The Rule-Out Method of Criminal Defense

David Ballhas guided criminal defense and civil plaintiff ’s cases for 32 years, including on more than 50 capital cases. He’s written four bestselling advocacy books, teaches CLEs and public defenders’ offices and the JAG Corps at Camp Lejeune and Fort Bragg, and taught for Federal District 1 judges. Trained in science, engineering, and research, he’s also spent a large part of his career in professional theater as a director and playwright, and his theater students have gone on to win Oscars, Emmys, and Tonys. He received NCAJ’s Charles L. Becton trial advocacy teaching award and taught at such law schools as Duke (Senior Lecturer), the University of North Carolina, Campbell (Adjunct), Loyola (Los Angeles), and the University of Minnesota. He’s been part of a research project into criminal juror decision-making funded in part by the National Science Foundation (NSF) and conducted by Duke University’s Institute for Brain Sciences (DIBS). Elliot Abrams is a partner at the Raleigh, North Carolina, law firm Cheshire Parker Schneider, PLLC, where he focuses his practice on criminal defense and other high-stakes litigation. Mr. Abrams is a graduate of Georgetown University Law School, and he obtained his undergraduate degree from the University of North Carolina at Chapel Hill. Mr. Abrams has tried and won multiple state and federal trials. And he has successfully utilized the Rule-Out method in a first-degree murder trial, in which the FBI was the lead investigative agency, as well as in a separate federal criminal trial. In 2023, Mr. Abrams won the Public Justice Trial Lawyer of the Year award for obtaining the largest trial verdict in U.S. history in a wrongful conviction case. He has also successfully litigated a number of appeals and licensing board trials, and he has represented multiple people accused of wrongdoing by the NCAA, including a former head coach of an ACC basketball team. Emilia Beskind, admitted to practice in the District of Columbia, Louisiana, and North Carolina courts, has tried many serious felony cases to successful results. Ms. Beskind also trains lawyers in courtroom skills at the annual Anthony G. Amsterdam Capital Post-Conviction Skills Seminar and for the National Institute for Trial Advocacy and teaches CLE seminars on criminal defense for the Eastern District of North Carolina Federal Defenders and the North Carolina Advocates for Justice. She has written and conducted training for David Ball, a nationally recognized expert in jury behavior and selection. A member of the International Society of Barristers, National Association of Criminal Defense Lawyers, and the North Carolina Advocates for Justice, she has also served on the Board of Directors of the Duke University Law Alumni Association and been a featured speaker at Duke Law School. She has written for the North Carolina Bar Journal, contributed to David Ball on Criminal Defense, and co-authored The North Carolina Rules of Evidence with Objections. Edward P. Capozzi is certified by the New Jersey Supreme Court as a civil trial attorney. He is a partner and chair of the personal injury department at Brach Eichler, LLC, in Roseland, New Jersey, and is the author and creator of The Domino Theory and The Domino Theory, second edition, published by Trial Guides. He regularly lectures nationally on trial techniques and cross-examination of defense medical experts. In 2014, Mr. Capozzi received the New Jersey Law Journal’s Personal Injury Hall of Fame Award for receiving the largest verdict in the state in a products liability case and from 2012 to 2022 received at least one and as many as three of the state’s annual top 20 verdicts or settlements. In 2018, he achieved the highest settlement in an auto case in the state of New Jersey and is presently handling cases in 11 states. He is the past president of the New Jersey Association for Justice (NJAJ). Mr. Capozzi exclusively handles auto, trucking, elevator, and other catastrophic personal injury cases. He’s married with four children living in Kinnelon, New Jersey. Trial lawyer Roger Dodd has continued to represent clients in legal matters since 1976 (47 years) in states all over America. He is licensed in five states, federal court, and military courts and has been admitted pro hac vice in other jurisdictions. He is one of a small select group of lawyers to hold the distinguished Super Lawyer rating in multiple states at the same time. He still tries civil and criminal cases. He is a frequent guest and commentator on television and other media programs. Mr. Dodd has been a lecturer, expert witness, and teacher in all 50 states. He provides specialized individual training (www.doddlawclinic.com) and trial lawyer coaching (www.rogerdoddtriallawyercoaching.com). He is a partner with Dodd and Burnham in Valdosta, Georgia; in the Jacksonville, Florida, plaintiff law firm Spohrer & Dodd; and the firm of Dodd and Kuendig in Park City, Utah. Richard S. Jaffe of the Birmingham, Alabama, law firm of Jaffe, Hanle, Whisonant & Knight, PC, has been certified as an NBTA Criminal Trial Specialist since 1984. He and his firm have represented thousands of individuals in state and federal courts and taken hundreds of cases to trial. He was lead counsel in gaining the acquittals of three death-row inmates by juries at new trials. He has handled over 70 death penalty cases, including six federal ones. For 14 months he served as lead counsel for Eric Robert Rudolph (Olympic bomber). In 2013, Super Lawyers listed him as one of the top 10 lawyers in Alabama. Mr. Jaffe served four terms on the NACDL Board of Directors. He is a fellow of the American College of Trial Lawyers (ACTL) and author of Quest for Justice: Defending the Damned (2nd ed. 2020, NACDL). Artemis Malekpour, a partner in the national litigation consulting firm of Malekpour & Ball, consults on a wide variety of cases across the country. She is particularly known for identifying and remedying case weaknesses. Before earning her degree with honors from Duke Law School, she worked in the Department of Psychiatry at the University of North Carolina Hospitals with children and adolescents coping with psychiatric disorders. She began her litigation consulting career while in law school with a series of interviews with jurors who had served on capital murder trials and by now has spent nearly 20 years working on trials and conducting focus groups, probing juror responses to almost every kind of case. Susan Seahorn was born in East Tennessee and attended the University of Tennessee at Knoxville and the University of Tennessee College of Law. Admitted in several states, she initially represented clients seeking postconviction relief through parole or reduction of sentences. She then worked in the federal defender’s office for the Northern District of Florida, as an assistant public defender in Fayetteville, North Carolina, and in the research division of the North Carolina legislature and then joined the federal defender’s office for the Eastern District of North Carolina. She again served as a North Carolina assistant public defender in Greensboro, then in Chapel Hill and Hillsborough, and was finally appointed as chief public defender in 2017. During her 32 years in the public defender system, Ms. Seahorn represented many people charged with sex offenses, murder, armed robbery, and other serious as well as minor felonies, trying numerous cases to verdict with good results by reduced charges and acquittals. Ms. Seahorn then worked with the North Carolina Indigent Defense Services, consulting with defense attorneys on sex crimes, and is also consulting privately. You can contact her at dubsandseahorn.com. Shannon Tucker obtained her law degree from the University of North Carolina School of Law. She has served Durham County as an assistant public defender for over 28 years, representing clients charged with serious felonies and homicides. As a young girl she dreamed of becoming an actress, an author, a psychiatrist, or a teacher and managed to find a career that utilizes all of these skills. She has appeared on Court TV, has successfully argued cases in the North Carolina Court of Appeals and the North Carolina Supreme Court, and has helped innumerable clients gain their freedom. She enjoys traveling with her family, gardening with her husband David, cheering on their daughter Carson at polo and field hockey, and curling up with a good book and their dog Tim.

Table of Contents:



Foreword



Preface



Acknowledgements



Part 1: Concept and Principles





What is Rule
Out?
Racism
The Warning
Burden Shifting
and Lesser Included Defenses by Richard S. Jaff
The Art and
Craft of Reasonable Doubts
Forensics and
Junk Science
Reasonable
Doubt and Law by Elliot Abrams



Part 2: Rule Out in Practice





Voir Dire
Opening
Statement by Shannon Tucker
Direct
Examination
Cross-Examination
Closing
Argument
Focus Groups by
Artemis Malekpour
Reasonable
Doubts in Sex Crime Cases by Susan Seahorn



Bibliography



About the Author and Contributors



Index