Attorneys, Witnesses, and Rules of Court

1. Attorneys, Witnesses, and Rules of Court

2. Attorneys • A person admitted to practice law in at least one jurisdiction and authorized to perform criminal and civil legal functions on behalf of clients.

3. Trial Attorneys • AKA Litigators - Specialize in court appearances. • Most work takes place outside of the courtroom - research, interviewing witnesses, preparation. • Civil litigators – act as client’s advocate (their legal voice) in civil trials • Either for the plaintiff or the defendant • Criminal litigators – defendant’s attorney has a duty to do everything ethically possible to secure the release and acquittal of their client. • Only for the defendant. • The Prosecutor works for the state/government

4. When Do You Need an Attorney? • Litigators • Bringing Civil Suits • Defending Criminal Charges • Lawyer/Attorney • Family Status Change (Divorce, Adoption, etc) • Personal Injury Accident • Property Damage Assessments • Creating a Will • Buying and Selling a House • Creating a Business

5. Finding an Attorney • Flat fee or by the hour? • Is a retainer required? • Retainer –a down payment on the total fee • Will a contingency fee apply? • Contingency fee – the fee paid to the lawyer only if the case is won ( usually about 1/3 of the amount awarded) • Contingency is usually used for tort cases involving personal injury  possibility for a lot of $$$ in damages • The client pays nothing except court expenses if the case is lost.

6. Working with an Attorney • Attorney-client privilege – the discussions between the client and attorney are private and confidential • Facilitates trust through full disclosure with attorney so they can do their best to represent the client • Not applicable if the client reveals that they plan to hurt themselves or others • Attorney gives legal advice – CLIENT makes final decision

7. Attorney Ethics • Code of Professional Responsibility - standard of conduct for lawyers/attorneys enforced by the state bar association. • North Carolina State Bar - Rules

8. Attorney Ethics • If a lawyer violates standards of conduct, he/she may be reprimanded, suspended, or disbarred • Disbarred – lawyer loses license to practice law • If a client feels that they have been misrepresented by their attorney, they can appeal the verdict/judgement and sue the attorney for damages due to legal malpractice. • Legal Malpractice – cases in which clients sue their attorney for serious errors that resulted in injury or loss.

9. Attorneys in Criminal Cases Prosecution Defense

10. Prosecuting Attorney • The District Attorney (DA) -  elected public official who represents the state/government in the prosecution of all criminal matters • has Assistant District Attorneys (ADAs) that help. • NC District Attorneys • 1 per state district • Elected to 4 year terms • Represents NC state in District and Superior Courts • US District Attorneys • 1 per US district • Apply with DOJ for an open position • Works for US Attorney General • Works in Federal District Courts

11. Prosecuting Attorney • Decides… • Whether to press charges • Which charges to file • May decide if certain decisions will benefit a person or society from a certain course of action. • A first time drug offender may be placed in a rehabilitation program instead of being prosecuted in the criminal justice program.

12. Defense Attorney • Represents the accused and convicted persons in their dealings with the criminal justice system • Makes sure the prosecution proves its case in court or has substantial evidence of guilt before a guilty plea is made • Advises the defendant and protects their constitutional rights. • Often gives psychological support to the defendant and his/her family.

13. Public Defenders • Full time government employee (public sector) • A specialist in criminal law who provides counsel to indigents - one without sufficient income to afford a lawyer for defense in a criminal case. • Public defender system is used in the majority of counties in all 50 states. Wake Co. (District 10) Public Defenders NC Office of Indigent Defense Services

14. Public Defenders Disadvantages Familiarity with judges Familiarity with police officers – know which are good/bad witnesses Specialized in certain cases – DWI, domestic violence, drug crimes, etc Efficient at evaluating plea bargains Low-paid Overloaded with cases Little time for each case Lack office equipment and research access Can’t afford to hire private investigators All these factors could disservice the defendant Advantages

15. Rules of Evidence in Court

16. Steps in a Basic Trial

17. Direct Examination • The primary questioning of a witness during a trial that is conducted by the side for which that person is acting as a witness. • No leading questions – a question that suggests or implies its own answer or can only be answered by yes or no. • You were at KC’s bar on the night of July 15, correct? • Were you at KC's bar on the night of July 15? • Should ask more open-ended questions to build creditability of witness. • Where were you on the night of July 15?

18. Cross Examination • The interrogation of a witness by the sideopposed to the one who called the witness • May ask leading questions to elicit testimony which the witness might be reluctant to volunteer in an effort to discredit the witness.

19. Common Objections • A formal attestation or declaration of disapproval concerning a specific point of law or procedure during the course of a trial • Irrelevant/Relevance- the attorney’s question is not about the issues in the trial • Hearsay – the witness does not know the answer personally but heard it from another • Calls for a conclusion/Opinion - the question asks for an opinion rather than facts • Leading– during direct examination, the attorney’s question suggests a witness’s answer • Law and Order Courtroom Scene • Write down 1 non-leading question and who is asking to whom. • Write down 1 leading question and who is asking it to whom.

20. Witnesses

21. The “Expert” Witness • A witness, who by virtue of education, training, skill, or experience, is believed to have expertise and specialized knowledge in a particular field/subject. • Medical doctor • Medical examiner • Forensic specialist • Psychologist

22. The “Expert” Witness • Can be hired by the defense or the prosecution. • Experts such as medical examiners typically work for the state and will therefore testify only on behalf of the prosecution.

23. The “Expert” Witness • Expert witnesses provide their “expert opinions,” which are considered more credible than the average witness’s testimony. • Expert opinions are based in education, training, skill, and experience in the field. • Expert witnesses can be influential if they can provide their testimony in language that is understandable by the average person/juror. • Don’t use expert “jargon”

24. Perjury • the willful act of swearing a false oath or of falsifying an affirmation to tell the truth, whether oral or written. • lying under oath • FELONY!

25. Perjury - Example • 1998 – Bill Clinton was charged with perjury before a grand jury during his impeachment proceeding • lying about sexual relations with Monica Lewinski • Impeachment proceedings are conducted like a trial, with a Supreme Court Justice presiding as judge. The Prosecution and Defense present arguments. • The House voted to impeach Clinton, however the Senate must follow through with the conviction. • The Senate voted to acquit Clinton of all charges (including perjury) and to not approve the impeachment.

26. Perjury – Example • 2001 - rapper Lil' Kim witnessed a gunfight outside New York radio station  over 2 dozen shots fired • When a federal grand jury called Lil' Kim to testify, she claimed not to have noticed her manager and another member of her entourage at the scene. • Security camera footage that showed one of the men in question actually holding a door open for Kim. • 2005 - convicted of 3 counts of perjury and 1 of conspiracy in connection to her fabricated testimony. • Sentenced to 1year and a day in prison and a $5,000 fine. • Served 10 months of the sentence at the Federal Detention Center in Philadelphia before being released.

27. Tips for Being a “Good” Witness • Tell the TRUTH • Think before you speak • Just talk about the facts, unless specifically asked for an opinion • If you don’t remember, then say “I don’t remember” • If you don’t know, than say “I don’t know” • Do not volunteer information • Answer in complete sentences • When talking about conversation…Be certain that everyone understands when you are paraphrasing or when you are quoting. • Never argue or express anger. • Avoid humor and sarcasm – interpreted differently by different people. • Stop speaking if you hear “objection!” • There is no such thing as “off the record.”

28. Problems with Witnesses • Traumatic events and strong emotions can impair memory. • Time can distort memory. • The phrasing of questions in interrogations can falsely reconstruct memories. • Cross-racial identification is generally unreliable. • What to look for as a witness • The Problem with Eyewitnesses