MASTERS OF LITIGATION The Second Annual Joint Seminar Program Presented By Temple University Beasley School of And The American College Of

PROGRAM

Registration

8:30-9 a.m. Coffee, juice and pastries. Hour 1: American College of Trial Lawyers, Examination of Expert Witnesses

How to prepare for direct and cross-examination of expert witnesses, how to examine the expert, use of exhibits in the examinations and anticipating problem issues in your case.

Presenters: Thomas J. Duffy, John P. McShea, III and William J. Ricci Hour 2: American College of Trial Lawyers, Effective Use of Technology in the Courtroom

Effective uses of technology at trial, focusing on uses of technology at different stages of the trial (e.g., opening, direct, cross, closings) and in different types of (e.g., complex document cases (civil/criminal), less complex trials).

Presenters: Catherine Henry and Linda Dale Hoffa Hour 3: Temple University Beasley School of Law, LL.M. in Trial Advocacy, Advocacy Lessons from Hollywood

Using clips from a number of movies, some well known and others likely to be novel to the audience, this session will look at how well (or poorly) film portrays lawyering skills and what lessons in the art of advocacy may be gained when ‘art imitates life.’

Presenter: Professor Marian Braccia, Director, LL.M. in Trial Advocacy Program Lunch Hour 4: Temple University Beasley School of Law, Mastery of Law

This hour will focus on advanced evidence issues and the occasional ethical condundra they present. Special attention will be placed on the day’s subjects, particularly Evidence law and courtroom technology and Evidence law and experts.

Presenter: Professor Jules Epstein, Director of Advocacy Programs

PRESENTER BIOGRAPHIES

MARIAN BRACCIA: Marian Braccia is the Director of the LL.M. in Trial Advocacy Program and a Practice Professor of Law at Temple University Beasley School of Law, where she brings particular expertise in courtroom technology, e-discovery issues, and trial skills. Prior to joining the full-time faculty, Professor Braccia taught Introduction to Trial Advocacy and an experiential course in criminal prosecution for several years as an adjunct in Temple’s trial advocacy program. She has also served as a coach for Temple’s National Trial Team. Professor Braccia is an accomplished litigator, having served as an Assistant District Attorney in the Philadelphia District Attorney’s office from 2006 to 2018 under D.A.s Abraham, Williams, Hodge, and Krasner. In addition to serving as a trial attorney in Major Trials and the Family Violence and Sexual Assault Unit, in 2012 Professor Braccia was appointed to a supervisory position in the District Attorney’s Charging Unit, and in 2014 launched Philadelphia’s Domestic Violence Diversion Program, assuming a caseload in excess of 200 dockets, monitoring participants’ treatment progress, and reporting on program statistics to the DOJ’s Office of Violence Against Women. In August 2017, she took on added responsibilities as Director of Information Technology for the DA’s Office.

THOMAS DUFFY: Tom Duffy oversees all cases handled by the attorneys of the firm, which include motor vehicle accidents, trucking accidents, construction accidents, , premises liability, medical malpractice, birth injury, spinal cord injury, emergency room injury, other and aviation disasters.

Tom founded the firm over a quarter of a century ago, when he left a promising career at a large Philadelphia firm to establish his own practice, a practice that has developed into a very experienced and respected group of partners and staff with one singular focus—helping individuals and families who are the victims of catastrophic injury. Tom has received countless distinctions, awards and titles as testimony to his work and influence in the legal community, and most notably and recently:

 Being selected in 2016 as the sole “ of the Year” for Plaintiffs Personal Injury Litigation in Philadelphia by The Best Lawyers in America  Being listed annually in the Super Lawyers Top 100 in Pennsylvania/Top 100 in Philadelphia and ascending to the “Top Ten in Pennsylvania” list in 2016, 2017 and 2018 He has also been recognized for his high professional legal standards and ethics, rated "AV" by LexisNexis Martindale Hubbell, and listed in LexisNexis Martindale Hubbell’s Register of Preeminent lawyers.

A respected attorney in his field who has successfully argued before the Pennsylvania Supreme , Tom authored the closing chapter of the 2003 book "Medical-Legal Aspects of Pain and Suffering,” and is a lecturer who has given many educational presentations on trial practice. In 2016, he was selected to deliver the prestigious “Kolsby Lecture” to students and faculty of Temple University’s James E. Beasley School of Law.

JULES EPSTEIN: Jules Epstein is Professor of Law and Director of Advocacy Programs at Temple Beasley School of Law. He teaches Advocacy and Evidence nationally, including as faculty for the National Judicial College. Professor Epstein has published and lectured extensively on issues ranging from forensic science and the death penalty to eyewitness identification. Professor Epstein continues to litigate post-conviction and direct appeal matters in criminal cases, and works with the Pennsylvania Innocence Project as an or as a consultant reviewing potential wrongful conviction cases.

CATHERINE C. HENRY: Ms. Henry has spent the majority of her career as a public defender, first as an Assistant State Defender in Philadelphia for five years and then, for approximately the last seventeen years, as a Defender with the Federal Community Defender Office for the Eastern District of Pennsylvania. Ms. Henry was Assistant Federal Defender until 2008 when she was appointed the Senior Litigator in the office. In this capacity, she oversees and assistant federal defenders in preparing and handling trials in federal court while maintaining an active case load. She is currently a Professor of Trial Advocacy at the University of Pennsylvania . Ms. Henry graduated from Drew University in 1991 and received her J.D. from the District of Columbia School of Law in 1995. She is a member of the Maryland and Pennsylvania bars. Ms. Henry is a fellow in the America College of Trial Lawyers.

LINDA DALE HOFFA: Linda Dale Hoffa is recognized as one of Philadelphia’s leading white collar lawyers and chairs Dilworth’s White Collar/Government Investigations Practice Group. She is an outstanding trial attorney, skilled negotiator and empathetic counselor. Her prior level experience as the Criminal Division Chief at the Philadelphia U.S. Attorney’s Office and as the Senior Executive Deputy Attorney General at the Pennsylvania Attorney General’s Office provides her with unique insight into ’s investigative and trial strategies.

Linda helps corporations and individuals successfully navigate the complex regulatory and law enforcement landscape. She focuses her practice in the areas of criminal and counseling, internal corporate investigations, and corporate compliance programs.

Linda has conducted hundreds of investigations and numerous high profile trials. Her clients include physicians, attorneys, teachers and students, business owners, elected officials, corporations and non-profits facing investigations and a broad spectrum of criminal charges. She has worked on virtually every kind of investigation and criminal case, including Title IX investigations, financial and securities , corruption, criminal tax, antitrust, False Claims Act, Foreign Corrupt Practices Act, environmental criminal cases, as well as sex and violent .

In recognition of her trial skills, Linda was inducted in 2007 as a Fellow of the American College of Trial Lawyers (ACTL), and in 2016 was selected to present a before of the United States Supreme Court and Justices from the United Kingdom as part of the U.K. and U.S. Exchange sponsored by the ACTL.

During her tenure as a federal , Linda also served in policy positions as the Chair of the Criminal Chiefs Working Group for the U.S. Department of , and as Senior Criminal at the Senate Committee. At the Senate Judiciary Linda worked for five-term incumbent U.S. Senator Arlen Specter during the Supreme Court confirmation hearings of Justices Sotomayor and Kagan. Early in her career she was appointed as a Special Assistant to Attorney General Janet Reno to work as DOJ’s Spokesperson for the Oklahoma City Bombing prosecution. On two separate occasions she was awarded DOJ’s Director’s Award for Superior Performance for complex case trials.

After working at the U.S. Department of Justice, Linda worked in the Executive Office at the Pennsylvania Attorney General’s Office as the Senior Executive Deputy Attorney General. She also worked at the Governor’s Office of General Counsel as the Executive Deputy General Counsel for where she was the most senior attorney handling criminal related issues for all Commonwealth agencies.

She currently teaches a course she designed called “The Law of Investigations” at the University of Pennsylvania Law School. Linda speaks at many conferences and frequently comments on criminal cases on television and in publications, such as the Washington Post, the Philadelphia Inquirer, Law 360, The Legal Intelligencer and The New Yorker.

JOHN P. MCSHEA III: John McShea is an experienced trial and appellate lawyer who handles a variety of civil litigation, including cases in the areas of law, products liability, patents, trade secrets, trademarks, restrictive covenants, class actions, business and construction litigation. He focuses his practice in federal and state in Pennsylvania, but he has appeared in courts in Illinois, Texas, Delaware, Mississippi, Washington, D.C. and Hawaii in representation of clients. Mr. McShea's trial work in recent years includes: obtaining a defense on behalf of a public corporation sued for more than $275 million in a nationwide class action involving claims of false advertising and breach of warranties tried before a Philadelphia County jury; defense of a medical device manufacturer accused of patent infringement; defense of a chemical manufacturer sued in federal court by one of the nation's largest railroad companies for breach of a freight transportation contract; prosecution of a breach of contract claim in federal court in Chicago; defense of a spine implant device manufacturer in a federal jury trial involving theft of trade secrets and unfair competition claims; and obtaining a substantial monetary and a permanent injunction in federal court against two individuals for violations of trademark law and breach of contract. Among other notable courtroom accomplishments, Mr. McShea has twice won of more than $3 million on behalf of plaintiffs in personal injury cases and obtained a defense verdict from a jury for a public corporation sued for $43 million for alleged conversion of stock. He represents two of the country's largest companies in asbestos litigation in Eastern Pennsylvania, and serves on the Federal court-appointed Defendants' Steering Committee for MDL 875. Before co-founding the firm in 1998, Mr. McShea was a partner with Eckert Seamans Cherin & Mellott and Hoyle, Morris & Kerr; he began his career with the Obermayer Rebmann firm. He received his undergraduate degree from Georgetown University in 1977, and received his law degree from Georgetown University Law Center in 1981.

WILLIAM RICCI: William J. “Bill” Ricci, Esquire, is one of the founding Members of Ricci Tyrrell Johnson & Grey. He is national, regional, lead trial and appellate counsel for major automotive, motorcycle, industrial, construction, aircraft, printing press, recreational and consumer product manufacturers in products liability and commercial cases.

Mr. Ricci graduated with a Bachelor of Arts, magna cum laude, in history from St. Joseph’s University. He earned his Juris Doctor from the Temple University School of Law, where he served as Research Editor of the Temple Law Review. Following graduation, he served as law clerk to the Honorable Robert Lee Jacobs, President , Superior Court of Pennsylvania.

Mr. Ricci is admitted to the Supreme Courts of Pennsylvania, New Jersey and New York; the United States District Courts for the Eastern and Middle Districts of Pennsylvania; the District Courts of New Jersey and the Southern District of New York.

In his years of practice, Mr. Ricci has defended many high profile cases, both trials and appeals, before in state and federal courts throughout the United States and the U.S. Virgin Islands. He has tried cases to verdict in 27 nationwide. He has been actively involved in all phases of design development of many industrial and construction equipment and consumer products. He has served as an expert witness is numerous professional liability cases. Mr. Ricci has been an adjunct professor in the Temple University School of Law Masters in Trial Advocacy Program and lectures frequently on product liability law, trial tactics, litigation management and in various CLE programs and seminars. He has numerous publications in his areas of practice.

Mr. Ricci is an active member of many bar, professional and client-related industry associations, including: The American, Pennsylvania, New Jersey, New York State and Philadelphia Bar Associations; the Product Liability Advisory Council; the Federation of Defense and Corporate Council; the American Board of Trial Advocates; the Pennsylvania Defense Institute (member of the Board of Directors and co-chair of the Products Liability Committee from 2011 through the present); the Philadelphia Association of Defense Counsel (Executive Committee member); the Lawyers Committee of the Industrial Truck Association.

Mr. Ricci is a Fellow of the American College of Trial Lawyers. He is also a member of The National Association of Distinguished Counsel, the International Academy of Trial Lawyers, the National Academy of , and America’s Top 100 Attorneys (Lifetime Achievement).

Mr. Ricci has been designated a Pennsylvania Super Lawyer for each of the years 2003-2017 and has ranked in the top 100 lawyers in Pennsylvania and Philadelphia, for the years 2009 – 2017. In the ALM publication, Philadelphia’s Best Lawyers 2011- 2012 Editions, Mr. Ricci was named the Best Products Liability Lawyer of the Philadelphia Area. This award is nominated and voted on by peers. The attorneys listed as part of “The Philadelphia Best” are the attorneys listed in “The Best Lawyers in America” survey, also published by ALM. Finally, Mr. Ricci has been listed in “The Best Lawyers in America” Philadelphia area top Products Liability attorneys from 2011 – 2017 Mr. Ricci was nominated by his peers to the “International Who’s Who of Product Liability Defense Lawyers 2008 – 2017.

In July, 2017, Mr. Ricci was named Defense Attorney of The Year by the Pennsylvania Defense Institute, a statewide organization dedicated to the defense of civil claims through advocacy, education and overall excellence.

CLE MATERIALS – EVIDENCE

REFRESHING RECOLLECTION: A DISCOVERY TOOL by Jules Epstein To those who practice in the trenches, the ability to refresh recollection is a time-of-trial tool for both the sincerely forgetful and the convenient amnesiac witness – the lawyer shows the witness a document or photo and (leading or non-leading) pushes the witness to remember. The mnemonic – which is never to be shown or read aloud to the jury as it is not but instead serves as a tool – is then put away and trial proceeds.

Lawyers in the civil arena know and do more. For them, Rule 612 offers an opportunity for discovery – and that lesson needs to be learned in criminal law and by all practitioners.

The opportunity is laid out in the Rule:

(a) Scope. This rule gives an adverse party certain options when a witness uses a writing to refresh memory: (1) while testifying; or (2) before testifying, if the court decides that justice requires the party to have those options. (b) Adverse Party’s Options; Deleting Unrelated Matter. Unless 18 U.S.C. § 3500 provides otherwise in a criminal case, an adverse party is entitled to have the writing produced at the hearing, to inspect it, to cross-examine the witness about it… (c) Failure to Produce or Deliver the Writing. If a writing is not produced or is not delivered as ordered, the court may issue any appropriate order. But if the prosecution does not comply in a criminal case, the court must strike the witness’s testimony or — if justice so requires — declare a mistrial. In sum, if you know (or learn) that a witness relied on documents to refresh memory, they are discoverable. What goes unsaid in the Rule, but what courts have held, is that the need to review documents overrides claims that the items are “work product” or even “privileged” information. Consider these cases: it has been recognized that if a deponent or a trial witness uses a document to refresh recollection, even the claim of privilege will not protect against disclosure…The analogy seems apt here. If Mr. Benun used documents to assist him in preparing his Certification, there can be no legitimate objection to their turnover in discovery. Duracell U.S. Operations, Inc. v. JRS Ventures, Inc., No. 17 C 3166, 2018 U.S. Dist. LEXIS 17920, at *15 (N.D. Ill. Feb. 5, 2018). It has been recognized that if a witness uses a document to refresh recollection, the existence of a privilege will not protect against the disclosure required under Federal Rule of Evidence 612. See Ehrlich v. Howe, 848 F. Supp. 482, 493 (S.D.N.Y. 1994) (noting that “when confronted with the conflict between the command of Rule 612 to disclose materials used to refresh recollection and the protection provided by the attorney-client privilege . . . the weight of authority holds that the privilege . . . is waived”)…Under Rule 612, when the witness’s resort to the document occurs before testifying, a production order by the court is subject to its “discretion [once it] determines it is necessary in the interest of justice.” Fed. R. Evid. 612(2). And a party is not precluded from asserting a privilege at that point…”In applying Rule 612 [under those circumstances], courts must balance the tension between the disclosure needed for effective cross-examination and the protection against disclosure afforded by any relevant privilege.” …Before it evaluates the defendant’s potential claim of privilege, the Court must find “a real, rather than speculative, concern that the thought processes of [the defendant’s] counsel in relation to pending or anticipated litigation would be exposed” by producing these materials under Rule 30(b)(6). See Gould Inc. v. Mitsui Mining & Smelting Co., 825 F.2d 676, 680 (2d Cir. 1987). In the meantime, it is sensible to require the defendant and its Rule 30(b)(6) representative(s) to bring with them to the deposition site copies of the “all documents used to prepare for the deposition.” Beattie v. CenturyTel, Inc., No. 02-10277, 2009 U.S. Dist. LEXIS 113750, at *4-6 (E.D. Mich. Dec. 7, 2009) As one court has noted, “courts have been grappling with the scope of Rule 612 with varying degrees of clarity.” Some cases, exemplified by Ehrlich v. Howe, 848 F. Supp. 482 (S.D.N.Y. 1994), take the position that Rule 612 trumps the privilege, such that a document that is reviewed by a witness prior to deposition must always be produced. As recognized by one Court in the Southern District of New York, “While such a rule has the virtue of simplicity, it appears inconsistent with the advisory committee note indicating that Rule 612 does not bar the assertion of privilege with respect to documents used to refresh a witness’ recollection.”

A better approach is the functional analysis described in Bank Hapoalim, B.M. v. American Home Assurance Co., No. 92 Civ. 3561, 1994 U.S. Dist. LEXIS 4091, 1994 WL 119575 (S.D.N.Y. April 6, 1994). There, the court found that “[b]efore ordering production of privileged documents, courts require that the documents ‘can be said to have had sufficient “impact” on the [witness’] testimony to trigger the application of Rule 612.’ …. If this threshold is met, courts then engage in a balancing test considering such factors as whether production is necessary for fair cross-examination or whether the examining party is simply engaged in a ‘fishing expedition.'” Abu Dhabi Commer. Bank v. Morgan Stanley & Co., 2011 U.S. Dist. LEXIS 122325, at *9 (S.D.N.Y. Oct. 14, 2011). The three cases make clear that at least some of the time, seeing what a witness relied upon will be required even in the face of a claim of privilege. So, what are the take- aways?

 When prepping a witness for trial or deposition, be careful what documents are used to refresh that witness’ memory (or to prepare a 30(b)(6) deposition witness).  When questioning an opposing party’s witness, especially at a deposition, ask the witness whether she/he looked at or was shown any documents to help refresh memory or otherwise prepare for giving testimony. The longer the passage of time between event(s) and testimony, the more likely both that documents were reviewed and that they were impactful on the witness’ memory and intended testimony. And when defending against such a request? Remember that not all courts are as responsive to such claims. For a recent holding declining to order disclosure, see Campbell v. Pa. Sch. Bds. Ass’n, No. 18-892, 2018 U.S. Dist. LEXIS 120257 (E.D. Pa. July 17, 2018) (emphasizing that it is not whether a witness reviewed documents but that the review “informed” the witness’ answers).

“MY BROTHER, MY BROTHER” – ? by Jules Epstein A house on fire, an occupant wakes up and yells “my brother, my brother.” The occupant dies, and his brother is charged with murder. Are the words “an assertion,” are they offered for the truth of the matter asserted, and should they be admissible? This precise scenario was at the heart of a recent decision issued by the New Jersey Supreme Court, and that court’s analysis got it at least partly correct.

The case is State v. Prall, 2018 N.J. LEXIS 120, and was decided in late January. The evidence at trial was as follows: During the trial, Kimberly testified — without objection — that when John awoke in flames he shouted repeatedly, “my brother, my brother” as he attempted to extinguish the fire and flee from the Trenton home. During a break, the court expressed concern that those statements were impermissible hearsay. The prosecutor argued that two hearsay exceptions applied — excited utterance under [*20] N.J.R.E. 803(c)(2), and dying declaration under N.J.R.E. 804(b)(2). State v. Prall, Nos. A-28, 078169, 2018 N.J. LEXIS 120, at *19-20 (Jan. 31, 2018). Where did the Court begin? It presumed the words were an assertion and were offered for the truth of the matter. Working from that presumption, it then correctly reasoned that regardless of which hearsay exception applied, the words were nonetheless inadmissible.

Why, a lack of personal knowledge – the forgotten foundational core of all hearsay declarations except statements of a party opponent. An excited utterance or dying declaration may be excluded if the declarant did not have direct personal knowledge of the statement’s basis. Thus, to be admissible, John’s statements to Kimberly must have been based upon John’s “firsthand” observations.

The fire started while John and Kimberly were asleep, and John did not awaken until he was engulfed in flames. The record does not contain evidence that John made any observations or had direct knowledge that defendant started the fire. Thus, whether offered as dying declarations or excited utterances, John’s statements, “my brother, my brother,” were inadmissible hearsay because they were not based on actual knowledge. The statements should not have been admitted. State v. Prall, at *31. So, why do I describe this as partly right? Omitted is a discussion of what the assertion is. The accused’s name was “Tormu.” Had John yelled “Tormu, Tormu,” would there be an assertion? Or is what is really transpiring here a concern for an implied assertion – that “my brother, my brother” has relevance only if considered for the implied assertion of “my brother, my brother, you started the fire.?” This analysis is what is missing from the Court’s well-reasoned discussion. Also omitted is any concern regarding ambiguity. Was John crying out his love for his brother? Calling for help from his brother? In a daze due to the fire and yelling meaningless words? Both Rules 401 and 403 are in play here, yet neither was mentioned. That may be appropriate because the State, having prosecuted the case, argued that the words were bring offered for their truth and the implicit assertion contained therein; but the deeper problems warranted discussion.

There are two essential takeaways from Prall. First, this is a rare case where the personal knowledge requirement of hearsay declarations was front and center,; and it serves as a powerful reminder that in the lawyer’s arsenal a claim of no personal knowledge may be an effective barrier to the admission of hearsay statements. A separate one involves curative instructions. The trial judge, having admitted the testimony, subsequently struck it from the record. But that action, 12 days later, was deemed ‘too little, too late.’ Not all “curatives” cure.

WHEN COURTROOM POWERPOINTS ARE TOO POWERFUL by Jules Epstein Visuals are essential in today’s trials. Many jurors are visual learners; many have reduced attention spans from years of watching television or online video; and many jurors ‘expect’ a show as part of a modern trial.

And Powerpoint and other visuals can be potent evidence, crystalizing complex legal concepts and hitting powerful emotional chords. This connects with what some call “right brain thinking,” where the aptitudes at issue are “design, story, symphony, empathy, play and meaning.” See Daniel Pink, A WHOLE NEW MIND (2005).

But Powerpoint mis-use, or judicial perception of Powerpoint mis-use, is now an issue, particularly in criminal cases. This was discussed at length in a 2014 Marshall Project Report titled “PowerPoint Justice – When slide around the law.” https://www.themarshallproject.org/2014/12/23/powerpoint-justice The concern is not limited to glaring examples, such as the one depicted here:

The problem? It was the use of a booking photo – displaying the defendant in prison garb. What the Court wrote in that case was as follows:

The only rational reason the state could have for presenting this altered photograph of Walter in his recognizable orange prison jumpsuit was to influence the jury’s determination of his guilt. The state argues that it did nothing improper because the photograph was previously admitted in its unaltered state… …

While Walter was not forced to appear physically in prison attire during his trial, the altered photograph the state presented during its compelled the same de facto influence upon the jury. “[V]isual arguments manipulate audiences by harnessing rapid unconscious or emotional reasoning processes and by exploiting the fact that we do not generally question the rapid conclusions we reach based on visually presented information.” Lucille A. Jewel, Through a Glass Darkly: Using Brain and Visual Rhetoric to Gain A Professional Perspective on Visual Advocacy, 19 S. Cal. Interdisc. L.J. 237, 289 (2010).

State v. Walter, 479 S.W.3d 118, 127 (Mo. 2016).

The most recent reversal for powerpoint mis-use came in January, 2018. The charge was murder, the defense was that of self-defense. The following graphic was used:

Why was this held to be problematic? According to the appellate court, it was a thinly- veiled character attack: The photograph of Lopez conveys that he was happy, fun-loving, and even childlike. He appears small as he poses with a group of cartoon characters. The photograph of Salas, on the other hand, shows only the unappealing image of his face…

It was not improper for the prosecutor to remind the jury that Salas was taller than Lopez. Relative size, strength, and age of the individuals involved is relevant in a self-defense case. But if the purpose of the slide was to compare them in size, the photographs are not helpful. The photograph of Salas shows only his head. And the caption does not mention the fact that the two men were roughly equivalent in weight. The captions reinforce the visual contrast. They evoke high school stereotypes. Lopez was a musician, whereas Salas played football and was once in a fight club. Which type of person was more likely to initiate a fight? Salas was an outdoorsman, while Lopez was a customer service representative. Which type of person was more likely to use a knife?

…The juxtaposition of images and captions in the first slide communicates what the prosecutor could not, and did not, argue aloud: Salas was by nature an aggressive and intimidating person, and therefore had no reason to fear Lopez, who by nature was childlike and submissive. The prosecutor in effect used the slide to prove the character of the two men “in order to show action in conformity therewith,” improper under ER 404(b).

State v. Salas, 2018 Wash. App. LEXIS 24, *14-16.

The Salas Court made one more point. “A rule of thumb for using PowerPoint is ‘If you can’t say it, don’t display it.’ PowerPoint slides should not be used to communicate to the jury a covert message that would be improper if spoken aloud.”

404(b) and The Pennsylvania Supreme Court’s Discontent by Jules Epstein No area of law may be more vexing, and more subject to dispute, than the admission or exclusion of “other acts” evidence – often mis-labed “prior bad acts” evidence – in criminal cases. Evidence of an “act” that only conveys the actor’s character is inadmissible; but evidence with a non-character purpose may be admissible, subject to a balancing test.

In its most recent decision on the application of these principles, the Pennsylvania Supreme Court ended up with five (5) opinions. That inability to speak in one voice shows discontent about current Rule 404(b) analysis and offers an invitation to future litigants to seek clarification and change.

The case is Commonwealth v. Hicks, No. 718 CAP, 2017 Pa. LEXIS 687 (Mar. 28, 2017). At issue was the admissibility of three assaults on women in a case where Hicks was accused of killing and dismembering a fourth female. The autopsy showed, inter alia evidence of “strangulation and sharp force injury to [the] neck.” The defense was that death resulted from a drug overdoes, and all injuries occurred post-mortem when the body was dismembered to avoid discovery.

And the other acts? As described by the plurality,

In each case appellant: (1) was introduced to drug-dependent women of similar body types for purposes of using drugs; (2) showed a sexual interest in the women, sometimes involving prostitution; (3) resorted to violence when the women behaved in a way he found disagreeable; (4) inflicted injuries on each woman by targeting her neck area with his hands, a sharp edged object, or both; and (5) verbally threatened to kill each woman.

So, why a divided court, and where is the discontent?

Three Justices – the plurality of Justices Dougherty, Todd and Mundy – found the other acts to meet two thresholds for admitting “other acts” evidence, claiming there were both a “required logical connection between the prior assaults and the circumstances surrounding the victim’s death” and a “’virtual signature’ for purposes of proving common scheme, intent and identity.” When weighing the probativeness of this evidence against the potential for unfair prejudice, the plurality made what appears to be a clear error – probativeness was assessed by noting the circumstantial nature of the remaining proof. In other words, instead of asking how well do the three other assaults prove culpability in this case, the plurality asked how important was the “other act” evidence since the prosecution’s case was otherwise circumstantial in nature.

So far, no discontent. But that is where the other four members of the Court count. Chief Justice Saylor began by acknowledging that the Pennsylvania Supreme Court’s 404(b) jurisprudence had “incorrectly blended” the various 404(b0 exceptions and “substantially diluted the putatively stringent standard” associated with the modus operandi/proof of identity exception.

The Chief Justice went further. “ I maintain concerns about the power of potentially inevitable character inferences associated with other-acts evidence, with requiring defendants to effectively defend mini-trials concerning collateral matters, and about the efficacy of jury instructions in this context.” Nonetheless, he found the evidence admissible in this case because it rebutted a defense of accidental killing through an approach known as the “doctrine of chances.” The Chief Justice concluded that Hicks’ lawyer failed to develop a separate prejudice analysis.

Perhaps most importantly, the Chief Justice effectively invited a revisiting of 404(b) jurisprudence. “It may well be that the interests of justice would be well served were this Court to consider revamping the present approach.”

Justice Baer’s approach was more economical. Acknowledging that “the substantive evidentiary ruling in this case presents a close call,” he declined to reach a merits analysis and instead deemed any possible error to be “harmless.”

What remains are the two dissents. Justice Donohue begins with a view of 404(b) as requiring “that use of prior bad acts evidence should be strictly limited…” Asserting that Pennsylvania’s 404(b) rule was meant to adopt and be cabined by its predecessor, she finds only two allowable exceptions:

To make one criminal act evidence of another, [1] a connection between them must have existed in the mind of the actor, linking them together for some purpose he intended to accomplish; or [2] it must be necessary to identify the person of the actor, by a connection which shows that he who committed the one must have done the other. This language is drawn directly from the 1872 holding in Shaffner v. Commonwealth, 72 Pa. 60, 65 (1872).

Justice Donohue’s lengthy dissent then proceeds in great detail to dissect each of the “other acts” admitted against Hicks in support of her contention that any similarities are generic and show nothing more than propensity. She also rejects a “doctrine of chances” analysis, finding it to be propensity under another name, and argues further that even if the doctrine should be applied in Pennsylvania a more stringent test is required, including that the defendant claim that all occurrences – the act currently on trial and the preceding ones – were claimed to be accidental.

The final words came from Justice Wecht. He voiced agreement with “the requirement that prior bad acts evidence must be strictly limited and admitted only when passed through the rigorous inquiry articulated skillfully by Justice Donohue…” He separately emphasized the concern that a jury instruction to not use such evidence to show propensity is difficult for many to follow and “the obvious danger that the exceptions will devour the rule [so that if] courts do not adhere scrupulously to the terms and purposes of the rule, this danger becomes reality.”

What does this mean to and litigants?

Impeaching The Adverse Expert Posted On October 5, 2018 By Alli Keefe Written by NITA guest blogger, Prof. Jules Epstein

Rarely if ever will the cross-examining attorney know more about a subject than the expert witness being confronted. Indeed, that is why discovery rules mandate pre-trial disclosure of expert reports – “They allow attorneys, not experts in the fields at issue, to prepare intelligently for trial and to solicit the views of other experts…” Metavante Corp. v. Emigrant Sav. Bank, 619 F.3d 748, 762 (7th Cir. 2010). So a strategy of beating the expert at her own game is not a sure path to success; it may bore or otherwise lose the jury; and it risks letting the expert explain.

Nonetheless, an expert’s claims can be checked, challenged and undercut in a number of ways. Beyond the impeachment methods available for all witnesses – inconsistent statements, dishonest character, contrary information [with experts, often via a learned treatise] – there are expert-specific lines of inquiry. What is essential is that opposing counsel develop the list of potential attacks, test them pre-trial to ensure their applicability, and then organize the cross-examination to maximize their utility.

Let’s begin with the challenge to credentials. Because the standard for qualifying an expert is exceptionally lax – according to one court, it is “whether the witness has any reasonable pretension to specialized knowledge on the subject under investigation” – the likelihood of exclusion is low. But the proponent of the expert has engaged in permissible bolstering, and the qualifications offers the chance to take the witness down a notch or two in the eyes of jurors.

In the qualifications arena, the following subjects are key to any cross-examiner’s checklist:

 Limited practical experience  Missing credentials (g., a lack of Board certification)  Inflated credentials

This last point warrants amplification. An expert may be a member, or even an official, of a “professional” organization – but investigation may reveal that membership comes from an application and a fee, and not based on any performance standard or testing. For an extreme example, see The Emperor of Junk Science Forensics Has Died, (last visited September 23, 2018). Related to the problem of credentials, at least as to the weight of the expert’s testimony, is that of bias. Bias comes in many forms, some going to the witness’ credentials and others to the shaping of the actual opinion(s), with admittedly some overlap. In the bias area, the following subjects warrant exploration:

 Fees (assuming the fee paid to the opponent’s expert is disproportionate to that paid for the party’s own expert)  The relationship of this witness to counsel, as when this witness has been used repeatedly by the same counsel or  What Stephen Lubet has denominated “positional bias,” the loyalty of the witness to a particular side or the witness’ willingness to only find one [the same] conclusion over a range of cases (See Lubet, MODERN TRIAL ADVOCACY, §8.6.4.3.)

There are at least two other forms of subconscious biasing that must be evaluated, although developing a cross on either may be difficult. The first arises merely by virtue of who hired the expert, as research has shown that there is a phenomenon of “adversarial bias” where experts begin to align their expectations and conclusions dependent on which party hired them. As elaborated in one research paper, “working for one side in an adversarial case causes some experts’ opinions to drift toward the party retaining their services, even on ostensibly objective instruments and procedures…” Adversarial Allegiance Among Expert Witnesses, (last visited September 23, 2018).

And the second? It arises from “domain irrelevant information,” and occurs when an expert is given information extraneous to the task but impactful on the ‘lens’ through which the expert views the evidence. Telling a fingerprint expert that the suspect confessed offers no useful information in how to compare two prints but has been shown to affect judgment in cases where the prints are ambiguous or unclear. See, e.g. Dror et al, Cognitive Bias and Its Impact on Expert Witnesses and the Court, (last visited September 23, 2018). This may be shown by demonstrating what the expert was asked [or “told”] to look for; and then have the expert concede that certain information provided is not part of the normal decision-making process in the particular discipline. Making the opposing expert yours is a critical part of any cross. The opposing expert may be willing to validate your expert’s

 credentials  methodology  sources of data  conclusions at least in part

Making the expert one’s own is desirable and should precede any attack. But attack is often the primary focus of the cross-examination. A preliminary topic may be to show the limits of the discipline, even where it has survived a challenge under Frye, Daubert, or 702 principles. Here, questioning may track the admissibility criteria of Daubert. Questioning may highlight any of the following:

 Testability (or the lack thereof)  Peer Review/Publication (again, the lack thereof)  Error Rate (here, the lack of one, or a problematic error rate)  Existence of Standards (again, the lack of standards from examiner to examiner)  General Acceptance (again, the lack thereof or substantial challenges to the theory or method)

Beyond an attack on the discipline are several potential ones on the expert’s approach and conclusions. One such attack is premised on assumptions. Where the adverse expert’s conclusions are premised on certain assumptions, a skillful cross can begin with an agreement that the quality of the opinion depends on the correctness of the assumptions. Here, the list of potential cross-examination points includes:

 the danger for experts of relying on assumptions  assumptions made in this case  the concession that if the assumed facts are wrong then the opinion might be wrong as well

Where a pre-trial deposition has occurred, counsel may already have secured the concession that under a different factual scenario – i.e.¸ where the assumptions are different – the conclusion changes and becomes one favorable to the cross-examiner.

Another area for inquiry may be dubbed the “more” category. Here, the cross-examination focuses on the limits imposed on the expert, whether due to finances, time or the inadequacy of the materials to be reviewed or the testing options available. Questions may focus on:

 More data would have been better because…  More tests would have been better because Finally, the expert may be pressed on what the evidence does not show. By way of example, a fingerprint expert will have to concede, in most cases, that how, why or when a latent print was left at a scene is unknown. Such concessions may dovetail with the expert having to agree that the evidence could have been left in a manner consistent with the cross-examiner’s theory of the case.

Will every one of these challenges be available in a particular case? The answer is almost certainly “no.” But unless each case is screened against these criteria, the cross-examiner may be missing essential grounds for undercutting the opposing expert.

Professor Jules Epstein is Director of Advocacy Programs at Temple University in Philadelphia, PA.