Traveling the Multidisciplinary Team Road Toward the Courtroom Part One Andrew Agatston www.agatstonlaw.com ahalaw@comcast.net Macon 2014 Deflated MDT or OMG?
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Theories to ponder Statutes, appellate decisions, rules of the road. Statutes, appellate decisions, and public policies. Statutes, appellate decisions, and how it affects our professional roles. What are Legal Eagles? Trial preparation begins the day they open their files. They understand legal concepts that impact their professional roles. They understand the general Rules of the Road tactics attorneys use when trying cases. Targets of Appeal Work Bolstering/vouching Availability of evidence to defendant (counseling info, e.g.) Experts Forensic interviewers Hearsay, child hearsay, hearsay exceptions Children credibility issues
The Gregg Factors Spontaneity of child s statements; Age of the child; Child s general demeanor; Child s physical and/or emotional condition; Threats or promises; Child s general credibility; Presence or absence of coaching; Consistency between child s repeated statements. Atmosphere and circumstances surrounding statement; You better know Crawford The issue in these Confrontation Clause cases Can the out-of-court statement be admitted into evidence without violating the accused right of confrontation?
Crawford meets Hatley Analysis of Georgia s Child Hearsay Statute (now O.C.G.A. 24-8-820) A statement made by a child under the age of 14 (16) years describing any act of sexual contact or physical abuse performed with or on that child by another shall be admissible in evidence by the testimony of the person to whom made if the child is available to testify in the proceedings and the court finds that the circumstances of the statement provide sufficient indicia of reliability. Crawford meets Hatley Get out the highlighter A statement made by a child under the age of 14 (16) years describing any act of sexual contact or physical abuse performed with or on that child by another shall be admissible in evidence by the testimony of the person to whom made if the child is available to testify in the proceedings and the court finds that the circumstances of the statement provide sufficient indicia of reliability. Crawford analysis Rule: Admission of out-of-court statements that are testimonial violate the Confrontation Clause unless the declarant is unavailable and the defendant had a prior opportunity for cross-examination. Testimonial: those statements that objectively indicate that the primary purpose is to establish or prove past events potentially relevant to future prosecutions.! Non-testimonial: those made in the course of police interrogation under circumstances objectively indicating that the primary purpose of the interrogation is to enable the police to meet on ongoing emergency.! If non-testimonial, confrontation clause is not applicable.non-testimonial, confrontation clause is N/A.! But hearsay is! Non-testimonial statements must be analyzed under traditional hearsay evidence limitations.
Crawford meets Hatley Statements made by child in Hatley Mother at the motel Three police officers at motel with alleged perp still present Sexual assault examiner at hospital Forensic interviewer a few weeks later Intermission Time Traveling the Multidisciplinary Team Road Toward the Courtroom Part Two Andrew Agatston www.agatstonlaw.com ahalaw@comcast.net Macon 2014
The Known Knowns: This Is What I Know I Know Witnesses have the wrong focus Let s Talk About You What are your concerns? What do you think is going to happen to you when you are on the stand?
Witness-Centered Thinking Change The Perspective Service-Centered Thinking
Who Are You? You Protect and Serve. You treat, counsel, and assist children who have been sexually and physically abused. You assist in coordinating services to those who cannot afford them. A Comment on the Decision Makers It is just not a natural or everyday thing to do, to pass judgment on people, to send them to prison.! --Judge Denny Chin
Jurors How to help? How Do Jurors Decide?
SuperWitnesses Help Tilt The Scales But it s not their job to win the case! Walk, don t shuffle, to the witness stand Raise that hand high and say Yes. That s all.
You can teach, be interested, be engaged. Be intentional You can be aware of the slice of the pie You are not responsible for defense lawyer s anger, sarcasm, unprofessionalism, yelling, minimizing, dismissiveness, misunderstanding, misleading, etc., etc., etc. That means: Own Your Reaction! Don t dodge difficult questions Deep breaths before rebelling against a cross-examining lawyer a/k/a Who was that for? More: Why are you doing that?
Volunteering information May I explain my answer? A-S-S-U-M-E = B-A-D Stop talking down to the jurors Stop looking for help Stop forgetting your protocols, practices and standards
Resist interrupting or overlapping speech You re a witness, not an advocate Your not here to outwit the lawyer Dr. Jekyll & Mr. Hyde Not correcting errors on the spot Not defining self concisely Answering before understanding
The Power of Ten Pointers From A Judge Be prepared. Be interested. Be brief. Be serious. Be humble. Be courteous. Be confident. Be aware of me. Be aware of the impression you re leaving. Be truthful. Thank you for what you do. ahalaw@comcast.net