Do You Talk to Much Before Trial?

by Elliott Wilcox

“Hey, I don't know if you noticed this or not, but there's a significant problem with your case. If you don't do something to fix it, you're guaranteed to lose. But if you can fix it, your chances of winning will dramatically improve. Do you mind if I tell you what the problem is?”

If someone made that offer to you, your immediate reaction would probably be, “Yes, please tell me what's wrong!”

What's surprising is that every day in courthouses around the country, lawyers regularly make offers like that to their opponents and don't even realize it. For example, many years ago, I was the prosecutor handling a “Possession with Intent to Sell” narcotics case. It was a simple possession case (the drugs were found in his pocket), but the defendant insisted that he wanted a trial. I wasn't the first prosecutor assigned to the case. A previous prosecutor had actually tried the case, but the jury had hung 5-1 in favor of “Guilty” so the case had been reset for trial. In the meantime, that prosecutor left our office, so the case fell into my lap. On the day of trial, several other cases on the docket seemed far more important than this one, so I offered the defense attorney a misdemeanor plea offer in hopes that we could resolve it and move on to more important cases.

“Oh no, that's not gonna happen,” the attorney replied, “He wants his day in court.”

That seemed greedy to me, because technically, he'd already had his day in court, and now he was insisting upon a second day, but rather than say anything, I decided to bite my tongue and let the attorney continue talking. He proceeded to tell me what a wonderful attorney he was, how strong his case was, how weak my case was, and then, best of all, he started bragging about how great a job he'd done in the last trial: “The last time we tried this case, your predecessor called three witnesses, and that third guy didn't even know what hit him. My cross-examination destroyed his credibility. By the time I'm done cross-examining him today, this courtroom is going to be littered with reasonable doubts. I can't wait to get my hands on that guy again!”

The urge to interject during his tirade had been nearly overwhelming, but I continued holding my tongue until he'd wrapped up, then politely excused myself to make some last minute preparations for trial.

Jury selection proceeded without incident, and a short while later, we proceeded to opening statements. I delivered a perfunctory opening statement (“Drugs... In his pocket... Thank you”) and sat down. After he concluded his opening statement, I called my first witness, who testified that he'd found a large quantity of suspected drugs in the defendant's pockets and that the drugs were packaged for sale, rather than personal use.

After he was cross-examined, I called a drug analyst to the stand, who testified about her work in the drug lab and confirmed that the items in evidence were actually narcotics. Her cross-examination was brief, so I decided to waive my re-direct examination. As she stepped down from the witness stand, I saw that the other attorney could barely restrain himself. This was the moment he'd been planning for -- the opportunity to rip the next witness to shreds!

Once the lab analyst witness left the courtroom, the judge turned to me and said, “State, please call your next witness.”

Rising from my seat, I addressed the courtroom in a loud, clear voice: “Your Honor, that concludes the presentation of the State's evidence, and the State rests its case.”

The defense attorney's jaw hit the table in shock. He rushed to sidebar and, in a flabbergasted tone, said, “He... He can't do that! I planned my entire case around cross-examining that third witness! What am I supposed to do now?!?”

Volumes could be written about the arguments that followed, but those are stories best shared at some other time, perhaps over a cold beer. Suffice it to say, his case had been torpedoed.

There are two important lessons you need to take away from this story. The first is this: Don't brag or boast about your case strategies or the strengths and weaknesses of your case.

One of the reasons he lost the case was because of his tremendous ego and his need to boast. When he told me that he'd destroyed the third witness during the previous trial, I re-examined my case plan. I asked myself, “Do I really need to call this witness? How much does he add to the case, compared to how much damage he'll inflict?” I decided that the minor amount of useful information he'd add to the case wasn't worth the nightmare, and I decided not to call him. If the other's lawyer's ego hadn't pushed him to brag and boast about the case, maybe I would have called the witness, maybe not... I don't know. He really didn't add that much to the case, so I don't know.

Beware of falling into the same trap.

Since you're a trial lawyer, your ego is larger than most. It's nothing to be too embarrassed about -- all lawyers have egos. Trial lawyers' egos are even larger than most, because we live in the high stakes world of “win or go home.” We hate to lose, we love to win, and when we do a great job, we want to tell everybody else what we've done. It's okay to brag, but unfortunately, some lawyers don't know when to shut their mouths!

To avoid the problem and protect your clients, take a quick history lesson.

Loose Lips Might Sink Ships posterBack during World War II, the War Advertising Council and the Office of War Information (back in the '40's, federal agency names weren't as cute or cryptic as today's agency names, were they?) created a series of public service ad campaigns designed to remind Americans about the importance of preventing restricted information from being leaked to the enemy. The campaign was so successful that one of the catchphrases has become part of the American lexicon. Even if you weren't alive when the campaign originally ran (1942-1945), you're probably familiar with the phrase: “Loose Lips Sink Ships.” The lesson was simple: be discreet in your communications, especially when you don't know who might be listening.

But before you're tempted to reprint the posters and post them all over your courthouse, think about the second lesson from the story: Keep your ears open and listen.

Your opponents probably love to brag about the strengths of their case or the weaknesses in your case. Next time, rather than disagreeing with them, quietly listen to what they're saying and encourage them to boast. Play “dumb as a post” and see what they say. As the great Yogi Berra said, “You can observe a lot just by watching.” Don't get drawn into an argument with them trying to justify the strength of your case or dispute the strength of theirs. If they try to pick a fight, just give them noncommittal responses like, “You may be right,” and let them continue boasting.

You're trained to battle in the courtroom, so it won't be easy to suppress your natural instinct to respond in kind, but it's something you'll have to do. Then, after they've finished boasting, find a way to shore up your weaknesses or better prepare for their strengths. If you do that, then you can brag and boast when it really matters... After you've won your case!

[Here's a third important practice tip: If you have a critical witness that you need for your case, don't count on opposing counsel to call them - make sure you issue a subpoena yourself and lock them down!]

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Elliott Wilcox publishes Trial Tips Newsletter. Sign up today for your free subscription and a copy of his special reports: “How to Successfully Make & Meet Objections” and “The Ten Critical Mistakes Trial Lawyers Make (and how to avoid them)” at www.TrialTheater.com

Surviving a Daubert Challenge: 6 Tips for Success

by Mehjabeen Rahman - March 7, 2016

It’s less than a month before trial, and you’ve just learned that a Daubert challenge has been raised against your expert witness. Any attorney who has worked with an expert witness in litigation knows that a Daubert challenge presents the frightening possibility that an expert witness’ testimony may be wholly excluded from trial, which can be devastating if not fatal to a case since, at its core, Daubert is a direct challenge to the methodology used by an expert to formulate their opinion. Despite the terror that a Daubert challenge can cause, proper preparation, along with the right strategy, can help attorneys overcome or avoid Daubert challenges altogether. 

We caught up with attorney Rich Matthews, a senior trial consultant and founder of Juryology who has conducted numerous CLEs on trial preparation and who helped us outline 6 essential tips so you won’t be unprepared if your expert is facing a Daubert hearing. 

What is a Daubert challenge and what does it mean for your expert?

A Daubert hearing occurs when the validity of an expert’s testimony is challenged because of the underlying reasoning and methodology used to form their opinion. The Daubert standard denotes a set of criteria articulated by the Supreme Court in Daubert v. Merrell Dow Pharmaceuticals, Inc.,  509 U.S. 579 (1993), that is relevant in determining the admissibility of such testimony. Prior to Daubert, the prevailing standard for the admissibility of expert witness testimony in both state and federal jurisdictions was set forth in the case Frye v. U.S., 293 F. 1013, decided by the DC Circuit as far back as 1923. Under Frye, the Circuit Court held that scientific evidence was admissible if based on a technique or methodology that was generally accepted by the scientific community, otherwise known as the Frye “general-acceptance” test. It should be noted that though some jurisdictions still use Frye, the Supreme Court’s decisions in both Daubert and Kumho Tire Co., Ltd. v. Carmichael, 526 U.S. 137 (1999) definitively set the standard for determining the admissibility of expert witness testimony. The Court in these cases articulated guidelines for such testimony to pass muster under FRE 702. When a Daubertchallenge is raised, it means the validity and reliability of your expert’s testimony is being challenged and it will help to keep the following tips in mind when preparing for a Dauberthearing. 

1.) Beat a Daubert challenge before it’s raised

A Daubert challenge is one of the strongest legal mechanisms opposing counsel can use to discredit the validity of your expert’s testimony, and possibly have it excluded altogether. Thus, when it comes toDaubert challenges, the best defense is a good offense. This means that when choosing your expert, keep in mind the potential for a Daubert challenge from the very beginning. The best way to do this is to look for expert witnesses whose work will best fit the requirements that are laid out as the “Daubert standard.” The Supreme Court in Daubertemphasized a trial judge’s duty to act as a “gatekeeper,” and view evidence under stricter scrutiny to ensure it meets the requirements of FRE 702. A recent example of this – as Rich Matthews points out – is when a federal judge in Chicago recently discredited expert testimony about pinpointing an individual’s location using data analysis from cell phone towers.  The Court in Daubert listed 4 points of consideration to prevent unreliable or otherwise “junkscience” from being heard as evidence in an expert’s substantive testimony. These include: 1) testing; 2) peer review; 3) rates of error; and 4) acceptance within the specific scientific community where the methodology is employed. Though experts are familiar with Daubert and the related criteria, it never hurts to review these points with your expert from the beginning and discuss that any expert opinion should be prepared with Daubert in mind. Ironing out these issues early in the selection or preparation stages is the best assurance for making sure your expert survives a Daubert challenge, if not avoiding one altogether. 

Psychology of Courtroom Attire (For Women)

COURTROOM ATTIRE IS IMPORTANT!

Make yourself look as attractive as possible (without violating the dress code)!

So in a study from Cornell University it was found that more attractive defendants were more likely than less pretty defendants to get lighter sentences. The less attractive defendants earned an average of 22 months longer in prison terms. 

Dress codes are intended to keep order and show level of respect that one should grant the justice system. Judges are the arbiters of that respect, they also have the right to enforce the dress code with fines and/or jail time if they please.

So when picking out what to wear to court, ask yourself this... How do I want to portray myself? Then, dress the part.

Typically, in a criminal case, the rule of thumb is to look as young and innocent as possible.
There’s no question that people respond emotionally before they respond intellectually. That's just human nature. So use clothing as a tool to create the response that you want.
It is preferable for ladies to wear a dress or suit or a skirt (preferably no more than two inches above the knee) and a blouse, sweater, or casual dress shirt. Colors are important! Wear neutral, pastel colors.

DO:

• Wear little makeup (the trick is to make it look like you're not wearing any make up at all).
• Remove all visible piercings. This specifically includes tongue piercings and nose rings.
• Cover all visible tattoos.
• Wear closed toe shoes
• Wear glasses if you normally wear them.
• Wear your hair pulled back in a bun or clip.
• Dress like a professional.
• Dress conservatively and, when appropriate, wear good quality clothing.
• Remember that the “good guys” never wear black.
• Avoid putting anything on your hair that makes it shine or appear greasy.
• Avoid wearing tinted or dark colored glasses in the courtroom (People will not believe you if they cannot see your eyes).
• Wear only functional jewelry (e.g., wedding ring and wrist watch).
• Avoid wearing items that may identify a personal association or belief. Political buttons, club pins, college rings, religious jewelry may trigger some prejudices against you in the mind of a judge or juror.
• Wear plain patterns.
• If you wear a dress or skirt, wear sheer, nylon pantyhose. 

Remember that even a small flaw in your appearance will be noticed by the judge and/or jury and it may hurt your credibility.

Here is some examples of what to wear in court:

(Casey Anthony and Lorena Bobbitt, both acquitted) 

For some women, the baby-doll look was more effective. When Lorena Bobbitt went to trial she appeared in delicate, high-necked blouses, she was soft-spoken and wide-eyed, and looked far younger than her 23 years. Her appearance made it all but impossible to ignore the allegations of her husband's abuse: Bobbitt seemed less like a battered wife than a vulnerable child who had been victimized by a domineering man. Ultimately, the sensational nature of the crime was matched only by the shock of the verdict: Lorena Bobbitt was acquitted of all charges.

DO NOT WEAR:

• shorts
• mini-dress
• hat
• halter or tube top 
• excessive makeup or false eyelashes 
• excessive perfume
• sandals or open-toe shoes
• see-through or low-cut clothes
• clashing colors
• noisy bangles
• large bracelets and earrings, facial piercings, or more than one ring 
• red clothing
• all black clothing
• ill-fitting clothing
• clothing that exposes your midriff or underwear
• clothing with an emblem or wording that promotes illegal or inappropriate activity
• any clothing that shows any part of your breast
• extremely expensive outfits
• sunglasses
• flashy jewelry, i.e. “bling”
• jeans
• wrinkled clothing
• cut-offs
• tank tops
• yoga pants
• loud patterns

Here are examples of what NOT to wear.

 

Some legal consultants argued that Fisher's lawyers hurt their case by outfitting her in adult-looking suits. It wasn't enough to dress in conservative, dark colors, as Amy had: she had to look not just like an innocent woman, but like a child.

Words and objects in red get peoples attention immediately

Color has an incredible effect on your mood, your perception, and your likes and dislikes. It’s programmed into you, and you really have little to say about it. This comes from our "reptilian brain", the part of you that is programmed to survive.

This could be why Linda Drane Burdick chose to wear that bright red suit for her opening statement when she was the prosecutor in the Casey Anthony trial. Most likely trying to subconsciously sell to the jury her strengths on the evidence. Soft pastels or blue for instance would show she is not about being strong. Red shows she is serious and a fighter. Red has a way of grabbing your attention. She wanted her opening statement to make a lasting impression in the minds of the jurors.

Although it's really not fair. If this were a perfect world, the only thing anyone would be paying attention to during a trial would be the evidence. It doesn't matter whether on the side of the defense or the prosecution, women can't avoid having their appearances scrutinized in the courtroom for as long as they are scrutinized elsewhere.

Twenty years after the O.J. Simpson trial, prosecutor Marcia Clark still has to justify not the jury's acquittal, but her perm. "It was wash-and-wear hair!" she said in a recent interview. "It was easy. I had two boys in diapers and I didn't want to be bothered." But for women at the center of media spectacles, no decision—particularly those they make about their appearances—can ever be quite so simple.

FIND OUT:

• What colors are best for you.
• What clothing styles look good on you.
• What makeup is best for you.
• How to make the most of your physical appearance.
• If you have any questions about your attire, you should consult with your lawyer BEFORE you step in the courtroom!

Related links:

• A Defendant’s Guide to Courtroom Etiquette
• “Will Work for Weed” T-Shirts, Zoot Suits, and Other Things You Shouldn’t Wear to Court”
• Opening Statements: What to Wear to Court
• What Not to Wear…TO COURT!
• Courtroom Attire: Ensuring Witness Attire Makes the Right Statement

5 Bizarre Ways You Can Brainwash a Courtroom

By Kathy Benjamin,  Lillian Mar

If you're lucky, the closest you get to a courtroom is old Night Court episodes and the occasional traffic ticket dispute. But, who knows, someday you might wind up in front of a judge due to a hilarious misunderstanding, or because you had to murder some dudes. If so, there are several things that can tip the scales of justice in your favor that have nothing to do with the law or evidence.

#5. Dress the Part (and Wear Glasses)

Let's say you've been accused of a horrible violent crime. You can probably guess that before you go to court, your lawyer is going to ask you to shower and maybe wear some long sleeves to cover up your "I HEART VIOLENT CRIME" tattoo. But the science of how to dress a defendant to look innocent goes way beyond that. For instance, don't be surprised if your lawyer makes you throw on a pair of glasses.

Yes, it's the old "glasses = harmless nerd" stereotype, but it does work. Studies show that we see men wearing glasses as emasculated and less forceful. In other words, less capable of violence. That's bad news for a guy at a WWE audition but good news for a violent offender putting his life at the mercy of the court. That's why seasoned defense lawyers are all for slapping glasses onto their clients on court day.

The science shows that it works, too -- they did an experiment with two fake defendants, one white, one black. Both were photographed with and without glasses. More than 200 "jurors" were given one of the four pictures and told that the person in the picture was accused of snatching a woman's purse and cutting her face with a box cutter. Damn, scientists, that's ... weirdly specific. Anyway, in the experiment, adding glasses reduced the percentage of "guilty" verdicts by 20 percent. Note: This only works for violent crime. If you're accused of a white-collar nerd crime, the glasses lead to more guilty verdicts.

But let's say glasses are not an option for you. Maybe you're using your courtroom appearance to land a modeling contract, or maybe you don't have a nose. That's OK. Lawyers think you can still use your attire to manipulate the judge and jury. Kidnap victim turned bank robber Patty Hearst, for example, intentionally dressed in clothes that were too big for her during her trial. The XXLs were supposed to make her look frail and small, like a victim. During their trial for murdering their parents, the Menendez boys switched from tailored suits to pastel sweaters, presumably in the hope that the jury would confuse both of them with Carlton Banks.

Consultants who do nothing but study this kind of stuff advise women to dress young and girlish, but by all means, cover-up. Are you a man who wears a toupee? Why? Who told you that was a good idea? Don't wear it to court, because it makes you look like you've got something other than your big bald head to hide. Finally, all the oversized clothes and bald heads in the world won't help you if you just happen to be one of those guys with shifty eyes. For this, experts go back to the glasses thing. Only they have been known to spray them with cooking oil so the glare will make it harder to see your evil, guilty eyes.

#4. Schedule for Early in the Morning or Right After Lunch

Let's say you lost your case and now you're sitting in jail. Your parole hearing is coming up, and you've been strongly warned not to give that speech Red gives at the end of The Shawshank Redemption. What's going to make the difference? The time of day that the hearing is held, for one.

The thing is, judges are human beings who get tired. Remember when you were a kid at school and the two bright spots in your day were lunch and the hour you spent on the nurse's cot with fake migraines? Or better yet, think about your workday today. Chances are deep down you're still that kid who counts the minutes until lunch if only to get out of your suffocating cubicle for 30 minutes. It turns out judges are the same way, and that matters when you're begging them for lenience.

They did a study of judges hearing parole cases (prisoners asking for either parole or more lenient sentences) over a 10-month period. Early in the day, a prisoner had about a 65 percent probability of having the judge rule in his favor. However, as the morning went on, that probability dropped to near zero. After a lunch break, with the judge refreshed, the probability went right back up, then declined again as the day dragged on.

The whole phenomenon is due to something scientists call decision-making fatigue. A person making a lot of decisions eventually gets to a point where he is too mentally worn out to make intelligent choices and takes the easy way out instead. A judge sitting on the bench for a while will develop a rip-roaring case of decision-making fatigue that slowly degrades his cognitive functions to those of a spoiled 3-year-old. Only he's not afforded the luxury of throwing himself to the floor in a stunning tantrum until he gets a nap. So he does the next best thing: Whenever he's presented with a choice, he ends up going with the status quo, rather than mulling the information over and making an informed decision.

For the prisoner, this means staying in jail rather than getting sweet, sweet freedom. So get your lawyer to pull whatever strings he's got to get that trial scheduled early, even if it means stabbing the guy ahead of you in the lobby of the courthouse.

#3. Use Impolite Witnesses

When throwing oneself at the mercy of the court, you'd think that politeness would be a key factor in determining your character. And you'd be right. Do you think Ricky Gervais or Simon Cowell would last one second under a judge's condemning glare? No, and not just because they're British or known serial killers. Rude people are the worst.

Unless they are testifying on your behalf in the courtroom. In that case, a super-polite witness is seen as being less credible, less intelligent, and less competent, three traits that are pretty important in keeping you out of prison.

In other words, if your witness gets up there and gives the prosecutor a golden shower of verbal respect, the jury won't see him as confident, and confidence is huge in determining truthfulness. Excessive niceness, or what some of us would just call "courtesy," comes across as powerless speech, something we do when we're in a position of weakness.

It's kind of the same reason we see Dr. House or Sherlock Holmes as geniuses; we see how prickly they are, even with their superiors, and realize they must know something. If they didn't know what they were talking about, how would they have the confidence to be such douchebags?

#2. Talk Fast

So you're on trial for something awful, and your lawyer thinks it would be a good idea if you testify in your own defense. He's probably going to give you lots of pointers, like don't be a creep and try not to say "OK, you got me!" before extending your arms for the handcuffs. What you might not expect is for him to coach you into speaking faster than you normally would.

This is nuts because those of us raised on television know that the first thing a sleazy salesman does to pull one over on us is talking fast. How many of us have been cajoled into buying cars, regular or micro, because of slick, fast-talking admen?

Studies have shown that someone who speaks rapidly is viewed as more persuasive and more intelligent than someone who speaks at a slower pace. If a person speaks slowly, they're seen as less truthful and less competent, aka a moron. So how fast should you speak? In one study, people were most persuasive when they talked about 30 percent faster than normal talking speed. However, you can go up to 195 words a minute. That's about as fast as the guys who race through a list of horrible drug side effects, like "sudden bowel implosion," while the commercial shows women running through a field of flowers.

And if you think about it, it makes sense. If you're listening to someone you don't agree with, fast-talking is more persuasive because your brain can't come up with counterarguments. You're so busy drowning in a verbal flood that you're not thinking of reasons you don't agree with the guy. Yes, it's something sleazy salesmen do. But remember, sleazy salesmen, do it for a reason.

#1. Say You're Sorry (Even if You Previously Insisted You Were Innocent)

So your day in court has come, and the jury has found you as guilty as a fox in a whorehouse. There's nothing left to do but begin researching your prison workout routine and figure out which gang you're going to join, right? Not quite. There's still some sentencing to do, and that means the game isn't over. What happens next might mean the difference between sleeping in your own bed at night and sleeping with your back glued to a cinder block wall. And if there's one thing that might get the judge and jury on your side, it's saying you're sorry.

Yep, the same thing that got you out of a grounding when you were 10 can shave years off your sentence when standing trial for murdering a dude. Despite what the law says, despite all the evidence, you can get off easy if you just say you're sorry. It's true that even if you were found guilty after pleading innocent; even though you just spent the last few months insisting you didn't do the crime at all, they still go easier on you if you apologize.

Why? Because that apology is your last chance to do a few things: one, start the process of closure for whoever you screwed over; two, give the judge a chance to see you as a normal person who gets the difference between right and wrong (meaning it's safe to put you back on the street, regardless of what you did); and three, practice your puppy-dog eyes, which you're going to need once you get to jail.

The trick is that now that you're found guilty, everyone expects you to do whatever it takes to get a lenient sentence. So how do you convey that you're really sorry? For one, "act uncomfortable or ill at ease." There's something primal about seeing someone squirm when they've done wrong. That awkward body language tells everyone in the room that you know you're a screw-up. Next, the second that guilty verdict comes down, change your attitude. Look sad. Look defeated.

And no matter what, don't look bored. This isn't an SAT prep class; this is your life on the line! Literally, if you've done murder. In one study, "if jurors believed that the defendant was sorry for what he had done, they tended to sentence him to life imprisonment, not death." Not. Death.

In fact, if you don't apologize, some judges might think you're just an unrepentant prick and throw any chance of leniency out the window. And really, if you can't even manage to fake some remorse in that situation, you probably deserve it.

A DEFENDANT'S GUIDE TO COURTROOM ETIQUETTE

Mr. Sullivan wrote the following article for Crime, Justice & America Magazine in 2001, and it has been reprinted many times since in CJA and other legal periodicals.

The demeanor and attitude of a defendant while he or she is in court (or even in the courthouse surroundings) is always very important, especially if defendant is in trial or appearing at sentencing.
The way the prosecuting attorney perceives the individual whom he or she is trying to convict, the way the probation officer perceives the person whom they are likely to evaluate, and the way the judge perceives the defendant whom he or she desires to give a fair trial, fair rulings, and possibly a fair sentence, all are of utmost importance.
But the opinion jurors have of the defendant is most important. In fact, jurors are instructed that one of the many factors that they can and should take into consideration in determining the credibility of a witness (including the defendant) is his or her demeanor, and the attitude the witness maintains in court.

The rules I will discuss will be primarily addressed toward out of custody defendants, keeping in mind that some do not apply to in custody defendants, especially in the area of promptness in court or their courtroom attire. One important thing to remember is that in the event of a jury trial, the jury will never know (unless the defense wants them to) that a defendant is in custody. The defendant has the right to wear "civilian" clothing, and the procedure by which the jury enters and leaves the courtroom is designed to avoid their knowing that the defendant is in custody.
Whenever defendants appear in court, ideally they have an attorney with them at all times. Sometimes, especially at the arraignment (the first court appearance) they do not. But whether or not they have an attorney with them, the rules of behavior are the same:

 ARRIVE EARLY: 
A criminal defendant should have made all necessary arrangements to arrive at the courthouse, and eventually at the appropriate courtroom, about 30 minutes early. Never park illegally, and never risk being seen in an inappropriate vehicle or with inappropriate acquaintances. Prosecutors and courtroom deputies can and are very curious in this regard.
Arriving early will give you an opportunity to familiarize yourself with your surroundings, meet and confer with your attorney regarding any last minute questions or comments, and will assure that you will never be late for your appearance. When you arrive early, you may find the courtroom door locked. Sit quietly on the bench nearest your courtroom, and be sure to follow all of the instructions of the bailiff or courtroom officer. Often, an attorney will arrive late for a court appearance, but judges understand that they usually have to be in more than one courtroom at a particular time. Even if your attorney is not in the courtroom, you should always be seated there, and do not leave unnecessarily. Judges always make a mental note of defendants who arrive late, and they are sensitive to defendants who sit in court patiently and politely for their attorney to arrive.

Never arrive late for a court appearance. Judges do not like it. They feel that they have to be on time for court, and you should as well. Some judges consider it a major transgression, and take defendants into custody when they arrive late. But all judges consider it impolite, and indicative of an irresponsible individual who obviously does not take his criminal case seriously.

 DRESS TO IMPRESS (WIN):
You never have a second chance to make a first impression, and your courtroom attire says a lot about your attitude and respect for the court and the judge. I always tell my clients to dress as if they were going to church, to a funeral, or on an important job interview. Personally, I do not care whether you are a professional or not, this is the most important thing going on in your life right now, and I want you to take every opportunity to gain the upper hand. I know that I try at all times to be the best dressed lawyer in the courtroom. It is my goal that no DA is ever been better dressed, more appropriately dressed, or more expensively dressed than I, especially when I am in trial, and this helps to give me confidence. There is no reason that you should not be the second best dressed person in the courtroom. (This always annoys the DA.)

If you happen to wear suits to work, wear them to court. If you do not, you should be prepared to invest in one. You do not need to buy an entire wardrobe, even if you are going to be in a prolonged trial.

Obviously, one must also make sure he or she is well groomed, alert, and in the right frame of mind. (This obviously applies to in custody defendants as well.) Haircuts are mandatory, as is good grooming. No visible tattoos, and no facial jewelry of any kind for men. The formality of dress clothes and good grooming results in added confidence, intimidation of the prosecutor, and recognition by the judge that you are showing respect for the court. But it is the jury who will decide your fate, and if they come into court for the first time, they should not be able to tell who is the attorney, and who is the criminal defendant. If you see them looking around for the defendant, then you know that they will be impressed with how seriously we take our case.

 ATTITUDE:
It is always important to show respect for the court. Answer the judge's questions in a loud, clear and confident voice, and always answer, "Yes, sir" and "No, sir." Attorneys address the judge as "Your Honor." As a defendant, you may do this, but I like you to address them as "sir" or "ma'am," because when a defendant addresses the judge as "Your Honor," it sounds as if he has been prepped by his attorney. This is not a bad thing, but if you answer the judge's questions with a "Yes, sir" or a "No, sir," it will indicate to the judge that you are not just doing what your lawyer prepared you to do, but that this is the way you speak in normal polite conversation with people whom you respect.

This says a lot about you. Look the judge in the eye when you speak with him or her, but don't be afraid to ask permission to consult with your attorney if you need to.

 CONTACT WITH THE PROSECUTOR:
Some prosecutors have the bad habit of talking indirectly to, and sometimes indirectly with, a defendant. Some talk to the attorney while in close proximity to the defendant under the guise of talking with the attorney, others will make small talk with you. My rule is for my clients is to totally ignore the prosecutor if and when this should happen. This is for many reasons, the two most important of which are that he, the prosecutor, is committing an ethical violation, and he probably is doing this to attempt to gain information or a tactical advantage. Remember, the prosecutor is your worst enemy. Being nice to him sends a bad message, that you have some sort of respect for him, and that you want to endear yourself to him. But ignoring him lets him know that you are not worried about what he thinks of you in terms of your respect for him. You are not going to show any sort of respect for a lawyer who wants you convicted, because his evaluation of the case and his going forward with your prosecution is a reflection of his poor judgment and case evaluation. Secondly, the reason he is committing an ethical violation (however slight) is probably so that he can gain some insight into your personality.

There is one exception to this rule, and that is if the court instructs you to answer the prosecutor's questions, as in the example of your giving a time waiver or responding to questions about rights and consequences of a plea bargain. Your attorney will instruct you as to what is going to happen in such an instance.

 WHEN YOUR CASE IS CALLED
As soon as your case is called, stand up and come forward. Unless yours is the very first case called that morning, you will have already seen other litigants approach their attorney, and will know what the courtroom deputy expects of you. Do not put your hands in your pockets, and don't have anything in your hands, other than possibly some paperwork you need to have the judge inspect, etc. females should not have their handbag with them. It should be left on their seat when they approach. Stand up straight, and stand immediately beside your counsel. Speak only if your attorney instructs you to. Even if a routine question is asked, do not volunteer the answer unless your attorney instructs you to do so. Remember, as a criminal defendant, you have the absolute right to remain completely silent, and you should keep this in mind at all times. Sometimes, a seemingly routine question is asked, such as how you pronounce your name, or your date of birth. Your attorney should know enough about your case to answer those types of questions himself, but if he does not, whisper the answer to him or her, and let them speak for you.

There is a difference between a whisper and speaking softly. A whisper is a form of speech without the use of your vocal cords. Speaking softly is just that, using your vocal cords, but quietly. My rule is that you should never speak to your attorney or someone sitting with you. You should always whisper, because it is more polite, and no one can hear you but the person to whom you are talking.

 MOTIONS AND OTHER "LONG CAUSE" MATTERS.
When your case is called for a hearing that is expected to last more than a minute or so, or if your appearance is for trial or the taking of testimony, your lawyer or the judge will probably instruct you to sit at counsel table. He will instruct you as to where to sit, but sometimes the courtroom officer will move you. You will, however, always be seated in close proximity to your lawyer. Feel free to whisper to your lawyer, but do not do so while a witness is testifying or the court (judge) or another attorney is speaking. Your lawyer needs to give that person his undivided attention, and your whispering to him during someone else's speaking will be counter-productive. If your attorney is on top of things, he will have already provided you with paper and pen, for you to make notes of questions or comments you need to tell him. At the appropriate time, your lawyer will read your notes, consult with you, and act accordingly.

If you are in a jury trial, it is customary to stand whenever the jury enters or leaves the courtroom.

 KEEPING A POKER FACE.
It is very important that you maintain your sense of innocence at all times, but you should never react negatively (or positively) to any testimony. The jury expects that you have heard or read all of the negative evidence before you hear it from the witness stand, so if you were to react negatively to certain evidence, you could be tipping them off as to what evidence is true and what is not true. For example, you may hear an adverse witness testifying about all sorts of incriminating evidence, and then hear something that causes you to react with body language or different demeanor. This immediately tells the jury that all of the previous incriminating evidence is true, and that you only dispute the most recent testimony. If you simply keep a poker face, that is, sit quietly and politely through the entire trial, they will not be tipped off as to what you dispute, and what you don't.

Because you as a defendant have the right to go last, after all of the prosecution evidence has been laid out, and the right to remain silent and testify if and only if you decide to, the jury will have a tendency to keep an open mind and give you the benefit of the doubt.

 LEAVING THE COURTROOM:
As soon as your matter has been concluded, you will undoubtedly have some follow up questions to your lawyer about what just happened, and when you need to be in court again. Do not ask him any questions while standing with him at counsel table. There will be another case called immediately after yours, and sometimes your attorney will be involved with that case. Wait until you have exited the courtroom, and your attorney will likely follow you outside into the hall. Be careful not to ask any questions until you are both alone and in a quiet place. Sometimes the prosecutor will be leaving the courtroom at the same time, and you certainly don't want anyone, especially the prosecutor, to hear what you are saying to your lawyer. Most of the time, your lawyer will tell you to write your questions down, and call him at the office later in the day. On other occasions, he may need to explain certain things to you immediately, such as where to go before leaving the court complex.

In any event, do not ask for any advice while you are still in the courtroom, as it is impolite to the other litigants who want and expect the court's complete attention.

Man Makes Closing Statement at His Own Trial

On Tuesday, 37-year-old Richard Alex Williams took his first steps outside as a free man in more than 19 years. The day prior, a Sacramento court ruled that Williams should be acquitted of a mid-1990s murder case that had sent him to prison in 1998, facing a life sentence.

In 1996, Williams was 18 years old when he turned himself in for questioning regarding a murder when he learned that there was a warrant out for his arrest. Two years later, Williams was on trial. In late 1998, Williams was convicted of the crime and sentenced to life in prison.

Williams has already served 17 years in prison when earlier this year U.S. District Judge Lawrence K. Karlton threw out his conviction and sentence.  Judge Karlton said that there was evidence that the prosecutor on the case “was motivated by race when he used a peremptory strike to keep the only African American eligible to serve on the jury off the panel,” reports the Sacramento Bee .

According to the Bee , Williams actually had two trials in 1998; the first one ended with a deadlock jury when the two black jurists on the panel voted for Williams’ acquittal. It was at the second trial later that same year at which Williams was convicted.

Based on evidence of the prosecutor’s misconduct, Judge Karlton ordered the state to retry Williams. The prosecution approached Williams with a plea deal, but he rejected it immediately, his response being, “I can’t plead to something I didn’t do,” he told the Bee . He went back to court for a new trial in September.

At his retrial, Williams decided that he, not his attorneys, would plead his case to the jury. It was important to Williams that he use his own voice to tell the jury that he was, in fact, innocent.

“He felt like giving his own closing was powerful,” said Victor Haltom, one of Williams’ lawyers, according to the Bee . “Here’s the prosecutor, who puts up a slick, nice PowerPoint presentation, and then Richard comes up with a couple notepads. And the jury was looking more and paying more attention to Richard than they were to the prosecutor. Just hearing from him was a big deal, probably the turning point of the trial.”

Williams’ was successful. After nearly a week of deliberation, the jury returned with an acquittal. The following day, Williams was released. He “emerged from the jail into the arms of family members,” reports the Bee .

“The first thing I did, I went and bought a Sprite and some gum and said, ‘I’m going to sit here and think about this, soak up the traffic, soak up the lights.’ Because, when you’re locked up, you’re away from so much normal stuff that goes on in society, it becomes un-normal to you. So I had to soak it up again,” said Williams. 

Read the entire story here . 

Challenges in DNA Testing and Forensic Analysis of Hair Samples

Forensic analysis of hair samples in order to extract DNA is a method commonly used for the purpose of identification in both criminal investigations as well as parental DNA testing. It is in many ways, however, the most overestimated and misrepresented DNA sample. People often assume hair samples make ideal samples for DNA testing. This notion might perhaps be due to the way hair samples are so often seen collected in detective crime fiction series and how solving the crime invariably hinges on finding such a sample. Nevertheless, whilst hair samples can be accurately used for the identification of the perpetrator, the extraction of DNA from the aforementioned sample and its inherent success depends very much on the part of the hair at hand. To better understand the complexities and challenges of carrying out a DNA test on hair, it is mandatory to analyze its structure and composition. One also needs to understand the limited distribution of DNA in the hair as well as the type of DNA available in a given part of the hair (nuclear or mitochondrial DNA).

Structure and Composition of Hair
Hairs are mainly composed of a fibrous protein known as keratin. This protein is also the main constituent of skin, animal hoofs, and nails.

Hair consists of three concentric layers. The innermost layer is known as the medulla; it is a soft structure made of rounded cells and is sometimes referred to as the marrow. The middle part of the hair, known as cortex, is what contains the pigments that give hair its color and elasticity. The outer, scaly layer is known as the hair cuticle. This outer hard and transparent part envelopes and protects the inner parts of the hair and also gives hair that characteristic lustrous sheen. Despite the fact that cells do make up parts of the hair, these cells do not contain suitable material for a DNA test. The reason for this will be explained further on in this article.

The hair root is rooted below the scalp and is enclosed in a hair follicle. This is connected to the blood stream via the dermal papilla. Certain hormones and receptors are also found in the follicles which help to regulate hair growth.

Distribution of Nuclear and Mitochondrial DNA in Hair Samples
The hair fibers (sometimes referred to as the hair shaft) are actually formed by keratinocytes, types of skin cells which are responsible for the synthesis of the protein keratin. These cells naturally die and in the process get converted from cells into a horny, tough material such as hairs. This conversion process is known as cornification, and it involves the destruction and degradation of the cell nucleus (and thus, also of the genetic material enclosed within). As a consequence of cornification, the hair shaft, which is the part of the hair that protrudes out of the scalp, does not contain any nuclear DNA.

Although nuclear DNA cannot be isolated from the hair shaft since it is mostly absent as a result of the aforementioned cornification, nuclear DNA can successfully be extracted from the hair root. The hair root contains keratinocytes, cells which are ideal for the extraction of nuclear DNA. This is not to say that cut or naturally shed hairs are entirely unsuitable for hair analysis of nuclear DNA. In a tiny number of analyses using cut or shed hairs, forensic scientists are in fact able to extract nuclear DNA. The presence of some nucleated corneocytes (biologically dead cells or keratinocytes in their last stage of differentiation) may make it possible to extract a DNA profile derived from nuclear DNA. The existence of nucleated corneocytes is known to be due to an incomplete or absent step during the process of cornification which would normally result in the degradation or destruction of the cell nucleus and DNA. Why these nuclear remnants occur is not fully understood but the phenomenon may occur in some individual’s hair.

Highly advanced DNA testing techniques, resources, money, and time are all factors which come into play when carrying out a DNA test. Forensic laboratories used by the FBI have more resources to allocate toward trying to extract a complete DNA profile from whichever sample is available, no matter how small the probability of successful extraction of DNA is. Thus, in crime scene investigations where meticulous searches by forensic teams yield a single hair, without the root or follicle, thorough and extensive DNA analysis will still be carried out despite the very low chances of success.

On the other hand, companies and laboratories offering direct to consumer paternity testing or other types of relationship testing services do not offer the possibility of hair DNA testing unless the hairs have the root attached. Without this, the chances of success are far too low. They typically discount the possibility of successful analysis using hairs that have been cut or naturally shed, accepting only the testing of hairs that obviously have the follicle attached. Identification of the hair follicle can be done by close observation of the hair with the naked eye; the follicle appears as a small gray-white ball at the tip of the hair shaft. In some cases, a magnifying glass might be required depending on whether the observer has acute enough eyesight.

Uses of Nuclear DNA in DNA Testing
Genetic identification and profiling is only possible through analysis of nuclear DNA. Despite the possibility of remnants of nuclear DNA in the hair shaft (in cut hairs or naturally shed hairs), analysis with this specific part of the hair will likely not yield results.

The minute fragments of DNA present due to a partial breakdown during the cornification process are only visible under an electron microscope.

Even when hairs do have the hair roots, the probability of successful extraction of a complete DNA profile using standard PCR technology is somewhere between 60-70%. When hairs do not have the root attached, analysis can in rare cases yield a nuclear DNA profile. This is possible in cases where living hair cells are still present at the tip of the hair shaft or where, as mentioned, there has been an incomplete breakdown of nuclear DNA during the process of cornification.

Uses of Mitochondrial DNA Found in Hair
Mitochondrial DNA is found in cell mitochondria – cell organelles located in cytoplasm responsible for supplying the cell with energy. Mitochondrial DNA is far more abundant than nuclear DNA with a typical human cell containing many thousands of copies of MtDNA as opposed to just one single copy of nuclear DNA.

In many countries, governments have access to DNA databases where the profiles of thousands of prosecuted criminals are stored. The DNA profiles are however, nuclear DNA profiles and not mitochondrial DNA profiles. This again contributes to the increased distinguishing power of nuclear DNA in crime solving. Further to this, mitochondrial DNA has no discriminating power between individuals as all people sharing a common maternal blood line will also share the exact same MtDNA profile. This means that one cannot distinguish between individuals from the same maternal line based upon analysis of their respective MtDNA profiles as profiles will be identical between maternal blood relatives.

Success Rate of Hair Samples
The success rate in terms of extraction of DNA from any samples is dependent on a number of factors:

Chemical treatment using dyes can alter the cuticle. Dyes can easily penetrate the spaces between the scaly cells forming the hair cuticle or even raise them in order to be better absorbed by the hair. Peroxides, one of the main constituent chemicals in hair dyes, heavily contribute to the degradation of DNA in hair. Peroxides act by specifically breaking the phosphodiester bonds in DNA. Once the hair is exposed to water on washing, the DNA is easily washed out of the hair fibers. The higher the number of washes, the more DNA is lost from the hairs. This loss of DNA is not only due to the degradation and breaking down of the phosphodiester bonds in DNA but also to the damage caused to the hair by simply washing it.

We cannot discount the importance and possible effects of other factors which would affect any type of DNA samples: the age of the sample, the way the sample has been collected and stored, and any external forces that may have altered the state of the DNA (for example, exposure to very high temperatures, soaps and cleaning agents, or to corrosive substances).

Sources

1. Whiting DA., Holland MM., 2001. Human hair histogenesis for the mitochondrial DNA forensic scientist. Journal of Forensic Science, 46 (4), p.844–853.
2. Wilson M. R., Polanskey D., Butler J., DiZinno J. A., Replogle J., and Budowle B., 1995. Extraction, PCR amplification and sequencing of mitochondrial DNA from human hair shafts. BioTechniques, 18, p.662-669
3. Linch CA., 2008, The ultrastructure of tissue attached to telogen hair roots. Journal of Forensic Science, 53 (6), p.1363–1366.
4. Heywood DM, Skinner R, Cornwell PA.., 2003, Analysis of DNA in hair fibers, Journal of Cosmetic Science, 54 (1) p. 21-27
5. Sandra Szabo S., Jaeger K., Fischer H., Tschachler E., Parson W, and Eckhart L., 2002. In situ labeling of DNA reveals interindividual variation in nuclear DNA breakdown in hair and may be useful to predict success of forensic genotyping of hair, International Journal of Legal Medicine, 126 (1), p. 63–70.

Caroline Hughes is a pharmacist currently working as a freelance writer. The author regularly contributes to a number of online blogs and Web sites delving into various, related topics including: forensic testing, pharmaceutical research, genetic illnesses, as well as pregnancy related topics. A number of articles, resources, and information written by the author can be found at:homeDNAdirect.co.uk.