CRIMINAL LAW ACADEMY 2013 DAY ONE TRIAL PRACTICE SATURDAY, SEPTEMBER 21, :00 A.M. 4:00 P.M.

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1 CRIMINAL LAW ACADEMY 2013 DAY ONE TRIAL PRACTICE SATURDAY, SEPTEMBER 21, :00 A.M. 4:00 P.M. Mohawk Valley Community College 1101 Sherman Drive Utica, NY IT Room 225 Day One Coordinator Frank J. Nebush, Jr., Esq. Oneida County Public Defender, Criminal Division Sponsored by: Oneida County Bar Association Oneida County Supplemental Assigned Counsel Program Oneida County Public Defender, Criminal Division New York State Defenders Association, Inc.

2 The Criminal Law Academy The Criminal Law Academy was designed to provide fundamental, practical and advanced knowledge of the practice of criminal defense law to public defenders, assigned counsel, newly-admitted attorneys, those attorneys who occasionally practice criminal law and more experienced criminal defense attorneys. The faculty is comprised of some of the most preeminent and experienced criminal law practitioners from across New York State. The two day course provides 14 CLE credits 6 Skills, 6 Professional Practice and 2 Ethics. TRIAL PRACTICE Day One on Saturday, September 21st features Michael Deal, Esq., Lipsitz, Green, Scime, Cambria LLP, Buffalo (Mr. Deal is replacing Paul J. Cambria, Jr. on the schedule to a last minute conflict); Terence L. Kindlon, Esq., Kindlon, Shanks & Associates, Albany; Ray Kelly, Esq., Albany; Emil M. Rossi, Esq., Syracuse and Kurt D. Schultz, Esq., Utica. Besides the topics our individual speakers will address, DAY ONE will also include an Ethics Panel and a moderated panel discussion dealing with Critical Issues in Defending Criminal Cases from Arraignment Through Trial. FORENSIC EVIDENCE AT TRIAL Day Two on Saturday, September 28th features Marvin E. Schechter, Esq., New York City; Ray Kelly, Esq., Albany; Anne M. Burger, Esq., Assistant Federal Public Defender for the Western District of New York; Peter Mitchell, Esq., Legal Aid Society of New York City; and Jerry R. Grant, Forensic Investigator. DAY TWO will include a panel moderated by Kurt D. Schultz, Esq., How to Use Social Media to Your Advantage. The Oneida County Bar Association offers a wide range of CLE programs throughout the year. A full calendar of programs is available at their website Oneida County Bar members are eligible to purchase a Sempass which entitles the holder to attend any or all of the programs offered by the Association. The 2013 cost of a Sempass is $200. The Oneida County Public Defender, Criminal Division makes several of the materials from our Criminal Track Programs available at their website During the course of the year, we also offer our Criminal Track Programs through the Oneida County Bar Association to public defenders and assigned counsel at the reduced cost of $25 per program. The Criminal Track Programs are held on Saturday mornings from 9 a.m. 12 p.m. at Mohawk Valley Community College in Utica. See our website for upcoming seminars. The New York State Defenders Association, Inc. is also a valuable resource for criminal law practitioners through their website Their two-day training conference in Saratoga in July is unsurpassed in the depth and experience of the faculty and the relevant topics presented every year. We encourage you to visit their website and become a member. The members of the Criminal Track Program Committee and the faculty of the 2013 Criminal Law Academy welcome you and hope you find the Academy informative and valuable to your practice. As always, we welcome your comments and suggestions for future programs. The Criminal Law Academy 001

3 8:30 AM 9:00 AM REGISTRATION 2013 Criminal Law Academy Schedule Saturday, September 21 st TRIAL PRACTICE 9:00 AM 10:15 AM Michael S. Deal, Esq. "The Importance of Cross Examination" 10:15 AM 11:30 AM Terence L. Kindlon, Esq. "Opening Statements" BREAK 11:40 AM 12:15 PM Ethics Panel 12:15 PM 1:00 PM LUNCH 1:00 PM 2:15 PM Ray Kelly, Esq., "Handling Rat Testimony: Investigation Through Summation" 2:15 PM 3:30 PM Emil M. Rossi, Esq. and Kurt D. Schultz, Esq., "Jury Selection" BREAK 3:40 PM 4:15 PM Panel Discussion Moderated by Kurt D. Schultz, Esq. "Critical Issues in Defending Criminal Cases From Arraignment Through Trial " 8:30 AM 9:00 AM REGISTRATION Saturday, September 28 th FORENSIC EVIDENCE AT TRIAL 9:00 AM 10:40 AM Marvin E. Schechter, Esq., Forensic Advances Since the National Academy of Science Report: Case Law, Cross-Examination and the Continuing Problem of Laboratory Accreditation BREAK 10:50 AM 11:40 AM "Forensics" with Schechter continued 11:40 AM 12:30 PM Ray Kelly, Esq., "Cross Examination of the Forensic Pathologist " LUNCH 1:15 PM 2:55 PM Ann M. Burger, Esq., Peter Mitchell, Esq. and Jerry R. Grant, Forensic Investigator "What's It All About?: Understanding and Using Social Media at Trial" BREAK 3:05 PM 3:30 PM Ann M. Burger, Esq. and Jerry R. Grant, Forensic Investigator "Cell Phones: What These Devices Reveal About Us" 3:30 PM 4:00 PM Panel Discussion Moderated by Kurt D. Schultz, Esq. "How to Use Social Media to Your Advantage" Schedule 002

4 SPEAKERS Anne M. Burger, Esq., has been an Assistant Federal Public Defender for the Federal Public Defender s Office in the Western District of New York since August Prior to that she was at the Monroe County Public Defender s Office where she worked primarily as a trial attorney, but also handled a number of criminal appeals. Anne started practice at the Legal Aid Society of New York, first as a trial lawyer and later as appellate counsel. Anne attended the University of Pittsburgh where she received her B.A. in Political Science and Chinese in 1990, did Post-Baccalaureate work in Economics. She obtained her J.D. from the University of Pittsburgh School of Law in Michael S. Deal, Esq., Lipsitz Green Scime Cambria LLP, Buffalo, New York. Michael Deal focuses his practice in the areas of criminal defense and constitutional law. He handles criminal cases and proceedings in both State and Federal courts. Prior to joining Lipsitz Green Scime Cambria LLP, he served as an Assistant County Prosecutor in the Adult Division of the Allen County Prosecutor s Office in Lima, Ohio. He also acted as a Mayor s Court Magistrate for the Village of Fort Shawnee, Ohio. Before that, he served as an Assistant County Prosecutor in the Juvenile Division of Allen County and as an Assistant City Prosecutor for the City of Lima, Ohio Prosecutor s Office. Michael has a Bachelor of Arts degree from the University of North Carolina and received his Juris Doctor from Ohio Northern University College of Law. He is admitted in the states of Ohio and New York and is a member of the New York State and Erie County Bar Associations. Jerry R. Grant is an Investigator primarily working on computer and cell phone forensic cases for the Western District of New York Federal Public Defender s office. He is a graduate of Bryant and Stratton Business Institute with an AS Degree in computer programming. Mr. Grant was previously the Computer Systems Administrator for the New York Western District offices, as well as the Acting Chief of the National IT LAN Application and Policy Support Team for the Administrative Office of the United States Court-Office of Defender Services. He is a professional computer forensic expert and system analyst with over thirty years of experience involving forensics, computer automation and programming and is a Certified Access Data Forensic Examiner. He is also a successful computer consultant specializing in computer forensics, cell phone forensics, cell tower/site analysis, and system installation and training. He has been involved in forensic computer examinations, cell phone forensics, cell site analysis and litigation support for many federal cases. He has lectured at a number of national and local conferences on the subject of computer forensic examinations, cell phone forensics, cell site analysis, computer investigations, computer automation and litigation support. Ray Kelly, Esq., Law Offices of Ray Kelly, Esq., Albany, New York. Mr. Kelly s primary areas of practice are criminal trials and appeals and civil trial practice. He served as a trial consultant for jury selection, cross-examination and substantive legal argument for the Diallo trial; was lead capital counsel in death penalty cases under Judiciary Law 35- b; served as Major Crimes Trial Counsel for the Albany County Public Defender s office; was an adjunct faculty member lecturing on Trial Tactics and Advocacy at Albany Law and has been lead counsel in over 280 trials in various civil and criminal cases including Speakers 003

5 eight death penalty cases. Ray has been a guest lecturer and instructor at numerous CLE programs for the New York State Bar Association, the New York State Defenders Association and the New York State Association of Criminal Defense Lawyers. He has written about prosecutorial and defender liability, police and prosecutorial misconduct and authored Preparation, Persuasion and Self: Defending Fellow Human-Beings A Criminal Trial Notebook published by the New York State Bar Association. Mr. Kelly received the Denison Ray Indigent Defender of the Year Award in 1998 from the New York State Bar Association, the Charles F. Crimi Memorial Outstanding Practitioner Award in 2000 from the Criminal Justice Section of the New York State Bar Association, the Honorable Thurgood Marshall Distinguished Practitioner Award in 2002 from the New York State Association of Criminal Defense Lawyers, the Distinguished Service Award in Law-Related Education in 2005 from the Law, Youth and Citizenship Committee of the New York State Bar Association, the Wilfred R. O Connor Lifetime Client-Centered Representation Award in 2007 from the New York State Defenders Association and the Clarence Darrow Award in 2010 from the New York State Association of Criminal Defense Lawyers. Terence L. Kindlon, Esq., Kindlon Shanks & Associates, Albany, New York. Mr. Kindlon has practiced as a criminal defense lawyer in Albany since He began his career as an assistant public defender and entered private practice in the late 1970 s. Terry has tried over 175 felony cases to verdict and maintained an extensive appellate practice. He was certified in capital defense and has zealously represented a number of clients facing the death penalty in both state and federal court. Mr. Kindlon was one of the founding members of the New York State Association of Criminal Defense Lawyers and has served as a lecturer for that group as well as the Criminal Justice Section of the New York State Bar Association. He has received numerous professional awards including the New York State Defenders Association Service of Justice Award, the New York State Bar Association s David S. Michaels Memorial Award for Courageous Efforts in Promoting Integrity in the Criminal Justice System, the Thurgood Marshall Unity Award by the NAACP Oneonta Area Branch, the Disabled American Veterans Certificate of Appreciation for the DAV Vietnam Veterans Outreach Program and a Commendation from the Veterans Administration Vet Center for Legal Assistance. Terry has a Martindale-Hubble AV rating and has been selected for inclusion in New York Super Lawyers for the past several years. Terry graduated Magna Cum Laude from Ithaca College and received his Juris Doctor in 1973 from the Albany Law School of Union University. During the war in Vietnam, Mr. Kindlon served in the United States Marine Corps. He was medically retired as Sergeant as a result of serious wounds received in combat in Quang Tri Province during the Tet offensive of Peter R. Mitchell, Esq., has been an attorney with the Criminal Defense Practice of the Legal Aid Society of New York City for fifteen years. He has taught trial-training courses with the American Bar Association s Rule of Law Initiative, and has developed Spanishlanguage training materials on defense investigations for Mexican lawyers. He has lectured at universities in Mexico, Panama, Ecuador and Peru and conducted a study of judicial reform in Mexico for the Open Society Institute. Since 2012, he has been devoted full-time to the training of new attorneys and investigators at the Legal Aid Society. He is also the co-editor of Understanding Power: The Indispensable Chomsky. Speakers 004

6 Emil M. Rossi, Esq., Law Offices of Emil M. Rossi, Syracuse, New York. He is a graduate of LeMoyne College and Magna Cum Laude graduate of the Syracuse University College of Law where he was a member of the Order of the Coif and the Justinian Honor Society. He started his career on Wall Street as a law associate with Curtis, Mallet-Prevost, Cole & Mosle, LLP before returning to Syracuse to become an Assistant Onondaga County District Attorney. Emil left the District Attorney s office to become a Special Assistant Attorney General for the Office of the Special Prosecutor for Health and Social Services. He also later served as Counsel to Special Prosecutor Nelson Roth who was investigating the fingerprint practices of the New York State Police. He entered private practice in 1983 specializing in federal and state court litigation. Since 1975, Mr. Rossi has been an adjunct professor of law at the Syracuse University College of Law teaching Constitutional Law, Criminal Procedure, Criminal Law, Trial Practice and Professional Responsibility as well as the advisor to the National Moot Court Trial Team. His teams were National Champions in 1976 and He is a member of the New York State Bar Association, Onondaga County Bar Association, the New York State Trial Lawyers Association, the National Italian-American Bar Association, the Association of Trial Lawyers of America and the Syracuse Association of Defense Lawyers. He has also served on the board of directors or served as an officer for numerous community and charitable organizations. Marvin E. Schechter, Esq., has been a criminal defense attorney for almost forty years based in New York City. His diverse caseload has included every conceivable (and some inconceivable) crimes from parking tickets to homicide. He has represented homeless persons to corporate officials. Mr. Schechter served nine years on the Board of Directors of the National Association of Criminal Defense Lawyers (NACDL) and currently serves on NACDL s Bylaws Committee, Audit Committee and recently the Task Force on Familial DNA Searching. He is the immediate past Chairperson of the New York State Bar Association s (NYSBA) Criminal Justice Section Executive Committee for He is a co-author of Strengthening Forensic Science in the United States: A Path Forward, issued by the National Research Council and is a member of the New York State Commission on Forensic Science. Marvin was a co-chair of the NACDL s Problem-Solving Courts Task Force which issued a report entitled America s Problem Solving Courts: The Criminal Costs of Treatment and the Case for Reform. Since February, 2009, he has crisscrossed the United States conducting over seventy-five lectures on forensic discipline problems, including speeches addressing the problems of disingenuous forensic technician testimony at the American Academy of Forensic Sciences Annual Meeting and an analysis of the Frye test s relevant scientific community standard before the New York State Bar Association s Criminal Justice Section Annual Evidence Seminar. He was the Attorney-in- Charge at the New York City Legal Aid Society s Criminal Division in Kings County from Mr. Schechter has been an adjunct professor at Fordham Law School, conducted training for the New York State Office of Court Administration and the Attorneys for Children Programs of the Appellate Division, Third Department. Along with others, he spearheaded a successful effort by the NYSBA Criminal Justice Section to obtain passage by the House of Delegates of a resolution calling for the sealing of misdemeanor and felony convictions to aid persons in re-entering society by obtaining employment and other opportunities often denied to those with criminal records. He is now working on two projects affecting New York State legal practices: Brady reforms and setting new standards for changes in eyewitness identification using sequential photo and lineup procedures. Recently he was the keynote speaker at the New York State Defenders Association s Annual Summer Awards Dinner and was the keynote speaker at this Speakers 005

7 summer s National College of DUI Defense Conference at Harvard University where he spoke about the problems caused by prosecutors who fail to reveal Brady material and forensic laboratories that fail to reveal favorable forensic evidence. Mr. Schechter counts among his non-legal accomplishments being a balloon handler in the Macy s Thanksgiving Day Parade and completing a nine and one-half hour hike up a steep mountain in Patagonia, Chile. Kurt D. Schultz, Sr., Esq., Helmer Johnson Misiaszek & Kenealy, Esq., Utica, New York. Mr. Schultz graduated magna cum laude in 1980 from the State University of New York at Albany and received his Juris Doctor from the St. Louis University School of Law in Kurt served as an Assistant Public Defender for the State of Missouri from 1984 until 1985 when he became an Assistant Circuit Attorney in St. Louis handing violent crimes. In 1987, Mr. Schultz was appointed an Assistant United States Attorney assigned to the Criminal Division for the Eastern District of Missouri. From 1989 to 2005, Kurt was in private practice in St. Louis where he undertook extensive representation of the members of the St. Louis Police Officer s Association in addition to criminal cases in state and federal courts. Returning to New York State, he served as an Assistant Oneida County Public Defender from 2006 until 2007 when he accepted an appointment as Assistant Oneida County District Attorney. Kurt is adjunct professor in the Criminal Justice Department at Mohawk Valley Community College and a Certified Instructor for the State of New York Municipal Police Training Council. Mr. Schultz is a member in good standing of the New York State and Missouri bars. Speakers 006

8 The Importance of Cross Examination By Paul J. Cambria, Jr., Esq. 1 LIPSITZ GREEN SCIME CAMBRIA LLP 42 Delaware Avenue, Suite 120, Buffalo, New York (716) ; 1 Timothy P. Murphy, Esq., of Lipsitz Green Scime Cambria LLP, assisted in the preparation of this submission. Cambria: The Importance of Cross-Examination 007

9 The Importance of Cross Examination By Paul J. Cambria, Jr., Esq. 1 LIPSITZ GREEN SCIME CAMBRIA LLP 42 Delaware Avenue, Suite 120, Buffalo, New York (716) ; Oneida County Bar Association; Oneida County Public Defender Office; New York State Defender Association Criminal Law Academy September 21, 2013; Utica, New York ººººº The Confrontation Clause provides that, [i]n all criminal prosecutions, the accused shall enjoy the right to be confronted with the witnesses against him. The United States Supreme Court has concluded this about the Clause: Where testimonial statements are involved, we do not think the Framers meant to leave the Sixth Amendment s protection to the vagaries of the rules of evidence, much less to amorphous notions of reliability. Certainly none of the authorities discussed above acknowledges any general reliability exception to the common-law rule. Admitting statements deemed reliable by a judge is fundamentally at odds with the right of confrontation. To be sure, the Clause s ultimate goal is to ensure reliability of evidence, but it is a procedural rather than a substantive guarantee. It commands, not that evidence be reliable, but that reliability be assessed in a particular manner: by testing in the crucible of crossexamination. The Clause thus reflects a judgment, not 1 Timothy P. Murphy, Esq., of Lipsitz Green Scime Cambria LLP, assisted in the preparation of this submission. Cambria: The Importance of Cross-Examination 008

10 only about the desirability of reliable evidence (a point on which there could be little dissent), but about how reliability can best be determined. Crawford v. Washington, 541 U.S. 36, (2004) (internal citations omitted). In other words, our Constitution requires that the reliability of evidence be tested through the crucible of cross-examination. In the immortal words of famed New York City trial lawyer Francis L. Wellman from his classic book, The Art of Cross-Examination : The issue of a cause rarely depends upon a speech and is but seldom even affected by it. But there is never a cause contested, the result of which is not mainly dependent upon the skill with which the advocate conducts his cross-examination. 2 Put another way, nothing is more important for a criminal defendant than the opportunity to confront one s accusers, as contemplated by the Sixth Amendment. Impeachment by shedding light on the shortcomings of the witness testimony in terms of his or her bias, motive, interest, inconsistent statements, competency (to see and hear events) and character (including F.R.E. 609 prior convictions and other F.R.E. 608 bad acts), may mean the difference between success and failure at trial. The trial attorney must of course be sure that cross-examination of particular witness will benefit his or her client. Asking yourself a few 2 See Part One: The Principles of Cross-Examination, p. 23 (Macmillan Publishing Co., originally published in 1903). 2 Cambria: The Importance of Cross-Examination 009

11 questions at the outset about the potential examination will help frame your goals for the particular witness: Did the witness hurt your case by his or her direct examination? If so, can you mitigate the damage through cross examination? Are you able to obtain testimony on cross-examination to actually help your cause? Are you able to secure testimony on crossexamination that will hurt your opponent s case? Do you need this witness to establish an evidentiary foundation to admit a document or other exhibit in evidence? Can you discredit his or her testimony given on direct examination (i.e., through inconsistencies revealed during direct examination)? Can you demonstrate that the testimony given during direct conflicts with the testimony of other witnesses? Can you actually discredit this witness (i.e., by showing bias or prejudice in favor of your adversary and [or] against your client)? Or does the witness have a motive to lie? Is he or she personally, financially, or otherwise interested in the outcome of the case? Was he or she not in a position to see or hear the event testified to on direct examination? Can the cross-examination be used to enhance or tear down the credibility of other witnesses? Is the witness important enough to cross-examine in order to fulfill the expectations of the jury? 3 Cambria: The Importance of Cross-Examination 010

12 Once cross-examination is determined to be the best route to take, and this most often will be the case, here are some thoughts for the trial practitioner on how to proceed: You Need to Tell a story. Using leading questions is the best way to tell your story. Whether it is your client s story, the story of missed opportunities, or the story of impediments to observing an important event, the jury should be provided the narrative through you placing the words into the witness mouth. Persuade the jury while not allowing the witness time to fully contemplate his or her answer. This is no time to discover new facts, so be reasonably sure of the answer that is coming. Do not ask open ended questions using how or why. You will also be more effective if you just attempt to establish one fact per question. Sometimes Less is More. Just because a witness makes a mistake, that does not necessarily mean that he or she is lying. Jurors often believe that if a witness does not make mistakes while testifying, his or her testimony might not be true. Witness mistakes can be attributable to nervousness, and jurors understand that. The courtroom is an intimidating place, and everyone there is on edge. If the witness is simply mistaken, an attorney may strategically elect to not to press too hard on the inconsistency in question. 4 Cambria: The Importance of Cross-Examination 011

13 Consider asking questions with no beginnings. At times, the most effective way to save a powerful fact for the end of the question is to ask questions with no beginnings; for example: You left work at ten? Got home at twelve twenty five? Parked behind the building? Walked up the front steps? Opened the door to your house? Keep your questions short and sweet. Use plain English. Do not attempt to scale unnecessary mountains. It is not always necessary to make the witness out to be a liar. If all you need is for the jury to disregard his testimony, it does not matter why they disregard it, just so long as they do. So do not take on an extra burdens. If you can come up with a comfortable way for the jury to disbelieve the witness testimony, that is all you need to do. You control the tempo. Increasing the pace of your questioning allows you to control what story gets told during cross-examination. If the witness is lying, he or she will need time to think of the lie. The faster your questions hammer the witness, the less likely his or her chances are of maintaining the lies. Control the pace of your cross-examination, and you will deny the witness time to fabricate his or her responses. Control the tempo, and you control the cross-examination. 5 Cambria: The Importance of Cross-Examination 012

14 Build up to a strong finish. Do not finish a cross-examination by checking your notes to confirm that you have not forgotten anything. Jurors remember the beginning and the ending more than what is asked in the middle. Remember that. Quit while you are ahead. Kenny Rogers teaches us, You got to know when to hold 'em, know when to fold 'em, Know when to walk away and know when to run. Attempting to improve on a favorable answer may under some circumstances become a recipe for disaster - - as is an attempt to revive a dead issue. You can only live to fight another day if you accept reality when it is before you. Do not lose a great point you make by going on too long with the witness. Be yourself. Do not attempt to be some other attorney when you are attempting to cross-examine a witness. You will be more successful, believable and persuasive by being yourself. The great cross-examiners do not imitate other attorneys. Always listen to the answers you receive. Treat the witness fairly; believe it or not, your credibility with the jury is on the line as well. Helping your own witness prepare to be cross-examined. It is crucial is to help witnesses understand how untrustworthy they look when they lose their cool. Videotaping the witnesses during mock cross- 6 Cambria: The Importance of Cross-Examination 013

15 examinations, and showing them the video, may be very helpful. For many people, this will be the first time they have ever seen themselves on video; and once they see how undignified they look when they get upset, they will realize why you want them to control their emotions. The witness should further be informed about the tactics your opponent may use to get under the witness skin and trigger their anger. Rather than using solid crossexamination skills, many lawyers will rely on raising their voice, rapid-fire questions, attacking integrity, misstating the witness s name or rank, forcing the witness into I don t know responses, staring down the witness, or other tricks that cause anger. If your witness is prepared, he or she will expect the lawyer s trick, so they will not be taken by surprise and can remain calm throughout the proceedings. ººººº As the Crawford court recognized, the Confrontation Clause s ultimate goal is to ensure reliability of evidence, but it is a procedural rather than a substantive guarantee. It commands, not that evidence be reliable, but that reliability be assessed in a particular manner: by testing in the crucible of cross-examination. 541 U.S. at The opportunity to crossexamine is sacred to the criminal defendant. A trial attorney should never 7 Cambria: The Importance of Cross-Examination 014

16 squander this opportunity by ceding control to the witness, or by losing sight of the objective; that is, telling a story and exposing reasonable doubt. However, [t]here is no short cut, no royal road to proficiency, in the art of advocacy. It is experience, and one might almost say experience alone, that brings success. I am not speaking of that small minority of men in all walks of life who have been touched by the magic wand of genius, but of men of average endowments and even special aptitude for the calling of advocacy; with them it is a race of experience. Wellman, supra at p (emphasis added). So keep working at it. Paul J. Cambria, Jr., Esq. September Cambria: The Importance of Cross-Examination 015

17 Opening Statements Terence L. Kindlon, Esq. Kindlon Shanks & Associates LLP Attorneys & Counselors at Law 74 Chapel Street Albany, NY Kindlon: Opening Statements 016

18 OPENING STATEMENTS I. WHAT IS AN OPENING STATEMENT? A. A STORY (A WORD PICTURE) B. THAT MAKES SENSE C. TOLD BY YOU D. WITH AN EMOTIONAL COMPONENT E. THAT IS PERSUASIVE F. AND GIVES A PREVIEW OF THE EVIDENCE H. WHILE NARROWING THE ISSUES J. IT MUST PREPARE THE JURY 1 Kindlon: Opening Statements 017

19 K. TO KNOW WHAT TO LOOK FOR L. AND PREDISPOSE THE JURY TO YOUR VERSION OF THE FACTS II. WHY GIVE AN OPENING STATEMENT A. RULES OF PRIMACY AND RECENCY FIRST IMPRESSIONS WE ALWAYS FIND FACTS TO BOLSTER OUR INITIAL IMPRESSION B. TIMING - JUDGE V. ATTY CONDUCTED VOIR DIRE C. NARROW THE ISSUES (NOT WHETHER SHE WAS...) D. EDUCATE THE JURY (YOU ARE GOING TO DECIDE) E. PREPARE THE JURY FOR THE TRIAL F. COUNTER PRE-CONCEIVED IDEAS/ FEELINGS G. ESTABLISH RAPPORT AND CREDIBILITY 2 Kindlon: Opening Statements 018

20 H. MAKE THEM LIKE YOU!! (AND HOPEFULLY YOUR CLIENT) III. WHAT SHOULD IT CONTAIN A. INTRODUCTION OF YOU AND YOUR CLIENT B. YOUR THEORY AND THEME OF THE CASE C. PREVIEW OF THE EVIDENCE D. YOUR THEORY AND THEME OF THE CASE E. DRAWING THE STING OF ANY BAD FACTS F. YOUR THEORY AND THEME OF THE CASE G. CHALLENGE TO THE OTHER SIDE IF POSSIBLE H. YOUR THEORY AND THEME OF THE CASE IV. PERFORMANCE COUNTS A. YOU ARE AN ACTOR/ COMMUNICATOR 3 Kindlon: Opening Statements 019

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