1. STEPS IN A TRIAL
Eliseo Lugo III

2. 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

3. 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

4. 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.

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

6. Bail and Equity Issues

7. 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

8. 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

9. 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.

10. 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

11. Plea Bargaining
90%
of all
convictions

12. 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?

13. 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?

14. 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

15. 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”

16. Length of Sentence: Pleas vs. Trials

17. 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

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

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

20. 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

21. 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

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

23. 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.

24. 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

25. 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

26. 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.

27. 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.

28. 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.

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

30. 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

31. 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

32. 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)

33. 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.

34. 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

35. 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

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

37. Objections
Offer of Proof
Timely
Specific
Objection
Sustain
Overrule

38. 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.”

39. 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.”

40. 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.”

41. 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.”

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

43. 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.

44. 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.”

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

46. 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

47. 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

48. 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

49. 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

50. Jury deliberation and voting Pronouncement of the verdict
Steps in a Jury Trial
Jury deliberation and voting
Pronouncement of the verdict
Judicial sentencing

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

52. Criteria of Admissibility of Evidence
Relevancy
Probativeness
Nonprejudicial
Reliability
Legally obtained

53. 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

54. 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

55. 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.

56. 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

57. 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.

58. 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.