EVIDENTIARY STIPULATIONS
� Review each exhibit before you agree to stipulate to it.
� Consider how the prosecution will use the exhibit.
� Consider whether you will want to be able to cross examine a witness on it.
� Demand reciprocal stipulations.
� Explain why you are stipulating to your client.
“Don’t ever take a fence down until you know why it
was put up.”
- Robert Frost
REASONS WE STIPULATE
� Makes trial less boring
� Who wants to cross examine a document custodian?
� Pressure: Judge wants to move trial along –defense lawyer always blamed for delays.
� Reward: ”Early” production of 3500 material, government exhibits and witness list.
� Appearing “reasonable”
� “How can this hurt us?”
� “It’s coming in anyway.”
Case Study: The Resume
� $370 million Ponzi scheme
� Victims are mostly working-class people from Long Island
� Mastermind pled guilty and sentenced to 25 years in prison
� Brokers on trial – client is naïve, unquestioning of authority, and financially unsophisticated
� Sold interests in business bridge loans and merchant advances
� Among exhibits were client’s corporate email attaching her resume
� Government provided stipulation to attorneys to sign claiming business record
� How could this hurt us?
Warning: Emails as Business Records
� Inspect each and every exhibit
� Look at the language and watch out for evidentiary foundations
� Demand separate stipulations
� Documents admissible as business records
� Authenticity of electronic records
Rules of Evidence� FED. R. EVID. 611 (a)
� Mode and Order of Interrogation and Presentation: Control by Court
� The court shall exercise reasonable control over� The mode and order of
interrogating witnesses and� Presenting evidence
� FED R. EVID. 403
� The court may exclude relevant evidence if its probative value is substantially outweighed by a danger of one or more of the following:� Unfair prejudice� Confusing the issues� Misleading the jury� Undue delay� Wasting time� Needlessly presenting
cumulative evidence
EXHIBIT LISTS & 3500 MATERIAL
2-3 weeks before trial, EXPECT:
� Rapid evolution of draft transcripts
� Lengthy, unrealistic, and byzantine exhibit lists
� “Recently discovered” evidence
� Rolling 3500 material, starting with deceased or otherwise non-testifying witnesses
� Demanding responses to pointless stipulations, motions, and “reverse Jencks”
“Never yield to force; never yield to the apparently
overwhelming might of the enemy.”
- Winston Churchill
Transcripts – What They Do
• Provide transcripts of full recordings
• Transcripts riddled with misattributions, inaccuracies, and omissions
• Repeated demands to stipulate
• Transcripts of snippets – perfectly done
• Misleading and out-of-context
Transcripts – What You Do• Review recordings and text messages as
early in the case as possible
• Identify portions you want to introduce and anticipate what government will use
• Rule 106: ”If a party introduces all or part of a writing or recorded statement, an adverse party may require the introduction, at that time, of any other part – or any other writing or recorded statement – that in fairness ought to be considered at the same time.”
What Else You Do• Don’t be pressured to stipulate to transcripts –
Don’t even stipulate!
• Pick your battles with motions
• Understand the rules of reciprocal discovery and reverse Jencks
• Draft your own motions
• Give them something to complain about
• Call them out
Law on Reciprocal Discovery
� Rule 16(b): Must produce if:
� The item is within the defendant’s possession, custody, and control; and
� The defendant intends to use the item in the defendant’s case-in-chief at trial
� What’s sauce for the goose…
Summary Witnesses and
Exhibits
General Principles:
� Exhibits always contain prejudicial language
� Information selectively used and presented
� No personal information about case
� Everything provided by the prosecution team
� Get paid $$$
“He wanted AFFIRMATION rather than INFORMATION.”
- Barbara W. TuchmanThe March of Folley:
From Troy to Vietnam
Inflaming the Jury
“It has been too often too easy for rulers and
governments to incite man to war.”
- Lester B. Pearson
Identification
• From witness stand:
• Concede identification
• Stand up
• Object to admission of pictures of client
• Demand and supply flattering photograph
• Do the same with co-conspirators
Rebuttal Summations• Object if:
• Defense counsel’s integrity is questioned
• Client called names or “liar” repeated
• Vouch for witnesses
• Comment on Defendant not testifying
• Capitalize on evidence erroneously excluded under Rule 106