Eliseo Lugo III

 Voir dire prospective jurors  Impanel the jury  Plaintiff’s opening statement  Defendant’s opening  Plaintiff’s case in chief  Plaintiff rests  Defendant’s motion

 Defendant’s case  Defendant Rest  Plaintiff’s rebuttal  Defendant’s surrebuttal  Renewal of motion for directed verdict  Closing Arguments  Judge’s charge to the jury  Jury deliberations, jury verdict, and polling

Importance of Pretrial Procedures Pretrial procedures are important components of the justice process because the great majority of all criminal cases are resolved informally at this stage and never come before the courts.

 Arrest  Booking  Initial Appearance  Grand Jury / Preliminary hearing - indictment - information  Arraignment  Pretrial Motions

Bail and Equity Issues

Holding a defendant for trial based on a judge’s finding that, if the defendant were released on bail, he or she would endanger the safety of any other person and/or the community or would flee

Preventative Detention: The Controversy Based on the notion that certain offenders will commit crime while on release Society has the right to be protected from future criminal acts It is a form of punishment which is not based on a guilty verdict and is based on something that MIGHT happen FOR AGAINST

United States v. Salerno (1987) The Supreme Court held that the preventive detention act had a legitimate and compelling regulatory purpose and did not violate the due process clause. Preventative detention was not designed as a punishment, but to prevent danger to the community which is a legitimate societal goal.

Plea Bargaining and Trials Case disposition Relationships involved Legal issues Pros and Cons Reform Case disposition Juries Trial process Evaluating the jury system Appeals Pleas Trials

Plea Bargaining 90% of all convictions

 Defined: a defendant’s agreement to plead guilty with the reasonable expectation of receiving some consideration from the state for doing so  Blackledge v. Allison (1976) – Supreme Court acknowledges mutual advantage Trial or Plea – which is best bet for a given defendant?

 Players involved  Incentives involved  Tactics  Remember Going Rate  Implicit vs. Explicit Plea Bargaining  Slow Plea – more likely as time goes on Strength of each side’s case: bluff or real deal?

 Voluntary – Boykin v. Alabama (1969)  Prosecutors – Santobello v. New York (1971)  Defendants – Ricketts v. Adamson (1987)  Threats - Bordenkircher v. Hayes (1978) Supreme Court on Plea Bargains

Pros and Cons of Plea Bargaining FImproves efficiency FReduces costs FAllows concentration on serious cases FAvoids pretrial detention and delays FIndividualized justice Encourages defendants to waive constitutional rights Results in lesser sentences and sentencing disparity May coerce innocent to plead guilty Low visibility Breeds disrespect for the law – a “game show” Pro Con

Length of Sentence: Pleas vs. Trials

Reforming Plea Bargaining Make it more: –visible –understandable –fair Create specific guidelines. Require judicial supervision over the process. Place limits on the process. Alaska ban 1975 – no great effects California 1982 – moves to preliminary stage

Only 5% of all cases are heard by a jury trial. TRIALS

 Each juror must swear or affirm that he/she will be fair and impartial in rendering a verdict

Jury pool of 200 to 1,000 citizens drawn each month from source list Jury pool of 200 to 1,000 citizens drawn each month from source list Panel30Panel30 Selected for jury 14Selected 14 Jury14Jury14 Challenged or not used 16Challenged 16 VoirDire Jury Selection Process Jurors that are not selected are returned to the pool for possible use on another jury.

Jury pool of 200 to 1,000 citizens drawn each month from source list Jury pool of 200 to 1,000 citizens drawn each month from source list Panel30Panel30 Selected for jury 14Selected 14 Jury14Jury14 Challenged or not used 16Challenged 16 VoirDire Jury Selection Process Return to jury pool Guilty plea or dismissed Trial

 Prevent government oppression  Determine guilt (facts)  Represent community  Serve as buffer  Educate citizens  Symbolize rule of law

Jury pool of 200 to 1,000 citizens drawn each month from source list Jury pool of 200 to 1,000 citizens drawn each month from source list Jury Selection Process Most jurisdictions use a number of sources for the names of potential jurors. The lists are sorted and duplicates are discarded. The jury pool is then selected on a random basis. The term that jury pools serve vary from jurisdiction to jurisdiction.

Jury pool of 200 to 1,000 citizens drawn each month from source list Jury pool of 200 to 1,000 citizens drawn each month from source list Panel30Panel30 Jury Selection Process A panel of potential jurors is randomly selected for each jury trial. The size of the panel may be increased depending on the possible difficulty of selecting a qualified jury.

Panel30Panel30 Selected for jury 14Selected 14Challenged or not used 16Challenged 16 VoirDire The voir dire is a process of selecting potential jurors. Both prosecution and defense may object to jurors defense may object to jurors and challenge them and challenge them peremptorily or for cause. peremptorily or for cause.

Challenge for Cause Purpose is to determine if someone is unfit to serve. Prosecution and defense want someone who is sympathetic to their side of the case. Judge and both sides ask questions. Number of these challenges is unlimited.

Peremptory Challenges Enable attorneys to excuse jurors for no particular reason or for undisclosed reasons. Number of challenges are limited. Can’t be used to eliminate jurors on the basis of race, ethnicity or gender.

 Purpose  Components  Introduction (your honor, members of the jury)  The evidence will show that _________, the defendant, is liable to __________ the plaintiff.  Theme (This is a case of…)  Background facts (humanize your client)  Story: The evidence will show that…  Outline the key facts from your clients perspective; plant the seeds  Conclusion: At the conclusion of this trial, I will return and ask you based on the evidence to find a verdict in favor of the plaintiff, ______, because the evidence will show that the Defendant had a duty to …; Defendant breached that duty by… and as a result, the plaintiff, ___________ was injured.

 Similar to the Plaintiff’s opening statement  Present the facts and evidence  In light most favorable to the defense.

 Direct Examination  Have each witness sworn in  Form of questions (not leading)  Foundation to show personal knowledge  Objections: Must be timely and specific  Documentary Evidence  Court Rulings  Exclude Facts- Sustain objection  Admit into evidence- Overrule objections  Motion to Strike  Demonstrative or Real Evidence

 Cross-examination of every witness  Scope- limited to Direct  Purpose  Use of leading questions on cross-examination  Impeachment  Re-direct (purpose and scope-not mentioned earlier that was brought up in the defendants cross- examination)  Re-cross (purpose and scope) limited to Cross

 Before resting, make sure that you have established a prima facie case. (if not, you may still take a voluntary dismissal in N.C. at any time before you rest pursuant to Rule 41(a) of the North Carolina Rules of Civ. Pro. (Too late in Fed. Court, without permission)  Confirm that all documents and real evidence have been received into evidence. If relevant, ask that certain matters be judicially notice (ART.II)

 Directed verdict  Judgment as a matter of law (not in the presence of the jury)  Basis:  insufficiency of the evidence/ insufficient probata  Burden of proof (production)  Court should consider the evidence in the light most favorable to the non-moving party; court should not weigh credibility of witnesses; and all inferences must be drawn in favor of the non-moving party.

 Direct Examination  Have each witness sworn in  Form of questions (not leading)  Foundation to show personal knowledge  Objections: Must be timely and specific  Documentary Evidence  Court Rulings  Exclude Facts- Sustain objection  Admit into evidence- Overrule objections  Motion to Strike  Demonstrative or Real Evidence

 Defendant Rest  Plaintiff’s Rebuttal ( if necessary )  Defendant’s Surrebuttal ( if necessary )  Renewal of motion for directed verdict  Closing Arguments  Judge’s Charge to the Jury  Jury deliberations, Jury Verdict, and Polling the Jury

 Objection  Competency  Personal Knowledge  Form of Questions  Relevancy  Prejudicial  Impeachment  Hearsay  exceptions

 Offer of Proof  Timely  Specific  Objection  Sustain  Overrule

 Ability to understand the obligation to tell the truth  Ability to communicate  Perception of relevant fact  Seen, heard, smelled, touched, or tasted a relevant fact  Ability to remember and recall Form of objection: “Your honor, I object to the testimony of this witness because he/she is incompetent to testify.”

 Knowledge of the facts about which he/she testifies Form of Objection: “your honor, I object because the witness does not have personal knowledge of the facts.”

 Use of Leading questions forbidden during direct examination  Leading questions may be used during cross- examination. Form of Objection: “Your honor I object because counsel is using a leading question during direct examination.”

 Some tendancy to prove a fact in issue at the trial. Form of Objection: “Your honor, I object because the offer of proof is irrelevant.”

 Probative value not outweighed by prejudicial effect Form of Objection: “Your honor, I object because the offer of proof is highly prejudicial.”

 The credibility of a witness may be impeached by showing:  That the witness is biased toward or prejudiced against a party  That the witness is an untruthful person  That the witness has a prior criminal record; or  That the witness made a prior statement that is inconsistent with his/her present court testimony. Form of objection: “Your honor, I object to impeachment.

 A witness may not testify concerning verbal or written statements of a person made outside of the court-room if the out-of-court statements are offered at trial for the truth of the matter asserted, unless the statement falls within an exception to the hearsay rule Form of objection: “Your honor, I object because of the hearsay rule.”

 Admissions offered against the adverse party.  Excited utterances  Business records exception  Former testimony  Dying declarations

The Right to Confront Witnesses Provides for a control over hearsay evidence and allows the veracity of witnesses to be challenged Helps the accused in preparation of a defense to know who will present testimony for the state Does not necessarily mean a face-to-face confrontation

Right to a Jury Trial This right is guaranteed for all serious crime - not all crime Constitution does not require a 12 person jury, smaller juries may be permitted The Sixth and Fourteenth Amendments do not mandate a unanimous verdict in all cases

Right to a Speedy Trial Improve the credibility of the trial Reduce defendant anxiety Avoid pretrial publicity Avoid adverse effects on the ability to present a defense Purposes for this guarantee include:

Time Limits for Speedy Trials Constitution does not specify a time limit Most states have adopted statutes which define reasonable limits Federal Speedy Trial Act of 1974 –provides time limits for various stages of the adjudication process –provision for fining defense counsels causing delays

Steps in a Jury Trial Jury deliberation and votingPronouncement of the verdict Judicial sentencing

Criminal Evidence Testimonial evidence from witnesses Real or physical evidence Circumstantial or indirect evidence

Criteria of Admissibility of Evidence Relevancy Probativeness Nonprejudicial Reliability Legally obtained

Instructions to the Jury Judge’s responsibility Provides jury with information about the law –elements of the crime –evidence required for proof –burden of proof required Improper instructions are often the basis for an appeal

The Verdict Guilty –judge will normally set a date for sentencing and ask for a presentence investigation report Not guilty –defendant is free to leave Hung jury –case may be retried

Proof Beyond a Reasonable Doubt: What Does it Mean? A doubt of 7 1/2 on a scale of 10. A doubt based on reason and common sense. Not frivolous or fanciful doubt. Substantial doubt. Persuasion to a moral certainty. A doubt that would cause prudent persons to hesitate before acting in a matter of importance to themselves.

Sentencing Normally after review of a Presentence Investigation Report in felony cases Rules applying to discretionary decisions by judges regarding the kind and severity of sentence vary among jurisdictions One of the most important and visible decisions by the judge

Judges v. Juries Judges and juries do not always evaluate evidence in the same way. Juries often look at the nature of the victim, the act (e.g. self defense) and whether the defendant took the stand.

Appeals Most are unsuccessful. They are based on some “legal” contention. Issues tend to deal with the introduction and sufficiency of evidence and jury instructions. Homicides and other serious crimes against persons account for more than 50% of all appeals. Most appeals arise from cases in which the sentence is five years or less.