A CRIMINAL TRIAL NOTEBOOK 2ND EDITION - c.ymcdn.com · is an attempt to overcome fear by providing insightful immersion in both practical and, ... THE ANTIDOTE FOR FEAR 1 ... can

A CRIMINAL TRIAL NOTEBOOK

2ND EDITION

RAY KELLY, ESQ.

ATTORNEY AT LAW SUITE 1101

112 STATE STREET ALBANY, NEW YORK 12207

PREPARATION, PERSUASION AND SELF:

DEFENDING FELLOW HUMAN BEINGS

Copyright © 2002 by Raymond A. Kelly Jr.Copyright ©2009 - - 2 Editionnd

All rights reservedincluding the right of reproduction

in whole or in part in any form.

Request to republish all or part ofthe materials contained herein or

inquiries regarding orders should be addressed to:

Ray Kelly, Esq.Attorney at Law112 State Street

Suite 1005Albany, New York 12207

(518) 463-4569

DEDICATION

To

My wife, Mary Jo,

my son, Kyle,

my daughter, Devon

and

The thousands of human beings

who have taught me my own frailties and strengths.

The gift of growth.....

PREFACE

The privilege of defending fellow human beings ...

Client-centered representation - - Zealously, Within the Ambit of the Ethic.

Walking a mile in a fellow human being's moccasins.

What a tremendous challenge - calling upon the repertoire of the lawyer's faculties. The capacity for analysis. The mastery of detail. A sense of persuasion. An aura ofdrama. The ability to effectively convey a feeling, a mood, an idea, an emotion. The abilityto hear and feel the unarticulated response. The perceptiveness to feel, receive andtranslate the subtleties of an important courtroom moment to the very human citizens whowill decide the case. The strength to function in crisis. The ability to distill from a myriadof facts and principles the ultimate simplicities upon which the outcome will depend.

What a great way to a great life. Representing fellow human beings is wonderfullyrewarding when we become engaged with our clients on a human level. It is an art to apply"people sense."

For more than three (3) decades, the challenge and opportunity to have my facultiesand sensitivities grow have been thrust upon me. For too long, my law school trainingprevented me from discovering that the best lawyer you can be already lives within the bestperson you already are. Preparation, Persuasion and Self - A Criminal Trial Notebookis an attempt to overcome fear by providing insightful immersion in both practical and, moreimportantly, personal preparation for the challenge of defending fellow human beings.

Take risks.

Have courage.

Be fierce and unrelenting in the struggle - Justice is a Process, Not a Result.

PART I

YOU ARE THE

MOST POWERFUL

WITNESS

PREPARATION -- PERSUASION – AND YOU:

YOUR INNER SELF - THE GREATEST ASSET

1. Dare to be great - unlock the internal prisoner preventing you from persuasiveadvocacy.a. Your uniqueness - share the wondrous depth of you.b. Simplicity is key - no room for perfection.c. Go out on a limb.d. You are on your own.e. I can’t be you and you can’t be me.f. Trust yourself and your abilities - you are extremely capable.

2. The persuasive mind set - give yourself permission to persuade freely andpassionately even though the freedom to persuade was not permitted during yourchildhood. Persuasion is the ultimate challenge.

3. The gift of fear:a. Your fear - turn inward and confront the demons.b. Jurors' fear - turn them inward -- have them feel the fear of convicting

an innocent person.c. Every triumph is preceded by fear.d. Fear initiates breaking free.

4. Feeling/Passion:a. To feel we must take risks of pain - our pain.b. The risk of criticism.c. The risk of rejection.d. Why? The reward is to be alive, vibrant, communicative and

persuasive.e. Embrace the soul - argue from the heart. f. No exercise in persuasion has ever been effectively delivered by the

dead or those who imitate the dead.

5. Overcoming the perfection trap: a. Only the mediocre are always at their best.b. It’s okay to make mistakes.c. Prepare you - not the yellow legal pad.d. Think about what you're doing - not how you're doing.e. Focus is the theory - not you.f. The enemy to conquer is not our adversary’s argument - it’s the

mythical, unattainable vision of perfection within ourselves.g. Vast distinction between LOOKING GOOD vis-a-vis BEING

GOOD - must overcome our society which rewards not who we arebut how we appear. Is it really more important to look good than tobe good? Does the truly effective advocate give a damn what anyoneelse thinks other than the jurors?

6. When a "bad" verdict is returned remember: a. Defeat has a richness all its own.b. Out of every crisis comes the opportunity to be reborn.c. Failure isn’t falling down - it’s remaining there once you have fallen.d. There can be no real freedom without the freedom to fail.

7. As is our confidence, so is our capacity.

8. If you think you can’t, you never will. Discover the Clarence Darrow within you. Dare to be great. Dare to be you.

PREPARATION - THE ANTIDOTE FOR FEAR

1. Brainstorming.

2. Theory of the Case.

3. Thought Book.

4. Trial Notebook.

5. Pretrial development of a summation story-line (theory) streamlines voir dire,opening statement, direct-examination, cross-examination and summation.

6. Knowledge of your case includes:a. Time line.b. Witnesses.c. Facts.d. Emotions/Passion.e. Elements of each crime charged.f. Applicable law.g. Evidentiary issues.

7. Applied psychology involving every trial participant including:a. Fact witnesses.b. Cops.c. Prosecutor.d. Judge.e. Jurors - have the analogies you use in summation match the character/

background of your jurors especially your target jurors.

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-3-

BRAINSTORMING - TAMING THE DEMONS

1. Brainstorming session(s) - preferably with real people - no lawyers.

2. Let imaginations run wild.

3. No negative thoughts - nothing is too outrageous.

4. Be non-judgmental initially.

5. Come up with every possible:a. Fact interpretation.b. Theory.c. Thought.d. Defense.e. Investigative channel.f. Approach.g. Strategy.h. Analysis.i. Factual context.j. Perceptual context.k. Trial tactic.

6. Your mental process:a. Focus on why client is innocent.b. Focus on why client is not guilty.c. Find a winning argument.

7. Brainstorming answers "client is innocent because...."

8. Brainstorming answers "client is not guilty because...."

9. Arriving at theory of case:a. Learn/investigate facts.b. Informal discovery.c. Formal discovery.d. Study/re-enact witness statements.e. Go to the scene.f. Live the vignette.

10. Choose defense out of possibilities identified during brainstorming:a. Determine basic theory.b. Pinpoint major points supporting theory.

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c. Develop themes.d. Importance of common sense.e. Blunt the prosecution case.f. Use human factor elements to create the psychology for the trial.

GETTING THE BUTTERFLIES TO FLY IN FORMATION:FROM BRAINSTORMING TO THEORY

1. Meet the burden of common sense - jurors' predictable response to common sense.

2. Facts Beyond Change (FBC's):a. Your theory must account for all the facts the jury will find to be fact

during deliberations.b. Bad facts:

i. Must be placed in context;ii. Neutralized;iii. Adopted; oriv. Explained.

c. If FBC cannot be credibly eliminated, the FBC must be integratedinto your case theory.

d. Meet the FBC head on - weave it into your case story.

3. Source of facts: records or witness:a. Does this fact help our theory?b. If not, can fact be disproved?c. If not, can fact be placed into proper context?d. If not, can source or basis of knowledge be undermined?

4. Can this fact explain or defuse prosecution spin?

5. Can facts be converted into neutrals or positives?

6. Identifying the dominant emotion:a. When brainstorming, what emotions were felt or communicated?b. What facts make you feel good?c. What facts made the brainstorming team feel good?d. What aspect of the case makes you confident?e. Make these facts the critical facts of the case.f. Weave the emotion evoked by these facts the dominant emotion of

your case.g. Make the jurors feel this emotion

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BUILDING YOUR THEORY

Identify Probable Prosecution and Potential Defense Theories:

1. The theory of the case is the underlying theme to be presented to the jury reduced toa single word or extremely short sentencea. Sample prosecution theories:

i. Accused murdered victim to protect drug empire.ii Accused assaulted victim due to jealousy.iii. Accused stole to support drug habit.

2. Defense theory: Strategic Decision: Ascertain whether your goal is total acquittalvis-a-vis lesser included(s)?

3. Trial = a struggle to expose and corroborate at every opportunity the "THEORY OFDEFENSE". Your THEORY is:a. COHESIVE - no shotgun approach (i.e., my client wasn’t

there but if he/she was there he/she was merely present but ifhe/she wasn’t merely present he/she didn’t do it and if he/shedid do it he/she wasn’t in his/her right mind and if he/she wasin his/her right mind then he/she was acting under duress)

b. CONCISE - KISS principlec. CONGRUENT - factually and emotionally - you must be

able to deliver to the jurors, a mirror or fellow defenselawyers without laughing. If you can’t, the trial will be anagonizingly extended guilty plea.

4. Defense theories break down generally into two (2) general headings, i.e., "client didnot do it" or "client did it because..."a. "Client did not do it":

i. Mistaken I.D.ii. My twin brother/sister did itiii. Mere presence doctrineiv. Alibi - a.k.a., the "Timber Defense"v. SODDI - Some other dude done it

b. "Client did it because":i. Insanityii. Duressiii. Entrapmentiv. Self-defensev. Post-Traumatic Stress Disordervi. Battered woman/childvii. Child’s no sense of deathviii. Jury nullification

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Cerebration Regarding Potential Theories in the Case:

1. Honest assessment regarding theories:a. Identify the terrible fact(s) which won’t go away. You can’t run from

them. You must explain/minimize/put in context or you lose.b. Identify the terrible fact(s) which won’t go away for your adversary.

S/he can’t run from them and must explain, neutralize or minimizeotherwise your theory wins.

c. Identify the most damaging witness(es) who will point the finger ofaccusation in court.

d. Identify the most damaging facts - are these facts beyond change ormutable facts or facts which can be placed in true context?

e. Query: What does the jury have to believe in order to convict?f. Query: What does the jury have to believe in order to acquit?

2. Why such cerebration?a. Your theory must be feasible and neither offend common sense nor

controvert facts beyond change.b. Streamlines your investigation especially if limited resources, i.e.,

time and money.c. Helps butterflies fly in formation as you prepare for trial.

3. Why early development of the theory is the blue-print for success?a. Maximizes your strengths and minimizes weaknesses.b. Maximizes your adversary’s weaknesses and minimizes your

adversary’s strengths.c. Forces recognition and adaptation in the most favorable light of facts

beyond change.d. Forces development of your legal theory (i.e., accident) supported by

an emotional theory (i.e., "a tragedy" or "two victims").e. Transforms neutrals into rose-tinted positives.f. Gives direction to your investigation of:

i. the crime ii. the crime scene iii. the crime scene investigationiv. witness investigationv. neighborhood canvas for positive/negative knowledgevi. the police investigation of your citizen-accusedvii. pre-arrest police conduct involving your citizen-

accusedviii. arrest conduct related to your citizen-accusedix. post-arrest conduct including violations of the right to

counsel

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4. Why go through mental gymnastics?a. You must grasp what is logical and what is not.b. Your investigative plan is an on-going project.

i. With the "key" negatives about your case in mind, youneed to decide where to begin. For example, if theworst fact comes from the worst witness’ mouth, youmay want to bring your investigation here.

ii. Brainstorm about theories of the case constantly. Identify facts that are necessary to support your theoryand facts that will negate your theory. You may wantto investigate these first in order to save time.

iii. Brainstorm about theories that put seeminglyinnocuous facts at the centerpiece, no matter howinsignificant they may seem at first blush.

Advantages of a Theory of Defense

1. Pinpoints pre-trial motion practice.

2. "Theorizes" voir dire questions.

3. Functions as a "mini" opening statement.

4. Measures the prejudice of prosecutorial actions.

5. Places all witnesses in the defense context.

6. Creates chapters of cross-examination.

7. Reveals the appropriate attitude for cross-examining each witness.

8. Organizes presentation of the defense case.

9. Provides a checklist of essential information from both prosecution and defensewitnesses.

10. Request an appropriate "theory of defense" charge.

-8-

PERSUASION IN OPENING AND SUMMATION:THE ART OF STORYTELLING

1. What Is a Story? a. Simply, a story is a rendition of a sequence of events.b. A good story evokes feeling, emotion and empathetic reaction in the

listener-juror.c. A persuasive story has impact with its audience because of the

feelings it evokes rather than because of the cold reasoning or logicit demonstrates.

d. The persuasive story creates a memory in vivid and permanent imagesthrough the use of language which paints word pictures.

2. The Impenetrable Bond:a. Emotion - as king.b. Passion - as queen.c. Identification in the listener-juror established through emotion and

passion.d. Emotion/Passion as superior to reason/logic.

3. Fear:a. A most powerful emotion.b. Jurors’ universal fear - conviction of an innocent person.

4. Great Storytellers ...a. Know their audience.b. State their messages clearly.c. Touch their audience’s emotion and passion.d. Show their audience the appropriate course of action.e. Recognize conflict and crisis.f. Recognize preconceived notions/scripts in their audience.g. Overcome/neutralize the preconceptions of the audience.

5. Maestros of Persuasion....a. Empower their listeners.b. Understand what their listeners need.c. Fulfill the role of benevolent teacher/helper/guide.d. Humanize.e. Dramatize.f. Involve their listeners.g. Remain congruent in their verbal and non-verbal language.h. Use silence.i. Share the ultimate goal.

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Total Preparation - The Ultimate Prerequisite:

1. Test of a vocation is the love of the drudgery involved (Dostoevski’s "Before I wasa Genius, I was a Drudge").

2. Fear as the ultimate ally - preparation tames the demon (i.e., tension) and is the keyto getting the butterflies to fly in formation.

3. Shun idleness - it’s a rust that attaches to the most brilliant of metals.

4. We live in deeds, not years. Every jury selection, opening statement, cross-examination and summation is uniquely crafted by the persuasive advocate as anintegral part of the trial’s campaign of communication.

NO MIMICKING MEDIOCRITY:

1. Break free from the cocoons of convention (i.e., law school and those of similar ilk).

2. Arguments which appeal to judges and lawyers never appeal to jurors. Present yourarguments in a bar to normal, non-legal potential jurors and get their reactions.

3. No extemporaneous trial outbursts - recall the words of Sir Winston Churchill whenasked by a young cub reporter named Edward R. Murrow, "What is this room in theHouse of Commons to which only you have the key?" to which Sir Winston replied,"That is the place where I rehearse all of my extemporaneous remarks".

4. Don’t be blinded by your own brilliance! Your perception of you may very wellcontradict the jurors' perception of you. Be a juror, not a lawyer.

5. Examples of mediocrity:a. "What I say is not evidence" vis-a-vis you are speaking ex cathedra.b. Rehashing witness by witness.c. Thinking assault is persuasion.d. Shouting.e. Non-purposeful motion.f. Reading from a yellow pad.g. Smashing the podium.h. Incessant jingling of change in your pocket.i. Pointing your finger or pen at the jury.j. Incessant pacing.k. Non-purposeful lounging on the podium.l. Shuffling papers.m. Monotone language.n. Beating the same point to death in the same language.o. Filler language, e.g., "and so forth", "etc.", "in this case".p. Wandering aimlessly at the end of cross or summation.

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6. Other language pitfalls:a. Qualifiers such as "I will attempt to show", "I think", "Perhaps", "I

believe" or the worst "hopefully".b. Pronouns are not communication.c. Pronouns are not persuasion.d. Pronouns should be removed from your trial vocabulary.

OUR ULTIMATE CHALLENGE:

Each of us is unique. Our challenge and place within this criminal justice system is to find thatuniqueness and share it openly and unabashedly with the jury on behalf of every human being wedefend. Perhaps the best synopsis of who we are and what we do comes from the followingparagraph in Justice White's concurring opinion in Wade (388 U.S. at 256):

"Law enforcement officers have the obligation to convict the guiltyand to make sure they do not convict the innocent. They must bededicated to making the criminal trial a procedure for theascertainment of the true facts surrounding the commission of thecrime. To this extent, our so-called adversary system is not adversaryat all; nor should it be. But defense counsel has no comparableobligation to ascertain or present the truth. Our system assignshim a different mission. He must be and is interested in preventingthe conviction of the innocent, but, absent a voluntary plea of guilty,we must also insist that he defend his client whether he isinnocent or guilty. The State has the obligation to present theevidence. Defense counsel need present nothing, even if he knowswhat the truth is. He need not furnish any witnesses to the police,or reveal any confidences of his client, or furnish any otherinformation to help the prosecution's case. If he can confuse awitness, even a truthful one, or make him appear at adisadvantage, unsure or indecisive, that will be his normalcourse. Our interest in not convicting the innocent permits counselto put the State to its proof, to put the State's case in the worstpossible light, regardless of what he thinks or knows to be thetruth. Undoubtedly there are some limits which defense counselmust observe but more often than not, defense counsel will cross-examine a prosecution witness, and impeach him if he can, even if hethinks the witness is telling the truth, just as he will attempt to destroya witness who he thinks is lying. In this respect, as part of ourmodified adversary system and as part of the duty imposed on themost honorable defense counsel, we countenance or requireconduct which in many instances has little, if any, relation to thesearch for truth." (Wade, 388 U.S. at 256).

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And, more than a century ago, Daniel Webster said:

"Justice is the great concern of man on earth. It is the ligamentwhich holds civilized beings and civilized nations together. Wherever her temple stands and so long as it is duly honored, there is a foundation for social security, general happiness andthe improvement and progress of our race. And whoever laborson this edifice with usefulness and distinction, whoever clears itsfoundations, strengthens its pillars, adorns its entablatures, orcontributes to raise its lofty dome still higher in the skies,connects himself in name and fame and character to that whichis and must be as durable as the flame of human society."

This is both our heritage and our challenge. As criminal defense lawyers, werecognize that injustice anywhere is a threat to justice everywhere. We have cometo realize that where all think alike, no one thinks - the ultimate danger to freedom. Few of us will have the greatness (and the luck) to bend history itself in the likes ofClarence Darrow. But each of us, with each representation, can work to change asmall portion of events and, in the totality of our representations, will be written thehistory of our generation of trial lawyers. Each of us must continue our commitmentto police the police, control the prosecution and ensure that no human being everstands alone. Each of us is singularly unique. It is the duty of each of us to discoverour uniqueness and share it uncompromisingly with every jury on behalf of those weare privileged to serve.

Changing the World - - One Representation at a Time

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PART II

THE CRIMINAL TRIAL

NOTEBOOK

THE

ESSENTIAL

PERSUASION

PROCESS:

APPLYING

PSYCHOLOGY

TO THE

HOME TEAM

AND

AWAY TEAM

PARTICIPANTS

HOME TEAMNAME CONNECTION (ATTORNEY, ETC.) PHONE NUMBER(S) ADDRESS

AWAY TEAMNAME CONNECTION (ATTORNEY, ETC.) PHONE NUMBER(S) ADDRESS

DISCOVERY

As an estimable trial lawyer once stated,"I am never at ease when handling a case until

I have bounded it north, bounded it south,bounded it east and bounded it west."

Abraham Lincoln, 1858

GETTING THE FACTS

WHO:

CALLED 911/MADE INITIAL REPORT?

SAW /HEARD W HAT HAPPENED?

DISCOVERED THE CRIME?

ELSE W AS SOMEHOW INVOLVED IN THE CRIME?

HAD A MOTIVE TO COMMIT THE CRIME?

HAD A MOTIVE TO FRAME YOUR CLIENT?

W AS FIRST PERSON AT SCENE?

W AS FIRST COP AT SCENE?

W AS IN OVERALL CHARGE OF INVESTIGATION?

DID INITIAL CRIME SCENE PROCESSING?

CONDUCTED SEARCHES FOR PHYSICAL EVIDENCE?

CONDUCTED PRELIMINARY INVESTIGATION?

CONDUCTED FOLLOW UP INTERVIEW ING?

APPLIED FOR A SEARCH W ARRANT?

COMMUNICATED W ITH EYEW ITNESS JUST PRIOR TO ID?

TURNED SNITCH AND W HY?

WHERE:

IS THE "LEAD-LOG" AND "LEAD-LOG W ORKSHEET?

W AS EVIDENCE DISCOVERED?

W AS VIDEO SURVEILLANCE EQUIPMENT LOCATED?

W AS EVIDENCE/BODY SECRETED?

W AS THE SUSPECT SEEN AND DOING W HAT?

W AS THE SUSPECT STAYING/LIVING AND W ITH W HOM?

W ERE THE W ITNESSES LOCATED IN RELATION TO THE SCENE?

DOES THE OFFENDER (VICTIM, W ITNESS) LIVE?

W AS THE OFFENDER APPREHENDED?

W AS THE EVIDENCE MARKED?

W AS THE EVIDENCE STORED?

WHEN:

DID COPS FIRST APPROACH CLIENT?

W AS HOUSE-TO-HOUSE CANVAS PERFORMED?

W AS CLIENT ARRESTED?

W ERE CRIME-SOLVABILITY FACTORS IDENTIFIED?

DID CLIENT FIRST BECOME A SUSPECT?

W AS THE VICTIM LAST SEEN AND W HAT W AS HE/SHE DOING?

DID SECURITY/POLICE/OTHERS FIRST ARRIVE AT THE SCENE?

WHAT/WHICH:

ACTUALLY HAPPENED JUST PRIOR TO THE CRIME?

ACTUALLY HAPPENED DURING CRIME?

SIGNIFICANT MODUS OPERANDI W AS USED?

SIMILAR BAD ACTS/MOLINEUX EVIDENCE EXISTS?

EVIDENCE FINGERS YOUR CLIENT?

DID W ITNESS(ES) SEE/HEAR?

SHORTCOMING EXIST IN CRIME SCENE MANAGEMENT AND

SEARCHING

EVIDENCE W AS OBTAINED?

W AS DONE W ITH THE EVIDENCE?

VANTAGE POINTS, FIELDS OF VISION, OBSTACLES EXIST?

ACTUAL/POTENTIAL APPROACH/EXIT ROUTES EXIST?

DATABASE W AS USED TO PROFILE THE SUSPECT?

PAPER TRAIL EXISTS?

SECURITY AGENCIES W ERE NOTIFIED?

POLICE AGENCIES W ERE NOTIFIED?

OTHER AGENCIES W ERE NOTIFIED?

TIME W AS THE OFFENSE COMMITTED?

TIME W AS THE OFFENSE REPORTED?

LACK OF TRAINING/SUPERVISION ALLOW ED PROCESS

CORRUPTION?

TIME DID THE SECURITY/POLICE ARRIVE ON THE SCENE?

W ITNESSES GAVE STATEMENTS?

W ITNESSES DID NOT GIVE STATEMENTS?

WHY:

DOES SNITCH FINGER YOUR CLIENT?

W AS THE CRIME COMMITTED?

W AS THE PARTICULAR INSTRUMENT USED IN THIS CRIME?

W AS THE CRIME REPORTED?

W ERE W ITNESSES EAGER TO TALK?

W ERE W ITNESSES RELUCTANT TO TALK?

W AS THE VICTIM ABLE OR EAGER TO POINT OUT YOUR CLIENT?

W AS A W ITNESS ABLE OR EAGER TO POINT OUT YOUR CLIENT?

W AS THERE A DELAY IN REPORTING THE CRIME?

DID THE COPS DELAY INVESTIGATING?

WITH WHOM:

DID THE SNITCH MAKE A DEAL?

DID PERPETRATOR LEAVE THE SCENE?

DID SNITCH SPEAK TO GAIN KNOW LEDGE OF CRIME DETAILS?

DOES YOUR CLIENT ASSOCIATE?

W AS THE VICTIM LAST SEEN?

ARE THE W ITNESSES ASSOCIATED OR FRIENDLY?

HAS THE VICTIM TALKED ABOUT THIS OFFENSE?

HAS YOUR CLIENT TALKED W ITH?

HAVE THE W ITNESSES TALKED?

HOW:

W AS YOUR CLIENT CONNECTED TO THE CRIME?

DID CLIENT GET TO AND FROM THE SCENE?

DID PERPETRATOR OBTAIN INFORMATION NEEDED TO COMMIT

THE OFFENSE?

DID THE ARREST OF YOUR CLIENT TAKE PLACE?

WITH WHAT:

PREJUDGMENT DID COPS JUMP TO CONCLUSION?

PERCEPTUAL BIAS DID POLICE VIEW THIS CRIME?

TRADE OR PROFESSION ARE THE TOOLS [W EAPONS,

INSTRUMENTS] USED IN THE OFFENSE MOST ASSOCIATED

W ITH?

OTHER TYPE OF ACTION IS THIS OFFENSE MOST ASSOCIATED

W ITH?

HOW MUCH:

HAS THE SNITCH BEEN PAID FOR INFORMATION?

CRIME INFORMATION W AS LEAKED TO MEDIA?

DID THE VICTIM CLAIM W AS TAKEN?

KNOW LEDGE W AS NECESSARY TO COMMIT THE OFFENSE?

EFFORT W AS REQUIRED TO REMOVE THE PROPERTY TAKEN

FROM THE SCENE?

INFORMATION IS THE VICTIM [W ITNESS(ES), POLICE, OTHERS]

W ITHHOLDING?

CRIME SCENE RECONSTRUCTION TOOK PLACE?

INVESTIGATIVE DATA IS ON POLICE COMPUTERS?

ADDITIONAL INFORMATION OR INVESTIGATION IS NEEDED TO

COMPLETE THE CASE INVESTIGATION?

OVER-PREPARATION

ONLY

THE

PROSECUTOR

THINKS

YOU

ARE

SUPPOSED

TO

LOSE

THIS

CASE

TRIAL PREPARATION CHECKLIST

Done: date/who 2 months before trial

_____________ Review accusatory instrument, bill of particulars, other pleadings_____________ Slice and dice discovery, witness statements, timelines _____________ Any other pretrial motions needed_____________ Serve trial subpoenas and notify witnesses_____________ Order transcripts_____________ Obtain rulings on pending suppression motions, etc.

1 month before trial

_____________ Consolidate trial notebook_____________ Consult CJI jury instructions _____________ Prepare witnesses folder (www.nycourts.gov)_____________ Prepare exhibits _____________ Order large courtroom exhibits _____________ Make sure trial subpoenas are served

2-3 weeks before trial

_____________ Review vocabulary of the case, your theory, themes and labels_____________ Do your summation first to organize trial prep_____________ Prepare cross-examinations_____________ Prepare direct examinations_____________ Prepare your opening statement_____________ Prepare your voir dire_____________ Make sure your witnesses are available_____________ Coordinate with your investigator_____________ Schedule witnesses for trial preparation

Done: date/who 1-2 weeks before trial

_____________ Agree on exhibits so you can use in opening statement_____________ Prepare client for testifying and courtroom appearance_____________ Horseshed your witnesses _____________ Have investigator coordinate with witnesses_____________ Prepare motions in limine_____________ Make sure trial is going to commence on trial date

Done: date/who Week before trial

_____________ Get copies of agreed upon exhibits_____________ Maintain witness contact_____________ Advise witnesses when they will probably be needed_____________ Keep preparing client_____________ Keep preparing witnesses_____________ Refine order of your witnesses_____________ Refine exhibits list_____________ Refine planned cross-examinations_____________ Rehearse your opening statement_____________ Check with court on trial date, starting time, and schedule_____________ Obtain rulings on motions in limine

THINGS TO DO

SCENE OF CRIME:

SCENE(S) OF POLICE

INVESTIGATION/INTERROGATION:

WITNESSES:

INVESTIGATION:

SUPPRESSION ISSUES LEGAL ISSUES

COMMON SENSE INQUIRIES:

BRAINSTORMING PROSECUTION'S CASE

KNOWING

ADVERSARY'S

STRENGTHS

AND

CONFRONTING

HEAD-ON

KEY

TO

SUCCESS

BRAINSTORMING WORKSHEETPROSECUTION'S CASE

PROBABLE PROSECUTION THEORY:

MAIN:

ALTERNATIVE:

FACTS BEYOND CHANGE (FBC'S)

(CAN 'T RUN FROM FBC'S -

MUST EXPLAIN, ADOPT OR NEUTRALIZE)

PROBABLE PROSECUTION FACTS

(TERRIBLE FACTS WHICH MUST BE MET HEAD ON)

QUERY: WHAT MUST JURY BELIEVE TO CONVICT?

WHO MUST JURY BELIEVE TO CONVICT?

ELEMENTS OF EACH COUNT

ON

WHICH

ELEMENT

IS

PROSECUTION

MOST

VULNERABLE?

INDICTMENT/ELEMENTS/NON-CAPITAL CRIMES

COUNT # :

DATE:

T IME:

PLACE:

ELEMENTS:

1)

2)

3)

4)

5)

6)

STRATEGIC THOUGHTS:

HOW WILL PROSECUTION PROVE EACH

ELEMENT?

WHERE IS PROSECUTION MOST

VULNERABLE?

COUNT # :

DATE:

T IME:

PLACE:

ELEMENTS:

1)

2)

3)

4)

5)

6)

STRATEGIC THOUGHTS:

HOW WILL PROSECUTION PROVE EACH

ELEMENT?

WHERE IS PROSECUTION MOST

VULNERABLE?

POTENTIAL JURY INSTRUCTIONS

PREPARATION

MUST

INCLUDE

WHAT

JURY

HEARS

LAST

FROM

JUDGE

JURY INSTRUCTIONS

SUBSTANTIVE CJI CHARGES(DOWNLOAD FROM WWW.NYCOURTS.GOV)

OTHER RELEVANT CJI CHARGES

POTENTIAL REQUESTS TO CHARGE

CREATING TIME-LINES

CREATE

THE

TIME-LINES - -

RE-CREATE/BRAINSTORM

THE

POSSIBILITIES

TIME-LINE BRAINSTORMING

PRE-INCIDENT

INCIDENT

POST-INCIDENT

THEORY OF THE CASE

THE ULTIMATE

PERSUASION EDGE - -

A SIMPLIFIED THEORY

POTENTIAL DEFENSE THEORIES

CRIME

NEVER HAPPENED

• REVENGE

• SETUP

• MISTAKE

• FIGMENT OF IMAGINATION

• OTHER

CRIME HAPPENED -

CLIENT DIDN'T DO IT

• Mistaken ID

• Setup

• Alibi

• Lack of Motive

• Cops Hate Client

• Other

"CRIME" HAPPENED -

CLIENT THERE BUT NOT A CRIME

• SELF-DEFENSE

•ACCIDENT

• MERE PRESENCE DOCTRINE

• MISTAKE

• DURESS

• INFANCY

• ENTRAPMENT

• RENUNCIATION

CRIME HAPPENED - CLIENT

DID IT BUT NOT RESPONSIBLE

• MENTAL DISEASE/DEFECT

• DRUGS

• ALCOHOL

CRIME HAPPENED - CLIENT

DID IT BUT EQUITIES SAY "SO WHAT"

• JURY NULLIFICATION

CRIME HAPPENED -BUT NOT CRIME CHARGED

• LESSER INCLUDED

OFFENSES

THEORY OF THE CASE

A

REPEATING

THEME

SOUNDS

YOUR

THEORY

OF

DEFENSE -

KEEP

IT

SIMPLE

STUPID!

BRAINSTORMING WORKSHEETDEFENSE CASE/FACTUAL ANALYSIS

FACTS SUPPORTING DEFENSE THEORY:(WHAT FACTS CAUSE PROSECUTION TO CRINGE?)

LIST OF CRUCIAL CONTESTED ISSUES:

TRANSFORMS NEUTRALS INTO POSITIVES

ADOPTS FACTS BEYOND CHANGE (FBC'S)DEFENSE THEORY: BENEFIT OF EMOTION AND REASON

EMOTIONAL THEME + FACTS = PASSION

FACTUAL THEORY:

EMOTIONAL THEME:

DEFENSE THEORY WORKSHEET

THEORY:

WHERE IS DOUBT?

WHO WILL CREATE THIS DOUBT?

HOW WILL WE CREATE THIS DOUBT?

WHEN SHOULD WE CREATE THIS DOUBT?

HOW OFTEN CAN WE CREATE THIS DOUBT?

BRAINSTORMING WORKSHEETTHOUGHT PROCESS

DOMINANT STORYLINE FACTS DOMINANT STORYLINE EMOTION

WHO ARE MAIN CHARACTERS

IN OUR STORY?WHAT ARE THE MOTIVATIONS/RELATIONSHIPS

AMONG THE MAIN CHARACTERS?

THROUGH WHOSE EYES DO WE

ESTABLISH OUR MOST POWERFUL FACTS?THROUGH WHOSE EYES DO WE

PRESENT OUR DOMINANT EMOTIONAL THEME?

DOES THEORY COMPORT WITH

(1) FACTS AND (2) COMMON SENSE?CAN STORY BE TOLD THROUGH

PROSECUTION'S WITNESSES?

OMNIBUS MOTION CHECKLIST

MOTIONS - -

THE

FRONT

LINE

OF

DEFENSING

POTENTIAL OMNIBUS MOTIONS

FOR INVESTIGATIVE/EXPERT SERVICES (COUNTY LAW §722-c)

TO DISMISS/REDUCE INDICTMENT UPON GROUNDS THAT:• INDICTMENT OR COUNT IS DEFECTIVE (CPL §210.20[1][a])• LEGAL INSUFFICIENCY OF GRAND JURY EVIDENCE (CPL §210.20[1][b])• GRAND JURY PROCEEDING WAS DEFECTIVE (CPL §210.20[1][c])• THE ACCUSED IS CLOAKED WITH IMMUNITY (CPL §21020[1][d])• PROSECUTION VIOLATES STATE/FEDERAL DOUBLE JEOPARDY (CPL §210.20[1][e])• PROSECUTION IS TIME BARRED BY STATUTE OF LIMITATIONS (CPL §210.20[1][f])• PROSECUTION BARRED DUE TO SPEEDY TRIAL VIOLATION (CPL §210.20[1][g])• JURISDICTIONAL/LEGAL IMPEDIMENT TO CONVICTION (CPL §210.20[1][h])• DISMISSAL REQUIRED IN INTEREST OF JUSTICE (CPL §210.20[1][i])

TO DISMISS DUE TO OUTRAGEOUS PROSECUTORIAL/POLICE MISCONDUCT (ISSAACSON , 44 N.Y.2d 511)

DIRECTED AT THE GRAND JURY PRESENTATION:• TO INSPECT THE GRAND JURY MINUTES

• LEGAL INSUFFICIENCY OF EVIDENCE TO SUPPORT INDICTMENT/COUNT

• PROSECUTORIAL BRADY/VALLES FAILURES BEFORE GRAND JURY

• FAILURE TO TIMELY NOTIFY ACCUSED OF RIGHT TO TESTIFY (CPL §190.50[5][c])• DISMISS DUE TO THE "MERE POSSIBILITY OF PREJUDICE (CPL §210.35[5])

TO PRECLUDE DUE TO CPL §710.30 VIOLATION (AMPARO [73 N.Y.2d 728],O'DOHERTY [70 N.Y.2d479],LOPEZ [84 N.Y.2d 425] RATIONALE

TO SUPPRESS:• TANGIBLE PHYSICAL EVIDENCE (CPL §710.20[1])• CONFESSION/STATEMENTS (CPL §710.20[3])• IDENTIFICATION (CPL §710.20[6])• ELECTRONIC AUDIO/VISUAL INTERCEPT (CPL §710.20[2])• CHEMICAL TEST OF BLOOD (CPL §710.20[5])• PEN REGISTER OR TRAP AND TRACE INFORMATION (CPL §710.20[7])• FRUIT OF THE POISON TREE DERIVATIVE EVIDENCE (CPL §710.20[4])

DUNAWAY (442 U.S. 200) SUPPRESSION MOTION

CHALLENGING SEARCH WARRANT (CPL ARTICLE 690)

FOR DISCOVERY (CPL §240.40[1])

FOR BILL OF PARTICULARS (CPL §200.90)

TO COMPEL BRADY (373 U.S. 83) MATERIAL

TO DISMISS DUPLICITOUS COUNTS (CPL §200.30)

TO DISMISS MULTIPLICITOUS COUNTS(CPL §210.20[1][a] and CPL §210.25

FOR SEVERANCE:• OF COUNTS (CPL §200.20[3])• OF DEFENDANTS (CPL §200.40[1])• REMOVAL TO FAMILY COURT (CPL §210.43[1][a])

SANDERS (31 N.Y.2d 463) MOTION TO COMPEL HEARINGS 20 DAYS PRIOR TO TRIAL SO MINUTES CAN BE

TRANSCRIBED

MOLINEUX DISCLOSURE AND PRECLUSION (CPL §240.43)

VENTIMIGLIA DISCLOSURE AND PRECLUSION (CPL §240.43)

SANDOVAL PRECLUSION

RENEWAL OF MOTIONS (CPL §255.20[3])

NON-EXHAUSTIVE LIST OF ADDITIONAL MOTIONS:• FOR A CHANGE OF VENUE (CPL §230.20[2] AND PARKER, 60 N.Y.2d 714)• TO DISMISS DUE TO LOSS/DESTRUCTION OF EVIDENCE

• TO DISMISS DUE TO UNCONSTITUTIONALITY OF STATUTE (CPL §210.25[3] [NOTIFY

ATTORNEY GENERAL])• TO DISMISS DUE TO PREJUDICIAL PRE-TRIAL PUBLICITY

• TO DISMISS DUE TO POLICE/PROSECUTORIAL INTERFERENCE WITH PROSPECTIVE WITNESSES

• TO PRODUCE WITNESS IN CONTROL OF PROSECUTION FOR INTERVIEW

• TO DISQUALIFY THE PROSECUTOR

• TO DISQUALIFY THE COURT

• TO COMPEL NOTIFICATION OF WHETHER A WITNESS' RECOLLECTION HAS BEEN ENHANCED

BY HYPNOSIS OR OTHER MEANS

• TO PRECLUDE CO-CONSPIRATOR HEARSAY DECLARATIONS

• TO DISQUALIFY THE ATTORNEY GENERAL'S OFFICE

INNOVATIVE MOTIONS FOR THIS CASE ARE:

SUPPRESSION MOTIONS

OUR DUTY OF CONSTANT VIGILANCE aka

"KEEPING OUR EYES ON THEM"

"Few weapons in the arsenal of freedom are more useful than the power tocompel a government to disclose the evidence on which it seeks to forfeit theliberty of its citizens. All governments, democracies as well as autocracies,believe that those they seek to punish are guilty; the impediment ofconstitutional barriers are galling to all governments when they prevent theconsummation of that just purpose. But those barriers were devised andare precious because they prevent that purpose and its pursuit from passingunchallenged by the accused, and unpurged by the alembic of publicscrutiny and public criticism. A society which has come to wince at suchexposure of the methods by which it seeks to impose its will upon itsmembers, has already lost the feel of freedom and is on the path toabsolutism." (United States v. Coplon, 185 F.2d 629, 638 [2d Cir. 1950][Hand, C.J.]).

KEEPING AN EYE ON THEM - AVOIDING PROCESS CORRUPTION!

C DO WE WANT THIS EVIDENCE SUPPRESSED/EXCLUDED?

OR

C DOES IT HELP OUR THEORY OF DEFENSE?

C IF WE WANT EXCLUDED:

MOTION IN LIMINE?

MOTION TO SUPPRESS?

DUNAWAY/MISUIS: WHAT DID THE COPS KNOW AND WHEN DID THEY KNOW IT?

TIME-LINE FOR SUPPRESSION

• WHAT DO COPS INITIALLY KNOW?

• WHO KNOWS?

• AT PRECISELY WHAT TIME?

• TRACE THE INVESTIGATIVE STEPS TAKEN/TIME-LINES

• VISIT ALL SCENES RELEVANT TO THE SUPPRESSION ISSUES!

PREPARATION/PREPARATION/PREPARATION

THE

VIRTUE

IS

IN

THE

STRUGGLE...

FINAL TRIAL CHECKLISTTHINGS TO DO

PROBABLE SUMMATION SUBPOENA/SUBPOENA DUCES TECUM

DEMONSTRATIVE EVIDENCE EXHIBITS

TRIAL MEMORANDA MOTIONS IN LIMINE

PROPOSED INTERROGATORIES PROPOSED JURY INSTRUCTIONS

MISCELLANEOUS

CREATING MARQUEE THOUGHTS

FIVE

TRIAL

DISCIPLINES

SIMULTANEOUSLY

CONSTRUCTED

THE

5-IN-1

CHECKLIST

THE "5-IN-1" CHECKLIST

THE SYMBOLS AND THEIR MEANINGS

8=

1. What's my starting high - - concept of primacy?2. How do I get my butterflies flying in formation?3. What’s the first thing I want to say about our theory of defense?4. How am I going to get on my feet?5. How am I going to get on stage?

- =Rhetorical theme question related to your theory providing smooth transitionfrom initial chapter to next chapter of cross/direct or your next block ofopening/summation.

= One word encapsulating your first chapter of cross/direct or first block ofopening/summation and each succeeding chapter or block.

- =Repeated rhetorical theme question providing transition from first block ofsummation to next block of summation or from first chapter of cross to nextchapter of cross

9 =

1. What's my finishing high - - concept of recency?2. What’s the last thing I want to say regarding our theory?3. How am I going to get off my feet?4. How am I going to get off stage?5. Basic jury fear - the thought of convicting an innocent person.

ONE PAGE JURY SELECTION CHECKLIST

8

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9

TRILOGIES:

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ONE PAGE OPENING STATEMENT CHECKLIST

8

-

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-

- - - -

9

TRILOGIES:

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_________________________

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ONE PAGE CROSS-EXAMINATION CHECKLIST

8

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9

TRILOGIES:

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ONE PAGE DIRECT EXAMINATION CHECKLISTWITNESS: ______________

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9

TRILOGIES:

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ONE PAGE SUMMATION CHECKLIST

8

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-

- - - -

9

TRILOGIES:

_________________________

_________________________

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JURY DESELECTION - GETTING THE BAD ONES OFF

FOCUS ON THE JURORS - NOT YOURSELF. THREE GOALS:A. ESTABLISH CREDIBILITY/RAPPORT.

i. APPRECIATE THE WORLD THEY COME FROM.ii. LISTEN TO MORE THAN THE WORDS THEY SAY.iii. DON'T CUT THEM OFF.iv. WATCH AND LISTEN - DO NOT WRITE.v. DON'T RACE AHEAD TO YOUR NEXT QUESTION.

B. LISTEN.i. LISTENING = RESPECT.ii. HEAR WITH THE THIRD EAR - THE UNARTICULATED RESPONSE.iii. BE NOT JUDGMENTAL.

C. GET INFORMATION ABOUT THEM - SELF DISCLOSURE.i. PEOPLE TALK TO PEOPLE WHO TALK TO THEM.ii. PEOPLE TALK TO THOSE THEY FEEL EQUAL WITH.iii. IF BOTH SIDES WANT CONTROL - NOTHING HAPPENS.

GIVE THEM INFORMATION ABOUT THE THEORY OF THE CASE - THROUGH THE QUESTIONS YOU ASK.

SOME THOUGHTS:A. THERE IS NO SUCH THING AS A PERFECT JUROR.B. YOU SHOULD NOT DO IT THE SAME WAY EACH TIME.C. JURIES REACH VERDICTS ON SOMETHING OTHER THAN FACTS/LAW.D. YOU DON'T EVEN WANT THE CONTROL YOU'RE WISHING FOR.E. YOU CAN'T CHANGE ANYONE'S MIND DURING JURY SELECTION.

THE JUROR WHO POISONS THE PANEL.A. LAWYERS FEAR A JUROR POISONING THE AIR.B. OUCH THAT HURT...DON'T PANIC BECAUSE YOU ARE STUNG.C. USE TO YOUR ADVANTAGE - SOLIDIFY THE CAUSE CHALLENGE - INSTEAD ASK:

i. WHAT IN YOUR EXPERIENCE LEADS YOU TO THINK THIS?ii. HOW LONG HAVE YOU HELD THIS BELIEF?iii. ON A SCALE OF ONE TO FIVE, HOW STRONG IS THIS BELIEF?iv. WHAT WOULD IT TAKE TO CHANGE YOUR MIND?v. IS THERE ANYTHING I CAN SAY THAT WOULD CHANGE YOUR MIND?

THE OPEN ENDED QUESTION - CANNOT BE ANSWERED BY "YES" OR "NO".A. ASSUME THE JUROR HAS AN OPINION, THOUGHT, FEELING OR REACTION - ASK FOR IT:

BEGIN WITH:i. HOW?ii. WHY?iii. WHEN?iv. WHERE?v. WHAT?vi. WHO?

JURY DESELECTION - APPLIED PSYCHOLOGYEINSTEIN OR FRANKENSTEIN????

WHAT TYPE/KIND OF JUROR WILL PROBABLY LEAST LIKELY IDENTIFY WITH:

ME:

CLIENT:

CASE THEORY:

WITNESSES:

WHAT TYPE/KIND OF JUROR COULD POSSIBLY BEST IDENTIFY WITH:

ME:

CLIENT:

CASE THEORY:

WITNESSES:

DEFENSE'S WORST NIGHTMARE JUROR

PROSECUTION'S WORST NIGHTMARE JUROR

APPLIED PSYCHOLOGY & YOUR PROSPECTIVE JUROR:WHO IS YOUR WORST/BEST OPTIMUM JUROR?

THINKING TRAITS

RATIONAL ANALYTICAL SKEPTICAL

CREATIVE CONVENTIONAL LOGICAL

PHILOSOPHICAL THOUGHTFUL PRACTICAL

ACCEPTING HIGH MENTAL CAPACITY AVERAGE MENTAL CAPACITY

FEELING TRAITS

TRUSTING CONTROLLED FLEXIBLE

SUSPICIOUS CONFIDENT STUBBORN

OPTIMISTIC FEARFUL CARING

PESSIMISTIC GENEROUS DETACHED

SELF CENTERED FRUGAL PUNITIVE

OTHER CENTERED SYMPATHETIC FORGIVING

STABLE BOISTEROUS SELFISH

EMOTIONAL COMPULSIVE ARROGANT

BEHAVIOR TRAITS

INDEPENDENT COMPETITIVE PROTECTING OTHERS

DEPENDENT PASSIVE CONFORMING

AUTHORITARIAN ADVENTURESOME NON-CONFORMING

COOPERATIVE CAUTIOUS STRAIGHTFORWARD

AGGRESSIVE SECURITY ORIENTED MANIPULATIVE

NON-SPECIFIC JURY TYPING

DEFENSE FACTORS PROSECUTION FACTORS

ANTI-AUTHORITARIAN AUTHORITARIAN PERSONALITY

SINGLE, DIVORCED WOMAN (?)

UNEMPLOYED AFFILIATION WITH LAW ENFORCEMENT

MINORITY MEMBER VICTIM

UNEDUCATED ACQUAINTED WITH VICTIM OF VIOLENT CRIME

UNAFFILIATED CLUB MEMBER (ESP. OFFICER)

NON-CONFORMING APPEARANCE MANAGER/SUPERVISOR

INTELLECTUAL (IF DEFENSE, TECHNICAL) SECRETARY

HAD PRIOR BRUSHES WITH LAW SCHOOL TEACHERS

UNION MAN LIKES PROSECUTOR AND THINKS COMPETENT

FACTORY WORKER PRIOR EXPERIENCE AS JUROR

PEOPLE PERSON (BY OCCUPATION) CAREER MILITARY (ESP. OFFICER)

VERY RICH RETIRED

LAUGHS, JOVIAL PAPER PERSON

RAISED IN LARGE FAMILY NEVER MARRIED

MORE THAN THREE CHILDREN DOUR, SOUR COUNTENANCE

SIMILAR TO DEFENDANT OR ATTORNEY RAISED IN SMALL FAMILY

BOOK READER HAS FEW CHILDREN

WITNESS FOR DEFENSE IN CRIMINAL CASE SIMILAR TO VICTIM OR PROSECUTOR

HEAVY DRINKER ACCOUNTANT

ARTIST BANKER

BLUE COLLAR BOOKKEEPER

CLERKS ENGINEER

NON-SPECIFIC JURY TYPING

DEFENSE FACTORS PROSECUTION FACTORS

HOUSEWIFE FIREFIGHTER

NURSE MACHINIST

PRECISION OCCUPATION IN CLOSE CASE PROGRAMMER

PROFESSOR GOVERNMENT WORKER

SALESMAN WOMAN IN ROBBERY CASE

SOCIAL WORKER OLDER MAN IN RAPE CASE

TRUCKER MINORITY, IF POLICE ON TRIAL

OLDER WOMAN IN RAPE CASE

LEADERLESS JURY

OTHER FACTORS: OTHER FACTORS:

JURY DESELECTION - APPLIED PSYCHOLOGY

SPECIFIC QUESTIONS TO BE ASKED OF JURORS CONCERNING ATTITUDES IN::

HOMICIDES:

ASSAULTS:

RAPE/SEXUAL ASSAULTS:

DRUGS:

DWI:

ROBBERY/BURGLARY:

CHILD SEXUAL ASSAULTS

TERRORISM

15-MINUTE VOIR DIRE WORKSHEET

MARQUEE THOUGHTS ONLY

HEAR/SEE/FEEL

THE

UNARTICULATED

RESPONSE

ONE PAGE VOIR DIRE CHECKLIST

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TRILOGIES:

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JUROR BACKGROUND

FRONT ROW JUROR 1 JUROR 2 JUROR 3 JUROR 4 JUROR 5 JUROR 6

NAME

ADDRESS -HOMEOWNER?

APPROXIMATE AGE/MODE OF DRESS

OCCUPATION

EMPLOYER

EDUCATION

MARITAL STATUS

SPOUSE'S OCCUPATION

CHILDREN

PAST ARRESTS/LAWSUITS

PAST/PRESENT JURY DUTY?

READ WHAT PAPERS/MAGAZINES

SPORTS OR HOBBIES?

FEELINGS RE: POWER/AUTHORITY

RACIAL ATTITUDES

POLITICAL ATTITUDES

ORGANIZATIONS?

FAVORITE POLITICIAN?

PERSON MOST RESPECTED?

BRAINSTORMING THE PICK

REACTION TOWARD CLIENT?

NON-VERBAL CLUES SAY.....?

JUROR IDENTIFY/HATE ME, CLIENT,CASE, WITNESSES?

DO I LIKE THIS JUROR?

HOW MANY CHALLENGES LEFT?

WHO IS LEFT IN THE PANEL?

JUROR BACKGROUND

SECOND ROW JUROR 7 JUROR 8 JUROR 9 JUROR 10 JUROR 11 JUROR 12

NAME

ADDRESS -HOMEOWNER?


OCCUPATION

EMPLOYER

EDUCATION

MARITAL STATUS

SPOUSE'S OCCUPATION

CHILDREN




SPORTS OR HOBBIES?


RACIAL ATTITUDES

POLITICAL ATTITUDES

ORGANIZATIONS?










JUROR BACKGROUND

THIRD ROW JUROR 13 JUROR 14 JUROR 15 JUROR 16 JUROR 17 JUROR 18

NAME

ADDRESS -HOMEOWNER?


OCCUPATION

EMPLOYER

EDUCATION

MARITAL STATUS

SPOUSE'S OCCUPATION

CHILDREN




SPORTS OR HOBBIES?


RACIAL ATTITUDES

POLITICAL ATTITUDES

ORGANIZATIONS?










PRIME TIME - -THE "SILVER-BULLET" OPENING

THE

OPENING

STATEMENT

PERSUASION

ADVANTAGE

GRIND

THE

PRISM

THROUGH

WHICH

JURORS

WILL

VIEW

THE

E V IDE N C E

OPENING STATEMENT

! PRIME TIME - - 1 30 Seconds:st

JURY SELECTION OPENING

CROSS-EXAMINATION SUMMATION

! Always do an opening

! Right after the prosecutor's opening

! Start on a high -- finish on a high

! Tell it - - do not read it

! Tell the story of the case

! Paint word pictures

! Create images and emotions

! Simple, not legal, language

! Humanize the fellow human being you represent

! Begin with a dramatic hook

! Build the story's characters, who they are, what they are like

! Use demonstrative evidence

! Predispose the jury to your cause

! Congruence of message and messenger

! Recognize that this is the third or fourth time you're speaking to the jury

! Persuade from start to finish

! Persuasively organize

! Conversation, not argument

! Unique to this client's case

! Never do a canned, non-opening opening statement

ONE PAGE OPENING STATEMENT CHECKLIST

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CROSS-EXAMINATION

PREPARATION

MORE

CROSS-EXAMINATIONS

ARE

SUICIDAL

THAN

HOMICIDAL

EMORY B. BUCKNER, ESQ. (circa 1903)

CROSS-EXAMINATION WORKSHEET

WITNESS:

SHOULD I CROSS? IF YES: OBJECTIVES OF CROSS:

FACT TESTIMONY FAVORABLE TO OUR THEORY: WHEN SHOULD THIS CROSS STOP?

ORGANIZATION OF CROSS-EXAMINATION

FAVORABLE INFO & CLOSING DOORS - THE COMMITMENT

PHASE OF CROSS-EXAMINATION: WITNESS' THEME CONTEXT IS:

FAVORABLE TESTIMONY PHASE OF CROSS: DOMINANT EMOTION(S) OF CASE:

IMPEACHMENT PHASE OF CROSS: DOMINANT EMOTION(S) OF THIS CROSS:

IMPACT/WORD PICTURE VOCABULARY OF CROSS: WHAT JURY SHOULD FEEL AFTER THIS CROSS:

TRILOGIES:

TRILOGY LOOPS/PYRAMIDS:

ACCREDITATION - [WHY JURY SHOULD BELIEVE WITNESS'FAVORABLE TESTIMONY]:

DISCREDITATION - [WHY JURY SHOULD NOT BELIEVE

BAD THINGS SAID ABOUT CLIENT]:

TITLES/THEMES FOR CHAPTERS OF CROSS: MARQUEE/HEADLINE QUESTION[S] FOR EACH CHAPTER

OF CROSS:

FINAL QUESTIONS OR SERIES OF QUESTIONS TO CONCLUDE

EACH CHAPTER OF CROSS: PRIMACY: FIRST CHAPTER OF CROSS:

EVIDENCE (EXHIBITS/PROPS) TO BE USED DURING EXAM

(INCLUDING PROSECUTION'S):

RECENCY: LAST CHAPTER OF CROSS:

ANTICIPATED RE-DIRECT: ANTICIPATED RE-CROSS:

SPECIAL TECHNIQUES/DEMONSTRATIONS DURING CROSS: VOIR DIRE QUESTIONS/POINTS RE: THIS WITNESS/THIS

CROSS:

COMMON SENSE CONSIDERATIONS FOR THIS CROSS:

Cross-Examination

Kelly's Simplified Rules of Cross A. Rule One: DON'T, unless you have to.

B. Rule Two: DON'T shoot in the dark needlessly. C. Rule Three: STOP, when you come to the end.

PRINCIPLES: Phases of Cross-Examination Cross-examination consists of separate and distinct phases which ordinarily (and with some

exceptions) should be undertaken in the following sequence: A. Phase One: Fleshing out the witness' knowledge, including negative knowledge-closing the

doors. This is the commitment phase of cross-examination. B. Phase Two: Establishing facts favorable to your theory.

C. Phase Three: IMPEACHMENT. Hallmark of Cross-Examination = CONTROL

A. No real questions are actually asked in true cross-examination.B.Control questions: in your questioning, strive for:

1.Single fact...2.Precisely worded...

3.Declarative statement...4.With a question mark at the end (voice inflection).

Cross vis-a-vis Primacy/Recency A. Start on a high

B. Finish on a high C.Why?

1. Psychological boost to you 2. Psychological let down for witness

3. Jury readback Sequence of Cross: Insulting the alligator before crossing the swamp is unhealthy.

A. Commitment - interchangeable with favorable testimony phase.B. Favorable Testimony - what helps our theory?C. Impeachment - if witness helps, why impeach?

Indicators of the Maestro - - Getting the Butterflies to Fly in FormationA.Prepare, Prepare, Prepare - - tames your inner demons

B.Be Brief - - chances are if you're standing up, you're screwing upC.Control Questions Only - - Rule Two: Don't shoot in the dark needlessly

D.Use Precision Language - - KISS principle: Plain words Simple language

Short sentencesE.Do Not Rehash Direct - - avoid repetition of testimony that hurts

F.Do Not Permit the Witness to ExplainG.Art of Listening - - actually hear what the witness says

H.Avoid Quarreling - - you want facts only, not value judgmentsI.Do Not Ask One Question Too Many - - avoid the sinking feeling of not stopping and sitting

down when you're aheadJ.Save the Bottom Line Point for Summation

CROSS CHAPTER

POINT TO BE ARGUED ON SUMMATION

CROSS-EXAMINATION TRIAL WORKSHEET

WITNESS:

ANTICIPATED BAD FACTS TO BE CONFRONTED:

FACT(S) ADOPT; NEUTRALIZE/ EXPLAIN; PUT IN

CONTEXT

APPLIED PSYCHOLOGY AND THIS WITNESS

WHAT TYPE JUROR(S) WILL ACCEPT? WHAT TYPE JUROR(S) WILL REJECT?

ONE PAGE CROSS-EXAMINATION CHECKLIST

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TRILOGIES:

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THE DEFENSE CASE

HAVE

THE

JURY

RE-LIVE

THE

EMOTIONS

OF

THE

CRITICAL

MOMENTS

DIRECT EXAMINATIONPersuasive Communication of Your Client's Story

! Conversational dialogue between two people

! Have client introduce herself

! Get client's butterflies flying in formation with easy introductory questioning

! Create the scene, then elicit the action

! Your client is the star - - not you as this is not cross-examination

! Organized by chapters introduced by topic transitions

! Loop to emphasize

! Stretch the strong points

! Propel the theory

! Anticipate cross

! Prepare client for cross

! Prepare redirect

! Narrative tone

! Use demonstrative evidence (showing, feeling, hearing, seeing)

! Address bad facts

! Use headlines to transition from one chapter to the next

! Plan and use trilogies

! Finish with the ultimate denial

ONE PAGE DIRECT EXAMINATION CHECKLISTWITNESS: ______________

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TRILOGIES:

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ONE PAGE DIRECT EXAMINATION CHECKLISTCLIENT

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TRILOGIES:

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Maximizing Summation Persuasion

CONGRUENCE

OF

MESSAGE

AND

MESSENGER

CONVEYS

YOUR

ROLE

AS

THE

MOST

IMPORTANT

WITNESS

FOR

THE

DEFENSE

9WHAT IS YOUR STAGE EXIT?

SUMMATIONPowerful, Persuasive Communication of Your Cause

! Dare to be great

! Persuade from the opening moment

! Choreograph your movements

! Utilize courtroom geography

! Utilize psychological anchors (argue from place where critical testimony occurred)

! Use all the props in the courtroom

! Incorporate the lessons from voir dire

! Deliver the story of innocence with vivid images

! Use variety in delivery

! Communicate trustworthiness, competence, dynamism nonverbally

! Deliver within your personality

! Deliver with intensity

! You are the best witness for your client

! This is argument by a true believer

! Recognize the span of attention but create new spans

! Force prosecutor to meet your closing

! Deliver with emotion and connection

! If they want to get your client, they have to go through you and you don't die easily

ONE PAGE SUMMATION CHECKLIST

8

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TRILOGIES:

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SUMMATION POINT:

SUMMATION POINT:

THE ERRONEOUS SUMMATION

WHEN THE PROSECUTION: YOUR OBJECTION:

USES THE WORD "I" (I BELIEVE..., I AM CONFIDENT) OR

OTHERWISE EXPRESSES WHAT JURORS MAY SEE AS

PROSECUTOR'S PERSONAL OPINION OF THE WITNESSES,EVIDENCE, STRENGTH OF THE CASE, ETC. IMPERMISSIBLE "VOUCHING"; "UNSWORN WITNESS"

MAKES ARGUMENTS THAT ARE NOT FAIR INFERENCES

FROM THE EVIDENCE "UNFAIR INFERENCE"

MISSTATES THE EVIDENCE "MISSTATING THE EVIDENCE"

EQUATES AN ACQUITTAL WITH PERJURY OR

CONSPIRACY BY PROSECUTION 'S WITNESSES OR

ARGUES THEY HAVE NO MOTIVE TO LIE "VOUCHING" AND "BURDEN-SHIFTING"

MISSTATES THE LAW"MISSTATING THE LAW " AND "USURPING THE

COURT'S FUNCTION"

STATES OR HINTS AT FACTS AS TO WHICH THERE IS

NO EVIDENCE

PROSECUTOR BECOMING "UNSWORN WITNESS" OR

REFERRING TO "FACTS NOT IN EVIDENCE"

IF IDENTIFICATION OR OTHER KEY ISSUE TURNS ON

RELIABILITY - NOT JUST CREDIBILITY

IMPROPERLY "ELIMINATING POSSIBILITY OF

MISTAKE" OR "UNDUE SUGGESTIVENESS"

SUGGESTS ACCUSED IS GUILTY BECAUSE OF

ASSOCIATION WITH UNSAVORY PERSON, LOCATION,ETC. IMPERMISSIBLE "GUILT BY ASSOCIATION"

IF ACCUSED IS BEING TRIED FOR MORE THAN ONE

CRIME, USES EVIDENCE OF FIRST CRIME AS EVIDENCE

OF THE SECOND

IMPERMISSIBLE "COMMINGLING" OF EVIDENCE;VIOLATION OF MOLINEUX AND/OR VENTIMIGLIA

RULING

USES EVIDENCE ADMITTED FOR A LIMITED PURPOSE

FOR ANOTHER PURPOSE (I.E., MOLINEUX EVIDENCE

TO SHOW GENERAL CRIMINAL DISPOSITION;EVIDENCE ADMITTED ONLY AS TO CO-DEFENDANT

USED AS TO ACCUSED)

"EXCEEDING PURPOSE FOR WHICH THAT EVIDENCE

W AS ADM ITTED" ("PROPENSITY"); VIOLATES

BRUTON/CRUZ RULE

SUGGESTS DEFENSE SHOULD PROVE ITS CASE, EXPLAIN

AWAY PROSECUTION 'S EVIDENCE, SHOW WHY

WITNESSES WOULD LIE, ETC. IMPERMISSIBLE "BURDEN-SHIFTING"


SUGGESTS ACCUSED 'S GUILTY OF ON-GOING OR WIDE-SPREAD CRIMES WHEN TRIAL IS FOR A SINGLE

INCIDENT

IM PROPER "SPECULATION"; "FACTS NOT IN

E V I D E N C E "; IM P E R M I S S I B L Y S U G G E S T I N G

PROPENSITY


REFERS TO ACCUSED 'S PRIOR RECORD TO SUGGEST

HE/SHE GUILTY IMPERMISSIBLE "PROPENSITY" ARGUMENT

USE OF NON-EVIDENTIARY FACTS (I.E., CO-DEFENDANT

PLED GUILTY; GRAND JURY INDICTED; RESULT OF

PRIOR TRIAL

FACT "NOT IN EVIDENCE AND "ENTITLED TO NO

EVIDENTIARY WEIGHT"

TRIES TO GET JURORS TO IDENTIFY WITH VICTIM

("YOU WANT TO FEEL SAFE IN YOUR HOME", "YOU

WANT TO BE BELIEVED IF THIS HAPPENED TO YOU""PERSONALIZING" CRIME OR ASKING JURORS TO

"IDENTIFY WITH VICTIM"; VIOLATES THE "GOLDEN

RULE"

INVOKES RELIGION OR MORALITY ("THOU SHALT NOT

KILL")"INFLAMMATORY" AND JURY MUST APPLY "LEGAL

STANDARD"

SPECULATES ON WHAT WORSE THINGS MIGHT HAVE

HAPPENED (I.E, "THANK GOD" THE POLICE ARRIVED IN

TIME, BURGLARY VICTIM MIGHT HAVE BEEN INJURED

IF SHE HAD BEEN HOME)"PR E J U D IC IA L L Y ", "IN F L A M M A T O R Y" A N D

"SPECULATIVE"

SEEKS SYMPATHY FOR VICTIM , DWELLS ON VICTIM 'SINJURIES OR VULNERABILITY OR AWFUL NATURE OF

CRIME, ASKS JURY NOT TO LET VICTIM/WITNESS DOWN

"INFLAMMATORY"; "INVOKING SYMPATHY"

REFERS TO RACE (ETHNICITY, RELIGION, NATIONAL

ORIGIN) IN ANY WAY, EVEN TO MAKE AN OTHERWISE

LEGITIMATE ARGUMENT

"INJECTING RACE", ETC., INTO TRIAL AND/OR

"APPEAL TO PREJUDICE"

SUGGESTS DEFENSE BE HELD TO SAME STANDARD AS

PROSECUTION, TRIAL IS SEARCH FOR TRUTH, VICTIM

AS WELL AS ACCUSED HAS RIGHTS, PRESUMPTION OF

INNOCENCE IS ONLY PRESUMPTION

"DILUTES PROSECUTION'S BURDEN OF PROOF" AND

BELITTLES/DEMEANS EVERY CITIZEN'S RIGHTS

COMMENTS, DIRECTLY OR INDIRECTLY, ON ACCUSED 'SEXERCISE OF RIGHT TO COUNSEL, TO REMAIN SILENT,NOT TO CONSENT TO SEARCH

"PENALIZING" ACCUSED FOR "EXERCISE OF

CONSTITUTIONAL RIGHT" (TO COUNSEL, TO REMAIN

SILENT, ETC.)

IF THE ACCUSED IS THE ONLY AVAILABLE WITNESS

ON THE DISPUTED ISSUE AND THE ACCUSED CHOOSES

NOT TO TESTIFY

IMPROPER COMMENT ON ACCUSED'S SILENCE AT

TRIAL; VIOLATES CONYERS RULE

COMMENTS, DIRECTLY OR INDIRECTLY, ON THE

FAILURE TO PRESENT A DEFENSE; REFERS TO THE

"UNCONTRADICTED" EVIDENCE AT TRIAL "BURDEN-SHIFTING"


CALLS THE ACCUSED OR A DEFENSE WITNESS NAMES

(LIAR, KILLER, GANGSTER, ETC.)PREJUDICIALLY "INFLAMMATORY"; "ABUSIVE"

ACCUSED LISTENED TO PROSECUTION 'S CASE AND

THEN TAILORED HIS TESTIMONY

"PENALIZES ACCUSED FOR EXERCISING H IS

RIGHTS"(TO BE PRESENT, CONFRONT ACCUSERS,TESTIFY)

DENIGRATES THE DEFENSE (I.E., DEFENSE COUNSEL IS

TRYING TO CONFUSE JURORS OR AVOID EVIDENCE,DEFENSE THEORY IS INSULTING OR SILLY)

UNFAIRLY "DENIGRATES" THE DEFENSE (OR

DEFENSE COUNSEL) AND SUGGESTS COUNSEL DOES

NOT BELIEVE IN CLIENT'S INNOCENCE

PLAYS UPON FEAR OF CRIME, VIOLENCE, COMMUNITY

CENSURE (I.E., OUR STREETS MUST BE SAFE, HOW

ACQUITTAL WILL BE RECEIVED BY PUBLIC, ACQUITTAL

WOULD INVITE FURTHER CRIME) "SAFE STREETS" ARGUMENT AND "INFLAMMATORY"

ERRONEOUS COMMENTS IN THIS SUMMATION

PROSECUTOR STATED.... OBJECTIONS MADE TO PRESERVE RECORD:

1.

2.

3.

4.

5.

AN ARSENAL FOR PERSUASIVE OBJECTIONS

! DOMINATING THE MOMENT

! CREATIVE PERSUASION WHILE OBJECTING

! PROJECTING A POSITIVE IMAGE

! DEVELOP A VARIETY OF TONE

! CREDIBILITY AS "WATCHDOG" OF RELIABLE

EVIDENCE

! CAST YOUR ADVERSARY AS VIOLATOR OF

PROCEDURE

! GOOD RECOVERY - THINKING ON YOUR FEET

OBJECTIONS CHECKLIST

OBJECTIONS TO FORM OF QUESTION

AMBIGUOUS ARGUMENTATIVE

ASSUMES FACTS NOT IN EVIDENCE COMPOUND

CONFUSING HARASSING THE WITNESS

LEADING MISSTATING THE EVIDENCE

NARRATIVE UNINTELLIGIBLE

VAGUE

OBJECTION TO THE ANSWER SOUGHT

ASKED AND ANSWEREDBEST EVIDENCE

BEYOND THE SCOPECUMULATIVE

CONCLUSIONFOUNDATION

HEARSAYIMMATERIAL

IMPROPER IMPEACHMENTIRRELEVANT

NARRATIVEOPINION

PERSONAL KNOWLEDGEPREJUDICIAL

PRIVILEGEDSPECULATION

VOUCHING

PERFECTING THE RECORD

MAXIMIZING

HUMAN

PERSUASION

POTENTIAL

FOR

JUDGES

ON

APPEAL

TRIAL ORDER OF DISMISSAL WORKSHEETCPL §290.10 MOTION

Specificity: People v. Hawkins, 11 N.Y.3d 484 at 491-493 (2008); People v. Gray, 86 N.Y.2d 10 at 19 (1995)

NECESSARY ELEMENTS TO SURVIVE ACPL §290.10 MOTION:

THERE IS NO EVIDENCE TO PROVE:

COUNT 1

1.

2.

3.

4.

5.

6.

REASONS FOR GRANTING THE CPL §290.10 MOTION

FACTS: CASELAW:

FAILURE OF PROOF:



COUNT 2

1.

2.

3.

4.

5.

6.


FACTS: CASELAW:

FAILURE OF PROOF:



COUNT 3

1.

2.

3.

4.

5.

6.


FACTS: CASELAW:

FAILURE OF PROOF:



COUNT 4

1.

2.

3.

4.

5.

6.


FACTS: CASELAW:

FAILURE OF PROOF:



COUNT 5

1.

2.

3.

4.

5.

6.


FACTS: CASELAW:

FAILURE OF PROOF:

Maximizing

Human

Persuasion

Potential

Of

Prosecution

Exhibits

To

Prove

Your

Theory

TACTICAL USE OF PROSECUTION EXHIBITS

PROSECUTION EXHIBIT :

HOW WILL THIS EXHIBIT HELP DEFENSE THEORY:

EXHIBIT'S MAXIMUM PERSUASION POTENTIAL:

PROSECUTION EXHIBIT ___:









PROSECUTION TRIAL EXHIBITS CHART

EXHIBIT DESCRIPTION OFFERED RECEIVED

1

2

3

4

5

6

7

8

9

10

11

12

13

14

15

16

17

18

19

20

21

22

23

24

25

26

27

28

29

30

31

32

33

34

35

36

37

38

39

40

41

52

43

44

45

46

47

48

49

50

51

52

DEFENSE TRIAL EXHIBITS CHART

EXHIBIT DESCRIPTION OFFERED RECEIVED

A

B

C

D

E

F

G

H

I

J

K

L

M

N

0

P

Q

R

S

T

U

V

W

X

Y

Z

POST-VERDICT MOTIONS (CPL §330.30[1])

SECOND

OPPORTUNITY

FOR

MAXIMIZING

HUMAN

PERSUASION

POTENTIAL

FOR

JUDGES

ON

APPEAL

POST-VERDICT MOTION (CPL §330.30[1])AND APPEAL POINTS CHECKLIST

ERRONEOUS PRE-TRIAL RULINGS:

ERRONEOUS TRIAL RULINGS:

POST-VERDICT MOTION (CPL §330.30[1])AND APPEAL POINTS CHECKLIST

ERRONEOUS TRIAL RULINGS:

ABOUT THIS CRIMINAL TRIAL NOTEBOOK

Preparation, Persuasion and Self: Defending Fellow Human Beings consists of a series of checklists

and outlines to assist in each phase involved in a criminal trial. The suggestions contained in this 2 Editionnd

come from practical resolution of problems that confront each of us on a daily basis. Your author trusts that

this Notebook will be only a starting point for defenders of fellow human beings who will use their own

ingenuity and creativity to improve and expand the thoughts shared within.

This Notebook cannot be designed, nor should it be considered, as a final product. Like all of us, it is

constantly evolving, growing and adapting. Suggestions, additions and revisions are most certainly welcome.

Whenever you have an idea or hear something which fits within one of the segments of this Notebook, please

do not hesitate to call. There is no pride in authorship. This Notebook is merely a framework which can

constantly be improved upon - - a design that is limited only by our collective imaginations.

Together - - we can create a statewide defense bar that provides committed, zealous and client-centered

representation in every court throughout New York. Let's be clear and make no mistake - - while an

indictment may be captioned People v. Human Being, each time that a courtroom is brought to order we

are all on trial, every one of us. We are all human beings entitled to zealous representation by a defender

who possesses well-defined standards of training, qualifications, competency and commitment to cause. We

have many clients but a single cause.

Justice.

Documents

A CRIMINAL TRIAL NOTEBOOK 2ND EDITION - c.ymcdn.com · is an attempt to overcome fear by providing insightful immersion in both practical and, ... THE ANTIDOTE FOR FEAR 1 ... can