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Terry MacCarthy Cross-Examination CDs
I was about to write something about "legal speaking" and the use of archaic locutions like "may it please the court," when I remembered the use Houston criminal defense legend Richard "Racehorse" Haynes put that phrase to when he was introducing Chicago criminal defense legend (and master cross-examination teacher) in 1998:
Click here for the mp3.
This is the first track in the 7-cd audio recording of Terry's complete cross-examination and impeachment lectures. The entire recording is available for $150 from sales at hccla dot org.
UPDATE: Listen to the first track of the Terry MacCarthy CDs here. Download the order form here.
Technorati Tags: cross-examination, Terry MacCarthy
A Truly Compassionate Profession Redux
(I posted this last month inadvertently before I had rounded out the thought. No idea how. I do try hard to provide quality product.)
Defenders seek to prevent suffering, as do physicians. Unlike physicians, however, defenders are trying to prevent suffering that someone else is deliberately trying to cause.
Causing suffering to our clients is someone's idea of justice. If we were to make our own judgments of our clients' just deserts, we might not try to prevent their suffering.
So the defender's intent to prevent suffering is accompanied by a suspension of judgment. We try to prevent suffering despite society's judgment that suffering is just. That is compassion.
Group Voir Dire II
Gideon commented on my earlier Group Voir Dire post:
Thanks for the insight! It seems that both have their advantages.I'm still concerned that people in group sessions might not express their true feelings in the presence of others. For example, if someone has a strong feeling that anyone who is arrested is guilty, might not reveal that if the person before them has said that they are not guilty and the attorneys have displayed some sort of affirmation.How are the jurors excused? In CT, after the questioning, the juror is asked to leave the room and then the judge and attorneys discuss whether to accept, excuse for cause or use a peremptory. Then the juror is called back in and simply told that they're either on or off.That might affect some of the answers of the others too, if it is done in front of everyone else.I like the individual voir dire because it gives me an opportunity to talk to a person one-on-one and ask as many questions as I like to get a sense of what they think; to delve deeper into some of their responses, creates a more personal feel, as if we were becoming friends.
Bad Voir Dire / Good Voir Dire
I think a lawyer should never pick a jury alone (it takes at least four eyes to keep track of jurors' body language). I also like to watch other lawyers' voir dire efforts. So whenever I get a chance I help out other defense lawyers when they pick juries. Even when it's bad, I learn something. Here's a rule of thumb to tell a good voir dire from a bad voir dire: in a bad voir dire, the lawyer is doing 90% of the talking; in a good voir dire, the potential jurors are doing 90% of the talking.
I think of voir dire as a first date with 24 or 60 people. You want to learn enough about them that you can decide which of them you would like to see again (on your jury), and you want those who you're going to keep to like you and your case. If you pick right and charm them now, it'll be easy to seal the deal later.
Most prosecutors give a good example of a bad voir dire. At least in this county few of them learn how to perform an effective voir dire. They (a) lecture the jury; (b) ask yes-or-no questions; (c) say stupid things like "I take it from your silence that the answer is no;" and (d) react defensively to "bad" answers. (Fortunately for them, the facts [and, in Harris County, the jurors] are usually so weighted against the accused that the State could take the first twelve potential jurors and still win.)
Top 10 Criminal Defense Blog
Jamie Spencer is taking a poll on criminal-defense related blogs. I look forward to seeing the results - I'm sure I'm missing lots of good stuff in blogs that I don't yet know about.
Group Voir Dire
Gideon asks how jurisdictions with group voir dire handle "jurors' reluctance to disclose sensitive or embarrassing information in the presence of the entire jury panel and courtroom observers."
The answer to his question in Texas, where all non-capital voir dire is done in groups (generally of 20 or more potential jurors for a 6-person misdmeanor jury and of 50 or more potential jurors for a 12-person felony jury), is that jurors with sensitive or embarrassing answers to the lawyers' questions are invited to reveal them to the lawyers on the record but away from the rest of the jury.
This got me thinking about some of the good things about the way we pick a jury.
There are things that we can do in group voir dire that we couldn't do in individual voir dire. For example, in group voir dire we can get people talking by playing the venirepeople off on each other: "Mr. Smith, Ms. Jones says that she will hold it against Joe if he doesn't testify. How do you feel about that?" or "Ms. Brown says that it should be against the law to drink and drive. Who agrees with her? Raise your hands."
High-Profile Cases
Lawyers love publicity. We all like to get our names in the newspaper. Right or wrong, we think publicity going to get us more business. If we didn't love publicity, we probably wouldn't have chosen this profession.
Publicity never hurts the lawyer. But we have a duty to our clients that has to take priority over our love of publicity. Sometimes - often - usually - publicity is not in the clients' interest. If our clients, accused of crimes, have the choice between having their names published in the newspaper and not, they would almost invariably choose not to. As a general rule, the more a case is in the press, the worse it is for the accused. The more press there is, the better-educated the prosecutor will be, the more likely it is that an experienced prosecutor will be assigned to the case, and the less likely it is that the prosecutor will dismiss the case. An ethical lawyer will generally seek to keep any case from becoming high-profile.
We've all had those potential clients who call and say "I've got a high-profile case...;" on further investigation we see nothing that would create any press interest in the case (I would say that in Houston a case is "high profile" if hits the press on more than three consecutive days, or on more than two separate occasions, after charges are filed). I think that statement, "I have a high-profile case," is wishful thinking - every case is such a big deal from the client's point of view that they want to believe that it's a big deal to everyone else in the world as well.
Video and Banquet
No blogging yesterday because I was (a) being interviewed on-camera for 3 hours by a guy from Faces Media to create a few short videos for my website; and (b) preparing for and attending the Harris County Criminal Lawyers' Association's annual banquet, at which I was sworn in as president-elect, I gave the outgoing president a thank-you gift, and I got to introduce our keynote speaker, one of my heroes, a man who should be an inspiration to all who do what we do: Charlie Swift (Wikipedia article).
Charlie is the Navy lawyer who fought the government from Guantanamo to the Supreme Court and won. It was his work that led the Supreme Court to tell the government that they couldn't try "enemy combatants" in military tribunals the way they planned to.
In addition to Charlie's stirring speech about the fight to preserve the rule of law, we heard from the new president of the organization, Pat McCann (website), who just got back from active duty in the Navy, and talked about servicemembers' recognition that what we do - preserving the constitution and the rule of law - is what they are fighting for. We also celebrated the birthday of Richard "Racehorse" Haynes's (Wikipedia article), the dean of the Houston criminal defense bar, and honored Mike Ramsey with a Lifetime Achievement Award. We gave the Gulf Region Advocacy Center (GRACe) our Torch of Liberty Award and awarded Vivian R. King an Unsung Hero Award. HCCLA Vice President JoAnne Musick, former president Troy McKinney (scroll down) and Defender editor Shawna L. Reagin received Member of the Year Awards.
Schrödinger's Jury
Some of the most nerve-wracking times in my life - and, I think, in any trial lawyer's life - are those moments between the jury's signal that they have a verdict (here in Houston, two buzzes on the jury room buzzer) and the reading of the verdict. They're almost surreal moments, in which I know that my client's future has been decided by six or twelve people but don't know for sure what the decision is.
In quantum terms, the state of the jury is a superposition of eigenstates: "guilty" or "not guilty." Not until the first consonant of the verdict - "g" or "n" - is read does the wave function collapse into one of the two states.
How to End the Witchhunt
Lyndhurst, New Jersey (from the New Jersey Lawyer, the weekly newspaper of the New Jersey State Bar Association):
Lyndhurst is gathering feedback on a proposal to require background and fingerprint checks of all ice-cream truck and other food-on-wheels vendors as a way to protect children. ‘Most of the people who come to an ice-cream truck are kids,' says Mayor Richard DiLascio. ‘A parent might not always be around.' Volunteer coaches and teachers must already submit to such checks.
Lyndhurst is perpetuating the "stranger danger" myth. The truth is that only 7% of reported sexual assaults against juveniles are committed by strangers (see the Bureau of Justice Statistics 2000 report on Sexual Assault of Young Children as Reported to Law Enforcement: Victim, Incident, and Offender Characteristics at 10). The myth carries the danger that our children, expecting "stranger danger," will be more likely to fall prey to malevolent acquaintances. By the same token, legislating as though the myth is true takes government resources away from other more viable ways of reducing sex crimes against children.
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