Regarding great advocates; “Each know the precise points upon which to seize, each watch every accident that might arise in the progress of the case” 1903. Criminal law, Criminal trials, a lot of them looks bad when we get started as defense attorneys and things fall into your lap, if you’re listening, if you are listening. “What the devil did you mean taking a note? Why don’t you watch the case?” 1903. This was what the expert was teaching back then, sure you’ve got to make notes to remind yourself but don’t be so concentrated on the notes so that you’re not listening to the case. Stop on a strong point, end on a positive, even if it means giving up some of your questions. I tried a case with one of the best lawyers, he had destroyed the witness but he gone on for about 5 minutes but I kind of tapped him and “I said you don’t need to go any further, this is over” if you didn’t hear what I said I told him I said you don’t need to go further this is over. He looked at his book, I got 5 more pages of questions, I said don’t do it. He did it. He was guilty, stopped on a strong point. What? If you got 5 pages who cares? Well here’s who cares. Cross to satisfy your clients. This is the problem folks. We all deal with this as defense attorneys, not so much as prosecutors.
When your client is smarter than you, well I think they are, when the expectations of you client control the trial. Well this is a tough issue. Some clients want a dog, they want a show. You have to balance that out on your own and I can’t answer that question for you. I can say if your client wants this and they demand it, you better do it you need agreements or tell your clients that you disagree. “There must be cross examination if you are to satisfy your client. So the defendant’s advocate asks…” Isn’t that interesting? You thought that was a new problem 2015. This was a problem in 1903, as a Counsel you have to listen to your client, it’s a tough issue. Awareness; did you get an answer, this is a different subject. Did you get an answer? You want to know about answers? You read transcripts, just read a couple, who does a pallet work in the room here? How many times do you read the record, the question was asked and the answer had nothing to do with the question. As a defense attorney you got to say “was the question answered?” You know, the problem the lawyer was focused on the next question and did not ask a direct answer and did not listen to get a direct answer to the question asked. Just about being a trial lawyer, just about winning cases about picking up on things, if you don’t want to answer the question then that’s when my flares start going off for me, okay let’s skip to the second expert. What do we got here? 6 minutes okay.
“The war of experts” now here we are in 2015, is the police officer an expert witness? Well, you better believe he is, to what degree? You don’t know. Mainly in DWI cases, they are experts, many of them have tests 100s of times they’ve test more than you’ve had trails. Many times prosecutors just put some on witness stand, put that automatic button on and it’s over. Now that’s not talking down to anybody that’s to say these people are smart, efficient, effective. The more experience to witness, the fewer the questions. That’s my response. If you don’t think these expert witnesses can destroy you, you are wrong. When you ask a question to a police officer that you know is a highly efficient, intelligent and I’m not saying that they are all. You better know what you’re asking. You’re opening the door. More frequently however, it only affords an opportunity and we’re talking about when you’re asking the police officer questions and this is different “It only affords an opportunity for the witness to enlarge upon the testimony he has already given and to explain what might otherwise have been misunderstood”. Now we just heard the best lawyers in the state talk about blood cross examination. Do you think you as a defense attorney can cross examine a blood expert? Think about it…Do you think they cannot explain every question that you got?
If you got to question to that blood expert, you better have it nailed down. These are not easy cases, we’re switching over to blood. In 1903 they said this, “Many lawyers undertake to cope with an expert on his own ground in some rare instances this works”. 1903. Assume that an expert witness whether it’s a police officer, Phlebotomist nurse or whatever called against you has come prepared to do you all harm he/she can and will avail himself every opportunity to do so which you may inadvertently give him or her” Inadvertent that’s why I’m talking out, Inadvertent; don’t assume these people are going to be your friend on the witness stand, it says if Jacqueline, they are very nice in the hallway, they get on the witness stand, they will destroy you given the opportunity, 1903.
How do you rebut it? You have your own witness; you have your own witness. Now the state has a great disadvantage here. I mean the state has a great advantage. We as defense, have the disadvantage why? These experts are not cheap, what I’m running into across the state is the experts who want $1250 to review a case, they went $2500-$5000 to fly in and testify. Now I’m representing the top age of the clients. Very few people can afford this, so what do we do? We’re stuck with asking question that they cannot wiggle out of or damage you with. You see, It’s nice to have your own experts if you can but most clients can’t afford it.
“It maybe that you have on your side so many witnesses, it’s not worth while a hazard the risks of cross examination” What does that mean? What if your client can afford the expert? Well then don’t give their witness a chance to hurt you. You ask to use you own witness, 1903.
Learn to take-a-hit; now that’s a different subject. In the course of a trial, you are always going to get a bad answer. Don’t believe in it. It’s like when you’re picking the Jury and you get the bad Jury, don’t stay on that Juror, you shift to another Juror. Blindsided reaction when you get a bad answer, you get mad, you get defensive, you strike back with sarcasm, you are condescending well those are all going into the wrong directions.