Jena Friedman Interviews Ken Kratz

The hugely popular Netflix series Making a Murderer continues to grip TV binge-watchers and internet armchair detectives with the case of Steven Avery, a man who spent 18 years in prison for a sexual assault he did not commit, only to be charged with the murder of another woman shortly after his exoneration. The show grapples with Avery and his nephew Brendan Dassey's treatment by local Wisconsin law enforcement in the light of the criminal justice system's many failures.

Former District Attorney Ken Kratz, who serves as the show's ostensible villain, has beenoutspoken about the documentary's alleged misrepresentation of key evidence, and has received hate mail and scathing Yelp reviews from fans of the show. (It probably didn't help that he resigned amid a sexting scandal.)

Comedian Jena Friedman, former field producer for The Daily Show with Jon Stewart, sat down with the true crime series' antagonist to talk about his role in the Avery saga. Oh, and they played a game of kill, fuck, marry.

Lessons Learned from Evidence Gathering Mistakes in Simpson Case

Twenty years ago, the O.J. Simpson murder trial shed a glaring light upon the flawed forensic and evidence gathering work of the Los Angeles Police Department.  The highly publicized trial offered the world of law enforcement a textbook example of what not to do while processing evidence at a crime scene.  At trial, where Simpson faced murder charges for allegedly killing his ex-wife, Nicole Brown Simpson, and her friend, Ronald Goldman, Simpson’s defense attorney destroyed the prosecution’s case by exposing problems with the Los Angeles Police Department’s handling of evidence.  Among the lessons learned by the Los Angeles Police Department was to account for all evidence and log it onto the evidence books, and to be always be honest with the jury, even if this honest approach would hurt the government’s case.  O.J. Simpson’s defense attorney, Johnnie Cochran, referred to the LAPD scientific investigations division as a “cesspool of contamination” for sloppy evidence handling.  After Simpson’s acquittal on murder charges, LAPD scientific investigations division made significant changes.  The crime lab received more funding and additional staff.  In 1997, the lab was accredited. Other changes included:

• Documentation.  In 1994, the crime lab did not routinely document its handling of the evidence.  Now, the lab requires its staff to take detailed notes to document all of their forensic work so that information is memorialized instead of left to memory of the technicians.
• Chain of Custody.  During the Simpson trial, there was a great deal of evidence that prosecution sought to produce at trial.  However, the source of that evidence was recorded and could not be explained. Today, the police are required to maintain a clear and accurate record of the source of the evidence, and what happened to the evidence at every stage after its discovery.

• Careful Examination of Evidence.  During the OJ murder investigation, no one noticed any blood on a pair of socks that were collected from Simpson’s bedroom until two months later when the socks were examined in the crime lab.  Defense experts suggested at trial that the blood was smeared on the socks while they were lying flat, not while someone was wearing them.

• Proper Evidence Handling.  Forensic technicians were criticized for improperly packaging evidence samples and leaving them in a hot van on a summer day.  A rookie technician had collected most of the evidence in the 1994 murder case.  Today, the lab uses barcodes to scan and track evidence.  Crime scenes are also tightly controlled.  Trainees, like the one who collected the evidence in the Simpson case, are no longer allowed to handle evidence directly.  Instead, trained technicians handle the evidence while trainees watch.
• Contamination of Evidence.  In 1994, a police detective took a blood sample from Simpson, and then carried the vial of Simpson’s blood in his pocket, back to the crime scenes.  At trial, the defense suggested that the blood was brought back to the crime scene for the purposes of planting that evidence at the scene. Today, police are not allowed to re-enter crime scenes while carrying evidence.  The evidence is to be booked immediately so that it can be secured.

Photo Credit: Project M·A·R·C via Compfight cc

New Crime Scenes – Same Old Problems

George Schiro, MS, F-ABC

E-mail: Gjschiro@cs.com

(337) 322-2724

          

  In 1989, I heard Dr. Henry Lee speak at a homicide conference in Metairie, Louisiana. Dr. Lee is currently the Connecticut Department of Public Safety Commissioner and, perhaps, the most famous forensic scientist in the world. He said that the same problems we were encountering at crime scenes in 1989 were the same problems that we encountered at crime scenes for the past 30 years. In the ten years since I heard his talk, I’ve observed that, while evidence collection and crime scene investigation education has increased, we are still encountering these same problems. These problems aren’t unique to any single law enforcement agency, but they can be found in many departments, large or small, rural or urban throughout the United States and the world. In this issue’s column, I will address some of these problems.

            The first problem and the root cause of many other problems encountered in crime scene investigations, is the lack of administrative policies dealing with a specialized operation like crime scene preservation and investigation. The chief administrator of a law enforcement agency must develop and enforce workable rules that will allow the crime scene to be preserved and allow the detectives and crime scene investigators to do their jobs properly. For more information on this subject, dig through your back issues of Southern Lawman Magazine and refer to my column, “Administrative Policies Dealing with Crime Scene Operations” in the Spring 1999 issue. If these policies would be put in place, then most of the crime scene problems that we have encountered will be eliminated.

            The biggest problem encountered in crime scene investigations is too many non-essential personnel in the scene. Unfortunately, the bulk of these non-essential personnel are often police officers. Once the scene has been stabilized and the victim is either removed from the scene or declared dead at the scene, then everyone, including police officers, must be removed from the scene as soon as possible. The scene must be secured until the detectives and crime scene investigators arrive. Until they arrive, no one, including sightseeing police officers regardless of rank, should be allowed to go in the scene. Non-essential personnel will either inadvertently disrupt some portion of the crime scene or they will give the impression that something has been disrupted. One of the most popular lines used by defense attorneys and the media during a trial is that the police contaminated, disrupted, tainted, or otherwise screwed up the crime scene. By eliminating the non-essential personnel in the scene and controlling the scene once the situation is stable, then the police contamination statement has no validity.

            Another major problem is the lack of communication at crime scenes. The first responding officers must report everything they have observed including their actions at the scene, the paramedics’ actions, the victim’s actions, the suspect’s actions, and any other actions taken at the scene. This information must be communicated to the detectives and crime scene investigators. The detectives and crime scene investigators must work and communicate with the coroner’s or medical examiner’s investigators, so they can properly perform their job when dealing with a deceased individual. In turn, the pathologist who conducts the autopsy must communicate his or her findings to the detectives, crime scene investigators, and forensic scientists in the crime lab. The detectives and crime scene investigators must also communicate with the forensic scientists so that the evidence can be analyzed properly to obtain the maximum amount of information in the investigation. The forensic scientist must give the results of the analyses to the detectives so that the investigation can be completed. Finally, everyone involved in the case must have a two way communication with the district attorney’s office. Lack of communication can hamper the final disposition of a case.

The way mistakes are sometimes handled at a crime scene is a problem and this can lead to bigger problems, including perceptions of cover-ups and conspiracy. Mistakes at a crime scene are inevitable. The best we can do is to minimize the mistakes made at crime scenes through proper education and training. Each processed crime scene should be internally critiqued by each participant. This is so he or she can learn from any mistakes made at the scene and look for ways of improving the next crime scene investigations. Each crime scene should be a learning experience.

If you make a mistake at a crime scene, own up to it at the beginning. Don’t try to cover it up. Be honest about it and report it to the person in charge. If the mistake is fixable, then rectify it, but if you have altered the scene in any way, don’t try to recreate that scene. A scene can never be recreated and any attempt to do so could result in subtle and unconscious changes that might affect the outcome of the investigation. If the scene is recreated, then it becomes perceived as a cover-up. If someone else sees you do it or helps you recreate it, then it becomes perceived as a conspiracy.

An example is the movement of a weapon at a scene. Suppose an officer accidentally picks up a weapon and moves it prior to the weapon having been photographed. The officer should not go back and attempt to recreate the original position of the weapon. The officer should notify whoever is processing the scene and then someone should include in a report that the weapon was not photographed in its original position because it had been moved prior to being photographed. The weapon should then be collected. A crime scene investigator should photograph and document the scene as he or she finds it, no matter what has been moved prior to his or her arrival.

Another common problem encountered in crime scene investigations is that no one checks the floor or the ground prior to entering the scene. Detectives and crime scene investigators should examine the ground using oblique or side lighting so that shoeprints and other evidence that end up on the ground can be more easily visualized and preserved. This should be done even if a million people have been in the scene. For more information, check out my column entitled “Shoeprint Evidence – Trampled Underfoot” in the last issue of Southern Lawman Magazine.

Too few photographs taken of a scene is a problem that is also still encountered. The crime scene photographer has only one chance to thoroughly document the crime scene. The photographer should capture that scene and evidence from as many angles as possible. Film is cheap so use as much as you feel necessary. Some departments are switching to digital cameras. Do not use a digital camera or a point and shoot camera for crime scene documentation. Some aspects of crime scene investigation require extremely detailed close-ups. This cannot be accomplished with the current generation of digital cameras and the limited flash unit on the point and shoot cameras. A law enforcement agency must invest in good crime scene cameras and side mounted flash units. Training with the camera must also be provided by the agency.

By working to eliminate these major problems at crime scenes, law enforcement agencies will be more effective, have increased public confidence, and have more solid case investigations. The problems are easily identified and, if the proper leadership is in place, then these problems are easily rectified. We can and must learn from our mistakes. Hopefully, the next ten years of crime scene investigation will be conducted so well that no one will ever again have to mention the past 40 years of the same old crime scene problems.

OJ Simpson Case HBO Autopsy Post Mortem

Mistakes made by forensic investigators.

David Schwimmer says "Juice"

Every time David Schwimmer as Robert Kardashian says OJ Simpson's nickname "Juice" in The People vs OJ Simpson.

GERRY SPENCE “WIN YOUR CASE”

One of the better books Gerry Spence has written was his book Win Your Case. His advise is on target. 

Here are a few points he makes in the book.

• Avoid sarcasm, scorn, and ridicule. Use humor cautiously. Hold back insult. No one admires the cynic, the scoffer, the mocker, the small, and the petty. Giving respect to one’s opponent elevates us. Those who insult and slight do so from low places. Remember: Respect is reciprocal. The employment of humor can be the most devastating of all weapons in an argument. Humor is omnipotent when it reveals the truth. But beware: attempting to be funny and failing is one of the most dangerous of all strategies.

• Logic is power. If logic is on your side, ride it–ride it all the way. If logic is not on your side, if logic leads to an unjust result, it will have no power. As Samuel Butler said, “Logic is like the sword–those who appeal to it shall perish by it.” Logic does not always lead to truth or justice. Logic defeats spontaneity. Logic is often dull and is more comfortable with the dead, for it is often without spirit. Do not give up creativity for logic. However, the creative mind will soon see that creativity is often served by logic.

• Action and winning are brothers. The worst of head-on attacks is often better than the most sophisticated defense. Never permit your opponent to take control. Do not defend when you can attack. Counter punching is for boxers, and counterpunchers most often lose. The great champions of the world take control. The great generals attack first, and attack again. Take the initiative. Do something. But with those we love, the best attack is often to attack with love, and, as we shall see, winning is often accomplished by the art of losing.

• Admit at the outset the weak points in your argument. You can expose your weaknesses in a better light than your opponent, who will expose them in the darkest possible way. An honest admission, having come from you, not only endows you with credibility, it also leaves your opponent with nothing to say except what you have already admitted.

• Understand your power. Give yourself permission–only to win. But remember, arrogance, insolence, and stupidity are close relatives.

Jeff Ashton Exposed

MISCONDUCT

Jeff Ashton was most known for introducing DNA into the courtroom in the 1980’s, and, unfortunately, his cameo appearances on HLN as well. But Ashton was really thrust into the spotlight in the Casey Anthony case.

Jeff Ashton committed egregious prosecutorial misconduct in the Casey Anthony case. To top himself, he then retired, wrote a book, and then unretired. He’s been rewarded for this misconduct and is now the 9th Circuit State Attorney in Florida.

Casey Anthony was found not guilty of all charges stemming from the disappearance and death of her daughter, Caylee Anthony.

While nobody can say for sure what happened, we do know that prosecutors Jeff Ashton and Linda Drane-Burdick did as much as they could, with Judge Belvin Perry’s collusion, to convict her — including committing perjury.

Jeff Ashton and and Linda Drane-Burdick knowingly lied under oath during the Casey Anthony trial. The designer of the software, John Bradley, is the chief software developer for Cacheback, now owned by SiQuest, the owner of the software program used by the Orange County Sheriff’s department to determine how many times Ms. Anthony had searched for information on the use of chloroform. Bradley also gave expert testimony with respect to the same at the trial.

Subsequent to Bradley’s testimony, however, during a redesign of the software program, he discovered that the program used in the investigation had erred and that, in fact, the computer had only conducted a Google search for the word 1 time leading to a website that was also visited just one time – a considerable distinction from the 84 times the prosecution alleged. Drane-Burdick scoffed at the claim, and continued to lie under oath, claiming Anthony searched for chloroform 84 times.

While Ashton retired, wrote a book, the unretired, both he and Drane-Burdick were unscathed by this egregious perjury, and it’s largely been swept under the rug, as they remain in power in Florida.

This once again shows the tremendous amount of powers that prosecutors and judges are gaining, which result in the deprecation of the constitutional civil rights of all Americans.

ASHLY MADISON SCANDAL

The holier than thou family man and top prosecutor was a paid member of the cheating website dating back to 2013.

By Jacob Engels

When hackers released the membership data for the "dating" website Ashley Madison, which functions as a married dating website encouraging extramarital affairs, I was certain that we would find a few Florida politicos on the list. However, when we came across the account information for a user named Jeff Ashton, we did not believe it was true.

Many probably remember Jeff Ashton as the assistant state attorney who rose to international fame after miffing the prosecution of suspected child killer Casey Anthony. He would later write a book and leverage his fame to defeat his boss in an election to become State Attorney for Orange and Osceola Counties.

READ Presumed Guilty Casey Anthony: The Inside Story

Seriously, I just started the audio book last night, and let me tell you it has been super interesting.

It's always best to hear EVERYONE'S side of the story. It's amazing just how one sided the media was in this case. Remember there's at least 3 sides to every story... side "A", side "B", and the TRUTH.

Another thing that is great about this book is everything you can learn from it. Finding the best expert witnesses, jury selection, taking depositions, filing motions, direct and cross examinations, opening and closing statements, how to and how not to act in the court room, and a lot more.

Two Pro Se Murder Defendants Found Not Guilty

Lee Anthony Evans 

On hiring a good attorney, onetime barrister Abraham Lincoln once said: “He who represents himself has a fool for a client.” Well, Abe might have been honest, but he wasn’t always right. And Lee Anthony Evans is no fool.

The 58-year-old Newark, N.J., brickmason has been acquitted in the 1978 murder of five teenagers in a case that went unsolved for a generation and bewildered the city. “It’s a situation where I heard them say not guilty, but the way they put a horrible thing on you, you still feel guilty, ” he told the New Jersey Star-Ledger on Wednesday.

That Evans was acquitted in the case, however, is not as remarkable as the fact that he successfully defended himself, proving that the testimony against him was not plausible.

Prosecutors claimed that Evans murdered the teens by locking them in an abandoned home and setting it on fire. They said he did it in retaliation for the boys stealing marijuana from him a few days earlier. The bodies of the teenagers were never found, and the homicides remained a cold case for decades. It was classified as a missing persons case until two detectives, always haunted by what happened, decided to reopen it in 2008.

That’s when Evans’s cousin, Philander Hampton, 54 — a career criminal seeking a plea deal in exchange for a 10-year jail term and $15,000 in relocation money — confessed to the crime, telling authorities that he helped Evans trap the teens. Hampton testified that the boys, who often did odd jobs for Evans, had come to the house thinking they would be moving boxes and instead were sealed in a closet, after which Evans poured gasoline around the house and lit it with a match, torching the home.

But since there were no bodies and no DNA evidence linking Evans to the crime, the testimony was already deemed questionable. Evans and attorney Bukie Adetula, who helped him prepare his defense, pointed out Hampton’s long criminal record — he had already done 10 years in prison for robbery and admitted on the stand that he had been a heroin addict, who also sold dope out of the house where the crime supposedly took place.

Hampton’s testimony during the trial was so inconsistent that, despite needing assistance with questioning, Evans was able to convince a jury in his final arguments that Hampton was not a credible witness.

Evans, who always maintained his innocence and had earlier accused Essex County district attorneys and Newark Mayor Cory Booker of corruption, said he was still anguished over the accusation. “It’s like someone put you in the oven and burned you up. You can’t undo that.”

Read Original Times Article Here

Harold J. Stewart

It's an axiom known by every lawyer and judge in every courthouse in the land: A man who represents himself in court has a fool for a client.
Try telling that to Harold J. Stewart.

Stewart, a 42-year-old high school dropout, defended himself in a murder case in Prince George's County, where he was accused of beating a sleeping man to death with a baseball bat.

The trial lasted three days. Stewart called no witnesses. The jury deliberated less than an hour.
The verdict: Not guilty of first-degree murder. Not guilty of second-degree murder.
"Everybody told me I was crazy to represent myself," Stewart said in an interview. "I had no choice. They were obstructing my rights."

The obstructionists, in Stewart's view, included county prosecutors, the trial judge, the assistant public defender who represented him at his first trial (which ended in a mistrial), the private defense lawyer who represented him between the two trials, jail officials he says unfairly denied him access to the law library and the state Attorney Grievance Commission.

Victories such as Stewart's are exceedingly rare. Veteran attorneys in suburban Maryland and the District said they had never heard of a pro se defendant -- a term that draws on the Latin phrase meaning "on one's own behalf" -- winning an acquittal in a murder case.
"Oh, wow," Montgomery County State's Attorney John McCarthy said when told of the case. McCarthy said he was not aware of a pro se defendant in Montgomery winning an acquittal in a serious felony in his 27 years as a prosecutor there.

"We certainly have had pro se defendants win trials on charges like drunk driving or disorderly conduct," McCarthy said. "It's the kind of thing your colleagues generally tease you about."
Circuit Court Judge Vincent J. Femia, a judge or prosecutor in Prince George's for 47 years, said he, too, had never heard of such an outcome in a murder case. Regarding the quick acquittal, Femia said, "It would make you wonder about the quality of the case, if a guy who knew nothing about the law could kick your [expletive]."

Through his spokesman, State's Attorney Glenn F. Ivey declined to comment on the case. Assistant State's Attorneys Mary K. Brennan and Dorothy Engel, who prosecuted the case, also declined to comment.

Read More Here

Toni Mac: The laws that sex workers really want

Everyone has an opinion about how to legislate sex work (whether to legalize it, ban it or even tax it) ... but what do workers themselves think would work best? Activist Toni Mac explains four legal models that are being used around the world and shows us the model that she believes will work best to keep sex workers safe and offer greater self-determination. "If you care about gender equality or poverty or migration or public health, then sex worker rights matter to you," she says. "Make space for us in your movements." (Adult themes)

Man Arrested 14 Years After Failing to Return Terrible Video

Don't forget to rewind

MARCH 24, 2016

When Kayla Finley was arrested in 2014 for failing to return the movie “Monster-In-Law,” which she had rented in 2005, I was all over that case because (1) they arrested somebody for not returning a video (2) nine years earlier and (3) the video was “Monster-In-Law,” for God’s sake. I even did an update and thenanother one when the charges were dismissed, because, I mean, when is another story like that one going to come along?

Today.

Providing further evidence that nothing is so ridiculous it can’t someday be outdone—not that you needed more evidence if you’ve been watching the U.S. presidential campaign—on Tuesday, police in North Carolina (1) arrested a man for not returning a video (2) 14 years earlier and (3) the video was “Freddy Got Fingered,” for God’s sake. According to WSOC, James Myers was stopped for a broken tail-light, which resulted in a license check, which resulted in this:

“The officer said, ‘I don’t know how to tell you this but there’s a warrant out for your arrest from 2002. Apparently you rented the movie “Freddy Got Fingered” and never returned it.’ I thought he was joking,” said Meyers.

Nope. The “crime” is “failure to return hired property,” basically the same one with which Kayla Finley was charged.  If you rent or hire “any horse, mule or other like animal, or any buggy, wagon, truck, automobile, or other vehicle, … tool, or other thing of value,” and willfully fail to return the same when time is up, that, my friend, is a Class 3 misdemeanor. (I just noticed it’s also against the law there to vandalize a cave, but I am really trying to stay more focused.) While the law is not a joke, the idea that somebody might actually be prosecuted for failing to return a video—or, let’s say, library books—is something about which people might indeed joke.

And to his credit, the officer who stopped Meyers obviously saw the humor in the situation. He also did not arrest Meyers, letting him take his daughter to school and go to work as long as he promised to “turn himself in” later that day. So, a reasonable response to a ridiculous situation, allowing the citizen to go in when convenient and work out the problem that way, rather than cuffing and arresting him for a late video, like they did to Finley. And Meyers kept his promise, visiting the station later that day.

Where they promptly cuffed and arrested him. He has a court date on April 27.

The story is so similar to Finley’s that I am able to recycle many of the jokes I made then, but sufficiently different to justify doing that (in my mind). For example, I can say the first mistake the defendant made was renting this horrible movie in the first place. But while “Monster-In-Law” sucked—it has a 16% rating at Rotten Tomatoes, and Roger Ebert said he tried to enjoy it but kept being “interrupted by bulletins from my conscious mind, which hated it”—“Freddy Got Fingered” has an 11% rating, and Roger Ebert called it “a vomitorium consisting of 93 minutes of Tom Green doing things that a geek in a carnival sideshow would turn down.” “Six minutes into the film,” Ebert continued, “his character leaps from his car to wag a horse penis,” and things go way downhill from there. Critic Consensus: “a significant number of critics are calling Tom Green’s extreme gross-out comedy the worst movie they have ever seen.” So, renting it is a terrible idea, even setting aside the possibility doing so may lead to your arrest in some future decade.

Finley also made the mistake of trying to be a good citizen, not by complying with an officer’s instructions as Meyers did, but by going to the station to report a crime (a real one). One routine check later, cuffed and arrested for failing to return a video. An equally unsurprising similarity is that to the extent there was a “victim” here, it no longer exists, because the video store involved has long since closed. Also, prosecuting Meyers now would likely violate his Sixth Amendment right to a speedy trial, which we discussed in Finley’s case here. And, of course, we can also say that in both cases, having watched the video in question, the defendant has already suffered enough.

The major difference with Finley’s case is that North Carolina has a statute of limitations—which, bizarrely, South Carolina does not—and misdemeanors must be prosecuted within two years of the offense. For that reason, too, why they felt the need to cuff, arrest, and process Meyers under the circumstances is puzzling, although at least he didn’t have to spend the night in jail like Finley did. “They’re not focusing on the crimes I think they should be focusing on,” Meyers commented, and that seems right.

In what is presumably an effort to atone for his own crimes, Tom Green has offered to pay the fine (the criminal fine, not the late fee) if one is imposed on Meyers. At least once they told him the max was $200, that is. He also said he would “put in a good word” with the court, but it’d be safer to just have him pay the fine from a distance.

Using and Objecting to Evidence

HIP-POCKET LIST OF +70 BASIC GENERIC OBJECTIONS

(Best for Use in Jurisdictions Using the Federal Rules of Evidence as a Model)

Note: There are many more potential objections than the ones listed below, e.g., during jury voir dire,  you might object to opponent impermissibly attempting to commit or pledge a prospective juror to a particular result, in opening statement, you might object to counsel arguing the case, indirect or cross-examination, you might object to the opponent making disparaging sidebar remarks, not addressed to the court, while you are questioning a witness, in jury argument you might object to the opponent arguing facts that are not supported by evidence, expressing her personal opinion, etc. That said, here's a list of some basic objections that recur in criminal trials across the country:

AMBIGUOUS (SEE VAGUE)

ANSWER NON-RESPONSIVE

ANSWER EXCEEDS (GOES BEYOND) SCOPE OF QUESTION AND CONSTITUTES A VOLUNTEERED STATEMENT BY THE WITNESS

ARGUMENT IMPROPER (E.G., REFERS TO FACTS NOT IN EVIDENCE, MISSTATES EVIDENCE, MISQUOTES WITNESS, VOUCHES FOR WITNESS, INDICATES PERSONAL BELIEF OR OPINION OF COUNSEL, UNFAIRLY PREJUDICIAL, COMMENT ON DEFENDANT'S FAILURE TO TESTIFY, INDIRECT ATTACK ON ACCUSED BY ATTACKING INTEGRITY OF DEFENSE COUNSEL; [For specific objections to  JURY ARGUMENT ]  

ARGUMENTATIVE IN CONTENT AND TONE WITHOUT ASKING FOR NEW INFORMATION; USING HIS/HER QUESTION TO ARGUE THE CASE

ASKING ONE WITNESS TO COMMENT ON THE VERACITY OF ANOTHER WITNESS' TESTIMONY IMPROPERLY INVADES THE PROVINCE OF THE JURY TO DETERMINE WITNESS CREDIBILITY AND IS IMPROPER CHARACTER EVIDENCE. (EXAMPLE: WHERE ONE WITNESS IS ASKED WHETHER ANOTHER WITNESS LIED OR TOLD THE TRUTH) [Note: There are lots of cases on this, but prosecutors seem to have a proclivity for such "war the officer lying" questions on cross of the defendant, e.g., United States v. Geston, 299 F.3d 1130 (9th Cir. 2002);United States v. Sullivan, 85 F.3d 743 (1st Cir. 1996); United States v. Boyd, 54 F.3d 868 (D.C. Cir. 1995); United States v. Richter, 826 F.2d 206 (2nd Cir. 1987), and for "was the other officer telling the truth" questions on direct of officers, e.g., United States v. Sanchez-Lima, 161 F.3d 545 (9th Cir. 1998).]

ASKING A LAY WITNESS TO PROVIDE A PERSONAL EVALUATION OF EVIDENCE ADDUCED BY ANOTHER  WITNESS, ABOUT WHICH EVIDENCE THE WITNESS HAS NO PERSONAL OR EXPERT KNOWLEDGE

ASSUMING FACTS NOT IN EVIDENCE (LOADED QUESTION THAT PREVENTS THE WITNESS FROM HAVING THE OPPORTUNITY TO DENY THE EXISTENCE OF THE ASSUMED FACT)

ASKED AND ANSWERED (SEE REPETITIOUS)

AUTHENTICATION LACKING OR IMPROPER (FAILURE TO IDENTIFY ITEM OF EVIDENCE, E.G., WRITING,  AND SHOW ITS LOGICAL RELEVANCE)  (SEE FAILURE TO LAY PROPER FOUNDATION) 

BADGERING THE WITNESS (ALSO, QUARRELING WITH , ARGUING WITH, SHOUTING AT, BULLYING, LOOMING OVER, AND THREATENING) 

BEST EVIDENCE RULE VIOLATED (SEE ALSO, "ORIGINAL WRITING" RULE)

BEYOND SCOPE OF DIRECT (IN JURISDICTIONS THAT LIMIT THE SCOPE OF CROSS TO THE SUBJECT  MATTER OF THE DIRECT AND MATTERS AFFECTING CREDIBILITY OF THE WITNESS)

BILL OF RIGHTS VIOLATED AND EXCLUSIONARY RULE  APPLICABLE [SUGGESTION: PRINT THE BILL OF RIGHTS FROM THE CCJA PAGE AND PUT IT IN YOUR TRIAL NOTEBOOK SO THAT YOU MAY CITE THE COURT THE LANGUAGE OF A PARTICULAR RIGHT THAT HAS BEEN VIOLATED BY THE GOVERNMENT IN OBTAINING EVIDENCE.] (SEE ILLEGAL SEARCH AND SEIZURE, ILLEGAL IDENTIFICATION, CONFESSION INVOLUNTARY AND WITHOUT PROPER WARNINGS)

CHAIN OF CUSTODY NOT PROPERLY ESTABLISHED (PARTICULARLY WHEN ITEM IS FUNGIBLE AND THUS EASILY ALTERABLE AND NO SINGLE WITNESS CAN IDENTIFY THE ITEM WITH PERSONAL KNOWLEDGE)  

CHARACTER EVIDENCE IMPROPER (E.G., TO ESTABLISH PROPENSITY)

COMPOUND QUESTION THAT CONTAINS TWO OR MORE QUESTIONS WITHIN A SINGLE QUESTION

COMMENT ON EVIDENCE BY JUDGE

COMMENT ON DEFENDANT'S POST-ARREST SILENCE FOR IMPEACHMENT PURPOSES WHEN DEFENDANT REMAINS SILENT AFTER BEING GIVEN MIRANDA WARNINGS VIOLATES DUE PROCESS [Doyle v. Ohio, 426 U.S. 610 (1976);but see  Jenkins v. Anderson, 447 U.S. 231 (1980) okay to impeach accused with with prior prearrest silence, e.g., delay in reporting offense; Anderson v. Charles, 447 U.S. 404 (1980) okay to impeach accused with prior inconsistent statement after Miranda warning. See Impeachment]

CONFESSION OBTAINED WITHOUT REQUIRED WARNING AND VOLUNTARY WAIVER OF RIGHTS UNDER FIFTH AND SIXTH AMENDMENTS

CONFESSION INVOLUNTARY (SEE INVOLUNTARY CONFESSION)

CONFESSION OF CO-DEFENDANT INADMISSIBLE [See Bruton v. United States, 391 U.S. 123 (1968); Gray v. Maryland, 523 U.S. 185 (1998); Motions]

CONFRONTATION CLAUSE OF SIXTH AMENDMENT VIOLATED  BY PROSECUTOR'S OFFER OF OUT-OF-COURT STATEMENT FOR A HEARSAY PURPOSE, I.E., FOR THE TRUTH OF THE MATTER ASSERTED IN THE STATEMENT, NOTWITHSTANDING THAT THE OUT-OF-COURT STATEMENT MAY APPEAR TO FIT WITHIN AN EXCEPTION OR EXEMPTION TO THE HEARSAY RULE  [See Crawford v. Washington, 541 U.S. 36 (2004); See also the discussion at Motions] 

• UNDER THE Crawford Rule YOU ARE LOOKING FOR 4 CONDITIONS: 1. THE OUT-OF-COURT STATEMENT OF A WITNESS IS BEING OFFERED BY THE PROSECUTION AGAINST THE ACCUSED IN A CRIMINAL CASE  FOR THE TRUTH OF THE MATTER ASSERTED IN THE OUT-OF-COURT STATEMENT; 2. THERE WAS NO OPPORTUNITY FOR THE DEFENSE TO CROSS-EXAMINE THE WITNESS AT THE TIME OF THE STATEMENT; 3.AT THE TIME OF THE TRIAL WHEN THE OUT-OF-COURT-STATEMENT IS OFFERED, THE DECLARANT, I.E., THE PERSON WHO MADE THE OUT-OF-COURT STATEMENT, IS UNAVAILABLE AS A WITNESS; AND 4. THE OUT-OF-COURT STATEMENT OF THE UNAVAILABLE DECLARANT IS CLASSIFIED AS "TESTIMONIAL" BY THE USSC. 

• WHAT IS A "TESTIMONAL" OUT-OF-COURT STATEMENT? Crawford, A MURDER PROSECUTION, DIDN'T TELL US MUCH, OTHER THAN THE FACT THAT MRS. CRAWFORD'S STATEMENTS TO POLICE THAT WERE CONTRADICTORY TO HER DEFENDANT HUSBAND'S STORY WERE "TESTIMONIAL"; BECAUSE SHE ASSERTED HER MARITAL PRIVILEGE AND DID NOT TESTIFY AT TRIAL, IT WAS CONSTITUTIONAL ERROR FOR THE COURT TO RECEIVE HER OUT-OF -COURT STATMENT OVER THE DEFENSE CONFRONTATION CLAUSE OBJECTION. THE COURT SUGGESTED THAT AFFIDAVITS, DEPOSITIONS, PRIOR TESTIMONY THAT THE DEFENDANT WAS UNABLE TO CROSS-EXAMINE, AND "STATEMENTS THAT WERE MADE UNDER CIRCUMSTANCES WHICH  WOULD LEAD AN OBJECIVE WITNESS REASONABLY TO BELIEVE THAT THE STATEMENTS WOULD BE AVAILABLE FOR USE IN A LATER TRIAL" WOULD BE CLASSIFIED AS "TESTIMONIAL" OUT-OF -COURT STATEMENTS.

• LITTLE BY LITTLE, WE ARE FINDING OUT WHAT IS AND ISN'T TESTIMONIAL. WE CAN SURMISE FROM Crawford THAT DYING DECLARATIONS AND STATEMENTS OF CO-CONSPIRATORS WILL NOT BE VIEWED BY THE USSC AS TESTIMONIAL. SINCECrawford, THE USSC HAS ENLIGHTENED US WITH THESE CASES: Davis v. Washington,547 U.S. 813 (2006) HOLDING THAT AN OUT-OF-COURT STATEMENT MADE FOR THE PRIMARY PURPOSE OF SECURING HELP IN AN ONGOING EMERGENCY, E.G., A 911 CALL REPORTING AN ONGOING ASSAULT, WAS NOT TESTIMONIAL; Hammon v. Indiana, DECIDED AS A COMPANION CASE TO Davis INVOLVED A STATEMENT BY A DOMESTIC ASSAULT VICTIM UNDER CIRCUMSTANCES VERY SIMILAR TO Crawford; THE STATEMENT OF MS. HAMMON WAS HELD TO MEET ALL OF THE Crawford REQUIREMENTS AS WAS THEREFORE INADMISSIBLE.  SEE ALSO Hammon v. Indiana, 829 N.E.2D 444 (IND 2005); Michigan v. Bryant, __ U.S. __, 131 S.CT. 1143 (2011), ANOTHER ONGOING EMERGENCY CASE WITH A NONTESTIMONIAL OUT-OF-COURT STATEMENT, THIS ONE WHERE A MORTALLY WOUNDED VICTIM MADE THE STATEMENT TO A COP DESCRIBING THE SHOOTER, ID'ING THE SHOOTER, AND THE LOCATION OF THE SHOOTING; Wharton v. Bockting, 549 U.S. 406 (2007) HOLDING THAT CRAWFORD WAS NOT RETROACTIVE; Giles v. California, 554 U.S. 353 (2008) WHICH SEEKS TO CLARIFY THE FORFEITURE RULE, WHEREBY A DEFENDANT FORFEITS HIS SIXTH AMENDMENT RIGHT TO CONFRONT A WITNESS AGAINST HIM WHEN A JUDGE DETERMINES THAT A WRONGFUL ACT BY THE DEFENDANT MADE THE WITNESS UNAVAILABLE TO TESTIFY AT TRIAL; Melendez-Diaz v. Massachusetts, 557 U.S. 1256 (2009) (KENNEDY, ROBERTS, BREYER AND ALITO DISSENTING)  WHICH HELD THAT A FORENSIC LABORATORY REPORT IN THE FORM OF AN AFFIDAVIT STATING THAT A SUSPECT SUBSTANCE WAS COCAINE RANKED AS TESTIMONIAL; THE PROSECUTION REPORT HAD BEEN CREATED SPECIFICALLY TO SERVE AS EVIDENCE IN A CRIMINAL PROCEEDING AND ABSENT STIPULATION, THE PROSECUTION COULD NOT INTRODUCE SUCH A REPORT WITHOUT OFFERING A LIVE WITNESS COMPETENT TO TESTIFY TO THE TRUTH OF THE STATEMENTS MADE IN THE REPORT; THE COURT SAID "DOCUMENTS KEPT IN THE REGULAR COURSE OF BUSINESS MAY ORDINARILY BE ADMITTED AT TRIAL DESPITE THEIR HEARSAY STATUS. BUT THAT IS NOT THE CASE IF THE REGULARLY CONDUCTED BUSINESS ACTIVITY IS THE PRODUCTION OF EVIDENCE FOR USE AT TRIAL"; Bullcoming v. New Mexico, __ U.S. __, 131 S.CT. 2705 (2011) (KENNEDY, ROBERTS, BREYER, ALITO DISSENTING) WHERE THE QUESTION PRESENTED WAS WHETHER THE CONFRONTATION CLAUSE PERMITS THE PROSECUTION TO INTRODUCE A FORENSIC LABORATORY REPORT CONTAINING A TESTIMONIAL CERTIFICATION - MADE FOR THE PURPOSE OF PROVING A PARTICULAR FACT - THROUGH THE IN-COURT TESTIMONY OF A SCIENTIST WHO DID NOT SIGN THE CERTIFICATION OR PERFORM OR OBSERVE THE TEST REPORTED IN THE CERTIFICATION; THE USSC HELD THAT SURROGATE TESTIMONY OF THAT ORDER DOES NOT MEET THE CONFRONTATION REQUIREMENT, I.E., THE ACCUSED IS ENTITLED TO BE CONFRONTED WITH THE ANALYST WHO MADE THE CERTIFICATION, UNLESS THAT ANALYST IS UNAVAILABLE AT TRIAL AND THE ACCUSED HAD A PRETRIAL OPPORTUNITY TO CROSS-EXAMINE THAT PARTICULAR SCIENTIST. [Note: Keep an eye out for the decision in Williams v. Illinois, cert granted 131 S. Ct. 3090 (2011), (1) where a DNA expert who did not perform the DNA test testified at trial and relied upon the forensic opinion/results of the non-testifying analyst in arriving at an in-court opinion.]

• NOTE THAT UNDER Crawford EVEN THOUGH AN OUT-OF-COURT STATEMENT FITS INTO A RECOGNIZED HEARSAY EXCEPTION,  THE CONFRONTATION CLAUSE OF THE SIXTH AMENDMENT BARS USE OF TESTIMONIAL OUT-OF-COURT STATEMENT BY AN UNAVAILABLE WITNESS WHOM THE  DEFENDANT HAS NOT HAD THE OPPORTUNITY TO CROSS-EXAMINE, IRRESPECTIVE OF WHETHER THE  STATEMENT IS DEEMED RELIABLE; THE STATEMENT IS INADMISSIBLE AS UNCROSSEXAMINED. SEE Crawford v. Washington, 541 U.S. 36 (2004) 

• NOTE: Here is a 164-page pdf compendium containing summaries of state and federal cases addressing the Confrontation Clause decided after Crawford v. Washington; these summaries include every Supreme Court case since Crawford and the state and federal cases granting relief on Confrontation Clause grounds through January 1, 2011.   

CONFRONTATION, FACE-TO-FACE DENIED WHEN WITNESS OR DEFENDANT IS BLOCKED OR SCREENED FROM LIVE CONFRONTATION [Coy v. Iowa, 487 U.S. 1012 (1988) holding that use of closed-circuit live TV to block the child witness' view of the defendant was a confrontatin clause violation; but see, Maryland v. Craig, 497 U.S. 836 (1990) which permitted use of blocking or screening the witness from seeing the defendant provided there is a particularized showing that such blockageis likely to avoid trauma to the witness.]

CONFUSION OF ISSUES

CONTINUING (RUNNING) OBJECTION

COUNSEL AT TRIAL, RIGHT TO PROCEED WITHOUT  [See Faretta v. California, 422 U.S. 806 (1975); McKaskle v. Wiggins, 465 U.S. 168 (1984) cannot refuse stand-by counsel; but seeMartinez v. Court of Appeal of California, 528 U.S. 152 (2000) no constitutional right to self-representation on appeal. ]

CROSS-EXAMINATION  TO SHOW BIAS IMPROPERLY DENIED [See Davis v. Alaska,  415 U.S. 308 (1974).]

CROSS-EXAMINATION DENIED BY TRIAL COURT LIMITING COUNSEL'S CONTACT WITH WITNESS [See Delaware v. Van Arsdall, 475 U.S. 673 (1986); Perry v. Leeke, 488 U.S. 272 (1989)]

CUMULATIVE EVIDENCE, NEEDLESSLY, IN THAT IT FAILS TO ADD TO THE PROBITY OF PREVIOUSLY ADMITTED EVIDENCE

DISCOVERY VIOLATION [Brady v. Maryland, 373 U.S. 83 (1963);United States v. Agurs, 427 U.S. 97 (1976); United States v. Bagley, 473 U.S. 667 (1985); Kyles v. Whitley, 514 U.S. 419 (1995);Strickler v. Greene, 527 U.S. 263 (1999) materiality, i.e., reasonable probability of different result,  required; See Pretrial Practice]   

DISPLAYING EVIDENCE PRIOR TO ITS INTRODUCTION OR CONTINUING TO DISPLAY EVIDENCE AFTER IT HAS BEEN USED 

EXPERT TESTIMONY NOT ADMISSSIBLE (E.G., UNDERLYING FACTS OR DATA INSUFFICIENT; FIELD OF SCIENTIFIC, TECHNOLOGICAL OR OTHER SPECIALTY OF EXPERTISE NOT RELIABLE AND/OR RELEVANT BASED ON DAUBERT FACTORS SUCH AS: (1) WHETHER THE PRINCIPLE HAS BEEN TESTED, (2) THE RESULTS OF PUBLISHED PEER REVIEW, (3) ERROR RATES AND (4) GENERAL ACCEPTANCE; OLD FRYE - United States v. Frye, 293 F. 1013 (D.C. 1923) (1) RULE REQUIRES GENERAL ACCEPTANCE) [See Expert]   

EXPERT WITNESS NOT COMPETENT

FAILURE TO LAY PROPER FOUNDATION FOR ADMISSION OF TESTIMONY, EXHIBIT, OR DOCUMENT (PREDICATE)   (SEE LACK OF EVIDENTIARY PREDIATE)

FINAL ARGUMENT IMPROPER (SEE ARGUMENT IMPROPER; OBJECTIONS TO ARGUMENT)

GOADING THE DEFENSE INTO MOVING FOR A MISTRIAL, PROSECUTORIAL CONDUCT INTENDED TO AND IN FACT SUCCEEDING IN  [Note:  Oregon v. Kennedy, 456 U.S. 667 (1982) established that where the prosecutor's conduct is intended to "goad" the defense into moving for a mistrial, the defense may successfully claim that a retrial is barred by the Fifth Amendment protection against double jeopardy.  The idea behind this ground for objection is that prosecutors shouldn't be permitted by intentional misconduct to force a mistrial that will allow them to retry the accused when conditions are better, e.g., a missing witness may be found, a more conviction-oriented jury may be empanelled, etc. In my home state, Texas, the rule also applies by case law to "reckless" goading.]

HABIT NOT ESTABLISHED, IMPROPER HABIT EVIDENCE BECAUSE 

HEARSAY, QUESTION CALLS FOR OR ANSWER CONTAINS (1 - HISTORY OF THE RULE AGAINST HEARSAY -  TREASON TRIAL OF SIR WALTER RALEIGH), (2 - VARIOUS EXCEPTIONS TO RULE AGAINST HEARSAY DISCUSSED)

HEARSAY WITHIN HEARSAY

HEARSAY, EVIDENCE CONTAINS

HEARSAY, EVIDENCE IS THE RESULT OF AND IS BASED UPON

ILLEGAL SEARCH AND SEIZURE IN VIOLATION OF FOURTH AMENDMENT

ILLEGAL IDENTIFICATION

INVOLUNTARY CONFESSION IN VIOLATION OF DUE PROCESS OR LAW

IMMATERIAL IN THAT IT IS OF NO CONSEQUENCE TO ANY ISSUE IN THE CASE (COUPLE WITH IRRELEVANT)    

IMPEACHMENT IMPROPER ( IMPROPER OPINION OR REPUTATION CHARACTER EVIDENCE - RULE 404 FRE, IMPROPER PROOF OF PRIOR CONVICTION - RULE 609 FRE, IMPROPER FOUNDATION FOR PROOF OF WITNESS' PRIOR INCONSISTENT STATEMENT - RULE 613FRE,IMPROPER PROOF OF UNTRUTHFULNESS -RULE 608FRE, IMPEACHMENT WITH AN IRRELEVANT OR COLLATERAL MATTER - RULE 403 FRE)

INCOMPETENCY OF WITNESS (E.G., LACK OF PERCEPTION, LACK OF MEMORY, INABILITY TO UNDERSTAND NATURE AND OBLIGATION OF OATH - RULE 603 FRE, INABILITY TO NARRATE OR COMMUNICATE IN LANGUAGE OF COURT, LACK OF PERSONAL KNOWLEDGE - RULE 602 FRE, LACK OF EXPERTISE TO TESTIFY AS AN EXPERT - RULE 702 FRE ) [Note that thecompetency under RULE 601 FRE is that "every person is competent to be a witness unless these rules provide otherwise. But in a civil case, state law governs the witness’s competency regarding a claim or defense for which state law supplies the rule of decision." So children, retarded persons, insane persons, etc., are not automatically  disqualified to testify in federal criminal cases.]

IRRELEVANT IN THE SENSE THAT IT DOES NOT MAKE A FACT OF CONSEQUENCE TO THE LAWSUIT ANYMORE OR LESS LIKELY - RULE 401 FRE 

JUDICIAL NOTICE IMPROPER - RULE 201 FRE 

JUDGE ASKING QUESTION THAT IMPROPERLY INFLUENCES THE JURY AND/OR INTERFERES WITH COUNSEL'S PRESENTATION OF CASE ( SEE COMMENT ON WEIGHT OF EVIDENCE - TOLERATED IN SOME JURISDICTIONS, E.G., FEDERAL COURT - SEE RULE 614 FRE)

LACK OF EVIDENTIARY PREDICATE (FOUNDATION) FOR ADMISSION OF TESTIMONY, EXHIBIT, OR DOCUMENT 

LACK OF PERSONAL KNOWLEDGE (WITNESS, OTHER THAN EXPERT, DOES NOT HAVE FIRST-HAND INFORMATION) - RULE 602 FRE

LAY WITNESS OPINION AND/OR INFERENCE IMPROPER; NOT HELPFUL TO CLEAR UNDERSTANDING OF WITNESS' TESTIMONY OR DETERMINATION OF FACT IN ISSUE, NOT RATIONALLY BASED ON PERCEPTION OF WITNESS (E.G., SEE RULE 701 FRE) 

LEADING QUESTION ON DIRECT EXAMINATION (QUESTION SUGGESTS OR COAXES DESIRED ANSWER) - RULE 611(C) FRE

LEGAL CONCLUSION (QUESTIONS CALLS FOR OR ANSWER CONTAINS) - RULE 

LIMITED PURPOSE OR PARTY, EVIDENCE ADMISSIBLE ONLY FOR A LIMITED PURPOSE OR LIMITED TO A PARTICULAR PARTY (AND OFFERED GENERALLY OR AGAINST ALL PARTIES) - RULE 105 FRE 

MISLEADING THE JURY

MISSTATEMENT (MISCHARACTERIZATION) OF EVIDENCE BY COUNSEL (OR WITNESS)

NON-RESPONSIVE ANSWER

OFFER TO PLEAD GUILTY OR NOLO CONTENDERE INADMISSIBLE (SEE RULE 410 FRE)

OPENING STATEMENT IMPROPER ( E.G., ARGUMENTATIVE, INVADES PROVINCE OF COURT BY PROVIDING INSTRUCTIONS ON LAW, STATES PERSONAL OPINION OR BELIEF OF COUNSEL, PROSECUTOR SPECULATING ABOUT DEFENSE EVIDENCE) [The CCJA OPENING STATEMENT page will provide a longer list of possible objections.] 

OPINION ON ULTIMATE ISSUE

PRIOR BAD ACTS, MISCONDUCT, WRONGS, OR OTHER CRIMES (UNCHARGED MISCONDUCT, EXTRANEOUS OFFENSES)  IMPROPER TO SHOW PROPENSITY/DISPOSITION (SEE RULE 404(B) FRE)

PRIOR CONVICTION INADMISSIBLE   

PRIOR SEXUAL BEHAVIOR IMPROPER

PERSONAL KNOWLEDGE OF LAY WITNESS LACKING (SEE LACK OF PERSONAL KNOWLDGE)

POST-ARREST SILENCE AGAINST THE DEFENDANT, USE OF DEFENDANT'S - [See above re Comment on Post-Arrest Silence; see also Doyle v. Ohio, 426 U.S. 610 (1976); Fletcher v. Weir, 455 U.S. 603 (1982)]

PRIVILEGED COMMUNICATION (E.G., ATTORNEY-CLIENT; DOCTOR-PATIENT (IF ANY); CLERGY; INFORMANT'S IDENTITY; SPOUSAL CAPACITY; SPOUSAL OR MARITAL  COMMUNICATION; SELF-INCRIMINATION)

QUESTION HAS BEEN ANSWERED BY WITNESS AND IS NOW GIVING AN ANSWER THT GOES BEYOND THE QUESTION POSED  (SEE WITNESS HAS ANSWERED)

QUESTION ON CROSS-EXAMINATION GOES BEYOND SCOPE OF DIRECT AND ISSUES OF WITNESS CREDIBILITY (APPLIES ONLY IN JURISDICTIONS, E.G., FEDERAL COURT, WHERE SCOPE OF CROSS IS LIMITED TO SUBJECT OF DIRECT AND ISSUES RELATED TO WITNESS CREDIBILITY)  

REMAINDER RULE, EVIDENCE OF WRITING OR RECORDED STATEMENT SHOULD NOT IN FAIRNESS BE CONSIDERED CONTEMPORANEOUSLY UNDER THE 

RELEVANCE LACKING (SEE IRRELEVANT) ( E.G., HAS NO TENDENCY TO MAKE EXISTENCE OF ANY FACT OF CONSEQUENCE TO THE CASE MORE OR LESS PROBABLE THAN IT WOULD BE WITHOUT THE EVIDENCE)

RELIGIOUS BELIEFS OR OPINIONS OF WITNESS INADMISSIBLE TO SHOW WITNESS' CREDIBILITY IMPAIRED OR ENHANCED (E.G., SEE RULE 610 FRE)

REPETITIOUS (SEE ASKED AND ANSWERED)

REQUIREMENT OF ORIGINAL VIOLATED ( SEE BEST EVIDENCE RULE, ORIGINAL DOCUMENT RULE)

SENTENCE INCREASE BY THE TRIAL JUDGE ABOVE STATUTORY MAXIMUM VIOLATES SIXTH AMENDMENT RIGHT TO TRIAL BY JURY [ See Blakely v. Washington, 542 U.S. 296 (2004)]

SEQUESTRATION OF WITNESSES ("THE RULE" OF WITNESSES) VIOLATION (AS WHEN EVIDENCE THAT ANOTHER WITNESS HAS MADE NOTATIONS UPON IS PRESENTED TO A TESTIFIYING WITNESS)

SHACKLING, BINDING , GAGGING, NOT APPROPRIATE UNDER CIRCUMSTANCES [See Illinois v. Allen, 397 U.S. 337 (1970)] 

SIDEBAR REMARK ( SIDEBAR REMARKS ARE STATEMENTS OF COUNSEL  FOR ONE PARTY NOT ADDRESSED TO THE COURT AND TYPICALLY MADE WHILE COUNSEL FOR ANOTHER PARTY IS EXAMINING A WITNESS, ARGUING A QUESTION TO THE COURT OR ADDRESSING THE JURY.)  

SPECULATION (CONJECTURE, GUESS)

SUPPRESSION HEARING TESTIMONY OF ACCUSED NOT ADMISSIBLE AT TRIAL        [Simmons v. United States, 390 U.S. 377 (1968), e.g., testimony given by defendant at suppression hearing to establish "standing" may not be used against her at trial on the issue of guilt; but see Harris v. New York, 401 U.S. 222 (1971) which allows the use of  statements obtained in violation of Miranda for impeachment purposes.] 

TRIAL IN ABSENTIA NOT PERMITTED WHERE DEFENDANT NOT PRESENT  AT BEGINNING OF TRIAL; ACCUSED HAS RIGHT TO BE PRESENT [See Crosby v. United States, 506 U.S. 255 (1993); United States v. Gagnon, 470 U.S. 522 (1985)]

UNDUE DELAY 

UNFAIRLY PREJUDICIAL (E.G. RULE 403 FRE - POTENTIAL DANGER OF "UNFAIR" PREJUDICE SUBSTANTIALLY OUTWEIGHS PROBATIVE VALUE - OBJECTING PARTY HAS BOP; OBJECT THAT THE OTHERWISE ARGUABLY RELEVANT EVIDENCE UNFAIRLY EXAGGERATES THE TRUTH AND TENDS TO IMPROPERLY STIR THE PASSIONS OR SYMPATHY OF THE JURORS) EVEN THOUGH ARGUABLY RELEVANT

VAGUE

WASTE OF TIME

WEARING PRISON GARB VIOLATES DUE PROCESS [See Estelle v. Williams, 425 U.S. 501 (1976)]

WITNESS HAS ANSWERED THE QUESTION AND IS NOW VOLUNTEERING  AN ANSWER TO A QUESTION THAT HASN'T BEEN ASKED 

PRACTICE TIPS FOR MAKING OBJECTIONS

+ TIP 1:  IF YOU ANTICIPATE THAT OBJECTIONABLE MATERIAL WILL BE OFFERED OR INTRODUCED BY THE OPPOSITION, CONSIDER USING A MOTION IN LIMINE TO BRING THIS TO THE ATTENTION OF THE COURT WELL BEFORE THE JURY EVER HEARS ANY REFERENCE TO THE OBJECTIONABLE  MATTER. YOUR  GOAL IS TO SHIELD THE JURY FROM EXPOSURE TO INADMISSIBLE EVIDENCE. (1 - PRESERVING ERROR IN FEDERAL COURT; 13 PAGES)

+ TIP 2: IF YOU MOVE TO EXCLUDE OR SUPPRESS EVIDENCE AND YOUR MOTION TO EXCLUDE OR SUPPRESS IS NOT GRANTED, BE SURE THAT YOU OBTAIN A SPECIFIC PRETRIAL RULING THAT THE TRIAL JUDGE STATES IS DEFINITIVE. OTHERWISE, TO PRESERVE ERROR, YOU WILL HAVE TO OBJECT TO THE ADMISSION OF THE EVIDENCE AGAIN AT THE TIME IT IS OFFERED AT TRIAL. SEE RULE 103 (a) FRE AND TRE. 

+ TIP 3: IF YOU HAVE TRIED UNSUCCESSFULLY TO KEEP THE GOVERNMENT FROM IMPEACHING THE DEFENDANT WITH A PRIOR CONVICTION PURSUANT TO THE INTERNAL BALANCING TEST OF RULE 609, YOU WILL NOT BE ALLOWED TO APPEAL THE COURT'S DECISION TO ALLOW THE IMPEACHMENT, UNLESS YOUR CLIENT TAKES THE STAND AND EXPOSES HIMSELF TO THE IMPEACHMENT. SEE LUCE V. UNITED STATES, 469 U.S. 38 (1984).

+ TIP 4: BE VERY CAREFUL WHEN YOU MAKE A SO-CALLED "RUNNING OBJECTION"; BE CERTAIN THAT YOUR ORIGINAL OBJECTION IS AS PERFECTLY FORMED AS POSSIBLE; DO NOT TREAT YOUR RUNNING OBJECTION AS CARRYING OVER TO ALL WITNESSES; WITH EACH NEW WITNESS WITH WHOM THE OBJECTIONABLE SUBJECT IS RAISED, EXPRESSLY STATE YOUR OBJECTION INTO THE RECORD AND ASK FOR A RUNNING OBJECTION TO ANY SUCH INQUIRIES OF THAT WITNESS.   TEXAS LAWYERS - SEE THIS 4 PAGE ARTICLE  

+ TIP 5: THE REMAINDER RULE AND THE RULE OF OPTIONAL COMPLETENESS DO NOT MAKE OTHERWISE INADMISSIBLE EVIDENCE ADMISSIBLE. REMEMBER THAT THE REMAINDER RULE OF RULE 106 TRE AND FRE ONLY APPLIES TO WRITINGS OR RECORDED STATEMENTS; IF YOU OFFER EVIDENCE OTHER THAN A WRITING OR RECORDED STATEMENT, THE OPPOSITION DOES NOT HAVE A RIGHT AT THE TIME OF THAT OFFER TO INTRODUCE ANOTHER PART OF THAT EVIDENCE, EVEN IF IT IS ADMISSIBLE. THE REMAINDER RULE DOES NOT APPLY UNLESS THE EVIDENCE YOU ARE OFFERING IS A WRITING OR RECORDED STATEMENT. [TEXAS LAWYERS: BE AWARE THAT RULE 107 TRE CREATES AN ADDITIONAL RULE OF EVIDENCE FOR TEXAS TRIALS - THE RULE OF OPTIONAL COMPLETENESS (ROC) NOT CONTAINED IN THE FRE. THE ROC IS BROADER THAN THE REMAINDER RULE OF RULE 106 FRE & TRE. THE ROC APPLIES TO ACTS, DECLARATIONS, AND CONVERSATIONS, AS WELL AS TO WRITINGS AND RECORDED STATEMENTS; HOWEVER, THE ROC DOES NOT ALLOW CONTEMPORANEOUS INTRODUCTION OF SUCH UNWRITTEN OR RECORDED ACTS, DECLARATIONS, AND CONVERSATIONS, ASSUMING THEY ARE OTHERWISE ADMISSIBLE.] 

+ TIP 6: IN LIEU OF ACTUAL EVIDENCE, OFFER TO STIPULATE TO OTHERWISE ADMISSIBLE PRIOR CONVICTIONS ALLEGED FOR ENHANCEMENT. ARGUE THAT THIS WILL PREVENT UNFAIR PREJUDICE, E.G., UNDER RULE 403 FRE & TRE; CITE THE USSC CASE OF OLD CHIEF V. UNITEDSTATES, 519 U.S. 172 (1997). IF THE COURT DENIES YOUR REQUEST FOR AN AGREED STIPLATION OF THE PRIORS, OBJECT THAT THE RULING IS UNFAIRLY PREJUDICIAL IN THAT THE DANGER OF UNFAIR PREJUDICE SUBSTANTIALLY OUTWEIGHS THE PROBATIVE VALUE OF ALLOWING INTRODUCTION OF REAL EVIDENCE OF THE PRIORS.   

+ TIP 7: IF YOUR OPPONENT TRIES TO INTRODUCE A SUMMARY WITHOUT MAKING ARRANGEMENTS FOR YOU TO SEE THE UNDERLYING MATERIALS AT A REASONABLE TIME AND PLACE OUT OF COURT, OBJECT TO THE SUMMARY UNDER RULE 1006 FRE & TRE.

+ TIP 8: OBJECT IF YOUR OPPONENT TRIES TO REQUIRE YOUR WITNESS TO CHARACTERIZE THE TESTIMONY OF ANOTHER WITNESS, E.G., AS WHERE A PROSECUTOR ASKS A DEFENDANT TESTIFYING IN HIS OWN BEHALF WHETHER A POLICE OFFICER WITNESS WAS LYING WHEN THE OFFICER SAID SOMETHING INCRIMINATING ABOUT THE DEFENDANT.  YOUR OBJECTION SHOULD BE THAT THE QUESTION CALLS FOR IMPROPER CHARACTER EVIDENCE.  YOU CAN ALSO ADD THAT THE QUESTION IS ARGUMENTATIVE. YOU CAN ALSO ARGUE THAT IT CALLS FOR IMPROPER OPINION EVIDENCE. THE REASON WHY SUCH A QUESTION CALLS FOR IMPROPER CHARACTER EVIDENCE IS THAT IT ASKS ONE WITNESS TO  COMMENT ON THE CREDIBILITY OF ANOTHER WITNESS IN AN IMPROPER FORM. THE RULES OF EVIDENCE, E.G., RULE 608 FRE & TRE,  MAY ALLOW ONE WITNESS TO VENTURE AN OPINION REGARDING THE TRUTH AND VERACITY OF ANOTHER WITNESS WHEN A SUFFICIENT SHOWING OF FAMILIARITY IS SHOWN; BUT THE RULES DO NOT ALLOW THE OPINION CHARACTER WITNESS TO VENTURE AN OPINION ON THE TRUTH OF THE TESTIMONY OF ANOTHER WITNESS. NEITHER LAY NOR EXPERT WITNESSES SHOULD BE ALLOWED TO TESTIFY THAT ANOTHER WITNESS IS LYING OR FAKING. THAT DETERMINATION IS FOR THE JURY.  IN SUPPORT OF THE OBJECTION, ALSO CITE THE RULE 403 FRE & TRE PROHIBITION AGAINST UNFAIR PREJUDICE AND ARGUE THAT THE PROBATIVE VALUE OF SUCH EVIDENCE IS SUBSTANTIALLY OUTWEIGHED BY THE FACT THAT SUCH A QUESTION UNFAIRLY PLACES THE WITNESS IN SUCH AN UNFLATTERING LIGHT AS TO POTENTIALLY UNDERMINE HIS ENTIRE TESTIMONY. ARGUE THAT OPPOSING COUNSEL SHOULD BE ARTICULATE ENOUGH TO SHOW THE JURY WHERE THE TESTIMONY OF WITNESSES DIFFER WITHOUT HAVING THE  WITNESS COMMENT ON THE CREDIBILITY OF ANOTHER WITNESS.    

+ TIP 9: EVIDENCE OF UNCHARGED CONDUCT ADMISSIBLE UNDER RULE 404(b) FRE & TRESTILL MAY BE EXCLUDED UNDER RULE 403 FRE & TRE IF ITS PROBATIVE VALUE IS SHOWN TO BE SUBSTANTIALLY OUTWEIGHED BY THE DANGER OF UNFAIR PREJUDICE; NOTE THAT THE BURDEN OF PROOF IS ON THE OPPONENT OF THE EVIDENCE, I.E., THE OBJECTING PARTY, NOT THE PARTY, PROPONENT, SEEKING TO INTRODUCE THE UNCHARGED CONDUCT EVIDENCE.

+ TIP 10: RULE 602 FRE & TRE REQUIRING PERSONAL KNOWLEDGE OF ALL FACT WITNESSES OTHER THAN EXPERTS APPLIES TO HEARSAY DCLARANTS AS WELL AS IN-COURT DECLARANTS. YOU MAY OBJECT TO LACK OF KNOWLEDGE ON THE PART OF THE HEARSAY DECLARANT.

+ TIP 11: BE WARY OF DYING DECLARATIONS BY THE PROSECUTION IN JURISDICTIONS WHERE LAW ENFORCEMENT OFFICERS HAVE BEEN TRAINED TO TELL VICTIMS OF HOMICIDAL VIOLENCE, "IT DOESN'T LOOK GOOD, BUDDY. I DON'T THINK YOU'RE GONNA MAKE IT. IS THERE ANYTHING YOU'D LIKE TO SAY ABOUT WHO HURT YOU OR WHY?" SEE THE EXPLANATION OF CRAWFORD ON THE MOTIONS PAGE. [NOTE: UNDER RULE 804(B)(2) FRE, DYING DECLARATIONS ARE ADMISSIBLE IN FEDERAL CRIMINAL CASES ONLY WHEN THE PROSECUTION IS FOR SOME FORM OF CRIMINAL HOMICIDE. ON THE OTHER HAND, TRE 804(B)(2) DOES NOT RESTRICT THE ADMISSIBILITY OF DYING DECLARATIONS TO CRIMINAL HOMICIDE CASES, BUT IT DOES REQUIRE THAT THE DECLARANT BE UNAVAILABLE. THERE IS NO CAUSE OF ACTION RESTRICTION AS TO THE ADMISSIBILITY OF DYING DECLARATIONS IN FEDERAL OR TEXAS CIVIL CASES.]

+ TIP 12: IF YOU WANT TO INTRODUCE EVIDENCE THAT MAY BE CONTROVERSIAL, ANTICIPATE THE EVIDENTIARY PROBLEMS IN ADVANCE AND CONSIDER ALERTING THE JUDGE THAT YOU WISH TO MAKE AN OFFER OF PROOF; YOU CAN FILE A MOTION TO ADMIT IN WHICH YOU EXPLAIN THAT YOU PLAN TO INTRODUCE CERTAIN EVIDENCE AND ANTICIPATE A POSSIBLE OBJECTION TO SUCH EVIDENCE; LET THE COURT KNOW THAT IF THE OPPOSITION'S OBJECTION IS SUSTAINED, YOU WISH TO MAKE AN OFFER OF PROOF OR PROFFER; BE READY TO MAKE  WITNESS OFFER OF PROOF, RATHER THAN A LAWYER OFFER, IF THE OTHER SIDE DEMANDS IT; BE CERTAIN TO GET A RULING ON YOUR OFFER OF PROOF (PROFFER); SOMETIMES JUDGES WILL CHANGE THEIR RULINGS AFTER HEARING THE OFFER OF PROOF AND KNOWING IT MAY NOW BE A GROUND FOR APPEAL. 

+ TIP 13: BE ZEALOUS IN REQUIRING THE COURT TO ENFORCE THE RULES OF THE GAME, BUT BE CONSISTENTLY CIVIL WITH THE COURT IN MAKING YOUR OBJECTIONS. DON'T BE A HYPERCRITICAL, CARPING CENSOR TOO READY TO RAISE OBJECTIONS TO TRIVIAL MATTERS. JUDGES USUALLY HAVE WIGGLE ROOM WITH REGARD TO EVIDENCE. YOUR OVERALL ATTITUDE IN MAKING AND RESPONDING TO OBJECTIONS CAN INFLUENCE THE TRIAL JUDGE TO WIGGLE TOWARD YOU OR AWAY FROM YOU. YOUR REPUTATION AS AN ADVOCATE  KNOWLEGEABLE OF THE RULES MAY PRECEDE YOU. RUMOR HAS IT THAT JUDGES GOSSIP ABOUT LAWYERS LIKE OLD MAIDS DO ABOUT ROUGH SEX.

+ TIP 14: OBJECT IF OPPOSING COUNSEL EXCUSES A SUBPOENAED WITNESS, BEFORE OR DURING TRIAL, WITHOUT THE COURT'S APPROVAL. ONLY THE COURT CAN EXCUSE A SUBPOENAED WITNESS.

+ TIP 15: IF YOU CALL AN ADVERSE PARTY OR A WITNESS ALIGNED OR IDENTIFIED WITH THE OPPOSITION, REMEMBER THAT YOU CAN OBJECT TO THE OPPOSITION LEADING THE ADVERSE WITNESS ON CROSS. (IN THIS SITUATION, YOU ALSO HAVE THE RIGHT TO LEAD THE ADVERSE WITNESS ON DIRECT.)   

+ TIP 16: OBJECT BEFORE THE DAMAGE IS DONE.

+ TIP 17: LEARN TO WEAVE THE PHILOSOPHICAL PURPOSE OF THE EVIDENTIARY RULES INTO THE SUBSTANCE OF YOUR OBJECTION.

+ TIP 18:  BE SURE TO CLARIFY THE IMPROPER NON-VERBAL GESTURES OF YOUR OPPONENT (OR THE JUDGE) FOR THE RECORD BY DICTATING A VERBAL DESCRIPTION OF WHAT HAPPENED. NEVER FORGET THAT AS FAR AS THE APPELLATE COURT IS CONCERNED IF IT ISN'TIN THE RECORD, IT DIDN'T HAPPEN!

+ TIP 19: AS A GENERAL RULE, DURING THE TRIAL, DON'T GO "OFF THE RECORD." THIS MEANS THAT YOU SHOULD NOT ACCEDE TO THE COURT'S REQUEST TO  DISCUSS THE CASE OFF THE RECORD. IF THE COURT INSISTS THAT ITS WORDS BE OFF THE RECORD AND ORDERS THE COURT REPORTER NOT TO TRANSCRIBE ITS COMMENTS, WAIT UNTIL THE COURT IS FINISHED. DO NOT INTERRUPT THE COURT,  AND DO NOT MAKE ANY OFF THE RECORD RESPONSE OR COMMENT. IF THE COURT'S OFF THE RECORD COMMENTS ARE OF SUFFICIENT CONTENT, WAIT UNTIL TESTIMONY RESUMES, AND STATE INTO THE RECORD WHAT THE COURT SAID IN ITS "OFF THE RECORD" COMMENTS TO YOU. [NOTE: THIS WILL NOT ENDEAR YOU TO THE COURT, BUT WILL PROTECT YOUR CLIENT AND SERVE AS NOTICE THAT YOU WON'T SUBMIT TO BULLYING TACTICS BY THE JUDGE.]  

+ TIP 20:  REMEMBER THAT YOU STILL HAVE A GOOD HEARSAY OBJECTION WHEN YOUR OPPONENT ASKS A WITNESS TO PARAPHRASE OR SUMMARIZE WHAT A DECLARANT SAID. THE CUNNING OPPONENT MAY TRY THIS PARLOR TRICK BY SAYING, "WITHOUT TELLING US EXACTLY WHAT WAS SAID, TELL US THE GIST OF WHAT YOUR INVESTIGATION REVEALED."

+ TIP 21: DON'T FORGET TO ASSERT YOUR RIGHT TO A LIMITING INSTRUCTION WHEN THE OPPOSITION'S EVIDENCE IS ADMISSIBLE ONLY FOR A LIMITED PURPOSE. BECAUSE THE LIMITING INSTRUCTION EMPHASIZES THE EVIDENCE IN QUESTION, YOUR DISCRETION MUST GOVERN WHETHER  IT IS IN YOUR BEST INTEREST TO RAISE THE ISSUE OF A LIMITING INSTRUCTION. IF YOU ARE ENTITLED TO A LIMITING INSTRUCTION ON A CRUCIAL ITEM OF EVIDENCE AND THE TRIAL JUDGE REFUSES TO GIVE IT, YOU MAY HAVE A GOOD POINT FOR APPEAL.

+ TIP 22: WHEN YOU ARE OBJECTING TO YOUR OPPONENT'S FAILURE TO ESTABLISH AN EVIDENTIARY FOUNDATION OR PREDICATE THROUGH A WITNESS' ANSWERS, REMEMBER THAT THE PROPONENT OF THE EVIDENCE MUST GENERALLY CONVINCE THE TRIAL JUDGE BY A PREPONDERANCE OF THE EVIDENCE THAT THE FOUNDATION FACTS ARE TRUE.

+ TIP 23: CERTAIN FRONT END PREFATORY WORDS, E.G., "SO," OR PHRASES, E.G., "WOULD YOU SAY," ARE GIVEAWAYS THAT A QUESTION WILL BE LEADING. QUESTIONS THAT  CONTAIN PHRASES LIKE "COULD YOU, " "WHAT IF," "DO YOU SUPPOSE," ETC., OFTEN PRESAGE A QUESTION THAT ASKS THE WITNESS TO SPECULATE.  

+ TIP 24: THE RULES OF EVIDENCE APPLY TO JURY ARGUMENT. THERE ARE A NUMBER OF SPECIFIC OBJECTIONS YOU CAN MAKE TO  THE OPPOSITION'S JURY ARGUMENT. OBJECT TO THE OPPOSITION'S ARGUMENT SPARINGLY, E.G., WHEN YOU ARE CERTAIN THAT YOU HAVE A GOOD SUBSTANTIVE OBJECTION FOR APPEAL. REMEMBER THAT THE PROSECUTION HAS NO APPEAL FROM AN IMPROPER DEFENSE JURY ARGUMENT, BUT "WHEN YOU STRAY, YOU MAY HAVE TO PAY" UNDER THE  "REPLY DOCTRINE," THE "INVITED ARGUMENT RULE," OR THE "OPENING THE DOOR" THEORY. THESE ARE THREE LABELS FOR THE RULE OF JURY ARGUMENT, RECOGNIZED IN SOME CASES, THAT ALLOWS ONE SIDE TO REPLY TO IMPROPER ARGUMENT  OF THE OTHER SIDE.

+ TIP 25: SHARPEN YOUR OBJECTING SKILLS BY PLAYING EVIDENCE/OBJECTION GAMES. HARVARD EVIDENCE PROFESSOR NESSON'S WEB SITE HAS A LONG LIST OF EVIDENCE PROBLEMS. HOW DO YOU GET IT IN, AND HOW DO YOU KEEP IT OUT? WHAT IS THE PROPER OBJECTION AND RESPONSE? NOTE THAT THE HARVARD PROFESSOR HAS A LINK TO THEFEDERAL RULES OF EVIDENCE AT THE BOTTOM OF THE PROBLEM PAGE. USE THE RULES AS A RESOURCE  IN TRYING TO SOLVE THE EVIDENCE PROBLEMS.

PRACTICE TIPS FOR MEETING AND DEFEATING OBJECTIONS

+ TIP 1: RULE 404(b) FRE & TRE UNCHARGED MISCONDUCT EVIDENCE CAN BE OFFERED FOR ANY PROPER PURPOSE OTHER THAN PROOF OF ACTION IN CONFORMITY THEREWITH (WE CALL THIS IMPROPER PURPOSE "PROPENSITY EVIDENCE."); NOTE THAT THE STATED EXAMPLES, I.E., MOTIVE, OPPORTUNITY, INTENT, PREPARATION, PLAN, KNOWLEDGE, IDENTITY, ABSENCE OF MISTAKE, OR ACCIDENT, ARE NOT EXCLUSIVE; RATHER, THEY ARE SIMPLY EXAMPLES OF PROPER PURPOSES FOR PROOF OF UNCHARGED MISCONDUCT.

+ TIP 2: WHEN INTRODUCING BUSINESS RECORDS, VET THEM IN ADVANCE TO BE CERTAIN THEY DON'T INCLUDE MATERIALS  RECEIVED FROM OUTSIDE SOURCES THAT DON'T COMPLY WITH THE PREDICATE REQUIREMENTS, E.G., NOT WITHIN THE KNOWLEDGE OF THE RECORD MAKER.

+ TIP 3: THE EXCEPTION ALLOWING HEARSAY STATEMENTS FOR PURPOSES OF MEDICAL DIAGNOSIS OR TREATMENT CAN BE A STATEMENT MADE TO THE "LITIGATION" DOCTOR AS WELL AS TO THE "TREATING" DOCTOR. SEE RULE 803(4) FRE & TRE.

+ TIP 4: AN ADOPTIVE ADMISSION (STATEMENT) UNDER RULE 801(d)(2)(B) FRE & RULE 801(e)(2)(B) TRE DOES NOT HAVE TO BE MADE IN THE PRESENCE OF THE DEFENDANT; ALL THAT IS NECESSARY IS PROOF THAT THE DEFENDANT HAS MANIFESTED AN ADOPTION OF BELIEF IN ITS TRUTH.

+ TIP 5: REMEMBER THAT RULE 806 FRE & TRE ALLOWS YOU TO IMPEACH THE CREDIBILITY FOR A NON-WITNESS CO-CONSPIRATOR DECLARANT, WHOSE STATEMENT IS OFFERED AGAINST YOUR CLIENT, BY ANY EVIDENCE THAT WOULD BE ADMISSIBLE FOR SUCH PURPOSE IF THE DECLARANT HAD ACTUALLY TESTIFIED AS A WITNESS. THIS INCLUDES YOUR RIGHT TO IMPEACH THE NON-TESTIFYING DECLARANT WITH PROOF OF: (1) ADMISSIBLE PRIOR CONVICTIONS UNDER RULE 609 FRE & TRE; (2) LACK OF PERCEPTION; (3) BIAS OR ANIMUS OR INTEREST; (4) PRIOR INCONSISTENT STATEMENT UNDER RULE 613 FRE & TRE WITHOUT THE NECESSITY OF AFFORDING THE DECLARANT AN OPPORTUNITY TO DENY OR EXPLAIN; (5) BAD CHARACTER EVIDENCE RE TRUTHFULNESS UNDER RULE 608 FRE & TRE, ETC. [NOTE: IT MAKES SENSE THAT THE RULES ALL0W YOU TO MAKE THIS ATTACK ON A NON-WITNESS. OTHERWISE, YOUR OPPONENT COULD WALL OFF IMPEACHING EVIDENCE SIMPLY BY INTRODUCING THE CO-CONSPIRATOR'S OUT-OF- COURT STATEMENTS AND KEEPING THE CO-CONSPIRATOR OFF THE STAND.]

+ TIP 6: IF YOU PLAN TO INTRODUCE A SUMMARY OF VOLUMINOUS WRITINGS, RECORDINGS, AND/OR PHOTOGRAPHS THAT CANNOT BE CONVENIENTLY EXAMINED IN COURT, BE SURE TO MAKE ARANGEMENTS FOR THE OPPOSITION TO VIEW THE DOCUMENTS UNDERLYING THE SUMMARY MATERIALS AT A REASONABLE TIME AND PLACE. BEND OVER BACKWARDS TO ACCOMMODATE THE OPPOSITION BECAUSE THE COURT HAS THE POWER TO ORDER THAT THE MATERIALS BE PRODUCED IN COURT. SEE RULE 1006 FRE & TRE. ALSO, IF YOUR SUMMARY INCLUDES BUSINESS RECORDS, SAVE YOURSELF THE TROUBLE OF HAVING TO CALL A LIVE AUTHENTICATING WITNESS BY USING A SELF-AUTHENTICATION CERTIFICATE TO ESTABLISH THE NECESSARY PREDICATE FOR THE EXCEPTION. SEE RULE 902 FRE & TRE, CONTAINING THE FORM FOR THE CERTIFICATE.

+ TIP 7: IF YOUR OBJECTION TO EVIDENCE IS SUSTAINED AND THE OPPOSING COUNSEL MAKES AN OFFER OF PROOF, REQUEST THAT THE OFFER OF PROOF BE IN WITNESS FORM, I.E., THAT THE OFFER OF PROOF BE IN Q & A OF THE WITNESS. YOU HAVE THIS RIGHT UNDER RULE 103(B) TRE. HOWEVER, FRE 103(C) VESTS THE TRIAL JUDGE WITH THE DECISION OF WHETHER THE OFFER OF PROOF IS TO BE IN Q & A FORM. DURING THE PROFFER (OFFER OF PROOF), WHEN THE OPPONENT IS FINISHED WITH HIS DIRECT QUESTIONS OF THE WITNESS YOU SHOULD BE ENTITLED TO CROSS-EXAMINE THE WITNESS DURING THE OFFER OF PROOF RE THE ADMISSIBILITY OF THE DISPUTED EVIDENCE. BLUNT THE FORCE OF THE OPPONENT'S OFFER OF PROOF BY SHOWING ITS EVIDENTIARY FALLIBILITY. OTHERWISE, THE OPPONENT'S LAWYER OFFER OF PROOF MAY BE SO WHOLLY ONE-SIDED THAT THE COURT WILL REVERSE ITS RULING AND ADMIT THE  HARMFUL EVIDENCE.