For Cross-Examination
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4.08 “Open Door” Evidence (1) a Party
4.08 “Open Door” Evidence (1) A party may “open the door” to the introduction by an opposing party of evidence that would otherwise be inadmissible when in the presentation of argument, cross-examination of a witness, or other presentation of evidence the party has given an incomplete and misleading impression on an issue. (2) A trial court must exercise its discretion to decide whether a party has “opened the door” to otherwise inadmissible evidence. In so doing, the trial court should consider whether, and to what extent, the evidence or argument claimed to “open the door” is incomplete and misleading and what, if any, otherwise inadmissible evidence is reasonably necessary to explain, clarify, or otherwise correct an incomplete and misleading impression. (3) To assure the proper exercise of the court’s discretion and avoid the introduction of otherwise inadmissible evidence, the recommended practice is for a party to apply to the trial court for a ruling on whether the door has been opened before proceeding forward, and the court should so advise the parties before taking evidence. Note Subdivisions (1) and (2) recite the long-settled “open door” principle in New York, as primarily explained in People v Melendez (55 NY2d 445 [1982]); People v Rojas (97 NY2d 32, 34 [2001]); People v Massie (2 NY3d 179 [2004]); and People v Reid (19 NY3d 382 [2012]). Melendez dealt with the issue of whether the defense had opened the door to permit the prosecutor to explore an aspect of the investigation that would not otherwise have been admissible. The Court began by noting that, when an “opposing party ‘opens the door’ on cross-examination to matters not touched upon during the direct examination, a party has the right on redirect to explain, clarify and fully elicit [the] question only partially examined on cross-examination.” (Melendez at 451 1 [internal quotation marks and citation omitted].) Argument to the jury or other presentation of evidence also may open the door to the admission of otherwise inadmissible evidence. -
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. -
Initial Draft Policy Recommendation on Expert Testimony
NATIONAL COMMISSION ON FORENSIC SCIENCE PRESENTATION OF EXPERT TESTIMONY POLICY RECOMMENDATIONS 1. Experts should be asked to identify and explain the theoretical and factual basis for any conclusion and the reasoning on which the conclusion is based — and any limitations of their conclusions. 2. Experts should present testimony in a manner that accurately and fairly conveys the significance of their conclusions, avoiding unexplained or undefined technical terms or words of art. 3. Experts should remain neutral, and attorneys should respect this neutrality. 4. Experts should not testify beyond their expertise and should also appreciate the difference between testimony that the witness may give as an expert and testimony that the same witness may give as a lay/fact witness.1 5. Experts should not testify on direct or redirect examination concerning case-specific conclusions not contained in the report(s)/documentation submitted in discovery — unless in fair response to issues raised on cross-examination. If an expert changes his or her opinion, a supplementary report should be submitted except where the change is occasioned by new information, presented during testimony and not previously available to the witness. 1 The same witness may provide testimony as both an expert or a lay witness. The two roles need to be distinguished. The Federal Rules do “not distinguish between expert and lay witnesses, but rather between expert and lay testimony. Certainly it is possible for the same witness to provide both lay and expert testimony in a single case.” FED. R. EVID. 701 advisory committee’s note (2000). 1 6. Experts should not testify concerning conclusions that are beyond the limits of a laboratory’s testing protocols. -
The Safety Valve and Substantial Assistance Exceptions
Federal Mandatory Minimum Sentences: The Safety Valve and Substantial Assistance Exceptions Updated February 22, 2019 Congressional Research Service https://crsreports.congress.gov R41326 SUMMARY R41326 Federal Mandatory Minimum Sentences: February 22, 2019 The Safety Valve and Substantial Assistance Charles Doyle Exceptions Senior Specialist in American Public Law Federal law requires a sentencing judge to impose a minimum sentence of imprisonment following conviction for any of a number of federal offenses. Congress has created three exceptions. Two are available in any case where the prosecutor asserts that the defendant has provided substantial assistance in the criminal investigation or prosecution of another. The other, commonly referred to as the safety valve, is available, without the government’s approval, for a handful of the more commonly prosecuted drug trafficking and unlawful possession offenses that carry minimum sentences. Qualification for the substantial assistance exceptions is ordinarily only possible upon the motion of the government. In rare cases, the court may compel the government to file such a motion when the defendant can establish that the refusal to do so was based on constitutionally invalid considerations, or was in derogation of a plea bargain obligation or was the product of bad faith. Qualification for the safety valve exception requires a defendant to satisfy five criteria. His past criminal record must be minimal; he must not have been a leader, organizer, or supervisor in the commission of the offense; he must not have used violence in the commission of the offense, and the offense must not have resulted in serious injury; and prior to sentencing, he must tell the government all that he knows of the offense and any related misconduct. -
In (Partial) Defense of Strict Liability in Contract
Michigan Law Review Volume 107 Issue 8 2009 In (Partial) Defense of Strict Liability in Contract Robert E. Scott Columbia University Follow this and additional works at: https://repository.law.umich.edu/mlr Part of the Contracts Commons, and the Torts Commons Recommended Citation Robert E. Scott, In (Partial) Defense of Strict Liability in Contract, 107 MICH. L. REV. 1381 (2009). Available at: https://repository.law.umich.edu/mlr/vol107/iss8/4 This Article is brought to you for free and open access by the Michigan Law Review at University of Michigan Law School Scholarship Repository. It has been accepted for inclusion in Michigan Law Review by an authorized editor of University of Michigan Law School Scholarship Repository. For more information, please contact [email protected]. IN (PARTIAL) DEFENSE OF STRICT LIABILITY IN CONTRACT Robert E. Scott* Many scholars believe that notions of fault should and do pervade contract doctrine. Notwithstanding the normative and positive ar- guments in favor of a fault-based analysis of particular contract doctrines, I argue that contract liability is strict liability at its core. This core regime is based on two key prongs: (1) the promisor is li- able to the promisee for breach, and that liability is unaffected by the promisor'sexercise of due care orfailure to take efficient precau- tions; and (2) the promisor's liability is unaffected by the fact that the promisee, prior to the breach, has failed to take cost-effective precau- tions to reduce the consequences of nonperformance. I offer two complementary normative justificationsfor contract law's stubborn resistance to considerfault in either of these instances. -
The Role of Employment Service Providers Guide to Anticipating and Matching Skills and Jobs Volume 4
THE ROLE OF EMPLOYMENT SERVICE PROVIDERS GUIDE TO ANTICIPATING AND MATCHING SKILLS AND JOBS VOLUME 4 ETF_MG_brochure_2015_160x240 - last rev_161115.indd 1 16/11/2015 15:32:43 Europe Direct is a service to help you find answers to your questions about the European Union. Freephone number (*): 00 800 6 7 8 9 10 11 (*) The information given is free, as are most calls (though some operators, phone boxes or hotels may charge you). More information on the European Union is available on the internet (http://europa.eu). Luxembourg: Publications Office of the European Union, 2015 Print: ISBN 978-92-9157-633-3 doi:10.2816/691999 TA-04-15-483-EN-C PDF: ISBN 978-92-9157-634-0 doi:10.2816/816485 TA-04-15-483-EN-N © European Training Foundation / European Centre for the Development of Vocational Training / International Labour Office, 2015 Reproduction is authorised provided the source is acknowledged. The contents of this publication are the sole responsibility of the authors and do not necessarily reflect the views of the EU institutions or the International Labour Office. Cover design: Article 10 Printed in Italy 2 The role of employment service providers ETF_MG_brochure_2015_160x240 - last rev_161115.indd 2 16/11/2015 15:32:46 Compendium on Anticipation and Matching of Skills THE ROLE OF EMPLOYMENT SERVICE PROVIDERS GUIDE TO ANTICIPATING AND MATCHING SKILLS AND JOBS VOLUME 4 Tine Andersen, Lizzi Feiler and Gregor Schulz 3 The role of employment service providers 3 ETF_MG_brochure_2015_160x240 - last rev_161115.indd 3 16/11/2015 15:35:15 4 Guide to anticipating and matching skills and jobs Guide to anticipating and matching skills and jobs ETF_MG_brochure_2015_160x240 - last rev_161115.indd 4 16/11/2015 15:35:15 FOREWORD n a context of dynamic and complex labour markets, gathering Iintelligence on current and future skill needs can support better matching of training and jobs, which is of paramount importance for every country in the world. -
The Ethical Limits of Discrediting the Truthful Witness
Marquette Law Review Volume 99 Article 4 Issue 2 Winter 2015 The thicE al Limits of Discrediting the Truthful Witness: How Modern Ethics Rules Fail to Prevent Truthful Witnesses from Being Discredited Through Unethical Means Todd A. Berger Follow this and additional works at: http://scholarship.law.marquette.edu/mulr Part of the Courts Commons, and the Evidence Commons Repository Citation Todd A. Berger, The Ethical Limits of Discrediting the Truthful Witness: How Modern Ethics Rules Fail to Prevent Truthful Witnesses from Being Discredited Through Unethical Means, 99 Marq. L. Rev. 283 (2015). Available at: http://scholarship.law.marquette.edu/mulr/vol99/iss2/4 This Article is brought to you for free and open access by the Journals at Marquette Law Scholarly Commons. It has been accepted for inclusion in Marquette Law Review by an authorized administrator of Marquette Law Scholarly Commons. For more information, please contact [email protected]. THE ETHICAL LIMITS OF DISCREDITING THE TRUTHFUL WITNESS: HOW MODERN ETHICS RULES FAIL TO PREVENT TRUTHFUL WITNESSES FROM BEING DISCREDITED THROUGH UNETHICAL MEANS TODD A. BERGER* Whether the criminal defense attorney may ethically discredit the truthful witness on cross-examination and later during closing argument has long been an area of controversy in legal ethics. The vast majority of scholarly discussion on this important ethical dilemma has examined it in the abstract, focusing on the defense attorney’s dual roles in a criminal justice system that is dedicated to searching for the truth while simultaneously requiring zealous advocacy even for the guiltiest of defendants. Unlike these previous works, this particular Article explores this dilemma from the perspective of the techniques that criminal defense attorney’s use on cross-examination and closing argument to cast doubt on the testimony of a credible witness. -
Witness Explanations During Cross-Examination: a Rule of Evidence Examined Jeffrey A
CORE Metadata, citation and similar papers at core.ac.uk Provided by Indiana University Bloomington Maurer School of Law Indiana Law Journal Volume 58 | Issue 2 Article 6 1983 Witness Explanations During Cross-Examination: A Rule of Evidence Examined Jeffrey A. Boyll Indiana University School of Law Follow this and additional works at: http://www.repository.law.indiana.edu/ilj Part of the Evidence Commons Recommended Citation Boyll, Jeffrey A. (1983) "Witness Explanations During Cross-Examination: A Rule of Evidence Examined," Indiana Law Journal: Vol. 58: Iss. 2, Article 6. Available at: http://www.repository.law.indiana.edu/ilj/vol58/iss2/6 This Note is brought to you for free and open access by the Law School Journals at Digital Repository @ Maurer Law. It has been accepted for inclusion in Indiana Law Journal by an authorized administrator of Digital Repository @ Maurer Law. For more information, please contact [email protected]. Witness Explanations During Cross-Examination: A Rule of Evidence Examined Professor McCormick prefaced the 1954 edition of his Handbook of the Law of Evidence with this observation: "That part of the law of procedure known as evidence law has not responded in recent decades to the need for . rationalization as rapidly as other parts of procedural law."' Twenty-eight years later his observation still rings true. This note considers one common law rule of evidence which has never been rationally examined: the rule which allows a witness to explain any answer during cross-examination.2 In an effort to rationally examine the rule,' considera- tion is given to the goals of the adversary system as they are affected by the current rule and by the rule proposed by this note. -
A Minimalist Approach to the Presentation of Expert Testimony
A MINIMALIST APPROACH TO THE PRESENTATION OF EXPERT TESTIMONY Edward J. Imwinkelried* Simplify. Simplify.1 Some commentators have suggested that, in the United States, trial by jury is becoming trial by expert.2 It is undeniable that the use of expert testimony is widespread. In the early 1990s, the Rand Corporation released a study on the incidence of expert testimony.3 The database included 529 civil cases tried in California Superior Court.4 The researchers found that [e]xperts testified in 86% of these civil jury trials. Overall, there were an average of 3.3 experts per trial; in the trials in which any experts appeared, there were an average of 3.8. Most trials with experts had two, three, four or five of them.5 The incidence of expert testimony would not be so high unless trial attorneys believed that jurors find that type of evidence persuasive. Yet there are indications that jurors often find that species of evidence unconvincing. For example, despite the substan- tial amount of expert testimony that the government proffered in the prosecution of O.J. Simpson, the jury acquitted. The behavior of the jury in the Simpson case is not an isolated phenomenon. In one study during the 1970s, researchers discovered that in cases where the prosecution introduced sound spectrography (voiceprint) evidence, the conviction rate was 11% lower than average.6 In another study conducted by one of the leading American legal psychologists, Dr. Elizabeth Loftus, the data suggested that lay * © Edward J. Imwinkelried, 2001. All rights reserved. Professor of Law and Director of Trial Advocacy, University of California at Davis. -
The Why of Cross-Examination
The why of cross-examination * By: F. Dennis Saylor IV and Daniel I. Small ) June 29, 2017 Our next series of columns will address the subject of cross-examination. Dan Small recently returned from his second trip to Uzbekistan, talking with judges and lawyers there about the adversarial system. We’ll give Dan the floor to share some thoughts. “Why have cross-examination?” It seems an odd question, given our justice system’s longstanding and fundamental reliance on the process. Yet before we discuss the “how” of cross-examination, let’s consider the “why.” This process that we take for granted in court is, after all, somewhat unnatural: You would not subject a friend or co-worker to intense grilling before deciding whether to believe something he told you. Why do so here? The adversarial system is not the system of justice in Uzbekistan. Instead, it has a version of the Byzantine-era inquisitorial system, in which the judge is responsible for searching for and determining the truth, and questioning of witnesses by opposing counsel is virtually unknown. They are looking for ways to improve and open up their system, but remain skeptical as to whether cross- examination is a legitimate fact-finding aid or a TV and movie stunt, like in “My Cousin Vinny” and the other American movies that make it over there. There is, after all, only one “truth.” Why does the judge need lawyers interfering with his search to find it? What underlies our acceptance of cross-examination are several basic beliefs. First is the belief that “truth” is not that simple, that there is often more than one version, or at least more than one perspective. -
Expert Witnesses
Law 101: Legal Guide for the Forensic Expert This course is provided free of charge and is designed to give a comprehensive discussion of recommended practices for the forensic expert to follow when preparing for and testifying in court. Find this course live, online at: https://law101.training.nij.gov Updated: September 8, 2011 DNA I N I T I A T I V E www.DNA.gov About this Course This PDF file has been created from the free, self-paced online course “Law 101: Legal Guide for the Forensic Expert.” To take this course online, visit https://law101.training. nij.gov. If you already are registered for any course on DNA.gov, you may logon directly at http://law101.dna.gov. Questions? If you have any questions about this file or any of the courses or content on DNA.gov, visit us online at http://www.dna.gov/more/contactus/. Links in this File Most courses from DNA.Gov contain animations, videos, downloadable documents and/ or links to other userful Web sites. If you are using a printed, paper version of this course, you will not have access to those features. If you are viewing the course as a PDF file online, you may be able to use these features if you are connected to the Internet. Animations, Audio and Video. Throughout this course, there may be links to animation, audio or video files. To listen to or view these files, you need to be connected to the Internet and have the requisite plug-in applications installed on your computer. -
Making Your Case Through Effective Direct Examination
Making Your Case Through Effective Direct Examination Paul K. Sun, Jr. & Kelly Margolis Dagger © Ellis & Winters LLP 20152018 What is direct examination? The examination of a witness you have called in the defense case. The witness could be your client, an expert, a law enforcement officer, a percipient witness, etc. © Ellis & Winters LLP 2015 Right to Present Witnesses “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 wherein 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.” U.S. Const. amend VI. Remember to request trial subpoenas per Fed. R. Crim. P. 17, and do so early if you are asking the marshals to serve. © Ellis & Winters LLP 2015 Direct Examination—Overview A. Mechanics of Direct Examination B. Preparing Yourself for Direct Examination C. Preparing Your Witness for Direct Examination D. Conducting a Direct Examination © Ellis & Winters LLP 2015 MECHANICS OF DIRECT EXAMINATION © Ellis & Winters LLP 2015 Procedural Considerations—Rule 611 Fed. R. Evid. 611—Mode and Order of Examining Witnesses and Presenting Evidence (a) Control by the Court; Purposes. The court should exercise reasonable control over the mode and order of examining witnesses and presenting evidence so as to: (1) make those procedures effective for determining the truth; (2) avoid wasting time; and (3) protect witnesses from harassment or undue embarrassment.