Hang ’em with their own words!

We were halfway through the direct examination of my star witness when I asked, “What did you hear Mr. Thomas say?

Even if you got a “D-” in your evidence class, when you saw that question you instinctively thought to yourself, “Objection! Hearsay!” My question called for the most obvious objection in the world, right? That’s why it’ll probably surprise you that my opponent didn’t jump up from his seat to yell “Objection!” In fact, he didn’t say a word. He just sat there and continued taking notes.

Before you ask, no, he hasn’t been disbarred, and no, he’s not an idiot. The reason he didn’t object was because he couldn’t. Mr. Thomas was my opponent’s client, so the statement was an exception to the hearsay rule: Statements of party opponents (or, as it’s more commonly called, “admissions” or “statements against interest.”)

Admissions, especially when they’re caught on tape, are usually the most damaging evidence your jurors will hear. If you’re lucky enough to have a taped admission from your opponent, there are a number of wonderful things you can do with that evidence. For example, let’s say that you’ve got a 30 minute recording of a statement your opponent gave to the police about the crash. How many different ways could you use that recording? The first and most obvious choice would be to play the entire statement for the jury during your case-in-chief. You’d simply call the police officer to the stand, ask him to authenticate the recording, and then hit “PLAY.” Nothing to it, right?

The next way to use the recording is during cross-examination. Normally, when cross-examining witnesses about prior inconsistent statements, you confront them with the prior statement by reading it aloud from the transcript. Imagine how much more powerful your impeachment would be if the jurors heard the inconsistencies from the witness’s own mouth? It would be a lot more difficult to deny the prior statement, wouldn’t it?

Attorney: “You hoped Mr. Lumbergh would be fired, didn’t you?”

Witness: “No, of course not!”

Attorney: “Publishing the audio statement previously admitted into evidence as Defense exhibit #22…”

[Recording of witness’s voice]: “Lumbergh is a twit. If I had my way, they’d fire him, and stick that coffee mug up his you-know-what…”

Another way to use recorded statements is during closing argument, by playing individual snippets of testimony back-to-back so the jury can compare and contrast the statements:

Attorney: “The day after the murder, John Jones said that he had been home the entire evening. Remember his statement to Ofc. Smith?”

Recording of Jones’ statement: “Dude, I was home all night, I wouldn’t lie to you about that. I swear I was home the entire night. I never left the house.”

Attorney: But the very next day, when he was interviewed again, he made a very different statement, remember?

Recording of Jones’s statement: “I left the house around midnight and went to Krystal’s for some mini-burgers. I was only gone for like 45 minutes or so.”

Reel to reel recorderIn the old days, if you were lucky enough to have a recorded admission you wanted to play in court, the only easy way to do it was to bring your handy-dandy cassette recorder and play the entire statement. But the problem with playing the entire statement is that the recording rarely consists solely of statements against interest. Usually, recorded statements also include lots of self-serving hearsay and irrelevant comments. Out of the entire 30 minutes worth of “admissions,” you may want the jurors to only focus on less than a minute or two worth of testimony.

Back then, if there were any parts you needed to skip (such as suppressed statements) or any parts you wanted to highlight, you’d be stuck hitting the fast-forward button and keeping your eyes on the tape counter until you found what you were looking for. At best, it took too much time to fast-forward to the appropriate spot. At worst, your presentation became a comedy of errors as you fumbled and bumbled with the fast-forward and rewind buttons until anti-climatically reaching your impeachment material.

Luckily, nowadays, you’ve got digital technology at your fingertips which dramatically improves the ease of presenting recorded statements. And the best thing is, you don’t need to spend a fortune on professional editing equipment or fancy software to get the benefits of audio editing. With the help of a free program called Audacity (available for both Mac and PC at http://audacity.sourceforge.net/), you’ve got an easy way to edit audio statements on your laptop. All you need is a digital recording of the witness’s original statement and some basic knowledge about how to cut and paste on a computer. Once you install the program, you’ll see a screen that looks something like this:

Audacity screen capture

The program is pretty easy to use, and they’ve got full documentation on their site. Once you or your assistant learn how to use it, you can do some amazing things with audio statements. For example, here are some of the different ways you can use this program:

Redacting an audio statement to remove irrelevant sections. No longer do you have to worry about the jury hearing irrelevant, suppressed, or improper comments. Simply highlight the improper comment and click <DELETE>. Presto! The statement will be removed, and you can now save the file as a new audio recording.

Extracting admissions from longer statements. Let’s say you don’t want to replay the entire witness statement, but only want to replay a small snippet. Audacity makes it easy to extract those admissions from extended audio recordings. Here’s all you’d need to do:

  1. Go to <PROJECT> and click <IMPORT AUDIO>.
  2. Choose the audio recording you want to import.
  3. Use the selection tool to highlight the audio segment you want to export. (It’s almost the same as highlighting a paragraph in Word and clicking “Copy”)
  4. Click <FILE> and scroll down to <EXPORT SELECTION AS WAV>
  5. Choose a filename for your recording. (It’s easier to retrieve the correct statement during trial if you use descriptive titles for each file, such as “The Light was Red” or “The Light was Green”).
  6. Click “SAVE”

That’s it! Now you have a standalone .WAV file of the admission that you can play on any computer. Be creative and think of how you could use those admissions. Could you use them during settlement negotiations by burning a “Greatest Hits” CD for your opponent? (“Here are the six times during depositions where C.E.O. admits to liability.”) Or import the statements to your iTunes playlist, so you can quickly click on the correct statement to impeach witnesses during cross-examination?

Maybe you want to use the statements during closing to compare and contrast what different witnesses said about the same events: “What was their understanding of the performance metrics for promotions? Let’s hear what the CEO, Jon Smith, had to say [PLAY CLIP #1]. But the CFO, Jane Smith, said something entirely different [PLAY CLIP #2].”

Statements of party opponents, especially recorded ones, can be some of the most powerful evidence you’ll ever admit. But just as with every other exhibit or testimony that you’ll ever offer into evidence, it’s not enough to simply understand what you should show to the jury. To get the most out of your evidence, you’ll also need to master knowing when you should admit it and how you should publish it. Learn how to use an audio editing program like Audacity to extract your admissions, and you’ll be able to play them to maximum effect for your jury.

Impeach Witnesses by Creating an Effective Record at Depositions

The depositions were taking longer than expected, and they were some of the most boring depos I’ve ever attended. As we approached 3 o’clock, I could barely keep my eyes open.  Luckily, closing my eyes for a brief moment helped me see what the deposition transcript would look like, and pointed out the difference between talking to the witness and talking to the record.  Take a look at two sample questions that were asked:

“This blood here, is that from this general area here, or is that from another area?”

“Is this photograph here a photograph of this area here?”

Huh? Do you have any idea what they’re talking about? Do you know where the blood is? Neither will they when the attorney if she tries to impeach the witness using this deposition during trial.

That’s why it’s important to clarify what you’re referring to during deposition or during trial. If the attorney had referred to the photograph by exhibit # (“Referring to Plaintiff’s Exhibit #15”) or by general description (“We’re looking at a contact sheet of photos you took at the scene, specifically, the 2nd photo from the left on the third row, page 7”) then we would have some idea what they were talking about, and our record would be clear.

Are you paying attention to your record during deposition and during trial? If not, you may be minimizing the effect of valuable impeachment material or omitting crucial information that the appellate courts need to “see.”  To help you create a better record, take a look at these examples:

Example #1: (BAD)

Q: “So, this is where the shell casings were found?”
A: “Yes, right there where you’re pointing.”

When this question was asked during the deposition, it was abundantly clear to the witness and to the attorneys where these shell casings were located, because we were all looking at the same photo. The image was directly in front of us, and the attorney was using her finger to point out different sections of the photo. But after reading the transcript, do you have any idea where the shell casings were found? If the location of the shell casings was in dispute, would you be able to cross-examine the witness using this transcript?

If you’re not careful about creating a record, your transcript will be as worthless as this one is. When no one can “see” what you’re talking about, you won’t be able to impeach the witness. Look at this next example to see how the simple act of identifying which document you’re referring to can dramatically increase the impeachment value of your transcript:

Example #2: (BETTER)

Q: “Referring to Plaintiff’s exhibit #19 — this is where the shell casings were found?”
A: “Yes, right there where you’re pointing.”

Murder scene
Plaintiff’s Exhibit #19

This method is better, at least you know what you’re supposed to be looking at. There’s still room for improvement, however, because you still don’t know which part of the photograph they’re referring to. Take a look at example #3 to see how to make your record crystal clear:

Example #3: (BEST)

Q: “Referring to Plaintiff’s exhibit #19 — this is where the shell casings were found?”
A: “Yes, right there where you’re pointing.”
Q: “The cones marked by ‘M,’ ‘N,’ ‘T,’ R,’ and ‘S’ in the photograph?”
A: “Yes.”

Murder scene
Plaintiff’s Exhibit #19

Now do you have any questions about where the shell casings were located? By being specific, the examiner removes all doubt about where the items were found. If your photo doesn’t have cone markings, have the witness use a permanent marker to distinctly identify the areas you’re discussing.

As a trial lawyer, you spend a lot of time in depositions. If you’re going to invest that much time, you want to ensure that your record is clear and that you maximize the value of your impeachment material. A quick and easy way to do that is to make sure you know what your record “looks” like.

How to Persuasively Present Written Transcripts

Have you ever had to present a deposition or interview transcript to the jury?  How did you do it?  Earlier this week I was asked to help a friend present the transcript of an interview in a murder case he was prosecuting.   There were just a few problems with presenting the interview to the jury:

  1. The interview was conducted in Spanish, not English, so he couldn’t play the original audio recording.
  2. Not everything in the interview was relevant to the case, so the jury would only be allowed to hear certain parts.
  3. Our rules of evidence place limitations on the admissibility of transcripts in criminal trials, so he couldn’t just admit the transcript and ask the jurors to read it.

He resolved those problems by asking the two detectives to re-read their portions of the interview, and asking me to read the defendant’s statements.  Between the three of us, we tried to take the jurors back to the interview room, so they could hear exactly what was said.  Here are five tips I learned to help you present deposition or interview transcripts more effectively:

Ask someone else to help you. If he had read all three parts of the transcript himself, he would have run the risk of either confusing the jurors or boring them to tears.  By asking the three of us to read our individual parts, he eliminated the risk of the jurors confusing who said what, and made it more interesting for the jurors.

Highlight the witness’s lines. By taking a highlighter to all of my lines, I could easily see what I was supposed to read next.  That’s especially important when you’re reading from a back-and-forth exchange.  Highlighting all of the witness’s lines ensures they won’t miss any lines and also ensures there won’t be any awkward pauses while you wait for your reader to realize he’s supposed to be speaking.

Clearly mark any stopping points. If you’re only reading portions of the transcript, use the highlighter to draw a line across the entire page where they’re supposed to stop.  When witnesses are involved in a quick back-and-forth exchange, they can get caught up with reading their lines, and miss the small “Stop!” marks written in the margins.  Don’t risk the chance of your witness reading irrelevant or inadmissible testimony to the jury.  Clearly and boldly mark where they should stop.

Tab the appropriate pages. Just like on the radio, you want to prevent the courtroom from filling with “dead air.”  When your witness is flipping through pages of the transcript, trying to find what portion he’s supposed to read next, it breaks the flow of your presentation and gives the jurors’ minds an opportunity to wander away.  Prevent “dead air” by tabbing the witness’s transcript, so he clearly understands which portion to flip to next.  Combined with the highlighting, this little bit of extra effort will make it much easier for your witness to smoothly present the transcript.

Ask your “reader” to read the transcript beforehand. By reading the transcript in advance, they’ll note any grammatical difficulties or pronunciation difficulties they might encounter.  You want to make sure that they can pronounce the words and capture the flow of the language.  Think about reading any of Shakespeare’s works aloud – you wouldn’t want to pick up the text and just “wing it.”  By reading the document in advance, your reader will discover if there are any words they can’t quite wrap their mouth around.  They’ll be able to fix the problem beforehand, so that your courtroom presentation flows smoothly.

Ideally, if you know a witness won’t be available, you’ll want to set up a multi-camera recording of his deposition so that the jury can hear exactly what the witness said and see exactly how he said it.  However, when those set-ups recording are unfeasible or too expensive, enlist the help of a friend to read the transcript to the jury.  Done well, the results can be almost as effective as taking the jurors back to the scene.