Courtroom Appearance Really Matters

Man wearing suit

Clients often ask how they should act and what they should wear when appearing in court. As a general rule your overall appearance and that of your defense counsel should always try to convey trustworthiness and credibility.

With regards to your actions in the courtroom, you should be prepared to testify and understand what the prosecution is going to question you about and what he must prove to meet his burden of proof. In addition to the obvious content of your testimony, you should understand that it is not only what you say but how you say it, including the tone of your voice, how quickly you speak and always maintaining eye contact. It is also a good idea to be aware of your conduct when sitting next to your attorney. Understand that someone will always be watching you therefore wild outbursts, eye rolling and hand gestures are not unacceptable. Instead practice sitting calmly with a pad of paper and a pen and focus on listening. Your attorney also needs to listen to be effective so do not interrupt him. Interrupting him during opposing counsel’s direct examination or cross examination could cause him to lose his focus and miss a critical response. You should remain silent while writing down your questions and inconsistencies in the witness testimony and wait until the other attorney is finished questioning the witness before you speak to your attorney.

With regard to courtroom dress, I always wear a suit so I recommend a suit for men and a suit or a longer skirt for women. At the very least men should wear a collared shirt, a sports coat, and slacks. Women should avoid wearing anything too provocative. Neither men nor women should ever wear t-shirts, hoodies, sneakers, sandals, flip flops, or jeans. Men and women should wear conservative dress shoes and women should avoid open toe foot wear. Men should be clean shaven and well groomed. While a professional appearance will not necessarily make a bad case good, a poor appearance will just give the judge or jury one more reason not to believe or respect you. Do not underestimate the power of nonverbal communication. Your appearance and that of your witnesses creates a positive or negative impression. Appearance must reinforce your attorney’s arguments. In most cases your attorney may present a mistaken identity theory (it wasn’t my client) and so your appearance should reinforce the argument that you couldn’t have committed this type of crime because you don’t fit the part. Proper appearance can reinforce good character but it can also imply good character when your attorney can’t talk about it. The law understands that appearance and nonverbal communication matter. In their final instructions to a jury prior to their deliberations, judges tell jurors that they are permitted to use a person’s nonverbal responses and cues to determine credibility.

The bottom line is that appearance matters and preparation is critical, so be prepared and give the judge and jury every reason to like you. If you are charged with a crime contact Gregory J. Spadea online or at 610-621-0604 of Spadea & Associates, LLC in Ridley Park, Pennsylvania.

Admissibility of Hearsay Evidence at a Pennsylvania Preliminary Hearing

Preliminary Hearing

Hearsay is an out of court statement offered for the truth of a matter asserted by the party attempting to introduce it into evidence. Generally, hearsay is not admissible at trial because it is considered unreliable given that the speaker was not under oath and not subject to the opposing party’s cross examination. While there are a number of exceptions to the Hearsay Rule, the purpose of this blog is to explain the admissibility of hearsay at a preliminary hearing.

At a preliminary hearing a magistrate judge determines if a crime was committed and if the accused was connected to the crime. The evidentiary threshold at a preliminary hearing is the preponderance of evidence standard which is far below the criminal trial standard of proof beyond a reasonable doubt. However, the preponderance of the evidence standard means that more than likely the defendant was connected to the crime. Procedurally, the preliminary hearing is the first screening of a crime and its function is not to try the defendant which is why it does not require the same high degree of proof or quality of evidence that is required at trial.

The prosecution and defense often use experts in presenting their case but those experts are usually not an issue during a preliminary hearing because the standard is simply if the accused is connected to the crime. DUI cases have caused significant controversy given that the “connection” to the crime is often established through the expert and not just the expert report. The expert report provides information of the accused Blood Alcohol Level (BAC) and the scientific method used to determine it. Defense attorneys have argued that a DUI prosecution requires the testimony of the expert as well as the introduction of the expert report, and without the expert testimony the expert report is inadmissible hearsay even with the lower evidentiary standard at the preliminary hearing. The defense argument is that the connection is the expert explaining the scientific method in the report which indicates intoxication which is the foundation for the charged offense. These arguments are usually made when the prosecution cannot present any police or civilian witness testimony of DUI impairment.

Despite these defense arguments there are several Pennsylvania Superior Court decisions that firmly hold that hearsay evidence is admissible for the purposes of a preliminary hearing. However, the testimony provided at the preliminary hearing form the basis of most pre-trial motions as well witness impeachment and assessing the credibility of testimony at trial. Although few cases are dismissed at the preliminary hearing stage, a strong defense argument often demonstrates the weaknesses in a case. Since the burden of proof at trial is beyond a reasonable doubt, if defense counsel can show the prosecutor the weaknesses in the prosecution’s case that may substantially reduce or eliminate the number and severity of the criminal charges against a defendant. If you need representation at a preliminary hearing please contact Gregory J. Spadea online or call our office at 610-521-0604 of Spadea & Associates, LLC in Ridley Park, Pennsylvania.

Preparing For Your First Deposition

The purpose of a deposition is to find out what your personal knowledge of the facts in the case are, and when you knew them.  It also pins you down to a specific story, so if you testify later at trial you cannot change your story.  It also allows opposing counsel to size you up as a witness to see if you would be credible if you did testify later at trial.

The deposition is typically taken in an attorney’s conference room in the presence of a court reporter along with your attorney and the opposing party and their attorney.  The Court reporter will give you an oath to tell the truth and ask you to identify yourself.  Be sure to speak loudly and clearly so the transcript of your testimony is accurate and understandable.  Do not nod your head or make gestures since they will not be recorded.

To prepare for the deposition you should refresh your recollection by reviewing any notes you made about the case.  You should also read all the pleadings and correspondence from your attorney’s file.  If the other party or witnesses have already given depositions you should also review those to see how they differ from your recollection of the facts.  Do not be afraid if you do not remember something, just tell the truth and state that you do not remember.

The most important thing to remember is to tell the truth.  Do not lie or exaggerate. Listen carefully to each question and answer only to what is being asked.  Do not give additional information.  If you can answer a question with a yes or no you should do so.  Try to make your answers as a short as possible.

Never answer a question if you do not know the answer. Never estimate or guess, as this will destroy your credibility if you are not accurate.  If you realize you gave a wrong or unclear answer, correct or clarify it immediately.

If you do not understand a question ask the attorney to repeat it.  You should only be asked one question at a time, so if you hear a compound question, wait for your attorney to object and it will be rephrased.  If you hear your lawyer object to a question stop talking immediately.  Your lawyer will instruct you on how to proceed.

Do not bring any documents or records to the deposition unless your attorney tells you to. In addition, do not ask for anything from your file during the deposition.

After the deposition do not speak with the opposing party since nothing is off the record.

Contact a Ridley Park, PA Attorney

If you are facing a deposition or have questions feel free to call Spadea & Associates, LLC at 610-521-0604.

What Should I do if I get a Subpeona?

Man at desk thinking

I. General Information:

1. What is a “subpoena”?

Although typically filled out by an attorney, a subpoena is an official request issued from a court. A judge may find an individual in contempt of court for not complying with a subpoena. A subpoena is binding if:

i. the subpoenaed individual receives proper personal service and

ii. there are no objections or reasonable excuses not to comply with the request and

iii. the subpoena is issued under authority of a court or agency with statutory authority to issue subpoenas to persons in Pennsylvania.

2. What can be requested in a subpoena?

A subpoena may require the individual to do any or all of the following:

a. Testify at a trial, hearing, or other judicial proceeding;

b. Produce records including papers, books, or other physical items, or stored electronic information including email, files, activity logs, and data;

c. Appear at a deposition for questioning before trial and /or produce documents at the deposition.

3. What grounds are there to block a subpoena?

A person may object to a subpoena and asked that it be quashed by a judge. A “motion to quash” is a request that a judge nullify or cancel the subpoena. Typically your lawyer will negotiate with the attorney who issued the subpoena if it is unduly burdensome or otherwise objectionable.

Important grounds for opposing a subpoena include:

a. Privileged or confidential information – If the request is for student records (see Family Educational Rights and Privacy Act), medical records, personnel files*, counselor-student communications, attorney-client communications, confidential research, or other protected materials, the subpoena may be quashed or may be subject to a protective order.

b. The subpoena is too vague – If the subpoena is so vague or global as to what records it requests, the recipient may object or negotiate for narrower terms with the attorney who sent it. (See Fed. Rule Civ. Proc. 45(b)(1), Fed. Rule Crim. Proc. 17(d);

c. Inadequate time to respond. This sometimes happens with requests for student records because the University must notify the student (or former student) first. A subpoena that does not allow a reasonable time for compliance may be objected to or a different response time may be negotiated. (Fed. Rule 45 (c)(3)(A)(i)),

*“Personnel file” means any employment – related or personal information gathered by an employer.

d. Burdensome travel. If t he subpoena forces the individual to travel too far, there are grounds for objection. (See Fed. Rule 45 (c)(3)(A)(ii) )

e. Where undue burdens or “adequate excuse” exist for non- compliance, the recipient may be able to object to or negotiate change to the subpoena.

II: Important Facts To Determine When Subpoenaed:

The rules for subpoenas vary on the type of case (criminal or civil) and the issuing authority (state court, federal court, administrative agency). The most important initial aspects to determine when first receiving a subpoena include:

a. What does the subpoena request (testimony, deposition, or production of documents)?

b. What court issued the subpoena (federal, Pennsylvania, another state court, or an administrative agency/commission)?

c. What type of case did the subpoena stem from (civil or criminal)?

III. General Steps to Take for Subpoenas for Documents from Federal or Pennsylvania Courts

1. Check how the service was rendered:

a. For federal subpoenas , some courts hold that there must be personal hand delivery of the subpoena to the individual named in the subpoena. Other courts allow service by certified mail. This rule applies for both civil cases and criminal cases.

b. For Pennsylvania subpoenas, service may be rendered by personal delivery of the subpoena to the recipient, or by certified or registered mail, return receipt requested.

2. Check for jurisdictional limitations:

a. Federal civil subpoenas are only valid if served:

i. Within Pennsylvania if it was issued by a federal district court in Pennsylvania, or

ii. Outside of PA but within a 100 miles from the place selected for the individual to produce the documents.

b. For federal criminal subpoenas, there are no jurisdictional restrictions. Unlike the federal civil cases, service may be rendered anywhere within the United States, without geographical limitation.

c. For all Pennsylvania criminal and civil subpoenas , any state court in PA can issue and serve a valid subpoena to any person within the state. However, the rules for depositions differ. Contact Legal Affairs concerning depositions.

3. Does the person named in the subpoena have control of the documents:

a. In all federal cases, if you do not have control of the documents, you should object by notifying the requesting party in writing.

b. In all Pennsylvania cases, for any requests for public records or medical records, if the custodian lacks custody of the requested documents, the custodian must send an affidavit stating lack of custody to the court.

4. Does the subpoena request confidential information:

For all subpoenas , if any confidential records are requested (including student records, medical records, personnel files, etc.) the procedure for responding may be affected by the specific statutes concerning that type of record. You may file a motion to quash the subpoena, or seek a protective order, if the subpoena requests privileged or confidential information. Under the statutes, you may also have to give notice to the student or employee who is the subject of the records. Improperly disclosing confidential information could harm the University’s case if the University is a party, and it could create possible civil liability.

5. Is the request otherwise objectionable:

Generally, a subpoena is objectionable if it is “oppressive or unreasonable” Contact Spadea & Associates, LLC at 610-521-0604 to determine if there are other grounds to object.

6. Making objections or motions to quash:

a. For all federal cases , any objections should be made in writing within 14 days after service or before the date requiring production of documents. Objections should be made directly to the party or attorney requesting the subpoena. The attorney may then modify the subpoena or seek a court order for the documents. A motion to quash should be made to the issuing court soon after receiving the subpoena.

b. For all Pennsylvania courts, a person must make an objection to the issuing attorney, or a motion to quash directly to the court, within 20 days of service of the subpoena (or before the time specified in the subpoena to comply if that time is less than 20 days).

7. Requests for Production of Documents and Subpoena’s that are not issued by a Court:

A request for production of documents or subpoena sent by an attorney to other parties and non- party witnesses during the discovery phase of litigation is different from a court issued subpoena. In that case the non party witness should not provide confidential information without a court order until consulting with his attorney. To do so may subject the non- party witness to being sued for disclosing the confidential information without proper permission.

Call Gregory J. Spadea immediately at 610-521-0604 if you get a subpoena.

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