Defense counsel should be wary when the defendant’s case involves a seized cellphone that may be introduced into evidence. Are the jurors going to take the phone into the jury room? Is the cellphone inoperable? What should the defense team do if it is blindsided by jurors accessing the cellphone during deliberations? It is crucial to examine the cellphone carefully to make sure it contains no unexpected incriminating information. In addition, defense counsel should check for deleted or normally hidden information that might be restorable by a tech-savvy juror.

The five-point argument outlined in this article has been preserved in a failure to register case under the Sex Offender Registration and Notification Act at 18 U.S.C. § 2250(a).

Practice Points Denis M. deVlaming

Practice Points

If the courtroom is a stage, then attorneys must make every moment count during their time in the spotlight. Attorney Mary DeFusco says evidence is everything the jury sees, hears, reasons, and feels. It is up to defense attorneys to make sure that as much of that information as possible is favorable to the defendant. She offers helpful tips to new lawyers so that they can use the stage to its full advantage.

In today’s media-savvy society, it is critical that attorneys use persuasive demonstrative aids to educate jurors about important or complex issues. Jurors not only learn concepts or facts in a case, but also remember specific demonstratives to support their position and convince other jurors why they view a particular issue a certain way. Through his discussion of timelines and comparative reasoning charts, Josh Dubin shows that persuasive demonstrative aids are no longer a luxury item reserved for “big” cases.

Slide shows can help make a presentation more effective by illustrating a presenter’s points and keeping an audience engaged. Like most things in life, however, there are rules that should be followed. Public defender Al Menaster offers his Top 10 rules for slide shows. The goal is to make a lawyer’s opening statements, final arguments and presentations great, using technology to help. A slide show heavy on quotations and text is going to be a bad show. Is there a picture or a sound effect that can be used? Try to come up with an interesting theme. This is how people learn and remember. Use these 10 rules to make slide shows sizzle.

In some cases, a jury’s decision that the prosecution’s witnesses are liars or just wrong may be the only defense that counsel can offer. This means that the credibility instruction is important. Do lawyers treat it as important? Lawyers rarely make requests to charge that ask for an alternative to the pattern or model credibility instruction. That is a problem because the credibility instruction could be better, says appellate attorney Lisa J. Steele. It could take into account psychological research into detecting deception, which might lead the jury to a more accurate verdict. Moreover, some judges may adopt different language if they are asked to think critically about a pattern instruction. Steele discusses six myths about credibility decisions in the courtroom and offers a suggestion for a better instruction.

Lawyers employ themes at trial because themes are memorable and can be used as teaching tools. Some lawyers believe jurors are more inclined to assume guilt in a sexual assault case. Even if this belief is true, it does not change the strategies of persuasion the defense will use when trying a sexual assault case. Themes stick. A probable reality in these cases is that jurors want to know how a false accusation could have been made. Keith Belzer offers themes and theme-related defenses for cases involving sexual assault allegations. One advantage of brainstorming themes is that it forces the defense team to try to figure out what happened. The development of a theme helps to answer the following question: Why are we here if an assault did not occur?

During deliberations, why would the defense team want jurors to review its digital exhibit (video) in the privacy of the jury room rather than having the jurors return to the courtroom to review the exhibit in open court? Is the storage medium (computer disk) considered the exhibit, or is the playback device (laptop computer) part of the exhibit too? If the court sends the playback device into the jury room, jurors would have control of playback speed and volume, and they could watch the video as many times as necessary. How does the defense attorney persuade the trial court to exercise its discretion in the defendant’s favor and allow the exhibit and ancillary equipment into the jury room? What precautions should defense counsel take before the equipment is sent to the jury room?

Cross-examination involves storytelling. It is the way counsel tells the true story about the case, the witness, or the event — one question at a time. The object of cross-examination is not simply to discredit the opposing witness, but also to advance the story of the defendant’s case through the opposing witness, and to test the truth of the opponent’s story against the defendant’s story. Jurors do not remember verbatim the answers given by witnesses. They do, however, remember stories.

Chuck Strain offers practical advice for successor counsel hired when a client decides to leave his original lawyer. Phone the original lawyer immediately – even before signing on with the client. Be sensitive to the original lawyer’s feelings, and ask for counsel’s insight about the case and client. Perform all the legwork involved in the transition, and offer to pick up or copy useful parts of the file. Explain to the client that the original lawyer remains counsel of record – with all attendant duties to the client and the court undiminished – until the substitution entry is signed.

Law students rarely concentrate on learning practical skills, and thus few new lawyers are adept at conducting the initial client interview. This article provides tips that will help recent law graduates effectively communicate with new clients and gain their trust.

Practice Points: Taking an Effective Deposition in a Criminal Case Shaun Khojayan Practice Points September 2011 57 Taking an Effective Deposition in a Criminal Case A witness is unavailable to come to court, but her testimony is needed. This is yet another obstacle the defense attorney must overcome

Practice Points