An In-Depth Look at Direct Examination of Expert Witnesses†
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Proffer, Plea and Cooperation Agreements in the Second Circuit
G THE B IN EN V C R H E S A N 8 D 8 B 8 A E 1 R SINC Web address: http://www.law.com/ny VOLUME 230—NO.27 THURSDAY, AUGUST 7, 2003 OUTSIDE COUNSEL BY ALAN VINEGRAD Proffer, Plea and Cooperation Agreements in the Second Circuit he Department of Justice over- Northern and Western districts provide sees 93 U.S. Attorney’s offices that proffer statements will not be used in throughout the country and any criminal proceeding, the Eastern and beyond. Thousands of criminal Southern agreements are narrower, T promising only that such statements will prosecutors in these offices are responsible for enforcing a uniform set of criminal not be introduced in the government’s statutes, sentencing guidelines and case-in-chief or at sentencing. Thus, Department of Justice internal policies. proffer statements in those districts may Among the basic documents that are be offered at detention hearings and criminal prosecutors’ tools of the trade are suppression hearings as well as grand proffer, plea and cooperation agreements. jury proceedings. These documents govern the relationship Death Penalty Proffer. The Eastern between law enforcement and many of the District’s proffer agreement has a provision subjects, targets and defendants whom defendant) to make statements to the that assures a witness or defendant that DOJ investigates and prosecutes. government without fear that those proffer statements will not be considered Any belief that these agreements are as statements will be used directly against the by the U.S. Attorney’s Office in deciding uniform as the laws and policies underly- witness in a later prosecution. -
Expert Witness Ethics
EXPERT WITNESS ETHICS Joseph Sanders* The worst that can be said about an expert opinion is not that it is a lie— that criticism is often beside the point—but that it is unreasonable, that no competent expert in the field would hold it.1 INTRODUCTION Expert witness ethics is one of those topics about which there appears to be a fair degree of resigned acceptance of the status quo. In large measure this is because of a lack of agreed upon ethical standards and, therefore, a lack of consensus concerning what steps we should take to encourage more ethical behavior. Both of these are difficult issues, and I do not propose to offer noncontroversial solutions to either. Nevertheless, the topic is worthy of our attention. The costs of unethical expert witnessing are substantial. They include the costs associated with weeding out the most unethical witnesses and, equally important, the costs reflected in any reduced ability of fact-finders to come to correct conclusions. This essay is organized into three sections. In the first part, I discuss the nature of the expert’s ethical obligation and impediments to fulfilling that obligation. This part is informed by the central proposition that the primary purpose of a trial is to ascertain the truth.2 This purpose informs the central ethical obligation of experts, which is to provide adequate, unbiased justifications for their position. I argue that the “same intellectual rigor” test advanced by the U.S. Supreme Court in Kumho Tire Co. v. Carmichael,3 although much criticized, is with some modification the most appropriate measure of this ethical standard. -
The Basic Elements of Direct Examination
The basic elements of direct examination * By: F. Dennis Saylor IV and Daniel I. Small ) February 24, 2017 In theory, at least, an effective direct examination should be one of the easiest things to accomplish in the courtroom. The witness is almost always friendly; in fact, it’s often your own client. The testimony is almost always entirely predictable. And the goal is usually pretty straightforward: telling your side of the story. Nonetheless, too many direct examinations are neither as clear nor as compelling as they ought to be. Maybe that’s because too many lawyers view direct as a simple, almost mechanical, task: Just put your witness on the stand and press “play.” But a truly effective direct examination cannot be created on the fly; it requires careful organization and planning. Moreover, it requires discipline — in particular, the discipline to ask questions carefully, without leading and without excess “noise.” In our upcoming columns, we will talk about different parts of the challenge of effective direct examination. But let’s begin at the beginning. There are six basic elements of an effective direct examination: (1) introducing the witness, (2) setting the stage, (3) telling the story, (4) showing the evidence, (5) defusing problems and (6) concluding effectively. 1. Introducing the witness Most lawyers ask a handful of questions up front to introduce and “humanize” the witness. A few questions about a witness’s background (such as residence, occupation, family or education) are normally permitted, even if technically they aren’t always entirely relevant. But be careful not to overdo this. -
Proffer Agreements
BAR OURNAL J FEATURE States Attorney’s office for the Eastern District of New York provides: [T]he Office may use any statements made by Proffer Agreements Client: (A) to obtain leads to other evidence, which evidence may be used by the Office in any stage of a criminal prosecution (including What Is Your Client Waiving but not limited to detention hearing, trial or sentencing), civil or administrative proceeding, (B) as substantive evidence to and Is It Worth the Risk? cross-examine Client, should Client testify, and (C) as substantive evidence to rebut, directly or indirectly, any evidence offered or elicited, BY JOHN MCCAFFREY & JON OEBKER or factual assertions made, by or on behalf of Client at any stage of a criminal prosecution (including but not limited to detention hearing, our client is the target of a federal a plea of guilty later withdrawn” is inadmissible trial or sentencing).(Emphasis added.) investigation. He is offered the against the defendant. It is well-settled that the In practice, the particular language of these opportunity to speak with prosecutors protections afforded under these rules can be agreements determines what triggering events Yand investigators so that they have “his side” waived in proffer agreements, thus opening the open the door to the admission of a client’s of the story before determining whether door for a client’s statements to be used against proffer statements at trial. For example, in charges will be pursued. You may ask yourself, him at trial. United States v. Mezzanatto, 513 United States v. Gonzalez, 309 F.3d 882 (5th “What do I have to lose?” Well, the answer is U.S. -
Case 3:14-Cv-00092-JMS-MPB Document 444 Filed
Case 3:14-cv-00092-JMS-MPB Document 444 Filed 09/26/19 Page 1 of 36 PageID #: <pageID> UNITED STATES DISTRICT COURT SOUTHERN DISTRICT OF INDIANA EVANSVILLE DIVISION WILLIAM HURT, DEADRA HURT, and ANDREA ) HURT, ) Plaintiffs, ) ) 3:14-cv-00092-JMS-MPB vs. ) ) JEFF VANTLIN, JACK SPENCER, WILLIAM ) ARBAUGH, JASON PAGETT, MATTHEW WISE, ) and ZACHARY JONES, ) Defendants. ) ORDER Plaintiffs William Hurt, Deadra Hurt, and Andrea Hurt1 allege in this matter that they were wrongfully targeted, arrested, and prosecuted for the death of their uncle, Marcus Golike, whose body was found in the Ohio River in June 2012. After the Court ruled on Motions for Summary Judgment filed by Defendants Evansville Police Department Detectives Jeff Vantlin, Jack Spencer, William Arbaugh, and Jason Pagett (the “EPD Defendants”) and Kentucky State Police Detectives Matthew Wise and Zachary Jones (the “KSP Defendants”), the Defendants sought and the Seventh Circuit resolved an interlocutory appeal. Following remand, the Court considered briefing by the parties on the effect of the Court’s summary judgment rulings and the interlocutory appeal, and determined that the following claims remain for trial: (1) Wrongful Pretrial Detention: William vs. EPD Detectives Vantlin, Spencer, Arbaugh, and Pagett; Deadra vs. EPD Detectives Vantlin and Spencer; (2) False Arrest: William, Deadra, and Andrea vs. EPD Detective Vantlin and KSP Detectives Wise and Jones; (3) Use of an Involuntary Confession in a Criminal Proceeding: William and Deadra vs. EPD Detective Vantlin and KSP Detectives Wise and Jones; (4) Failure 1 For simplicity, the Court will refer individually to Plaintiffs by their first names only in the remainder of this Order. -
A New Regime for Expert Witnesses
Valparaiso University Law Review Volume 26 Number 3 Summer 1992 pp.757-764 Summer 1992 A New Regime for Expert Witnesses Richard A. Epstein Follow this and additional works at: https://scholar.valpo.edu/vulr Part of the Law Commons Recommended Citation Richard A. Epstein, A New Regime for Expert Witnesses, 26 Val. U. L. Rev. 757 (1992). Available at: https://scholar.valpo.edu/vulr/vol26/iss3/5 This Monsanto Lecture is brought to you for free and open access by the Valparaiso University Law School at ValpoScholar. It has been accepted for inclusion in Valparaiso University Law Review by an authorized administrator of ValpoScholar. For more information, please contact a ValpoScholar staff member at [email protected]. Epstein: A New Regime for Expert Witnesses A NEW REGIME FOR EXPERT WITNESSES RICHARD A. EPSTEIN I. TORT REFORM OR PROCEDURAL REFORM Most proposals for tort reform are efforts to mount a frontal assault against a system that many believe to be deeply at odds with the best interests of our legal social system. In the many years in which I have dealt with mass torts, both as a scholar and as a consultant, I have become convinced that the protracted struggles in litigation are a pointless social exercise that fail in all of their fundamental objectives. The sprawling nature of the litigation consumes enormous social resources, and the kinds of factual inquiries that are raised in the cases require lawyers to develop extensive expertise in a wide range of scientific, economic, and historical issues. In 1968 when I started to teach, the paradigmatic tort was still the automobile collision at the intersection of Fourth and Main, and serious scholars were asking whether the tort system had any future at all, given that automobile no-fault insurance was likely to overtake automobile liability, just as employer liability gave way to worker's compensation laws. -
The Effect of Expert Witness Testimony on Jury Verdicts in Rape Trials" (2017)
Arcadia University ScholarWorks@Arcadia Senior Capstone Theses Undergraduate Research Spring 4-28-2017 Swaying the Jury: The ffecE t of Expert Witness Testimony on Jury Verdicts in Rape Trials Christina E. Ball [email protected], [email protected] Arcadia University has made this article openly available. Please share how this access benefits ouy . Your story matters. Thank you. Follow this and additional works at: http://scholarworks.arcadia.edu/senior_theses Part of the Criminal Law Commons, Criminology Commons, Law and Gender Commons, and the Social Control, Law, Crime, and Deviance Commons Recommended Citation Ball, Christina E., "Swaying the Jury: The Effect of Expert Witness Testimony on Jury Verdicts in Rape Trials" (2017). Senior Capstone Theses. 29. http://scholarworks.arcadia.edu/senior_theses/29 This Capstone is brought to you for free and open access by the Undergraduate Research at ScholarWorks@Arcadia. It has been accepted for inclusion in Senior Capstone Theses by an authorized administrator of ScholarWorks@Arcadia. For more information, please contact [email protected]. Swaying the Jury: The Effect of Expert Witness Testimony on Jury Verdicts in Rape Trials Christina Ball Department of Sociology, Anthropology, and Criminal Justice Arcadia University April 28, 2017 Abstract With the reliance on rape myths to form opinions towards rape victims, the use of expert witnesses is of increased importance. Rape myths may give jurors misinformed notions about why, how, or to whom rape happens. This indicates a need for educational expert testimony in rape jury trials. It is proposed the use of this testimony will help dispel these myths and social biases towards victims of rape. -
Challenging Law Enforcement “Expert” Testimony
Challenging Law Enforcement “Expert” Testimony Paul Sun & Kelly Dagger © Ellis & Winters LLP 20152016 Why Law Enforcement “Experts” Matter • They testify frequently. – So often that the Supreme Court has said police need absolute immunity from § 1983 liability for testifying falsely. Rehberg v. Paulk, 132 S. Ct. 1497 (2012) (because “police officers testify with some frequency,” if they “were routinely forced to defend against [perjury] claims based on their testimony,” it would divert attention from official duties). © Ellis & Winters LLP 2015 Why Law Enforcement “Experts” Matter • They may be the only witnesses, particularly if your client does not put on evidence. – And that does not necessarily entitle you to voir dire to weed out pro-law enforcement jurors. See United States v. Lancaster, 96 F.3d 734 (4th Cir. 1996) (en banc) (not necessarily error to refuse defense request to ask prospective jurors whether they would be biased in favor of officers). © Ellis & Winters LLP 2015 Why Law Enforcement “Experts” Matter • Judges and jurors believe the police. – E.g., David N. Dorfman, Proving the Lie: Litigating Police Credibility, 26 Am. J. Crim. L. 455 (1999). – Difficult to win a civil suit for police misconduct. See Galazo v. Piekza, 2006 WL 141652 (D. Conn. Jan. 19, 2006) (“Often the case boils down to a ‘he said, he said’ between a police officer and a plaintiff who frequently possesses a criminal record. Regardless of jury instructions to the contrary, juries tend to believe the testimony of a police officer over that of a convicted criminal.”). © Ellis & Winters LLP 2015 Why Law Enforcement “Experts” Matter • Jurors overvalue expert testimony. -
Using Leading Questions During Direct Examination
Florida State University Law Review Volume 23 Issue 2 Article 4 Fall 1995 Using Leading Questions During Direct Examination Charles W. Ehrhardt Florida State University College of Law Stephanie J. Young Follow this and additional works at: https://ir.law.fsu.edu/lr Part of the Evidence Commons, and the State and Local Government Law Commons Recommended Citation Charles W. Ehrhardt & Stephanie J. Young, Using Leading Questions During Direct Examination, 23 Fla. St. U. L. Rev. 401 (1995) . https://ir.law.fsu.edu/lr/vol23/iss2/4 This Article is brought to you for free and open access by Scholarship Repository. It has been accepted for inclusion in Florida State University Law Review by an authorized editor of Scholarship Repository. For more information, please contact [email protected]. USING LEADING QUESTIONS DURING DIRECT EXAMINATION CHARLES W. EHRHARDT* AND STEPHANIE J. YOUNG"* I. INTRODUCTION ..................................................... 401 II. BEFORE ADOPTION OF FLORIDA'S EVIDENCE CODE ......... 402 A. An Exception for Leading Questions on Direct Examination ................................................ 402 B. Voucher Rule Barred Impeaching a Party'sOwn Witness ....................................................... 404 III. ADOPTION OF FLORIDA'S EVIDENCE CODE ................... 405 A. Section 90.608: Impeaching an Adverse Witness... 405 B. Section 90.612(3): Use of Leading Questions ....... 406 C. 1990 Amendment to Section 90.608 ................... 408 D. Evidence Code Amendments Make Rule Unnecessary................................................ -
Direct Examination
Direct Examination dvocates begin the presentation of evidence by calling witnesses. The questions they ask of the witnesses they call are direct examination. A Direct examination of a witness should be the easiest part of an arbitration hearing. You have a friendly witness on the stand who generally wants to be helpful to your case. All you need do is ask the witness some simple questions and let them tell the arbitrator their story. Nothing could be easier, right? And nothing could be more perilous. Unlike cross-examination, you do not have complete control over the witness. Rather than stating facts and merely having the witness agree or disagree with those facts, as on cross, during direct it is the witness who narrates the facts. A misstatement, momentary lapse of memory or even an inappropriate emotional response and your case has suddenly become that much more difficult. Like any skill, questioning a witness is something that can be improved with practice and study. Practice not only by conducting direct examinations during your assigned arbitration hearings but also by offering to assist your fellow advocates as they prepare witnesses for arbitration. Help them conduct mock examinations of the witnesses that will testify during their assigned arbitrations. In addition, I recommend watching other advocates in action. If they’re better than you are, you’ll discover new skills or techniques you can apply to your cases. If they’re worse than you are, you’ll be reminded about mistakes that you shouldn’t repeat. Regardless of what happens, you’re almost guaranteed to learn something. -
1. Rules of Evidence: Hearsay: Appeal and Error. an Appellate Court
Nebraska Supreme Court Online Library www.nebraska.gov/apps-courts-epub/ 09/29/2021 09:46 AM CDT - 515 - NEBRASKA COURT OF APPEALS ADVAncE SHEETS 25 NEBRASKA APPELLATE REPORTS STATE V. LINDBERG Cite as 25 Neb. App. 515 STATE OF NEBRASKA, APPELLEE, V. JUSTIN LINDBERG, APPELLANT. ___ N.W.2d ___ Filed February 6, 2018. No. A-17-154. 1. Rules of Evidence: Hearsay: Appeal and Error. An appellate court reviews for clear error the trial court’s factual findings underpinning the excited utterance hearsay exception, resolving evidentiary conflicts in favor of the successful party, who is entitled to every reasonable infer- ence deducible from the evidence. 2. ____: ____: ____. An appellate court reviews de novo the trial court’s ultimate determination to admit evidence over a hearsay objection or exclude evidence on hearsay grounds. 3. Constitutional Law: Witnesses: Appeal and Error. An appellate court reviews de novo a trial court’s determination of the protections afforded by the Confrontation Clause of the Sixth Amendment to the U.S. Constitution and article I, § 11, of the Nebraska Constitution and reviews the underlying factual determinations for clear error. 4. Trial: Testimony: Appeal and Error. When an objection has been made once to the admission of testimony and overruled by the court, it shall be unnecessary to repeat the same objection to further testimony of the same nature by the same witness in order to save the error, if any, in the ruling of the court whereby such testimony was received. 5. Rules of Evidence: Hearsay: Words and Phrases. Hearsay is a state- ment, other than one made by the declarant while testifying at the trial or hearing, offered in evidence to prove the truth of the matter asserted. -
The Child Witness in Tort Cases: the Trials and Tribulations of R
William Mitchell Law Review Volume 24 | Issue 1 Article 2 1998 The hiC ld Witness in Tort Cases: The rT ials and Tribulations of Representing Children Chris A. Messerly Follow this and additional works at: http://open.mitchellhamline.edu/wmlr Recommended Citation Messerly, Chris A. (1998) "The hiC ld Witness in Tort Cases: The rT ials and Tribulations of Representing Children," William Mitchell Law Review: Vol. 24: Iss. 1, Article 2. Available at: http://open.mitchellhamline.edu/wmlr/vol24/iss1/2 This Article is brought to you for free and open access by the Law Reviews and Journals at Mitchell Hamline Open Access. It has been accepted for inclusion in William Mitchell Law Review by an authorized administrator of Mitchell Hamline Open Access. For more information, please contact [email protected]. © Mitchell Hamline School of Law Messerly: The Child Witness in Tort Cases: The Trials and Tribulations of R THE CHILD WITNESS IN TORT CASES: THE TRIALS AND TRIBULATIONS OF REPRESENTING CHILDREN Chris A. Messerlyt Trib-u-la-tion; n: distress or suffering resulting from op- pression, persecution or affliction also: a trying experi- ence.* I. INTRODUCTION ......................................................................169 II. To TESTIFY OR NOT TO TESTIFY, THAT IS THE QUESTION ....170 A . Obeying the Child ..............................................................171 III. IS THE CHILD COMPETENT TO TESTIFY? ................................178 IV. PREPARING THE CHILD TO MEET DARTH VADER ...................180 V. PRESENTING THE CHILD'S "TESTIMONY" WITHOUT CALLING THE CHILD TO TESTIFY ...........................................184 VI. CONCLUSION ..........................................................................188 I. INTRODUCTION A child's testimony may provide some therapeutic value for the child,1 but, at the same time it is unquestionably traumatic for a child.