Unsinking the Ship Tactics for the Client Who Talked Joe Hoelscher Hoelscher Law Office

Why We Never Talk To Cops

Overview I.General Strategy II.Voir Dire III.Cross of Interrogator IV.Closing Argument

General Strategies 1.The Ostrich: Ignore it and hope the jury does, too 2.The Frontal Assault: Aren’t you a bad cop?! 3.Flanking Maneuver A.Independent expert B.Using the detective as expert

Picking Your Strategy Discovery Statutes – client statement, recordings, forensic interviews Suppression - Miranda, 404, 609, 403 Know the interrogation procedures – admission vs. confession

Using the Detective as Expert: Voir Dire Begin Linguistic Programming Get the Venire to share stories about getting put on the spot Hunt for “experts,” such as counselors, teachers, military, law enforcement If applicable, emphasize vulnerability of some witnesses (kids, special needs, elderly) and get stories What would make you suspicious of a questioner? “Lawyer tricks”

Linguistic Programming Choose code words or phrases likely to be used by opposition in front of jury “Victim” “Even prostitutes deserve justice” “interview room” Re-Frame those words “Accuser” “My client deserves justice” “The Box” Make the venire do the work – ask for stories, roll the answers, use visuals (TV, slides)

Linguistic Programming Repeat your code words – opening, objections, cross, closing argument Make the other team use them, too Witnesses Prosecutors Let the other team be mad – make them object Repeat, Repeat, REPEAT

Use Stories As Shorthand Anyone here ever agree to something they knew was incorrect just to avoid any more argument? How many people remember “When Kids Say The Darndest Things”? Anyone have any stories like that? Anyone ever witness someone being bullied? Tell me about a time that you saw someone being verbally bullied. What’s the worst job interview experience we’ve had?

Detective as Expert: Cross Examination Get a transcript of the recording Get clips for each time client sticks to his guns Start NICE and nail down whatever positives you have Ask Detective open-ended questions about signs of deception (remember these for later)

Detective as Expert: Cross Examination Expose their tactics – lying, misinterpretation, contradictions with testimony, threats, etc. Point out that they intend to manipulate the “subject” – make the cop admit it Use the cop to admit that his manipulation doesn’t always get the truth (People do lie to you?) Cop has no way to check his reliability (but he’ll claim it’s near perfect) 09/the-interview /the-interview-7

Reid Technique 1.Direct Confrontation 2.Deflection 3.Dominance 4.Turn Objections Into Justifications 5.Expressing Empathy 6.Offer Alternative Themes 7.Force the Alternative Question 8.Repetition 9.Documentation

Beating Reid 1.Use Detective’s Own Non-Verbals to Impeach Process (Mimicking to emphasize) 2.Use Code Words to Undermine (“Accuser,” “Box”) 3.Use Your Transcript – Confront the Expert 4.If you need a hypothetical, use a story from voir dire as the template 5.Incorporate into Reid Technique and follow the steps 6.Admission vs. Confession?

Closing Argument Use those clips of your guy denying Heavily use code words/phrases, repeat definitions briefly to reinforce Pre-empt State’s reliance on confession by tying Detective to whatever traits they will harp on from video (non-verbals) “When they say x, you think y.” Repeat Go Back to Voir Dire, especially the stories

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