Posts on trial practice, including pre-trial motions, plea bargains, and sentencing.
We will never know what George Zimmerman did
In light of the not-verdict, there are a lot of opinions floating around about George Zimmerman. I haven’t got one; I don’t know what happened that night, and neither do you. I felt more sympathy for Trevon Martin than for Mr. Zimmerman; the latter came across as a disappointed, wannabe police officer, and I’ve had a lot of clients who bore a close resemblance to Mr. Martin. But Mr. Zimmerman is not guilty because I, as a half-hearted observer of the case, found him unsympathetic. The only person who really knows what happened was Mr....
read moreAmanda Knox haters, juries, and altruistic punishment
As part of my (aspirationally) regular routine of reading appellate court rulings, law-review articles, and the like, I also look for resources on non-legal topics that bear on my practice, such as rhetoric, psychology, decision theory, and group dynamics. The ongoing kerfuffle about Amanda Knox’s prosecution has led me to a non-legal tidbit that trial lawyers should know about: an anthropological concept called ‘altruistic punishment.’ Altruistic punishment is a visceral desire to see a perceived wrongdoer punished, even if the punisher has...
read moreSeventeen tips for testifying in court
Testifying in court is stressful and difficult, and part of a trial lawyer’s job is to help prepare clients and witnesses for to testify. It would be nice if a jury could always see whether a witness is telling the truth. Unfortunately, believability is based only in part on truthfulness, and is also based on other things. ONE Your appearance, demeanor, and behavior should reflect the gravity of the proceedings. This applies when you get out of your car or off the bus and start walking to the courthouse, and it still applies in the hallways,...
read moreBlind justice and the exclusion of evidence from criminal trials
I don’t like the popular image of Lady Justice (the woman with the blindfold and scale who shows up on courthouse steps and similar places.) My objection does not relate to the cut of her robe, which can be troubling to puritanical Attorneys General, (I’m always glad to see an annoyed Attorney General) but because her blindfold sends a rotten message about how the American justice system works. ‘Blind justice’ is an evocative image about the American justice system. I had a teacher explain to me in high school that justice is blind because...
read moreTrial practice tip for lawyers - how to avoid losing any trials ever.
I have never lost a trial in the Coos County Circuit Court.[1] I’ve never lost an appeal in front of the Supreme Court of Idaho.[2] I’ve never lost a hearing in front of the International Criminal Tribunal in The Hague.[3] I’ve never lost a game of jai alai, either.[4] Clever readers will have figured out the reason for my extraordinary winning percentages. Any attorney can use the same strategy. Attorneys who don’t go to trial have never lost at trial. Attorneys who don’t handle appeals never lose on appeal. I saw an attorney advertise once...
read moreUnreliable eyewitness identification puts innocent people in prison
The right to a jury trial carries with it the assumption that a group of disinterested, nonexpert citizens are good at deciding fact disputes. If the dispute is about which witness to believe, or about how to interpret complex circumstantial evidence, there’s neither a good way to test jury reliability nor any obvious alternatives. But it looks like the best system that we can come up with, especially with the jury’s crucial role to limit prosecutorial overreaching or abuse. But there are a few circumstances, such as eyewitness...
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