Articles Posted in Trial-Craft(c)

This is an academic book written in a very accessible style with limited jargon and lots of information as to what advocacy lore is supported (and what is not supported) by the research literature. The book covers a wide variety of topics: attorney demeanor, attorney verbal communication as well as paralinguistic and kinesic communications (all are defined), the attorney-client relationship and attorney storytelling.

The authors say the book was written to document which aspects of trial advocacy lore are actually supported by the literature. They comment that:

Trial commentators are [typically] relying on ‘pop’ psychology and seldom using social and behavioral scientific research as the basis for their proposed strategies.

I have for some time been challenging the limitation on the defense opportunity to get depositions.

The usual response is that a deposition isn’t for “good cause” because, according to the Discussion under R.C.M. 704, the witness “will be available at trial.”  I argue that R.C.M. 704 and the discussion are not procedure authorized by the President consistent with his Article 36, UCMJ, powers, but are substantive.  If it is substance, then it is beyond the Article 36 power.

Here is an interesting article on the federal rules which may help with my argument, we’ll see.

The Inspector Rutledge detective stories are a favorite of mine.  To quote an Amazon review:

[T]he books are set in the period just after the First World War, and Inspector Rutledge is a veteran of said conflict. Even more unique, he’s haunted by the ghost of one of his subordinates, a corporal whom Rutledge had to shoot and kill after the man panicked and tried to run away during a battle. The dead man doesn’t blame Rutledge for the incident, not exactly anyway, and serves as a sort of alter ego for Rutledge. You’re never entirely certain whether Hamish MacLeod’s ghost is really there, or merely a figment of Rutledge’s imagination, given that he was horribly scarred psychologically by the war.

Hamish talks to the inspector and is often quicker to spot a problem, an inconsistency, or a wrong – “b’ware” he’ll say, or sometimes just “’ware.”

From time to time counsel want to offer documents which have objectionable information in them.  There is an objection, and as often happens the court encourages or orders the objectionable parts be redacted.  My here pointer relates to how the redaction is done – it must be done carefully.  I was reminded of this general point by SCOTUSBlog’s Argument Preview of Greene v. FisherGreene is a case about Bruton (confrontation) issues and is not relevant to current military practice; it has been many years since the military has done a joint trial.  What is relevant for us in practice is the redaction issue.  Here are some relevant points from Rory Little’s preview.

The trial judge, however, denied severance and ordered instead – and not inconsistently with the law at the time – that the codefendants’ statements be “redacted” to omit any mention of Greene by name.  The government complied but – and again, not inconsistently with the law at that time – replaced Greene’s name at certain points with the word “blank” or similar symbols, making it clear that redaction of someone’s name had occurred.

Thinking on notions of perception and implication and common sense, how would a jury interpret that document, or any document with redactions.  Thinking on human behavior, and regardless of any limiting instruction from the judge, isn’t a jury going to try and figure out what’s redacted.

Evan Schaeffer has posted an interesting tip, reminder, on his Trial Practice Tips Weblog.  There are two requirements for success in exposing the liar.

First, you must be certain that you can establish that the witness has a "clear-cut motive to fabricate that the jury will understand";

Second,  you must be certain that you have at least one "clean substantive line of cross-examination" during which you can establish that the witness probably lied.

On 23 September 2010 USA Today published a front page piece about federal prosecutors.

Federal prosecutors are supposed to seek justice, not merely score convictions. But a USA TODAY investigation found that prosecutors repeatedly have violated that duty in courtrooms across the nation. The abuses have put innocent people in prison, set guilty people free and cost taxpayers millions of dollars in legal fees and sanctions.

USA Today has an opinion piece in today’s paper which is a rebuttal.

Here is a training video and handouts from NACDL.  This may be helpful with your junior enlisted court-martial clients who are foreign nationals.

In Padilla v. Kentucky, the Supreme Court held that defense lawyers must affirmatively and correctly advise their clients about the immigration consequences of entering a plea and failure to do so constitutes ineffective assistance of counsel. NACDL, in collaboration with the Defending Immigrants Partnership, will present a free live online training to discuss defense counsel’s duty under Padilla and related issues. Expert faculty analyze the Padilla decision, outline the steps defense counsel must take to provide effective assistance of counsel to their non-citizen clients, and provide essential instruction[.]

In the July Army Lawyer Judge McDonald has some comments based on his first year on the bench.  (I have noted over the years that it takes most judges about a year to get their relative bearing.)   I think we can all echo his comments and find a myriad of examples from our own and other cases.  What I wanted to comment on though was something in the section about keeping track.  If this is not what Judge McDonald does in trial or had not meant to convey then I’ll be the first to apologize, but . . .

I have presided over more than a few judge-alone cases where I have asked more questions than the trial counsel, including asking witnesses about elements that were not covered by the Government.

At page 39 (emphasis added).

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