Q: What will you do as my lawyer after we receive all the evidence/discovery from the prosecutor?

A: We go through a very deliberate process in looking it all over piece-by-piece to develop any of your defenses. Then we set an office appointment with you to discuss it all.

Q: What are the biggest parts of the discovery?

A: Police reports and videos

Q: What are you looking for in the reports and videos to defend me?

A: Inconsistencies within the narratives and written statements; i.e. differences we discover when we compare what you (the client) remember versus what the report says and/or what is depicted on the video.

Q: What do you do with those differences?

A: We file motions based upon the 4th, 5th, 6th Amendments to the United States Constitution, we can mention them to the prosecutor as a reason to give you a better offer, or we can keep that information to ourselves to save for purposes of impeachment at trial.

Q: What is impeachment at trial?

A:  There are at least nine types of impeachment at trial:  1. Prior inconsistent statements; 2. Bias/interest/motive; 3. Bad character for truthfulness; 4. Prior convictions; 5. Prior bad acts;  6. Contradictory facts, 7. Mental and physical defects, 8. Poor opportunity to observe, 9. Drug and alcohol use.

Q: Can you break all those down? What do they mean?

A:  1 -Prior inconsistent statements are sworn statements – given before, that have now changed – for whatever reason(s). It is our job to find out why – and if we cannot find out why, at least make sure the jury knows about the change. Reasonable doubt comes from at least three places (which will be discussed later) but one place it comes from is CONFLICTS IN THE EVIDENCE, and if a key witness for the prosecution changes their testimony, we can argue that reasonable doubt has resulted from that alone, since testimony is evidence.

 2-  Bias/interest/motive –  This is when we can show that someone has a REASON to lie, to further some agenda. Most-commonly in DV cases BIAS is tied to financial reasons and / or child custody, as in when there is a pending divorce case between two parties – a bad break-up.

Q: Can you give an example of a case involving Bias and a Motivation to lie within a domestic violence case?

A: Yes – In one case I worked the ex-spouse had sought (and received) eighty-thousand ($80,000.00) from my client in return for her dropping a temporary protective order against my client, which was filed for (and granted temporarily) based upon the same set of facts as the criminal case/arrest. My client needed the order dropped and had to pay the money to his estranged wife so as to save his business – which he was operating out of their marital home. Obviously, we were able to cross-examine that alleged victim about that financial bias/motive later in the subsequent battery trial, and the prosecutor had no idea that the transaction had occurred. Later on, the state was forced to drop the battery charge.

  1. Bad character for truthfulness– This is testimony from one witness – who knows another witness – well-enough (for a long-enough period of time) to give testimony as to their reputation within that specific community. The Judge as Gatekeeper of all the evidence in the trial decides whether or not a witness meets this standard to offer this form of impeachment and thus may or may-not allow this.  In preparation for trial each side must eventually submit a witness list, and if as lawyers we are doing our jobs, there shouldn’t be any surprises as to the purpose and content of any witness’ testimony.
  2. Prior convictions–  Any felony and/or misdemeanor convictions involving fraud or dishonesty are relevant for impeachment purposes, but only on a limited basis.

Q  – What do you mean? What are the limits?

A – The examining attorney can only ask whether or not a person is a convicted felon, and how many times  –  the examining attorney is NOT ALLOWED to delve into the facts of any particular case unless the testifying witness opens the door. The examining attorney should also ALWAYS have CERTIFIED COPIES of any convictions that he or she plans to use for purposes of impeachment and give those copies to opposing counsel.

Q – What do you mean by “if a testifying witness opens the door”?

A  –   In U.S. v. Whitworth, 856 F.2d 1268, 1285 (9th Cir.1988), the Ninth Circuit Court of Appeals stated:

Under the rule of curative admissibility, or the “opening the door” doctrine, the introduction of inadmissible evidence by one party allows an opponent, in the court’s discretion, to introduce evidence on the same issue to rebut any false impression that might have resulted from the earlier admission. Taylor v. State, 858 P. 2d 843 – Nev: Supreme Court 1993

 “[A] party ‘opens the door’ when it elicits misleading testimony or makes a factual assertion that the opposing party has a right to correct so that the jury will not be misled.” Austin v. State, 48 So. 3d 1025, 1027 (Fla. 2d DCA 2010). Once a party opens the door, any order in limine implicated by that evidence is rendered a “nullity.” See Ryder Truck Rental, Inc. v. Johnson, 466 So. 2d 1240, 1243 (Fla. 1st DCA 1985). Instead, the opposing party is then “absolutely entitled to eradicate” that “unwarranted prejudicial image” on cross-examination. See Cont’l Baking Co., Inc. v. Slack, 556 So. 2d 754, 756 (Fla. 2d DCA 1990).

Q: What is an example of door opening?

A: A witness with no prior domestic violence convictions, who has been arrested three (3) times for DV takes the stand and says “I have never even been ACCUSED of anything violent –  in my entire life”

That witness has just opened the door to the jury hearing about the three arrests, in my opinion. ***However, the PROPER, professional way to do this is to approach the bench and get an OK from the judge first before just barreling into that line of questioning.***

Q – Which misdemeanors involve fraud or dishonesty?

A – Theft, Worthless checks, Bribery, Perjury, Use of a fake ID/ Forgery /Resisting the police by giving a fake name etc.

5 -Prior bad acts; These may overlap with number 4 – think of these as things as something a witness did that never resulted in an arrest, but was dishonest nonetheless. Keep in mind that this line of questioning must be relevant, and credibility is ALWAYS relevant.

Q : Can you provide an example?

A : Yes, one of my clients used to work with his (later estranged) wife in an office building. Years later she accused him of several serious crimes including aggravated assault with a deadly weapon. My client remembered that while working with her at this office, she had stolen a debit card from one of her co-workers, but was never caught/charged. I was free to ask her about it on cross-examination, and she (of course) denied it. The jury heard it nonetheless and observed her reaction.  The judge in these scenarios, AGAIN, has broad discretion as to how long to allow these lines of questioning to continue, and typically will not allow EXTRINSIC EVIDENCE OF IMPEACHMENT. I mention this because there were about five other things I planned to ask her about, but the judge stopped me before I could get to ALL of them, and was within his discretion to do so. Those are the breaks.  Another example is adultery, a marriage is a promise to remain faithful, and when people break that promise, it is relevant to their credibility. Why should a jury trust them if they lied to their spouse?

Q: What is extrinsic evidence of impeachment, and why is not allowed in that example?

A: The general rule is that extrinsic evidence may not be produced on a collateral matter, but may be used if the subject matter is directly material to the issues. Bias, interest or other motives to testify falsely are not considered collateral and may usually be proved by extrinsic evidence. However, remember in my example, the alleged victim of aggravated assault was not ON TRIAL for credit card theft, my client was on trial, therefore I would have been wasting the court’s time to try and call a witness just to say she was lying about stealing the card, because where would it end?

6: Contradictory facts –  Things in the record that REFUTE the witness’ testimony.

  1. Mental and Physical Defects– This is straight-forward. Under common law, if a witness has any mental or physical defect that reduces the ability to perceive or remember events correctly, that defect may be proved. This rule does not permit general proof of a witness’s mental problems, but allows only evidence that a witness was suffering mental problems at the time of the event that could have interfered with her ability to perceive or remember it.  Think of medications, think of people who have been involuntarily committed for mental-health reasons. Similarly, proof that a witness has poor eyesight or hearing is admissible. There is no federal rule on this subject, but some states have adopted them.
  2. Poor Opportunity to Observe

Under common law, the testimony of eyewitnesses may be impeached by evidence regarding their poor opportunity to observe the events from their particular locations. Extrinsic evidence such as a photograph is admissible to establish what the viewing conditions were like, as long as a foundation is laid that the physical condition of the scene has not changed in a material way, e.g., changes in trees, foliage, or other obstructions. There is no federal rule on this subject, but some states have adopted them.

  1. Drug and Alcohol Use

Under common law, drug or alcohol use by a witness on the day of the crime or event is usually admissible because it affects the witness’s ability to perceive events correctly. Drug use at other times is not generally relevant. Similarly, evidence that a witness is an addict, an alcoholic, or has a habit of drug usage is not admissible absent some preliminary showing that long term use of that particular drug affects a person’s ability to observe or recall even on days when he or she did not take the drug.



Q : What are Motions in Limine?

A : Motions in Limine are powerful tools that let us narrow the scope of our trial preparation and increase the accuracy and value of our advice to you. They are pleadings we file asking the Judge to make an evidentiary ruling in advance, either allowing certain evidence or arguments in or keeping them out.

Q : Why not just wait until the trial to find out if the judge allows evidence in?

A : Because we want to eliminate surprises – unless they help us/work in our favor. Judges are human beings – and their rulings are not always consistent. With your freedom at stake – we want to take as much uncertainty and chance out of the equation as possible. We want only our opponents to suffer any surprises. Knowledge as to the admissibility of certain pieces of evidence allows us to better counsel you as our client as to the expected outcome at trial. Think of this analogy – There is a football game coming up (your trial), and you hired us (in part) to determine which team is most likely to win. We do not know if one team’s star QB will be able to play – so we ask the judge to rule the QB in or out for sure ahead of time, which allows us to give you a better assessment and for you to make a more well-informed decision.

Q: Can you provide non-football real-world examples?

A: Yes – I have two examples:  The first involves several of the temporary restraining order cases I defended. Violating a restraining order is a status crime – a person either violates it or not – how scared the alleged victim felt as a result is not ever (in my opinion) relevant. In fact, if the jury sees someone cry and show extreme fear etc. on the witness stand, I doubt my client(s) in those cases can get a fair trial. As a result, I almost always file a motion in limine in those type cases asking the judge to DISALLOW any testimony as to fear on the part of the alleged victim. My client either violated the order by contacting the alleged victim or being within 500’ of him or her or did not – fear is of no consequence. If the state wants to allege / prove fear, let them charge someone with assault.

The motion in limine in the other example helped us win the case at trial: This was an Aggravated Assault with a Deadly Weapon (felony) based upon a steak knife.

My client and his then-current girlfriend would cut themselves and were depressed. It was late at night and my client’s ex-GF was texting him. She was disturbed by some of the texts she received in return and thought my client was suicidal. She (the ex-GF) called the police out of concern for him. The police came to my client’s house for a “wellness check”. The police had tried (unsuccesfully) to call the house first. They had no warrant and my client was not expecting them.  It was the middle of the night when they banged on the door (how loudly was a fact of contention later). I suspect that the banging was VERY LOUD based upon my experience. My client was scared – went to the kitchen, grabbed a steak knife, looked out the door, didn’t see anyone since the police were off to the side of the porch. He never heard the police announce their presence / identify themselves. He went out on the porch with the knife and five police officers had guns drawn down on him –  he allegedly made a “step or two towards them” – amazingly did not get shot – and then dropped the knife. My client had blood on his shorts from cutting himself. There was a porch light on. He was charged by one police officer out of five with aggravated assault with a deadly weapon and arrested. Post-arrest the police searched his room and found pro-nazi books, a jar of urine, strange photographs and many other very strange things that were not weapons. There were texts received from the ex-GF that found their way into the prosecutor’s discovery. The prosecutor wanted to use ALL of these items to convict my client.

The issue as to all the items was relevance and whether their admission at trial would prevent my client from getting a fair trial. Out of all those things I mentioned as potential evidence – we had to evaluate which pieces tended to prove  “assault”  which is an intentional, unlawful threat by word or act to do violence to the person of another, coupled with an apparent ability to do so, and doing some act which creates a well-founded fear in such other person that such violence is imminent. Since the police – at the time of the encounter on the porch –  had NO KNOWLEDGE of the texts exchanged with his ex-GF or as to how the blood got on my client and hadn’t even seen all the weird stuff in his room – those things didn’t seem relevant to me. The prosecutor tried to argue that those items were relevant – since they went to my client’s “state of mind” and the “reasonableness of the officer’s fear” as to him allegedly posing a threat to them with the knife. Thank God the judge disagreed, the jury NEVER HEARD about the blood, the nazi books and the jar of urine and focused on the important issues that took place on the porch that night.

Q: So how does the judge DISALLOW evidence by GRANTING motions in limine?

A: Before any trial begins, the judge calls the witness forward and informs them of the order – tells them that such testimony is forbidden.

Q: What if the witness blows off the judge and testifies like that anyway?

A: The witness and/or the prosecutor could be held in contempt and the judge MAY have to declare a mistrial or give a curative instruction.

Q: If the judge declares a mistrial is the defendant not guilty?

A: Yes, the defendant REMAINS as before i.e. PRESUMED not guilty but a mistrial is not a verdict – jeopardy does not attach as a result of a mistrial unless the state DELIBERATELY violated the judge’s order – so the state USUALLY can attempt to convict the defendant again later. They do not ALWAYS choose to do so.

Q: What is a curative instruction?

A: The judge orders the jury to DISREGARD certain testimony in deliberations.


Q: What are Motions to Suppress?

A: Pleadings we file asking the judge to suppress or strike certain evidence, (usually contraband) based upon the 4th,, 5th, and 6th Amendments of the United States Constitution.

Q: Why would the judge do that?

A: To discourage the police from violating your rights.

Q: Can you give examples?

A: Yes, and we touched on these in earlier chapters – but the most common suppression issues involve Miranda violations and 4th Amendment violations. If the police interrogate you after restraining you in a manner typically associated with arrest BEFORE they read you your rights – those statements may be suppressed. If the police search an area without a warrant where you had a reasonable expectation of privacy, or if they exceed the SCOPE of a warrant – any evidence obtained as a result may be suppressed.

One real-world example involved my client who was already on probation…he had a Restricted driver’s license, meaning he was allowed to drive for work purposes only.  The sheriff’s office computer told the deputies about his restriction when they ran my client’s tag at random (which is legal for them to do). Since it was late at night and most people work 8-5 they pulled my client over to “resolve the discrepancy” i.e. to find out if he REALLY was driving to or from work. We had unsuccessfully tried to suppress the traffic stop – since the police could not even tell who was driving (it was dark) and/or if the driver was the OWNER of the tag etc. It didn’t matter – the judge ruled the stop was valid, my client was arrested and after removing him from the car and arresting him, they searched his vehicle (which was now parked in a turning lane leading into a shopping plaza) and found a significant amount of cocaine. We had also filed ANOTHER motion to suppress based upon the newer case Arizona v Gant which abolished the police’s blanket ability to search vehicles “incident to arrest”. The Gant case specified that police could only search vehicles after an arrest if they were looking for something that was the basis for the stop – so in our case, a driver’s license issue? There was nothing to find INSIDE THE CAR as to that information. However, at the (first) suppression hearing the prosecutor argued INEVITABLE DISCOVERY as to the drugs – meaning that since the vehicle “had to be impounded” per the testimony of the deputies as to their “agency policy”, they would have ultimately “inventoried” the car at the impound lot – and just found the drugs anyway…so the drugs should NOT BE suppressed. The Judge agreed and my co-counsel and I knew something was fishy.  It just didn’t feel right. In our training and experience – we had recalled instances where the police were REQUIRED to give an arrestee a chance to call someone else to come get a vehicle BEFORE it was towed/impounded. We suspected that this sheriff’s office had a similar policy, and had to PROVE IT now. So we filed what is known as a FOIA (Freedom of Information Act) Request with the sheriff and about 3 months later finally received a copy of the policy manual for the sheriff’s office. When we read the manual, boom! There it was – the manual said the deputies must give an arrestee 15 minutes to call a relative to come get his car BEFORE towing it. That NEVER happened in the case. The deputies IMMEDIATELY started the impound process. So we filed what is known as a Motion to Reconsider our Motion to Suppress – which means we have NEW INFORMATION that the Judge never heard. The Motion was granted and the search was suppressed, including all of the drugs. The client to this day says I saved his life as he was looking at “many years” of prison for the new charge, and for his violation of probation, both of which were dismissed.

Q: What’s the SCOPE of a warrant?

A: Its limitations and boundaries – think of an arrest warrant for a person – if the police have the right to search a residence and vehicles on that property for a person – how could they justify searching a jewelry box? There’s no way the person could fit in the jewelry box.

In that example by looking in the jewelry box they exceeded the SCOPE of that warrant and anything in the jewelry box would be ripe for suppression if an attorney is paying attention.


A  – How we go about developing a Theme for the case –

Of course our theme will change on a case-by-case basis.  I always seek to develop a theme of a case based upon a goal – which is to convince the jury you are just a simple, law abiding citizen that got caught up in a bad situation – and that the evidence only MAKES YOU LOOK guilty – you only got arrested since the police are overworked human beings that make mistakes, and they are not bad people. I have found more success just arguing that the police investigation was rushed and incomplete – that the police only talked to the alleged victim or gave that person’s version of events too much weight and not enough to yours. We don’t accuse them of incompetence. It’s always best if we never appear bitter and never lose our composure.  We make sure we are dressed very professionally and formally. We say yes sir and “Your Honor” to the judge. We don’t wince or smirk in front of the judge or jury. We wait for our turn to speak and never call anyone a liar. We are exceedingly polite to courtroom personnel, opposing counsel, the deputies involved and other witnesses. These things collectively in my training and experience are more likely to allow the jurors to feel comfortable in voting NOT GUILTY on your behalf.

1 – Opening Statements for the State and Defense –

I can give you a preview of how I expect the prosecutor to make an opening statement. I can tell you what I expect their theme to be at trial and begin to counter that with you. We will develop our own theme in planning our response. Many prosecutors like to rely on shock value, and it is easy to counter that when you know it is coming.

2 -Deciding on the ORDER of our witnesses –

This is not a critical issue, but we know that jurors tend to remember what they hear FIRST and LAST…it is called primacy and recency, therefore if you were going to testify we would probably call you last. I would also write out the questions I planned to ask you and give you a copy so you would never be surprised. We would prepare for you to be cross-examined and we would NOT go easy on you either.

3 -Whether or not you testify/need to testify-

We can decide initially whether you will testify or not – but you would always be asked about that by the judge on the day of trial. The judge will always ask you whether or not you had enough time to discuss that decision with your lawyers. You always have the RIGHT to testify but no one can make you do it.

4-Cross-examination –

I usually write out the questions I am going to use for cross-examination of the state’s witnesses including the alleged victim – and I can share them with you. I can also put you through a “mock” cross-examination to show you how I’d expect the prosecutor to question you if you decided to testify and point out the strengths and weaknesses of what you had to say.

5 – Examining the Exhibits –

We will of course examine all pieces of evidence, especially drugs, and we may have drugs weighed again. Marijuana for example is heavier when wet and may weigh less when it dries. We check to see if the State has checked pieces of evidence for fingerprints and / or DNA…many times they do not. One of the places REASONABLE DOUBT comes from is a LACK OF EVIDENCE. Sometimes we argue that a lack of fingerprints or DNA in a place where based upon the state’s argument yours should be – constitutes a sufficient lack of evidence to equal reasonable doubt – which standing alone – would justify a NOT GUILTY verdict entered on your behalf.

6 – Organizing Closing arguments –

I can explain to you how we TIE IN our opening statements to our closing arguments. I will also explain to you the difficulty inherent in this process; how the State of Nevada gets to do first AND LAST closing argument – we only get one in the middle. Therefore we must ANTICIPATE and combat what they will say after we are finished, and that is never easy.  Also, no trial ever goes EXACTLY as planned and it is highly likely that we will have to amend our plan based upon something that happens after the trial begins.

In summary – preparing for trial is a very arduous, important process. Your freedom is at stake, we cannot leave any stone unturned.  We MUST BE prepared better than the state to win. It is during this time that our experience as trial lawyers is most-valuable.  We will probably spend at least 36 hours together working on your case depending on its complexity. We will converse and come to a consensus as to the best course of action, we will get used to working together so when the day of the trial comes we both feel comfortable.

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