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September 30, 2012

Excluding Evidence Under Rule 403--Is a Video Worth a Thousand Words?

683635_remote_control_1.jpgIs a video ever worth a thousand words? More to the point for this post, can a court commit error by failing to view videos offered by the prosecution before allowing the jury to see them? In a decision issued on September 18, the Third Circuit says yes.

In United States v. Cunningham, a case that originated from the Western District of Pennsylvania, the Third Circuit vacated the defendant's conviction and granted him a new trial because the trial court had allowed the jury to see videos after accepting the prosecution's description of the videos rather than actually viewing them. This, the appeals court panel unanimously ruled, was an abuse of discretion.

What kind of videos are we talking about? Graphic depictions of adults molesting prepubescent children, including, in the court's words, "the kind of highly reprehensible and offensive content that might lead a jury to convict because it thinks that the defendant is a bad person and deserves punishment, regardless of whether the defendant committed the charged crime."

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July 16, 2012


952313_gavel.jpgLawyers are taught that tightly controlled cross examination is best. "Never ask a question you don't know the answer to" is the only lesson many law students recall from their advocacy class. Irving Younger, the patron saint of litigators, made "Use only leading questions" the third of his ten commandments of cross examination. Recently however there have been several instances in high visibility trials where excellent counsel have violated these old maxims to great success.

Abby Lowell, the defense lawyer for former presidential contender John Edwards in his illegal campaign contribution trial, deliberately led with his chin in asking the main prosecution witness the question "You really hate him don't you?" about the witness's feelings for Edwards. In doing so Lowell was potentially opening the door to a recitation of otherwise irrelevant hate worthy conduct committed by Edwards. Lowell wouldn't even have been able to interrupt the witness as he spewed forth dozens of potentially compelling reasons for his hatred of Edwards. Lowell had gauged the situation correctly however. His question elicited a lengthy pause from the witness followed by an almost whispered response of "I have mixed feelings." Courtroom observers said you could feel the spirit go out of the prosecution case with such a wishy washy response. Lowell deliberately took a risk which worked. Lowell sized the witness and the situation up and instinctively knew the witness would collapse at that point. As is true in so many fields of endeavor sometimes the mark of an expert is that he ignores the established rules and goes with what the economist John Maynard Keynes called "the animal spirits."

Similarly Rusty Hardin, the Houston attorney who recently obtained an acquittal for Roger Clemens in the baseball/steroid criminal case, asked a broad question on cross examination which violated the traditional precepts about tight control of the witness through the use of leading questions. Hardin repeatedly asked open ended questions of the trainer who claimed to have injected steroids into Clemens. As one courtroom observer stated, Hardin sensed that, given enough latitude, the witness either change his story or make up an entirely new story. He was right.

For example, while being questioned by the prosecution, the trainer stated that Clemens had told him that once he retired from baseball he intended to "get big, really big" by ingesting lots of steroids and lifting weights religiously. This anecdote had not been included in any of the pre-trial discovery. Textbook cross examination technique would have been for Hardin to box the witness in by laboriously presenting each prior statement to the witness and leading him to acknowledge that the statement was not included therein. Instead Hardin asked the broad question " Can you explain why you never told anyone about this conversation before?" In posing such a broad question Hardin took the risk that the witness might have some plausible reason for his new story. The witness might also give a lengthy speech prejudicial to Clemens which would be tough for Hardin to limit.

The witness paused, lowered his gaze and sheepishly replied " No, I can't explain it." His credibility was harmed much more than it would have been if Hardin had bickered with him over what was or was not included in assorted statements.

In conclusion, lawyers should follow the "rules" of advocacy. The judgment, knowledge and experience to know when to ignore the rules however, can make all the difference at trial.