SUMMARY CHART: POWERFUL EVIDENCE IN THE TRUMP "HUSH MONEY" TRIAL

 

Illustrative Summary Chart

The headline for the May 10, 2024 newspaper article about Trump's "hush money" trial read "Prosecutors introduce key text and call records into evidence" Then, the article went on to state:

After Westerhout (a prosecution witness) left the stand, prosecutors spent the rest of the day calling a series of custodial witnesses to introduce cell phone records into evidence.

It made for a dry day of testimony, but it also provided key evidence that prosecutors plan to use to try to convince the jury that Trump is guilty of falsifying business records.

Those records included a summary of the 34 charges against Trump – 11 invoices, 12 vouchers, and 11 checks. Through a Manhattan district attorney’s office paralegal, prosecutors introduced a summary explaining how the charges correlated with the documents in evidence."

The applicable New York evidence rule that supports the admissibility of a summary chart is  10.11. Exception for Summary of Voluminous Material, and it provides for the admissibility of a summary chart as follows:

The content of voluminous writings, recordings, or photographs may be proved by the use of a summary, chart, or calculation of the contents, provided the writings, recordings, or photographs are accurate, otherwise admissible, and cannot be conveniently examined in court. The party offering such evidence must make the originals available for examination, copying, or both, by other parties at a reasonable time and place. The party against whom the item is being offered must be given an opportunity to challenge its admission. And, the court may order the offering party to produce the underlying originals in court. 

In my book Visual Litigation: Visual Communication Strategies and Today's Technology my co-authors and I discuss Federal Rule of Evidence 1006, which is similar to New York's rule, as follows:

"Fed. R. Evid. 1006 provides: 

The proponent may use a . . .chart. . . to prove the content of voluminous writings, recordings, or photographs that cannot be conveniently examined in court. The proponent must make the originals or duplicates available for examination or copying, or both, by other parties at a reasonable time and place. And the court may order the proponent to produce them in court.' 

"Rule 1006 makes common sense. If there are too many writings, recordings or photos for the jury to conveniently examine, they can be summarized on a chart. To lay an evidentiary foundation for a summary chart, the proponent must establish that the original writings, recordings or photographs would be admissible, that they cannot be conveniently examined in court, and that the chart accurately summarizes the originals.

"U.S. v. Milkiewicz , is an example of how to lay a foundation for a Rule 1006 chart and its benefits. In Milkiewicz, the defendant appealed a conviction of defrauding a federal court when he collaborated with a court administrator, sold office supplies to the court at inflated prices and billed it for more products than he delivered. At trial two summary charts were admitted into evidence, one showing the allegedly fraudulent sales transactions and the other showing discrepancies in defendant's income tax reporting. U.S. Court of Appeals, First Circuit, discussed what must be established as an evidentiary predicate for a summary chart to be admissible: 

Rule 1006 allows ‘‘[t]he contents of voluminous writings which cannot conveniently be examined in court [to] be presented in the form of a chart, summary, or calculation.’’ Fed. R. Evid. 1006. It creates an exception to Rule 1002, which requires that originals be used to prove the content of writings, recordings and photographs. Evidence admitted under Rule 1006 must be otherwise admissible and remains subject to the usual objections under the rules of evidence and the Constitution. ‘Most notably, Rule 1006 evidence normally is objectionable if the voluminous source material on which it is based is inadmissible.’ . . . The proponent must show that the voluminous source materials are what the proponent claims them to be and that the summary accurately summarizes the source materials. . . 

Under Rule 1006, the underlying documents must be made available to the other parties, and ‘‘[t]he court may order that they be produced in court.’’ The discretion accorded the trial court to order production of the documents means that the evidence underlying Rule 1006 summaries need not be introduced into evidence . . ., but nothing in the rule forecloses a party from doing so. For example, we can imagine instances in which an attorney does not realize until well into a trial that a summary chart would be beneficial, and admissible as evidence under Rule 1006, because the documents already admitted were too voluminous to be conveniently examined by the jury. 

Most often, however, we think it likely that an attorney would anticipate the benefits of summarizing voluminous writings and would take advantage of the opportunity offered by Rule 1006 to present only the summary at trial. Consequently, while in most cases a Rule 1006 chart will be the only evidence the fact finder will examine concerning a voluminous set of documents, . . ., in other instances the summary may be admitted in addition to the underlying documents to provide the jury with easier access to the relevant information. . . 

This latter practice has drawn criticism as inconsistent with the purpose of Rule 1006 to provide an exception to the ‘‘best evidence rule’’ because, ‘‘[i]f the underlying evidence is already admitted, there is no concern that a summary is used in lieu of the ‘best evidence.’ ’’ . . . We agree with the Fifth Circuit, however, that ‘‘[t]he fact that the underlying documents are already in evidence does not mean that they can be ‘conveniently examined in court.’ ’’. . Thus, in such instances, Rule 1006 still serves its purpose of allowing the jury to consider secondary evidence as a substitute for the originals.   (citations omitted)

The summary chart in the Trump trial (which has not yet been published on line) will be not only a valuable piece of evidence that the prosecution can rely upon in closing argument to tell the story in a way jurors can easily understand but also an exhibit the jurors will turn to rather than the original documents. 

Get your FREE copy of TRIAL ADVOCACY GOES TO THE MOVIES BOOK

 

Get your FREE copy of TRIAL ADVOCACY GOES TO THE MOVIES BOOK - Click here.

What do My Cousin Vinny and Atticus Finch have in common? A lot more than you might think. While Atticus Finch’s closing argument in To Kill a Mockingbird continues to inspire viewers to attend law school, the cross-examinations in My Cousin Vinny—while hilariously funny—offers an equally compelling example of excellent trial advocacy. 

With the aid of movie clips that are just a click away, this book explores advocacy from pretrial preparation through closing argument.

Inside this concise yet comprehensible book, which is includes movie clip gems that you can watch, you’ll learn: 

• A methodology for writing the script for your trial performances from opening statement through closing argument

• How to effectively engage and deliver a message to an audience—the jury

• Trial advocacy strategies, techniques, and skills

• Whom to cast as witnesses to be called at trial 

• How to be successful in trial by watching movies based on real trials

• The ethical and legal boundaries that trial lawyers should not cross

• How to impart your message to a jury with storytelling and visuals

• The concession-seeking cross-examination methodology 

• And, so much more

Get your copy of the book with accompanying movie demonstrations of successful trial advocacy today.

Pretrial Advocacy in the Part-time Hybrid-online FLEX JD Program

 

Here are students in my Seattle  University Law School’s Pretrial Advocacy course arguing a mock motion during the last class of the course. While King County Superior Court Judge Melinda Young presided over some of the arguments - for instance the one shown here, Judge Patrick Oishi presided over others during this Saturday’s event. This is the culmination and a high point of the course for the students. 

My students are participating in S.U. Law School’s FLEX JD program which is designed for people who are working or otherwise occupied during the day.  The FLEX JD program runs for three and a half years rather than the traditional three years, and almost all classes are done online commencing at 6 p.m. with two weekend sessions where the students attend in-person classes at the law school. 

The curriculum for the FLEX JD courses is basically the same as those for regular students. For instance, my Pretrial Advocacy class uses the same text book – my Pretrial Advocacy: Planning, Analysis, and Strategy (w/ Connected eBook with Study Center) – as that used in regular classes. 

The subject matter covered during the course is fundamentally the same but condensed to one class per week rather than two sessions. Learn more about the course by visiting Seattle University Law School’s website.

 

Carolina Academic Press has just posted the 2024 Supplement to Jury Selection Handbook and note above that it is offering both the paper and ebook at a discounted price and if you are a professor teaching in the field, you can get a complimentary copy. Click here to go to the Carolina Academic Book website.

Here is the 2024 Supplement to the Jury Selection Handbook:

Jury Selection Handbook

THE NUTS AND BOLTS OF 

EFFECTIVE JURY SELECTION  

2024 SUPPLEMENT

Ronald H. Clark

DISTINGUISHED PRACTITIONER IN RESIDENCE  SEATTLE UNIVERSITY SCHOOL OF LAW

Thomas M. O'Toole

PRESIDENT  SOUND JURY CONSULTING

CAROLINA ACADEMIC PRESS

Copyright © 2024 Carolina Academic Press, LLC All Rights Reserved Carolina Academic Press 700 Kent Street Durham, North Carolina 27701 Telephone (919) 489-7486 Fax (919) 493-5668 E-mail: cap@cap-press.com www.cap-press.com

For the New York Trump “hush money” case, the trial judge – the Honorable Juan M. Merchan, Judge of the Supreme Court of the State of New York – on April 8, 2024 provided counsel for both parties with a letter in which he laid out matters relating to jury selection that was scheduled to begin on April 15, 2024. Judge Merchan’s letter and attachments provide not only insight into how jury selection would be conducted in the People v. Trump case but also examples of subjects covered in Jury Selection Handbook. Judge Merchan’s materials can be helpful in understanding, preparing and conducting jury selection. 

The following are topics covered in Judge Mechan’s letter and attachment with references to pages in Jury Selection Handbook where you can read discussion of the topics and find other examples of the subjects under discussion. For example, Judge Merchan provides the People v. Trump juror questionnaire. 

The following list provides page references in the Jury Selection Handbook where you can find discussions of the subjects in Judge Merchan’s letter. 

TOPIC                             PAGE REFERENCE 

                                                                             IN JURY SELECTION HANDBOOK

How the Judge Conducts Voir Dire…………………………....... 27-38

The Permissible Scope of Voir Dire…………………………159-273

Grounds for a Challenge for Cause………………………….42-59

The Case Summary Read to the Jury…………………………24-27

Juror Questionnaire…………………………………………..102-105 and 307-313

           Click here to view and download the 2024 Supplement at Carolina Academic Press

New Book Website Launched - ronclarkbooks.com

Hope you visit my new website - ronclarkbooks.com. It was just published.

Trump's Helpful Courtroom Behavior

 

Trial lawyers think differently from other human beings when they evaluate a person who might be a witness. First, they evaluate what the person has to offer in the case in the context of the rules of evidence. The trial lawyer ponders whether or not what the witness has to offer is admissible in evidence. If the witness hurts the case, the lawyer may move to keep the witness off the stand or exclude part of the witness’s testimony as inadmissible under the rules of evidence. If what the witness offers is helpful, the lawyer comes to court prepared to argue it is admissible under the rules.

Second, the trial lawyer evaluates what the witness has to offer in terms of whether it helps or hurts the case. Does the evidence the witness can provide help or hurt the case? Obviously, if it hurts, the lawyer turns to the rules of evidence in hopes of being able to keep the witness off the stand or exclude the harmful part of the witness’s testimony. Conversely, if what the witness offers is good for the case, the trial lawyer will want the witness to take the take the stand and get the evidence the witness can provide admitted into evidence.

With those two concepts in mind, consider Donald Trump’s involvement in the E. Jean Carroll case in which the jury awarded plaintiff Carroll $83. million. Defense counsel called Trump to the stand, and he testified for around three minutes. 

Let’s evaluate Trump as a witness from the plaintiff’s lawyer’s perspective utilizing the two criteria—admissibility of the evidence and whether or not the evidence is helpful or harmful. Regarding admissibility of the evidence, to the extent that Trump wanted to continue denying he sexually assaulted Carroll, the plaintiff’s had the court’s ruling on the evidence that that issue had been resolved during the first trial and that testimony that the sexual harassment did not happen would not be allowed. 

Second and most fascinating is how the two sides evaluated what Trump contributed to the case in terms of whether it was good or bad. It’s hard to fathom why defense counsel put him on the stand and let him behave the way he did in the courtroom. He offered little during his three minutes on the stand.

Plaintiff’s counsel were delighted by Trump’s performance and gave it high marks for helping the plaintiff’s case. As they have said in  interviews after the trial, the plaintiff’s themes for the case were that Trump was a bully who thought the rules did not apply to him, and Trump’s courtroom behavior offered corroboration for those themes. Trump not only spoke loudly so the jury could hear him when he should not have done so, and he walked out the courtroom during opposing counsel’s closing argument, which is a breach of courtroom decorum. 

The court probably instructed the jury to evaluate a witness’s testimony in terms somewhat along these lines:

"In considering a witness's testimony, you may consider these things: the opportunity of the witness to observe or know the things they testify about; the ability of the witness to observe accurately; the quality of a witness's memory while testifying; the manner of the witness while testifying; any personal interest that the witness might have in the outcome or the issues; any bias or prejudice that the witness may have shown; the reasonableness of the witness's statements in the context of all of the other evidence; and any other factors that affect your evaluation or belief of a witness or your evaluation of his or her testimony." (Emphasis added)

Clearly in the minds of E. Jean Carroll and her lawyers, Trump’s demeanor and behavior helped their case.

CRAFTING THE CONTENT OF A PRESENTATION

 

The following is an excerpt from Powerful Presentation Handbook - a book that can serve as a guide whenever you are making a presentation whether it is given in or out of a courtroom.

CRAFTING THE CONTENT OF A PRESENTATION

There are three guiding principles for selecting and designing the content of your presentation: (1) a purpose and passion; (2) suitable to the audience; and (3) engage and entertain.

1. PURPOSE AND PASSION 

First, have a passion and a purpose. As Danielle Kennedy says, “The speaker’s objectives are like the writer’s thesis statement. What are you trying to say? Accomplish? What is the purpose of the speech? It’s mission statement? If you don’t know, should the audience guess?” Selling the Danielle Kennedy Way, Danielle Kennedy (1991)

What are you going to talk about? What are you trying to say? Accomplish? Is the subject of your presentation decided by others or is that left up to you? Usually, you will be asked to speak on the subject because you are knowledgeable about it. However, you might be assigned to speak on a subject upon which you are not well versed. 

No matter how you arrive at the assigned subject, you want to make the subject your own—to know what you want to get across to your audience—your purpose. When the subject of your talk is your own and you have a purpose, you will have a passion for your subject, enabling you to speak from your heart and mind to your audience. If you can’t make the speech your own, don’t give it.

Nothing is more dynamic than a person who has purpose and a passion for the subject and wants to deliver the message from the speaker’s heart to the hearts of people in the audience. In Chapter 3 “Lessons in Eloquent Rhetoric”, we can tell from their speeches that Reverend King, Oprah Winfrey, Abraham Lincoln, Barack Obama, and Gerry Spence each had a purpose and passion for their subject matter. Each of them radiated their purpose and passion to the audience. 

2. SUITABLE TO THE AUDIENCE

The second principle for crafting the content of a successful presentation is to make sure that the audience needs and wants to learn about the subject. If the presentation does not meet listeners’ needs and wants, it is not worth giving. 

The topic must fit what the audience wants and needs. Sometimes, while the audience members may need to learn about a subject, they do not want to listen to a talk on the subject. If that is the situation, they are not going to learn much. If the audience needs to learn about a subject but does not naturally want to learn about it, you must create the desire to know. 

Creating a want to know in the audience can be accomplished by explaining to the audience why they should care about the subject of your talk. For example, when I worked at the National Advocacy Center in Columbia, South Carolina, every week a new contingent of state and local prosecutors came to Columbia to receive training at the Center. They were there to become better prosecutors. What did they want? They wanted practical information that would help them perform their job. 

While the attendees at the Center needed a presentation on prosecutor professionalism—legal ethics—to become better prosecutors, a lecture on the subject was not one they, as a matter of course, were looking forward to and wanted.  Because the attendees did want practical information, it was important for the presenter to explain, with the aid of every-day practical examples, that ethics violations can result in mistrials and reversals of convictions. An ethic’s presentation framed around this practical information coupled with advice concerning how to avoid professional responsibility pitfalls was one that the prosecutors wanted in the lecture on prosecutorial professionalism.

3. ENGAGE AND ENTERTAIN

The third principle for selecting and crafting your powerful presentation is—find material that will engage and entertain the audience. Yes, entertain them. To accomplish this, the speaker must do the necessary brainstorming and research. Where do we get the material to include in the presentation? The first and best source is your creative mind. When you are motivated by either glee or fear that you are going to give a talk, ideas will start flowing. 

The ideas may include a joke, a story, a demonstration, a personal experience, an anecdote, and so on. Get out of the way and do not pass judgment on the ideas that come to you because you are brainstorming. Do not initially reject a train of thought because on later reflection what you initially thought was not a good idea, could indeed be usable.  

Write down your ideas.  Put them in a file on your computer. Label the file with the date of your talk and title of the presentation. When an idea comes to you, put it in the file. Keep a tablet by your bed or a phone so you can record the ideas when they come to you in the middle of the night.

Here are some notions that are winners:

• Naturally, anything supporting the message you want to impart to the audience.

• Stories: Use stories to make a point. 

• A joke that is pertinent to the topic.

• Quotations: They are useful to drive home a point. A quote is good if it is from a well-known, respected figure. 

• Transcript: If the subject is trial work, an excerpt from a trial transcript could fit in the talk. 

• Extended anecdotes work well. 

• Demonstrations: Demonstrations can highlight a point you want to make.

• Rhetorical devices, such as an analogy, simile or metaphor, which will be discussed in the next chapter.

The topic of your talk will dictate to you what research you need to do. Discuss your talk with the person who asked you to make the presentation; find out what the person wants to get across to the audience. Read everything can get your hands on about the subject. Talk to people who are knowledgeable on the subject. 

If you are interested in reading more of the book, you can locate it on Amazon by clicking here. It is only $7.99 in paperback and free on Kindle Unlimited.