cwag february 2010

The U.S. Legal System &

Courtroom Testimony

CWAG February 2010

Mexico’s Legal System In Transition

• 2007/2008 constitutional amendments

• 2008 – new federal Criminal Procedure Code

• Proderecho

• Oral trials already in Chihuahua, Oaxaca

• Soon in Morelos, Baja California, Zacatecas

• Also changes in Nuevo Leon, Estado de Mexico

• Eventually all

Existing Mexican Criminal Procedure

• Preliminary inquiry (Averiguacion previa)– Investigation by Public Prosecutor & police– Presumption of truth / established fact– Written findings to judge to evaluate

whether sufficient evidence – Consideration of defense evidence– 72 hour limit if suspect in custody


• Preliminary hearing– Judge determines whether corpus delecti– Order to initiate criminal process

• Instruction– Evidence considered– Mostly written reports & statements– Parties file “conclusions”


• Trial (Juicio)– Arguments, may be oral, but no judge

present– Little meaning– Findings already made

• Sentencing

Reforms in BC, Chihuahua, Morelos,

Oaxaca, Zacatecas• Three stages: Preliminary, Intermediate,

Trial• Trial stage

– Before judge(s) with no knowledge of case– Look at evidence piece-by-piece without

prosecutor’s dossier– All evidence is be considered, tested– Public access, cross-examination, all one

concentrated and continuous proceeding

Major Theme

U.S. Legal System:

General Structure / Overview– Context for later discussion of trial process

The Crime / Investigation

• City, county, or federal police agencies handle the investigation

• Prosecutors generally not involved– Except for interfacing with

courts (probable cause determination) on search warrants

• Arrests made upon probable cause

Only Reasonable Searches & Seizures

• “The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated, and no Warrants shall issue, but upon probable cause, supported by Oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized.”– Fourth Amendment, U.S. Constitution

Forensic Testing• Many police departments do

crime scene processing, latent print examinations

• Some cities have own labs for other testing (e.g., DNA, trace, ballistics, toxicology)

• Some counties have own labs• State labs (regional)• FBI / DEA labs

DNA Issues

• Where DNA profile of perpetrator, but no suspect, use of CODIS

• Statutes of limitation• “Doe” Warrants• Database match as probable

cause for arrest warrant / search warrant

• New reference sample

The Arrest• Probable cause• Booking

– Mug shots– Fingerprints– DNA (felonies)– Other identification

• In custody– Bail– Release

Filing Charges• When police have concluded

investigation, submit reports to county, state, or federal prosecutor

• Prosecutor can reject, refer back for additional investigation, or file charges– May be different charges than

recommended by police agency

• Charging document = “complaint”

What Court?

U.S. Supreme Court

State Trial Courts

State Appellate Courts

State Supreme Courts

U.S. District Courts

U.S. Courts of Appeals

Trial Court Appellate Court

State Supreme Court

Arraignment• In California, within 48

hours days if defendant in custody

• Before judge in public courtroom

• Charges read• Plea entered• Defendant represented

by lawyer– Right to counsel whether

can pay or not

Discovery

• Prosecution provides, typically:– Names & addresses of witnesses– Defendants’ statement(s)– All relevant evidence collected in

investigation– Felony convictions of prosecution

witnesses– Written or recorded witness

statements, including scientific reports

– Any exculpatory evidence

Prosecution’s Duty to Give Material, Exculpatory

Evidence In Their Possession to Defense• Ongoing duty – only prosecution• Defendant does not have to ask• Includes all information

favorable to defendant on guilt or punishment

• Including information possessed by crime lab & police

• Including material that could be used to impeach witnesses

• Violation = conviction reversed

Destruction of Evidence

• Violation of law for prosecution (including lab) to destroy evidence that had apparent exculpatory value

• Bad faith required• Not just sample consumed

during testing

Plea Bargains

• Prosecution and defense counsel negotiate a plea arrangement

• 85-95% of cases• Typically, defendant

pleads guilty to a lesser offense with a reduction in sentence

Preliminary Hearing

• In California, within 10 days of preliminary hearing if defendant in custody

• Before judge in public courtroom• Defendant represented by lawyer• Prosecutor must provide sufficient

evidence of crime and identity• Defendant can cross-examine,

present evidence• Court reporter, transcript• The Information

Right to A Speedy Trial

• In California, within 60 days of filing of information

• Unless defendant consents to delay

Sixth Amendment “In all criminal prosecutions, the

accused shall enjoy the right to a speedy and public trial, by an impartial jury of the State and district where in the crime shall have been committed, which district shall have been previously ascertained by law, and to be informed of the nature and cause of the accusation; to be confronted with the witnesses against him; to have compulsory process for obtaining witnesses in his favor, and to have the Assistance of Counsel for his defence.”

The Courtroom

Trial

• By jury or by judge

• Proof beyond a reasonable doubt

• Jury must be unanimous to convict

Jury Selection• Jury panel: citizens

summoned for jury duty• Questionnaires• Voir dire by judge and

attorneys• Dismissed for cause or

with peremptory challenges

• Panel of 12 + alternates

Steps in a Jury Trial

Prosecutor’s opening statementto the jury

Defense attorney’s openingstatement to the jury

Prosecutor’s presentation of evidenceand direct examination


Defense attorney’s cross-examination

Defense attorney’s presentation ofevidence and direct examination

Prosecutor’s cross-examination


Closing Arguments to the jury

Judge’s instructions to the jury onthe rule of law, evidence and

standards of proof


Jury deliberation and voting

Verdict

Sentencing by court

The Verdict

• Guilty– Judge will normally set

a date for sentencing and ask for a presentence investigation report

• Not guilty– Defendant is free to

leave

• Hung jury– Case may be retried

Sentencing• Judge decides

sentence, unless death penalty case– Guilt phase, penalty

phase

• Often statues define “range” for sentence

• Mandatory sentencing laws

• “Aggravating” and “mitigating” factors

Admissibility of EvidenceAdmissibility of Evidence

• Relevancy

• Probative value

• Prejudicial impact

• Judicial efficiency

• Confusion

• Reliability

• Legally obtained

Scientific Evidence - Admissibility

Scientific Evidence - Admissibility

• Daubert v. Merrill Dow (1993)• Must demonstrate validity of

scientific theory / method• Factors:

- Theory subjected to empirical testing

- Peer review / publication- Known / potential error rate- Standards and controls- General acceptance in scientific

community

Testifying

First, Meet With ProsecutorFirst, Meet With Prosecutor

• Understand what will be asked

• Educate DDA – science / results here

• Review reports

• Make sure prosecutor understands what questions he/she needs to ask you

- Suggest questions

• Ask prosecutor what to expect from judge & defense attorney

Before Going To Court• Collect & review materials

- Reports, bench notes, discovery- Technical reference material- Lab policies & procedures / QC

guidelines

• Any updates to materials previously provided?

• Review prior testimony in this or similar cases- E.g., preliminary hearing

testimony

• Make charts / exhibits?

DNA Results Exhibit

Expert Witness• Impartial – not an advocate• Jury must see expert as:

- Knowledgeable- Honest- Impartial- Humble- Sincere

• Opinion testimony- Be confident with opinion – don’t

waffle

• Non-opinion expert testimony- E.g., explaining scientific processes

The Law of Expert Witnesses

• An expert is someone who . . . “has special knowledge, skill, experience, training, or

education sufficient to qualify him as an expert on the subject to which his testimony relates.”

• Broad definition, but can be the subject of intense litigation

• The formula:– Credentials– Opinion– Basis for opinion

Qualifying An Expert Witness

• Know your CV, and keep up-to-date• Lawyer will identify and introduce CV as evidence• Education• Day-to-day duties• Work experience

- Years on job(s)- Promotions / progression- Supervisory responsibility

• Professional awards / recognition• Membership in professional associations• Publication / teaching• Prior expert testimony

– Number times– What courts

Courtroom Protocol

• Demeanor- Polite and professional – ALWAYS- Simple, direct answers- Confidence, not arrogance- Be human, be yourself- Speak in lay terms whenever possible- Look at the jury – make a connection with them- If you make a mistake, correct in voluntarily as

soon as possible• Why? Here’s why . . . .

Speak Clearly

Courtroom Protocol

• Do not volunteer information – answer only, literally, the question asked- “You didn’t bother to fingerprint the steering

wheel, did you?”

• Objections- Stop speaking – let judge handle it- “Overruled” – keep going- “Sustained” – stop and wait for next question

• Refreshing memory

Courtroom ProtocolDirect vs. Cross Examination

- Always answer truthfully & honestly- Answer only literal question- Do not volunteer information on cross- If you don’t know, say so- “May I explain?” “May I expand on that

last answer?”- You provide information – you do not

control how it is used• You don’t know all the facts

or legal strategies

Courtroom Protocol

• Be aware of potential privileges or areas you cannot address

• The ultimate obligation of every government witness is to the truth

• Once you lose credibility, it is lost for good– Transcripts– Criticism by appellate courts

Direct Examination

• Often effective to start with presentation on the ultimate issue / bottom line conclusion

• Walk through the steps you took in forming that opinion– Know all the facts

• Qualifications – did work – formed opinion – state opinion – basis for opinion

Direct Examination

• An expert witness may base an opinion on– Skill, training, experience, education– What he perceived– Whether or not admissible– If it’s the kind of information experts

reasonably rely on

Direct Examination• Opinion can be based on hearsay and other

admissible or inadmissible evidence– E.g., articles & publications– Scientific testing, modeling, and calculations– Seminars & poster presentations– Conversations with colleagues in the field– Accumulated experience working on other cases

Direct Examination

• Short, simple questions; simple answers

• Hypotheticals– Facts in evidence vs. facts not in evidence

• Avoid technical jargon

• Define / explain terms where necessary

• Assumptions made – why they are justified

• Analogies / metaphors are very helpful– DNA statistics / lottery ticket

Direct Examination

• The expert should simplify complexities, not expand them

• Logical, clear organization

• Expert as a teacher– Blackboard and chalk– Powerpoint / slideshow– Overhead projector– Models / charts

Cross-Examination

• On qualifications

• Subject of expert testimony

• The matter upon which opinion is based

• Reasons for opinion

Cross-Examination

• Cross-examination about articles, publications, etc.

• But only if:– The witness referred to, considered, or relied on

it in forming his or her opinion. OR

– The publication has been admitted in evidence. OR

– The publication has been established as a reliable authority by the testimony or admission of the witness or by other expert testimony or by judicial notice.

• If admitted, relevant portions of the publication may be read into evidence

Cross-Examination Tips

(1) When asked about treatise or article, always ask to see it to make sure quotation is accurate and the context is appropriate


(2) Do not accept a learned treatise as the last word unless you are the author


(3) Do not be apologetic for not knowing all primary sources on a subject


(4) When the opposing attorney is trying to make you feel guilty or shamed, ignore those efforts. Rather, respond by being confident and good-natured.


(5) Readily agree with points that are not contestable . . . But always stick to your guns.


(6) Use silence to relax and observe everything in courtroom.


(7) Show respect at all times, including acknowledging the judge as “Your Honor” and the attorneys, parties, and witnesses by name.


(8) If you make a mistake, correct it voluntarily and as soon as possible.

Cross-Examination

• Typical lines of attack:– Lack of experience (quality and/or quantity)– Bias– Defective memory– Prior inconsistent statements– Errors in use of technical terms– Chain of custody / sample mislabeling– Contamination– The scientific theory– Instrumentation issues– Interpretation of results

Cross-Examination

• MUST exercise self-control on cross

• No temper

• Polite in the face of aggression

• Answers should be responsive, but not misleading– Expand on “yes” / “no” where necessary

Gracias

Mike Chamberlain

Deputy Attorney General

California Department of Justice

[email protected]

cwag february 2010

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