How Criminal Trials Really Work, From Openings to Verdict

Here at Kernney Law, every day we see witnesses testify under oath. Some are
bad actors, but by and large, most are good people trying to be honest and
trying to remember. What if I told you that the most convincing witnesses in
court are sometimes and many times dead wrong and inaccurate?
Every criminal trial comes down to one question. what happened and who was
involved. Today on the Now We Defend podcast, we are unpacking why that
question can be muddy and a lot harder to answer than initially meets the eye.
Real life, real trials are nowhere near TV dramas that we see regularly out
there. This is a question we frequently are answering for our clients. This episode is going to let you peek behind
the justice system doors and directly into real trials and see how it really
works. Join us. Let’s pull back the curtain. [music]
[music] [music]
Breaking down the structure of a trial
So the structure of a trial basically is this. You have an opening statement.
You present your case and chief. The commonwealth the def uh prosecution goes
first. Then the defense can go. Then there’s closing arguments. There’s
jury deliberation. And then of course there’s a verdict. And then subsequent to that, the judge is involved with the
sentencing aspect of the case. So, we’re going to start breaking each one of those processes down here. Uh, I’m going
to start with opening statements. Uh, Justin, I’m going to kick it to you. Uh, I know you both of you have been
involved in multiple trials u over the years. Uh so let’s talk a little bit
about opening statements uh when they’re used um how they can be effective what you can and can’t do in them and as
defense attorneys where we can use them uh somewhat to advantage the case. So tell me about that. Absolutely. So
Opening statements: jury trials vs. bench trials
opening statements are often used well not often always used in jury trials. The prosecution does go first.
Essentially prosecution goes first and last. So they get the first word and they get the last word. uh they’re not
really used in bench trials. So if it’s just the commonwealth and uh the defense
attorney for a bench trial really the judge kind of already has an idea of what’s going on. So opening statements
aren’t really necessary. Uh but in a jury trial, opening statements can be very very effective if done right.
Right. And that just comes down to the fact that like we’ve talked about in prior episodes like theatrics, right?
Yes. Um, some of this, a lot of this is theatrics in a way. Um, I mean, we’re
trying obviously to stick to the facts and to, you know, be forthright and candid. Uh, but at the same time, some of it is
a show. Absolutely. And, you know, when you’re dealing with just a judge, you don’t have to put on
as much of a show. Yeah. And I would say the judge doesn’t want a show for the most part. It can actually be disadvantageous.
Yeah. They want to get in and out of there. I mean, obviously they want to hear everything, but they’re not there to waste time, right? So, same thing
with the jury trial. Uh, like I said, if used effectively. Sorry, let me cut in one more time. With a bench trial, too. I mean, this is a
case that this judge has already seen in court on multiple occasions leading up to that. So, this judge knows already
kind of the layout of what is alleged probably. Um, you know, and the point, one of the points of an opening
statement to a jury is they haven’t seen any of this before, right? They’re just being introduced to it. Absolutely. So,
we really have to lay that framework for them more than a judge who already pretty much knows what’s going on. Yes. And I would say everybody does it
differently. And like we talked about in the last episode, you know, you you have to be yourself in a in a jury trial. That’s really really important. Yeah.
And for me, opening statements, you you see some attorneys, they they’ll talk for 15 20
minutes in an opening, which to me is just completely ineffective. You want to get the jury locked in quickly and
effectively. And for me, I would say around 5 minutes is perfect. Uh you
don’t really want to go over that. It’s just again, you’re initially introducing the jury to the case. You’re going to
talk about some of what you know, your version of the facts are going to be. You got to avoid certain things like
you’re going to hear this or you’re not going to hear this because even if you think a witness is going to testify some
way, they may not and they may forget something or they may not say something. Yeah, that’s a that’s a tough line,
right? cuz you want to kind of predict for the jury what they’re going to hear
because in a way you can actually be effective, highly effective later in the case if they then hear it and then you can
point back to it and basically say, “Guys, I told you this was going to happen. This is what happened and this is what it means, right?” Yep.
But you are right cuz if you promise or overpromise Yes. and then underdel
that’s not good. That can be actually fatal to a case. Most most if not all uh
trials really do come down to credibility. And that’s not only of the witnesses, that’s of the attorneys, too.
So, you know, if you’re presenting or telling a jury that they’re going to hear something or they’re going to see
something and then they don’t or something else comes out to me and in my
experience both as a prosecutor and defense attorney, that just makes you as the attorney look not credible. And
that’s just so detrimental to your case because again it’s who do they believe? Yeah. Who do they um align with as far
as the testimony, right? So I want to if I could Tim, I want to jump over to you because you know you’ve done a lot of trials and um I know you’ve
seen this this issue as well uh come up and you know you’ve I know delivered some very effective opening statements
Real case examples: crafting an opening that connects
in trials and I I’d like to get your take on this a little bit too. I like what Justin’s saying. I mean, I I
[clears throat] um I would always craft my openings to be as close as I could
get them to argument without actually being argument, right? It’s such a fine line. And um the way that I would do that a
lot of times, like I remember a a good example of this, I think, would be the first case that I ever tried actually.
It was it was a DUI endangering welfare case, but there was also like a domestic
violence angle to it. And um the victim
[clears throat] was a key witness, but she was she was hostile. Mhm.
So I knew from listening to their prison calls and all kinds of other stuff that
this is a person who wanted a relationship with the defendant, like she she loved him.
And he was kind of a little bit of a deadbeat and wasn’t getting a job. She
was pushing him to get a job. He wouldn’t stay sober, all that kind of stuff. And so when I crafted this
opening, I tried to connect with the jury to kind of help them think about people like this that they may know in
their life that we know, you know, sometimes we want people to be more than they are
willing to be. Sometimes we want them to be something that they’re just not. And that was kind of the launching pad
for the rest of my opening statement, which which I think tied into my argument, right? you were tying that into how she
felt about the defense, right? And and having the jury kind of draw a correlation in their own lives. And that’s really what a lot of the trial is
about, right? You want the jury to draw from their real life engagements and experiences when when processing the
evidence and when thinking about this. And and if you can be pathy like that, that’s great. But not every case lends
itself to that. Like I had a pretty good retail theft pattern that I would use just talking about the fact that like
members of the jury go to go to their jobs, they work, they spend 80 hours away from their family every day so that
they can earn scrap, they can scrape out a living and they support their family. They buy groceries. They buy things that
will increase their enjoyment here. But on this occasion, the defendant thought they could just skip all that.
You know what I mean? So as a prosecutor, that’s kind of how I would do it. And as a defense attorney, that’s it’s similar, but you’re doing it from a
from the other angle. Obviously, you’re trying to get the jury to connect to something that that would help them to identify with the defendant and and and
to explain maybe why the defendant did some of the things that the defendant did and how those things maybe are
actually reasonable from a certain perspective or they make sense from a certain perspective. Yeah. And that way you’re arguing before you
even really get to argue. Right. Right. I mean, I I think between the three of us here, you know, doing a
number of trials that it is, as you were saying, Justin, kind of uh and and you
alluded to very important to argue to the point of argument.
Yes. But not actually argue hard because you don’t know exactly what the evidence is going to be yet, right? You do have a
sense, you have a pretty damn good sense of what it is going to be, but witnesses change their statements. they they they
you know discredit themselves on cross that happens all the time right so what my um kind of mental road map in a in a
opening statement usually is I try to get to that line right I try to work in
kind of innuendos I try to give the jury ideas of how they should consider things that they might hear and how they should
be thinking about that because if they’re not if they don’t have a road map
they’re going to be sitting there kind of getting spit Spitfire all this information that they can’t really process unless they’ve previously set it
up in their mind, right? So, you can help them set that up. And it doesn’t have to be like a full-on
inventory of everything that’s going to like you’re going to see MVR, you’re going to see body cam, you’re going to see a lab report, you know, like almost
like a mechanical description of everything that’s coming in. It’s just general. You’re going to hear about
these facts. You’re going to hear about the interaction. You’re going to you’re going to see some video. And then at the end of it, I’m going to
stand in front of you. I’m going to summarize it all again. and I’m going to ask you to find the defendant not guilty. One thing I I think you can hit on,
especially with video evidence that is certain, it’s not unchanging, and you already looked at it a hundred times,
you can touch on that a little more heavily cuz that is unchanging, right? But when it comes to testimony, that’s
where you have to be very, very careful. You also have to be careful too because like if you if you’ve picked up on
something in the video that you plan to use to make an argument, you don’t necessarily want to flag that
in at the outset because you’re giving the Commonwealth an opportunity then to maybe examine their witnesses on that
subject or flip it and change how it’s viewed or give away uh you know your potential aha
moment, right? So, you kind of want to package it as if it’s you’re almost like telling them, hey, like pay attention to
the video. You’re going to see the video and the Commonwealth is going to say that you’re going to see XYZ, but pay
close attention to it. I think that’s a really important um aspect of opening statements as a
defense attorney. Although, as a defense attorney, we don’t have to give a statement. We can defer our opening statement until our right before our
case and chief, so after the Commonwealth closes. But at the same time, you know, in being a prosecutor,
you know what your strategy is going in no matter what. Like you you’re pretty much solid before way before you get
there as to how you’re going to present it, what you’re going to do, what you’re going to show, what testimony you’re going to try to elicit. But on the
defense side, it can be difficult sometimes to figure out exactly what they’re going to do until you’re in trial. So, you kind of have to think a
little bit more on your feet as a defense attorney in the sense of, okay, I think this is how the Commonwealth’s going to spin it. But then you get to
trial and you know they go a completely different direction. So I think it is really important again to just be kind
of general, give a road map and avoid being super definite about anything.
It’s it’s again laying out that road map, giving the jury, hey, you’re probably going to hear something about this. Um here’s some of maybe the
elements depending on how complicated the case is. Um but you really don’t want to just go in there and be like,
this is what you’re going to hear. this is what you’re going to see XYZ. I think that’s just so detrimental.
Too quick. Yeah. And I think another thing to be very careful of in openings that um especially new attorneys
sometimes I think mess up is you never want to
talk at the outset at least. This is probably more for closing about the
credibility of a witness. Yes. Cuz you don’t know what that’s going to appear like. You might think through all the hearings you did that this person is
totally incredible and you might be right. But what if they cleaned it up, you know, and you show up there? So, you
don’t want to do that. And that’s why you never want to say, “This person’s going to lie to you at the outset.” I mean, one one way I think a crafty
defense attorney could set this up is kind of say something like, you know, you’re going to hear from Mr. Smith. Uh,
and Mr. Smith is going to tell you an account of events that he observed or he saw or he heard. Um, but you’re also
going to hear from two other witnesses that saw the same event, uh, and heard the same things, and their accounts are
going to differ. Uh, and it’s going to be up to you as the jury to weigh that credibility, uh, to weigh give the
weight to the evidence that it deserves, um, and make those decisions. And that’s part of your job as the jury is to weigh
credibility. Yeah. And I think that’s a really important part for them to know because you’re kind of putting arrows in
their quiver saying, “Hey, this is your job.” Yeah. here’s your weapons, you know, use them when you think they’re
appropriate to use in trial. And I think it empowers them, but you have to be a little careful because you don’t want
the jury to think they’re all powerful and just, you know, we want them to still be fair and to use those weapons
in a way that will be effective and fair to both sides. And to your point too,
Why cross-examination is the defense’s best weapon
like if a witness has a credibility issue, I mean, we’re going to get to cross-examination, but cross-examination
is a lot of times where you can really win or lose a case. And for you to deliver a really, really
powerful cross-examination, that could be exactly what you need to seal the case for your client. Why would
you give anyone a preview of that? I mean, the whole part of the power of the cross-examination is that it comes kind
of out of nowhere. So, you shouldn’t really be giving them information that
would help them to forestall that through their direct testimony. You you really kind of want to just leave that
and then when the opportunity presents, you pounce on it. Yeah. No, I agree with that. And um that
is actually one of our best weapons as a defense attorney is the power of cross-examination because we can ask
leading questions and we can set things up in a way that we control a lot more than the prosecution can in their uh
direct examination of their witnesses. I agree with you on that a lot, Tim. That’s very powerful. Um, the other
thing I think is important is because the uh, defense goes second in the
presentation of evidence in a trial, it is really important that the jury understands that and that they don’t
jump to conclusions because it’s human nature if they’re hearing what they believe to be a very
one-sided damning evidence that they can almost convict your client before you
had a chance to even present your evidence. So, it is important when you’re giving them their weapons, when
you’re giving them their their arrows, that you tell them that one of your best defenses, one of your best uh weapons
here is the ability to have an open mind throughout the entire trial because the
defense does go second. And they’re going to hear things that likely contradict, that likely are different
than what they hear out of the gate. So, don’t make up your mind until until you’ve heard all the evidence. And
that’s that’s so important. I just had that conver that exact conversation with with a guy a couple weeks ago um where
it’s essentially a he said she said and I’ve been in those cases as a prosecutor. I had one as a defense
attorney in my my first goound with that. But if you have the Commonwealth
witness, we’ll say a victim uh and they testify and you know the jury finds them
credible like you just said without hearing anything else. It’s pretty damning and it sounds like, okay, this
guy’s guilty or this girl’s guilty, but then when you put we as defense attorneys put our client up or another
witness to testify that may contradict what they’re saying and the jury believes both of them,
they find them both credible. Well, that’s reasonable doubt. Yeah. So, absolutely. Cuz it’s not Yeah,
that’s a great point, Justin, cuz reasonable doubt is not 50/50. Yeah. It’s way more than that. Yes. And I am uh we are going to talk
about the standard of reasonable doubt in this episode because it is the uh
standard at trial that is required across the entire United States uh even federally uh which again we do federal
defense here too. I mean that’s it’s the same burden. It means the same thing and I think a lot of people don’t understand
what it means and it’s important to try to kind of break that down and we are going to break that down for you in
today’s uh episode. So yeah. All right. Well, I want to kind of move on here
from uh openings, but I do want to just highlight a few important points of openings that I think we’ve discussed
here. So, one of the most important parts of an opening is to be coherent in what you’re telling the jury. And
sometimes that means being concise, as Tim alluded to. Uh you don’t want to bore the jury out of the gate and put
him to sleep and have them, like I told you in the last episode, have a juror picking his nose and be totally
disconnected right out of the gate. You want to tell a coherent, concise statement uh that makes sense to them uh
that they can look for and they can follow. You don’t want to present personal opinions. Uh I know or I heard
or I believe. None of that is going to help you whatsoever and in fact it can actually get you ethically in some
trouble. Uh you want to explain the issues somewhat as Tim and Justin were saying superficially. Uh but also what
they should keep an eye out for and you might want to hammer home a few points. look for this, be aware of this. Uh,
secondly, you’re going to want to hear them, prepare them, I should say, for the defense going second and for being
ready for that and keeping an open mind be and honestly getting them a little excited about hearing the other side of
it. Uh, because sometimes, again, that’s human nature. People don’t like to just be told what to believe. They like to
know everything. So, get them excited for the whole thing and what they’re going to hear and that’ll keep them interested. Um, and the other last thing
that I like to point out, uh, is if there if you know there is going to be bad evidence for your client in the
trial, it is far more, uh, beneficial to you and your client if you acknowledge
that and you call that out yourself as opposed to kind of like hiding from it and hoping that it kind of doesn’t hurt
your client. because that gives the prosecution their aha moment or their um
kind of jamming at home moment that we want to try to avoid. Uh and this can be done both in openings and also in
testimony. Uh so, you know, outing the bad stuff is usually far more effective
than getting it sprung on you. All right, we’re going to jump to the actual case and chief, guys. Um this is the
actual trial part and this is the meat of what we’re going to talk about today. So, the first thing I want to start with
is the burden of proof. Uh, as I just mentioned a moment ago, burden of proof is beyond a reasonable doubt.
Beyond a reasonable doubt, explained in plain English
I’m going to kick it to you guys, but before I do, I want to be clear about one point. Beyond a reasonable doubt
does not mean beyond any and all possible remote doubt. However, it is a
very high burden. Um, so, uh, Tim, we’ll go over to you here. I’d like you to
give me a sense kind of a layman’s term sense for our listeners of what is
beyond a reasonable doubt and how would you explain that to people who have no idea what that means? Yeah. I mean I I
would say just speaking kind of in everyday language that that
reasonable doubt is when you hear something and you you pause for a moment and think that I might I believe that or
I could believe that or maybe I don’t believe that. And if you’re confused, I mean,
well, and I’m saying I’m I’m saying it from the perspective of of finding not
guilty. Finding someone not guilty. Reasonable doubt in the Commonwealth narrative would be something that causes
you to go, you know what, that might be true, and so we’re going to find him not guilty, or we’re going to find that the
defendant not guilty. M um to say it another way, it’s something that gives you that makes you uncertain
of what the outcome really what really would be or what what happened. So if you’re hesitating in finding that
person guilty, right? And you’re thinking back on the evidence as a juror and you’re looking over it and you’re like
[clears throat] and you’re just like I want to get there because there’s all this evidence that says he’s guilty but
there’s some things that I’m hesitant about here that might not get there. Right. I think that’s the way you’ve
packaged it is really good because obviously we’re defense attorneys so like the what I’m saying may sound a
little bit counterintuitive at first but in the vast majority of cases police are not just randomly charging someone. So
like there is a sense where I think a lot of juries are looking for like they
want to agree with the commonwealth most I think center of the road jurors
they’re saying because this person is at this point and the commonwealth has brought it this far they want to believe
the commonwealth is doing that because they actually can meet their burden right yeah I agree with you I think inherently
everybody in society who isn’t living under a rock knows that you are not going to be sitting here in trial if
there isn’t something here that got you to this point. And so the juries a lot of times are looking for that. And it it does give the Commonwealth
kind of an advantage that is unfortunate in a way, but it is they do have that and we have to acknowledge that,
right? and and so we’re the ones that are just kind of poking holes in the in the bag, you know, and and the jury is
trying to get on the same page, I think, a lot of times, but if there’s something there that they
just can’t cross a gap, they just can’t connect with them or like you said earlier, like the there’s a story from
one person that makes sense, but there’s a story from another person that also makes sense. A lot of juries have a
problem with that. Juries have problems with other things, too. And I think we’ll we’ll probably get into some of these, but like um believing one witness
alone. A lot of people have a problem with that because I think yeah, that can be a tough cell. In everyday life, we are kind of I think
conditioned to not believe the word of a single person. And so if we hear it from one person,
well, we say, well, there’s got to be more, right? I’m not going to take you at your word. But the law allows juries if they
find that single person credible to be like, “We can believe that person and we can convict on that person’s word
alone.” Yeah. And so I’ve had some juries where the jury would not believe a single witness,
but I’ve had some juries where I’ve talked with them afterwards and they’ve said, “We remembered that we said in
Vladier that we could convict on the word of a single witness and that’s what carried the day when we were
deliberating. We we heard the word of a single witness. None of us could put could find any fault in what this person
said. So, we all agreed we were going to convict on the word of that one witness. Yeah. And and I think too, Tim, like
reasonable doubt can come from evidence that’s actually presented. Yeah. But it can also come from things that
are missing, right? And that’s sometimes, again, we talk about kind of our arrows and our quiver as a defense
attorney. That’s one of our most powerful arrows. What’s missing or what wasn’t done correctly? Because what
you’re doing there is you’re planting seeds in the jury’s mind of what should have been done better to get to that
threshold of beyond a reasonable doubt and again hammering home that it is the commonwealth burden to do that and they
have failed to do that because this is missing or that is missing. And when you’re doing that, I mean, the t the
tactic that we’re using, just to be clear, is we’re centering in pro most likely on some circumstantial evidence.
And that means that there are two dots that the Commonwealth is trying to get the jury to connect in order for them to
draw an inference, draw some kind of conclusion. And when we’re arguing about the thing that’s missing, what we’re
doing is we’re trying to tell the jury that it there are other things involved
in that. And so that gap connecting those dots really isn’t a sure thing,
right? Like I have I have cases where they want to get somebody to draw a conclusion
based on something that they did find in a place, but there are questions about
whether or not that’s really evidence of any crime. And so, you know, they want you to draw
a a conclusion about where these things that were found came from. But can you
even really draw that conclusion in the first place? or is that really just a a large logical leap that you’re making
that the Commonwealth wants you to make? And so I think the tactic when we’re doing that is we’re trying to convince them that that’s a pretty big leap in
logic and they shouldn’t do that. Yeah. Yeah. The burden of proof is intentionally one-sided for that reason,
right? And Justin, I I kind of want to ask you this. Um, so one of the ways I describe beyond reasonable doubt to
juries, uh, a lot of times is I try to kind of link it to simple examples involving their own personal lives,
right? Um, so most people, not all, but a lot of juries have families. Everyone comes from a family, right? So one of
The bridge analogy and the puzzle analogy
the examples I sometimes use is I say, “Okay, the Commonwealth has built a bridge here, okay? Uh, and they would
like you to drive across this bridge, okay? and they’re telling you that it’s
uh they’re pretty sure it’s going to hold. They’re even fairly certain it’s going to hold. And the question for the
jury is, you going to drive your family across that bridge? And I’ll tell you,
if that’s what the evidence rises to, I’m pretty sure, I’m fairly certain, I
would not drive my family, five children, and my wife across that bridge. Okay? um unless I was firmly
convinced that that bridge was going to hold. So that’s an example I think a lot of people can relate to and I think it’s
a fair example to describe beyond a reasonable doubt as somewhat of a firm firmly being convinced. Um what are your
thoughts on that? Yeah, so this is a more recent thing in the sense of I saw it
second half of last year before I left the DA’s office. there’s some type of case law out there that essentially
states that the court is not allowed to give the jury um like examples of what reasonable doubt is. And a lot of times
when I was first getting started, you hear, you know, reasonable doubt is like when you’re thinking about buying a
house and are you sure buying a car or something like that. Yeah, I remember that too. Yeah. Yeah. And so the the courts have shot
away from that and I’ve seen uh attorneys object to that in in closings and different things like that. I think
what you’re saying is a little bit different than that. So, I think that would probably be okay.
Yeah. The way I go about it, I and I definitely agree with you that the court is a little different than the
attorneys when it comes to a not a little, a lot. And what the court does a lot of times juries will take spoonfed.
Yes. Right. So the the court particularly has to be careful in how they do this and that’s why of course
there are appeals on cases and things get overturned um because of some things the courts do and maybe shouldn’t do.
Right. Yes. But I think as attorneys both prosecutors and defense I think we have a little more leeway uh in trials to be
a little more argumentative argumentative in our uh in our statements to the jury.
And I think it’s fair ball. Yeah. To do that a lot of times. So, I hear you and I I you know,
obviously as a defense attorney, I mean, if a prosecutor is going to sit there and object to me, I mean, that’s saying something, you know, and in a way, I
kind of like that, right? Especially if they’re going to object to my opening or my closing because that’s I mean, guys, that’s honestly uh that’s kind of bad
tact. You try to shy away from that if you can because obviously that can rub juries the wrong way, but you have to also have
limits. So, that there is something to that. I’ll say with that, too. So what I would always do or not always but what I what
I like to do when it came to reasonable doubt was use use the puzzle example and not give of an actual example what
reasonable doubt is but kind of talk more about you know reasonable doubt think about when you’re doing a puzzle. Mhm.
You put pieces in and eventually you get to a point where you know what the big picture is
even if there’s some pieces missing. Yeah. Like like your mind can actually visualize it. Yes. So rather than being
like, okay, you know, reasonable doubt is when you go to buy a car or house. It’s more of put the puzzle together, even if there’s
a couple pieces missing, again, it could be beyond reasonable doubt. That was as a prosecutor. Now, as a defense
attorney, it’s going to be like, well, there’s too many pieces missing, right? We don’t know what the actual big picture is here. What what’s actually
going on? Right. So, it kind of goes both ways. Yeah. And I would say that that puzzle isn’t like
it’s a complex puzzle. Yes. And you have to also be clear about that because I think what some people think about a puzzle, they think about, you know, when
I’m halfway done that puzzle and they’ve been staring at what they’re trying to put together, they can then look away
from that picture and visualize it in their mind. So, you have to be careful not to give too much away there. But again, I think using the puzzle example,
one of the things to talk about a little bit is like if you’ve got like a couple corner pieces missing or a couple side pieces, but the the meat of that puzzle
is intact, you might be missing something on the per, but you know, you can see what’s going on.
Absolutely. But if you’re missing something in the middle or you’re missing something over here and there’s a whole face missing. Yeah. You know, or
you got uh one witness identifying that this is the face and another witness says this is the face and maybe two
different faces could fit there. We have beyond a reason. We’re be we’re not beyond a reasonable doubt. Yes. Absolutely.
Yeah. Absolutely. And I think that again explaining this to the jury,
especially for people that, you know, haven’t been involved with the criminal justice system or, you know, maybe don’t
know anybody that’s an attorney or a police officer, a judge, etc. It can seem confusing at first, but I
really think it’s it’s straightforward. And again, just conveying to the jury
what we as the defense, you know, believe is going on or again, what’s there, what’s not there. Really what it
comes down to is just hitting home that hey guys this is what the Commonwealth
wants you to believe based upon what they presented but you need to go back there and deliberate and really think
about did they get there and if they didn’t that’s a not guilty. So, it’s really just again hitting home to the
jury kind of like Tim said, you know, if you don’t think you’re all the way there and again, it’s not to 100%
certainty. It’s not to a mathematical certainty. Um, but I think each individual can make up their mind as to
what they think beyond a reasonable doubt is. And it may be a little bit different from some people’s perspectives, but ultimately in the end,
it comes down to did they believe this to the point where they are convinced. I and I love that. I mean, I love the way
you’ve described that and and that’s why honestly I mean, I’m I’m probably in the minority of a lot of different attorneys
because I never address beyond reasonable doubt for the jury. The judge is going to instruct them on
what that means. So, like anything from me is just kind of superfluous. And I’ve done enough trials where I’ve seen
defense attorneys um and other attorneys give analogies of what beyond reasonable doubt means that are just as destructive
to their own case as they would be helpful. Yeah. So, like I just don’t address it. Yeah. It’s It’s almost like you can’t
make it more complex than it is. And if you do that and confuse them, you can be damning to the case and to
the to the standard. Yeah. One time, well, [clears throat] not even just to the to the standard, but one time as a prosecutor, I I saw a
case where a defense attorney gave an analogy and I could see the jury’s reaction to it because it was it was the
kind of analogy where it was like, well, anyone in that situation is making an assumption. Like you crafted this
analogy to try to illustrate how dangerous it is to jump to conclusions, but look around
you. Everyone in that situation in real life jumps to conclusions. Like you you
didn’t get you didn’t read the room. Yeah. The jury felt forced. Yeah. Because like you just we all
understand that if we’re in that position, we are drawing a conclusion. So like you picked a bad analogy and and
so I just I don’t address it. If there is reasonable doubt from a defense perspective, what I’m going to do is I’m
going to argue here’s a here’s something you heard. Here’s testimony. Here’s a piece of evidence. Here’s what it says
or what it didn’t say. This I submit to you is reasonable doubt. Yeah, that’s a great way to do it. And I
think that’s a better way than trying to trying to tell them, well, I’m going to I’m going to I’m going to teach you like
a law professor because that also insinuates real facts that have been presented
that they can actually use in a real example. Not not like I want you to think about this random thing out there
and then try to apply it to what you’re hearing. I’m going to I’m going to tell you what reasonable doubt looks like in this
case. I’m going to tell you why. I’m going to point right at it. Right. And as a prosecutor, what I would always do, it was a phrase I used in a
lot of my closings was here’s all the evidence and based on all this, we can
be confident that the defendant is guilty. Juries like hearing that because they can say, you know what, he said
these are the pieces of evidence and he said that that like let’s think about are we confident in in this person’s
guilt based on these facts. Yeah, that’s a pretty powerful word. And the same thing is true from the defense side. You say here’s here’s the
evidence. It doesn’t show this, right? This is reasonable doubt. And because this exists,
you you got to find a knock. Yeah. I think I think everything we’ve talked about here, guys, um is important
because there’s different ways to do this. There really is, guys. Uh different attorneys are better at other things and doing it certain ways than
others. But the bottom line is human nature is we never like when someone
forces something down our throat. Like in Tim’s example where he uh you know a defense attorney had given an
essentially an example that required assumption, right? You don’t necessarily
want to do that because you’re going to put them in a position where they feel forced and pushed and you will turn them
off uh to your side of facts. And you have to be very careful there because a lot of this is guys, you know, the human
mind is a lot more likely to conclude what they have decided on their own than
what someone force feeds to them, right? So drawing their own conclusion and what is one of the most powerful things that
that we can accomplish is to help them to that conclusion. Okay. Uh let’s move into testimony. Um you know, witnesses
get presented by the Commonwealth uh when they’re giving their case. Obviously, as defense attorneys, we have
the ability if we want, but we do not have to present witnesses. Um, and there’s obviously, you know, strategy
involved with that and discussion with our client witnesses. Any witness that gets uh presented, uh, the other side
has the opportunity to cross-examine. And as we said before, on direct um
Direct questions vs. leading questions
testimony, meaning the caller of the witness has to act ask direct questions.
Direct questions are questions that do not conclude the answer in the question.
Okay? So, I’m going to have you guys give some examples of that. And then, um, on cross, you have the ability to
ask leading questions. Leading questions are questions that conclude the answer
in the question and essentially ask for the uh, witness to either agree or
disagree with it. And there’s ways to word that that can be crafty and can lead witnesses down paths that they
might not realize they’re going down until it’s too late. So, I’d like to kind of start with that. Uh, and I know
we’re going to get into a lot here. You know, we’ve talked in our prior episodes about, you know, eyewitness identification. That was the fun episode
where we all played grown man dress up. Uh, that was a blast. But, uh, I want to
talk about that a little bit too with witnesses. But, um, Justin, I’m going to go to you first. Uh, here. Let’s talk
about uh tell us about direct questions and what you can and can’t do there and maybe shoot me some examples of that.
Yeah. Uh when you said that it made me always think of being in the DA’s office and you know
doing questioning etc. Defense attorneys are you have it easy right cuz it’s like what happened? What happened next?
Oh right what happened next? You know uh but really direct questions are like you said we’re we’re not suggesting an
answer. So, um I’m trying to think of some examples like in a DUI case, uh for example, when
I’m asking the officer, uh to tell me about the stop, right? So, okay. Um you
pulled the vehicle over or did you pull the vehicle over? Right. Um once you pulled the vehicle over,
what did you do? Um what did you observe? Yeah. What did you observe? So, you approached the car. Did you smell anything?
Did you smell anything? Um was there an odor of alcohol? Um those types of questions. And it’s interesting because
the way that he’s he’s phrasing some of these questions draws objections. I’ve I’ve asked questions like this where
you’re it draws an objection and the objection is leading. Just because it’s a yes or no question. Well, look at the
definition of leading question. Just because it’s a binary yes or no does not mean it’s a leading question.
Yeah. I mean, some of those there are ways to ask direct questions that do
slightly suggest or at least put you in the ballpark of where you’re going cuz at some point you ask questions, you
have to give a little bit of information in that question, right? Yes. And that’s one of the exceptions to the leading questions on direct rule is
establishing a foundation. Um, another exception, I think, is if like a witness is having trouble remembering something,
you’re allowed to you’re allowed to assist them with leading questions. I mean, there’s another one, too. And let’s also let’s be real about this.
Like if you’re in a trial situation and a prosecutor is asking, let’s use the
example of like, did you smell an odor of alcohol? That’s kind of leading, but it’s also
kind of direct. And you could also rephrase it by just saying, “Did you smell anything?” Did you smell? Right. But you got to be
careful here as a defense attorney because if you’re going to literally like bifurcate and object to every
possible little un that’s unnecessary leading possibly leading question,
the juryy’s going to look at you and be like, “Dude, what are you hiding?” Right? Like stop. Yeah. Or just get annoyed. And also, I
mean, the reality is, I think, like give give opposing council some benefit of the doubt that if you did object, they
could restructure that question and then the thing that they’re trying to get in would come in. Yeah. Cuz guess what? The witness just
heard it. Yeah. Exactly. So, like, do what’s you’re objecting to what end really? And
and with the direct verse leading question like with that, you know, saying did you smell an odor of alcohol isn’t you smelled alcohol, right?
Yeah. You know what I mean? You smelled alcohol, didn’t you? Yeah, you you smelled marijuana. Um, so
that’s a great example. I like throw the in there before, did you? Um, like Tim said, I mean, obviously certain
attorneys are are going to object to everything, but in a trial, especially a jury trial, juries get so annoyed with that. They
hate that. They They want to hear the evidence. They don’t want to hear the objections. I mean, obviously there’s going to be cases where there are
objections. There’s going to be some cases where there’s a lot of objections, but those are few and far between in my
opinion and in my experience. I think if you res reserve your objections for things that really matter,
or that you really have issue with, the jury will respect that. But if you’re crying wolf constantly,
it’s like the boy who cried wolf. They’re just going to discount everything you’re saying. They’re going to discount all your objections. They’re go, “Here we go again.” Yeah,
you know, and it’s going to completely mess up the flow of the trial,
but we also have to keep in mind that objections are another tool and another
weapon that we have that we need to use when appropriate. Yeah. But you need to be smart about when you use it. Well, that’s the thing, like you said,
Objections: when to use them and when to hold back
you know, it has to be at the appropriate time. And if you are strategic with that and you object to certain things
rather than objecting to everything, that’s going to draw the jury’s attention to Oh, yeah. Do you know what I mean? So,
like if there really is something Yes. So that’s in their mind if you know you’re objecting to every question
they’re not paying attention to any of that or what even the issue is. And honestly the jury doesn’t even get to
know sometimes what the objection is. Sometimes you get caught up the sidebar and you got to talk it out with the judge and they’re going what?
And they don’t like that cuz they do want to know and it looks secretive. Like they’re literally sitting there and
you’re up there with the white noise on like like huddled up with the judge and the other attorney. And chances are they already like we we joke
in the profession about how dumb juries jurors are. Like oh the 12 people that weren’t smart enough to get out of jury
duty. But in my experience, I think a lot of jurors that I’ve I’ve had and interacted with are pretty smart. Yeah, I love smart jurors.
So like they they a lot of times can kind of sus out what we’re arguing
about. Like I think they kind of know. They may not know like the specifics of it, but they understand
when there is something there. I think they intuitively kind of pick up on it. And I’ve had some questions after the fact where they’re like, “Why didn’t we
see this thing?” And it’s like, “Well, we were arguing about that. We we like there was a question about
whether you could see that thing or not.” And and sometimes, guys, I mean, you’ve all been in this situation where
an objection gets drawn by one side or the other. And it’s such a big issue that needs to be dealt with that
inherently all the attorneys and the judge know it. That the jury actually gets stood up and marched out of the
courtroom. Yes. So they don’t sit there and have to watch us like huddle up at the sidebar for an hour and figure something out.
And sometimes you need to do a little minor hearing within the trial that the jury can’t see, right? So they get they
get a little break, you know, while while we figure that stuff out. That’s not every objection by any means, but every once in a while.
Unfortunately, too, you there are trials like I had a trial. It was actually a retrial from a hung jury where the
defense kept objecting to basically everything. No. And so we probably did three or four
sidebars and then finally the judge was like, “All right, we’re getting the jury out of here.” So then we thought we had everything figured out. It was all about
what the witness was allowed to testify about and not allowed to testify about and how certain questions had to be
asked. So while we’re we get the jury out and you know, we kind of have that mini hearing and talking with the judge
and and defense council. It’s like, “Okay, well this is what we’re looking to bring in. This is how I’m going to
ask it.” Defense is like, “Well, I’m going to object to that. I’m going to object to that.” So, we literally had to go through with the judge and determine
how these questions could be asked so we wouldn’t have to keep taking the jury in and out. And unfortunately, that didn’t
help. And the jury was taken out, I would say, four or five times in an hour. So, you had to like baby step every
question. Yes. And it was it was annoying. And the jury hated it. They ended up convicting the guy. And uh he ended up going to
state prison for 2 to four years, which you know was good at the time. Um but the jury was pissed. Yeah.
They were so mad that they had to keep going in and out. And then so I’m gonna Yeah, I’m going to go guys
public service announcement here because I know there are other lawyers that watch our podcast by the way. We appreciate you. Thank you.
Um don’t be an ass if you’re an attorney.
We are all trying to get to a beneficial resolution for a lot. Yeah, I know. For our respective client,
but please for the love of God, don’t be an ass. Like there’s so many lawyers out there that we deal with both on
prosecution and even when I was a prosecutor on defense that are just an ass for the sake of being an ass.
Yeah. Stop it. Okay. Just enjoy your profession a little bit. Be smart.
Advocate for your client. But you are doing a huge disservice to yourself and to your client if you are an ass. Stop
it. All right. Um Tim, I want to jump over to you. Let’s talk about leading questions a little bit. Yeah. Okay.
They’re they’re uh they’re more fun. they’re kind of the sexy question. So, let’s talk about that. Give me some
examples of like leading questions. Um, and also kind of how that can be such a
powerful weapon. Yeah. Um, leading questions would be, “Isn’t it true that you didn’t gather
Leading questions on cross-examination
this surveillance footage? You didn’t check to see that there was footage from this source,
right? How about um Well, you didn’t you didn’t send the drugs to the lab, did you? How about you had a camera when you were
on this scene, correct?” Yeah. Did you uh get your camera out and take photographs of the scene? That’s
actually an open-ended question. That’s a direct question, but you know the answer to that is no. Right. So, okay.
And you didn’t do that because you didn’t think it was pertinent at the time. Right.
Right. And you mean in examining like an officer for instance, right? Yeah. Yeah. Yeah. And what like I just had a hearing where I I crossed an
officer and like one of the questions I I mean I got to a point where I was like so you had already made the decision to
seize the vehicle before you asked for consent to search it. Correct. Which which is arguably one question too
many. Right. It’s it’s arguably the one question beyond what I should have asked.
Um but I I I felt good about it with the testimony. Um, so like that that’s a
lead that’s a leading question and ultimately I mean the the guy kind of had he he didn’t really concede fully on
that point, but um I mean the testimony was there. The record had been built. Yeah. But I I love the the whole thing
about cuz officers have at their disposal on crime scenes a lot of tools,
right? And they don’t usually use all their tools and for good reason usually,
right? But I know that juries think a lot of times that they should use these
certain tools, right? We want to see the evidence as it was the day of the event. You know, did you have the ability to uh
to take photographs? Did you have the ability to pick up this piece of evidence and take it with you? Why did
you you didn’t take on scene? Yeah. You didn’t get a written statement from the victim. Yeah.
You didn’t go back several days later and take pictures of the victim’s injuries. Why not? And again, what we’re doing here is we’re chiseling on that reasonable doubt
standard, right? we’re just bringing the gong. We’re just here you go. And that’s putting in the jury’s mind these conclusions cuz juries again assume and
rightly so that the officers have a lot of these tools, right? And I think on the prosecution side, prosecutors don’t get to cross
very often. So, it is kind of a known blind spot, a known weak spot for a lot of prosecutors that they’re kind of weak
on that part of their their skill set. Yeah. But when they do cross, sometimes they get to cross the defendant. Well,
that’s what I was going to say is that I I mean I was fortunate in several ways. First, I was fortunate to actually learn
things about cross-examination from a defense attorney who still practices um and I interact with him periodically,
sort of a mentor figure even to this day. So, he taught me a lot about cross-examination. And then when I became a prosecutor, I
learned from an individual who had been an attorney for I mean, he’s been a prosecutor longer than I’ve been alive.
And that guy has cross-examined quite a few uh people in his time and he has
constructed some some brilliant cross-examinations. If you listen to some of his stories, I mean, it’s kind of like I would never have thought to do
that. So, I got to learn from him. And so, and I’ve seen some blistering cross-examinations in Dolphin County.
There’s a lot of prosecutors there that I’ve seen really hammer uh witnesses on
cross and expert witnesses, too. So, um, you know, but you’re right. When the
defendant testifies, it’s kind of like the smorgesborg. It’s kind of the the buffet for a prosecutor.
And that’s makes it easy to screw it up cuz there’s just you have the mindset where it’s like, I want to I want to eat
it all. And that can be overwhelming. It can be too much. And prosecutors can fumble
that on the goal line. I was fortunate to be able to cross-examine a defendant
uh I believe two times in a jury trial. actually maybe three times in a jury trial I got to cross-examine a defendant
and um another time I got to cross-examine a defendant at like a preliminary hearing where I essentially
got him to admit like he incriminated himself at the preliminary hearing. So I was able to do that um several times and
hone some of those skills, right? Um so I do feel pretty good about cross. Yeah. Yeah, I know you do. This is uh
pretty um What was that supposed to mean? You were like I know you do. Well, you’re confident. You do well. I mean I’ve seen you work it. you do well.
Um, asked too many questions. Yeah. No. Um, no, I mean you I mean Tim, you’re you’re a very effective lawyer.
That’s why you work here. Well, thank you. Um, but yeah, I mean, at the end of the day, guys,
you didn’t get a compliment. Justin, I like you today. I didn’t start talking yet. It’s true. You didn’t.
All right. But here, let me uh jump back to all three of us here. I mean, when we’re dealing with um
with our our cross, right? And I I remember one of the best lessons I
learned on cross was early in my career when I was a prosecutor and I have used
The lesson every trial lawyer learns the hard way
that and kept that in the back of my mind every time I’ve done cross since then uh which has been innumerable
times. And the lesson is this.
If you go at someone in a way that puts
them off or you try to be a gladiator on the little guy, you are absolutely
destroying your credibility. Here’s the example. I had a welfare fraud case, which is a stupid case that pretty much
nobody cares about. Was a jury trial. The person was up there testifying, the
defendant. I was the prosecutor at that time. Again, this might have been my second or third trial ever. And I had
the proof, man. It was all It was all digital. It was all in writing, right? And I was hammering home on this person
who was on welfare. So, they’re, you know, already somewhat impoverished, right? They’re already kind of on the lower rungs of society. And I’m just
hammering this guy, this poor guy sitting there. I’m hammering him. I’m telling, look, I mean, this is where you
defrauded the government. How much money did you take from the government? You took thousands over a course of these years, yada yada yada. And I’m just
making this guy feel like garbage in front of the jury. And I sat down. I go
to myself at the time, I crushed that guy. I got a conviction, right? And you know what the jury did? They went back
there. They spent about five minutes in the jury room and they came out and they found him not guilty. And when that
happened, I sat there and I knew that I effed up, right? And I I went and talked
to the jury and they were so angry with me that I almost wanted to leave the discussion as I was in there because of
um how pissed off they were at the way I attacked this guy on a stupid issue on a
case that was kind of irrelevant to them. So you got to know your audience. You got to know what case you’re in. You got to know when you need to do that.
And you never start at that level. I mean that that’s one of the things that I learned from a lot and and to be clear
I don’t mean to brag about lacrosse. I’m I’m if anything I’m bragging in the fact that I got to learn from people who were
so good at cross and and I think they like they’ve given me a foundation that I can build on and
I’m still building on it. But one of the things that I learned from some of these really really
effective cross-examiners is that you don’t start at a 10. No,
you start by coming at people very harmless. Yeah. You want to almost be like their
friend on cross. You start on the common ground. Yeah. Yeah, these are you would agree with me
that the sky is blue. [clears throat] You’d agree with me that we’re here in court today and that you are this person
or whatever. Obviously, you know, those are exaggerations, but you start with the thing, the parts of the case that
you know they will not deny. Yeah. One of the most powerful crosses is if you can actually turn a witness
that is not yours into a friend. Yeah. and kind of get a rapport with them. Yeah. And then kind of slowly lead
them to again through leading questions to conclusions or to facts that you want
them to talk about. Cross-examination is kind of like what is that? That bug? It’s like an ant
lion. I think I think that’s the bug that sits. I think that’s what it is. Is that a combination of an ant and a lion? I don’t know. It’s an insect, but
it sits below the surface of the sand. I think if I’m thinking of the right bug and when something crawls over the sand,
it’s it snaps at it. Right. That’s kind of how cross-examination is. You want
them to to walk in front of the trap or walk through the trap, but the trap can’t be so obvious that
they see it coming and that they and then they’re going to get evasive with you because they’re never going to inc they’re never going to willingly admit
to crime on the stand. That’s that’s a fabrication. Well, if they’re smart and even non
non-defendant witnesses, I mean, they’re again, we we tal I just mentioned it earlier with juries, human nature,
right? You want them to feel comfortable walking into that trap, right? You know,
and they’re much more they’re willingly walking into it, right? Right. And um that can be some of the most effective cross.
It’s delicate. And that’s that’s honestly what that example that I gave earlier kind of taught me. Right.
It was don’t try to come at a 10 out of the gate. And I think a lot of lawyers, you have
to go through those moments, you know, when you’re young. Absolutely. You’ve got to screw up. You got to learn. Well, and there’s definitely some
kinds of witnesses that I wouldn’t cross at all. Right. Like, and in the case you’re describing, that might have been one of them. I mean, if you have all the
evidence of his guilt, why give him why give him another chance to to look for
the jury, right? Explain it or to make him look like like a you know,
someone that needs help that is kind of the lower end, right? Really pathetic. Pathetic hard are hard
to That happened to me and it was much further on in my career than I
would have hoped. It was it was last year sometime I had a case that honestly
this guy was just pissing me off and I I knew he was lying. Emotion got to you. Emotion got to me and I knew he was
lying. I knew exactly what he was lying about. So when I got went on went into cross I started way too hot and
it was a pretty contentious trial. It was like the third day of it. We were almost finished and all the shenanigans
and antics that went on from defense council throughout the past two days like I was just I just had enough.
And unfortunately I let my emotions get the best of me and when I went into cross him like you know like you talked
about I just went in way too hot and I was asking yes or no questions and
you know he was trying to explain things and I was like finally I was like judge he’s not answering the question like I’m
not asking him to explain so you know can you instruct him to just answer my question? Mhm.
And so he did and then on redirect essentially defense council was like,
“What did you want to say?” And I was like, “Well, that backfired, you know, cuz I wasn’t thinking that far
ahead, which yeah, it’s a pretty simple question for the defense just to kind of recover from because I was so just I I had I had
tunnel vision at that point and I was just so pissed off at this guy that he was lying. Um, luckily
she asked him that and he said some things that were detrimental to him. So on recross I was able to kind of you
know cool myself down and just make sure that I hit on all of the things that he had and now just admitted to that he
you actually recrossed a defendant. Yeah. After the crazy
times you need to do that to repair um I needed to I have a I have a case I just thought
of. This was another early one um that I I want to touch on because this another kind of silly stupid case but a serious
crime. Uh crime was burglary. Uh burglary is entering a structure with the intent to commit a crime. Uh that
crime of course could be what we think of normally, which is like theft, but it could also be assault, rape, things like that.
Okay, so that’s got set up here. It’s a burglary trial, felony case. Uh I’m
again young. I’m a prosecutor at the time and uh I had the opportunity to uh
cross-examine this defendant. I don’t think in hindsight that the U defense attorney should have called him as a
witness, but this person chose to. Uh, and I was, you know, of course, as a
young prosecutor, foaming at the mouth, as they say, right? And the facts of the burglary were all were, this is the
stupid part, they were kind of dumb. Like what the guy did to commit the burglary is he punched his fist through
like a window cuz he was trying to like reach in and grab like something to take it. He went he didn’t actually get to
take the thing because it was like too far out of his reach. But he never actually like physically
walked into this structure. It was a garage. His hand. And I was using this I was Yeah. His
hand did the burglar, right? So I was using this analogy. I was using this analogy where
like you think about have you you guys have seen um those ADT commercials the security systems where like the the
numbers and the letters are like running all around. Dude, I always thought that was so cool. Let’s get that security system.
It is kind of cool. That’s not how it works. But those commercials like I remember from when I was a kid, right? Um I mean
now security systems are way more advanced, but back I use I was using that analogy and I was like guys to the jury I was like
you know guys like look think of that ADT thing and um you know his he broke
the plane of the residence when he his fist entered the the structure and there worse arguments he committed. Right. But
but the the problem is where I’m getting at with this is the witness when I’m crossing him. It was also Justin,
somebody who he was just like pissing me off. Yeah. He was like a a guy who was
like a don’t tread on me type of like hot guy, like hot-headed guy, you know?
And I just I always butt heads with guys like that. Um I don’t like when guys
always try to be the biggest man in the room. That just like pisses me off in general. And he was that type of guy,
right? And he’s like up there. And at one point I realized while he was testifying that he’s wearing like an MMA
fighting shirt on the stand and I asked the dumbest question and I I still
regret this cuz I ended up losing the case. I I got him that the guy got found not guilty for whatever reason but
probably because probably the right probably the right verdict. It was probably the right verdict. Voucher
then he should have been found guilty. Maybe if his hand was on trial he that would have been found guilty, right? But
in any event, um, [laughter] yeah, in any event, um, I I brought it
up. I’m like, well, sir, I see you’re wearing a MMA fighting shirt there.
Isn’t uh one of the biggest uh things involved in fighting, uh, punching? [laughter] So, is that something you’re
regularly doing? And it was just so stupid, you know? And I remember asking the question, and it was a judge who’s
no longer a judge. Literally up there, he laughed out loud at me. And as soon
as he left and he couldn’t hold it, right, I was like, “Oh I just lost the kiss.” You know, like I’m I’m like,
“Give me back those words. Give them back.” But it was too late. And and I remember so that’s why like again the whole point
of me telling you guys and the viewers this story is like one of the most important parts of like cross
I think is to maintain reasonable coherent control. Mhm. And the moment you start getting like
you I like in that moment I like lost my mind. Like I was just like out of control cuz I was upset and like
I wasn’t thinking straight. Right. Justin, I think your example was kind of similar. You just weren’t thinking straight. You know, you just got kind of
too personal. Yeah. It was uh you know, like I said, it was a long trial, long week. I think it was the second week of the trial
week. So, I’d already done probably two, if not three trials before that. It was it was back in February of last year.
Um, and I was just there’s a law I think there’s a law school lecture or something that’s on
YouTube. It’s kind of comedic and I forget the guy’s name, but it’s an old video where he he goes through like
the ten commandments of cross-examination. He’s doing it from a prosecutor’s
perspective, but they’re largely universal principles and they still hold
true to this day. Yeah. I think now that you’re saying that, I think I’d like to do an episode in the future on cross and
maybe be even more um direct about some of this stuff and more concise for our
Why memory is reconstructed, not replayed
viewers, right? Because we’re we’re trying to hit on a lot of stuff here and you know, one of the things of course is cross, but that that’s really a whole
episode. It is, you know. Okay. Well, let’s move on from cross a little bit. Let’s let’s talk about um the testimony
itself. Uh, you know, one of the things we’ve hit on in our in our prior episodes are that people who are
testifying a lot of times are testifying from, of course, their memory of an
incident because it’s not something happening in real time, but um, many times their memory is something that is
of many, many, many months or years ago and they’re recalling it uh, on the
stand. And it’s important to note that memories when they are recalled, the human brain re reconstructs it as
they’re recalling it in their mind. So they’re literally reconstructing or making it up as they’re recalling it
from their recall facilities or faculties. Um, it is not a video
recording that is replayed in their mind. Although that’s how we sometimes think of it when we obviously when you
guys think about when you recall events, you kind of can view them almost like a slideshow, but they’re really not. And a
lot of times that’s your brain playing tricks on you. So, I think that’s important to call out, right? You know,
uh, memories are fallible, fallible, fallible, like so fallible that sometimes, uh, they can be
highly convincing but wrong, you know. Uh, so I want to talk a little bit about
that. Uh, Justin, let’s jump over to you. Uh let’s talk about just memory and
um how witnesses sometimes can be thinking they’re honest, trying to be honest, you know, but can be wrong and
and how that can kind of play out and how we can use or kind of exploit that
in a trial when we’re doing examination. Yeah, absolutely. I think a lot of
witnesses that get something wrong, it’s it’s an innocent mistake. Yeah. Like we talked about in previous episodes,
people remember what they believe they saw, not what they may have actually
seen. Um, so, you know, memories, I think, like you said, are are reconstructed. They’re not replayed. So,
there’s not many Well, I’m sure there’s people out there with a photographic memory, but most of us do not have that. We We all think we do, though.
Yeah, we all think we do. Yeah. But again, like we talked on the previous episodes, you know, stress, uh,
lighting, time of day, uh, if something suggestive, all can alter, uh, your
memories, uh, and therefore, you know, what people believe actually happened. Uh, witness testimony, uh, can be honest
in their mind. They, you know, make an honor honest effort to recall everything again, but can still be mistaken on
that. Um, and again, it’s not deliberate. It’s not dishonest. Uh just again people misremember things
especially when you think about how the jury trial system works here in Pennsylvania and especially in York
County. Someone’s charged with a crime in August. You may not even get to a trial till 8 9 10 12 months later,
right? Depending on uh you know the the severity of the case or how serious it is as well as uh different time delays.
So, somebody that witnessed something for, we’ll say, 10 seconds August 10th
of 2026, they go to trial August 10th of 2027. They’re now recalling a 10-second
period of time that happened a year ago. Yeah. And, you know, they might have replayed that in their mind. Yeah.
Over and over and over and here and there while they’re also living their life and other extraneous factors are
coming into their life. Change things over time and that can literally change the way they see it. Yeah. you know, uh, and there’s studies
out there that prove that. Yeah. Um, so I think drawing on that sometimes in trial can can be really effective.
Um, so I think the takeaway from that is confidence does not always equal
accuracy. Yes. Okay. And and hammering that home and asking people kind of the question
of drawing from their own life experiences and recall memories to think about that, you know. Um, okay, Tim, I
want to jump over to you here. Um, so tell me a little about why you think witnesses sometimes change their
Why honest witnesses still change their testimony
testimony even when they’re trying to be honest. Um, I’ve [clears throat] seen witnesses
change their testimony in my personal experience because they are trying they’re anticipating the argument.
That I think is one of the biggest things that they’re trying to like interfere almost with the trial. I think I don’t think
they’re trying to interfere, but what I think they’re trying to do is they’re trying to say things in a way that stops
you from making an argument that they’re anticipating. So, I’ve seen protection, correct,
of themselves or other or other people like this is generally something I’ve seen with hostile witnesses
and and you do see this with police. I think when police this is something that when I was a prosecutor, I would always
try to coach out of police because this is something people really don’t want to see in police when they’re testifying.
Um, they really do not want to see a police officer who starts arguing law
with the defense attorney. Um, and well, I’m I’m not going to say this part
of it because I don’t I don’t want to put anyone in any weird position, but there’s uh I’ve seen several officers
over my career who will not concede basic things. They want to argue about
everything. And that’s a problem. And when when they start arguing rather than just
acknowledging a fact, okay, you didn’t get this this piece of evidence, just acknowledge it. Just leave it at that
and be done with it. Let me rehabilitate that on on direct as a prosecutor or let
me argue it on in argument. And if I’m a defense attorney, I’m going to argue it either way. No matter what you say, I’m
going to argue it. And if you keep arguing with me, you’re giving me what I want. Right. Like I think it’s it is important
and we do have a lot of officers that watch our podcast. So um to mention this, I mean,
one of the some of the best witnesses I’ve seen are officers who keep their
cool. Yep. And are calm. And again, their job is stressful. Like they deal with very
stressful life and death situations every day, right? Uh very sometimes aggressive, hostile people, right? So I
think their training on the street that they have day in and day out and the training they have to
prepare them for the street a lot of times puts them in a position where they actually are a bad witness.
Yeah. Right. But the ones who I think are veterans, who are experienced, who have been on the stand a lot,
are very good a lot of times at being calm and knowing that they have a good
prosecutor on their side is if they do that um cat caught it too and will
rehabilitate it, you know, right? And the hearing that I did the other day that I mentioned earlier, I mean that that officer was great. I
mean, he he didn’t if there was something that was not great for him, it’s not like he was going to sit there
and weasle around it or whatever, you know? He he he just told the truth and he conceded what needed to be
conceded. And and I know which and he pushed back on the stuff that he could push back on.
Yeah. Those are the guys that that come across really well. Those are the hardest ones to cross on as a defense. Yeah, they are. Um and
you’re right. I mean there a lot of knowing the officers doing this day in and day out. We kind of know their
personalities, right? And the one you’re talking about there, I know him. He has that type of personality, right? That’s
his baseline, right? He’s a good cop and you know, he’s not going to argue with you and he’s not going to fight. He’s going to let the
prosecutor do their job, but he’s going to be honest and tell the truth. But it’s not just police officers that do that, right? Like it could be that in
a domestic violence case, you have a victim who’s no longer really cooperative. We see it way more there.
They want to try to make it seem like it wasn’t all that bad because DV cases are emotionally charged anyway.
So, you know, it’s really hard for somebody who has lived something, right? And is it that is emotionally traumatic
or hard for them to separate that from when they have to sit in court. I mean, I train witnesses all the time on uh you
know, when we’re doing testimony as defense. I explain to my witnesses, I tell them when you are on the stand, do
not get angry. If you are asked a question that you disagree with, Yes. don’t freak out, right?
Don’t tell them that why you pushing me down here like any of that. The moment you do that, you’ve lost.
Yep. Prosecutors, I mean, that that is something that that is a goal. I mean,
if if if the defendant starts screaming at you in court, rattle them up a little, that’s game over. Cuz the prosecutor stays cool, calm, and
collective, as my dad says, cool as a cucumber. He uses used to use that term all the time. I think I’ve seen him use
that in trial back when he was a prosecutor. But in any event, um yeah, like if you are calm, you are in
control. Let the other guy freak out and destroy his case, right? And it goes for police, it goes for
other witnesses, DV cases, everything, you know. Um but that is I think the the biggest most common answer to your question.
Yeah. And that kind of leads into the next point I wanted to make, which was juries are looking at body language, you know, in witnesses and in in prosecutors
and in defense attorneys. I mean, one of the reasons the jury box in the courtroom is directly next to the
witness stand is that they’re they need to see that body language, right? And they need to be able to hear
inflections in speech and things like that, right? Um, so another reason, if I can just kind of backtrack, I don’t mean
to because I I know we we obviously want to move on, but another reason why it’s dangerous for witnesses to try to anticipate the
argument and to spin it away from that argument is because you don’t actually know what the argument’s going to be.
Um, I mean, a lot of these people don’t have a legal background. They don’t know what the the and they some of these
people if they’re hostile witnesses, they probably were not in prep meetings with you to develop trial strategy. So,
they don’t know what your strategy really is. They they’re jumping the gun and they’re jumping to a conclusion
where uh they’re trying to to make the case about a certain issue that may or
may not really be the argument. And so, if you start arguing over something that’s a side issue, that’s something
also that people can see. like why are you arguing over something that’s not even important and that’s a problem. So
like that it really is a bad thing for witnesses to do that. Yeah. Yeah. And I agree with you. Um
going back to kind of the body language thing, I think it’s important uh for our viewers to also understand that we all
believe that we are very good at telling when someone is lying or making something up because we trust ourselves
more than anything else. But studies have shown that the average human,
the chances of detecting a lie from somebody that is talking to you is
slightly better than chance. And that’s for pretty much the average normal
person. And I think it’s important to be humble about that and people know that
because you don’t want jurors on your jury who are going to hijack the jury
and say, “Oh, I’ve got all these skills and my I know how to detect when someone’s lying and my job leads to me
being able to do that.” And all that stuff. Um it’s just uh it can be uh toxic to to a jury. So that that again
gets back to vier like we talked about in our prior episode and making sure you have jurors on in your jury that um are
not going to to do something like that. So okay um we did uh Tim you talked
about this earlier uh that you know cross-examine examination is not a required thing to do and sometimes can
be a very powerful tool not to do right and just let and in fact I think sometimes when we say powerful sometimes
when they they do their whole song and dance and depending on how it goes and then they go uh defense any questions no
questions that could be pretty powerful because then you’re basically saying to the jury I don’t need to hammer from her
home what you should already know because the other evidence points to this and you know you argue that later
Prepping a witness the right way (and the ethical line)
right so um but again to that point you also mentioned this it is important to you
know always kind of prep your witnesses and I do want to talk about that a little bit because this is this can get
into somewhat of an ethical thing uh that I think again a lot of lawyers uh
may get a little dangerously close to the line here that you need to be careful with. Um, it is legal and it is
ethical to prepare your witnesses. What it is not ethical to do is to feed your
witnesses what they should say because it will be advantageous to the
conclusions that you want drawn or to lie or change their testimony so things
uh are in a light that you want a jury to see that. Yes, suborning perjury is a way to lose your license.
Yeah. I mean, but again, there’s a fine line there, right? Cuz I mean, you want to prepare your witnesses. You need to
prepare your witnesses if you’re a good attorney and you’re preparing for trial. Mhm. But by the same time, you need to be
careful there as well. Yeah. I think that the way that I prep my witnesses is I clue them into what
I’m going to ask them and and I really don’t do a lot of coaching on what they’re going to say.
You should do no coaching. Right. I mean, really, there’s no There’s some where where we’ve done practice answers and I’ve I’ve told them
like, “Hey, the the way that you’re saying that’s really confrontational. The way that you’re saying that is really like
it doesn’t come across well.” Like you you need to think about the way you’re answering that question. The way you’re saying it, not what
you’re saying. Right. And I agree with you on that. Like, and this again gets back to what we were just talking about, like people’s emotion. People can get very
emotional very quickly and you need to remind them they are in a courtroom. They are not talking to their buddy at a
barbecue, right? They are in a courtroom being examined and viewed by jurors who
do not know them. This is the only time they will see them, right? I’ve also had conversations with witnesses where I’ve
said, “If you answer this question that way, the way that you just did, here’s the attack you’re opening up,
right? Here’s how you could be re here’s how you could be crossed. Okay? Here’s what I would answer. Here’s what I would
start questioning you on based on that answer.” Right? So, I’ve had those conversations and then let them think
about how they can reformulate it. But the main thing with prep is here are the questions you’re going to be asked
from me. You know, mentally prepare yourself for that. But also, here is what I think the other side is going to
be asking you on cross. Here’s how I think they’re going to come at you. You need to be, we know that these facts
are bad for us. So, they’re going to come after you on these facts, and you need to be prepared to explain these
facts. Why did this happen the way that it did? And to your point that you said earlier, prepping people also takes the
form of advising them to keep their emotions in check. Yeah. These are the things that they’re going to come after you on. And if I were on
the other side, I would really come aggressively at you on these things because I’m in part looking to see if I
can trip you up. But also, I mean, if you get aggressive with me, you’re going to look bad. So, you need to understand
that could be a trap they’re laying for you. Do not lose your cool. I would advise people when I was when I was
doing preps with people, I frequently advise them, take a sip of water before you actually answer the question or or
take a deep breath before you answer the question. Listen to the question. Actually process it. Don’t just assume
you heard something and you’re going to answer the question you wanted them to ask you. Listen to the question. take a moment to
think about what you’re about to say. Take a deep breath, take a drink of water, whatever, and then go into your
answer. And I would tell them to do this because I’m not a supercomput. Sometimes it takes me a while to process the
question, too. And if the question is that is asked is objectionable, then I may need time to process that and
lodge my objection. But if you launch into an answer and you give an you give
information that is potentially problematic for us, I can’t I can’t do anything about that.
You chose to answer the question. So give me a second to figure out if I can stop you from having to answer the
question. Give me a second to catch up and protect you. Yeah. But if you launch into the answer and
you incriminate yourself, there’s nothing I can do. Yeah. Because even if you do object, the jury just heard it,
right? Um, so it’s kind of out of your mouth already, out of the box, right? So the other thing I I think on that same
vein prep them on is again taking that breath, taking the drink of water, thinking about it. I mean, if you take a
drink of water every time you’re asked a question, that’s a little weird, right? Yeah.
Don’t interrupt like don’t anticipate you understand the whole question and just start you know vomiting the answer
um before it’s even asked because that also looks suspect um like
you’re trying to force the questioner to go down a certain path. Right. And also nothing’s worse than like a juror and an
attorney constantly interrupting each other like mid question it answer. You mean a witness?
Witness. Sorry. Yeah. What did I say? The juror is interrupting a witness. Yeah. And we should
and um and I don’t know if we have any of our loved stenographers out there in court watching our episodes, but if we
do, we understand your pain. Uh and we know that you are it is hard to take down
what people are saying if you are being interrupted or the witnesses are interrupting themselves. And I I’ve
actually seen attorneys that do this pretty regularly. Stenographers will interrupt the trial, yell at them, and
then you kind of look like an ass because the impulse, especially in public speaking, is to speak fast. And
then add to that the fact that you’re trying to as attorneys, we have so much pressure on us to make an effective
argument and to get that argument out without interruption that we tend to talk very quickly.
Well, and again, we’re we’re trained in law school and we’re trained in as practitioners to be in control. But
being in control is usually the guy that goes a little slower, the guy that is calmer. It’s not the guy that forces it,
runs it through, talks too quickly, interrupts. Like that is what human nature wants us to do when we want to be
in control. But a lot of times the calmst guy in the room is the one in control, right? And and one of the prosecutors I
was alluding to earlier, I mean, his speech pattern in court is is
very slow. It’s like this. It’s not slow to a
point where it’s spit it out gently. It’s not like that because he can go fast,
right? But he breaks it down very simply. And this is kind of the pace a lot of times
that he’s making these arguments. Yeah. And he comes across as very even keel, right?
And he comes across as not very like aggressive. Even when he’s being aggressive, the juryy’s not looking at
him going, “This guy is a jerk.” Right? because he’s going slow. And what they’re very smart about that person, I
think I know who you’re talking about. Um, he’s aware of the fact that he is
playing to his audience at all times. His audience being the jury because the jury also needs time to process what
they’re hearing. And if it’s Spitfire, Justin, you were just saying this. If it’s Spitfire interrupting, interrupting, interrupting, you get lost.
Yeah. You get frustrated. You get angry and you get lost, you You know, he he pairs this well with a way of relating to the
jury where he can display he can go over legal concepts without using a lot of lofty terms. And I I had
told him several times that I admired the way that he spoke. It was just so simple. You wish you could do that instead of
using so many big words. Yeah. I mean, you do use a lot of big words. Yeah. But and that’s Yeah, you’re right. And and that sometimes is a bad thing. I
I kind of assume the best about juries that they can follow what I’m saying. Yeah. But I do acknowledge there are
times where you are you do talk over juries a little bit and this guy was
always very good at stripping it down to a very simple argument
and the utility of that argument would be apparent on its face and I just that’s just not how my brain works a lot
of times. So some people can’t do that. Uh but but this guy it always impressed
me the way that he was able to do that with relating to relating to people like that. Mhm. I will say I watched Tim do a couple
openings and a couple closings and there was a closing that he did. It was remember the theft of the cell phone.
Yeah. It it honestly it was a great case overall, but I just think the jury was so
they hated it. Yeah. They were like, “Why are we here for this?” That was the case where I had a juror that said, “This is stupid.”
Oh, that was the one you talked about the other episode. And I I mean, and the defendant and I So, we went out to the And I’ll let I’m
sorry. I’ll let you finish then. But we went out to the bathroom after that. And the defendant basically even made a
comment to me while we were in the bathroom where he was like, “Man, like you you destroyed me on that closing, man.
Like you’re you’re trying to like have me executed here.” I’m like, “Dude, I just had to make an argument because I
know the jury’s checked out at this point.” The facts of this were the guy stole a cell phone. Yeah, it was a phone that was left on
the giant like a giant. They left it at like right next to where like the keypad
thing is where with your card and he picked it up and left with it. So it’s like theft of lost property
and honestly like the other facts of it like I mean it was solid but again the jury was just not into it but they didn’t care. But yeah, I had never seen
Tim. That was the first time I saw Tim like in an actual trial. And I went up to watch his closing. And I remember
just thinking like for the type of case that it was, he had like one of the most articulate and just
wellspoken closings. And I was like, there’s no way they don’t convict this guy. And then he finishes up, he comes
out, he’s like, yeah, man. There was a juror. Like I heard him as I was like doing it. He’s like, this is stupid.
Well, it was before I [laughter] crafted my closing in consideration of the fact cuz that had happened the day before
when we broke for the day. He was like, “This is dumb.” And so I spent a lot of time thinking about this closing because
I was like, “How do I how do I even go into making an argument knowing that the jury doesn’t care?”
Yeah. Right. Like, yeah, it’s kind of it’s tough cuz like when you have cases like that,
sometimes as a defense attorney that can be actually beneficial that it’s silly and stupid, right? They should have found him guilty. I
think that was the correct verdict. What was that? That was qualification. It was essentially the jury going, “This
is dumb. This is a waste of time. Why is this here? I’m just going to find him.” Yeah. And I even got feedback from the
judge afterward where he was like, “I was certain that they were going to find him guilty.” And and one of the facts that I hid on in that case was the fact
that that the owner of the phone had pinged the phone. And so it had the message basically saying, “If lost, call
this number.” And he saw the defendant saw that. And what did he do? He he
powered the phone down. So like Oh, that’s kind of a consciousness of guilt, right? The defense was Well, he was
gonna he was gonna give it back, but he just had other things going on or whatever and he got distracted. Well,
if he was going to give the phone back, why’ he power it down? Yeah, that was my argument. And the judge found that to be pretty persuasive. I
think it was a good argument. And I do think I mean I think the jury in that case did get it wrong. But again, you
know, no harm, no foul because I mean, the victim got the phone back and you
know, that’s I think part of what entered into the equation with the jury is like it’s a theft, but everything,
you know, everything was restored. So, like what are we here for? Police, though. Yeah, exactly. The police had to get involved.
Yeah. I I guarantee in that deliberation room, somebody said the words finders keepers.
All right. Um, so all right, guys. I want to move to uh closing statements.
Um there is a few more things that I wanted to talk about kind of uh with
trials, but they’re not as interesting. For instance, expert testimony. Yeah, that might be an episode we could do
later. Uh it’s a little dry, but talk about that in a in a cross-examination one because that’s
that’s a big part of of experts. Yeah, I do think experts come in uh from time to time and uh can be highly
effective in trials. So, I do want to talk about that. Before I do move on to uh closing arguments though, I do just
want we mentioned it before. I do just want to hammer home though that as a defendant in a case, you are not
required in a trial to present any evidence whatsoever. You are not required to testify. Right? You of
course can uh but if you are if you do not testify as a defense uh or as a
defendant, the jury will be instructed that they cannot draw any negative inferences or anything at all negative
from the fact that you chose to remain silent because that is your unqualified right to do. And I think most people in
society know that try to apply it. There is some kind of human nature there that I think can play into this sometimes.
But that is that is something that it is important to know. And you know, of course, we we discuss this all with our
clients when we’re deciding whether or not they’re going to testify, right, at trials. All right, let’s move to closing
Closing arguments: where the real argument happens
arguments. Um, so closing arguments are where both sides kind of remind the jury
about what they heard, uh, what the evidence that was admitted was. And it it’s really the time where I think
argument can be the most effective. So, we talked about how openings aren’t really where we argue, right? Because we
don’t have a crystal ball. don’t know exactly what the evidence is going to be. Well, when you’re at the end of the trial, you’ve heard it all. They’ve
heard it all. You’ve seen it all. It’s all on record. Now, this is where you can shape it, you can argue it, you can
point out certain things uh to the jury that I think can be uh very beneficial. So, Justin, I want to jump
[clears throat] over to you. Tell me about some uh closing arguments uh maybe that you’ve made where you you’ve done
certain things and use some examples and then also um just kind of what what is the best way to kind of do a closing?
Yeah. So, I think at least for me, the the best way to do a closing, I had
started using some some PowerPoint slides in more complex cases, not to put
everything out there. Um, you don’t want to oversaturate, you know, the slides or
the jury with with certain information, but just to kind of help me as a road map, I would use that. You know, I’ I’d
usually Justin, I don’t mean to jump in. I feel like I cut you off a lot, but you bring up a really good point. I just wanted to
hammer it home. Like juries love picture Yeah. stuff. And and they’re going to recall
things in jury deliberation better if they just heard it, saw it, read it,
watched it, you know, whatever it might be. Um, so the fact that you do that and the fact that you just brought that up,
that is highly effective. Like I agree with you completely on that. And we all like to sit back and watch a
movie, right? It’s kind of the same thing, right? Juries are very visual and if you can present them visual evidence
and take the time to do the work to create that for your client for your case that can be very very effective and
I think break it down in a way that they will recall easier in uh in the jury
deliberation. So you’re spot on there and didn’t mean to interrupt you but dude that’s great man. Yeah. And so I’m
a visual learner, so that’s also another reason that it helps me stay on track when I’m doing a closing, especially
like I said for more complex cases. Um, and I would usually put, you know, the jury instruction up there with the
elements and just as again a road map for me to then present uh to the jury my
argument with respect to the testimony they heard, what I believe the facts were, uh, what I think they should
consider, what they shouldn’t consider. I really, really like doing that. Uh, one of my favorite closings uh that I
did was in a homicide case. And I mean overall it was so the defendant
testified. I talked about this before. This is the one where the guy had the gun across the street and was was essentially the victim was advancing
towards him and he was like, “Why pulled my gun out?” Um, because only a person
that also had a gun would continue advancing towards someone that’s showing them a gun. Um, and he ended up, I think, firing off
eight shots at the victim. Two of them hit him. One the the fatal one went
through his uh back and spinal cord. And we had the pathologist testify that the
trajectory of the bullet was basically he was kind of like turning away and down.
So basically his back to the guy. So, he was running away and they recovered the shell casings and at the the very end of
my closing essentially was, you know, somebody that’s claiming self-defense
here or whatever they’re going to claim, uh, imperfect self-defense, etc. He fired off eight shots. And the way I
ended it was I took each of the shell casings out and put each one down on the, uh, front of the jury box and just
said bang, bang, bang, bang all the way through eight of them and that was it. It was a little more
dynamic than that, but [laughter] it was I mean it was definitely it was compelling. I mean it was
Yeah. And then uh I had another one the mouse case. I don’t know if if you know about the mouse case. I think I’ve heard you guys
I didn’t see this closing but it is hilarious. [laughter] Oh like the whole story or just
the story and then lead into the Okay. So essentially this guy he was charged with indecent exposure.
Oh yes I did hear this one. I actually remember um talking to you about this one when you were a prosecutor and I was
at defense and we were we were meeting about a different case and um I don’t
know if it drew some similarities but we were sitting there chuckling about it but yeah tell tell this is a really funny
story. So essentially this guy is charged with indecent exposure for well I’ll start
with this. There’s these two the two witnesses were two older ladies that were essentially in a community garden here in New York. And one day they just
were doing something with the flowers and they heard a bunch of screaming. So they came around to the outside. There’s
uh very tall shrubs so they couldn’t see and there’s a little fence with a gate and they came around and there’s an alley there and there’s just this guy
with his pants around his ankles and as they said quote their quote was uh violently masturbating and screaming and
they, you know, they scream and then the guy they said kind of like looked at them. He kept doing what he was doing and then pulled his pants up, took off.
So they call the cops and this guy sat in jail for over a year. Way longer than
any plea agreement would have been. And why did his defense attorney not file a 180 motion? Like a 180day motion. Do you
know? I have no idea. To be honest, he may he may have been in on a PV at one point. Oh, maybe.
But then also essentially we get to the point where I’m like this guy won’t plead anything. I guess we’re going to trial. I’m like what could be the
defense here? Was he prosay? No, he had a he had an attorney. Okay. Um, but basically, yeah, the defense
attorney was like, “Yeah, he he’s not gonna plead anything. You know, we’re just gonna have to do the trial.” And again, I had no idea what the defense
for this could be because in PA, the jury instruction for um indecent exposure essentially says if you expose
your genitals in public, that’s indecent exposure, right? It’s kind of like strict liability, right?
Yes. So I go through my whole case and chief and in his open I could even talk
about the opening everything from the defense but we can get into that another time. Anyway, defense in his opening
essentially says he’s got an excuse for this but I’m not going to tell it I’m not going to tell
you guys what what the defense is. You’re going to hear from him on the stand. So I we promised he would testify.
Yes. Wow. So, and he did, but I had to go through essentially like a day and a half of not knowing what this guy was
going to say. And I was just getting so antsy about it. Wasn’t ants in the
pants. Um, but it was just it was just hilarious because again, everybody’s like, “What could the defense be?” And
I’m telling people in the office and everybody’s like, “What could it be?” So, finally we get to his testimony and
essentially what this guy says is there was a van that he was standing outside of and uh he’s like, “Yeah, my friend
asked me to go over the van to get some paperwork out of it or something. So, I I hopped in the passenger seat. I closed
the door and when I opened the uh the glove box, a mouse fell out.” And we’re
like, “Okay.” So, then his attorney’s like, “What happened?” And he’s like, “Well, the mouse went up my pants.” And
I’m sitting there and I was like, I did one of these. I just like threw my pen and I was like, “You got to be kidding me.” So anyway, he testifies that
happened. So then he’s like I get he gets out of the car and the mouse is crawling up his pants. So he like grabs
it with his hand and pulls his pants down. And there was like this whole debate over like were the pants around
his ankles, were they to his knees? And I was like, “It doesn’t matter. Doesn’t matter.” So he keeps going. So on
cross-examination, I get him to admit that he had his genitals out in public. He’s like, “Yeah, absolutely.” You know,
whatever. I’m like, “Does it matter if your pants were nope, they were out.” And then I was like, “Well, what’ you do like with the mouse?” He’s like, “Well,
I grabbed it.” And I was like, “Then what did you do?” And he was like, “Well, I started punching it.”
And I’m like, “Okay.” So, you started punching this mouse and I was like, “Well, how big was the mouse?” And he’s like, “You know, about this big, couple
inches.” Um, a whole other aspect of this is that he didn’t speak any English. So, this is all with translators and the interpreters like
pausing. It was insane. Yeah. But yeah, I ended up getting him to say I was like, “Okay, so you punched it.” And I was like, “Were you punching it
hard? Were you lightly punching?” He’s like, “More like a light punch.” Like, “How long did you do that for?” He goes, “7 minutes.” [laughter] So my my my
response was, “So you lightly punched this mouse for seven minutes till it died?” And he said, “Yes.”
Okay. He said yes. Well, so it was just it was just the most ridiculous thing in the world. Was the mouse the dead mouse presented
as evidence? There was no mouse ever found. So, and it’s funny because this means that punching the mouse is now a euphemism
or, you know, violently masturbating. Exactly. Punching the mouse. So, uh, in closing, basically, like I
said, I had a PowerPoint just with like the elements laid out because they’re so straightforward. Um, and then there was another thing in decent exposure can
also be I think it’s, um, exposing your genitals or something to that effect in
a place where there’s other people around, you know, it may offend them, but the case law says it it’s
It’s either or. It doesn’t have to be one or the other. It can be It can technically be both, but it just has to
be one. So, you don’t need both of those and you don’t need to choose a certain one. You can operate under both, whatever. So, that was another aspect of
this. But, yeah, in closing, I was like, ladies and gentlemen, all you need to know is that on the
stand he said his genitals were out and he was in public. You heard it from his own mouth.
Everything else does not matter, right? And I that was probably the shortest closing I ever did because I literally
just hit on the elements, hit on his testimony, tied them both together and said that’s all you need. They were out
like 25 minutes. Yeah. Yeah. And I got to know. Yeah. Did he win?
No. He was not or he was found guilty. Oh, yeah. Oh, yeah. He was found guilty. The punching the mouse defense does not work.
It does not work. No. Okay. Lodge that one in the back of the brain for the future. Yeah. Don’t use the punching the mouse defense. All right.
All right. I love that story, man. It’s my favorite my favorite story. I’ve never had anything like that.
I’ve had some weird cases, but never anything like that. I have the poncho case, too. That’s not like a closing one, but yeah, that’s
that’s a fun one for me. I want to hear about that one in an episode where it would be relevant. But, um,
guys, this is why we love our job. Like, we get to see stories like this and be actively involved
in Punching the Mouse, which, you know, you can’t beat it. What? [laughter] I don’t
I’m not actively involved in any of that. I don’t know. I’m not I’m not going to sit here. Uh public service announcement. I do not
condone punching the mouse in public. In public. Well, well, okay. We’ll leave it at that. All right. Um Tim, I want to
just pop over to you. Uh as we’re kind of winding down here, there are a few things that you need to be careful with um when you’re doing a
closing. Certain things you can’t do. Okay. Uh and I just I want to just kind of give a you know,
information about that. So tell us about things you you can’t do in closing and where you can screw up.
What you legally cannot say in a closing
Yeah. Um I think from the defense perspective, we cannot we can’t invite
the jury to nullify. Yeah. Um nullification is kind of one of those unofficial things. It happens and the
jury can’t be punished for it. And just so people know, what what exactly is jury? It’s where they just disregard the law. Yeah. And they just find somebody not
guilty even though clearly they’re they’re guilty. They’re supposed to follow the law. I mean, legally speaking, jury null, like
nullification is not technically legal, but like there’s no remedy if they do it, but we cannot invite them to do it.
Ask them to do it. There’s an there’s an episode of a show, and I forget what the show’s called. I
think it’s called The Innocent. It was like an ABC law drama, I think, where there’s a character in that show
that frequently gets up and and does the This is America defense or whatever.
That’s he’s inviting the jury to nullify and that’s not you can’t do that. That’s problematic.
What else can’t you do? You can’t you cannot mention potential penalties. Like you can’t tell the jury
like my client’s going to spend time in jail over this if you convict them. Can’t do that. Right. I guess the only exception to
that would be in a capital murder case where they’re obviously going to be involved in the penalty phase where that
that can come up a little bit. You would be able to argue that in the penalty phase in the penalty phase, not in the
that’s really again that’s very rare. That’s that’s really the only case. Other than that you you cannot absolutely cannot reveal that. Um you
also are not supposed to reveal the gradation correct of the crime whether this oh he’s going to have a felony on his record for the rest of his life if you
convict like you should feel bad for like yeah Commonwealth can’t do thing like there’s
things the Commonwealth can’t do either. Commonwealth cannot comment on the fact that he or she did not testify.
can’t bring that up. Cannot um use language where they’re
calling the defendant names like in case inflammatory rhetoric, right? Like this person’s a monster or
anything like that. He’s a terrible human being. That like that crosses the line. Now, there are ways they can kind of
you have to tell everybody call everybody the same thing. You know that story?
Yeah. No, I don’t know that story. Oh, there’s a defense attorney uh here in York who basically was like, “My
client’s an victim’s an Who do you believe? I know who that is. Yeah. [laughter] I mean,
I love that guy, by the way. But that works. I guess that works. You can you can do that. And the superior court upheld it.
Oh, nice. So, wait, that was actually appealed? Yes. Yeah. I had a case that I had a case one
time against a defense attorney who’s now a judge who uh I mean, her whole theory of of the case for the jury was
my client’s a jerk, but that’s not a crime. Mhm. So, like she got up and kind of trashed
him a little bit and and like that can be effective sometimes. And it was it was effective. Sometimes everybody knows your client’s
an Yeah. You know, and you got to call that doesn’t mean that that it was a crime. He’s not on trial for being an
That’s exactly that was exactly what you did. And I think the jury the jury bought that. And then um another thing
that the Commonwealth can’t do, which is increasingly rare, they can’t use like
they can’t quote scripture or things like that where they’re kind of like invoking like a like a divine law or or
something like that to force the def to play on defendant or jury’s convictions, religious convictions.
Yeah. Okay. Well, that’s good. Um I guess those are just some of them. Sure. Sure. One of the uh other things I
want to kind of bring home here is once we do the closing and we’re all finished that we’re uh completely done and the
case goes to the jury. What? Tell me Tim, like what does jury deliberation
kind of look like both back in the jury room, which we actually can’t really see, and I want
What actually happens in the jury room
you to talk about that, but also what does it look like for us as um attorneys while we’re there if things come up,
questions, you know, things like that? Well, I mean the I guess the easiest way
to answer that is we don’t really know what happens behind closed doors. Um you can’t know. They are they’re doing whatever they do.
I’ve heard some attorneys say that they’re it’s it’s akin to making sausage. It’s, you know, it’s a it’s an
unknown process and you don’t really want to know what they’re doing, right? Like you don’t want to know
what’s inside the hot dog. Yeah. Type of thing. That’s that’s what I’ve heard it described as because they’re back there
doing whatever juries do. Um, which could be I mean I’ve I’ve talked to a bunch of juries after trials and they’ve kind of
told me like here’s what we did. Here’s the process we used. We elected a foreman and then we kind of went around
and where’s everybody at to start and then we started unpacking the evidence and things. But I’ve had I’ve had juries where they
are clearly getting they’re asking questions that it’s like guys you are making this difficult on yourself.
Let’s talk about jury questions a little bit cuz dude I’ve seen some weird ones. Yeah. And how we have to deal with them
in court. So like tell us about that process. Like how does it work when the jury says hey judge I we have a question
as a body. Yeah. Like how does that get presented? Like how does it play out? Yeah, they write it down on a slip of
paper. They knock on the door and then like the person, the tip staff or whoever who’s outside the door will open
the door, take the question, and then present it to a judge. Typically, then the attorneys who are standing by
waiting patiently for this jury to come to a decision, uh they get a phone call
and they say, “Hey, jury has a question and everybody needs to come upstairs.” So we all everybody huddles back up in court. The
juryy’s not in there. jury’s not there, but the attorneys, the defendant are there, and then the the question is read
aloud and there’s a collaborative process in deciding how are we going to answer this question? Because the
reality is the juries will answer they will ask questions that we cannot legally answer because if they ask a
question that requires us to put new facts into the record, can’t do that. The record’s closed. So, I mean, if and
I’ve seen that where they’re asking a question that it’s like, “Guys, you’re stuck with the facts that we gave you.
The question you asked is asking for new facts. You can’t do that.” Um, so that’s
the kind of stuff that a lot of times we have to work through together to decide if we’re even going to answer that
question or how the judge is going to say it, right? There may be an answer that we can give them, but the judge
sometimes has to be careful about the way they answer that question because you don’t want to put too much emphasis on any one part of the case. And a lot
of judges are scared to answer questions because if they answer the question, it could seem like they are emphasizing
something, right? And it can open it up for an appeal, right? Um, yeah. I [clears throat] mean, obviously, everybody who’s at the trial
usually wants that trial to come to a natural verdict conclusion. Um, not have a hung jury and things like
that. So, in a way, I think some judges like really try to push them to get to a jury. And there really isn’t a time
limit. No. Like, it’s not like jury deliberation can only take one day or can only take five hours, right? I’ve seen cases where they’ve
deliberated for like a week. Yeah. Yeah. And I mean and sometimes they are you have multiple jurors who or
one or two who are kind of holdouts like we call them. But that all that really
means is you know you got 10 who are saying one thing and two who are saying another. And the judge I’ve seen a lot
of judges try to encourage them to continue to work through the evidence to continue to kind of parse through it to
try to come to a unanimous conclusion. Yeah. There’s a hung jury instruction in Pennsylvania. After if they come back
and say, “We we’re hung,” the judge will often times read that instruction and then send them back out
and say, “Go try again.” Yeah. And that that’ll they’ll give them less time, but they they’ll give them more
time to to try to resolve it. Yeah. Yeah. Um and the jury verdict, and
I kind of mentioned this, has to be unanimous one way or the other. Um it has to be. If it’s not, it is a hung
jury. Uh, and that means a lot of times the case gets retrieded with a brand new jury and dragged back through the ringer
with everything years later. Yeah, maybe. So, yeah, it can uh I mean sometimes as a defense attorney it can be beneficial
to get a hung jury because sometimes when they do hang the Commonwealth will null across a case, they’ll decide not
Hung juries and how Pennsylvania handles them
to prosecute again, things like that. But all right. Um, have do you uh have
any uh funny or interesting uh jury deliberation stories that you can recall?
Yeah. Well, so this one is kind of like a a it’s kind of like closing and deliberations. I had a case one time. It
was actually the one that I was referring to with the defense attorney who made the argument about the client being a jerk. It was that case where um
the guy the guy was refusing to get out of his car during a traffic stop and it
was a DUI and um he was very belligerent with the officers saying all kinds of ignorant
stuff. I mean everything from epithets to swear words, all kinds of stuff. So
um he was being a jerk and at one point he picks up a crossbow which is in the
seat beside him which obviously escalates the posture for the officers.
And as this is all going on, there’s the there’s a lead officer who I think was
being very reasonable. Now, he spoke very calmly, trying to plead and reason
with the guy to get out of the car, and he was he was just being he was not yelling or screaming or anything like
that. But the way that he spoke, I think it it lend itself, I think, to some jurors maybe interpreting that he was
kind of toying with the guy in the car or that he was being a little bit like condescending to the guy in the car.
That I that was not the case. I know the officer, that was not the case. He was trying to be conversational and
reasonable. And at one point during closing, I I said, you know, this guy was trying to
get him out of the car without using force. This officer was being reasonable.
And as I said that, there was one juror right up in the front in the corner who went
[laughter] and I heard because I did get to talk to some of these jurors after the fact that
this juror was kind of a problem in the deliberation room. Uh he was very dogmatic and kind of a know-it-all juror
um and insisted that the police were never in any real danger because of the crossbow because he couldn’t have loaded
it or whatever. Blah blah blah. This this was this is a self-proclaimed expert who kind of a lot of the jurors I
think wanted to convict this guy of more things, but this guy was a problem and so they ended up kind of splitting the
baby a little bit. But that’s about the only case that I had. And I’ve had some juries where they’ve come back and
they’ve said, “We hated all your witnesses. Like, you were the only person we liked. We hated the defendant. We hated your victim. We, you know,
there was a guy sitting in the courtroom. We didn’t like him either. He was on his phone the whole time. We didn’t like him, you know, but like I’ve
had some of that kind of stuff, but yeah, juries just kind of do whatever they’re going to do.” Yeah. Yeah. Yeah. And I think one of the
biggest takeaways from uh jury deliberations, again, nobody is allowed to listen in on jury deliberations
outside, of course, the jurors themselves. And it’s actually a crime in Pennsylvania if you are caught doing
that. Uh listening in to uh jury deliberations. It’s also a crime if you
interfere with jury deliberations or with the jury at all during any point in the trial. I I’m thinking about um
everybody knows the Alex Murdoch trial, right? and how that Alex Murdoch just got a brand new trial. I mean, honestly,
the evidence in that case, in my opinion, was overwhelming, but they got a brand new trial. Yeah. I mean, think about what you’ve
done to the system because you couldn’t keep your mouth shut. Yeah. Well, and for those of you that don’t know, I mean, I think everybody
who follows law pretty much knows this case, but um super compelling, interesting case, but um the uh I think
it was like the clerk of courts or somebody in the courthouse was I think you’re right interfering throughout the entire
process with the jury and that’s ultimately why the Supreme Court in South Carolina uh ultimately overturned
that and he got a brand new trial. Especially because I think the clerk the the most problematic thing from what I heard is that she was making comments to
the jurors before the defendant testified. Yeah, that’s exactly what it was. So, like that was and that’s like I
can’t imagine ever doing something like that. The closest thing I have ever seen to that was that I we had a defendant’s
mother in the courtroom one time who was interacting with jurors after Voadier and was trying I think was was sort of
attempting to figure out who got picked on the jury and who was dismissed. started to try to mine for information
and that was that triggered some potential consequences which could have
come out of it. I I don’t think ultimately anything ever did come out of it because the person was interacting
only with dismissed jurors, but like you cannot do stuff like that. That’s not appropriate. Yeah. All right. We’re going to talk
next about uh the verdict when a jury does reach a unanimous verdict, how that
is delivered in court, um how that plays out, uh who does it, etc. So, um,
How a verdict is delivered in open court
basically I’ll start here. When the jury has a verdict, they notify, uh, the tip
staff that they have a verdict, usually passing the jury form, uh, with their
verdict on it to the tip staff who then delivers it to the judge. The attorneys, respectively, and the defendant are then
called back to the courtroom. They are, uh, sat back in the courtroom. The jury is brought out. The verdict is then
passed in open court up to the judge who reviews it. Uh and then the judge says
to the jury uh you know who is the foreman that is the person of the jury who essentially is going to be the caller of the verdict. Uh that person
stands and um the jury is uh essentially instructed usually through the clerk of
courts on certain counts sometimes the judge on how they find on each crime or
each count of the uh information or the charges and the jury foreman announces
the verdict on each individual count. Now, uh the jury can also be uh pled,
which means that uh each individual juror can be called on to actually state
what their verdict individually was, what they agreed to or didn’t agree to. Um have you ever seen that go south with
any polling of jurors? Uh I can’t remember if I have or not. I think there was a case where maybe I had
heard, it wasn’t mine, but I think maybe I heard of a case where one of the jurors was waffling a little bit, but
I’ve never heard of it being a major issue and I’ve only seen it done a couple of times. Okay. Um and and the other thing, I’m
not sure if I mentioned it, but um the the defendant is required to stand uh while the verdict is read. That as far
as I’ve seen. I mean, do you have you seen anything different? Yeah, I think I think we’ve gotten away from that a little bit. I think again
it’s county by county. I mean, I I was always used to it, too. I think the defendant would stand
with their attorney. Yeah. But also in I mean in your county, we’re a little weird. We don’t stand when juries enter the courtroom.
Yeah, that’s true. But we’re not talking about when they enter court. We’re talking about But I’m saying like those kinds of customs go from county to county. Like
there are some counties where like if you’re see I I even if you’re in the gallery even sitting when the jury comes
in, judges will say something to you. But in York County it’s not like that. And I don’t I don’t think I’ve been in a
case where they’ve stood when the verdicts is read in York County to be honest with you. Okay. I mean, in my experience, I’ve
I’ve always uh stood with my client. I think that’s a respectful thing to do also just to the process. Um but yeah.
All right. Again, county by county. Yeah. All right. Um so once uh the verdict is
read, uh the jury can be pulled and then essentially the jury is dismissed. I
mean, they’re thanked for their service and they leave the courtroom. Um, there is no opportunity for the defense to
then further query the jury at that point or start grilling them and asking them why da da da. The deliberations do
not have to be explained in open court. Uh, and the jury, you know, departs. Uh,
now we mentioned earlier that a lot of times, um, we’ve talked to juries afterwards. So, a lot of times they will
hang out and you can talk to them and that can be a very educational thing I think for a uh attorney to glean from
their trial practice what was good, what wasn’t uh and then use that in in the future. Um in court after the verdict is
uh is read the uh then it comes down to we’re now kind of back to dealing with just the judge, right? uh and we move
Bail and sentencing after a guilty verdict
into the sentencing phase sometimes immediately but sometimes later at a separate completely separate hearing
days or even a few months later. Now bail also comes back into question right after the verdict is read if the
defendant is found guilty. So Tim I’m going to kick it to you here like tell me about what that means and what can
happen with that. Yeah, bail can be revoked. Yeah, because you’re no longer presumed innocent once you’ve been convicted by the jury, which means that
depending on what you’re convicted of, the bail questions might be relevant
again. If you’re looking at serious jail time, then, you know, can the court be
confident that you’ll come back? Flight could be an issue. Flight could be an issue. If you’ve just been convicted of a really violent
crime, I mean, they they could they could find that you are a danger to society, especially if you have a
history of violent crime in the past. So the these are things that could become new. They could be raised again.
And I have seen some cases where um a motion was made after the verdict has come in and the defendant has been
remanded into custody after the verdict came in pending sentencing. Right. Okay. All right. Good. Well,
guys, uh we’ve unpacked a lot here today. Um we kind of went through the
entire trial process. Uh today, obviously, in our prior episode that we did, we talked about Vier. Um, today was
all about the meat of the trial and how that works. And, um, you know, we we
have a lot of fun doing this. I mean, this is obviously our profession. Um, and I think done correctly, um, done
with preparation, uh, trial can be a highly effective tool in the arsenal of defense attorneys to
get good results for their clients and to be, um, uh, very beneficial to the outcomes. Uh, I do want to ask Tim you
one more question kind of in closing. If you have a case and you are going to
go to trial or at some point it is determined you are going to trial, should you represent yourself at that
trial? No. Absolutely not. Right. Okay. All right. Uh, thanks for hammering that home, Tim.
Uh, everyone out there who watched our podcast this week, I think it was about two hours long. Uh, appreciate you
sticking through it the whole way through. Uh this is the Now We Defend podcast at Kernney Law. Uh we love doing
this every week. We’re going to keep doing it, keep getting the information out there. I actually had a viewer reach out to me this week, uh telling me how
grateful he was that there’s somebody here in York County, Pennsylvania that puts all this information out to people
on a regular basis. We love that. Loved that comment. Loved interacting with that individual. Spent some time on the
phone with him. Uh and we’ll we’ll continue to do that. Uh so again, now we defend podcasts by Kernney Law. Please
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[laughter] All right, take care. [music]