Impeachment in Cross-Examination

Each year, the American Bar Association, Section of Litigation publishes thousands of books to  enhance trial practice skills of lawyers and law students on subjects from evidence to discovery to client privilege and skills for the examination of witnesses at trial and in discovery. The Brooklyn Law School Library collection has many of these titles that aspiring trial lawyimpeachers can review aspiring trial attorneys can review before entering into the practice of law. The latest acquisition, MacCarthy on Impeachment: How to Find and Use These Weapons of Mass Destruction (Call No. KF8950 .M33 2016) by Terence F. MacCarthy, Executive Director of the Federal Defender Program in the U.S. District Court for the Northern District of Illinois and his two sons, is a relatively short 172 page volume that explores in detail impeachment of witnesses, which the author defines as cross-examination on “matters affecting the credibility of the witness” or  “that which challenges veracity”. Impeachment is often used to show that the witness is, at worst, a liar, a difficult task that requires the cross examiner to go for the jugular. An easier goal of impeachment is to show that the witness is mistaken. Another important type of impeachment discussed in the book is  motivation or bias impeachment the constitutional dimension of which was firmly recognized in Davis v. Alaska, 415 U.S. 308 (1974).

TherCrosse are many books on evidence and trial advocacy, including MacCarthy on Cross Examination (Call No. KF8920 .M326 2007) by the same author, but little specifically on impeachment. It is one of the most confusing and misunderstood parts of the trial for both trial lawyers and judges. Just as cross examination is the most difficult of trial skills, impeachment, usually a part of cross examination, is the most difficult of the difficult. Many trial lawyers do not know what they can or cannot do to impeach. This new title offers trial lawyers “weapons of mass destruction” and offers instruction on how to use them. This groundbreaking work that is an indispensable resource for trial attorneys seeking to improve their skills and better serve clients.

The book discusses sixteen ways to impeach a witness under cross examination in sixteen chapters, the last two of which deal with expert witnesses. Some chapters include citations to the Federal Rules of Evidence in parentheses. The chapter are:

  • Chapter One: Inconsistent Statements (FRE 613)
  • Chapter Two: Contradictions – Contradictory Evidence
  • Chapter Three: Motivation
  • Chapter Four: Truthfulness (FRE 608)
  • Chapter Five: Convictions (FRE 609)
  • Chapter Six: What the Witness Could Have Done but Did Not Do
  • Chapter Seven: Capacity
  • Chapter Eight: Bad Acts, Crimes, and Wrongs (FRE 404(b))
  • Chapter Nine: Habit (FRE 406)
  • Chapter Ten: Writing Used to Refresh Memory (FRE 612)
  • Chapter Eleven: Admissions ((FRE 801(d)(2))
  • Chapter Twelve: The Hearsay Declarant (FRE 806)
  • Chapter Thirteen: Character Witnesses
  • Chapter Fourteen: Sex Offense or Sexual Assault Cases (FRE 412 to 415)
  • Chapter Fifteen: Expert’s Résumé (FRE 702)
  • Chapter Sixteen: Learned Treatises (FRE 803(18))

At the end of the volume is a useful list of MacCarthy’s Rules of Trial Advocacy including

  • “The lectern is for putting things on not for standing behind.”
  • “Speak in a courtroom the way you would speak in a bar. You speak in a bar to practice speaking in a courtroom.”
  • Do not legalize.
  • “The importance of eye contact and a smile.” and
  • “Do not use fillers – i.e. “and”, “like”, “ah”.
  • Your stories should paint pictures.

Voting Rights Resources

With the fractured Fifth Circuit ruling today that Texas’ voter ID law violates the Voting Rights Act and the Presidential election quickly approaching, you may be interested in learning more about the law on voting rights.  To research the issue, you can search the SARA catalog or WorldCat for the subject, Voting—United States or Suffrage—United States.  The Brooklyn Law School Library has over 100 different titles on the topic.  Some of the more recent acquisitions are listed below. vote-1278871_960_720

Sedition Act of 1798: Political Speech as Crime

July 14 is famous as Bastille Day in English-speaking countries. In France, the day is called La Fête Nationale (the National Holiday) and was originally called Fête de la Fédération (“federation feast”) to celebrate the first anniversary of the storming of the Bastille and the end of the French Revolution. The French celebrate the day each year, referring to it as Le Quatorze Juillet (the fourteenth of July). Like Independence Day in the United States, it is a national holiday in France. The day celebrates the fall of the Bastille when just under a thousand Parisians attacked the prison releasing its seven inmates. Like the 4th of July, it marks the beginning of republican democracy and the end of tyrannical rule. The French national anthem, La Marseillaise, which originates from the revolution, does not commemorate the storming of the Bastille. Rather it celebrates the three tenets of the republican national motto: “liberty, equality and fraternity”.

In United States history, July 14 is the date when one of the most egregious breaches of the U.S. Constitution was enacted by Congress, the Sedition Act of 1798. In direct violation of the Constitution’s guarantee of freedom of speech, the Sedition Act permitted the prosecution of individuals who voiced or printed what the government deemed to be malicious remarks about the president or government of the United States. The infamous Alien and Sedition Acts were four laws passed by the Federalist controlled Congress stemming from fears of the French revolution, specifically the Reign of Terror, and an undeclared naval war with France. The Federalists were fearful of revolutionary support growing in the United States among Irish and French immigrants and from Democratic-Republicans, sympathetic to the French cause, who wished to oust the Federalists from office. Fourteen Republicans, mainly journalists, were prosecuted, and some imprisoned, under the act. Among the prosecutions were the following:

  • James Thomson Callender, in his book “The Prospect Before Us” called the Adams administration a “continual tempest of malignant passions” and the President a “repulsive pedant, a gross hypocrite and an unprincipled oppressor”. He was indicted and convicted in 1800, fined $200 and sentenced to nine months in jail.
  • Matthew Lyon wrote an essay in the Vermont Journal accusing the administration of “ridiculous pomp, foolish adulation, and selfish avarice”. He was fined $1,000 and sentenced to four months in jail.
  • Benjamin Franklin Bache accused George Washington of incompetence and financial irregularities, and charged the “the blind, bald, crippled, toothless, querulous Adams” with nepotism and monarchical ambition in his newspaper “The Aurora”. He was arrested in 1798 but he died of yellow fever before trial.
  • David Brown set up a liberty pole in Dedham, Massachusetts with the words, “No Stamp Act, No Sedition Act, No Alien Bills, No Land Tax, downfall to the Tyrants of America; peace and retirement to the President; Long Live the Vice President”. He was arrested and tried, fined $480, and sentenced to eighteen months in prison.
  • Luther Baldwin of Newark, New Jersey, who, following the adjournment of Congress in July 1798, when President Adams and his wife were traveling through Newark past a local tavern, heard one of the patrons say, “There goes the President and they are firing at his ass.” Baldwin said “he did not care if they fired thro’ his ass.” He was arrested and later convicted of speaking seditious words tending to defame the President and Government of the United States. He was fined $150, assessed court costs and expenses, and sent to jail until he paid the fine and fees.

seditionReaders interested in this dark time in American history can Halperinlearn more by reviewing two titles recently added to the Brooklyn Law School Library collection. The first is Press and Speech Under Assault: The Early Supreme Court Justices, the Sedition Act of 1798, and the Campaign against Dissent by Wendell Bird (Call No. KF9397.A3281798 B57 2016). The other is The Alien and Sedition Acts of 1798: Testing the Constitution by Terri Diane Halperin (Call No. KF9397.A3281798 H35 2016). Interestingly, the U.S. Supreme Court never heard a case to decide whether the Alien and Sedition Acts were constitutional. The Sedition Act expired on March 3, 1801, the last day of the first and only presidential term of John Adams.

For the Beach: A Little, Legal Book to Read

beach-reads-logoWhile the current issue of New York Magazine, July 11-24, 2016, has an article on “The Best 100 Beach Reads,” at pages 86-87, I would like to provide a shorter list of seven little, legal books that can offer both enlightenment and enjoyment at the beach or wherever your pleasure happens to be.

The American Bar Association has published a series entitled the “ABA Little Book Series” with currently nineteen titles.  The BLS Library has a number of these books cataloged, shelved in the main collection in the cellar and available for loan.

Herewith is a summary of seven of these titles:

The Little Book of Boating Law by Cecil C. Kuhne III:  KF 2558 . P5 K84 2012

boating lawThis book covers cases involving boats and alcohol, the party barge, a youthful driver and a high-speed motorboat, rescues of swimmers, kayaking, tubing, winds/waves & storms — anything can happen on the water, and does.

 

 

The Little White Book of Baseball Law by John H. Minan and Kevin Cole:  KF 3989 .M563 2009

baseballThis book discusses cases that involve game rules, antitrust, stadium construction, baseball memorabilia, injured spectators, TV contracts, fantasy baseball, etc.

 

 

The Little Book of Movie Law  by Carol Robertson:  KF 4298 .R63 2012

movie lawThe chapters in this book are called “Reels” and cover everything from the early days of cinema to the silent era to the development of sound to the McCarthy era to the rise of independent producers to obscenity and the U.S. Supreme Court.  There are also intermission sidebars which discuss censorship, publicity, copyright & trademarks and stunt people.

 

The Little Book of Foodie Law by Cecil C. Kuhne III:  KF 3869 .K84 2012

foodie lawSince we have become a nation of “foodies,” this book delves into legal cases involving spice wars, patented desserts, poisoned mushrooms, cooking schools, Kosher food and litigation over restaurant reviews.

 

 

The Little Red Book of Wine Law: A Case of Legal Issues by Carol Robertson: K 3935 .R62 2008

wine lawEach of the twelve chapters in this book are modeled after a case of wine and examine a specific topic, such as trademarks, family feuds and the wine business, contracts between grape growers and wine producers, the changing Napa Valley, the direct shipment of wine and the U.S. Supreme Court, etc.

 

coffee lawThe Little Book of Coffee Law by Carol Robertson:  KF 1984 .C6 R63 2010

This book begins with an introduction to the origin of coffee, and goes on to cover the growth of coffee imports, franchise agreements, labeling, etc., as well as chapter “coffee breaks” that cover coffee customs, coffee brewing, coffee marketing, and the infamous McDonald’s scalding case.

 

fashion lawThe Little Book of Fashion Law by Ursula Furi-Perry:  KF 3409 .C56 F87 2013

This little book covers the fashion industry in depth and from fashion season to fashion season:  Season One is fashion law and intellectual property; Season Two is fashion law and business, trade, litigation and consumer protection; Season Three is beauty and the law and Season Four is fitness and the law.

Now That The UK Has Voted In Favor Of The Brexit, What Happens Next?

brexitHave you been following the UK’s decision to leave the European Union, colloquially known as “the Brexit?” In a referendum held on June 23rd, British citizens voted in favor of the Brexit, with 52% percent voting to leave the EU and 48% voting to remain.

What Happens Now?

That’s a good question as there is a great deal of uncertainty regarding the legal consequences of the referendum.  As a matter of fact, the UK is the first member nation ever to elect to sever its ties with the EU.  For the immediate future, though, the status quo will be maintained.  First of all, it is important to note that the referendum has no legal consequences with respect to the UK’s status as a member state of the EU.  Instead, the UK will begin the process of leaving the EU only after the British government invokes Article 50 of the Treaty of Lisbon, one of the EU’s governing documents.

According to Article 50: “Any member state may decide to withdraw from the union in accordance with its own constitutional requirements.”  Article 50 also specifically provides “A Member State which decides to withdraw shall notify the European Council of its intention.” This language is important because it makes clear that the Brexit cannot be initiated by the referendum vote, the trigger to request an exit from the EU can only be pulled by a formal request under Article 50 made by the British government. Whether and when the British government will actually invoke Article 50 is anybody’s guess given the spate of resignations and current state of turmoil in British politics.  As a matter of fact, British legal scholars are currently debating how Article 50 is to be invoked – can the Prime Minister trigger Article 50 or is a formal vote of Parliament required?

What Happens When/If the British Government Invokes Article 50?

If the British government provides the EU with a formal Article 50 notification of its election to leave the EU, the UK and the EU will then be required by the Lisbon Treaty to negotiate a deal setting forth the terms of the UK’s withdrawal and establishing a structure for the future legal relationship between the UK and the EU.  Once the Article 50 trigger is pulled, the European Council and the UK will have just two years to hammer out a new deal.  If the parties choose not to extend this period and cannot reach any agreement, the UK will exit the EU with no formal arrangement in place.  Once the Article 50 trigger is pulled, it is irreversible.

Following the Brexit vote, David Cameron announced his intention to resign as Prime Minister, leaving the decision on how and when to trigger Article 50 in the hands of his successor.  Given the current chaos in British markets and politics, the culmination of Brexit may take years.

 

4thHope everyone will be enjoying the beautiful 4th of July weekend.

The Library will be open its normal hours on Saturday and Sunday and will be open from 9 to 5 on the Fourth.

The Library hours for the weekend are posted below.

Saturday July 2nd 9 am – 10 pm
Sunday July 3rd 10 am – 10 pm
Monday July 4th 9 am – 5 pm

Macy’s Fourth of July Fireworks event is scheduled to begin around 9 PM and last for about 30 minutes.fireworks

The show will take place on the East River this year. Fireworks will be set off from the Brooklyn Bridge and from barges in the water below. You can view the fireworks from any area in Manhattan, Queens, and Brooklyn with an unobstructed view of the sky above the East River.

Enjoy.

Judicial Review and Alexander Hamilton

Independence Day 2016 marks the 240th anniversary of the Second Continental Congress’ adoption of the Declaration of Independence on July 4, 1776. This milestone in US history is observed by Americans, young and old, as a national holiday on the same calendar date each year. If July 4 is a Saturday, it is observed on Friday, July 3. If July 4 is a Sunday, it is observed on Monday, July 5. This year government offices and schools are closed on Monday, July 4. See 5 U.S. Code § 6103. The library at Brooklyn Law School has reduced hours on Monday and will be open from 9am to 5pm so law students can study for the bar exam scheduled at the end of July.

RutgersIn Constitutional Law courses law students at BLS and throughout the country learn that the decision by Chief Justice John Marshall in Marbury v. Madison, 5 U.S. 137 (1803) is arguably the most important case in American law. It was the first U.S. Supreme Court case to apply the principle of “judicial review”, the power of federal courts to void acts of Congress in conflict with the Constitution. However, a newly acquired title in the BLS Library collection, Rutgers v. Waddington: Alexander Hamilton, the End of the War for Independence, and the Origins of Judicial Review by historian Peter Charles Hoffer (Call No. KF228.R877 H64 2016) makes clear that Marbury was not the first court in the new American Republic that considered the argument that a legislative enactment in conflict with a state or federal constitutional provision is void. One of the first decisions to address the question was Rutgers v. Waddington, decided in the Mayor’s Court in the City of New York on August 7, 1786. The case is important to American constitutional law because defendants’ primary attorney who argued for an expansive notion of judicial power was Alexander Hamilton, who advocated for the principal of judicial review in Federalist Paper No. 78.

The case was presented on June 29, 1784 with Chief Justice James Duane presiding. The facts showed that Plaintiff Elizabeth Rutgers owned a large brewery and alehouse on the northern side of Maiden Lane near where Gold Street now enters it. The brewery extended from Smith (now William) Street on the west, to Queen (now Pearl) Street, on the east; and from Maiden Lane, on the south, to John Street on the north. It was one of the most notable features in what is now the Financial District.  Plaintiff was forced to abandon the brewery during the British occupation of New York City. Under the Trespass Act of 1783, which permitted patriots to sue loyalists for damages to property in occupied areas of the state, Rutgers demanded rent from Joshua Waddington who had been running the brewery since it was abandoned. Alexander Hamilton, attorney for the defense, argued that the Trespass Act violated the 1783 peace treaty ratified earlier by Congress. Chief Justice Duane delivered a split verdict awarding Rutgers rent only from the time before the British occupation. The case was ultimately settled by the two parties. Importantly the case set a precedent for Congress’s legal authority over the states. In his ruling, Chief Justice James Duane wrote that “no state in this union can alter or abridge, in a single point, the federal articles or the treaty.”

Brooklyn Law School’s Scholarship & Special Collections

brooklynworks

BrooklynWorks is the online repository of Brooklyn Law School, providing open access to scholarship produced by the law school and to other collections of law school materials. The repository is a service of the Brooklyn Law School Library. Current collections focus on faculty scholarship, the law school’s journals and library special collections.

Within the law Journals collection, you can browse or search issues of the Brooklyn Law Review, the Brooklyn Journal of International Law, the Journal of Law & Policy, and the Brooklyn Journal of Corporate, Financial, & Commercial Law.  Within the faculty scholarship collection, you can browse or search Brooklyn Law School’s faculty publications going back to 2010.

Within the Special Collections, you can browse the papers of David Trager from the 1986-1989 New York City Charter Revision Commissions.  Included in this historic collection are various drafts of the New York City Charter, meeting minutes and letters to the members of the commission.  The digitized documents were selected from materials he donated to the Brooklyn Law School Archives. To access the entire collection, you can contact the reference desk (refdesk@brooklaw.edu) and make an appointment to visit the archives.

World Refugee Day 2016

UNHCRThis week, Brooklyn Law School Library Associate Librarian Linda Holmes created a display of library material marking World Refugee Day. In December 2000, the United Nations General Assembly passed a resolution, A/RES/55/76, designating June 20 as World Refugee Day to commemorate the 50th anniversary of the 1951 Convention relating to the Status of Refugees. Among the titles in the display case located on the first floor of the BLS Library opposite the elevator is The UNHCR and the Supervision of International Refugee Law edited by James C. Simeon (Call No. K3230.R45 U54 2013). The 384 page book is an in-depth analysis of the UNHCR’s supervisory role in the international refugee protection regime. It examines the part played by key institutions, organizations and actors in the supervision of international refugee law and provides suggestions and recommendations on Green Card Storieshow the UNHCR’s supervisory role can be strengthened to ensure greater State Parties’ compliance to their obligations under these international refugee rights treaties. Another title in the display is Green Card Stories by Saundra Amrhein and Ariana Lindquist (Call No. JV6455 .A826 2011), a coffee table style book that depicts 50 recent U.S. immigrants—each with permanent residence or citizenship—in powerfully written short narratives and compelling portraits.

According to the United Nations High Commissioner for Refugees (UNHCR), in 2016, 65.3 million people are considered refugees, the largest count since WWII. Due to rising conflict in the Middle East and ISIS’ intent to destroy Christians and non-Muslims, the world now has a record number of people who have been displaced from their homes and have nowhere to go. Unfortunately, many countries have no desire to help them, especially displaced Christians from the Middle East. One reason is because many fear that ISIS members are disguising themselves. The UNHCR estimates that 24 persons are displaced from their home every minute due to conflict and persecution with 16 million qualifying as refugees due to persecution. It released its latest analysis of global displacement trends in a 68-page report. To help understand its key findings, see this 90-second video:

Artificial Intelligence in Law and Education

robot lawAn intriguing new title in the Brooklyn Law School Library collection is Robot Law by Law Professors Ryan Calo, A. Michael Froomkin, and Ian Kerr (K564.C6 R63 2016). The 402 page book brings together research on robotics law and policy written by scholars from law, engineering, computer science and philosophy on topics such as liability, warfare, domestic law enforcement, personhood, and other cutting-edge issues in robotics and artificial intelligence. The book is an in-depth look at an area of law that is growing in importance. Like the Internet before it, robotics is a technology that will transform the social and economic landscape of legal research and practice. Robot Law looks at the increasing sophistication of robots and their widespread use in hospitals, public spaces, and battlefields requiring rethinking philosophical and public policy issues, including how AI interacts with existing legal regimes and changes in policy and in law.

Whether artificial intelligence will one day displace human lawyers has become so important that, this past April, Vanderbilt Law School hosted the first legal conference on the topic, “Watson, Esq.: Will Your Next Lawyer Be a Machine”. Speakers included Richard Susskind, author of “Tomorrow’s Lawyers” and “The Future of the Professions,” and Andrew Arruda, whose firm ROSS Intelligence helped build ROSS (which does not stand for anything), the world’s first artificially intelligent attorney, on top of IBM Watson.  Designed by students at the  University of Toronto, ROSS is meant for use by lawyers. Asking it a legal question will yeild an “instant answer with citations and suggested readings from a variety of content sources.” ROSS reads and understands language, postulates hypotheses when asked questions, researches, and then generates responses (along with references and citations) to back up its conclusions. It learns from experience, gaining speed and knowledge the more users interact with it.

A recent Washington Post news piece reports that the law firm Baker & Hostetler announced that it is employing ROSS to handle its bankruptcy practice of nearly 50 lawyers. CEO and co-founder Andrew Arruda, says that other firms have also signed licenses with ROSS and expects more announcements soon. Although still in the prototype stage, ROSS shows great promise as an innovative legal research tool. Tasks that ROSS can do include:

  1. Giving relevant answers – not a list of results – to natural language questions;
  2. Learning from user’s questions – it learns and improves the more it is used;
  3. Providing a consistent, easy-to-use experience on any devices used to access it.

At this week’s CALIcon 16 being held at the Georgia State University College of Law, BLS Reference Librarian Harold O’Grady and Technology Educator Lloyd Carew-Reid will present a session, The Future of Artificial Intelligence in Legal Education, Research and Practice. Also participating will be:

  • Professor Heidi Brown (Director of Legal Writing at Brooklyn Law School);
  • Mikhail Jacob (a Ph.D. student at the Georgia Institute of Technology); and
  • Dr. Mark Riedl (an Associate Professor in the Georgia Tech School of Interactive Computing and Director of the Entertainment Intelligence Lab).