Author Archives: Richard A. Cook
Leaders, Loners and the Art of Jury Selection.
Often times you cannot eliminate troublesome jurors. This can be a real problem since developing challenges for cause against an unfavorable juror can be difficult and at times impossible. In such cases, you want to use your peremptory challenges against such persons if they will affect the outcome of your case.
In federal capital cases, both the government and the defendant are allowed twenty (20) peremptory challenges. In non-capital felony cases, the defendant is granted ten (10) peremptory challenges and the government is allowed only six (6). In misdemeanor and civil cases, each side has three (3) peremptory challenges. Federal Rule of Criminal Procedure 24 and Federal Rule of Civil Procedure 47; 28 U.S. Code § 1870, Challenges.
Under Indiana Jury Rule 18(b) “In civil cases each side may challenge peremptorily three (3) jurors.” IC 34–36–3–3(a) ( “Each party in a civil case has three (3) peremptory challenges.”). In Indiana State Court, in capital cases, both the State and the defendant are allowed 20 peremptory challenges. In non-capital felony cases, the State and the defendant are granted ten (10) peremptory challenges. In Class D Felony and misdemeanor cases, each side is entitled to five (5) peremptory challenges. In all state civil cases, each side has 3 peremptory challenges. When several defendants are tried together, they must join their challenges. Indiana Jury Rule 18.
As to alternate jurors, one (1) peremptory challenge shall be allowed to each side in both criminal and civil cases for every two (2) alternate jurors to be seated. Id.
So how does one make the best use of their peremtory challenges? Well if you cannot get rid of the juror for cause, then you have to figure out which jurors to focus on for purposes of exercising your peremptory challenges. I suggest that you focus on persons who are either loners or leaders. The bulk of people who make up juries are essentually followers. They will tend to go with the flow.
Ultimately persons who are natural leaders will exercise the greatest influence over the juror’s deliberations. It’s important to identify persons who either have leadership qualities or background traits which will lead other jurors to look to them for guidance. If a person has had prior jury service, then other jurors will naturally look to them for guidance as to what is happening in the court room and how to handle their deliberations. Likewise, persons who have assumed the role of leadership in either their profession or in outside organization will have the greatest likelihood of assuming a leadership role on the jury. Person who meet this criteria deserve special attention and need to be thoroughly questioned to make sure that they will not be a problem for your case.
Persons who are potential “loners” also need to be thoroughly questioned since they could hold up deliberations or force an undesirable compromise. Loners have a tendency to stand their ground and be unwilling to compromise or conform to the wishes of the larger group. I have had more than one jury where I have learned after the fact that a lone juror was a hold out for a particular verdict. Their staunch and unyielding position results in either a compromise verdict or a hung jury. When trying to identify a loner, you need to identify whether or not the person choses voluntarily to be a loner or is forced by circumstances to be a loner. Those who voluntarily decide to be a loner, act as a nonconformist and set themselves apart from the rest of society, can be a potential problem. Such persons are used to standing alone and may hold out for a particular verdict even though their opinion is unpopular and outnumbered by others.
Ultimately, you want to use your peremtory challenges on persons who will likely effect the outcome of your jury’s deliberations in an adverse fashion. So first look for the “leaders” and “loners” in your next jury panel.
When silence is golden… The tacit admission.
Indiana Rule of Evidence 801(A) provides:
A “statement” is (1) an oral or written assertion or (2) nonverbal conduct of a person, if it is intended by the person as an assertion.A tacit admission may be made when a person remains silent or makes an equivocal response to an accusation which the person would ordinarily be expected to deny. The accusation must be made in the presence and hearing of the accused person, and the person must have an opportunity to respond. 16 INPRAC § 7.9d Criminal Procedure–Pretrial. A tacit admission may be made when a person remains silent or makes an equivocal response to an accusation which the person would ordinarily be expected to deny. The accusation must be made in the presence and hearing of the accused person and the person must have an opportunity to respond. 12 Ind. Law Encyc., Evidence, §§ 135, 136; House v. State, 535 N.E.2d 103 (Ind. 1989)(held silence or equivocal response to assertion made by another, which would ordinarily be expected to be denied, is tacit admission, and the assertion and the words or conduct are admissible if reaction is not clear denial.), citing with approval to, Moredock v. State (1982), Ind., 441 N.E.2d 1372, 1374; Wickliffe v. State (1981), Ind., 424 N.E.2d 1007, 1009; Jethroe v. State (1974), 262 Ind. 505, 319 N.E.2d 133, 138–139. The chance to turn a person’s silence into a weapon should not be missed. It could be silence in the face of strong accusations made during the course of the meeting or even a judicial hearing. The key is to recognize situations which present themselves during the course of your investigation. The implied assertions for silence may be made during the course of custodial interrogation, during the course of a guilty plea or even during a sentencing hearing. Such instances may be pure gold for your case. So be alert.
Don’t Let Your Adversary Spoil Your Case.
Don’t let your opponent spoil your case by destroying or obfuscating evidence relevant to your case through spoliation of evidence. “First party” spoliation refers to spoliation of evidence by a party to the principal litigation, and “third party” spoliation refers to spoliation by a non-party. Gribben v. Wal-Mart Stores, Inc., 824 N.E.2d 349, 350 (Ind. 2005). Indiana law “does not recognize an independent cause of action for intentional or negligent ‘first party’ spoliation of evidence.” Glotzbach v. Froman, 854 N.E.2d 337, 338 (Ind. 2006). If spoliation by a party to a lawsuit is proved, rules of evidence permit the jury to infer that the missing evidence was unfavorable to that party. Cahoon v. Cummings, 734 N.E.2d 535, 545 (Ind. 2000). Other potential sanctions for spoliation include further discovery, cost-shifting, fines, special jury instructions, preclusion, and the entry of default judgment or dismissal. Howard Reg’l Health Sys. v. Gordon, 952 N.E.2d 182, 189 (Ind. 2011) (quotations omitted).
However, case law requires that you prove that the act is nearly intentional. In order to satisfy this high standard you need to send out preservation letters early and distribute them widely in order to create a sufficient paper record to establish circumstantial evidence of intent.
Make sure the preservation letter reaches the opposing party, their insurer and attorney as early as possible. The relevant evidence to be preserved needs to be specially identified so there is no claim of ambiguity, mistake or accident. Early groundwork is needed to preserve evidence and make sure there are real consequences for its destruction by those who possess and control it.
Motion in Limine: An Effective Pretrial Tool and Weapon – Wrongful Death & Remarriage (Part 6)
The defense oftentimes wants to muddy the waters and misdirect or sway the jury away from a person’s cause with information that is irrelevant or unfairly prejudicial. Wrongful death cases are no exception and remarriage is one of those topics. Fortunately, Indiana court’s have joined the majority of jurisdictions which have prohibited such tactics by the defense as irrelevant and unfairly prejudicial.
The general rule in Indiana is that in a wrongful death action a right of action or an amount of recovery is not affected by the fact that the surviving spouse has remarried or contemplates remarriage. Wabash R. Co. v. Gretzinger (1914), 182 Ind. 155, 104 N.E. 69; Consolidated Stone Co. v. Morgan (1903), 160 Ind. 241, 66 N.E. 696; Gilmer v. Carney, 608 N.E.2d 709 (Ind. Ct. App. 1993); City of Bloomington v. Holt (1977) 172 Ind. App. 650, 711, 361 N.E.2d 1211(held motion in limine prohibiting mention of the fact, probability or possibility of remarriage of the plaintiff including with whom he is residing was proper). This restriction applies and restricts proof that a spouse is living with another person and applies regardless of gender. City of Bloomington v. Holt, supra.
The enactment of IC 34-4-36-1,2 concerning payments from collateral sources should not be read or interpreted as changing Indiana’s traditional common law view. The collateral source statute clearly addresses only evidence of monetary payments. Gilmer v. Carney, supra. Since statutes in derogation of the common law are to be strictly construed and should not be extended beyond their express terms or what they unmistakably imply, Indianapolis Power Light v. Brad Snodgrass, Inc. (1991) Ind., 578 N.E.2d 669, IC 34-4-36-2 should not be extended to embrace nonmonetary items such as remarriage. Id.
So be ready for this issue and address it in your pretrial motion in limine so that the defense is prohibited from throwing a skunk into the jury box.
FAST AND DIRTY JURY SELECTION
The time allowed for jury selection now is typically very brief compared to the time allotted to attorneys years ago when I first started practicing. I used an approach similar to the one suggested here in picking criminal juries where I had much more time to explore the qualifications of jurors and their potential biases. However, I usually saved the line of questioning for use later in my examination of potential jurors. Now, I usually start off with this line of questioning and say something along the following lines:
I started off my career, as a law clerk for a federal judge and was privileged to listen in when the judge would talk to jurors after a verdict. I realize that for most people this is their first and maybe only involvement with the legal system. They all take their responsibility very seriously and want to do their very best to render a fair and just verdict. However, when I got out there and started questioning jurors myself, I made a mistake in how I approached the whole process. I forgot that potential jurors don’t have enough experience with the law and our system to fully appreciate what is really required of them to take the oath to” truly” and “fairly” decide a case.
As a state prosecutor I learned after the fact that potential and actual jurors sometimes had very strong feelings about a particular type of case that through no fault of their own prevented them from being able to fully and fairly without reservation take the oath as a juror. This was not their fault… It was the fault of the attorneys. We did not let them know what was expected.
For example, I had a case with a school teacher who was picked as a juror on my client’s case. My client was very seriously injured. The jury eventually returned a defense verdict after telling the judge that they were hung and could not reach a verdict. This juror who ended up being the foreperson called me three days later and confessed to me that she did not believe in people obtaining money for “pain and suffering” even though it was required by the law in the Court’s instructions. She also confessed that she really did not believe in people suing for money. I asked her why she never mentioned this when questioned and she said that my questions were not specific enough to make her realize that this was important.
I have to humbly admit that I may not be smart enough to ask the right questions. I need your help. So if I am talking about a topic and you think there is anything in your background that you would want me to know if you were in my client’s position, please let me know about that topic.
I know there are certain types of cases that I could not sit on as a juror. I would be unable to take the oath without reservation to act as a fair and impartial juror. There is nothing to be ashamed of in admitting that… In fact, that sort of honesty and candor should be applauded. If it is something that you do not want to publically discuss, just let me know and we can discuss the topic in private with just the attorneys and the court.
Will each of you agree to do that for my client? Thanks.
I will then move through the various topics on my voir dire such as:
1. The type of claim.
2. Burden of proof requiring a relatively low threshold, proving that the greater weight of the evidence means showing that your position is ever so slightly greater to have occurred that a flip of a coin of heads over tails.
3. Vicarious liability or strict liability.
4. Preexisting condition standard.
5. Various types of damages, wages, medical bills, future damages, pain and suffering, loss of enjoyment of life, loss of function, scarring, etc.
6. Outside expertise such as attorneys, doctors, nurses, engineers, etc.
7. Outside knowledge of the parties or case.
8. Loss of consortium.
9. Civil litigation and frivolous claims or defenses.
10. Only chance to recover – future damages.
11. Prior jury service
12. Legal experiences or education.
13. Medical experiences or education.
14. Scientific or engineering training.
When someone is honest enough to admit they cannot truly and fairly act as a juror, I first thank them for having the courage to admit that this is not the type of case for them to serve on as a juror. This is very important, especially with the first juror who admits their limitations.
Admitting that you cannot be fair is not an easy thing to do. If they admit bias, then I lock them in on their bias. I explain that based upon what they are telling me, that they could not swear to God and the Court that they could, without reservation, swear an oath to truly and fairly act as a juror on this case.
I follow up and obtain their agreement that no amount of questioning or cajoling by the Court or opposing counsel would change their answers to my questions.
I then ask the other jurors on the panel if anyone has feelings similar to the last juror? I then work through sealing the deal with the other panel members as outlined above. Finally, I conclude with my initial point:
Is there anything else any of you can think of that I wasn’t smart enough to ask that you would want me to know about if you were in my client’s position?
I then thank them for their help and candor and pass the jury panel.
Empowering the panel members like this encourages candor and makes them feel good about admitting their bias. Judges appreciate this type of voir dire as opposed to a bunch of conditioning questions that are primarily designed to try your case in voir dire. This form of questioning will dramatically increase the number of jurors you are able to eliminate for cause.
My last civil jury trial, I was able to eliminate five jurors for cause. This frees upon your preemptory challenges for use with person you suspect are not being candid and are bias.
Because you are focusing primarily of eliminating jurors for cause or bias, most judges will even give you additional time to conduct voir dire if you start eliminating a large number of panelists and still have persons who have not been questioned.
Erroneous Recognition, Flyfishing and the Honest “Liar”
An “disinterested” adverse eyewitness has just testified and has devastated your case. You know they are wrong, but they were so convincing. They seemed so sincere. What if the jury believes the witness is sincere? If they think the witness is not lying, is all lost? Eyewitness testimony is inherently dangerous. In fact, “erroneous recognition” is the primary cause of wrongful criminal convictions.
Erroneous Recognition is described as a phenomenon where a person mistakes one situation or event for another. Th error is the result of a misapprehension of the reality of time. Deja Vu is an example of this. There the viewer realizes the implausibility of the recognition of an event as having happened before and knows that it did not and could not have occurred before. Erroneous recognition happens when the mind is unable to perceive this error.
Man is not alone. Animals make this mistake too. One of my favorite authors, John Gierach, who writes about fly-fishing notes in his book Trout Bum that this is what happens every time a trout strikes an Adams dry fly made from thread and feathers tied to a metal hook. The trout honestly mistakes the fly for a real live insect. The trout is sincerely wrong. In fact, it is dead wrong… And so is the eyewitness in this case, they are sincerely, but most certainly dead wrong.
The Truth of the Matter When It Comes to Impeachment.
So a witness changes their story on the stand and as a result your case is at risk of being directed out for insufficient evidence. Can impeachment with a prior statement save the day? Maybe…
In order to present extrinsic proof of the prior statement, it will have to be authenticated by the impeached witness or a third party under Rule of Evidence 901.
The statement is defined as non-hearsay under Rule of Evidence 801(d)(1) if it is a prior inconsistent statement under oath. It comes in for the truth of the matter asserted. Under Rule of Evidence 613 a prior inconsistent statement technically is only admitted for purposes of challenging the person’s credibility. This because it still remains hearsay absent a non-hearsay use or a hearsay exception such as a statement of a party opponent under Rule of Evidence 801(d)(2) which is non-hearsay.
Under Rule of Evidence 801(d)(1) the prior inconsistent sworn statement provide substantive evidence of the contradicted fact. While the difference is technical, it can be of importance if the prior inconsistent statement is need to prove an essential element of your claim.
Under Rule of Evidence 613 you need to do the following if you want to introduce extrinsic proof of the statement:
1. Authenticate the statement by identifying who, what, where and when the statement was made,
2. Give the witness an opportunity to explain or deny the statement, and
3. Give the opposing attorney an opportunity to examine the witness about it. This includes allowing opposing counsel to review the impeaching statement if so requested.
Here’s the language from the rules…
Rule of Evidence 801(d)(1):
(d) Statements That Are Not Hearsay. Notwithstanding Rule 801(c) , a statement is not hearsay if:
(1) A Declarant-Witness’s Prior Statement. The declarant testifies and is subject to cross-examination about a prior statement, and the statement:
(A) is inconsistent with the declarant’s testimony and was given under penalty of perjury at a trial, hearing, or other proceeding or in a deposition;
Rule of Evidence 613:
Rule 613. Witness’s Prior Statement
(a) Showing or Disclosing the Statement During Examination. When examining a witness about the witness’s prior statement, a party need not show it or disclose its content to the witness. But the party must, on request, show it or disclose its contents to an adverse party’s attorney.
(b) Extrinsic Evidence of a Prior Inconsistent Statement. Extrinsic evidence of a witness’s prior inconsistent statement is admissible only if the witness is given an opportunity to explain or deny the statement and an adverse party is given an opportunity to examine the witness about it, or if justice so requires. This subdivision (b) does not apply to an opposing party’s statement under Rule 801(d)(2).
Hopefully, this discussion and these Rules show the importance of getting a sworn statement (preferably a deposition) from all key witnesses in advance of trial. A witnessed affirmation subject to the pains and penalties of perjury is adequate if notorization is not possible.
Confirmation Bias: Foe of Justice and Truth
“Confirmation Bias” has nothing to do with the Holy Spirit. It is a mindset we all are susceptible to in the way we see the world. ‘Confirmation Bias’ is a psychological phenomenon that explains why people tend to seek out information that confirms their existing opinions and overlook or ignore information that refutes their beliefs.’
“Confirmation bias” can lead to misdiagnosis, researching errors, missed evidence and analytical flaws in our every day thinking. That’s why it is important to always try and strive to keep an open mind when you investigate claims, research legal issues and critique the analysis of your experts as well as those of your opponent.
In medical malpractice cases for example, the doctor can start off with a predetermined idea as to the cause of the patient’s medical problem. This can result in the doctor ignoring or overlooking important evidence which would lead to an accurate differential diagnosis. The patient’s suffering is prolonged and exacerbated because the wrong treatment is given.
In the relm of criminal litigation, police and prosecutors may prematurely focus on a prime suspect and ignore other persons who could potentially be responsible for the crime at issue. The popular Netflix docu-series “Making a Murderer” about Steven Avery is a classic example of how this can occur. The focus of the investigation is prematurely narrowed. As a result, investigative leads are ignored. Evidence is overlooked and lost forever.
An excellent book, “The Innocent Man” by John Grisham also documents the same type of errors. The belief of the police, that they had their man, blinded them to the truth. This resulted in an innocent man, Ron Williamson, being wrongfully convicted of a crime he did not commit. At one point, Williamson was five days away from being executed. Ironically, the actual perpetrator of the crime sent the police chasing the false lead and caused the State to prosecute and convict the wrong man (Ron Willamson) of the murder along with another man. This man’s only crime was being Ron’s friend and refusing to give false testimony implicating Ron Willamson in a rape-murder neither of them committed. Thanks to the Innocence Project, both men years later were released and exonerated through DNA testing performed on the victim’s clothing.
Such informational bias and prejudice on the part of juries may make a fair verdict impossible or very difficult to obtain. You must deal with this problem in your voir dire examination and seek leeway from the court to thoroughly explore such biases. This requires the use of mock juries, jury questionnaires, individual examination of jurors, adequate time for jury selection and in some instances a change of venue or venire.
Social media, sensational news articles and reader comments can pollute the jury pool. Bias and unsubstantiated claims fill the air of the community. These must be explored. In this regard, please read the article below:
http://www.bloombergview.com/articles/2016-01-08/how-facebook-makes-us-dumber
So keep an open mind and it just might be the key to your case.
All Things Have a Rhythm Inluding Your Closing and Examinations
I was listening to a new album by cousin Peter Neff that he created in collaboration with his co-composer Mauricio Yazigi titled Spanish Guitars. The sound and rhythm is mesmerizing. It reminded me that a good cross-examination or closing argument has its own rhythm and melody. The pace and delivery both lulls and controls the defenses of the witness As the examination draws him closer to the truth.
Want to understand this power? Read out loud classic dialogues such as Plato’s the Republic. The Republic is a Socratic dialogue, written by Plato around 380 BC, concerning the definition of justice, the order and character of the just city-state and the just man. You will notice how the pace and melody of the words propels the examination and the rhetorical power of the questions posed.
Remember that cross examination is simply a means of speaking the truth to the jury through a series of well planned rhetorical questions that logically lead to your ultimate point. These examinations have a rhythm which you can use to your advantage to emphasize the themes of your case. See F. Lee Bailey’s cross examination of Detective Mark Furhman which helped undermine the State of California’s case by suggesting Furman was a dishonest racist who planted blood as evidence against O.J. Simpson.
Likewise a good closing has a rhythm and melody which melds with each point you must make to the jury. Check out the clip of “True Believer”, San Francisco attorney Tony Serra, as he gives a spellbinding closing argument for his client, Rick Tabish charged with murder.
Find your pace and use it to your advantage. The modulation of the pace, volume and pitch of your voice is no different than a musical instrument. It conveys the mood and emphasis of you point. Make sure there is both a rhyme and a reason supporting your next presentation.
How to Exclude Self-Serving Reports by Testimonial Experts
So you’re at trial and your opponent wants to offer into evidence their expert’s written report… What do you do? Is it admissible? The short answer is no. Expert’s reports are documents prepared in anticipation of litigation and do not have the inherent reliability of documents typically considered and admissible under exceptions to the hearsay rule such as Indiana Rules of Evidence 803 and 804.RULE 803. Indiana Rule of Evidence 803(6) recognizes this danger. IRE 803(6) states:
Records of a Regularly Conducted Activity. A record of an act, event, condition, opinion, or diagnosis if:
(A) the record was made at or near the time by — or from information transmitted by — someone with knowledge;
(B) the record was kept in the course of a regularly conducted activity of a business, organization, occupation, or calling, whether or not for profit;
(C) making the record was a regular practice of that activity;
(D) all these conditions are shown by the testimony of the custodian or another qualified witness, or by a certification that complies with Rule 902(9) or (10) or with a statute permitting certification; and
(E) neither the source of information nor the method or circumstances of preparation indicate a lack of trustworthiness.
(Emphasis Added). Clearly, a report by a hired gun hardly provides circumstances indicative trustworthiness. In Re: Termination of Parent-Chile Relationship of E.T. and B.T., 808 N.E.2d 639 (Ind. 2004), the Indiana Supreme Court observed:
[The] business records exception to the hearsay rule is “based on the fact that the circumstances of preparation assure the accuracy and reliability of the entries.” Wells, 261 N.E.2d at 870. As we have observed more recently, the reliability of business records stems in part from the fact that “the organization depends on them to operate, from the sense that they are subject to review, audit, or internal checks, [and] from the precision engendered by the repetition…” Stahl v. State, 484 N.E.2d 89, 92 (Ind. 1997); see also Advisory Committee’s Note to Fed. R. of Evid. 803(6) (observing that business records are made reliable by “systematic checking, by regularity and continuity which produce habits of precision, by actual experience of business in relying upon them, or by a duty to make an accurate record as part of a continuing job or occupation.”
Id. at 642-43. The Court went on to explain that if a business does not rely on certain records for the performance of its functions then those records do not fall into the hearsay exception for records of regularly conducted business activity. (See also Palmer v. Hoffman, 318 U.S. 109, 111 (1943), where the Court upheld the exclusion of a railroad engineer’s statement. “[I]t is manifest that in this case those reports are not for the systematic conduct of the enterprise as a railroad business. …[T]hese reports are calculated for use essentially in the court, not in the business. Their primary utility is in litigating not in railroading.“)
A retained expert’s report is not subject to review, audit, or internal checks for use in the expert’s business nor is it relied upon by the expert in the performance of business functions. In Re: Termination of Parent-Chile Relationship of E.T. and B.T., 808 N.E.2d 639 (Ind. 2004). Instead it designed and created for use in litigation. IRE 803(6) requires that the method or circumstances of the preparation not indicate a lack of trustworthiness.
A report is not trustworthy when the Defendant hires an individual to prepare it if the primary motive for preparing the report is for litigation. Certain Underwriters at Lloyd’s, London v. Sinkovich, 232 F.3d 200, 205 (4th Cir. 2000). “Litigants cannot evade the trustworthy requirement of Rule 803(6) by simply hiring an outside party to investigate an accident and then arguing that the report is a business record because the investigator regularly prepares such reports as part of his business.” Id. See also, Echo Acceptance Corp. v. Household Retail Services, Inc., 267 F.3d 1068, 1090-91 (10th Cir. 2001); Lust v. Sealy, Inc., 383 F.3d 580, 588 (7th Cir. 2004).
These sentiments are echoed in Judge Robert Miller’s Courtroom Handbook on Indiana Evidence, in reference to Rule 803(6) he notes:
“Documents made in anticipation of litigation, including computer printouts are generally not admissible under Rule 803(6).” Certain Underwriters at Lloyds , London v. Sincovich, 232 F.3d 200, 205 (4th Cir. 2000); Bradley v. Phelps, 147 Ind. App. 349, 260 894, 898 (1970), cf. Baker v. Wagers, 472 N.E.2d 218, 222 (Ind. App. 1984).
So do not let your opponent get away with creating testimonial exhibits which will be taken back to the jury room and provide unfair emphasis on such testimony. Reports simply aren’t admissible.
The Barrister's Toolbox 