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Limiting the Damage

So you lose an evidentiary argument and the court allows some potentially prejudicial evidence to be presented for some narrow purpose such as bias, impeachment or to show intent, similar plan, motive or scheme.  So what should you do?  

Indiana follows “the rule of multiple admissibility” endorsed by the evidence treatises of both Whitmore and McCormick. Under this rule, evidence that is admissible for one purpose is admissible, even though it might be excluded from consideration by the jury if it was offered for another improper purpose.  The opponent of the evidence is protected, not by exclusion of the evidence, but instead by the use of a limiting instruction. Indiana Evidence Rule 105 provides:

 “If the court admits evidence that is admissible against a party or for a purpose—but not against another party or for another purpose—the court, on timely request, must restrict the evidence to its proper scope and instruct the jury accordingly.”

The party seeking to limit the evidence has the duty to request the instruction. Small v. State, 736 N.E.2d 742, 746 (Ind. 2000) (observing “a trial court has no affirmative duty to admonish a jury sua sponte as to such evidentiary matters”).  As a result you should ask the court to specifically define the area of use and address inappropriate inferences or uses which are prohibited.  Indiana Pattern Instruction No. 527 Evidence Admitted for a Limited Purposes states:

During the trial, I instructed you to consider certain evidence only for specific, limited purposes. You must consider that evidence only for those limited purposes.

Evidence relevant for some legitimate purpose,  can only be excluded if it violates the precepts of Indiana Rule of Evidence 403.  Under this rule, the danger of unfair prejudice has to substantially outweigh the evidence’s probative value in order to exclude it, thereby tipping the scales in favor of admissibility.

Keep these thoughts in mind the next time you need to limit the damage…

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Direct Examination and Airing Your Dirty Laundry

LaundryThere is no tactic which will better serve you and your client in establishing credibility with the jury then to bring out negative points during direct examination and confronting them head on with believable explanations. If you wait until redirect, then it may be too late to salvage your witness. I always make a list of problems as the case progresses from investigation through discovery and on the trial. Come up with a strategy of either excluding the evidence or find a way to deal with it honestly and persuasively before the jury.

During direct examination, you can ask questions of your client or witness the jury is likely thinking. The witness is then provided an opportunity to take some of the sting out of the evidence by having a friendly questioner take them through the problem. The opposing attorney on cross-examination will be much more reluctant to extensively cover that area and come across as overbearing, looking as if he is desperate as he has nothing else to ask or add to outside of your examination.

The client or witness should be cautioned to stay calm throughout their cross-examination on any such topics. Once the matter has already been brought out to in direct examination, the jury will be looking much more at the witness’s reaction on cross.  If they do not react and you do not react, the jury will likely conclude that the matter is not critical to their decision. Most jurors have never been in a courtroom before and will not consider the points important unless you act like they are.

A Hung Jury: When a Stalemate Becomes Your Best Option.

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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.

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