Category: Posts

Of all the questions I get regarding cross examination and trial work, “how do you deal with difficult judges?” is asked the most often. During Episode 15, I explore the qualifications of becoming a judge and share stories of how I’ve dealt with difficult judges in the past. Most jurors and members of the public think that a judge must’ve been an amazing all-knowing lawyer and must know all areas of the law. Wrong. Worse, some judges cannot help but interfere in the trial and interfere in the cross examination.

How do you handle these judges without losing the jury and without hurting your client’s case? Very carefully.

Listen to Episode 15 for more …

Please be aware we are relying on impressions, recollections, memories and interpretations.

Whether intended or not, prosecutors are the most powerful entity in the criminal justice system.  That’s right.  You probably thought judges were.  While judges have tremendous power, in the end prosecutors have more.  They have the power to charge people with crimes, decide what crimes to charge, seek enhancements, make plea bargains, propose sentence agreements, etc.  The list is endless.  It is because prosecutors have so much power that special rules of responsibility (ethical rules) apply to them.   Prosecutors are supposed to ministers of justice and not just advocates.  Think about that for a moment — ministers of justice.  That means they have an additional responsibility to not just advocate for a conviction but to do justice.  

While most people know of prosecutors who work for the government or state, there is another type of prosecutor that most are unaware of — the city or municipal attorney.  Some cities hire their attorney or prosecutors internally.  In those cities, the attorneys function like a prosecutor hired by the state or county — they are government employees. However, most are not.  Most work for private law firms whose firms bid for a contract with a municipality or city.  These contracts can be withdrawn or terminated or the firm could, if the city is displeased with the relationship, could be lost during a competitive bidding process.  

This podcast is devoted to this type of prosecutor, the city attorney who works for a private law firm who wants to keep the city contract.  While most that I’ve encountered are responsible and can put aside the need to keep the city or municipality pleased, some do not.  What happens then? What happens when the city or municipal prosecutor is servant to two (2) masters, justice on the one hand and those that hired them on the other?

Please be aware we are relying on impressions, recollections, memories and interpretations.

We can learn a lot by watching someone do it right. We can also learn much, maybe even more, by watching someone do it wrong or poorly.  And this episode I break down and tear apart a cross examination done by another lawyer of a very important state expert witness.  I hold nothing back.  I. Hold. Nothing. Back.  

From asking open-ended questions, to having no plan, to not having ammunition to challenge the witness to asking questions of the witness that could do nothing but help the witness appear stronger, I point out various parts of the cross examination so that listeners and others can learn … what not to do.  If you can’t help your client or the case with asking questions, then don’t.  Just sit down.  But in this cross examination, the one that we tear apart, the lawyer did the opposite.  He brought a butter knife to a battlefield when the other side was armed with nukes and then tried to puke at the expert.  Not only did not help his client, it emboldened expert, made him appear more credible and gave the prosecution the appearance of having solid ground to stand on.

There is something called the sponsorship theory of trial advocacy .  If you put evidence out there or question a witness, the judge and/or jury will assume that the information you have or the information you are advancing is as good as it gets.  They will assume that you’re doing all you can and if you can do is hurt your position and aid the other side, the Court or jury will draw that conclusion.  This is to be avoided at all costs and in this episode, I break down a cross examination that did just that in my opinion, undermined the defense and helped the expert and state make their case even stronger.  

If you want to learn what not to do, in my opinion, tune in.

Please be aware we are relying on impressions, recollections, memories and interpretations.

From a young age, we’ve been told that ignorance of the law is no defense to a criminal offense or charge.  But shouldn’t it be?  The concept that ignorance of the law is no defense is rooted in the notion that we should know what the laws are and govern ourselves accordingly.  But how can we? Every year, the legislature passes more and more laws making more and more acts criminal violations.  For years, the legislature was creating on average of 45 felonies a year.  That doesn’t include misdemeanors and doesn’t include local municipalities.  The number of new laws is just staggering.  It is impossible to keep up with.  But even if you could, you’re required to know how those laws are being interpreted by the various appellate courts as well.  It is simply overwhelming.  

It can even prove overwhelming for the police yet, according to our courts, the police can be ignorant about whether was something was a crime and the evidence they seize or gather as a result of their mistaken believe that you were committing a crime is still evidence even though they were wrong so long as they acted reasonably or in good faith.  You read that right — if you act reasonably or in good faith, you can still be charged and convicted but if the police do the same thing, the evidence they seize can still come in as evidence against you.  We should get back to a different standard — criminal intent.  Either you intend to break the law or you don’t.  If you do, you should be able to be prosecuted.  If you don’t, you should not or at least you should be able to defend yourself saying, “I acted in good faith.  I thought what I was doing was legal.”  If it is good enough for the police, it is good enough for the rest of us.  

Tune in and hear my take. 

Please be aware we are relying on impressions, recollections, memories and interpretations.

In this episode, Neil Rockind discusses the concept known as the “Presumption of Innocence” and describes why it is such a cornerstone of our justice system. He analyzes the impact and effect of this presumption and explains the grave danger inherent in disregarding this essential aspect of the law.

By incorporating clever examples of how this would fare if it was applied in our daily lives, Neil makes clear just how destructive it may be when we choose to ignore the presumption of innocence and instead jump to conclusions. Listen to Episode 11 to hear more!

Please be aware we are relying on impressions, recollections, memories and interpretations.

Gathering Evidence of Innocence Should Come First

Did you know that the police and prosecution must turn over evidence favorable to the defense to the accused?  Did you know that the US Supreme Court has stated that it is a denial of due process for a prosecutor not to turn over favorable evidence? Likewise, did you know that even if a prosecutor is unaware of the evidence, if any member of the police department or someone within the sphere of influence and control of the prosecution knows about it, it must be disclosed.  Yet, why do cases still get overturned for the failure of evidence to be disposed?

Perhaps the root of the problem is that some police officers do not took for evidence of innocence or as we call it, “exculpatory evidence”.  Instead, the police simply seek out evidence that confirms the allegations or “helps prove the charges” rather than seek or attempt to obtain evidence that undercuts the allegations.  Most police officers would claim that they are neutral, i.e., that they just gather evidence without bias but when do they overlook evidence that tends to exculpate the accused so regularly.

Within the last month, I’ve cross-examined 2 police officers who both admitted that they didn’t know what exculpatory evidence was.  Isn’t that shameful?  How can police officers claim to look for something and claim to preserve it if they don’t know what it is?  How can prosecutor’s claim to have turned everything over and to be even handed ministers of justice, if the police officers that are working with them don’t know what exculpatory evidence is?

Things should change.  If they haven’t looked for and processed all evidence, and most importantly, evidence that favors the accused, than a person should not stand trial for that offense.  Hear me discuss this issue in Episode 10.

Please be aware we are relying on impressions, recollections, memories and interpretations.

Watch And Listen To The Witness Rather Than Taking Notes

There’s a court reporter either sitting somewhere in the courtroom or someone ready to turn the recording into a verbatim record. So, stop looking down at your notepad trying to take down word for word what the witness says in direct examination. Instead, just as you’d tell your child or teen to pick their head up from their phone, pick your head up and look at what’s happening in front of you. Much of communication is non-verbal. Movements, positioning, facial expressions, arm and body placement and style of answering, eg, direct or narrative and rambling, can only be learned by watching a witness. So, watch. This not only applies to witnesses but in life … watch how others communicate rather than trying to remember what he/said, watch how they’re saying it.

I once was prepared to examine a witness in a trial whose demeanor told me everything. He was hostile, angry and vengeful about my client not having promoted him years ago. I could only tell how hostile by watching his demeanor. His tone and posture revealed that he was trying to spike the balk and my client’s future with every answer. That was only learned by watching him. Had I shoved my head in my notepad, I’d have missed it. It proved to be an easy cross examination because the jury, once I shared with him/them, his motivation and bias, he manner of speech and communicating made sense. They discredited what he had to say.

Episode 9 is devoted to this tip on cross examination. You’re not a note taker. Listen. Watch. You’ll learn a lot more than you will from having “good notes.”

Please be aware we are relying on impressions, recollections, memories and interpretations.

You’re Your Own Worst Enemy

The system has to work in all cases including cases in which people are accused of drunk driving or DUI. But is it? Over the years, these investigations have become one-sided, slanted and skewed. Exculpatory and favorable evidence is ignored. Any misstep by the driver is interpreted, without question or query, as evidence of intoxication or impairment. Even the slightest physical “sign”, e.g., bloodshot eyes, is assumed without follow-up or investigation, to be the result of alcohol or drug consumption and intoxication. When we query the police about whether they made any inquiry at all or did they just assume, they are cornered time and time again into admitting they made assumptions and relied on supposition. Yet, it continues. 

In episode 8, I explore how intoxicated or impaired (DUI cases) are built by the police from the initial observation of driving to the arrest. I explore how the process is skewed and how the legal system has over time become seemingly tolerant of slanted investigations into allegations drunk driving. You’ll hear how the police have been permitted to ignore troves of favorable, exculpatory evidence while cherry picking a couple of “bad” facts and using those against the driver. Any mistake that could be due to nerves or fear is noted as a sign of intoxication and impairment. And if the driver acquits himself perfectly on all of the questions and tests, the police just assume that “he’s a good drunk” and “he holds his liquor well.” What’s worse … nearly all of the evidence gathered in the investigation comes from the driver’s own mouth and his own deeds. After arrest, if the police want to interrogate you, Miranda Warnings (the subject of Episode 7) are required. But during a traffic stop and investigation into drunk driving, they aren’t required. And because people choose to answer questions and participate during these skewed investigations, they end up providing most of the evidence against themselves. They unwittingly assist and aid the police in making the case against them and they do so thinking they have a chance to convince the police that they weren’t intoxicated, impaired or high. They end up being their own worst enemy. 

Please be aware we are relying on impressions, recollections, memories and interpretations.

Episode 7- Miranda Warnings, You’ve Been Warned

Anyone who has watched any television show involving cops or the legal system, knows the Miranda Warnings.  We know the words but what do they really mean. Not using legalese or fancy lingo, what do each of the rights really mean to the average person.  How should you understand them? And why do so many people despite the warnings, waive them and make statements to the police that harm their case?

We tackle this subject in Episode 7. I break them down in a way that you’ve never heard. You’ll never think of the Miranda Warnings quite the same.

Please be aware we are relying on impressions, recollections, memories and interpretations.

Episode 6- Witness Credibility

While some trials involve forensic or scientific evidence, all trials involve an element of witness credibility.  Historically and as a matter of common sense, we know that some witnesses will lie, get together and get their story straight or at least try to.  We separate our children and students in class when we’re trying to figure out who broke the vase. Where the stories diverge or contradict, we can start to get at the truth.  There is an old biblical story about 2 elders who accused a woman, Susanna, but were caught lying during a trial.  How? They were separated. Sequestered. And when their stories differed, it was evident that she was innocent and they were lying.

In the law, there are rules to create the same environment.  Sequester witnesses so that they cannot hear what the other has to say.  This allows us to show contradictions, inconsistencies and even outright lies.  This is what cross is about but there is a rule, a procedural rule, that is used by the prosecution and state to get around this rule in an important way: they are permitted to have a police officer sit in the courtroom the entire time and listen to what every witness says. Even when that officer testifies, they can designate another officer to sit there and do the same thing.  While every other witness is sequestered, the detective is not.  It’s unfair but there is a way to deal with it.  Listen and find out …

Please be aware we are relying on impressions, recollections, memories and interpretations.