ANATOMY OF A TRIAL May 28, 2013 Chris Jackson

Anatomy of a Trial Background and Agenda

Elements of a Legal Case Accusations/Claims –Facts – what happened? –Legal claims – what law did it violate and how? Proof –Testimony –Documents and physical evidence introduced by testimony –Burdens of proof – in civil case by preponderance, in criminal case beyond a reasonable doubt Arguments –Openings and closings – explaining how facts support your client’s story – or how they don’t support your adversary’s Verdict/Judgment

Trial Stories –Plaintiff or prosecutor always tells story – defendant usually does. –Competing theories – How convincing is prosecutor’s story? Whose story is true? –Plausible – consistent with facts that are undisputed or supported by evidence, consistent with common sense –Offered as best/only explanation of evidence –Familiar –Sympathetic

Cast of Characters Plaintiff/Prosecution –Asserts claims in civil case (complaint). –Brings charges in criminal case (indictment) Defendant –Responds to claims and allegations. Judge –In charge of trial, instructs the jury on the law – also decides what evidence the jury can hear. Jury –Decides factual issues (what happened), neutral, must base verdict only on evidence presented. –In criminal case in NJ 12 jurors, unanimous verdict required. Civil case can be as few as 6 jurors.

Cast of Characters Attorneys –Make arguments – opening and closing – examine witnesses – make arguments to judge on legal issues (e.g. instructions, evidentiary issues). Witnesses –Fact witnesses with personal knowledge – have to testify only about what they know personally. –Experts can testify to opinion, give technical background.

State of NJ v. Deborah Striker Undisputed facts : –Vic Payne took his 11 year old daughter Anna to a Taylor Swift concert. –Paid more than $300 each for some of the best seats in the arena. –Seats on aisle, first level of stadium seating, 5 rows back from floor. –Two rows In front, Deb Striker (also on aisle) with her 9-year old Beth – holding up a sign. –Obscures Vic’s view and Anna’s – even after several requests to hold sign lower. –Vic goes down and confronts Deb.

State of NJ v. Deborah Striker Undisputed facts : –Altercation between Vic and Deb – Vic: “I paid for these seats and we’re going to see the concert.” Dave: “She worked for a week on that sign. They are all over the arena. It’s part of the concert. Go back and sit down.” Vic: “I can see why you’re kid’s such an inconsiderate brat. With a mother like you what would you expect.” –Deb pushes Vic, and Vic falls down arena steps – broken arm and concussion. –Vic had been drinking at the the concert. Deb had not. –When he picked up Anna to bring her to concert, Vic argued with ex-wife, who has custody of Anna.

State of NJ v. Deborah Striker Disputed facts: –Exact position of Vic when pushed –Force with which Deb pushed Vic –Whether Vic was pushed down steps or regained balance, then stumbled –Whether Deb intended to push Vic down steps and cause harm

State of NJ v. Deborah Striker Witnesses: –Deb –Vic –Deb’s husband Byron Beth’s father, sitting next to Beth three seats from aisle –Vic’s sister Whitney Had been sitting next to Anna two rows back Charge: Assault with intent to cause bodily harm

Stages of Trial Openings –First real chance for attorney to speak to jury – say what he/she expects to prove, what evidence will show, introduce cast of witnesses, tell client’s story Direct examinations –Cooperating witnesses, non-leading questions. Who, what, when, where, how? Questions that don’t suggest answer –Introducing exhibits: Copy to adversary, identify, have witness authenticate, ask court for permission to enter exhibit in evidence. –Demonstratives -- diagrams, maps, charts, timelines. Cross examination –Repair or limit damage (emphasizing what the witness did not or cannot say). –Get facts to support own case or undermine adversary. –Discredit direct testimony by pointing out things that don’t make sense (either within testimony or with other facts). –Discredit witness or other adverse witnesses. –Key to effective cross is to get as much as you can without any arguments.

Cross Examination Possible areas of cross –Limits on personal knowledge or inability to observe –Inconsistency with other facts that are undisputed or with prior testimony –Inconsistency with common sense, common knowledge, undisputed or indisputable facts –Bias, personal interest –Prior record of deception/untruthfulness Form of cross examination –Leading questions –Short simple questions that don’t call for and leave no room for explanations and that get witness to say “yes” a lot –Insist on real answer. Tactics of cross examination –Build a line of questioning. Box in witness. –Easy, non-controversial facts first, friendly tone –Details first, scattered circumstantial evidence –Use of documents and prior statements to impeach

Evidence and Objections Timing and form of objections –Judge decides what jury may hear. –Some objections before trial and some during trial –During trial must object promptly and usually state reasons. Relevance, hearsay, form of question, lack of personal knowledge, other more obscure objections like failure to disclose evidence ahead of time, privilege What is “relevant?” –Evidence is relevant if: –(a) it has any tendency to make a fact more or less probable than it would be without the evidence; and –(b) the fact is of consequence in determining the action. (Rule 401) When should relevant evidence be excluded as unfair? –The court may exclude relevant evidence if its probative value is substantially outweighed by a danger of one or more of the following: unfair prejudice, confusing the issues, misleading the jury, undue delay, wasting time, or needlessly presenting cumulative evidence. (Rule 403)

Evidence and Objections Rule Against Hearsay – The right to confront the witness –Out of court statement (no opportunity for cross examination) offered for truth of what’s asserted –Based on right (in 6th Amendment) to confront witnesses. Hearsay is attempt to introduce testimony from a witness who is not in court and can’t be cross examined. –Admissions by party admissible. If defendant made out of court statement admitting to conduct, not hearsay.

Evidence and Objections Form of Question –Leading, vague, calls for speculation, lack of personal knowledge –Ensure that witnesses testify to their own knowledge and nothing more. Character and History –Generally no use of evidence of character to prove conduct. Can’t try to convince jury that defendant committed crime because he is a criminal. –Defendant can present evidence of reputation for good character in defense. –Relevant? Unfair?

Closing Argument or Summation Showing how evidence presented supports case For plaintiff or prosecutor -- listing elements of crime or unlawful act as judge will explain them, then showing how facts brought out at trial match up with elements. Going back over key testimony and showing how it proves that defendant is guilty/liable. For defense -- pointing out what has not been proven, absence of particular pieces of evidence – also supplying alternative story or explanation if possible. Highlight evidence supporting any affirmative defenses.

Instructions or Jury Charge Final instructions on elements of crime/unlawful conduct. Key instructions – proposed and argued over by counsel.

Deliberations and Verdict Focus on evidence presented Role of juror background, history Criminal cases in NJ (and most other places) require unanimous verdict (either way).

Fundamental Rights 6th Amendment to Constitution In all criminal prosecutions, the accused shall enjoy the right to a speedy and public trial, by an impartial jury of the State and district wherein the crime shall have been committed, which district shall have been previously ascertained by law, and to be informed of the nature and cause of the accusation; to be confronted with the witnesses against him; to have compulsory process for obtaining witnesses in his favor, and to have the Assistance of Counsel for his defence.