Sue Fahami Craig Denney The Honorable Scott Freeman Mary Boetsch Carla Higginbotham Michael Large

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2 Sue Fahami Craig Denney The Honorable Scott Freeman Mary Boetsch Carla Higginbotham Michael Large Master Dixie Grossman Benjamin Albers Zelalem Bogale Procter Hug IV Steven Silva Special Guest Star: The Honorable Lidia Stiglich

3 Short Presentation on persuasive argument Short Examples of arguments Will not be full presentations Real Criminal Case Tried in April, 2011 All evidence/information provided matter of public record THERE WILL BE SOME OFFENSIVE LANGUAGE IN VIDEO EXHIBITS SHOWN! PLEASE BE PREPARED.

4 Defendant accused of transporting 14 year old and 15 year old girls across state lines for purpose of prostitution. Indicted on 2 counts of violation of Mann Act in September, 2010 Case Proceeded to Trial April, 2011

5 Tip about young prostitutes Two young girls with black male at convenience store SET Sting

6 K and B arrested K and B each interviewed separately B provides RPD with statements regarding her pimp AJ K and B arrested K and B each interviewed separately B provides RPD with statements regarding her pimp AJ

7 Defendant Aaron Ross Gouda Mob Gang 19 years old Located at Sands Hotel Gave Statement I m no Pimp

8 Witness statements Both victims Defendant Defendant s Friend who paid for bus tickets/hotel on Defendant s behalf Corroborating Evidence Bus Tickets Hotel Receipts Contents of Cell phones Undercover recording

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10 Your theory is the most favorable version of what happened. All uncontested facts and your version of disputed facts together with favorable characterization. Remember, humans are story generating instruments. If a story fits within a schema or archetype that is familiar and understandable to the jury it is more likely to be accepted.

11 Your theme is a phrase that presents the meaning of the case linked to universal archetypes and truths of the human condition. On what should themes be based? Some examples: This is a case about taking chances. Mary Jones had a dream and a plan. Revenge. That s what this case is all about. This is also a case about pain. Mr. Johnson s only companion today is constant pain. This is a case about police brutality

12 A label is simply the word you use to describe things. In opening statements, your word choice can be one of your most persuasive tools. Characterization and contextualization matter when you attempt to persuade.

13 Effectively tell a story. Focus on the people, not the problem. Who are the important players? Most jurors view the world through emotional eyes. Personalize your party. Why? Make the story vivid. Re-create the incident. Make it emotionally resonant. Be logical and concise. Walk the jurors through the events in either chronological or thematic order.

14 Introduction Parties Scene Instrumentality Date, time, weather and lighting Issue What happened Basis of guilt/nonguilt Anticipating and refuting the other side Conclusion

15 Themes Theory Enthusiasm, confidence, and integrity

16 Introduce essential people Parties Critical witnesses Prosecution/Plaintiff: Tell a story about your client or the victim. Build him/her up and make him/her sympathetic to the jury Get the jury to relate Defense: Important parties and witnesses that Plaintiff s counsel didn t mention/glossed over Humanize your client.

17 Describe the scene so the jury can visualize it. It was a dark and stormy night. Remember, the better the jury can visualize your version of the events at issue, the more likely they are to adopt them. People believe in what they can see.

18 The opening is an excellent early chance to seize control of the trial. If you can successfully suggest what question the jury should be answering, you can significantly increase your odds of how it will be answered. Confirmation bias can be a powerful tool throughout the rest of the trial if you are able to capture the jurors attention and succeed in framing the issue.

19 - Tell your story. - The presentation of an interesting story holds jurors attention. - Drama, emotion, and empathy are good. - But don t over-do it. Melodrama, exaggeration, and theatrics can undermine your credibility.

20 PROSECUTION/PLAINTIFF: Summary of facts Conclude that client is entitled to win DEFENSE: Point out holes in plaintiff s story Find ways plaintiff s story is not persuasive Emphasize your OWN picture and conclusion

21 PROSECUTION: Defuse the defense, without appearing defensive DEFENSE: Can talk about evidence that Plaintiff has already described

22 In a criminal matter, the defense may choose to defer opening until the prosecution has rested. This is highly unusual in civil trials.

23 I would submit that the opening theme song to Fresh Prince contains most, if not all, the elements of a strong theme, including recognizing and pre-emptively minimizing bad facts This is the story about how, my life got twisted upside-down I got in one little fight, and my mom got scared. I pulled up to the house around 7 or 8. Cf. The theme song to Gilligan s Island

24 Simply and directly tell jury that facts of the case will support his/her side, and ask for a verdict. Members of the jury, after you have heard the evidence, we are confident that you will find the defendant guilty of each count in this indictment: armed robbery and murder. [Prosecution] At the conclusion of this case, you will have grave doubts that Tom Smith was anywhere near the robbery when it occurred. If anything, you will be convinced that someone else did it. Consequently, Tom Smith is simply not guilty of anything. [Defense]

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26 Why are you calling this witness: To establish legally significant facts? To corroborate another s testimony? To get a document into evidence?

27 Organize the direct maximize the trier of fact s comprehension and retention. Your goal is to tell a coherent and interesting story. At this stage you also should decide what documents you will introduce through this witness and where in the examination the documents will be introduced. You must be clear about what facts you want the witness to establish. You should not shy away from negative topics, but be prepared to undercut any potential cross-examination of the witness. If something negative will come out on cross or in through the opponent's direct, bring it out first.

28 Anticipate Problems You should anticipate any problems you might have with the witness and devise some strategies to meet them. For example, if your client is forgetful, how will you refresh his or her memory?

29 Practice with the Witness You must review the questions with the witness. Combining roleplay with feedback on how the witness answers is an effective technique. In judge trials and administrative hearings, some judges like to question witnesses first or will interrupt your examination with questions. Be sure to prepare your witnesses for this situation.

30 Accrediting the witness allows you to describe the witness in a way that makes them appear competent. You accredit a witness by developing the witness background to make their testimony relevant and real. The skill is to personalize the witness without becoming tedious or obvious. Accrediting may include such facts as where the witness lives, where he or she is from, or his or her work experience.

31 Let Witness Lay Out Details Let the witness describe the details of what he or she did or did not observe. This includes who was or was not involved, and the time and sequence of events. Importantly, the most skillful direct examinations occur without the jury even noticing the attorney asking the questions. In contrast to a cross-examination where the real meat of the testimony is often times contained in the question, on direct simply be a guide and let the witness provide the substance.

32 Further Accreditation How does the witness come to know the facts that he will testify to? Did he have an opportunity to observe something? Was he in a position to see or hear? What are the specifics of the scene in terms of buildings, lighting and location? In setting the scene, you are really showing that the witness testifies from personal knowledge.

33 Further Accreditation How does the witness come to know the facts that he will testify to? Did he have an opportunity to observe something? Was he in a position to see or hear? What are the specifics of the scene in terms of buildings, lighting and location? In setting the scene, you are really showing that the witness testifies from personal knowledge.

34 Select Key Words Many examiners do not write out their questions word for word. They do think about key words to use to set the tone of the direct. One technique is to draw a line down the center of the page. On the right, write the answers the witness will give and on the left, any key words you want to use in your questions or elements you must meet to lay a foundation.

35 Use diagrams and demonstrations (visualization); Avoid compound, complex questions; Personalize the witness; Tie up the evidence, place it in context; Use transitions to structure testimony; Omit redundant and unnecessary testimony; Stress specific details on which conclusions rest (repeat answer for confirmation); Avoid leading questions except with preliminary or inconsequential matters or where the witness has difficulty in remembering; and Tell a story.

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37 Leading questions permitted. Limitation on scope: Cross-examination is limited to the subject matter of the direct examination and matters affecting the credibility of the witness, unless the judge in the exercise of discretion permits inquiry into additional matters as if on direct examination. NRS (2)

38 Intimidating Behavior and Unfair Characterizations Witness testifies on direct: It was dark outside. Question on Cross: So you admit that it was too dark to see anything? Trick questions the negative pregnant: Have you resigned from the communist party Senator McCarthy Argumentative questions It was too dark for you to see anything?

39 Assuming facts: question uses a non-record fact as a premise rather than as a separate subject of inquiry. Witness testifies on direct that he saw Defendant never even slow down in his car before the impact causing the accident never says anything about consuming alcohol. Question on Cross: Since you were drinking, you were on foot instead of your car that morning

40 Direct examination vs. Cross-Examination Direct: lawyer is telling the witness to provide a fact for the court. Give me a fact about your name My name is Betty Give me a fact about your age I am 47 years old Cross-Examination: The fact is provided by the lawyer, witness can affirm, deny, and or explain Your name is Betty You are 47 years old

41 Repair or minimize damage Enhance your case Detract from their case Establish foundation Discredit direct testimony Discredit the witness (They don t call him Flipper for Nothing)

42 Friendly information Affirmative information Incontrovertible information Challenging information Hostile information Zinger

43 Non leading questions You were 30 feet away from the Plaintiff s car when you first applied your brakes? vs. How far from the plaintiff s car were you when you applied your brakes

44 So you picked up that loaded gun and drove over there in that green truck Problems? You picked up the gun? The gun was loaded? You got into your truck? The color of the truck was green? You drove the truck?

45 Why questions Fishing questions Gap questions

46 Characterizations and conclusions It was too dark to see very well, wasn t it? vs. sun had gone down? There was no moon light? No street lamps? No street lights? No illuminated signs? Save the characterization for final argument

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48 Organizing your argument by topic allows you to organize and present facts in the most persuasive manner. Don t organize chronologically.

49 Jurors are most likely to remember what they hear first in your argument and what they hear last, so start and finish your closing with your best arguments. Don t bury best arguments in the middle of your closing.

50 Ask yourself why the jury should return a verdict in favor of your client. The answer to this question will be your topic(s) for closing argument.

51 Straightforward if you represent the Plaintiff: spend your initial argument discussing your affirmative topics and wait to challenge Defendant s case in rebuttal. If you represent Defendant: do not rebut the Plaintiff s case (other than a brief initial statement) until you have first presented your own case. Why do you build me up, buttercup baby, just to tear me down, and mess me around?

52 Do not make a list of Defendant s arguments and go through the list rebutting each one in that order. Instead, organize your rebuttal argument around the same topics that you used in your opening argument. As Counsel for Defendant, you must to some extent anticipate Plaintiff s rebuttal and respond to it before it is made.

53 It is easier for jurors to follow your argument and remember your key points if you use signposts to guide them.

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55 Frame the content of your argument so the jurors know exactly what they need to decide.

56 Be selective in the content included in your closing argument. Do not describe every piece of evidence.

57 Don t just tell the jurors about the evidence, show it to them. Do not assume that just because the jurors saw a document earlier in the trial they remember it now.

58 If a jury instruction provides support on an important topic in your argument, you may want to read from or refer to it. Do not use every jury instruction or let the actual instruction become the focus of your closing argument.

59 Rather than ignore bad facts, explain why a bad fact does not matter. Osteriches are not persuasive.

60 When the evidence is in conflict, you should argue to the jury why your evidence should be believed. Whenever possible, you should try to reconcile the conflicting testimony of witnesses without accusing one of the witnesses of lying.

61 An effective demonstrative for closing is often a list of the key pieces of evidence on a particular topic. Another effective demonstrative exhibit for closing is a list of the opposing party s arguments on a particular point, along with your responses to each argument. Be selective in your use of Demonstrative exhibits.

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63 Don t prepare a script for closing and read from it. Give your closing argument from an outline.

64 The first few minutes and last few minutes of your closing argument are critical, so it is often a good idea to memorize the beginning and ending of your closing argument. Extemporaneous presentation?

65 Vary the speed, volume, tone and inflection of your voice. One of the effective and underused tools in closing argument is silence.

66 You have your own style, use it. Don t copy someone else s style unless it comes naturally to you. Caveat: If you can be Batman, consider being Batman instead of yourself.

67 United States v. Aaron Ross

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69 Must have intent that persons engage in prostitution before transportation occurs Does not have to be sole purpose Dominant purpose

70 Testimony of Victim s Undercover Investigation

71 Defendant has told you what he was A PIMP to both Brandee and Keipreece

72 Ask Brandee if happy she made her first hundred and she says shut up Daddy

73 Ross testifies he is still getting cashed out Moves camera to Kaprieece and refers to her as his money maker Then moves to Brandee and tells her excellent job today you showin off today

74 Ross testifies staying at ex-pimps place but that he is still on the inside as he flashes money

75 Films Brandee by truck window and Ross testifies that Brandee is making her first hundred She then returns to Ross to tell him, her daddy, the terms of the deal

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77 3 days 8 witnesses 15 videos in evidence Call expert witness to explain The Game Convicted both counts

78 168 months both counts run concurrent (14 years) 20 years supervised release Affirmed on appeal September 2012 Both victims are doing well in recovery facilities

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