After some 400 jury trials, I have seen many attempts to impeach witness testimony – sometimes successful, sometimes not. There are many techniques one can use to impeach a witness with an inconsistent prior response. Trial lawyers tend to have their own techniques.
Here is a summary of what I think are best and worst practices:
- When impeaching, be nice, but firm, to the witness. Translation: Jurors do not like assh**e lawyers. You generally get more with honey than vinegar.
- There is one exception to the above rule. If the jurors think the witness is despicable, disgusting, or a pathological liar, increase the aggressiveness of the cross. The witness has essentially given you “permission” to be tougher and rougher with them.
- Do not attempt impeachment if the difference is insignificant or laughable.
It is the exceedingly rare sentencing where I do not receive and read letters of support. I roughly estimate that I have read between 30,000 and 40,000 letters over the past twenty-three years. In one case alone, I read 107 letters.
For some very odd and unknown reason in our district, the Northern District of Iowa, these letters have always been referred to by everyone but me as “unsolicited letters.” That always makes me chuckle, because I, and my colleagues nation-wide, do receive unsolicited letters, but they start very differently than the letters on behalf of offenders. My favorite was years ago and received just before Christmas. Here is how it started:
Dear Judge Bennett,
I hope you nigger loving anti-American communist Jew lover have a nice Christmas.
It went downhill from there.* Continue reading
After twenty-three years of motions, hearings, trials and sentencings in over 4,000 criminal cases spanning four districts, I want to share my thoughts on the art of arguing the frivolous.
I practiced federal criminal defense law for seventeen years before I became a federal judge. For whatever reasons, in both retained and CJA cases, I had excellent client relations and to my knowledge never once argued a frivolous motion a client suggested. I listened and was patient with clients, but was able to convince clients why arguing frivolous positions was not in their best interest.
On occasion, I explained to clients, and confirmed in written detail for them, why I would not argue their frivolous claims. On very rare occasions I indicated that I would withdraw before I would argue the frivolous position. I explained why arguing a frivolous position harmed my credibility with the judge, probation office and the AUSA, and worse for them, harmed their chances of getting the best result possible. I do not recall ever having to withdraw.
So it is against this experiential backdrop that, to be blunt, I have been stunned by how often criminal defense lawyers argue frivolous positions. And I have a generous view of what frivolous means. It has to be totally devoid of a factual or/and legal basis, and be illogical, bordering on the ludicrous, before I am willing to label it frivolous. Continue reading