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Articles Posted in Trial Techniques for Lawyers

The Psychology of Persuasion Lecture by Dyke Huish was one of the best lectures I have heard for criminal defense lawyers wanting to improve their trial skills.  Having extra office time, I have made it a goal to listen to all the recording of seminars that I have purchased over the years.  This lecture was terrific and I wanted to share what I learned from the CD.

In this Blog, I will discuss the lecture of Dyke Huish, a criminal defense lawyer from California.  He gave this speech at the National Criminal Defense Lawyers Association Meeting in Philadelphia.

He made many excellent points that are worth remembering for lawyers. I will recount them here and give my takeaways as to how I will use these ideas in my upcoming trials.

In 2005, I started DelSignore Law as a criminal defense firm handling all types of criminal charges.  While we handle every type of criminal charge, we soon got recognized around Massachusetts for handling DUI cases. It was a great honor to quickly be recognized as one of the top firms for OUI defense in Massachusetts.  The reason I like handling OUI cases is that I can really identity with what the client is going through.  After an arrest, a person feels as though their life is over, they worry about their job, and family life and it is an anxiety that from day one I try to ease for the client.  I can relate to someone who has worked there entire life for something only to believe that it is taken away by one mistake; to give someone a second chance by proving a stop was unlawful, that there was not sufficient evidence to prove the case in court or to be passionate enough to be able to convince the jury in the face of difficulty facts is a very rewarding job.  

          Unfortunately, until the person hears the words not guilty, I cannot predict the outcome or completely ease the stress of being charged.  But I have tried to develop systems over the years to reduce the stress during the process.  I understand what my clients are going through. It was three days before my law school orientation at University of Connecticut School of Law where I was going to start law school.  It was a goal I had been working toward for the last four years of college.  It was my vision in high school as I was on the mock trial team. 

             All of a sudden while driving home from Bryant College I saw the blue lights in the back of my window like so many of my clients.  I was on the side of the road performing field tests, thinking I passed only to be told I failed. How was that possible? My fate was in the hands of a police officer.  There was nothing I could do.  I knew I drank next to nothing that night; I was released and never charged because when I took the breath test the result was zero.  I was arrested because I was nervous and overcome with fear from having my fate in the hands of a police officer.  While I did not go through the stress having to go to court, the experience stuck in my mind that my clients are all at the mercy of the judgment of a police officer.  When I looked at the report the officer wrote, I noticed it was inaccurate, putting quotes for phrases I never use. 

In this blog we outline our process for taking a case to trial at DelSignore Law.  All cases are different but in general this is out approach that we use in every case.  Early on in the process, I start preparing the cross examination and outlining the closing statement.  I like to do this early because it helps me see the direction of the case in terms of what evidence I need and what evidence I may want to try to exclude at trial or before trial through an evidentiary motion. 

We prepare a trial notebook that consistent of the following for all cases.  We have pictures of the scene, written opening, closing and cross examination questions, motions in liming, and copies of the police report.  In all trial notebooks, I divide each section of the case with a color paper and put extra paper to use during trial.  I also have a copy of the officer’s training manual if the case is an OUI that specifies when the officer was trained on the administration of field sobriety tests.  I bring that manual to court in case an issue of impeaching the officer arises. 

The binder would also include direct examination questions that I will ask any witness as well as copies of any medical records or evidence that I intend to use at trial.  The trial folder consists of everything that I may use at trial.  There are records and motions that I do not intend to use; I keep these out of the trial binder in case I need to find something during trial.  When I have a transcript of an officer from a motion to suppress hearing, I will put the page number by the cross examination for anticipated impeachment.  In other words, if the officer claims that my client has slurred speech during the trial, but did not recall slurred speech at the motion, on the slurred speech chapter of the cross, I would have motion hearing at page 32, to tell me quickly where to find the impeachment.  

With an increase in OUI drugs arrests in Massachusetts, Massachusetts OUI Lawyers can expect to see an increase in OUI drugs arrests.  In serious case, there is likely to be forensic testing of blood for drugs.  In OUI alcohol cases, typically a suspect will be asked to take a breath test.  In case involving, injuries to the operator believe to be under the influence, forensic testing of the blood may be requested in cases involving serious bodily injury or death.  Recently, I attended a seminar called Serious Science sponsored by the National College of DUI Defense.  This seminar featured a first hand view of the Science with a visit to the University of Texas Lab at its Arlington campus.  This was an excellent event run by a Andrew Mischlove, Joe St. Louis and Virginia Landry, lawyers I have known for many years. They were assisted by two other outstanding lawyers who work with the Gerry Spence Trial College Kimberly Benjamin from Missouri and Franciso Durate from Washington State.  

Gas Chromatography separates the elements of a compound for analysis by a forensic scientist.  What happens is the machine takes an element and transforms it into the gas phase for analysis.  The machine then determines what type of substance is being analyzed by the retention time. As part of our work in the lab, we created standards; these standards are used so that there is a known solution that is put into the machine that comes out at a specific time.  The unknown standard is then compared to the known standard that are prepared in the laboratory.

Liquid Chromatography is also another type of separation analysis where the compounds are turned into a liquid instead of a gas.  Liquid Chromatography allows for greater depth of analysis as some compounds cannot be transformed into a gas phase; the use of liquid chromatography is the most accurate way to detect drugs in the blood steam.

How much detail should you reveal in your opening statement?

Some lawyers fear revealing their defense in the opening statement and allowing the Government to adjust their case based on the opening. That can occur; what I do to prevent that is focus on the facts that I know for sure I can prove in the opening, that the Government cannot dispute. Having a motion hearing, allows a lawyer to give a more detailed opening statement because the testimony is locked in.

I prefer to make as detailed opening statement as I can.  I do not believe in the theory of holding back for fear of tipping of the Government for a few reasons; first, the Government, likely knows your theory of defense.  Second, when you leave things out, you do not deliver as effective and confident opening statement.  The more facts and details you can get into from the start the better.  There has been research showing that a jurors begin to decide cases immediately.  Most believe that by the time the Closing Statements are delivered, most jurors would know how they are going to vote.  It is important to start getting jurors to accept your theory of the case from the start of the trial.

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In Books on Trial practice, it is typically recommended to label things during the trial- to use names that fit your theory of the case.

Refocus how the Jury Looks At the Key Evidence in the case

In a recent trial I had, my client made many statements to the officer prior to the field sobriety tests which were not helpful to the defense. What I did to change the focus of the inquiry from my client not giving straight answers, being evasive and appearing not to know what was going on, was to count the questions. I would ask the officer a series of questions and ask if that was the sixth question he asked. Eventually, the officer agreed to ask 12 questions.

What are the steps to prepare an OUI case for trial? In this Blog, I would like to explain to you the process I go through to prepare for trial.

The process of preparing for trial starts when I get the case, but when the trial approaches I take the following steps for the final 2 days. Two days before the trial, I have all of the evidence, motions and exhibits ready to go, the cross examination written out and like to spend the time practicing out loud. I have attended many training seminars for lawyers and frequently go to the Gerry Spence trial college; you cannot replicate the benefit you get from practiving your closing on your feet out loud. It is when you are rehearinsing out loud, you think of new ideas, better ways to make your argument so it is crucial for delivering a great closing statement.

Study other Great Lawyers to Stimulate New Ideas 

I also like to watch great closing arguments to help my preparation my two favorite include Johnnie Cohran’s Closing in the OJ Simpson trial and Mark O’Mara’s Closing in the George Zimmerman Trial. This month I will post a separate Blog on each of these closing arguments pointing out what I have found useful in watching them over the years.

My top tip for an OUI Lawyer just starting out with first trial is to practice out loud, you may hate to do it at first but when you hear the not guilty verdict you will know you really achieved it telling your closing to the walls in your office.
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