 5) Knowing Your Limits Never give an opinion about things in which you are not trained.

33. 4) Babbling • Answer the question that is asked and then stop. Especially on cross examination. • Don’t volunteer information not called for by the question you are asked.

34. 3) Joking Avoid joking, wisecracks, and condescending comments or inflections. A trial is a serious matter. Levity may be appropriate in limited situations. It is the exception, not the norm.

35. 2) Failing to Understand • Understand the question before you attempt to answer. You can’t possibly give a truthful and accurate answer if you don’t understand the question. • Be aware for questions with double meaning and questions that assume that you have testified to something that you haven’t.

36. Tell the truth and ONLY the truth. If asked whether you have talked to the prosecutor, admit it freely. If asked if you have been paid to testify here today, admit it freely. Abe Lincoln 1) Always Be Honest

37. Attributes of an Effective Witness • Professional Demeanor • Unbiased • Calm, poised • Narrative, smoothly flowing statements. • Credible • A credible witness is one who is: • Entitled to confidence • Seen as trustworthy • Makes Eye Contact

38. Maxim’s and Advice • Admit Deny • Confront the Beast • Challenges to experience • Say what you believe, believe in what you say.

39. Final Note • Incompetent and Indifferent Attorneys • Major obstacle in testifying • Not smart enough to ask the right questions • Think twice about agreeing to accept a consultation for an indifferent and incompetent attorney. • Hired Gun/Whore for Cash – • Issue of Integrity

40. Elizabeth Carroll Hocker, JDHans Sinha, JD EHocker@ped.umsmed.edu 601.815.0117 hsinha@olemiss.edu