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Monthly Archives: October 2013

Evidence Part 4: Excerpt from Federal Rules of Evidence with Objections

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federalRulesWithObjectionsTaken from Federal Rules of Evidence with Objections, Tenth Edition by Anthony J. Bocchino and David A. Sonenshein. © 2011 by the National Institute for Trial Advocacy.

Impeachment
Prior Convictions
(Criminal Cases)

Objections

[Where offered against any witness other than the criminal defendant] I object. The conviction offered to impeach is neither for a crime that carries a penalty of at least one year in prison or death nor for a crime of dishonesty or false statement. Even if the conviction offered to impeach is for a felony, the prejudicial effect to a party substantially outweighs the probative value of the conviction on the issue of the credibility of the witness.

• I object. The date of the proffered conviction and the witness’s release date from his sentence occurred more than ten years ago; and

» written notice has not been given; and/or

» the probative value of admitting the conviction on the issue of credibility does not substantially outweigh the prejudice to a party.

[Where offered against the criminal defendant] I object to the introduction of this conviction because the probative value of the proffered conviction on the issue of credibility does not outweigh the prejudice to the defendant.

Responses

[Where offered against any witness other than the criminal defendant] The proffered conviction is for a Rule 609(a)(1) crime, and its prejudicial effect to any party in the case does not substantially outweigh its probative value on the issue of the credibility of the witness.

[Where offered against the criminal defendant] The proffered conviction is for a Rule 609(a)(1) crime, and its probative value does outweigh the prejudicial effect to the defendant.

• The proffered conviction is for activity involving dishonesty or false statement.

• Though the proffered conviction and the witness’s release date occurred longer than ten years ago,

» written notice has been given; and

» the probative value of the conviction on the issue of the witness’s credibility substantially outweighs any purported prejudice.

Cross Reference to Federal Rule 609(a)–(e)

Explanation

As with the use of convictions for impeachment in civil cases, Rule 609 in criminal cases dispenses with any balancing of probative value against prejudice in the offer of a conviction for a crime of dishonesty or false statement. Thus, such convictions must be admitted against any witness, including a criminal defendant. Where, however, a criminal defendant would be impeached with a conviction for a crime that carries a penalty of at least one year in prison that does not involve dishonesty or false statement, Rule 609(a)(1)(B) requires the court to perform a balance that is different from Rule 403 balance and tilts away from admissibility. Such conviction will only be admitted against a criminal defendant where the court finds that the probative value of the conviction on the defendant’s credibility outweighs the prejudice to the defendant. The obvious prejudice to a criminal defendant lies in the jury’s inclination to find a defendant guilty of the crime charged because of his prior record. Arguably, the similarity between the charged offense and the prior conviction magnifies the prejudicial impact of the prior conviction because of the jury’s almost inevitable sense that one who once committed a particular sort of offense is likely to commit a similar offense again. Whatever the commonsense likelihood of such a notion, it is an impermissible inference for a fact finder to make.

The term “dishonest act or false statement” includes crimes that required proof or admission of an act of dishonesty or false statement to establish the elements of the crime by the witness who is being impeached.

According to the Advisory Note, “[o]rdinarily, the statutory elements of the crime will indicate whether it is one of dishonesty or false statement. Where the deceitful nature of the crime is not apparent from the statute and the face of judgment, . . . a proponent may offer information such as an indictment, a statement of admitted facts, or jury instructions” in order to demonstrate that proof of an act of dishonesty or false statement was required for conviction. A witness in a criminal case, other than the criminal defendant, is treated like a witness in a civil case for purposes of Rule 609(a), and impeachment of witnesses may be excluded on Rule 403 grounds.

This books is available in print and E-book formats.

Get a printed copy of Federal Rules of Evidence with Objections here.

Get the E-book for iTunes here.

Get your Kindle edition from Amazon here.

October 2013 Executive Director’s Letter: The Evidence on NITA Programs

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Karen M. Lockwood

Karen M. Lockwood

As we conclude “evidence month” on NITA’s blog, I turn the discussion from “how to use evidence” to evidence itself – evidence that working on your trial and deposition skills in NITA live programs brings better lawyering and better results.

Within two weeks after the National trial skills program in Boulder, we received an exuberant report from a young lawyer that she had won a difficult round in court by putting her new skills – and her new confidence – to use immediately. Springing from her work at NITA to a dispositive evidentiary hearing, she had handled evidence and argument with new authority, and with success. She won.

Just this week – three months later — we heard this praise from a lawyer who had stepped up his skills in that same July trial program: “Thanks in large part to what I learned and re-learned at the National Session, I got a defense verdict on Friday in a case where just about everyone said we could not win.”

Three points from two stories.

  1. NITA live programs are transformative. Lawyers know this as they depart on their last day, excited, proud, a bit surprised at how much range and control they have mastered. The point of these two stories is that “transformative” is the right word.
  2. The lessons and confidence learned at NITA take hold right away, and last through time. We work with the person to uncover the advocate and to use proper techniques. The lessons are not learned simply in the head, to be forgotten. They are learned also in the grit, the heart, and the muscle memory.
  3. Each level and age of lawyer finds this transformation. Seasoned lawyers “learn and re-learn”; younger lawyers learn at their level. Because we work with the person, we unwrap the next layers of the advocate and advance techniques for the individual’s level.

NITA live programs deliver this around the country. My two stories are from the National trial program. Our other trial programs and our deposition sessions work the same way, and see this kind of transformative learning.

I love these stories. I, like our program directors, team leaders, and broad national faculty, do these jobs because we love teaching together, and reap our rewards by marveling at the transformations.

Our advocate learners love it because it improves lawyering, improves results, and improves justice. Reach out to those who don’t know; tell them this is one of the most valuable things they can do for career, clients, and results.

“What a wonderful program. I am so glad I got to take part. The training and feedback were invaluable and the faculty and other attorneys were great. I wish I could jump into a jury trial right now to apply all the new skills I acquired!”

2012 Building Trial Skills: Western Participant

Karen_ShortSig

Karen M. Lockwood, Esq.
President & Executive Director
National Institute for Trial Advocacy

Evidence Part 4: Introducing Evidence at Trial

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NITA Faculty Michael Johnson talks about introducing evidence at a trial.

Best Advocacy Fix: The Ethics of Timing in the Preparation of a Witness

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Moss_FrederickWritten by guest blogger Fredrick Moss

A recent case came to me via my computer (f.k.a. “the wire”). Two lawyers were told by a prospective client that she had fallen on a badly cracked sidewalk while exiting a church. After signing her up as a client, the lawyers visited the alleged scene of the alleged fall. The sidewalk outside the church was not cracked or uneven. However, they noticed that the sidewalk across the street abutting a house was badly cracked. They met with the client and told her that if she fell on the walk in front of the church, she had no case. However, if she had fallen on the walk across the street, she had a good case against the homeowner. The client thought about it and changed her story: she was mistaken; she fell in front of the house, not the church. The lawyers then sued the homeowner and later concealed the client’s first described location of her fall from the lawyer they retained to try the case.

At their disciplinary hearing, one of the lawyers admitted that “the way [the client] came to allege that she fell where she fell was influenced by the way I explained the law to her.” To ensure that they would never engage in this kind of misconduct in the future, the lawyers promised to alter their intake process to ensure they gather all the facts from clients prior to explaining the law to them. Ultimately, the lawyers were found guilty of failing to ascertain the location of their client’s accident in a non-suggestive manner and of perpetrating a fraud on the court. They were suspended from practice for nine months. Matter of Rios, 2013 NY Slip Op. 03439 (May 14, 2013).

The lawyers’ conduct in Matter of Rios exemplifies a particular ethical issue in the preparation of witnesses that is hotly debated when I raise it at my NITA “Taking and Defending Depositions” program every June: Can or should a lawyer explain the relevant law and the legal significance of certain factual scenarios to a client before asking, “What happened?” The context of the discussion is the showing of an excerpt from the movie, Anatomy of a Murder, where Jimmy Stewart’s character, lawyer Paul Biegler, gives his client “the lecture.” Stewart’s client, in front of a dozen witnesses, shot a man whom he believed had raped his wife. Before asking his client to describe the incident, Stewart explains that he has no justification defense to murder. He then asks, “What’s your excuse?” After struggling to understand the concept of a legal excuse, the client finally suggests that he may have been crazy, and asks Biegler, “Am I getting warm?” Ultimately, the client pleads temporary insanity and (spoiler alert!) is acquitted.

When I suggest to the program’s participants and faculty that Jimmy Stewart’s character acted unethically, I am met with a host of protests: Biegler was duty-bound to explain the relevant law to the client; Biegler did not KNOW that his client was lying when he said he blacked out and could not remember the shooting, and as long as he does not KNOW this, Biegler was duty-bound to put on the client’s (only possible) defense.

But, as the Rios case demonstrates, these protests miss the point. The timing of Biegler’s explanation of the law to his client betrays its culpability. By consciously deciding (as shown in an earlier portion of the movie) NOT to ask, “What happened?” before explaining the law to the client, Biegler intentionally attempted to manipulate the answer with no regard for its truthfulness.

Rule 2.1(d) of the ABA’s Model Rules of Professional Conduct, which has been adopted by every state, prohibits a lawyer from “assist[ing] a client, in conduct that the lawyer knows is criminal or fraudulent.” Perjury is both. True, the rule also states that a lawyer “may discuss the legal consequences of any proposed course of conduct,” but this deals with future conduct, not “what happened.” Also, the rule allows a lawyer to counsel or assist a client “to make a good faith effort to determine the . . . application of the law.” But Stewart was not acting in “good faith” when he purposefully gave his client the opportunity and incentive to lie. As I put it to my NITA audience, if the quiz show emcee tells a contestant, “If you choose Door One or Three, you get no prize, but if you choose Door Two, you can win. Now which door do you choose?” can anyone argue with a straight face that the contestant was not manipulated? This is what Jimmy Stewart did; this is what the lawyers in Rios did. By not getting the facts before explaining the law, they influenced – improperly – their client’s testimony.

Rios, I think, proves that I am correct in condemning Paul Biegler’s conduct. Lawyers are not licensed to help clients distort the truth in order to win. As the Rios court viewed it, manipulating a client to tell falsehoods can inflict damage upon innocent opponents and perpetrate fraud upon the courts. As independent professionals and officers of the court, lawyers must be held to a higher standard of conduct than that of the unprincipled client. Otherwise, the lawyer is nothing but a tool – a tool of unscrupulous clients.

NITA Extends Sincere Thanks to Public Service Partners

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written by Daniel McHugh, NITA’s Director of Sales and Marketing

As the year begins to wind down, we would like to take a moment to thank a group of organizations, and all the people within, for their generous contributions to NITA’s most recent public service efforts. Without generosity like this, many of these programs would not be able to run. NITA is happy to work alongside its partners to fulfill the mission of training and mentoring all lawyers to be competent and ethical advocates.

June 2013: Ohio Public Service Teacher Training
Seventeen Ohio Legal Service attorneys attended the program, sponsored by the Ohio Bar Foundation. The facility and room space were donated to the program by the Ohio Judicial Center in Columbus.

September 2013: Basic Trial Skills, Washington, D.C. 
Sixteen Legal Service attorneys from the nation’s capital attended this program co-sponsored by the Washington, D.C. Bar Foundation and the Litigation Section of the D.C. Bar. In addition to the facility and room space, Crowell & Moring LLP also donated all meals for the program.

“Crowell & Moring was pleased to be able to support NITA through providing space meals for the training program that it provided for legal services attorneys. By training legal services attorneys to be better advocates, NITA advances the goal of providing equal access to justice for all individuals regardless of income, and we are proud to be a part of that effort.”

Susan M. Hoffman
Partner
Crowell & Moring LLP

October 2013: Teacher Training and Basic Trial Skills, Chicago
Most recently, two programs were completed in the Windy City: Teacher Training (sixteen participants) and Basic Trial Skills (forty participants) for Chicago-area Legal Service attorneys. Each program was sponsored by the Chicago Bar Foundation, while Skadden, Arps, Slate, Meagher & Flom LLP donated the facility, room space, meals, and logistical help during the program.

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Judge Matthew Williams, a NITA Advocacy Skills Program Director and a District Court Judge in Seattle, WA, had the rapt attention of the thirty-nine participants in the three-day Advocacy Skills Program.

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Judge Mark Drummond, who is a NITA Teacher Training Program Director and a Circuit Court Judge in the Eighth Judicial Circuit in Quincy, IL, provides closing remarks to the Teacher Training Program participants as the program comes to a close.

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Judge Matthew Williams, a NITA Advocacy Skills Program Director and a District Court Judge in Seattle, WA, makes a final point during the final session of the three-day Advocacy Skills Program.

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After two days of intensive training, fifteen Teacher Training Program participants are proud to become certified NITA Instructors (also pictured are NITA faculty and volunteers).

These programs would not be the same and, in fact, may not even be possible without these partnering organizations. It is with sincerity that we offer a special thank you from everyone here at NITA. If you would like to explore what opportunities may be available for your organization in partnering with NITA to conduct a public services program, contact Mary Commander at mcommander@nita.org or 303.953.6848.

NITA’s team of practicing lawyers, professors and judges from around the nation dedicates its efforts to the training and development of skilled and ethical legal advocates to improve the adversarial justice system. NITA's Goals are to:
  • Promote justice through effective and ethical advocacy.
  • Train and mentor lawyers to be competent and ethical advocates in pursuit of justice.
  • Develop and teach trial advocacy skills to support and promote the effective and fair administration of justice.
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