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Persuasion and the Art of Being Yourself.
You want to be the best you can be. You have picked up books and read the closing arguments of successful attorneys. You’ve studied their transcripts of cross-examination. You’ve memorized their tactics and one liners.
Should you imitate these masters of the courtroom, or forge your own path? Probably a little of both. It has been said that: “You might as well be yourself because everyone else has been taken.” Nothing is more credible than sincerity and you cannot sincerely be anyone but yourself.
A jury is a wise entity unto itself which is why it’s the backbone of our justice system. They’ll see through an act and don’t appreciate a slick fast talking attorney.
As Lincoln observed, “You can fool some of the people, all of the time. And, you can fool all of the people, some of the time. But you can’t fool all of the people, all of the time.” Be yourself! Lincoln was. He didn’t worry about his awkward and gangly appearance. He was great trial attorney, President and person. He is arguably the greatest leader our country has ever had. He got there being himself.
It is important to learn from the mistakes of others or you are bound to repeat them. So learn from the best, but remember in the end, only you can win or lose the case.
Hot Coffee, Juror Bias and Fear of the Unknown
We have all heard about the infamous McDonald’s spilled coffee case as a supposed frivolous lawsuit resulting in a run-away-verdict. It is touted as the prime example of how corporate America has been victimized by juries and how the jury system is broken. However, this was not the case. In fact, Stella Liebeck, the little old lady from Albuquerque, New Mexico, was severely burned as a result of a long-standing problem with McDonalds serving coffee at temperatures known to cause severe burns in customers. This wasn’t their first rodeo. Other claims and lawsuits had been brought as a result of McDonald’s policy of serving coffee at unsafe temperatures. Normally, our fellow citizens sitting on juries reach verdicts fairly and for reasons demonstrated by evidence in the court room. Unfortunately, our sound bite era does not allow for the whole truth to be conveyed.
Another case that often results in cries of foul is the O.J. Simpson murder trial and its verdict of not guilty. Jurors are criticized for the outcome of the case. As a casual observer, I questioned how the jurors could have reached such a verdict. However, once again there was more to the story than we could appreciate from afar with a few minutes devoted to the news each evening. First of all, Mark Fuhrman, one of the lead detectives committed perjury by testifying that he had never ever used the n-word in the past ten years giving rise to questions of bias and a lack of credibility. F. Lee Bailey brilliantly anchored and locked in his testimony so that Fuhrman could not escape by claiming this was a mistake or innocent misstatement. Second, some of the blood evidence collected was called into question when discrepancies arose, such as chemical preservatives used by the police when collecting samples, were found to be present in some of the blood collected by the police at O.J. Simpson’s residence and elsewhere. The defense suggested in their opening statement that the police had planted this evidence, using known blood samples from Nicole Brown Simpson and O.J. Simpson. The police had collected these known blood samples in test tubes containing the preservative EDTA. The presence of EDTA in blood collected by police at O.J. Simpson’s residence and elsewhere lead to the inference that the blood was collected in tubes from the crime scene and then later deposited at the Simpson residence when it was searched by police. Finally, strategic errors were made by the prosecution as to the venue of the trial and the glove demonstration [Remember: “If it doesn’t fit, you must acquit.”]. Such evidence raised “reasons” to “doubt” the integrity of the whole police investigation. It was not necessary to show that O.J. was innocent to receive a not guilty verdict. The defense had to only raise “reasonable doubts” in the minds of the jurors to prevail. When looking at the whole picture presented by the case, it is easy to see how the jury could have doubted the integrity of the entire process and questioned whether they could trust the evidence enough to find O.J. guilty beyond a reasonable doubt.
When dealing with jury selection, it is important to get jurors talking about their thoughts and prejudices without fear that you will ridicule or judge them. There is a lot of misinformation and misunderstandings by the public that could hurt your client. This means that you need to get jurors talking openly and without hesitation. You have to fearlessly approach jurors with an open mind and heart. David Ball, a noted jury expert, has preached this approach in his book, David Ball on Damages III. He notes in his book that renowned trial attorney, Gerry Spence, will approach jurors with a question like this:
“Good morning folks, I’m here on behalf of my client. This is when I get to ask you some questions for jury selection, but before the usual questions, some things worry me that I need to ask you about. We’ve all been hearing a lot lately about legal reform, tort reform, verdicts being too high, lawyers taking advantage, frivolous lawsuits, verdicts hurting businesses, hurting medical care, and all those things. We need to know how people feel about these things. If you could please tell me what if anything bothers you about what’s going on?”
He then proceeds to get each juror to talk openly about their problems or baggage they bring to the case. My own approach to this problem goes something like this:
Is there anything I missed? [pause – looking at the panel]. That’s my greatest fear, you know. I have limited time to ask you questions. I learned long ago that I need your help to do the best job I can for my client. I may not have been smart enough to ask something which would have an impact, even a little on you coming into this case with an open mind. Is there anything I should know about your background that you are aware of, that if you were in my client’s shoes here, you would want me to know about you? Is there anything you would want me to know about your opinions, beliefs or philosophy that I have not asked about, that if you were my client, you would want me to know?
I have had many a juror reveal important information that lead to them being struck for cause or motivated the potential juror to concede that this was not the right case for them to serve on as a fair and impartial juror.
So get them talking next time you do jury selection. The bottom line is that you must let go of your fear of the unknown, because what you don’t know can hurt both you and your client.
Inability to Pay for Medical Treatment: Is This Admissible?
I heard recently that a trial court granted a defense motion for a mistrial because a plaintiff inadvertently mentioned they had no health insurance.
How bad is this? Is a mistrial really mandated by the rules? Let’s take a look at some of the applicable provisions:
Rule 411. Liability Insurance
Evidence that a person was or was not insured against liability is not admissible upon the issue whether the person acted negligently or otherwise wrongfully. This rule does not require the exclusion of evidence of insurance against liability when offered for another purpose, such as proof of agency, ownership, or control, or bias or prejudice of a witness.
Health insurance is not “liability insurance”. The judge would appear to be dead wrong if this was the reason for the mistrial. Even liability insurance may be admissible when offered for another purpose.
Likewise, this evidence would not violate the collateral source rule. The relevant statute codifying the collateral source rule provides:
IC 34-44-1-2
Personal injury or wrongful death actions; admissibility of evidence
Sec. 2. In a personal injury or wrongful death action, the court shall allow the admission into evidence of:
(1) proof of collateral source payments other than:
(A) payments of life insurance or other death benefits;
(B) insurance benefits that the plaintiff or members of the plaintiff’s family have paid for directly; or
(C) payments made by:
(i) the state or the United States; or
(ii) any agency, instrumentality, or subdivision of the state or the United States;
that have been made before trial to a plaintiff as compensation for the loss or injury for which the action is brought;
(2) proof of the amount of money that the plaintiff is required to repay, including worker’s compensation benefits, as a result of the collateral benefits received; and
(3) proof of the cost to the plaintiff or to members of the plaintiff’s family of collateral benefits received by the plaintiff or the plaintiff’s family.
Assume, your client said they have NO HEALTH INSURANCE. The statute does not prohibit this. The collateral source rule protects the Plaintiff anyway, not the Defendant. The only colorable argument that could be made by a defense attorney, is that this is an appeal to prejudice or sympathy in violation of I.R.E. 403. This rule of evidence provides:
Rule 403. Exclusion of Relevant Evidence on Grounds of Prejudice, Confusion, or Undue Delay
Although relevant, evidence may be excluded if its probative value is substantially outweighed by the danger of unfair prejudice, confusion of the issues, or misleading the jury, or by considerations of undue delay, or needless presentation of cumulative evidence.
The financial status of the parties is generally not admissible. Koger v. Reid, 417 N.E.2d 1142 (Ind. App. 1991). However, the lack of insurance should be admissible to explain why he was no longer obtaining medical treatment and would explain away that issue. Such evidence would prevent the jury from thinking that the gap in treatment or the reason she quit seeing a doctor was because she had fully recovered. In Bumble v. Wal-Mart Stores, Inc., 407 F.3d 823, 826 (7th Cir. 2005). The trial court granted a motion in limine by the defense preventing the Plaintiff from stating or implying he had not not sought treatment for a period of time or has not undergone recommended treatment due to a lack of health insurance and financial situation unless the defendant first opened the door making it admissible.
The Court of Appeals held this ruling was not an abuse of the trial court’s discretion.
In practice, an appropriate limiting instruction should have sufficed so the evidence is used only for an appropriate and limited purpose. A mistrial is a harsh remedy unless the Court had granted an order in limine specifically on this topic. Nonetheless, it would make sense to notify the Court of your position on this topic outside the presence of the jury in order to avoid a harsh ruling and a possible mistrial.>
What to Do When They Call Your Client a Liar, a Fraud and a Cheat.
The defense has enlisted the aid of a hired gun “expert” who insinuates or is going to testify that your client is a malingerer or a fraud. What can you do to address such tactics? Can you exclude the testimony? Should you address it head on or skirt the issue? Hopefully, this blog will offer some strategies to address this sort of tactic.
Motion in Limine
This is one approach that you could take. File a motion in limine to exclude such testimony. Indiana Rule of Evidence 704(b) provides:
Witnesses may not testify to opinions about intent, guilt, or innocence in a criminal case; the truth or falsity of allegations; whether a witness has testified truthfully; or legal conclusions.
In contrast, Indiana Rule of Evidence 608(a) provides:
Opinion and Reputation Evidence of Character. The credibility of a witness may be attacked or supported by evidence in the form of opinion or reputation, but subject to these limitations: (1) the evidence may refer only to character for truthfulness, and (2) evidence of truthful character is admissible only after the character of the witness for truthfulness has been attacked by opinion or reputation evidence or otherwise.
So how do you reconcile these two conflicting provisions? Well, Rule 704(b) applies to expert opinions, while Rule 608(a) deals with opinions of lay witnesses. The Federal counterpart to Indiana Rule of Evidence 704 is limited to criminal cases in instances where the mental state or sanity of the Defendant is at issue. This rule provides:
(b) No expert witness testifying with respect to the mental state or condition of a defendant in a criminal case may state an opinion or inference as to whether the defendant did or did not have the mental state or condition constituting an element of the crime charged or of a defense thereto. Such ultimate issues are matters for the trier of fact alone.
The advisory committee notes indicates that this limitation prevents experts from invading the province of the jury in criminal cases where sanity or the mens rea is at issue. The rule prevents a confusing “battle of the experts” and preserves the decision on the ultimate issue of state of mind for the jury, rather than leaving it in the hands of retained experts. The rule promotes reliability by preventing testimony on the legal connotations of a medical diagnosis, a role the American Psychiatric Association admits that psychiatrists are not qualified to fill.See United States v. Austin, 981 F.2d 1163, 1166 (10th Cir.1992); see also United States v. Wood, 207 F.3d 1222, 1236 (10th Cir.2000) (Rule 704(b) is intended to prevent “intrusion[s] into the province of the jury”). Another court has similarly written:
The theoretical effect of Rule 704(b) is to make it possible for juries to find a defendant not guilty by reason of insanity even if no expert would draw that same conclusion. Conversely, the rule also permits juries to find a defendant sane and guilty even if every expert would opine that the defendant was insane. The purpose of Rule 704(b) is to have jurors decide whether the defendant was sane or not without being told what conclusion an expert might draw. United States v. West, 962 F.2d 1243, 1247 (7th Cir.1992).
While there is not much in the way of case law in Indiana interpreting this provision, at least one jurist. See Sears Roebuck v. Manuilov, 742 N.E.2d 453 (Ind. 2001)(upholding admission of medical testimony under I.R.E. 702 establishing post-concussive syndrome). In his dissenting opinion, Justice Boehm stated:
“Dr. Blinder testified, among other things, that in his opinion Manuilov was not a malingerer. This opinion was not based on observation of physical symptoms or scientifically valid tests, but on Blinder’s observation of Manuilov’s behavior and accounts of that behavior furnished by Manuilov or his counsel. Among the latter was the assurance that Manuilov had no criminal history or anti-social behavior.
Blinder told the jury that Manuilov had no criminal history and suggested he was not a “wife beater.” These assumptions were explicitly made a basis of his view that Manuilov was not a malingerer. This was not challenged under Indiana Evidence Rule 704(b), which provides that a witness may not testify as to whether another “witness has testified truthfully,” so, to the extent this is an issue, it is not presented here.”
. [Emphasis Added].
It seems likely that if a timely objection is made under Indiana Evidence Rule 704(b) to testimony regarding expert opinions on malingering that it, would be sustained, in an effort to preserve the jury’s autonomy in assessing the credibility of witnesses and avoiding problems associated with a battle of the experts. This dissenting opinion of Justice Boehm is the only discussion I have located on this specific topic in any judicial opinion in The State of Indiana. In Morse v. Davis, 965 N.E.2d 148 (Ind. Ct. App. 2012), trans. denied., the Indiana Court of Appeals held that no witness, lay or expert, is competent to testify that another witness is or is not telling the truth.
The Direct Approach – Polarizing The Jury
The is an important book which provides a comprehensive approach to this problem and in fact fully embraces the issue and in fact welcomes a clear claim of malinger. The book is called “Polarizing the Jury“. by Rick Friedman. This book provides an innovative approach to trying cases. Too often we allow the defense in personal-injury cases to hide behind ambiguities and insinuate that our client is not being truthful. This book provides you with concrete examples to force your opponent to either embrace fully embrace the position; that your client is “a liar, a cheat and a fraud” or completely abandon this position.
The book provides a comprehensive approach to simplify your case, focus the jury’s attention and deal with a single coherent theme… Is my client telling truth about his or her injuries? At each stage in the proceedings the defense is forced to either clearly adopt the position that your client is “a liar, a cheat and a fraud” or clearly reject the position. The defense and it’s experts are forced through questioning or discovery to either adopt or reject this position.
The defense is not allowed to hide behind ambiguous positions or attack your client through innuendo or vague and insidious suggestions of doubt. The primary weapon to combat such experts and a defense are lay witnesses who can provide a clear before and after picture of changes in your client’s life by the defendant’s tortious acts. The issue in opening is framed as follows:
This is the person that they want you to believe is a liar, a cheat and a fraud.
You will hear a lot of witnesses and see a lot of evidence in this case. But in the end, there is really on what only one major issue you need to decide is my client a liar, a cheat, and a fraud?
That is the defense in this case.
If he is a liar, a cheat and a fraud, you should send him out of this courtroom without a cent. But if you decide he’s telling the truth, that he is truly injured, and the defense is attacking him in order to avoid paying for the harm they have caused, then your verdict needs to ensure that they do not profit from this tactic and you should consider what would be fair compensation for the injuries and losses my client has suffered and for the impact this collision and its impact on their relationship as husband and wife.
I strongly recommend that you obtain the book as it effectively helps you frame the issue in a fashion that it is understandable to a jury and combats the false doubts raised through the use of veiled attacks and innuendos against your client’s integrity and honesty.
Closing the Deal – Addressing the Attacks in Closing Argument
Here are some arguments to present to the jury in your rebuttal:
WHEN THE LAW & FACTS ARE AGAINST YOU: In law school they say if the facts are in your favor, argue facts, if law is in your favor, argue law, if neither law or facts are in your favor, argue like a lawyer and try to confuse the jury about what the case is really about. It’s the oldest trick in the book. The defense took a nice simple case that is straight forward and tried to make it complicated by pointing to a bunch things that really have nothing to do with the case’s merit, in hopes that you’ll forget what this case is really about.
Another argument to present to a defense request for the jury to make his arguments for him when he sits down as suggested by the noted Attorney Moe Levine:
Countless attorneys, skilled and persuasive each with their own acquired tricks to influence a jury by sowing the subtle seeds of cynicism. One of these is that when he sits down, he appoints you as his assistants and gives you permission to share with him the responsibility to represent his client in the jury room by answering each of my arguments to you. However, if this were truly the case, what need would there be to sum up at all? We would simply send you to the jury room and ask you to deliberate. This type of argument is not new to me. It is insidious and subtle. It ask you to take on the role of an advocate instead of that of a fair and impartial judge of the facts. Such comments subtly shape your view of the evidence. it moves you from a role where you are impartial, unbiased and neutral, to a role of where you act as an advocate for one side over the other. These techniques are subtle but effective.
When the defense attacks through the use of innuendos:
He attacks by innuendo asking how can we know what the evidence shows when my client says he is in pain from this collision. He has had problems before. How can this be different. This to is subtle because what he is really saying is my client is a liar and a cheat and a fraud. He won’t come right out and say because he knows such a statement is outrageous and unworthy of consideration. In fact it is insulting. Instead you subtly insinuate that something is not right, plant the seeds of cynicism and hope that back in the jury room they will sprout.
This flies in the face of the evidence presented. To buy into this argument you would have to conclude that:
A. If Their Goal Was Money: My client and his spouse have come into this Court and both lied. If this were about fraud would not you make greater claims? Wouldn’t you have run up unnecessary treatment? Would you be constantly complaining about your condition and claiming that your pain did not improve with treatment. Wouldn’t you do everything in your power to make you case more valuable. This has not occurred. My client has worked to get better and in fact has had periods of remission where his pain has improved even though it has never completely gone away.
B. Speculative and Unsupported Causes: He also has insinuated that something else must has caused his symptoms. He does this with evidence of any sort and again subtle plants the seeds of cynicism by asking questions and suggesting facts that no one has testified exist. It is undisputed that my client complained of symptoms at the scene and told the investigating police officer of this. The defense has no Doctor who has said such things. If the medical evidence is there, he could have hired an expert to say this is so. Instead of evidence, he has asked that you guess and speculate. This is not allowed.
Conclusion
I hope these strategies assist you in dealing with unfair attacks on your clients integrity.;
A Hung Jury: When a Stalemate Becomes Your Best Option.
Hung juries are generally considered to be a rare outcome to a trial. However, even though it is not a true resolution, it can be considered your best outcome. Hung juries are even rarer when you are dealing with civil cases, where the only thing that you obtain is money. If you are likely to lose a case, a hung jury may be your best option. I have had three criminal cases end with a hung jury and had a civil case that nearly met the same fate when a jury told the court they were hopelessly deadlocked. The jury ended up reaching a verdict after being sent back for further deliberations. Following a hung jury, oftentimes, cases will settle or in a criminal case, the defendant will pled to a lesser charge. In other instances, a case may simply die on the vine and is never tried again. If you are criminal defendant, that is a good outcome. Based upon my experience in this area, I would recommend you do the following things if you want a hung jury:
1. Pick a diverse jury with strong personalities : Assuming you cannot stack the jury with persons favorable to your client’s point of view, you should strive to pick persons who are very different from one another. In order to hang a jury you only need one vote for no verdict. You want persons with strong personalities. If you have weak-willed persons on your jury, they will eventually succumb and capitulate to the majority. If they have similar backgrounds, they are more likely to come together. Conflict is your friend, if your goal is to have the case end in gridlock. The more different two people are the more difficult it is for them to connect with one another.
2. Polarize the Jury: In order to do this you need to find emotional triggers that are likely to evoke a strong response in those persons favorable to your position and persuade them that this is a matter of principle. This theme needs to be driven home at every stage of the trial during jury selection, opening statement, direct examination, cross examination, closing and as part of instructions. You need to present the jury with a clear choice.
3. Find a Good Villain: They say: “When the law is against you, you argue the facts. When the facts are against you, you argue the law. When the facts and the law are both against you, you find someone to give holy hell to and hope that the jury in its outrage ignores the law and the facts.” It ultimately requires that you find a good reason to brand the process unfair, unreasonable or plain biased. If you can find that hook, you have a chance at a hung jury and maybe even an acquittal.
4. Empower Each Juror: The jurors need to be told that in order for a verdict to be rendered a unanimous decision must be reached and juror’s oath requires that they stand alone if the party’s burden has not been. Get each juror to promise that they will hold out if they do not morally agree with the verdict. Empower the jurors by letting them know that they each have the responsibility to hold out for the verdict they believe should be returned and should not surrender their position just to leave earlier. Your client will live with the verdict the rest of his life. Make sure the jury knows that they have the power to say no and owe it to be fair and impartial.
5. Veto power: jury instructions need to tell the jurors know they can say no. Indiana has codified this power. Article I, Section 19 of the Indiana Constitution provides “In all criminal cases whatever, the jury shall have the right to determine the law and the facts.” The Indiana Supreme Court has approved the instruction: “You, gentlemen, in this case, are the judges of law as well as of the facts. You can take the law as given and explained to you by the court, but, if you see fit, you have the legal and constitutional right to reject the same, and construe it for yourselves.” Blake v. State, 130 Ind. 203, 29 N.E. 1077 (1892). It does not, however, give to them the right to disregard the law.” Id. at 204-05, 29 N.E. 1077. Remind jurors of this power they have and present a reason why the law is unjust as applied against your client.
6. Promises are Promises: During voir dire have the jurors each individually promise to hold out for a not-guilty verdict, no matter how long it takes, if this is the verdict that they support. Remind them of their oath in closing.
7. Argue Your Case with Fervor and Sincerity: If you don’t believe in your case, then how can you hope that a juror will hold out alone for a not guilty verdict, etc.
Even Chess Grand Masters have angled for a stalemate, if the board indicates they have no chance to win. Jury nullification is an important safeguard and the last resort against wrongful imprisonment and government tyranny. Sometimes a hung jury is the best outcome you can hope for and certainly beats a loss.
Long Live the Attorney Irving Fink, My Hero
They say the law is a jealous mistress. Well this mistress has kept company with a living legend… Irving Fink. I am blessed to have Mr. Fink in my office and soak in his wealth of knowledge and wisdom. He has practiced law for six decades and still comes into the office four days a week to practice his craft. He use to come in five days a week, but decided to cut back a little now that he has reached his 94th birthday. Three score and 5 years ago, Mr. Fink became an attorney. That’s right folks, 1949. He has been married to his wife, Bea, even longer. Mr. Fink has championed the causes of “David against Goliath.” He is a published poet-laureate (See his book of poetry, To Stretch a Heart and Other Poems. Most importantly, he and his wife Bea, have successfully raised their children and have seen them attained professional recognition and success in their chosen fields. A few years ago, in his early nineties, Mr. Fink and a younger attorney in our office, Bill Levy (he was in his 80s at the time) successfully tried a case to verdict before a local jury against a national insurance company.
His positive outlook, joy for life and love of the law is truly a thing of profound beauty. His affection for poetry and a life well-lived, requires a quote from one of his poems reflecting on life and old age:
When new infirmities strike me
And I know I’m losing the race
I hope I’ll remain determined
To face what comes with grace.
-from “On Reaching Ninety-Two”
I hope that Mr. Fink is with us for years to come. But, when the time comes and Mr. Fink joins God, you can bet that if there is a Court of Reckoning in Heaven, Mr. Fink will be there representing the underdog with grace and wisdom gained from a life well-lived.
One Bad Apple Can Spoil the Whole Bunch. When Should a Juror, Not Be a Juror?
Jury selection is often where your case is won or lost. One bad juror can spoil your whole case. That one juror could lead the other jurors to render an adverse verdict, a compromise verdict or lead to gridlock and a hung jury. In civil cases, you often have limited peremptory challenges, where you can eliminate a juror without showing actual bias or other grounds for disqualification. So what exactly is the law? When is a judge obligated to grant your motion to strike a juror for cause? Below is a checklist of reasons which can be used to disqualify a juror in Indiana Courts:
Case Law in The State of Indiana
“In criminal cases the court must sustain a challenge for cause if the prospective juror: … is a defendant in a pending criminal case.” Ind. Jury Rule 17(b)(2). However, Indiana appellate courts will reverse a trial court’s decision regarding challenges for cause only where the decision is arbitrary or illogical and results in prejudice to the defendant. Smith v. State, 730 N.E.2d 705, 708 (Ind.2000). If a defendant uses a peremptory challenge to strike a problematic juror and does not complain that the use of this peremptory challenge prevented him from challenging another juror who was later seated, the defendant has not shown prejudice and any error will be found to be harmless. Shane v. State, 615 N.E.2d 425, 427 (Ind. 1993). This means that you need to have used all of your challenges and must be able to point to a later juror you were prevented from striking who is problematic. Otherwise, your objection is waived.
“A [criminal court] defendant is entitled as a matter of right only to an impartial jury, Ind. Const. Art. I, § XIII, and not to one of his precise choosing where the issue is merely replacing a regular juror with an alternate.” Jervis v. State, 679 N.E.2d 875, 882 (Ind.1997). Indiana Trial Rule 47(B) allows alternate jurors to replace regular jurors “who, prior to the time the jury returns its verdict, become or are found to be unable or disqualified to perform their duties.” Trial courts have significant leeway in determining whether to replace a juror with an alternate, and we will reverse only if there was an abuse of discretion. Harris v. State, 659 N.E.2d 522, 525 (Ind.1995); Ferry v. State, 453 N.E.2d 207, 213 (Ind.1983).
Constitutional Issues Regarding the Use of Peremptory Challenges
You cannot strike a member of a jury panel who is part of a protected class without being able to state a non-discriminatory reason for the use of your challenge. In J.E.B. v. Alabama ex rel. T.B., 511 U.S. 127, 114 S. Ct. 1419, 128 L.Ed.2d 89 (1994), the Court extended Batson (prohibiting the use of peremptory challenges along racial lines) to gender issues as well, holding that gender, like race, is an unconstitutional proxy for juror competence and impartiality. In so doing, the Court employed traditional equal protection analysis, observing that “the only question is whether discrimination on the basis of gender in jury selection substantially furthers the State’s legitimate interest in achieving a fair and impartial trial.” Id. at 136-37, 114 S.Ct. 1419. The J.E.B. Court rejected the justification offered by the state that jurors would be likely to sympathize along gender lines in a paternity action, declaring that “[w]e shall not accept as a defense to gender-based peremptory challenges the very stereotype the law condemns.” Id. at 138, 114 S.Ct. 1419. Emphasizing the harm that race or gender-based discrimination in jury selection causes “the litigants, the community, and the individual jurors who are wrongfully excluded from participation in the judicial process,” the Court reasoned that “[f]ailing to provide jurors the same protection against gender discrimination as race discrimination could frustrate the purpose of Batson itself. Because gender and race are overlapping categories, gender can be used as a pretext for racial discrimination.” Id. at 140, 145, 114 S. Ct. 1419. This restriction applies to civil cases as well as criminal cases.
Implied Bias Due to Close Relationship to State
Woolston v State, 453 N.E.2d 965, 968 (Ind.1983) involved a juror who had a close relationship to the State Police due to his wife’s employment. The juror was familiar with three of the officers who were to testify for the State and knew that his wife had worked on some of the evidence in the case. The Court noted that a challenge for cause had been held to exist in cases where a juror’s spouse had been hired for future employment by the prosecutor and in another where the juror’s wife was a second cousin to a member of the prosecutor’s staff, the Woolston court found that, based on the juror’s relationship to the State, it was error for the trial court to deny the challenge for cause.
Outside Knowledge, Evidence or Expertise
A jury should not be permitted to introduce outside evidence or knowledge which they may independently possess. This problem arises where a jury such as doctor, nurse or scientist has expertise which will be at issue in the case. Allowing this type of juror to bring expertise to the case, would be equivalent to allowing the juror to act as an expert witness who is never disclosed to either side and who cannot be cross-examined by either party. If the juror cannot leave this expertise, specialized information and such opinions behind in deciding the case, they are being allowed to act as an expert witness in the jury room. While there are no cases directly on this point, there are plenty of analogous authorities supporting such an objection. By analogy, judges are not permitted to act in this fashion. Our courts have held that where a judge based a verdict in a bench trial on an unannounced view of the accident scene he violated Federal Rule of Evidence 605. Lillie v. US, 953 F.2d 1188, 1191, 34 Fed. R. Evid. Ser. 938 (10th Cir. 1992). Likewise, it has been held where Judge relied upon his own personal experience as to the effects of anesthesia in determining the voluntariness of a confession, he violated the prohibition against being a witness under Federal Rule of Evidence 605. US v Lewis, 833F.2d 1380, 1385, 24 Fed. R. Evid. Ser. 432 (9th Cir. 1987). Indiana Rule of Evidence 606 provides that:
Competency of Juror as Witness
(a) At the Trial. A member of the jury may not testify as a witness before that jury in the trial of the case in which the juror is sitting. If the juror is called so to testify, the opposing party shall be afforded an opportunity to object out of the presence of the jury.
(b) Inquiry into Validity of Verdict or Indictment. Upon an inquiry into the validity of a verdict or indictment, a juror may not testify as to any matter or statement occurring during the course of the jury’s deliberations or to the effect of anything upon that or any other juror’s mind or emotions as influencing the juror to assent to or dissent from the verdict or indictment or concerning the juror’s mental processes in connection therewith, except that a juror may testify (1) to drug or alcohol use by any juror, (2) on the question of whether extraneous prejudicial information was improperly brought to the jury’s attention or (3) whether any outside influence was improperly brought to bear upon any juror. A juror’s affidavit or evidence of any statement by the juror concerning a matter about which the juror would be precluded from testifying may not be received for these purposes.
This rule of evidence concerning jurors is comparable to the same rule of evidence which prohibits judges from acting as a witness. I.R.E 605. Additional rules to consider are the following excerpts from Indiana’s Jury Selection Rules:
RULE 5 DISQUALIFICATION
The court shall determine if the prospective jurors are qualified to serve, or, if disabled but otherwise qualified, could serve with reasonable accommodation. In order to serve as a juror, a person shall state under oath or affirmation that he or she is:
(a) a citizen of the United States;
(b) at least eighteen (18) years of age;
(c) a resident of the summoning county;
(d) able to read, speak, and understand, the English language;
(e) not suffering from a physical or mental disability that prevents him or her from rendering satisfactory jury service;
(f) not under a guardianship appointment because of mental incapacity;
(g) not a person who has had rights to vote revoked by reason of a felony conviction and whose rights to vote have not been restored; and
(h) not a law enforcement officer, if the trial is for a criminal case.
Persons who are not eligible for jury service shall not serve. Upon timely advance request from the prospective juror, the court may excuse from reporting for jury service any person whose bona fide religious conviction and affiliation with a religion prevents the prospective juror from performing jury service.
RULE 6 EXEMPTION
A person who has completed a term of jury service in the twenty-four (24) months preceding the date of the person’s summons may claim exemption from jury service.
RULE 17 CHALLENGE FOR CAUSE
(a) In both civil and criminal cases the parties shall make all challenges for cause before the jury is sworn to try the case, or upon a showing of good cause for the delay, before the jury retires to deliberate. The court shall sustain a challenge for cause if the prospective juror:
(1) is disqualified under rule 5;
(2) served as a juror in that same county within the previous three hundred sixty-five (365) days in a case that resulted in a verdict;
(3) will be unable to comprehend the evidence and the instructions of the court due to any reason including defective sight or hearing, or inadequate English language communication skills;
(4) has formed or expressed an opinion about the outcome of the case, and is unable to set that opinion aside and render an impartial verdict based upon the law and the evidence;
(5) was a member of a jury that previously considered the same dispute involving one or more of the same parties;
(6) is related within the fifth degree to the parties, their attorneys, or any witness subpoenaed in the case;
(7) has a personal interest in the result of the trial;
(8) is biased or prejudiced for or against a party to the case; or
(9) is a person who has been subpoenaed in good faith as a witness in the case.
(b) In criminal cases the court shall sustain a challenge for cause if the prospective juror:
(1) was a member of the grand jury that issued the indictment;
(2) is a defendant in a pending criminal case;
(3) in a case in which the death penalty is sought, is not qualified to serve in a death penalty case under law; or
(4) has formed or expressed an opinion about the outcome of the case which appears to be founded upon
a. a conversation with a witness to the transaction;
b. reading or hearing witness testimony or a report of witness testimony.
(c) In civil cases the court shall sustain a challenge for cause if the prospective juror is interested in another suit, begun or contemplated, involving the same or a similar matter.
RULE 18 NUMBER OF PEREMPTORY CHALLENGES
(a) In criminal cases the defendant and prosecution each may challenge peremptorily:
(1) twenty (20) jurors in prosecutions where the death penalty or life without parole is sought;
(2) ten (10) jurors when neither the death penalty nor life without parole is sought in prosecutions for murder, and Class A, B, or C felonies, including enhancements; and
(3) five (5) jurors in prosecutions for all other crimes.
When several defendants are tried together, they must join their challenges.
(b) In civil cases each side may challenge peremptorily three (3) jurors.
(c) In selection of alternate jurors in both civil and criminal cases:
(1) 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;
(2) the additional peremptory challenges under this subsection may be used only in selecting alternate jurors; and
(3) peremptory challenges authorized for selection of jurors may not be used in selecting alternate jurors.
(d) If it appears to the court that a particular peremptory challenge may have been used in a constitutionally impermissible manner, the court upon its own initiative may (a) inform the parties of the reasons for its concern, (b) require the party exercising the challenge to explain its reasons for the challenge, and (c) deny the challenge if the proffered basis is constitutionally impermissible.
Be prepared and ready, so that you can keep that one bad apple off your next jury. Good luck!
Assuming… How Experts Try to Make an Ass Out of You and Me.
Assumptions are a nefarious tool of “hired gun” experts. If you do not critically look at the underlying assumptions of the expert, you could be allowing the expert to take unfair advantage of your client’s case. Assumptions are the foundation upon which an expert opinion rests. A house with an unsound foundation lacks structural integrity and is potentially dangerous to the occupants. The same is true for experts. You can hit them where they live, if you can show their assumptions are unsupported by the evidence or science. Your starting point is identifying what assumptions the expert is making. Is there a more accurate source for this information?
Guesses Versus Actual Evidence
For example, an expert in determining speed uses a table for the coefficient of friction for a roadway based upon the type of surface it has, asphalt. He is assuming that all black top roadways have the same coefficient of friction. However, this varies from roadway to roadway. The most accurate way to find the coefficient of friction is to actually measure it. Textbooks on accident reconstruction in fact recommend that you do this if possible. Or an expert uses photographs to find specific locations for purposes of scene measurements. However, instead of using the more time-consuming, exact and accepted method of triangulation, he “assumes” that he can just “eyeball” the site. The expert may fail to find the type of camera and len’s length that was used to take the scene photographs. If a zoom lens is used, it can lead to visual distortions of what is being depicted. Everyone for example has seen a picture of what appears to be a “giant” moon when the camera shot is taken with a telephoto lens.
Assumptions About Credibility
Is the expert choosing between two conflicting pieces of evidence and selecting the evidence that best supports his client? If two eye-witnesses have testified to different versions of what occurred, the jury, not the expert, has to assess the witnesses’ credibility and weigh the evidence in order to determine the outcome.
Garbage in Garbage Out
Has the expert missed or ignored critical evidence that could affect his determination of causation or etiology? When a doctor makes a differential diagnosis, he has to eliminate other conditions or illnesses that could give rise to the same symptoms. For example, a person is claiming permanent brain damage from a collision. However, the same person has a long history of alcohol abuse and atrophy of the brain. This condition can lead to the same sort of cognitive problems/symptoms as a traumatic brain injury per the Diagnostic and Statistical Manual of Mental Diagnosis. However, the expert is unaware of the condition. Per the DSM-V this history is listed as a condition which must be eliminated for an correct differential diagnosis to be made. The doctor or neuro-psychologist has assumed that the person has a normal brain prior to the collision. This faulty assumption rocks the very foundation of the expert’s opinion and undermines his credibility before the jury. Most expert’s will agree that in order to reach accurate opinions, you must first have accurate and complete information.
Real Science versus Junk Science
Has the expert embarked upon and reached an opinion through means or methods which are not accepted in the scientific community at large? Is there main stream science which supports their means of reaching such a conclusion? Has their method of analysis been shown forensically to reach correct determinations. If the hired gun did a paper review of a file and determined that your client was not injured or will not have medical problems in the future, has the expert ever conducted a study in his cases to see how accurate his opinions are? Has a scientific journal found or study ever been performed validating medical records reviews as accurate predictors? Does the doctor or expert agree to accept professional responsibility if his conclusion is incorrect and your client is denied future medical benefits or can no longer work due to their injury? In other words, is the expert willing to put his money where his mouth is?
Does the method meet the requirements under Rule of Evidence 702 and the Frye Test or Daubert Analysis? See Daubert v. Merrell Dow Pharmaceuticals, 509 U.S. 579, 113 S. Ct. 2786, 125 L. Ed. 2d 469, (1993). The Daubert rule states, “If scientific, technical, or other specialized knowledge will assist the trier of fact to understand the evidence or to determine a fact in issue, a witness qualified as an expert by knowledge, skill, experience, training, or education, may testify thereto in the form of an opinion or otherwise, if (1) the testimony is based upon sufficient facts or data, (2) the testimony is the product of reliable principles and methods, and (3) the witness has applied the principles and methods reliably to the facts of the case.” In Daubert, the Court stated that evidence based on innovative or unusual scientific knowledge may be admitted only after it has been established that the evidence is reliable and scientifically valid. The older Frye test announced in Frye v. United States, 293 F. 1013 (D.C. Cir. 1923), is met if the evidence sufficiently established that the method has gained general acceptance in the particular field in which it belongs.
Is the evidence relied upon by the opposing expert, the sort of evidence generally relied upon by experts in the field to make a determination as required under Rule of Evidence 703. This rule provides that:
An expert may base an opinion on facts or data in the case that the expert has been made aware of or personally observed. If experts in the particular field would reasonably rely on those kinds of facts or data in forming an opinion on the subject, they need not be admissible for the opinion to be admitted. But if the facts or data would otherwise be inadmissible, the proponent of the opinion may disclose them to the jury only if their probative value in helping the jury evaluate the opinion substantially outweighs their prejudicial effect.
Assuming Expertise in an Area Outside Their Field of Expertise
Is the expert venturing outside of his field? Is he really an expert on the matter he is testifying about? Void dire the expert on his qualifications and have the court exclude him if possible, or narrow his expertise and render his opinion useless or unreliable. Just because you are an expert in one area, does not make you an expert in all areas.
Arguing the Unfairness of Assumptions to the Jury
A good argument I have heard made on the unfair use of assumptions goes something like this:
When you are deliberating over your verdict, and thinking about and weighing the evidence in this case, ask yourself whether or not you are making assumptions. Ask yourself whether you are allowing opposing counsel or his so called expert to put their thumb on the scales of justice. This is something you must carefully guard against – you must make sure this “thumb” plays no part in your deliberations or in your verdict.
Think of this thumb as the “thumb of injustice: injustice because it allows the opposing party to prevail without actually presenting proof of anything or relying on real evidence. This thumb also represents all of those assumptions that they are hoping you will make in this case about the accuracy and reliability of their so called “scientific evidence”. If, when you are thinking about the evidence, lack of evidence or conflicts in the evidence in this case, you believe that assumptions are playing a part in your deliberations and you allow it to continue and to affect your verdict, then the only thing that can happen is an unjust verdict. If you allow these assumptions to enter the deliberation room, then there is a very real possibility that the verdict you reach will not be based on the evidence, but will be based, instead, on nothing more than a series of inappropriate assumptions, and assumptions are not evidence.”
Remember, when you assume, you make an “ass” out of “you” and “me.”
I hope these thoughts help you spot faulty assumptions being made by experts and their weaknesses so that you can take advantage of the opportunities they present on cross-examination.
Helping the Jury Remember When.
“If you tell the truth, you don’t have to remember anything.” ― Mark Twain
The human memory is a tricky thing. Some things are learned and recalled without even thinking about them. These are typically items that we come in contact with in a concrete and tangible way on a day-to-day basis. Other items of information are more difficult to commit to memory because they are abstract in nature. These bits of information are not as easy to visualize and draw connections to other bits of information that we are more familiar with in our day-to-day lives.
I am currently reading a book titled “Moonwalking with Einstein” by Joshua Foer. It chronicles the author’s journey into the world of memory competition and how he developed an extraordinary world class memory through the use of various mnemonic devices. Humans it seems have a very developed spatial memory and if one can connect bits of information to a location in a highly unusually and memorable way the information is much more likely to be recalled and retrieved when needed later. An individual takes a location that they are thoroughly familiar with in intimate detail and uses this as a “memory palace” where memories are created through vivid and unique descriptions and then imagined to be deposited at various location in the person’s memory palace. Such training of the mind through the use of Loci was typical and part of a man’s education. This technique of connecting memories to locations, was outlined centuries ago in the four volume treatise “Rhetorica ad Herennium” by Cicero. Today, such techniques are seldom referenced outside of the world of memory competition. Contestants in the memory competitions use literally scores of “memory palaces” to deposit their memories for easy retrieval. Each fact or bit of information to be remembered is imagined in elaborate and extravagant detail involving as many senses as possible as part of creating the memory. This imbeds the information deeply with in the mind. The more connections created to the information from various senses, the easier it is to retrieve and recall the information.
So how can this help you in presenting your case to the jury? Well, you need to involve each juror’s mind in as many ways as possible through your presentation. Create vivid imagery with your words, exhibits and through your story telling. Analogies are a mnemonic device to help jurors create connections with items of information they already know and are familiar with through their everyday lives. The analogy not only illustrates your point, but acts as mnemonic device to help your jurors recall and make your arguments again in the jury room when it counts most. In addition to analogies, when you make a new point in your closing argument or opening statement, change your location even if it is subtle or minor. This taps into a juror’s spatial memory. Engage their sense of hearing in a memorable way by varying the tone and volume of your delivery as you move from topic to topic. I have even heard of attorneys referring to a deceased client by subtly indicating with their hands to the presence of their deceased client in a particular area of the courtroom and then carefully avoiding that spot as the case proceeds forward. The attorney in essence gestures to their client at a fixed location. In one instance I heard of this technique being so effective that opposing counsel subconsciously avoided the spot where the deceased client was referred to through gesture. And don’t forget the senses of touch and smell in describing an accident scene: the jagged and rough edge of a piece of metal, the abrasive surface of the pavement, the bloody surface of a wound, the smell of burnt rubber, the sweet order of antifreeze and the pungent order of gasoline.
If you involve as many senses of the jurors as possible when making your presentation of evidence and argument, you will increase the chance of those arguments being repeated in the jury room and helping the jury remember when you said it in the courtroom.
Jurors: Helping Them, Help You.
“I consider trial by jury as the only anchor ever yet imagined by man, by which a government can be held to the principles of its constitution.” —Thomas Jefferson to Thomas Paine, 1789.
Jurors… They are truly the heart and soul of our justice system. No invention known to man has a greater potential to add to the cause of justice than a jury. They represent a microcosm of democracy. All typically must agree on the outcome. There must be compromise and a degree of open-mindedness, if there is to be a resolution at all. Most arrive wishing they were somewhere else and leave transformed by the process of being asked, in the name of justice, to render a decision that will profoundly effect the lives of the litigants before them. Their collective intellect, wisdom and conscience is more powerful and productive of good than any single man sitting in judgment of another person’s actions or decisions. Under English law, jurors stood between the crown and it’s subjects. They acted as a check on tyranny by the crown against the people. The following analogy about the “Old Man, the Boy and the Bird” demonstrates a jury’s awesome power. I first saw this analogy recited years ago on “Sixty Minutes” by renowned trial lawyer, Gerry Spence. It is a fitting way to end a closing argument as Spence liked to do:
“I’m going to tell you a simple story, about a wise old man and a smartaleck young boy who wanted to show up the wise old man for a fool. The boy captured a little bird. He had the idea he would go to the wise old man with the bird in his hand and say, “What have I got in my hand?” And the old man would say, “Well, you have a bird, my son.” And he would say, “Wise old man, is the bird alive or is it dead?” The old man knew if he said, “It is dead,” the little boy would open his hand and the bird would fly away. If he said, “It is alive,” the boy would take the bird in his hand and crunch the life out of it and then open his hand and say, “See, it is dead.” So the boy went up to the wise old man and he said, “Wise old man, what do I have in my hand?” The old man said, “Why, it is a bird.” He said, “Wise old man, is it alive or is it dead?” And the wise old man said, “The bird is in your hands, my son.”
The Barrister's Toolbox 