Your deposition is the first opportunity an opposing attorney has to meet you in person and to examine you in a question-and-answer format. The primary purpose of a deposition is to give the attorney an opportunity to ask you all the questions he or she wants, subject to applicable procedural rules; and for you to respond accordingly, subject to any applicable limitations that will be discussed in detail below. You should not view a deposition as an opportunity for you to tell everything you want to tell about a case. That is what direct testimony at trial is all about. A deposition is an opportunity for the opposing attorney to ask questions, and if the attorney doesn’t ask the right questions or enough questions you have no obligation to help him or her. Both lay and expert witnesses have a natural tendency to want to tell everything they know at a deposition and to volunteer information that isn’t actually inquired about during the course of the questioning. This is a tendency that must be overcome in order to be an effective witness. You should listen to the question, provide only as much testimony as is necessary to respond truthfully to the question, and not volunteer information that is not necessary in answering the question.
A court reporter will be present at your deposition and a verbatim transcript of your conversation will be made. Understand that the court reporter is obligated to report anything that is said out loud. You as a witness do not have the option of going off the record or striking some portion of your testimony. Whatever you say will be permanently memorialized and made part of the official court record. When you testify, you will be under oath. This means that while a deposition normally takes place in an attorney’s conference room, everything you say at a deposition has the same legal significance it would have if you were testifying under oath in court in front of a judge and jury. Therefore, while the setting is informal, it is just as important as if you were in court, and you should guide yourself accordingly.
While the primary purpose of a deposition is to ask you questions, there is a significant secondary purpose. A deposition is an opportunity for the attorney to observe you in person and assess your probable effectiveness as a witness. Thus, your physical appearance will be noted, your overall demeanor will be assessed, and your ability to understand questions and respond effectively will be considered. The ease with which the attorney can potentially manipulate or bully you will also be determined. You want to dress appropriately for the occasion, and conduct yourself in an appropriately professional manner. Do your best to repress any nervousness. Avoid any pre-examination banter with opposing counsel. A common technique used by examining attorneys is to engage in friendly chitchat prior to commencing the deposition in order to lull you into a false sense of security. Don’t be fooled by a friendly attorney. Regardless of how polite and professional he or she may be, they are your opposition throughout the process and you should never lose sight of that fact.
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A juror in a major drugs trial will herself go on trial this week over allegations that she used Facebook to contact a defendant in the case.
Joanne Fraill, 40, is accused of swopping messages with 34-year old Jamie Sewart – who was acquitted in the early stages of the trial.
Sewart is also being charged with contempt for allegations that she contacted Fraill to ask how the jury’s deliberations were going.
Fraill is further accused of Googling the case against specific orders from the judge, The Telegraph reports.
The £6m trial is also being challenged by one of the defendants who claims his conviction is unsafe because of the alleged Facebook chats.
The case is the first to explicitly name Facebook. It will be heard by Lord Chief Justice, Lord Judge, who is expected to issue new guidelines and notices to be shown to juries before trials begin. Juries are already warned not to discuss their case with anyone outside the jury room.
Individual jurors have been thrown off cases before thanks to social networking snafus, but this appears to be the first time contempt proceedings have been brought for use of the site.
Jurors in the US have also come unstuck thanks to Twitter use.
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Melinda Hernandez, a member of the jury that last week acquitted two New York police officers, is distressed by a process that she felt left her no choice but to vote not guilty. Justice, she says, was not served.
“As a feminist it really challenged my values to vote not guilty,” an emotionally spent Hernandez told Women’s eNews in an exclusive telephone interview on May 30.
In particular, she was concerned about the way forensic evidence–in a case concerning police as perpetrators–went through the New York Police Department lab and was then sent to New York Medical Examiners lab. “I think they should have hired an independent person to collect the evidence,” Hernandez says. “There’s just common sense behind that.”
While acquitted of the rape charge, the two officers–Kenneth Moreno, 43, and Franklin Mata, 29–were convicted last week of official misconduct and fired from the force the same day. They will be sentenced by the State Supreme Court on June 28 and each face up to two years behind bars. Had they been found guilty of rape, the pair could have been in jail for up to 25 years.
In December 2008, the accuser celebrated a job promotion in a Brooklyn bar and became intoxicated. After drinks at the club, she took a taxi to her apartment building in downtown Manhattan and the taxi driver called the police to assist her out of the taxi and up to her fifth-floor walk up. Moreno and Mata responded. Videotapes from security cameras indicated the two police offers returned three more times to her apartment that night.
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We can all learn from other people’s mistakes. And it turns out back alley courtroom dealings don’t just happen in movies. Deonarine Persaud, 53, was recently arrested on felony bribery charges and for juror misconduct in New York.
Persaud was serving as a juror in a civil case. The plaintiff in the case, Bridget Wigand, had brought a medical malpractice suit against her physician. The case was later declared a mistrial, reports CBS-2.
Persaud contacted Wigand’s parents, telling them that he had important information about their daughter’s case. Wigand’s father met with Persaud, who told him that he would help sway other jurors to his daughter’s side if he was paid a “fee.” Wigand’s father recognized him as a juror, and then called his attorney.
According to Nassau District Attorney Kathleen Rice, Persaud had demanded a 5% cut of the settlement, reports CBS-2.
Persaud was arrested shortly after he reported to court for jury duty, reports the Long Island Press. He was charged with felony bribe receiving and juror misconduct, a misdemeanor.
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Constant thought-sharing defines our Information Age.
At the office, in the car or anywhere else, we share every detail of our daily existence in real time on Facebook. Most of the time, this is acceptable and constitutionally protected behavior. But what happens in the courtroom when jurors post their opinions about a case online during trial?
Last month, one Michigan juror found out. Before the case was over, this juror posted on Facebook how it was “gonna be fun to tell the defendant they’re GUILTY.” Alert defense counsel saw the posting, and the trial judge dismissed the juror, fined her $250 and ordered her to write a five-page essay about the constitutional right to a fair trial.
This is the new courtroom reality, one that offers courts less control over what information flows in and out of the jury box. The problem is that, over the centuries, our legal system developed rules designed to ensure that the facts presented to a jury are scrutinized and challenged by both sides. Jurors were asked to hear all the evidence, refrain from sharing opinions and ultimately deliberate in secret. But modern, socially networked jurors accustomed to accessing and sharing information are colliding with this fishbowl experience and disrupting trials in ways few know how to address.
SOCIALLY NETWORKED JURORS
Several recent examples illustrate the challenges. During a February 2010 criminal trial, a New York juror sent a key witness a Facebook friend request. The judge found that the juror’s communication was “unquestionably a serious breach of her obligations as a juror and a clear violation of the court’s instructions.”
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A U.S. high-school librarian could face criminal charges for conducting online research while she was a juror in a capital-murder trial.
The juror’s actions, which prompted the judge in Luzerne County, Pennsylvania, to declare a partial mistrial, appear to be the most serious reported instance of online juror misconduct.
The problem came to light on Friday, when the jury forewoman in the Court of Common Pleas told the judge that Juror No. 11, Gretchen Black, had conducted Internet research about injuries suffered by the victim, and that Black had offered to share her research with the other jurors. By that time, the 12-member jury had already found the defendant not guilty of first-degree murder, but was deadlocked 7 to 5 on charges of involuntary manslaughter and third-degree murder.
Judge Tina Polachek Gartley found Black’s actions to be grounds for dismissal from the panel, forcing a retrial of the case on the lesser charges.
Luzerne County Assistant District Attorney Michael Vough told Reuters Legal that he was considering a criminal contempt charge against Black. According to Vough, Judge Gartley had explicitly and repeatedly warned jurors before court recesses not to conduct their own research, including on the Internet. Vough said that Black, a local high school librarian, had already shown she was an especially eager juror. Early in the trial, he said, she raised her hand and asked the judge if she could question a prosecution witness. The judge denied the request.
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LOS ANGELES — The judge in the Anna Nicole Smith drug conspiracy case, often critical of charges lodged by the prosecution, indicated for the first time Monday he will block some of the charges from going to the jury.
Superior Court Judge Robert Perry told lawyers he was preparing a lengthy written analysis of statutes in the case and would consider motions by the defense next week to dismiss all charges.
However, he told defense lawyers to be prepared to begin their case because “I think there are some charges that will likely survive in some form.”
Perry did not specify which charges might be dismissed.
The judge repeatedly has said he did not think the testimony he has heard from prosecution witnesses supported the conspiracy charges.
Dr. Sandeep Kapoor, Dr. Khristine Eroshevich and Smith’s boyfriend lawyer Howard K. Stern have pleaded not guilty to providing opiates and sedatives to an addict and other charges.
Perry has also raised questions about the legal definition of addiction. He said he was inclined to tell jurors that an element of the charge of prescribing to an addict must be that the defendant prescribed a drug for non-therapeutic purposes, meaning they were feeding an addiction rather than treating an illness.
In Smith’s case, the defense has stressed that she had chronic pain, seizures, migraine headaches, fractured ribs and other complaints that required treatment.
Meanwhile, a pain management testified Monday that Smith’s doctors never diagnosed her as a prescription drug addict.
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CENTRAL ISLIP, N.Y. — The founder of America’s leading supplier of body armor to the U.S. military has been convicted in New York of charges that he ran a $190 million stock scheme.
The verdict was reached Tuesday for David H. Brooks, founder and former chief executive of DHB Industries Inc. The company’s former chief operating officer, Sandra Hatfield, was convicted of related charges.
They were accused of falsely inflating the value of the inventory of the company’s top product, the Interceptor vest, to help meet profit margin projections.
Brooks also was convicted of using the company treasury for personal luxuries, with more than $6 million in unauthorized expenditures.
There were no allegations that the vests or other DHB products were unsafe. The company was formerly based in Westbury, N.Y.
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An examination of jury verdicts over the past decade involving people charged for exposing others to toxic substances, has revealed that the more victims are involved in a case, the less harshly the perpetrator of the crime is penalized.
The study, which also included two experiments in the lab, is the first to show that the bias toward feeling empathy for a single individual versus many — known as the identifiable victim bias — causes people to make judgments based on emotion that are disproportionate to the severity of a crime.
“The inspiration for the study was the observation that we tend to focus an extraordinary amount of attention and resources to crimes that have a really small number of victims, and have a harder time remaining engaged to larger scale kinds of crime,” said psychologist Loran Nordgren of Northwestern University, lead author of the paper Aug. 25 in Social Psychological and Personality Science (.pdf).
The bias, which the researchers named the scope-severity paradox, has implications for a wide variety of fields, including the politics and media coverage of large-scale issues such as climate change or mass genocide.
“It fits well with a line of research that shows that as the number of people who are victims of some problem — whether it’s a crime or a famine — the responsiveness to it, and the likelihood of taking action to reduce the problem, decreases,” said psychologist Paul Slovic of the University of Oregon, who was not involved in the study.
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A shoe company’s claim that Victoria’s Secret infringed on its “Delicious” trademark by putting the logo on hot pink tank tops it gave away during a marketing campaign should be heard by a jury, the 9th Circuit ruled.
Fortune Dynamic, owner of the Delicious trademark, sued the lingerie leviathan after it learned that the company was selling or giving away tank tops with the word “Delicious” scrawled across the chest as part of a marketing package to promote its new Beauty Rush line. The tanks featured the word “Delicious” with a capital “D,” in silver type, across the chest. On the back, in smaller lettering, was the word “yum,” and the phrase “beauty rush” was written in the back collar.
Fortune makes Delicious footwear and has trademarked the term.
A federal judge ruled for Victoria’s Secret after excluding all of Fortune’s evidence and concluding that customers were unlikely to be confused about who made the products.
On appeal, a three-judge panel in Pasadena decided that the issue of infringement was for a jury to decide.
We are far from certain that consumers were likely to be confused as to the source of Victoria’s Secret’s pink tank top, but we are confident that the question is close enough that it should be answered as a matter of fact by a jury, not as a matter of law by a court,” Judge Jay Bybee wrote.
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Earlier, a post on this blog noted the jurors in the corruption trial of former Governor Rod Blagojevich had informed the judge they had only reached a decision on two of the 24 charges in the case. Now, the news comes that the jurors have reached a final verdict: on one count only. Jurors have found Rod Blagojevich guilty on one count of lying to federal agents. The judge has decided to declare a mistrial on the remaining 23 counts.
Prosecutors have wasted no time in announcing that they intend to retry Blagojevich and his brother Robert on the other charges. As the Associated Press reported, one of the main charges as yet undecided is whether or not Blagojevich attempted to sell the senate seat vacated by President Obama. The presiding judge in the trial, James Zagel, has set a hearing for Aug. 26 to decide issues regarding the retrial.
The AP reported that the jurors looked wearier than they had during the trial. The single count verdict came after 14 days of deliberations. At one point, the jurors had informed Judge Zagel that they were deadlocked on as many as 11 of the charges. They had also informed the judge that they had reached agreement on two charges, but seemed to have lost their consensus along the way to the jury verdict.
The lone count on which Blagojevich was found guilty was for lying to federal agents when he told them he did not track his campaign contributions and kept a “‘firewall’ between campaigns and government work.” The conviction carries a maximum sentence of up to five years in prison and a fine of $250,000.
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As the jury in the corruption and fraud trial for former Illinois Governor Rod Blagojevich enters its thirteenth day of deliberations, there is still no agreement on all charges. The jury has sent a note to the presiding judge, U.S. District Court Judge James B. Zagel, saying they have agreed to two counts, have not come to an agreement on 11 counts, and have not yet deliberated on the remaining 11 counts, which involve wire fraud.
The jury is still attempting to come to a decision on the outstanding charges and, according to the Chicago Tribune, have sent a note to Judge Zagel asking for a transcript of the testimony of Bradley Tusk, who gave evidence on the governor’s contacts with then-Rep. Rahm Emanuel. This is the first time the jury has specifically asked for a transcript of a particular witness.
What happens if, despite requests for information or clarification from the judge, the jury in this case cannot come to a unanimous decision on all the counts Gov. Blagojevich and his brother, Robert, were accused of? Since the case against Governor Blagojevich is a federal one, the jury must come to an unanimous decision. If they cannot, and the jury is deadlocked, they are declared a hung jury.
If a jury becomes a hung jury, the court usually declares a mistrial on the charges. Mistrials will not bar a retrial on those charges, should the prosecutors decide to proceed with retrying the defendant. In the alternative, prosecutors can accept the verdict on all counts the jury has returned a verdict on and the court will sentence the defendant on those counts alone, if he or she has been convicted. A retrial on charges not decided upon by a unanimous verdict is not subject to the rule against double jeopardy. Double jeopardy generally prohibits a defendant for being retried for the same crime once acquitted by a jury.
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