Trial practice

AuthorPatrick T. Barone
Pages825-1084
TRIAL PRACTICE
6-1
CHAPTER 6
TRIAL PRACTICE
§600 IN GENERAL
§601 Computers and iPads in Drunk Driving Litigation
§602 The Drunk Driving Defense Trial Notebook
§602.1 Design of the Notebook
§603 Juror Questionnaires in Drunk Driving Cases
§603.1 Using Facebook and Other Electronic Social
Media to Investigate Jurors Before and During Trial
§604 A Great Defense Begins With a Great Investigation
§604.1 Developing Themes in Drunk Driving Trials
§605 Persuading Juries With Metaphors and Analogies
§605.1 Sample Cross-Examination Using Metaphors and Analogies
§605.2 Sample Metaphors and Analogies for Use During Summation
§606 Using the Psychology of Inf‌luence to Persuade Juries
§606.1 The Psychological Principle of Reciprocation
§606.2 The Psychological Principle of Scarcity
§606.3 The Psychological Principle of Authority
§606.4 The Psychological Principle of Consistency
§606.5 The Psychological Principle of Consensus
§606.6 The Psychological Principle of Liking
§607 The Sociometry of Jury Selection, Persuasion, Deliberation and Acquittal
§607.1 The Development of the Sociometric Cycle
§607.2 The Application of Sociometry to the Life Cycle of the Criminal DUI Trial
§607.3 Using the Sociometric Cycle in Trial
§608 Empowering the Jury to Provide Justice
§609 The History of Jury Nullif‌ication and Its Application to Drunk Driving Trials
§610 VOIR DIRE
§610.1 New Ways to Think About Voir Dire
§610.2 Talk to Jurors About Their Collective Rights
§611 Judge- vs. Attorney-Conducted Voir Dire
§612 The Importance of Self-Disclosure in Voir Dire
§613 Voir Dire on Specif‌ic Issues
§613.1 Voir Dire on General Fitness
§613.2 Voir Dire on Jurors’ Use and General View of Alcohol
§613.3 Voir Dire on Refusal or Attempted Completion of Field Exercises
§613.4 Voir Dire on Defendant Not Taking Stand
§613.5 Voir Dire on Chemical Testing
§613.6 Voir Dire on Predisposition to Find Person Who Refused Test Guilty
Defending Drinking Drivers 6-2
TRIAL PRACTICE
§613.7 Voir Dire on Burden of Proof and Presumption of Innocence
§614 Jury Selection in the Worse Cases
§615 Limitation of Voir Dire May Require Reversal
§616 Methods to Make the Right Impression on the Jury
§617 Using Open Ended Questions to Deal With “Bad” Answers in Voir Dire
§618 Using Spectrograms to Dial in on Jurors’ Thoughts and Opinions
§619 Challenges
§619.1 For Cause
§619.2 Combat ting Improper Judicial Rehabilitation of For-Cause Challenges
§619.3 Racially Biased Preemptory Challenges
§620 HOW TO MAKE AN EFFECTIVE OPENING STATEMENT
§621 When the Opening Statement Should Be Waived
§622 When the Opening Should Be Reserved
§623 What to Say in the Opening
§623.1 Addressing Defendant’s Possible Trial Testimony during Opening Statement
§623.2 Addressing the Chemical Test Results During Opening Statement
§624 How to Deal With Bad Facts
§625 Avoid Making Promises During the Opening Statement
§626 Beware of Judicial Admissions
§627 Focus on the Prosecutor’s Opening Statement
§628 Focus on the Strengths of Your Case
§629 Humanize the Client/Dehumanize the Prosecutor
§629.1 Strive to Maintain a Professional Relationship With the Court and the Prosecutor
§629.2 Non-Defensive Opening Statements
§629.3 Presenting the Defense Case the Way People Think
§629.4 Establishing a Home Field Advantage in the Opening Statement
§630 CROSSEXAMINING PROSECUTION WITNESSES
§631 The Arresting Off‌icer
§631.1 Cross-Examination Questions for Police Off‌icers
§631.2 Alcohol Inf‌luence Report Form
§631.3 Police Off‌icer May Not Testify Regarding Degree of Intoxication, That Defendant’s
Behavior Was Consistent With Intoxication,
or That Defendant Had Excessive Blood Alcohol Content
§631.4 Opinion Testimony of Off‌icer as to Who Was Driving
§631.5 Suggestions on Cross-Examining the Arresting Off‌icer on Issues of Defendant’s Initial
Appearance, Behavior and Demeanor
§631.6 Keep the Police Off‌icer in Check During Cross-Examination
§631.7 Dealing With Police Off‌icer “Pattern” Responses
§631.8 New Grounds to Challenge Police and Lay Witness Testimony on Intoxication
§631.8.1 An Update on Questioning Police and Lay Witness Testimony on Intoxication
§631.9 Using Tic-Tac-Toe to Cross-Examine an Off‌icer
§631.10 Learning to “Pitch” to Prosecution “Hitters”
§631.11 Cross-Examining the Off‌icer on Field Sobriety Tests
§631.12 Cross-Examining From NHTSA Manual
§631.13 Using Defense-Oriented Words, Phrases and Messages
§632 The Breath Test Operator
§632.1 Background and Training
§632.2 Partition Ratio
§632.3 Operation of the Breath Testing Equipment
§632.4 Calibration of the Breath Testing Equipment
§632.5 Observation of the Defendant
§632.6 Inconsistency of Observation and Machine Results
6-3 Trial Practice
TRIAL PRACTICE
§632.7 Non-Specif‌icity for Beverage Alcohol
§632.8 Possible Machine Malfunctions
§632.9 The Intoxilyzer 5000
§632.10 The DataMaster
§632.11 Cross-Examining the Breath Test Technician
§632.12 Cross-Examining the Breath Test Technician on the Pre-Test Observation Period
§632.13 Controlling the Prosecution Expert
§633 Technician for Other Tests
§633.1 Cross-Examining Phlebotomist or Other Professional Who Drew the Defendant’s Blood
§633.2 Cross-Examining a Technician Who Analyzed Blood
§633.3 Cross-Examining a Technician on Urinalysis Results
§633.4 Toxicologist Not Qualif‌ied to Offer Opinion
Testimony on Novel Auto-Brewery Syndrome Theory
§634 The Examining Physician
§634.1 Cross-Examination of the Medical Witness on Differential Diagnosis
§635 The Accident Reconstruction Expert
§636 Prosecution Lay Witnesses
§637 Cross-Examining Lay Witnesses to Establish Reasonable Doubt
§637.1 Suggestion on How to Deal With the Percipient Witness
§637.2 Cross-Examination Strategies of the Percipient Witness
§638 Witness Sequestration Rules
§640 AUDIOVISUAL EVIDENCE
§641 Use of Videotapes in Drunk Driving Cases
§641.1 Use and Admission of Videotapes by the Defense
§641.1.1 Trial Court Erred in Denying Defense Request to Play Videotape
§641.2 Checklist on Evidentiary Concerns of Videotape Evidence in Drunk Driving Cases
§641.3 Drunk Driving Arrest and Crime Scene Videos
§641.4 Crimes in Progress/Station Videotapes
§641.5 Videotaped Confessions and Statements
§641.5.1 Foundation Requirements
§641.5.2 Voluntariness of Confession
§641.6 Possible Defense Uses of Videotaped Confessions and Statements
§641.7 Other Grounds to Exclude Portions of Videotaped Confessions
§641.7.1 Exculpator y Videotaped Statement
§641.7.2 Videotapes of Physical and Psychological Conditions
§641.7.3 Defense Use of Videotapes Showing Physical or Psychological Conditions
§641.8 Videotaped Experiments
§641.8.1 Videotaped Re-Creations and Reenactments
§641.9 Third-Party Prepared Tapes
§641.10 Other Uses of Videotapes
§641.11 Videotaped Depositions in Drunk Driving Cases
§641.11.1 Foundation Requirements for Videotaped Depositions
§641.12 Cross-Examination on Videotape Evidence
§642 Use of PowerPoint in Drunk Driving Trials
§642.1 Using PowerPoint During Voir Dire
§642.2 Using PowerPoint During Opening Statement
§642.3 Using PowerPoint in Direct and Cross-Examination
§642.4 Using PowerPoint in Closing Argument
§650 WITNESSES
§651 Direct Examination of Defense Witnesses
§651.1 Fact Witnesses
§651.2 Character Witnesses

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