I’ve spoken at 2 CLEs in the last few weeks. Both presentations were to groups of public defenders. The first was on the topic of preserving a record on appeal. And the second was on motions practice in child abuse cases. Whenever I speak on these topics, I invariably hear the same response from folks in the audience: “my judge will never grant this motion / allow me to do what you are explaining / allow me to say the words you are advising me to say.”

To this, I always lend my perspective as an appellate lawyer. And I used two phrases in both talks. “Best case scenario, the judge grants your motion. Second best case scenario, the judge denies your motion.” If you win your motion, then you’ve made your trial more fair than it otherwise would have been. And if you lose your motion, then you have created an issue for appeal. After all, the fair trial is the appellate lawyer’s worst enemy. The second phrase is, “your job is to gather rulings and quotations.”

Whenever I enter a case as the appellate lawyer member of the trial team (every trial team should include an appellate lawyer, by the way), my goal is two-fold. I want to gather rulings. And if the judge is being nasty, I want to gather quotations. Rulings are the basis of argument section of the brief. And quotations from an angry judge make great stocking stuffers for the statement of facts.

Motions are the gift that keep on giving, no matter how they turn out.

If you have an upcoming trial, try this: spend thirty minutes, and draft one single motion. Don’t know what to ask for, then think of it this way. What’s one decision you would like from the judge that would make the trial more fair for your client. That’s it. One motion.

You obviously could set aside a few hours and draft several motions. But start with one. Then set it down for a hearing and argue it. If you win your motion, your trial will be more fair. If you lose your motion, you’ll provide a lawyer like me something to argue on appeal. And you may work the case out favorably without a trial by creating a moment to speak with opposing counsel on the day your motion is heard.

In most of the transcripts I read, the trial lawyer did not file even one motion.

The Lawyerist wrote an evocative post last week about when and how to object at trial. In it, Andy Mergendahl notes that “Objecting at times other than when absolutely necessary to keep crucial inadmissible evidence out will really hurt you.” He advises, instead, to handle as many objections as possible as motions in limine.

What I Mean by “Evocative”

When I said that the article was evocative, here is what I mean. At first blush, I was not keen on what he had to say. As an appellate lawyer, I read far too many transcripts where great issues are waived because there was no objection at trial or pre-trial motion where the appellant moved to exclude things. So, from the perspective of an observer who views many trials through the rearview mirror of the trial transcript, my first reaction was “you gotta be kidding me.” I have always wished that lawyers objected after just about every sentence spoken at trials. Why would anyone suggest that objections are a lose-lose proposition? Then I read and thought. And I concluded that he’s actually right.

Why Trial Objections are a Lose-Lose Proposition

What makes an objection a lose-lose proposition? Assuming that you win the objection, you actually lose because the jury could well figure out contextually what the evidence is or would have been. The jury thinks you are being slick and trying to hide things.

And if you lose the objection, you lose in multiple ways. First, you lose the objection. Second, the jury thinks you were hiding something. Third, you emphasize the stuff you were trying to keep out as particularly harmful to you. Finally, the guy with the robe on peers down over his glasses and proclaims publicly that you were wrong.

But again, what about the record?

Save Trial Objections to Crucial Make or Break Points

But I thought about it some more. And I actually think that he is right. Mr. Mergendahl did not say never to object. He said that it is best to save objections for “crucial” issues. Of course, if you have prepared well for trial, chances are that you have thought out what the most crucial issues are. And those issues are best handled in pre-trial motions. In a pre-trial motions setting, everything is handled while the jury is not around. The jury hasn’t already heard enough from the question to figure it out. You have put a great deal of thought and research into the issue. The judge has more time to think about the matter. And you are more likely to make a good record. If a proffer needs to be made, you are in a position to do it.

Beware the False Sense of Record Protection When You are Fighting Over Trivial Things

Actually, most of the junk lawyers fight over during trial has nothing to do with the outcome of the case. Think about the last time you objected in court. Were you really building a record, or were you really engaged in a pissing contest about the form of questions?

If you are enumerating as appellate error a trial judge’s ruling on “asked and answered” or “leading,” it’s time to go ahead and tell your client to unpack that last suitcase in his cell. Or a higher percentage way out of all of this mess may be a hacksaw hidden in a cake.

The real problem is not the failure to object during trial. Rather, the problem is that too few lawyers think through or have a reliable model for predicting what the big evidentiary and constitutional issue will be. And often it occurs to them in the middle of the trial, if ever. At that moment, they start blindly objecting. Next time you are in court and you see two lawyers really get into a fight over objections, I’d be willing to bet that you will really be watching a debate over the form of questions and not the substance of the evidence being admitted. And I’d also be willing to bet that you will be watching a debate over questions of leading, whether the question was “asked and answered,” or whether the question is argumentative. I won’t bet, I’ll guarantee, that neither lawyer is scoring any points for the appeal in this debate.

A Bunch of Objections to Form are no Substitute for an Appellate Strategy

But we’ve barely scratched the surface, dear reader. When you start objecting ad hoc in the midst of a trial with no real appellate strategy, you have even bigger problems. Let’s list some of them.

  1. You focus on things that don’t really matter. Trial objections that are shot from the hip are largely about meaningless stuff. You are probably in a riveting debate over whether a witness is being “badgered.” When is the last time you saw a conviction overturned because a witness was “badgered.” And why the hell is badger a verb anyway?
  2. You lose sight of the fact that you are getting screwed by the trial judge no matter how the ruling goes. Suppose you win your big important leading objection. The judge sustains it. The prosecutor will re-phrase the question in some non-leading manner. The trial judge begins to appear magnanimous, and you look like you’re turning the whole process into a game of Simon Says. In fact, if you are in the latter stages of a trial, and the judge suddenly starts ruling for you, chances are that he thinks your client is getting convicted and he’s hedging his bets against your appeal. Some trial judges rule with you on “form objections” to make themselves feel better about what they are going to do to your client at sentencing. Show me a judge who sustains defense counsel’s every objection as to the form of the DA’s questions, and I’ll show you a judge who has his calculator out trying to figure out how best to light up the defendant when the sentencing starts.
  3. The “Kick Me” sign. Or if the judge is less subtle and has no interest in appearing magnanimous in front of the jury (the JQC is zapping most of these judges as we speak), your objection over some meaningless issue presents an opportunity to toy with you. You won’t have much you can do with it all on appeal because hearsay/leading/asked and answered/badgering comes under the huge umbrella of “trial judge’s discretion.” So, with the wrong judge, the exercise of objecting is like hanging a big sign around your neck that says “kick me.” And kick you he will.
  4. It all gets intoxicating. There’s an old adage that “to a man with a hammer, all problems look like a nail.” Criminal defense lawyers virtually never get told that they are right in a Georgia court. So, when you say “objection, asked and answered,” and the judge says “sustained,” it feels like you’re on a roll at the blackjack table. You’re the half-starved lab rat who was just been given a food pellet for touching the red button with your nose. You want to touch the red button again. And again. And again. The prosecutor, by contrast, is the hyper lab rat who gets an unlimited supply of cocaine pellets just for showing up in the maze. Our scientist, the judge, has suddenly removed a single pellet. And the rat is freaked. Suddenly there is a battle raging, little more than a contest of egos, over the form of an insignificant question. You aren’t on a roll at the blackjack table—you’re getting screwed over. Or maybe it is a blackjack table and you are winning. It’s just that the blackjack table is in the casino of a cruise ship. And that cruise ship is the Titanic.

So, yes, the Lawyerist is right, but for more reasons than he imagines.

The Best Time to Bring in Appellate Counsel is at Trial

I’ll end with a story from recent experience. I am appellate counsel on a case. And I was on the defense team at trial as appellate counsel (Not that anybody conceded defeat. I was sort of like an insurance policy). My role at trial was to keep an eye on the appellate record. I came to court for some of the pretrial motions, but during the trial I did most of my work from my office. The trial was televised and it was streamed online. I DVRed the proceedings. So, when issues arose, the trial team would call me. I’d review the proceedings. I’d draft the motion in the evening. And I’d watch the motion get argued the next morning before the jury came in or after the lunch break.

The motions I wrote were not about whether a question was “asked and answered.” There was some long-term strategy in mind. I was the one guy on the team who looked at all of the proceedings through the appellate lens all the time. And by not being present in court, I didn’t get emotionally involved.

There’s a really awesome thing about being an appellate guy on a defense team during a trial. You start thinking about how you’d like to see issues play out on the transcript. You think about what you’d love for the judge to say as he rules against you. You start thinking up the things that you’d love for the DA to say as he puts the squeeze on you at trial. If your motion prevents a bad ruling, cool. If the judge ignores you and rules incorrectly, cool. And as the appellate guy, you keep your fingers crossed that you lose some of those motions. You’d like to have things to discuss with the appellate court.

When an appellate lawyer cracks open the transcript at the beginning of an appeal, he hopes against hope that he doesn’t find a fair trial in those pages. The more rigged it was the better (and this is Georgia, where the JQC seems to remove a judge every day for rigging the game in one way or another. Lots of the trials are rigged.). For an appellate lawyer, the last thing you want to find is a trial that was fair. And in Georgia, you’re in luck … if you play your cards right. But how do you do that?

More objections are not the answer. The answer is a well-thought-out appellate strategy that begins when trial counsel opens the case at the trial level. The goal, after all, is to preserve issues that could win on appeal. The goal is not to get a series of “attaboys” from the judge or to turn trial into an academic exercise where advocates compete to see who craft questions in the best form.

 

Today, my recent post on Amanda Knox was quoted by Ronald V. Miller in his Maryland Injury Lawyer Blog. He picks up on my point about the Knox case and other high-profile cases with an unexpected result. For clients and potential clients, such cases reinforce the often mistaken idea that, if you keep on slugging until there is no procedure left, no matter what the odds, you will eventually win. I thought about Mr. Miller’s post all day. And I decided to add a few point here about the idea of “fighting” through to the bitter end and what it means for the appellate process. There’s nothing wrong, in criminal cases, with fighting it through to the bitter end. Unlike in the civil arena where the central issue is money, in criminal law the issue is liberty. For a person with a lengthy prison sentence, the slimmest of odds may be worth the effort. When the issue is money, the time to stop is the point where the resources it might take to win begin to are outweighed by the odds of losing. So, let’s assume that any criminal case is worth taking the appellate and habeas process as far as you could possibly go, there is still an important question to ask. When does the client make the decision that he is in it for the long haul? For too many, that decision comes at the moment the jury files into the courtroom and delivers a guilty verdict. It’s a good decision that comes too late.

You don’t begin the appeal when the verdict comes, you begin the appeal when you open the case at the trial level. Part of client counseling involves planning for appeal. Unfortunately, nobody wants to talk about a guilty verdict at that stage. It’s one thing to purchase life insurance. But nobody wants to purchase life insurance from his doctor. But if you’re the trial lawyer, your job is to win the trial and make a record for appeal.

The movie Moneyball is applicable here. If you’ve not read the book or seen the movie, an important issue is how much traditional baseball stats really tell you about a player. For instance, RBI (runs batted in) is not the stat that you might think it is, because a player who doesn’t often bat with runners on base doesn’t get the same number of opportunities to hit RBIs as a batter who has other hitters in the line up. To drive a run in without base runners requires the batter to hit a home run.

Well, an appellate lawyer is essentially a batter who comes to the plate with two outs already recorded. Even the biggest power hitters will hit home runs infrequently. Take Hank Aaron, for instance. Aaron is remembered for hitting 755 home runs in his career. His total is impressive because he earned it at a time when players weren’t using steroids. But it’s important to consider his home run total in the context of his total career at bats. He had 12,364 career at bats. So the odds of hitting a home run, even for Hammerin’ Hank, were pretty low on average.

If the trial lawyer made a good record for appeal, through objections, motions, and rulings, then the appellate lawyer comes to bat with the bases loaded. At which point, the goal is simply to put the ball in play. It is helpful to look at appeals as analogous to RBIs. An appellate lawyer can hit home runs, but generally it’s much easier to appeal with a good record.

Now comes the part where the analogy breaks down. In baseball, the appellate lawyer can bat in more than one place in the lineup. In the past year or so, I’ve been fortunate enough to be brought into cases to handle motions and objections at the trial level. It’s great to be an appellate lawyer on a trial team. I have a particular role. I’m focusing on the record. The trial lawyer gets to smile for the jury and do all the other stuff trial lawyers do. And the appellate lawyer gets to put himself on base and hit himself in.

Unfortunately, I’m very often called in to pinch hit with two outs where I have to hit a home run to win. Hopefully more trial lawyers will start putting an appellate person on the trial team or at least start learning to see the game through an appellate lens. Hopefully more clients and trial lawyers will take a lesson from Moneyball and not from the Amanda Knox case, where the appeal was a “do-over” and not a detached examination of the errors at trial.

 

Last week, I had a post-conviction motion in a county where I never practice. The motion is under advisement, so I won’t go into the particulars about it or what happened at the argument. I write today about the things I did before the hearing started and I plan to do those things even when I find myself in court in more familiar places.

The first thing is that there is a sign in the hallway, just as you enter, warning you to turn your cell phone off. The sign said nothing of putting it on silent or on vibrate. Off means off. So, off it went. Next, I pulled out my laptop just long enough to get the files I needed for the hearing onto the desktop. Then, I did the worst thing I can ever do when I’m in a courtroom waiting for my case to get called and bored. I checked my email. I am reminded what productivity guru David Allen said about email: “Any email could be either a snake in the grass or a berry.” Many of my phone messages go to email. So, for me, checking email means also checking voicemail. And that day’s inbox was filled with snakes. But even berries were not what I needed to see at that moment.

I was dumb, but not that dumb. I saw from the snippets in the in-box that I had read too far. But I stopped before I opened any of them. In fact, it was time to close the laptop and step slowly away. I also knew I couldn’t trust myself so I turned off the wifi receiver on the laptop. With the phone off and its array of distractions away, I had three solid hours to sit there in this South Georgia Courtroom while the court handled other business. What, then, to do with my time?

I took a small notebook and a pen, and I moved from the jury box where I normally sit over to the pews, dead center of the courtroom where I could watch the lawyers, the judge, the witnesses, the court reporter, the bailiffs, and the clerk. I took notes on the things I saw. It was among the best two and a half hours I ever spent in a courtroom. I watched a pre-trial conference where two sets of pissed-off South Georgia family members would soon be pitted against one another in a jury trial without a lawyer to contest a will. I watched two motions to suppress, and I watched the calling of the calendar in its entirety.

With notebook in hand, I watched every objection, heard every argument, sized up how the judge talks to people in conferences, noted how witnesses are sworn (every courtroom is a little different. Sometimes the judge swears them in. Sometimes it’s the clerk. Sometimes it’s the lawyer. The oath is sometimes a little different, too). I noticed the atmosphere of the courtroom (the judge likes it to be quiet and orderly. There isn’t room for a lot of drama. The judge, not the lawyers, runs the courtroom. He quietly contemplates objections before ruling on them). I noticed where sequestered witnesses go before being called in (turns out, it’s in a room behind the bench and not out in the hall). I noticed a number of things I would not have seen had I been responding to email, fiddling with my phone, or going out into the hall to take calls.

There was a fifteen minute break between the first few cases and the next few before mine was ultimately called. I used that fifteen minutes to huddle with my client in the holding cell and my client’s family. We made a few changes to the game plan in light of what we observed.

I also saw how the prosecutor responded to certain situations. And I likely saw several things that changed my approach beneath the level of consciousness. For a couple of hours, I took it all in.

Had I been someplace else, I might have read some advance sheets, edited a brief, or responded to some “pressing matters” on the phone or laptop while I waited. Had I been in a more familiar place, I might have “visited” with other lawyers. And, had I not moved, I would have “watched” the whole thing from the sidelines instead of moving to a place where I could see all the body language and facial expressions.

I am going to integrate the lessons in to future court appearance even in closer lands. After all, just as you “can’t step into the same river twice,” you never step into the same courtroom twice. A courtroom is a dynamic thing that changes with the mood of the participants, the types of cases on the calendar, the weather outside, the witnesses who appear, and what the drive to the courthouse was like. I hope to really be in the next courtroom I enter. In fact, the next time I go to a distant one, I think I’ll come down a few days before just in case I don’t get the gift next time of being last on the calendar.

deposition.JPGA few months ago, the unthinkable happened on a habeas corpus case I am doing in South Georgia. The judge “suggested” that I handle some witnesses on a particular issue by deposition. There were all kinds of good reasons for it. The witnesses were spead out all over the State. I will probably get to explore more information and get more information on the record than I would in Court. The only problem is that I never do depositions. Lucky for me, I know a talented civil appellate lawyer and litigator and fantastic blogger who was kind enough to help me out. In addition, if you are in the same boat I am in, I hope he will help you out also.

Bryan Tyson is the editor of the SCOG Blog, which covers civil cases in the Supreme Court of Georgia. And he is my first guest blogger. The following is his guide to depositions for criminal lawyers, which I shamelessly requested for my own personal use. 

 

Deposition Pointers for Criminal Law Attorneys

The deposition is a normal part of life for civil litigators, but is often a completely foreign world for criminal law practitioners.  Knowing some basic tips about depositions can assist criminal law attorneys in representing their clients effectively.  Our goal is to provide some tips in four basic areas involving taking or defending a deposition: getting started, what happens during a deposition, making objections, and how to prepare a client for a deposition.

Starting a Deposition

To coin a phrase, if you know where to start, it’s easier to find where you’re going.  Starting a deposition if you are taking it can be challenging.  Generally, a deposition begins with a statement for the record of the name of the deponent, the way the deposition was noticed, and the logistics of how the deposition will be taken.  At least using an opening with these elements will make the other side think you know what you’re doing.  An opening may sound like this in a state court proceeding:

This will be the deposition of [DEPONENT] taken pursuant to notice and with the agreement of counsel.  The deposition of [DEPONENT], is taken by the [PARTY NAME] on cross-examination for the purpose of discovery and all other purposes authorized by the Civil Practice Act and the Evidence Code.  All objections except as to the form of the question or the responsiveness of the answer are reserved until such time as the deposition is used.

The reservation of objections is typical at the outset of a deposition in order to ensure an orderly flow.  If there is an objection to hearsay, for example, the deponent generally still answers the question on the record, but if the party taking the deposition attempts to use the deposition later, the court would have to rule on the hearsay objection.

After the initial statement, the next issue typically covered is whether the witness wishes to read and sign his or her deposition.  This allows the deponent to review the transcript and make minor corrections prior to the court reporter finalizing the transcript.  This is usually phrased in the following fashion, directed to the deponent’s counsel:

Have you discussed reading and signing?  or

Does your client wish to read and sign?

The attorney taking the deposition then requests the court reporter swear the witness, and the real work of the deposition begins with questions and answers.

During a Deposition

Deposition questions generally begin with the name and address of the individual for the record.  It’s also wise to ask a series of questions to see if the deponent will volunteer any information that could be interesting or relevant.  There are plenty of stories of individuals volunteering all kinds of information that could prove useful later in the case.  Some examples:

  • Whether the individual is under the influence of any medication (if so, it is often wise to suspend the deposition until the individual is no longer under any influences);
  • Whether the individual has ever been arrested for or convicted of a crime;
  • Whether the individual has any outstanding arrest warrants;
  • What type of education or specialized training the individual possesses;
  • The individual’s employment history;
  • The individual’s family relationships;
  • Whether the individual has discussed their deposition or the case with anyone who is not their attorney.

Another very helpful tip during the course of a deposition is to remain quiet after asking a question.  Dead air in the room is not reflected in the transcript, and often a deponent will fill the empty space by volunteering more information.  Similarly, looking expectantly at the deponent even after they have finished an answer will often motivate them to continue speaking.

Objections

Objections are often the most challenging part for an attorney taking or defending a deposition, but for criminal law practitioners, this may be the easiest part.  Any objection that would normally be made during a trial is available during a deposition.  Therefore, any objections you would typically make at trial can be made on the record during a deposition.

Objections should be stated clearly and on the record after the question is asked but before the deponent answers, including the specific grounds.  In most cases, a question should still be answered after the objection is made.

Objections to the form of the question or that a question is leading can often be remedied by simply rephrasing the question.  Other objections can be more complicated.  For example, a question requesting attorney-client privileged information should result in an objection from the attorney defending the deponent, along with an instruction to the deponent not to answer the question. 

On occasion, an attorney will attempt to coach his or her client by strategically objecting to questions.  If you notice this occurring during the course of a deposition, it is often best to address the situation by taking a break and discussing it with the other attorney one-on-one.  If this fails to solve the problem, deal with it on the record.  If that fails to resolve the issue, it may be necessary to suspend the deposition until it can be addressed by the court.

Preparing a Client for a Deposition

The primary goal in preparing a client to handle a deposition is to ensure that he or she does not unnecessarily volunteer information.  While a client should answer all questions fully, he or she should try to say as little as possible in answering the questions put to them.

When taking a deposition, many attorneys will try to draw the deponent into a level of comfort by turning the deposition into a conversation.  Clients should avoid lowering their guard and freely sharing too much information with the attorney taking the deposition.

Conclusion

Depositions are a useful tool for learning facts about a case.  Although depositions may appear intimidating at first, they function as valuable places to learn the necessary facts about a case.

rubber stamp.jpgJudges seldom grant motions for new trial. I have various theories about why. And they range from being sympathetic to the judge to utter cynicism. Sometimes, there just wasn’t any harmful error. Sometimes, the judge couldn’t fathom that he made a mistake. Sometimes, it’s just too dang expensive to try the thing twice. And some judges take a Roy Moore sort of pride in being battered by them judges in Atlanta. That said, I think you should load up and give motions for new trial everything you have. There are a few good reasons to do so. 

  1. Issue spotting and Issue experimentation. I view the motion for new trial as the ultimate issue spotting exercise. I like to sit down with the trial transcript and summarize it. I then work from the summary to spot as many errors as I can and put them into the amended motion for new trial. Many will be jettisoned when it comes time to draft the appeal. But I like to build the amended motion for new trial as a menu of possible appellate issues. This process serves several purposes. You learn the record. You figure out what works and what doesn’t. You force your opponent to research everything you list out and see where he is weak. Finally, if you find yourself on the habeas witness stand, the amended motion for new trial is tangible proof that you considered all of the possible viable issues during the preliminary stages of the appeal. I suggest that you place a memo to the file setting forth why you have chosen to abandon issues when you draft the brief of appellant.
  2. It is an opportunity to put things in the record. In Georgia, you must raise ineffective assistance of counsel at your earliest possible opportunity. You can try to bootstrap issues not raised at trial through an ineffective assistance claim and call witnesses to proffer what a better trial would have looked like.
  3. If you were the client, you wouldn’t want your lawyer to coast through any stage. You should manage your client’s expectations of the hearing, but you should still give it everything you have. I went to a high school that moved up a division when I attended. We were outmatched in every game we ever played. Everybody knew that they were going to lose when they went into those games. But everybody gave it their all. Your client deserves your all, too. If you don’t like battling long odds, the probably the whole criminal appellate process isn’t for you.
  4. You just might win. It is possible that your performance at the motion for new trial hearing will scare the judge so much about a reversal or the prosecutor so much about the prospect of a new trial, that you might get a good offer or even win a new trial.

So if you have a motion for new trial coming up, come to it dressed to play. While you will likely lose, don’t treat it like the rubber stamp that it is and it might just not be a rubber stamp all the time.

Hearsay.JPGIf there’s one evidentiary issue that you will encounter in your next jury trial, it’s hearsay. It comes up all the time, and some lawyers and judges don’t have a firm grasp on it or its exceptions. Beyond that, trial lawyers often stop short of fully developing their record because they fail to make an objection under the Federal and Georgia Constitutional Confrontation Clause.

When you or some other appellate lawyer get ready to appeal a possible conviction, you will wish that the objection had been “constitutionalized” for appeal. As a start, just say, “Objection, the evidence that counsel is eliciting is hearsay. The testimony would also violate my client’s rights under the United States and Georgia Confrontation Clause.” If you think you might forget, you could also consider filing a motion to constitutionalize ever hearsay objection. Beyond that, it’s really important to get to know the Confrontation clause a little better. Below are some Confrontation Clause resources:

  • The Confrontation Blog. Professor Richard Friedman at the University of Michigan Law School has maintained a blog on the Confrontation Clause since 2004. It does not get updated as much as is it did in the heady days after the United States Supreme Court issued the Crawford v. Washington decision. But major developments since Crawford can be found there. 
  • Wikipedia. Don’t cite it in Court, but use it as a good starting resource for the Confrontation clause. Their entry on the Confrontation Clause and on the Crawford decision are good places to turn for an overview refresher on the subject. 
  • Key Cases. Read them and know them. Put them on your trial tool box. Obviously, Crawford is the biggest Confrontation case in the past 100 years. So have a copy ready in Court highlighted and underlined. There have been three other important cases since Crawford. One is Davis v. Washington, that clarifies what testimonial hearsay is (it generally is not a 911 call).  The other is the Melendez-Diaz case, from 2009, holding that sworn affidavits from a crime lab are testimonial in nature. In Giles v. California, the act of killing a witness is not a forfeiture of the right to be confronted unless a trial court finds that the motive for murder was to silence the victim’s testimony. 

The opportunities to develop the law in the area of Confrontation abound. Much appellate litigation remains in this area of the law. For instance, is every 911 call non-testimonial? What if it isn’t truly an emergency but an attempt to preserve a story? What about statements of confidential informants?

Bottom line, don’t just make a hearsay objection. Object under the Confrontation clause. And don’t just object under the Federal Confrontation Clause. Object under the Georgia Confrontation Clause as well. You’ll have more options for appeal than a simple hearsay issue, most of which are resolved under a prosecution-friendly standard of review. Let the key cases be a guide on how to voir dire witnesses and develop your arguments at the trial court level so that you have an opportunity to develop the law and win your case on appeal later.

preacher man.JPGI’m off tomorrow morning to speak to the Henry County, Georgia, Bar Association. The topic is a good one after wrapping up a week of trial. That topic is preserving the record for appeal. It seems like every seminar has the preserving the record speaker, the ethics speaker, and the professionalism speaker. You can tell when one of those speakers is up because the half of the room that is awake is out at the little snack area. Tomorrow, I am one of those speakers. And I’m on at 8:15 on the seminar’s second day — affectionally known in CLE parlance as “the hangover hour.”

To top it all off, I have decided to do my presentation using Prezi. I’ve seen a few talks with this system, and it seems like a great alternative to Keynote, which is what I usually use. The free-flowing system appears to lend itself to conversation and questions.

The first order of the presentation was to define exactly what it means to preserve a record for appeal. And I think I hit upon a good definition for it that is very commonsense. So here goes the definition:

Giving the trial court the opportunity to make a decision now so that the appellate court can make a different decision later.

Later in the talk I will discuss how your likelihood of success on appeal is directly proportional to the rate of judicial decisionmaking that takes place at trial. At the same time, a criminal case is a play in two acts. Ideally, you want to win it in the first act, but if you don’t you need a script for the second act. Getting that script sometimes means getting yelled at in act one.

I was reminded this week of all that goes into trying to win act one while ensuring that there would be an act 2.

I’ve been the preserve the record guy at other CLEs in the past. After this week’s trial, I’m approaching it with more humility to the trial bar. I will be nowhere near as preachy on this topic as I have been in the past.

Teacher and students.JPGOn the first day of this week’s foray into criminal trial practice, I wrote about what a felony trial has been teaching me about appellate practice. Then a rejoinder form a commenter made me think that blogging during trial was not the greatest idea. Yesterday, the trial resulted in a mistrial. An hour into deliberations, the jurors were split 8-4. The judge sent the jury back to deliberate more, and the split became 7-5. The judge declared a mistrial after they reported that 7-5 was about as far as it was going to change. And since the trend appeared to be moving away from a agreement, the trial court declared them to be a hung jury.

I write, not to report that the jury was hung but about an interesting appellate lesson that I learned on day two of the trial and also what I learned when I spoke to the jurors after the action was over.

The case involved an indictment for child molestation. One of the biggest problems for the State was that the victim recounted the story to different people in inconsistent ways. To the police the complaining witness testified that my client entered the room once where the alleged act was committed. To the mother, she said that he entered the room only once. She made both statements on the same day.

The complaining witness testified that she might have said, at some time in the past, that he entered the room twice. Yet, she insisted on the stand that he came into the room once.

The State’s next witness was the complaining witness’s mother. The prosecutor knew that he had to deal with the mother’s written statement that the daughter told her that he entered the room twice before I made a big deal about it on cross-examination. He tried to offer up possible reasons why she might have written the two-visit version. Each time, it was a leading question. I objected. The objection was sustained. Finally, the witness sensed what she was supposed to try to do.

She blurted out, “I was upset. This whole thing was upsetting. I had to take my daughter to therapy.”

Victim impact evidence is wholly improper for guilt-innocence. I asked the jury to be excused, and I moved for a mistrial. The Court found that the prosecutor had not intentionally elicited the response about therapy but that the questions were such that they invited such a response. He warned counsel not to ask any more such questions. He then denied my motion. I renewed my motion because you must renew a motion for mistrial after the court admonishes counsel or takes any other corrective action. He asked me if I desired a limiting instruction. I said that I did though I believed that “no limiting instruction could undo the harm.” He gave the limiting instruction, and I renewed my motion.

The trial proceeded. I worried about the injection of therapy into the trial. It bolstered the idea that something had happened, and it injected victim impact.

Then I interviewed the jurors afterward. They said that the therapy stuff helped me. They wondered why the State failed to bring in the therapist as a witness. Which, of course, the State could have to rehabilitate with a prior consistent statement after I had impeached with prior inconsistent statements.

So, it turned out that I got to have my cake and eat it too. The State had gone into some forbidden evidentiary stuff. The State was admonished. The jury was given a limiting instruction. The issue was preserved for appeal. The jury promptly ignored the limiting instruction and used the evidence anyway. But they used it in a way that was helpful to me.

Sometrial the best objections are overruled and the best motions are the good ones that are denied. It would have been an interesting appeal. It turns out that the jury granted me a new trial (or hopefully not).

You can learn a great deal about appeals from doing a trial. And I also learned that appeals have taught me much about doing trials. It’s been a fun and tiring week.