Copyright 2010 Carolina Academic Press, LLC. All rights reserved. THE TRIAL PROCESS: LAW, TACTICS, AND ETHICS

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1 THE TRIAL PROCESS: LAW, TACTICS, AND ETHICS

2 LEXISNEXIS LAW SCHOOL ADVISORY BOARD Lenni B. Benson Professor of Law & Associate Dean for Professional Development New York Law School Raj Bhala Rice Distinguished Professor University of Kansas, School of Law Charles P. Craver Freda H. Alverson Professor of Law The George Washington University Law School Richard D. Freer Robert Howell Hall Professor of Law Emory University School of Law Craig Joyce Andrews Kurth Professor of Law & Co-Director, Institute for Intellectual Property and Information Law University of Houston Law Center Ellen S. Podgor Professor of Law & Associate Dean of Faculty Development and Electronic Education Stetson University College of Law Paul F. Rothstein Professor of Law Georgetown University Law Center Robin Wellford Slocum Professor of Law & Director, Legal Research and Writing Program Chapman University School of Law David I. C. Thomson LP Professor & Director, Lawyering Process Program University of Denver, Sturm College of Law

3 THE TRIAL PROCESS: LAW, TACTICS, AND ETHICS Fourth Edition J. Alexander Tanford Professor of Law Indiana University Maurer School of Law Bloomington

4 ISBN: LCCN: This publication is designed to provide accurate and authoritative information in regard to the subject matter covered. It is sold with the understanding that the publisher is not engaged in rendering legal, accounting, or other professional services. If legal advice or other expert assistance is required, the services of a competent professional should be sought. LexisNexis and the Knowledge Burst logo are registered trademarks and Michie is a trademark of Reed Elsevier Properties Inc., used under license. Matthew Bender and the Matthew Bender Flame Design are registered trademarks of Matthew Bender Properties Inc. Copyright 2009 Matthew Bender & Company, Inc., a member of the LexisNexis Group. All Rights Reserved. No copyright is claimed in the text of statutes, regulations, and excerpts from court opinions quoted within this work. Permission to copy material exceeding fair use, 17 U.S.C. 107, may be licensed for a fee of 25 per page per copy from the Copyright Clearance Center, 222 Rosewood Drive, Danvers, Mass , telephone (978) NOTE TO USERS To ensure that you are using the latest materials available in this area, please be sure to periodically check the LexisNexis Law School web site for downloadable updates and supplements at Editorial Offices 121 Chanlon Rd., New Providence, NJ (908) Mission St., San Francisco, CA (415) (2009 Pub.3106)

5 DEDICATION For Philippa, Philippa, and James iii

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7 PREFACE It has been almost thirty years since the first edition of The Trial Process was published, and each new edition reflects what my students have taught me over the years. They have been patient and forgiving as I experimented on them with a dozen different approaches to teaching an intellectually rigorous trial practice course. They have encouraged me when I was tempted to give up the effort to make this subject as stimulating as other curricular offerings, and they have constantly rewarded my attempts to get them to think as critically about the trial process as they would about contracts and torts. This fourth edition is a tribute to them, and I have used many of their names in the examples. I owe special debts of gratitude to five people. Mike Saks taught me the social psychology of juror behavior and persuasion. I was lucky enough to spend two semesters with him at Iowa, first on a sabbatical leave, and then on a CIC Fellowship. Along this path, I was helped and encouraged by my sister, Sarah Tanford, with whom I wrote an article on the interrelationship between psychology and trial practice. These collaborations have heavily influenced this book s approach to trial tactics, in which the folklore of advocacy is informed by the research of psychologists. I believe this produces a more realistic picture of trial practice than would otherwise have been possible. Philippa Guthrie has provided the love and moral support that enabled me to undertake and complete this book. Philippa, Jr. and James have made it all worthwhile. I am grateful also to Indiana University for providing financial support, sabbatical leaves, and summer stipends that have enabled me to carry this book through four editions. Finally, a word of deep appreciation for two students, Camille Johnson and Rachel Leahy, who stepped up and did an extraordinary amount of excellent research, without which it would not have been possible to complete this edition. J. Alexander Tanford Bloomington, Indiana v

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9 ACKNOWLEDGMENTS The author acknowledges with thanks permission to reprint from the following materials: Gary Bellow & Bea Moulton, The Lawyering Process (1978). Reprinted with permission of the Foundation Press. James P. Brown, A Juryman s View, 2 Ga. St. Bar J. 225 (1965). Reprinted with permission from James P. Brown and the Georgia State Bar Journal. Robert Keeton, Trial Tactics and Methods (2d ed. 1973). Reprinted with permission of Little, Brown & Company. James McElhaney, Expert Witnesses and the Federal Rules of Evidence, 28 Mercer L. Rev. 463 (1977). Reprinted with permission from Mercer Law Review. Ronald J. Rychlak, Direct Criminal Contempt and the Trial Attorney Constitutional Limitations on the Contempt Power, 14 Am. J. Trial Advoc. 243 (1990). Reprinted with permission from Prof. Rychlak and the American Journal of Trial Advocacy. Hans Zeisel and Shari Diamond, The Effect of Peremptory Challenges on Jury and Verdict: An Experiment in a Federal District Court, 30 Stan. L. Rev. 491 (1978). Copyright 1978 by the Board of Trustees of the Leland Stanford Junior University. vii

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11 Chapter 1 INTRODUCTION OVERVIEW HISTORY OF THE JURY TRIAL... 3 NOTES THE ADVERSARY SYSTEM AND THE SEARCH FOR TRUTH THE GENERAL LEGAL PRINCIPLES OF TRIALS... 9 [A] The Order of Trial... 9 NOTES [B] The Right to a Jury NOTES [C] The Principle of Judicial Control and Discretion NOTES [D] The Contempt Power NOTES [E] Disruptions State v. Franklin NOTES COURTROOM CUSTOMS AND ETIQUETTE THE IDEA OF ADVOCACY [A] The Obligation to Be an Advocate Ferguson v. Moore [B] Ethical Limits to Zealous Advocacy NOTE BECOMING AN EFFECTIVE ADVOCATE [A] Basic Principles of Advocacy [B] Courtroom Style NOTES [C] Understanding the Psychology of Jury Trials [D] The Importance of Preparation Chapter 2 PREPARING FOR TRIAL INTRODUCTION THE DUTY TO PREPARE INTERVIEWING WITNESSES [A] Barriers to Gathering Accurate Information [B] Techniques for Facilitating Interviewing [C] Facts Versus Conclusions [D] Types of Questions [E] A Five-Stage Interview Model NOTE ix

12 2.04 PREPARING A CASE THEORY NOTES DEVELOPING THE EVIDENCE [A] Is the Evidence Admissible? [B] Diagramming the Case [C] Corroboration and Credibility [D] Planning for Objections FILLING IN THE GAPS IN YOUR CASE [A] Presumptions [B] Stipulations [C] Judicial Notice [D] Views [E] Using Depositions NOTES DEVELOPING A PERSUASION STRATEGY NOTE SELECTION AND ORDER OF WITNESSES [A] Whether to Call Any Witnesses [B] Criteria for Selecting Witnesses [C] Whether the Accused Should Testify [D] Order of Witnesses NOTES PRETRIAL MOTIONS NOTES PRETRIAL CONFERENCES LEGAL MEMORANDA AND TRIAL BRIEFS THE TRIAL NOTEBOOK NOTES Chapter 3 SELECTING A JURY INTRODUCTION NOTE EXAMPLE NOTE THE TERMINOLOGY OF JURY SELECTION DISQUALIFICATIONS AND EXEMPTIONS NOTE THE QUEST FOR A FAIR AND IMPARTIAL JURY [A] Juries Must Be Drawn From a Fair Cross-Section of the Community. 94 Taylor v. Louisiana State v. Haskins U.s. v. Odeneal Carroll v. State x

13 [B] Jury Size [C] Striving for Juror Impartiality Fietzer v. Ford Motor Co U.s. v. Bear Runner NOTES QUESTIONING PROCEDURES [A] Written Questionnaires NOTE [B] In-Court Questioning NOTE THE SCOPE OF QUESTIONING [A] Questions About Juror Impartiality [B] Questions About the Law [C] Questions to Acquire Information for Exercising Peremptory Challenges Unrelated to Bias [D] Questions Used to Begin Advocacy Gregory v. State NOTES CONDUCTING THE VOIR DIRE [A] Purposes of Questioning [B] Preparing Questions [1] Introductory Remarks to the Panel [2] Areas of Inquiry [a] Questions about the law [b] Factual weaknesses [c] The people involved in the case [d] The main facts of the case [3] The Final Question NOTES [C] Conducting the Voir Dire [1] Form of Questions [2] Keeping Track of Answers [3] Where to Stand [4] Style [5] Indoctrinating the Jury [D] Deciding Whom to Challenge [E] Exercising Your Challenges NOTE [F] Error and Protecting the Record NOTE ETHICAL CONSIDERATIONS [A] General Standards [B] Intentional Violation of Proper Jury Selection Procedure [C] Revealing Personal Information About Yourself xi

14 NOTE DOES CAREFUL JURY SELECTION MAKE ANY DIFFERENCE? JURY MANAGEMENT THROUGHOUT TRIAL NOTES Chapter 4 OPENING STATEMENT INTRODUCTION NOTE EXAMPLE OF AN OPENING STATEMENT NOTE OPENING STATEMENT LAW AND PROCEDURE [A] Right to Make Opening Statements [B] Procedure [C] The Content of Opening Statement [1] The Prohibition Against Argument [2] Discussing the Law [3] Reference to Pleadings [4] Discussion of Facts [5] Exhibits [6] Other Improper Matters NOTES ETHICAL CONSIDERATIONS Hawk v. Superior Court NOTE PREPARATION AND PLANNING [A] Length [B] The Contents of an Opening Statement [1] Introductory Remarks [2] Introduction of Actors, Places, and Instrumentalities [3] Identification of Disputes [4] Telling the Story [5] Making It Clear That You Are Discussing the Evidence [6] Weaknesses [7] Damages [8] Conclusion and Request for Verdict [C] Should You Waive or Reserve Opening Statement? [D] Should You Write Out Your Opening Statement? [E] Practice NOTES PRESENTING YOUR OPENING STATEMENT [A] Last-Minute Changes [B] Beginning Your Opening Statement [C] Delivery xii

15 [D] Responding to the Unexpected [1] Improper Opening by Opponent [2] Responding to Objections [3] Should the Defense Change Its Opening Because of What Plaintiff Does? NOTES Chapter 5 MAKING AND MEETING OBJECTIONS INTRODUCTION NOTES OBJECTIONS [A] Objection Procedure [B] How to Make an Objection NOTE [C] Tactics of Making Objections [1] Reasons to Object [2] Reasons Not to Object [D] Ethics of Objections NOTE RESPONDING TO OBJECTIONS [A] Should You Respond at All? [1] Reasons to Withdraw or Rephrase a Question [2] Reasons to Keep Silent and Let the Judge Rule [3] Reasons to Argue [B] How to Respond MOTIONS TO STRIKE [A] Procedure [B] Are Motions to Strike Worth Making? OFFERS OF PROOF NOTES Chapter 6 DIRECT EXAMINATION INTRODUCTION EXAMPLE OF A DIRECT EXAMINATION NOTE THE RIGHT TO PRESENT WITNESSES NOTE PLANNING DIRECT EXAMINATION [A] Understanding Legal Rules That Limit the Content [1] The Rules of Evidence [2] The Res Gestae Rule [3] The Rule Against Using False and Perjured Evidence xiii

16 [4] The Rule Against Repetition [5] The Rule Against Bolstering [6] The Rules Concerning Redirect Examination [B] Understanding the Trial Judge s Discretion to Manage the Trial [C] Pre-Trial Preparation [1] What Topics to Cover [2] Organization [a] The beginning [b] Background information [c] Setting the scene [d] Telling the story [e] What to do with weaknesses [f] Conclusion [g] Redirect [3] Making the Testimony Persuasive NOTES [D] Witness Prep [1] Preparing the Content of Testimony [2] Ethical Considerations [3] Preparing Witnessses for the Courtroom [4] Preparing Your Witness for Cross-Examination [E] Preparing a Good Outline NOTES CONDUCTING DIRECT EXAMINATION [A] Procedure NOTE [B] Forms of Questions [1] Leading Questions [2] Ambiguous, Unintelligible, and Vague Questions [3] Compound Questions NOTES [C] Form of Testimony [D] Handling Mistakes and Errors by the Witness [1] Correcting Mistakes [2] Refreshing Recollection [3] Dealing with False Testimony and Perjury NOTE [E] The Tactics of Conducting Direct Examination [1] Domination by Witness [2] Narrative vs. Fragmented Testimony [3] Phrasing Questions [4] Controlling the Witness [a] Controlling the content of testimony [b] Controlling the witness s delivery xiv

17 [5] Manner and Style of Attorney NOTE EXHIBITS AND DEMONSTRATIVE EVIDENCE [A] General Procedure for Handling Exhibits [B] Foundations [1] Real Evidence [2] Writings [3] Illustrative Evidence [4] Pedagogical Exhibits [5] Silent Witness Exhibits [C] Using Exhibits in Your Direct Examination [1] Whether to Use an Exhibit [2] Using a Diagram [3] Communicating the Contents of Exhibits to the Jury NOTES DEMONSTRATIONS AND EXPERIMENTS CONDUCTING REDIRECT EXAMINATION Chapter 7 CROSS-EXAMINATION INTRODUCTION EXAMPLE OF A CROSS-EXAMINATION NOTE THE RIGHT TO CROSS-EXAMINE NOTES THE CONTENT OF CROSS-EXAMINATION [A] Scope [B] The Good-Faith Basis Rule [C] Creating a False Impression NOTES THE FORM OF CROSS-EXAMINATION [A] Questions [B] Arguing and Badgering NOTES PLANNING A CROSS-EXAMINATION [A] Should You Cross-Examine? [B] Selecting a Purpose [1] Positive Cross-Examination [2] Negative Cross-Examination [a] Proving a likelihood that the witness is wrong [b] Proving the witness has in fact testified incorrectly [C] What Topics to Include [1] Does a Topic Advance Your Theory of the Case? [2] How Important Is a Topic in Relation to Others? xv

18 [3] Is a Topic Consistent with Others You Want to Raise? [4] How Safe Is the Topic? [D] Order of Cross-Examination Topics NOTES PREPARING CROSS-EXAMINATION QUESTIONS [A] Write Out Your Questions [B] Use the Witness s Own Words Whenever Possible [C] Index the Depositions and Prior Statements [D] Break Your Topics Down into the Smallest Possible Units [E] Ask Only One Fact Per Question [F] Always Ask Leading Questions [G] Keep Your Questions Simple [H] Ask About Facts, Not Conclusions [I] Don t Ask the Witness to Explain an Answer NOTES CONDUCTING THE CROSS-EXAMINATION [A] Last-Minute Preparation [B] Maintaining Control [1] The Single Most Important Technique for Maintaining Control [2] Controlling Runaway Witnesses [3] Knowing When to Abandon a Line of Questions [4] Know How to Impeach with a Prior Inconsistent Statement [5] Know How to Impeach with a Prior Inconsistent Omission [6] Choreography: Control through Movement [C] Handling Interruptions by Opposing Counsel [D] Handling Interruptions by the Judge [E] Manner and Style [1] Fairness Toward the Witness [2] Style NOTES Chapter 8 EXPERT WITNESSES INTRODUCTION SAMPLE DIRECT AND CROSS-EXAMINATION OF AN EXPERT WITNESS NOTE LEGAL FRAMEWORK [A] Is the Witness Qualified as an Expert? [B] Is There a Relevant Issue on Which Expert Testimony Is Permitted? [C] Is the Proposed Testimony Scientifically Reliable? [D] Expert Opinions [E] Cross-Examination and Impeachment NOTES xvi

19 8.04 PRESENTING EXPERT TESTIMONY [A] Whether to Use Expert Testimony [B] Selection of Expert Witnesses NOTES [C] Preparing the Expert to Testify [1] Initial Consultation [2] Planning the Direct Examination [a] Introduction [b] Qualifications [c] Tender the witness as an expert [d] Facts and opinions [3] Preparing the Content of the Testimony NOTES [4] Preparing the Expert for the Courtroom NOTE [D] Conducting Direct Examination OPPOSING EXPERT TESTIMONY [A] Voir Dire on Qualifications [B] The Daubert Hearing [C] Cross-Examination [1] Whether to Cross-Examine [2] Eliciting Favorable Testimony [3] Impeachment [a] Attacking personal credibility [b] Attacking the credibility of the testimony [c] Emphasizing contradictions between opposing experts [d] Attacking the expert s qualifications [e] Attacking the expert s degree of certainty [4] Preparation [5] Conducting the Cross-Examination NOTE POSTSCRIPT: ARE JURORS OVERAWED BY EXPERTS? Chapter 9 CLOSING ARGUMENT INTRODUCTION NOTE EXAMPLE OF A CLOSING ARGUMENT NOTE LEGAL FRAMEWORK [A] The Right to Make an Argument [B] Closing Argument Procedure [C] The Content of Closing Argument [1] Arguments About Facts and Evidence xvii

20 [2] Arguments Concerning Damages [3] Arguing That Someone Else Is to Blame [4] Arguments About the Credibility of Witnesses [5] Arguments Concerning the Law [6] Making Emotional Appeals [a] Appeals to sympathy [b] Appeals to prejudice [c] Wealth, insurance, and ability to pay [d] Sending messages and addressing social issues [e] Personal impact on jurors [7] Commenting on the Role of the Jury in the Adversary System [8] Discussing the Consequences of the Verdict [9] Personal Attacks and Comments [10] Use of Visual Aids [11] Use of Analogies, Metaphors, and Examples [D] Procedure for Objecting NOTES ETHICAL CONSIDERATIONS PREPARING CLOSING ARGUMENT [A] Content of Closing Argument [B] Length [C] Organization of a Closing Argument [1] Introduction [2] Brief Summary of Case [3] Identifying the Issues [4] Order of Issues [5] Resolving the Issues [6] Conclusion [D] Special Problems for Plaintiff [E] Special Problems for Defendant [F] Writing It All Down NOTES [G] Preparation During Trial CONDUCTING CLOSING ARGUMENT [A] Manner and Style [B] Speaking Rate [C] Choreography [D] Coping with Surprises [1] Improper Arguments [2] Rhetorical Questions and Challenges [3] Plaintiff Waives or Gives a Short First Argument [4] Use of Charts and Exhibits NOTES xviii

21 Chapter 10 DELIBERATIONS AND VERDICT INTRODUCTION JURY INSTRUCTIONS [A] Procedure [B] Content [C] Requesting and Objecting to Instructions NOTE DELIBERATIONS [A] Procedure [B] The Basis for Decision: What May the Jurors Consider? [1] Collateral Consequences [2] Exhibits [3] New Evidence : The Jurors Own Experiences, the Advice of Outsiders, Newspapers, Dictionaries, Etc [C] Re-Reading Jury Instructions and Testimony [D] New Instructions During Deliberations [E] Misconduct That Occurs During Deliberations VERDICTS [A] Must the Verdict Be Unanimous? [B] Quotient and Compromise Verdicts POST DELIBERATIONS PROCEDURE [A] Polling the Jury [B] Investigating Juror Misconduct Tanner v. United States [C] Clerical Errors APPENDIX EVERYTHING YOU EVER WANTED TO KNOW ABOUT EVIDENCE (but have forgotten since the evidence exam) A. GENERAL PRINCIPLES B. DETAILED OUTLINE OF IMPORTANT RULES OF EVIDENCE Relevancy (Rules ) Prejudicial Effect (Rule 403) Character Evidence (Rules ) Similar Events (case law) Habit and Routine Practices (Rule 406) Subsequent Remedial Measures (Rule 407) Offers of Compromise Civil Cases (Rule 408) Insurance (Rule 411) Rape Victim s Prior Sexual Conduct (Rule 412) Privilege (mostly statutory, some case law) Personal Knowledge Rule (Rule 602) xix

22 12. Impeachment of Witness for Past Acts of Fraud or Falsity (Rule 608) Impeachment of Witness for Prior Criminal Convictions (Rule 609) Impeachment of Witness for a Prior Inconsistent Statement Impeachment for Bias, Interest, or Motive (case law) Opinion Rule (Rule 701) Expert Opinions (Rules ) Hearsay Rule (Rules ) Hearsay Exceptions Hearsay Exceptions That May Be Used Only if the Declarant is Unavailable Telephone Conversations (case law and Rule 901) Authentication of Exhibits (Rules ) Table of Cases... TC-1 Index... I-1 xx