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Breakout: CLE Center Trial Techniques: Best Practices
2:15 p.m. - 3:15 p.m.
Presented by
Charles PhillipsAttorney General's Office2nd Floor Hoover Bldg.1305 East Walnut St.Des Moines, IA 50319
Alyssa KenvilleKenville Law Firm, P.C.809 Central AveSuite 430Fort Dodge, IA 50501
Rachel AntonuccioIowa City Public Defender's Office, Juvenile Division725 S Clinton St, Suite AIowa City, IA 52240
Charles K. Phillips, Assistant Attorney General
Hoover Office Building, 2nd Floor Des Moines, Iowa
ISBA Juvenile Law Seminar – April 19, 2017
Master the Exhibit System • Which numbers are used – the system’s number or an independent system? • Do the numbers progress from the CINA case through the termination case? • Are all of the parties’ exhibits numbered together? • How is the multiple child situation handled? • How is the multiple dad situation handled? • Do they all come in at the beginning of a hearing?
* * * * 4. A report made to the department of human services pursuant to chapter 235A
shall be admissible in evidence, but such a report shall not alone be sufficient to support a finding that the child is a child in need of assistance unless the attorneys for the child and the parents consent to such a finding.
5. Neither the privilege attaching to confidential communications between a health practitioner or mental health professional and patient nor the prohibition upon admissibility of communications between husband and wife shall be ground for excluding evidence at an adjudicatory hearing.
6. A report, study, record, or other writing or an audiotape or videotape recording
made by the department of human services, a juvenile court officer, a peace officer or a hospital relating to a child in a proceeding under this division is admissible notwithstanding any objection to hearsay statements contained in it provided it is relevant and material and provided its probative value substantially outweighs the danger of unfair prejudice to the child’s parent, guardian, or custodian. The circumstances of the making of the report, study, record or other writing or an audiotape or videotape recording, including the maker’s lack of personal knowledge, may be proved to affect its weight.
* * * *
• Section 232.96 allows juvenile court to receive evidence containing hearsay • Right of confrontation not necessarily applicable to CINA cases, but analyzes admissibility of hearsay evidence in CINA cases as if it were • Right of confrontation secured by right of cross examination • Right of cross examination is facilitated in juvenile court through right to issue subpoenas • Subpoenas can be directed to maker of report or those who gave information to maker of report • DHS social reports, child abuse reports and police and hospital reports held admissible despite hearsay content
Objections – More to make a point or to correct an assumption in a question than to exclude evidence
• May also be used to protect confidential information • Objections frequently go to weight given to evidence, not its admissibility
What is the local practice regarding the presence of Expert or Treating Professional Witnesses – Written report or on the stand?
DHS and FSRP Problems • First time witnesses • Witnesses who have moved on
What is the local practice regarding the presence of the child?
• Should you call the child to testify?
Closing Argument • Will there be one? • Will it be in writing?
FUNDAMENTALS OF TERMINATION TRIAL PREPARATION
Rachel Antonuccio Attorney in the Juvenile Division of the Iowa City Public
Defender’s Office [email protected]
FIRST THINGS FIRST Who can present the information you need to get on the record in the most credible way? • Your clients’ ideas about this and your ideas can
vary… – The Desperation Effect
• By the time of TPR trial, your client may have isolate her/himself to the point that good witnesses are scarce.
• Client’s best friend will testify that your client is a good mom, but he’s on pretrial release after his house was raided, and his kids are in DHS custody.
– Does your witness understand the full story? • Client’s priest is happy to testify on your client’s behalf, but
your client never quite got around to telling him why the children were removed from her care…
Who can present the information you need to
get on the record in the most credible way? • Does your witness actually add anything?
– Client wants her junior high school math tutor to testify on her behalf, but can that person add anything relevant to the matter at hand, or is your client just desperate for someone to testify?
– Witness has relevant things to say about your client, but is there anything about this person that makes them especially qualified/credible? Are they just repeating what other folks already testified about? Do you run the risk of irritating the judge?
• Do you have time to properly vet this person? – Client throws you a last minute witness – do you have enough
time to uncover her skeletons? Does she have any CINAs or abuse reports of her own? Do you have time to properly assess mental stability? Will she be able to withstand cross or will she fall apart/blow up?
PREPARING YOUR WITNESSES FOR YOUR
DIRECT EXAM • TELL THE TRUTH!
– You are under oath and testifying before a judge. – If you lie under oath about something I know is a lie, I
have an ethical obligation to withdraw and/or correct the record – do not put me in that position.
• Exp. “I’m totally caught up on child support.” …But we just reviewed your CSRU record together yesterday, and you’re three years in arrears.
• STAY CALM AND POLITE – If the facts get confused, I can fix that. But if you blow
up on someone, there’s nothing I can do to un-ring that bell.
PREPARING YOUR WITNESSES FOR YOUR DIRECT EXAM, CNTD.
• ANSWER ALL QUESTIONS AS CONCISELY AS POSSIBLE – If it calls for a ‘yes’ or ‘no,’ answer yes or no. – Answers that go beyond the scope of the question run the
risk of adding harmful information • Exp. Q: “How long has it been since you’ve talked to your 15 year
old son?” A: “I called him just last week to ask him to loan me 20 bucks.”
• OWN UP TO YOUR MISTAKES – You are not perfect, no one expects you to be – but the
court does expect you to be accountable for your actions. – When we dicker over the undisputed facts, then we lose all
credibility when it comes time to argue about the facts that are legitimately in dispute.
PREPARING YOUR WITNESSES FOR YOUR DIRECT EXAM, CNTD.
• IS THE WITNESS IN POSSESSION OF THE RELEVANT FACTS? – Obtain proper releases from your client. – Encourage your client to forewarn witnesses of
your call. – What, if any, additional information do you need
to provide this witness need in order for them to be credible?
CONTENT – WHAT ARE WE TALKING ABOUT
AND WHY SHOULD THE JUDGE CARE? Let’s talk:
– No need to be hyper-formalistic (unless the judge insists upon it) – this is a conversation.
• Focus should be on the witness’ narrative – attorney should fade into the background.
• Clarify important points as needed, but try not to distract from the narrative.
– Open-ended questions - who, what, when, where, why, how, “please describe for the court,” “please explain to the judge.”
• Will your judge/opposing counsel let you lead on the more basic stuff to get through it?
CONTENT – WHAT ARE WE TALKING ABOUT AND WHY SHOULD THE JUDGE CARE? CNTD.
• Building the witness’ credibility: – Who is this person? Why should the judge care
about what she has to say? – If professional, establish background and
qualifications. – Show your witness had adequate opportunity to
observe the situation they are talking about.
CONTENT – WHAT ARE WE TALKING ABOUT AND WHY SHOULD THE JUDGE CARE? CNTD.
• Building the witness’ humanity – Your client/witness is a real person who feels things deeply
– but has that very important fact been lost in the shuffle? – A lot of clients build a tough façade to protect themselves
– but that defiant façade doesn’t make them a good witness.
– If the judge sees your client as human, s/he is more inclined to offer you the relief you’re seeking.
– Don’t be afraid of emotion • Use your trial notebook and exhibits wisely - exp. “Please look at
page one of Exhibit 302. Look at the photo of your daughter at the bottom of the page. Please describe to the judge who your daughter is. What is her personality like? What do you like to do together?”
CONTENT - WHAT ARE WE TALKING ABOUT AND WHY SHOULD THE JUDGE CARE? CNTD.
• Eliciting testimony to make the case that this falls within TPR exceptions • BIC is the polestar. • 232.116(3) - The court need not terminate the relationship between the
parent and child if the court finds any of the following: – a. A relative has legal custody of the child. – b. The child is over ten years of age and objects to the termination. – c. There is clear and convincing evidence that the termination would be
detrimental to the child at the time due to the closeness of the parent-child relationship.
– d. It is necessary to place the child in a hospital, facility, or institution for care and treatment and the continuation of the parent-child relationship is not preventing a permanent family placement for the child.
– e. The absence of a parent is due to the parent's admission or commitment to any institution, hospital, or health facility or due to active service in the state or federal armed forces.
ORGANIZATION – presenting in the most compelling way.
• Role play – Key to remaining organized - before your witness gets
up on the stand, make sure s/he gets what this experience is going to be like.
• Exp. “Here’s what the courtroom looks like, here’s where you’ll go when you testify, here’s the oath you’re going to have to take, here’s where you’re going to sit, etc.
• Sequence – It’s easy to be drawn to a chronological sequence, but
is that always best?
ORGANIZATION – presenting in the most compelling way, CNTD.
• Primacy and recency – Principle that people tend to remember those things they heard first and last – Start with strong subject matter and end with strong subject matter. – Use the middle of your examination to go over damaging information or less
significant material. • Ripping off the Band-Aid - anticipate cross to preempt your weaknesses
– Get the bad stuff out there first. Don’t be afraid of the truth – confront it head on! It sounds a lot better coming from you.
• Criminal histories, abuse reports, relapses, etc. – But make sure the weakness is something that you are positive will come in -
otherwise you ‘open the door’. • Transitions & Headnotes:
– Testifying is scary – give the witness & the trier of fact a verbal signal if you are changing directions.
– Examples: “I want to move on to…” “Let’s talk about...”
TECHNIQUE – BACK TO BASICS
• One thought per question – Compound questions are confusing to the witness
and the judge. – This is probably a stressful experience for whoever
is on the stand – don’t make it harder than it needs to be.
• Simple language – No legalese, speak calmly – Speak like you are having a ‘normal’ conversation. – Your calm tone can calm your witness
TECHNIQUE, cntd. • Listen to the answer
– You think you know what’s coming, but you might be wrong… – Write direct questions or have an outline of topic points. – Know what you need from each witness. – Don’t stay glued to your outline – stuff happens, be flexible.
• Slow down
– The two people who want on your side in a trial: 1) the judge and 2) the court reporter.
– Be mindful that the trier of fact can only process so much information. Slow down on important points.
– Make sure your witnesses understand that the court reporter is typing everything they say. They need to speak slowly, they need to speak loudly, they need not to interrupt or talk over others.
• Witnesses will get yelled at if they can’t follow the rules, and that throws them off their game.
TECHNIQUE, cntd.
• Use redirect only if you need it – Only cover case critical issues in your case. – Easy to get obsessed with minutia in the moment
– if you think about this question tomorrow, will it still seem important?
– Remember, the opposing side gets to recross – sometimes you just want your witness to get the hell off the stand.
EXHIBITS • No matter how tough the case is, there are exhibits available to
you that can assist your client – an exhibit binder is ESSENTIAL. – Photographs of your clients with their kids, extended family, etc.
• Data mine Facebook • DHS events your client has attended (FTC, etc.)
– Photographs of your clients living space, children’s rooms, etc. – Letters from any provider who has worked with your client
• Substance abuse treatment facility/counselor • Therapists • Domestic Abuse advocate • Affidavit from family friends (maybe parties will agree to accept these in lieu
of testimony?) • Landlord • Driver’s license • Insurance
1
MEMORANDUM
To: CLIENT From: Rachel Antonuccio Re: TPR Trial testimony First and foremost, you must answer all questions truthfully – don’t fudge or exaggerate. If you are dishonest under oath about something that I know to be untrue, I have an ethical obligation to withdraw from your case and/or correct the record. Please don’t put me in that position. It is incredibly important that you stay calm and polite when the other attorneys ask you questions. They are going to be asking you about unpleasant subject matters, and they may even intentionally try to upset you to make you look unstable in front of the judge. If I’m concerned about anything that happens when the other attorneys ask you questions, I will have a chance to clarify any facts I think got messy or clear up any misunderstandings. But if you are rude or blow up at the attorneys or the judge, I cannot fix that. You are your best witness. If you can keep your cool and show respect, you go a long way in helping yourself. Answer all questions – from me or from the other attorneys – as concisely as possible. If the question is a yes or no question, simply answer yes or no. If your answer goes beyond the scope of the question, you run the risk of adding information in the record that is NOT helpful to you. If I need you to explain something in more detail, I will ask you to do that. Own up to your mistakes – don’t try to explain them away. It is important for the court to see that you are accountable for your actions. During your direct examination, I’m going to ask you about the things you’ve struggled with during the case. I’m also going to ask you to acknowledge some of the mistakes you’ve made and ask you what you’re doing/have done to try to fix them or improve yourself. Some of the things the State is claiming are not true – but some are. If we fight about the things that are true, the judge is going to have a harder time seeing our side when we argue that some of the things the State is claiming are not true. No one expects you to be perfect, and it never hurts to understand/acknowledge the areas where you can use some improvement. A termination trial is a very painful thing to go through. You’re going to hear testimony about and be asked about a lot of things that are painful and upsetting. Just remember that we get to present our own witnesses and exhibits, and that there is a lot of GOOD information about you that the judge is also going to see and hear. Check in with me if you are struggling. The judge may be willing to let us take a short break. We have discussed all of this, but the outline of the topics we’ll hit while you’re testifying are as follows:
1. … 2. … 3. …
