the u.s. legal system & courtroom testimony cwag february 2010
TRANSCRIPT
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
Existing Mexican Criminal Procedure
• Preliminary hearing– Judge determines whether corpus delecti– Order to initiate criminal process
• Instruction– Evidence considered– Mostly written reports & statements– Parties file “conclusions”
Existing Mexican Criminal Procedure
• 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
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
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.”
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
Steps in a Jury Trial
Defense attorney’s cross-examination
Defense attorney’s presentation ofevidence and direct examination
Prosecutor’s cross-examination
Steps in a Jury Trial
Closing Arguments to the jury
Judge’s instructions to the jury onthe rule of law, evidence and
standards of proof
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
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?
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 . . . .
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
Cross-Examination Tips
(2) Do not accept a learned treatise as the last word unless you are the author
Cross-Examination Tips
(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.
Cross-Examination Tips
(5) Readily agree with points that are not contestable . . . But always stick to your guns.
Cross-Examination Tips
(7) Show respect at all times, including acknowledging the judge as “Your Honor” and the attorneys, parties, and witnesses by name.
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