HOW TO CONNECT WITH YOUR JURY SO THEY HEAR YOU

Transcription

1 HOW TO CONNECT WITH YOUR JURY SO THEY HEAR YOU Virginia L. Landry, Esq. Law Offices of Virginia L. Landry, Inc Avenida de la Carlota, Suite 125 Laguna Hills, California

2 VIRGINIA L. LANDRY

3 REFRIGERATION NECESSARY

4 BASIC ISSUE CHECKLIST DON T BE BORING GET COMFORTABLE USING YOUR PERSONALITY YOU MUST USE PROPS

5 HOW NOT TO BE BORING BE MORE LIVELY!! YOU HAVE TO BE NICE, PROFESSIONAL, FACTUAL AND SINCERE *TONE *INFLECTION *PRESENCE * MOVEMENT * TOUCH * DRAMA

6 5 TIPS TO NOT BE BORING 1. EXPRESS YOUR FEAR 2. MAKE YOUR CLIENT INTERESTING 3. DON T BABBLE 4. BE NORMAL 5. GIVE DIRECTION, EXPLAIN HONESTLY, FOCUS ON RESULTS

7 TIME FOR CHANGE CHANGE YOUR STATE OF MIND YOU ARE AWESOME! KNOWLEDGE IS THE KEY TO NOT BE BORING TRY A NEW THING EVERY SINGLE TRIAL

8 FEAR

9 VOIR DIRE START TO PAINT THE PICTURE Pre-Educate Tap Into Childhood, Family Life, Personal Conflict Get a Raw Emotion TRIAL TIP # 1: TAKE THE ORDINARY AND LOOK AT IT IN AN UNUSUAL WAY

10 EXAMPLE

11 CROSS STARTS IN JURY VOIR DIRE Plant the seeds: How do you prove something? What are facts? What is doubt? What is an assumption? Can you prove anything with an assumption? Can you prove anything with statistics? Contested matter? Means it is not clear

12 PROPS ELMO POSTER BOARDS IPADS/COMPUTERS/IPHONE TOYS TRIAL TIP #2: DEMONSTRATE BUT DON T BE SLICK

13 PSYCHOLOGICAL ENGAGEMENT

14 OPENING MAKE YOUR CLIENT INTERESTING TELL US WHAT IT S LIKE TO BE THEM GIVE US THAT ROAD MAP GET INSIDE THEIR EMOTION OUTLINE HOLLYWOOD

15 OPENING PHOTO DISPLAY? THROUGH YOUR WORDS FIRST PERSON OPENING MAN OR WOMAN OF THE HOUR: CLIENT DISCLOSE THE CONFLICTS MORE THAN A SOUND BITE AND LESS THAN A SHORT FILM

16 OPENING MAKE YOUR CLIENT INTERESTING TELL US WHAT IT S LIKE TO BE THEM GIVE US THAT ROAD MAP GET INSIDE THEIR EMOTION OUTLINE HOLLYWOOD

17 EXAMPLE

18 DON T BABBLE (Clip 3)

19 FEELINGS AND EMOTIONS DURING CROSS EXAMINATION

20 3 ALCOHOL CALCULATIONS How many drinks (or how much alcohol) to be a particular BAC * What is the BAC per drink for this person? Given drinking pattern, what BAC will (s)he be? Given BAC, what BAC was (s)he earlier?

21 ALCOHOL METABOLISM BAC TIME

22 r values: Low Ave High Men Women Study Authors Year R Factor (Men) Range R Factor (Women) Range Widmark Osterlind Dubowski Shajani & Dinn Seidl

23 GENDER DIFFERENCES

24 Elimination

25 Widmark: How many drinks?

26 CROSS EXAMINATION McCarthy Style Short Leading Statements Control the Witness IT S MY WORLD, YOU JUST LIVE IN IT!

27 VOIR DIRE OF EXPERT/COP We can agree that you didn t tell the entire truth on direct? Scientist? Bachelors Degree No PhD, No MD, no MS Performs Technical Procedure Does not do research Relies on other people s research for opinions Real research is peer reviewed

28 PROPS Diagrams Dr. Scholl's Tape Measurer Bubble Meter PAS Sirens Patrol Car Photos Video Clips and Animations

29

30 CROSS ON LEARNED TREATISES CA Evidence Code 721. (a) Subject to subdivision (b), a witness testifying as an expert may be cross-examined to the same extent as any other witness and, in addition, may be fully cross-examined as to: (1) his or her qualifications, (2) the subject to which his or her expert testimony relates, and (3) the matter upon which his or her opinion is based and the reasons for his or her opinion.

31 SECTION B (b) If a witness testifying as an expert testifies in the form of an opinion, he or she may not be cross-examined in regard to the content or tenor of any scientific, technical, or professional text, treatise, journal, or similar publication unless any of the following occurs:

32 THE TRILOGY (1) The witness referred to, considered, or relied upon such publication in arriving at or forming his or her opinion. (2) The publication has been admitted in evidence. (3) The publication has been established as a reliable authority by the testimony or admission of the witness or by other expert testimony or by judicial notice. If admitted, relevant portions of the publication may be read into evidence but may not be received as exhibits. Send Copies to the Lab/Police Agency

33 [W]e generally cannot state with any assurance the actual peak value which will be reached for each individual nor can we state the precise time at which it will be obtained. Statements as to either will necessarily require a great deal of guesswork and speculation. The attempt to extrapolate back from a later single test value to the earlier true BAC is always fraught with difficulties. E. Fitzgerald & D. Hume The Single Chemical Test for Intoxication: A Challenge to Admissibility. Massachusetts Law Review (1981) Vol. 66, No. 1, pp

34 [B]ack extrapolation of venous blood alcohol levels, based on a single known concentration can lead to estimates bordering on wild guesses. E. Martin, W. Moll, P. Schmid, & L. Dettli. The Pharmacokinetics of Alcohol in Human Breath, Venous and Arterial Blood after Oral Ingestion. European Journal of Clinical Pharmacology (1984) Vol. 26, No. 5,

35 the variability in the extrapolation error obtained in individual subjects with the mean elimination rate was considerable. Y. Al-Lanqawi et al. Ethanol Kinetics: Extent of Error in Back Extrapolation Procedures 34 Brit. J. Clin Pharmac. 316 (1992)

36 [S]peculative retrograde extrapolation to any point prior to an experimentally determined value must be avoided in forensic practice, or so qualified by stated assumptions that the exercise becomes pointless. Kurt M. Dubowski Human Pharmacokinetics of Ethanol I. Peak Blood Concentrations and Elimination in Male and Female Subjects. Alcohol Technical Reports (1976) Vol. 5, No. 4, 55-63

37 [W]e do not intend to encourage backestimation but instead we want to highlight the uncertainty associated with such calculations. Estimating the amount of alcohol consumed is difficult to defend since drinking histories are often unreliable and values for β and ρ are unknown for individual drunk driving suspects. R.G. Gullberg and A.W. Jones Guidelines for Estimating the Amount of Alcohol Consumed from a Single Measurement of Blood Alcohol Concentration: Re-evaluation of Widmark s Equation, Forensic Science International (1994) Vol. 69,

38 Requests to back extrapolate a suspect s BAC from the time of sampling to the time of the driving are often made, but this remains a dubious practice, owing to the many variables and unknowns involved. A.W. Jones Disposition and Fate of Ethanol in the Body in Garriott s Medicolegal Aspects of Alcohol, 5 th Ed. Lawyers and Judges Publishing Company, Tucson, Az. 2008

39 ASSUMPTIONS: Time to Peak Elimination Rate BrBAC Measurement We can agree you didn t tell us the WHOLE truth on direct?

40 ELIMINATION RATE Elimination of Ethanol in Humans 17 Can Soc Forens Sci J. 182 (1984)

41 Time to Peak

42 ALCOHOL ADVERTISEMENTS

43 NOW GET SEXY WITH IT

44 :00 1:00 2:00 3:00 4:00

45 See Jim Nesci s Bad Breath presentation: Blood Breath Ratio Hematocrit Breath Temp Calibration Bias Instrument Variability :00 1:00 2:00 3:00 4:00

46 BAC 02:05 02:45 03:45 Driving PAS Test Chemical Test TIME

47 BAC :05 02:45 03:45 Driving PAS Test Chemical Test TIME

48 BAC If evidence can be mustered to suggest that the peak BAC was reached after the incident the driver might have been below the statutory limit at the time of driving, and an acquittal is therefore a possible outcome. A.W. Jones, Physiological Aspects of Breath Alcohol Measurement, 6 Alcohol Drugs and Driving 1 (1990) 02:05 02:45 03:45 Driving PAS Test Chemical Test TIME

49 EXAMPLES

50 EMPRACE THE EXCITING, AWFUL AND BEAUTIFUL

51 BE LIKE A KID: KEEP IT SIMPLE STUPID (KISS RULE)

52 CLOSINGS THAT GET TO THE A QUICK NOT GUILTY VERDICT Analogies

53 EXAMPLES Tylenol House That Government Built Going Fishing On the Scale Cheating Spouse Line up the Alcohol Soy Sauce

54 DIRECTION, HONESTY AND FOCUS

55 SPECIAL THANKS SHAWN R. DOMINY OHIO ASSOCIATION OF CRIMINAL DEFENSE LAWYERS NATIONAL COLLEGE FOR DUI DEFENSE, INC. LORENA HUGHES, PARALEGAL RONALD MOORE, FORENSIC EXPERT

56 COPY OF SLIDES TEXT TO: INSERT: IHEARYOU AND THEN FOLLOW THE PROMPTS

57 The End