Cross-Examination Techniques - As Varied as the Cases You Try

I had the real pleasure of lunching with a colleague today, who is one of the most experienced criminal trial attorneys in New Jersey. He served for more than 25 years as a county prosecutor and is now a well-regarded defense attorney. He is the consummate gentlemen.

We decided to go out and to speak about cross-examination. Strange as it may seem -- given that cross- is the lifeblood of trial attorneys -- I could not remember the last time I sat down with a colleague to compare techniques and ideas for approaching this subject. He had the same lack of memory. We also agreed that it was difficult to find the time even to watch others' styles. The result of all this is that our colleagues have a wealth of unshared experience. I made a "Note to Self," to remedy this situation.

We discussed the varied styles of our colleagues whom he had seen in action. The upshot was that their styles varied and, unsurprisingly, seemed to correspond with their respective personalities. Where cross-examiners we have seen got into trouble was where their approach deviated from their personality or where the approach was unsuited to the case theme. In other words, it was unhelpful for the cross-examiner to fight witnesses in a scattershot manner.

So we discussed some effective techniques. They included:

1. short, crisp questioning to lock in the witness
2. telling your story through deliberate questioning in an organized manner
3. reinforcing case theme through cross-examination
4. not "swinging at every pitch," but choosing selective topics for cross
5. modulating your voice to impact the effect of the question on the jury
6. altering rhythm, speed and tone to accentuate particular questions
7. maintaining jurors' trust in YOU as the questioner
8. remaining mindful of jurors' reactions to questioning
9. knowing when to sit down
10. never cross-examining unless the witness has offered harmful evidence, or, if not, the witness can support your case

Perhaps most importantly, BE YOURSELF before the jury. Otherwise juries will react badly if they lose trust in you. Happy cross-examining.

Criminal Defense - Everyday Ethical Conundrum

Recently I guest-lectured for a local law school's professional responsibility class. The topic was the prohibition on the knowing presentation of false testimony. For this subject, the students read Nic v. Whiteside, the U.S. Supreme Court decision denying an ineffective assistance of counsel claim, due to counsel's informing the court that the defendant intended to testify falsely. The defendant had no right to an unfair trial, one in which he provides false testimony.

But the more significant question - in my mind at least -- was whether the attorney actually knew that defedant was intending to testify falsely. If not, then the attorney had no business advising the court of the client's intentions. A client is not entitled to lie. but he is entitled not to have his attorney tell the court he will do so, when the attorney has no such knowledge.

So, did the attorney know? Well, maybe. The client did change his story to the attorney. But this may happen innocently. In the real world, is this enough for an attorney to claim that the client is fabricating? Is the answer simply not to ask a client pertinent questions? Should a client only speak in hypotheticals?

The upshot of this scenario is that an attorney is placed in an unusual position. What is most troubling is that, on occasion, an attorney is essentially being asked to be an arbiter of a client's veracity. The black-and-white scenarios are easy. Of course, no attorney should knowingly permit false testimony before a court. Likewise, every defendant is entitled to testify. But what about the gray situations, where an attorney suspects that a client may be lying. What obligation does the attorney have to the client, and what obligation to the court?

What also of a defense attorney who argues an alternative scenario but knows the scenario to be false? The ethics rules do not speak to this precise subject. Attorneys may argue from the evidence presented at trial. What if the inference sought to be drawn is an incorrect one?

What if an alibi witness is not credible? Is it the client's or attorney's decision whether to pursue an alibi defense relying upon that witness?

There are no easy answers to these questions, which can leave criminal defense attorneys betwixt and between theuir obligations to provide the best defense to the client, while remaining firmly within the bounds of law and legal ethics.

Warrantless GPS Tracking - Invasion of Privacy?

Former U.S. Attorney for N.J., Christopher Christie, now running for Governor, has come under fire for authorizing warrantless GPS tracking of individuals.  To be clear:  all such authorizations were accompanied by court authorization by federal magistrates, though not through warrants.  In 2007, the Justice Department recommended -- but did not require -- that federal prosecutors obtain warrants for such electronic surveillance.  Nonetheless, this decision was to be made on a case-by-case basis.

GPS tracking does involve a privacy invasion.  Through this technology, the government can learn details about a person's whereabouts and travel.  This can hardly be disputed.  But this is not the end of the analysis.  The follow-up questions are whether (1)  such surveillance implicates constitutionally-protected privacy interests, or (2) electronic surveillance laws are implicated.  If the answer to these questions are "NO," then any outrage being expressed by civil rights organizations may fall on deaf ears in the courts, Congress or the public at large.

As for question 1, it is far from clear that the federal constitution includes such a privacy interest.  Individuals are themselves traveling publicly, so it is difficult to imagine a "zone of privacy" protecting one's location.  This is not the case where, for example, the government uses thermal scanners to determine location within a home.  It is nonetheless troubling to know that the government can institute surveillance based upon GPS tracking, even without judicial warrant authorization.  But, then again, the government can lawfully surveil people without GPS without any authorization.

As for the second question, it appears to me that electronic surveillance laws also do not address the issue of GPS tracking.  In the absence of such prohibitions, remedying the situation becomes more difficult.  An attorney colleague from N.Y. recently faced this situation in a motion to suppress GPS tracking results obtained without a warrant.  The court noted that the federal wiretap act provides no remedy, even if a violation were found to have occurred.   The existence of a right but not a remedy seems to be a common theme in electronic surveillance litigation.  In N.J., the Supreme Court recently held in State v. Reid that we have state constitutional protections in the information held by internet service providers.  This is to be compared with federal constitutional interpretation.  No federal constitutional privacy right exists.  Nonetheless, in Reid, the State argued that there should be no remedy for violation of this right, which the State contended existed under the state Wiretap Act and not the state Constitution.  In a sense, the State was correct:  N.J.'s Wiretap Act provides for suppression only of unlawfully intercepted "communications," generally the contents of phone calls.

So what is to be done?  Electronic surveillance laws have simply not kept up with technology.  The government's surveillance techniques seek to harness cutting-edge technology.  So the law should be revised to reflect the reality of possible government overreaching.  The ACLU has suggested that Congress amend federal law to address cell phone and GPS technology.   According to an ACLU staff attorney, "Tracking the location of people's cell phones reveals intimate details of their daily routines and is highly invasive of their privacy."  A warrant should be required, according to the ACLU, before such surveillance techniques are approved.  Presumably the ACLU would seek a suppression remedy, if this evidence were obtained in the absence of judicial authorization.  

Irrespective of the outcome, it is apparent that new technologies raise issues about increased invasions of privacy.  We should be prepared to address these so that the public is aware of this situation and a possible absence of rights and/or remedy under law.

Wikipedia - Inadmissible Evidence

In a not-particularly-shocking decision, the Appellate Division of the Superior Court of NJ reversed a trial court which had admitted a Wikipedia article into evidence.  The appellate court held that Wikipedia articles are too malleable to be reliable.  This makes sense.

I am reminded of the hilarious scene from a recent "30 Rock" episode where the narcissistic Jenna has landed a role reprising Janis Joplin.  One of the skit writers, Frank, suggested she research Joplin on Wikipedia to make sure she really absorbs the nuances of the singer's character.  Yet prankster Frank had planned -- and carried through -- on his scheme to edit the Joplin Wikipedia article with bizarre and wholly manufactured quirks about the late singer.  The humorous result was that Jenna's Joplin was replete with irrelevant character traits and preferences, none of which made any sense.

The fact is that Wikipedia articles can, and are, edited continuously, often inaccurately.  While some articles no doubt are entirely accurate, this does not hold true for all of them.  Seek out, for example, an article on your favorite topic.  Chances are that you will take issue with the article.  This is not to say that Wikipedia is not extremely helpful and genius in the "real world," outside of trials.  It is.  But it's limitations must also be understood.  Usefulness and evidential value are different standards altogether.

1776 - Arguments for Independence

Last night I saw the play, 1776, at the Paper Mill Playhouse in Millburn, NJ. It was terrific. Why am I writing about this in a trial attorney's blog? Because the performance impressively encapsulated various arguments for and against the Declaration of Independence, together with certain language which was ultimately excised from the text (no pun intended).

John Adams, the self-proclaimed "A-Gi-Ta-Tor," expressed the historical imperative for declaring independence. Thomas Jefferson, who drafted the Declaration of Independence, included lofty language meant to call into question -- and presumably to seek abolition -- of slavery.

Perhaps the most interesting arguments, however, came from those members of the Continental Congress who doubted the viability of revolution or the wisdom of breaking from their homeland. As a separate matter, Rutledge of South Carolina pointed out the essential hyposcrisy of Jefferson's personal position and those of purportedly abolitionist northerners. And he had a great voice, singing a tremendous "Molasses to Rum," describing the Triangle Trade.

What trial lawyers can take from this advocacy is that the "correct" position does not always convince people or carry the day. Hopefully our juries will reach the correct decision, though perhaps not for the right reasons. Yet we must always be mindful of provincial concerns and prejudices -- including self-interest -- which may impact a particular decisionmaker's reasoning.

Trial lawyer or not: go see this performance.

N.J. Court Adopts "Reasonable Continuation" Doctrine

Yesterday, in State v. Finesmith, the Appellate Division of the Superior Court of N.J. adopted the "reasonable continuation doctrine," which had previously been approved by federal courts. Essentially this doctrine permits certain re-entry to a premises to continue a search previously authorized by warrant.

The facts in Finesmith are interesting. Wyoming authorities revealed IP addresses ascribed to Mrs. Finesmith indicating peer-to-peer file sharing of certain child pornography videos. N.J. authorities obtain a search warrant for the home to search for computers and other evidence. At the home, the police find 5 computers. On one, they find child porn. In a statement later suppressed per Miranda, Defendant admitted he was the user of that computer.

Mrs. Finesmith then helpfully told police that Defendant had another laptop which he took to and from work. Defendant indicated it was at work. Police went there, but the laptop was not present. Then Defendant -- whose counsel was assured would not be further interrogated -- was questioned and revealed that the laptop must be in his van at his house. This statement was likewise suppressed. But the police returned to the house and seized the laptop from the van.

The Court held that the original warrant was valid basis for the police to re-enter the house in these circumstances to search for the missing laptop. There was no mention of the fact that the polcie did not have any warrant for the van. In any event, the Court further found that there was no problem with the police relying upon the improperly-obtained statement about the precise location of the laptop. The reason for this was the Court's finding that the laptop was inevitably discovered, and that police would have continued looking until it was found.

The Court's analysis left, in my opinion, much to be desired in terms of analysis of purported inevitabiliy. For one thing, the police did not have a warrant for the van. For another thing, it is far from clear that the police would have returned to the house, would have done so promptly and would have entered the van, in the absence of the statement obtained in violation of Miranda. Finally, it is apparent that the evidence was seized as a direct result of the Miranda violation. here was no attenuation. The Court in fact found there was a Miranda violation giving rise to suppression of statements. This violation was all the more egregious because the police apparently misled Defendant's counsel by telling him there would be no questioning. The police also did not advise Defendant that he had counsel, even though he specifically invoked his right to counsel.

It will be interesting to see whether the N.J. Supreme Court ever accepts this case and rules on the merits.

Major Change in Search Incident to Arrest Law

Yesterday the U.S. Supreme Court decided in Arizona v. Gant that police cannot automatically search for evidence in a vehicle following the arrest of an occupant. Such a search is permissible only where it is reasonable to believe (1) the occupant could access the vehicle at the time of the search, or (2) the vehicle contains evidence of the offense of arrest. In Gant, the driver was arrested for driving on a suspended license and was handcuffed and placed in a police vehicle. Therefore, he did not have access to the vehicle The offciers could not reasonably believe they would locate evidence related to the suspendedlicense charge in the vehicle. So the search was unreasnable.

The Gant decision dramatically changes the New York v. Belton rule, announced in 1981 and highly criticezed since that time. Belton essentially permitted officers to search a vehicle each time an occupant was arrested. No more.

In N.J., the Supreme Court has long departed from Belton and granted greater protections under the N.J. Constitution. In State v. Eckel, the Court held that, without access to the vehicle, there can be no search incident to arrest of the vehicle.

State Layoff Emergency Regulation Upheld

The Appellate Division of the Superior Court more or less upheld the State furlough regulation promulgated under emergency circumstances.  See the decision here.

The Court nonetheless indicated that the staggered layoff of individual employees -- as opposed to whole units -- may not meet state law requirements.

Exclusionary Rule Update

The U.S. Supreme Court reaffirmed the "good faith" exception to the exclusionary rule in Herring v. United States. Essentially the Court found that the rule -- to suppress unlawfully seized evidence -- will only be applied where the application would have a deterrent effect on police misconduct. In dissent, Justice Ginsburg rejected the deterrence-only principle and sought to reinforce the notion that the exclusionary rule is the only real remedy to address a 4th Amendment violation. New Jersey has rejected the "good faith" exception under its own Constitution. As the N.J. Supreme Court held in State v. Novembrino, the exclusionary rule serves not just to deter police misconduct, but also as "an indispensable mechanism to vindicate the constitutional right to be free from unreasonable searches."

Forfeiture by Wrongdoing in N.J. Criminal Courts

On April 2, 2009, the N.J. Supreme Court moved toward adoption of a "forfeiture by wrongdoing" exception to the hearsay rule.  In State v. Byrd, the Court indicated that the time had come for N.J. to adopt the rule that a defendant forfeits the right to confront a witness's out-of-court statement implicating him when he causes that witness's "unavailability" at trial.  In other words:  if you scare a witness into not testifying, then the earlier statement can be used against you anyway.  The Court sent a proposed rule to the legislature for its adoption.  Because there is no such rule now, Byrd was entitled to a new trial.  What will be interesting is not whether such a rule will be adopted, but rather how such a rule will be implemented.  Left unsaid is how trial courts will determine whether there has been such coercion or intimidation, or whether such misconduct has been proven to arise from the defendant's actions.   Even assuming such a hurdle is met, is the very evidence of coercion admissible as well?  There are significant reasons why the right of confrontation is fundamental to our criminal justice system.  Only time will tell whether "forfeiture by wrongdoing" is a workable doctrine in New Jersey.