STEPS IN A TRIAL Eliseo Lugo III

Outline of all steps Voir dire prospective jurors Impanel the jury Plaintiff’s opening statement Defendant’s opening Plaintiff’s case in chief Plaintiff rests Defendant’s motion

Outline continued 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.

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

Bail and Equity Issues

Preventive Detention 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 FOR AGAINST 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

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

Plea Bargaining 90% of all convictions

Plea Bargaining 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?

Relationships in Plea Bargaining 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?

Legal Issues in Plea Bargaining 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 Pro Con Improves efficiency Reduces costs Allows concentration on serious cases Avoids pretrial detention and delays Individualized 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”

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

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

Voir Dire / Impanel the jury Each juror must swear or affirm that he/she will be fair and impartial in rendering a verdict

Jury Selection Process Jury pool of 200 to 1,000 citizens drawn each month from source list Jurors that are not selected are returned to the pool for possible use on another jury. Panel 30 Voir Dire Selected for jury 14 Challenged or not used 16 Jury 14

Jury Selection Process Jury pool of 200 to 1,000 citizens drawn each month from source list Return to jury pool Panel 30 Guilty plea or dismissed Voir Dire Selected for jury 14 Challenged or not used 16 Guilty plea or dismissed Jury 14 Trial

VITAL FUNCTIONS OF THE JURY Prevent government oppression Determine guilt (facts) Represent community Serve as buffer Educate citizens Symbolize rule of law

Jury Selection Process 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 Selection Process Jury pool of 200 to 1,000 citizens drawn each month from source list 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. Panel 30

The voir dire is a process of selecting potential jurors. Both prosecution and defense may object to jurors and challenge them peremptorily or for cause. Panel 30 Voir Dire Selected for jury 14 Challenged or not used 16

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.

Plaintiff’s Opening Statement 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.

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

Plaintiff’s Case in Chief 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

Plaintiff’s Case in Chief, cont’d 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

Plaintiff Rests 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)

Defendant’s Motions 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 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

Remaining Steps 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

Rules of Evidence Objection Competency Personal Knowledge Form of Questions Relevancy Prejudicial Impeachment Hearsay exceptions

Objections Offer of Proof Timely Specific Objection Sustain Overrule

Competency Requirments 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.”

Personal Knowledge 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.”

Form of Questions 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.”

Relevancy 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.”

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

Impeachment 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.

Hearsay 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.”

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

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

Jury deliberation and voting Pronouncement of the verdict Steps in a Jury Trial Jury deliberation and voting Pronouncement 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 Not guilty Hung jury 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.