Professional Documents
Culture Documents
Foundations of A Free Society, English
Foundations of A Free Society, English
Weeks 17, 18 and 19: Case File Introduction; Case Preparation; and Competition
March 29-April 16, 2010
Week 17: Case Preparation.....................................................................................185
Week 18: Case Preparation and Competition Preliminary Rounds
Week 19: Competition
from Courtroom for the 21st Century, Courtrooms for Lehigh County Court of Common Pleas, Courtroom 3
Courtroom Layout
A. Civil Cases
Civil lawsuits may be brought for breach ofcontract, personal injuries, defamation,
or violations of civil rights. The participants may be individuals, businesses, or
government agencies. The two parties in a civil case are referred to as the "plaintiff'
and the "defendant"; the plaintiffis the person bringing the lawsuit and the defendant
is the person being sued.
The goal of civil litigation is to determine whether the defendant violated the law
and what the appropriate consequence of that violation should be.
Steven Lubet,
Mock Trials: Preparing, Presenting and Winning
Lubet, Steven, Jill Trumbull-Harris, Mock Trials: Preparing, Presenting, and Winning Your Case (NITA 2001).
Your
NITA No
2001,
2001 by the National Institute for Trial Advocacy Used
by Case,
permission
partISBN
of this 1-55681-713-4
work may be
1. Cause of action
The legal basis for a civil lawsuit is called a "cause of action." Each cause of action
consists of "elements" that the plaintiff must prove in order to prevail. For example,
the elements of a cause of action for "negligence" are duty, breach of duty, proximate
cause, and damages.
When a plaintiff brings a civil lawsuit against a defendant, she files a court
document called a "complaint" that identifies the cause(s) of action and alleges the
specific acts of the defendant that violated the law. So, if a plaintiff sued a defendant
for negligence, she would allege that the defendant had a duty, that he breached it,
that his breach was the proximate cause of her injuries, and that she sustained
damages as a result.
Causes of action are often divided into separate "counts." For example, the
complaint in an automobile accident case might include one count for personal injury
and another for property damage. In a contract case, the plaintiffmight bring one count
claiming that certain goods were not delivered on time and another claiming that they
were damaged when they were finally received.
3. Damages
Payment of damages can be awarded for a plaintiffs financial loss (including
lawyers' fees, if appropriate), as well as for physical or mental suffering resulting from
the defendant's conduct. There are two types ofdamages in civil cases: "compensatory"
and "punitive." Compensatory damages cover the actual loss and suffering of the
plaintiff. Punitive damages are awarded above and beyond compensatory damages to
punish the defendant for his wrongdoing and to ensure that the conduct will not be
repeated.
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B.
Criminal Cases
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C. Case Law
In addition to understanding the statutes in your case, you should also look to the
case law to determine how those laws have been interpreted and applied by courts. In
mock trials, relevant case law is provided to the participants along with the case
materials. Just like a legislative enactment, case law is binding on the parties insofar
as it is used to determine the meaning of a law. When basing an argument on case law,
however, it is important that you argue how the facts of your case are more easily
compared to, than distinguished from, the original case.
Examples:
Burglary, Murder
Titles of Parties:
Burden of Proof:
Possible Verdicts:
Common Remedy:
Payment of Damages
Prison Sentence
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9
C. Closing Arguments
1. Plaintiff/Prosecution (some portion or all)
2. DefendantlDefense
3. Rebuttal by Plaintiff/Prosecution (if time remains)
D. Jury Deliberations (if a jury is the fact-finder)
E. Verdict Announcement
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10
Court
Clerk
Presiding JUdge
Witness
Stand
Jury
Box
Defendant/Defense
Plaintiff/Prosecution
Spectator Area
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Stipulations. Some mock trial case files also include a list of "stipulations." A
stipulation is an agreement between the parties. Stipulations may set forth important
facts not included elsewhere in the case file or they may set forth testimony or exhibits
to be automatically admitted into evidence. You are bound by the stipulations listed in
your case file; you cannot ignore or contest them, no matter how damaging they are to
your case. Thus, you should be constantly aware ofstipulations as you prepare for trial.
Witness Statements. In mock trials, witness statements compose the bulk of the
case; they include the facts, favorable and unfavorable, that each witness may testify
to during trial. In most instances, witness statements represent the summarized prior
sworn testimony of the witnesses and are referred to as "affidavits." Witness
statements may also be in the form of a "deposition" transcript. A deposition is a formal
meeting that includes the counsel for both parties and a testifying witness. During a
deposition, the witness is asked questions under oath by each side and the testimony
is recorded by a court reporter.
Whatever their form, witness statements include (or sometimes notably fail to
include) the facts that the parties for both sides will attempt to establish at trial.
Exhibits. Mock trial exhibits are usually documents, though they can also reference
tangible items that you can bring to your trial to enter as evidence. For instance, your
case might include a picture of the alleged murder weapon or it could simply list the
weapon as an exhibit and indicate that a facsimile of the weapon is an acceptable
exhibit at trial.
Statutes and Case Law. Your case file should also contain the statutes and case law
that are applicable to your case. As discussed above, the statutes and case law in your
case file provide an outline of the legal arguments both sides may make at trial.
Although you are only likely to discuss the law during your opening statement and
closing argument at trial (and, even then, sparingly), they are an integral part ofyour
trial preparation.
Jury Instructions and Verdict Forms. Jury instructions, which provide summaries
of the relevant statutes and case law (among other things), may also be included in
your case file. When provided, you should use the jury instructions as a guide to
understanding the provided statutes and case law. The same goes for jury verdict
forms, when included.
Rules ofEvidence, Procedure, and Ethics. The final additions to your case file are
the rules of evidence to be used in your trial and, in some cases, rules of procedure and
ethics you must also follow. As with the statutes and case law, these rules will guide
your trial preparation.
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Acquittal
The legal determination that an accused person is not guilty of the charged crime.
Admissible
Evidence which is allowed to be considered by the trier of fact in a hearing, trial, or other
proceeding.
,
Adversary System
A legal system, such as the Anglo-American legal system, in which the parties take the
lead, opposing each other, to present evidence and argument to an independent decisionmaker.
()
Affidavit
A voluntary declaration of facts written down, signed and sworn to before an officer
authorized to administer oaths, such as a notary public.
Affirm
To confirm a judgment on appeal.
Appeal
A proceeding to have a decision reviewed by a higher authority; such as the submission
of a lower court's decision to a higher court for review and possible reversal
Appellate
Relating to an appeal.
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Arraignment
An early step in a criminal prosecution when the defendant is brought before the court to
hear the charges and to enter a plea.
;
Arrest
Taking or keeping a person in custody by legal authority, to bring that person before a
court.
;
Authentication
Proving that something (usually a document) is true or genuine so that it may be admitted
as evidence.
()
Bail or Bond
Money or property posted to guarantee a defendants appearance at future court
proceedings, required as a condition of pretrial release.
Bailiff
A court officer who maintains order during court proceedings.
,
Bench
1. The raised area occupied by the judge in a courtroom.
2. The court in its official capacity.
3. Judges collectively.
c
, c
Bench Trial
A trial in which the judge finds the facts. In criminal cases, the prosecutor and defendant
must both agree that a jury will not be used.
c ( )
Best Evidence
The evidentiary rule that a party must prove the contents of a writing (or recording or
photograph) by producing the original (or a reliable copy). If the original is unavailable,
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secondary evidence such as testimony of a witness familiar with the document may
be admitted.
()
Burden of Proof
A partys duty to prove a disputed assertion or charge.
Certification
A statement by a person in authority or in custody of a document that a copy is authentic.
Clerk of Court
A court officer responsible for filing papers, issuing process, and keeping records of court
proceedings.
Closing Argument
A lawyers final statement to the judge or jury before deliberation begins, in which the
lawyer summarizes the evidence and argues that the judge or jury should apply the law in
his or her client's favor.
Complaint
A formal charge accusing a person of a crime, usually signed by a law enforcement
officer.
Confinement
Incarceration of a defendant, before or after trial.
Court
The place where trials are conducted. The term may also be used to refer to a judge.
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Court Reporter
A person who records testimony, stenographically or by electronic or other means, and,
when requested, prepares a transcript of the proceedings.
Cross Examination
Questioning of a witness by the party opposed to the party who called the witness to
testify.
Decision
A determination made by a judge or jury after consideration of the facts and the law.
,
Defend
To represent and advise a person accused of a crime.
,
Defendant
A person accused in a criminal proceeding.
,
Defense Counsel (Defense Attorney)
A lawyer who represents a defendant in a criminal case.
Detention Hearing (Bail Hearing)
A hearing held after a persons initial appearance before a judge to determine whether the
defendant will be detained or released pending trial.
Direct Examination
The first questioning of a witness at a hearing or trial by the party who called the witness
to testify.
,
Discovery
Disclosure of evidence known to one party to the other party.
, ,
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Dismissal
Termination of the case.
,
District Judge
A judge in a federal or state judicial district.
Docket
The formal index in which a judge or court clerk briefly notes all the proceedings and
filings in a court case.
Evidence
Testimony, documents, or tangible objects that tend to prove or disprove the existence of
an alleged fact.
,
Exhibit
1. A document, record, or other tangible object formally introduced as evidence in court.
2. A document attached to and made part of a document filed in court.
Expert Witness
A witness qualified by expertise or education to give testimony of matters outside the
experience or knowledge of an ordinary person.
Federal Defender
A lawyer employed by the federal government who is assigned to represent criminal
defendants who cannot afford to employ an attorney.
, ( )
Felony
A serious crime usually punishable by incarceration for more than one year or by death.
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Foreperson; Foreman
The juror, elected by the jury, who presides over the jury during deliberations and
announces the jury verdict in court.
Foundation
Evidence or testimony that establishes the admissibility of other evidence.
,
Grand Jury
A body of (often 23) people who are chosen to sit regularly for at least a month -- and
sometimes a year. The Grand Jury meets in proceedings where no lawyer other than the
prosecutor is present and decides whether probable cause exists to issue indictments.
Hearsay
A statement not made by a witness while testifying at the trial or hearing offered in
evidence to prove the truth of the matter asserted. Hearsay testimony is generally
inadmissible under the rules of evidence. The rule is subject to many exceptions.
Impeachment of a Witness
Discrediting a witness by evidence of a contradictory statement or by evidence that the
witness has been convicted of a serious criminal offense.
Incarceration
Confinement of a person in jail.
,
Indictment
A formal written accusation of a crime, made by a grand jury and presented to a court for
prosecution against the accused person.
( )
Information
A formal criminal charge made by a prosecutor without a grand jury indictment.
()
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Infraction
A violation of a law which is not punishable by incarceration.
Initial Appearance
A criminal defendants first appearance in court to hear the charges read, to be advised of
his or her rights, and to have bail determined. The initial appearance is usually required
to occur without undue delay, usually less than 48 hours after arrest.
Issue
A point in dispute between two or more parties.
,
Jail
A local government's detention facility
1. where persons awaiting trial are confined
2. where persons convicted of misdemeanors are confined ,
Judge
A public official appointed or elected to hear and decide legal matters in court.
Jurisdiction
1. A court's power to decide a case or issue a decree.
2. A geographic area within which political or judicial authority may be exercised.
Jury
A group of persons selected according to law and given the power to decide questions of
fact and return a verdict in the case submitted to them.
Jury box
The enclosed part of a courtroom where the jury sits.
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Jury Instructions
Statements of the law prepared by the court and attorneys which are read to the jury at the
close of the case.
Jury Selection
The process at the start of a trial by which the jury is selected. The judge presides and the
attorneys for the parties participate.
Jury Trial
A trial in which the jury decides the facts.
Law
The set of rules or principles governing a legal system, which may include legislation,
rules, judicial precedents, and accepted legal principles.
,
Magistrate Judge
A federal judicial officer who hears civil and criminal pretrial matters and who may
conduct civil trials or criminal misdemeanor trials.
-
Misdemeanor
A crime less serious than a felony, usually punishable by a fine and short confinement.
Mistrial
A trial in which the judge determines that a procedural error or serious misconduct in the
trial prevents a valid decision on the merits.
, , , (
)
Motion
A request by an attorney that the court take specific action.
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Motion in Limine
A request before trial that certain evidence not be used at trial.
Motion to Dismiss
A request that the court dismiss the case because of a legal defect.
Motion to Strike
A partys request that the court remove material from the case record.
Objection
A formal statement opposing something occurring in court for the the judge's immediate
decision.
Opening Statement
A lawyers statement at the start of trial giving the trier of fact a preview of the facts of
the case.
Opinion
1. A courts written statement explaining its decision.
2. A witnesss statement of a conclusion drawn from facts, as opposed to a statement of
what the witness saw or heard.
,
Overrule
To reject an objection or motion.
Party
A participant in a case. In a criminal case, the parties are the government and the
defendant.
Petit Jury
A jury in the trial of a specific case, usually consisting of 6 or 12 persons.
()
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Petty Offense
A minor or insignificant crime punished by a fine but usually without a term of
incarceration.
Plea
An accused persons formal response of guilty or not guilty to a criminal charge.
Plea Bargain; Plea Negotiation
An agreement between a prosecutor and a defense attorney whereby the defendant agrees
to plead guilty and the prosecutor agrees to dismiss some charges or to recommend a
reduced sentence.
Pre Trial Release
The release of a defendant pending trial.
-
Pretrial
The period from the time a case is commenced until the trial.
Prison
A state or federal facility for confinement for those convicted for felonies.
,
Probation
A criminal sentence that releases a convicted person into the community under conditions
and supervision rather than sending the person to jail or prison.
Probation Officer
A government officer who supervises the conduct of a person on probation.
22
Procedure
The method of conducting a criminal prosecution.
Prosecute
To begin and continue a criminal action against a person accused of a crime.
Prosecutor
The attorney who represents the government in criminal cases.
,
Public Defender
A lawyer employed by the state, county or city government assigned to represent criminal
defendants who cannot afford to employ an attorney.
, (, )
Reasonable Doubt
A rational doubt that prevents a person from being firmly convinced of a defendants
guilt.
Record
The official documents in a case, which include filed papers, all exhibits, and a verbatim
transcript of the trial and hearings.
Redirect Examination
A second direct examination, after cross examination, by the attorney who called the
witness to testify.
Regulation
A rule or order issued by an administrative agency.
,
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Remand
The action of a higher court returning a case to a lower court.
Reverse
To completely change the result of a case on appeal.
,
Rules
Standards adopted by courts.
,
Rules of Appellate Procedure
Standards governing appeals from lower courts to higher courts.
Rules of Civil Procedure
Standards governing civil cases disputes between persons.
Rules of Criminal Procedure
Standards governing criminal court proceedings.
Rules of Evidence
Standards governing the admissibility of evidence at trials.
,
Seizure
Taking possession of a person or property by legal authority.
;
Sentence
The punishment imposed on a defendant after trial or a plea of guilty.
,
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Sidebar Conference
A discussion among the judge and attorneys which the jury does not hear, usually
discussing legal issues, such as admissibility of evidence.
Statute
A law passed by a legislative body.
Subpoena
A court order compelling a person to appear before a court.
Sustain
A decision by a court agreeing with a position of a party or lower court.
Testify
To make a statement under oath in a trial.
Testimony
Statements made under oath by a witness at a trial or in an affidavit or deposition
( )
Transcript
A verbatim statement of ourt proceedings, testimony of witnesses, including objections
and decisions.
,
Trial
The judicial proceeding in which evidence is presented and decisions are made, in which
all parties and their attorneys participate.
Trial Judge
The judge who conducts the trial.
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Trial Jury
A jury in the trial of a specific case, usually consisting of 6 or 12 persons.
Trier of Fact (Fact-Finder)
The person or persons who hear witnesses testify and review exhibits to decide a factual
issue. The trier of fact is a judge in a bench trial and a jury in a jury trial.
,
Uphold
A decision by a court agreeing with the position of a party or lower court.
,
Verdict
The jurys decision on factual issues in a case.
( )
Voir Dire
1. Questions a judge or lawyer asks a prospective juror in jury selection to decide
whether the person is qualified and suitable to serve on a jury.
2. Questions to test the competence of a witness or of evidence.
Warrant
A court order directing or authorizing someone to take action, often referring to a courts
order directing an officer to make an arrest, a search, or a seizure of evidence.
Witness
A person who takes an oath and testifies to specific facts at a trial or hearing, or in an
affidavit.
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27
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without a warrant for misdemeanors if they have reasonable cause to believe a theft offense or
offense of violence has been committed and that the suspect committed it.
The law permits arrests without warrants under the foregoing circumstances because in
many cases the suspect would flee before a complaint could be filed and a warrant issued.
In any case in which an arrest without a warrant is proper, an officer can issue a summons
in lieu of arrest. In traffic cases, or minor misdemeanor cases, the officer can issue a citation in lieu
of arrest. (A minor misdemeanor is an offense punishable only by a fine not exceeding $100.) A
citation (a traffic ticket is an example) is a form of combined complaint and summons. As a practical
matter, a summons or citation in lieu of arrest is usually issued where the offense is relatively
minor, the suspect is not disorderly, the suspect does not appear dangerous to himself or others, and
it is reasonable to assume that the suspect will come to court when required.
When a person is arrested, or served a summons or citation in lieu of arrest, the arresting
officer must file a complaint without delay. Similarly, where a person makes a citizen's arrest, that
person must file a complaint without delay. In citation cases, the citation itself is filed because it
includes the complaint. Filing the complaint after the arrest (or service of the summons) is
necessary because it formally begins the criminal case in the court.
Bail
When a person 18 or older is arrested, he is entitled to be free pending trial provided he can
satisfy the court that he will come to all court hearings. (In Ohio, a person charged with an offense
punishable by death is not entitled to bail in certain limited circumstances. Further, minors are not
entitled to bail. See Part X at "Constitutional Rights of Minors.") An arrested person must be given
the opportunity to be free on bail as soon as possible. Different guarantees of appearance in court
may be required. "Personal recognizance" is the defendant's written promise to appear. An
"unsecured appearance bond" is defendant's promise to appear, coupled with his personal, unsecured
promise to pay a certain amount of money if he does not appear. A "ten percent bond" is the deposit
of ten percent of the face amount of the required bond plus a written promise to forfeit the deposit
and the remainder of the bond if defendant fails to appear. For example, if the bond is $2,000,
defendant would deposit $200 and promise to forfeit the entire $2,000 if he fails to appear. If
defendant appeared throughout the case, 90 percent of the $200 he deposited, or $180 would be
returned to him.
Bail may be money or property deposited as security for defendant's appearance in court.
Bail can also be in the form of a kind of insurance policy, called a "bail bond." The amount of the
appearance bond or bail for any given misdemeanor is usually fixed by the court through a published
bail schedule. In such cases, bail can be arranged at the police station without a hearing before a
judge. In felony cases, the accused is usually held until the initial appearance, at which time the
conditions of his release pending trial are set by the judge. These conditions may include personal
recognizance, unsecured appearance bond, or bail plus any other conditions the judge believes are
required to insure defendant's appearance in court.
It is important to remember that bail is not a substitute for trial. It was formerly true that
some courts, particularly in traffic cases, allowed bail forfeitures and treated them the same as a
plea of guilty, waiver of trial, and payment of fine. The Supreme Court of Ohio's Rules of
Superintendence prohibit this practice.
If a person does not appear as required by his personal recognizance, bond, or bail, he forfeits
any deposit, is liable on any promise to pay bail, and is subject to re-arrest and detention until trial.
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Failure to appear on a personal recognizance not only subjects the accused to re-arrest and
detention, but is a separate offense in itself.
Preliminary Hearing in Felony Cases
When a person is arrested for a felony, he must be given a preliminary hearing without
delay. This hearing is held before a municipal court or county court judge. It is not a trial. Its
purpose is to look at the evidence against the accused, and determine if it is sufficient to warrant
further proceedings. If there is no probable cause to believe any offense was committed, or no
probable cause to believe the accused committed the offense (even though an offense was committed
by someone), then the case against the accused will be dismissed. If the judge finds probable cause
to believe both that a felony was committed and that the accused committed it, she must "bind over
the accused" (transfer the accused's case) to the grand jury for further action. If the judge finds the
evidence supports only a misdemeanor charge, she will retain the case for trial in her court. If the
judge finds there is insufficient evidence of any offense, she will dismiss the charge. The accused can
waive preliminary hearing, in which case he is automatically bound over to the grand jury.
Grand Jury Action on Bindovers
When an accused felon is bound over to the grand jury, the evidence against him is examined
by the grand jury. If the grand jury finds no probable cause to believe a crime was committed or, if
one was committed, that the accused is not the guilty party, then it will return a "no bill." The case
is then dismissed. If at least 12 of the grand jury members find probable cause to believe that a
crime was committed and that the accused committed it, then the grand jury will return a "true bill."
That is, it will return a formal accusation or indictment against the accused. The grand jury may
indict for any offense the evidence warrants, regardless of the offense for which the accused was
bound over. Even though he was bound over for a felony, the grand jury may indict for a
misdemeanor if the evidence supports only a misdemeanor offense. If an indictment is returned, the
accused will be held for trial before the common pleas court. If the indictment is for a misdemeanor,
the common pleas court may send the case back to the appropriate municipal or county court for
trial.
In essence, both the preliminary hearing and the grand jury are screening devices. Their
chief purpose is to help insure that no one is made to go through the agony of a trial for his life or
liberty except on a reasonably well-grounded accusation. Indictment by grand jury in serious
offenses is a right guaranteed by both the United States and the Ohio Constitutions. Preliminary
hearing is a right conferred by state statute.
Arraignment
After an accused is indicted, he is brought into court and arraigned. "Arraignment" consists
of reading the indictment to him or telling him the nature of the charge, making sure he has a copy
of the indictment, and asking him to enter or make a plea to the indictment. If the accused has no
attorney, the court must inform him that he has a right to an attorney, and a right to have an
attorney provided at state expense if he cannot afford one. He must also be informed of his right to
bail, and his right to remain silent. This "reading the rights" must also be done at other stages of the
proceedings against the accused, including at the time of his arrest and at the time of the
preliminary hearing.
There are several pleas an accused can make. He can plead "not guilty," which means that
he denies the charge against him. He can plead "not guilty by reason of insanity." This means that
while he may have done the criminal act, he is not subject to criminal liability because of a mental
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disease or mental defect. He can plead "no contest," which means that he does not admit guilt but
does admit the truth of the facts in the accusation (the no contest plea is sometimes used where the
accused realizes that a guilty plea could be used against him in a civil suit). Finally, he can plead
"guilty," which is an admission that he committed the crime, and has the same effect as a conviction
following a trial.
In felony cases, the court will not accept pleas of guilty or no contest unless it is satisfied that
the plea is voluntary, that the accused is aware of his rights, and that he fully understands the
possible consequences of his plea. In many cases, the accused may plead guilty to a lesser offense
than the one with which he is charged as part of a process called "plea bargaining." Plea bargaining
is often used in cases where the accused is doubtful about his chances of winning at trial, and hopes
to secure better treatment in return for saving the state the time and expense of a trial. If a guilty
plea is the result of a plea bargain, the agreement on which the plea is based must be filed with the
court or read into the transcript of the proceeding.
Arraignment is usually a separate proceeding in felony cases. In misdemeanor cases,
arraignment usually takes place at the beginning of the trial itself, rather than as a separate
proceeding before trial.
Pleadings and Motions in Criminal Cases
Unlike civil cases, the defendant in a criminal does not file a written pleading (an answer) in
response to the charge; the accused's oral plea to the charge serves the same function. However,
when the defendant intends to rely on the defense of "alibi," the defendant must file written notice
with the court. In essence, the defense of alibi states, "I wasn't there, so I couldn't have committed
the crime."
There are several requests, challenges, and objections which the accused can make by
motion. He can ask for a bill of particulars (a more detailed statement of the facts of the alleged
offense). He can object that the accusation against him does not properly charge an offense or is
otherwise defective. He can ask that the evidence against him be suppressed on the ground that it
was obtained in violation of his constitutional rights. Many other defenses, objections, or requests
can be made by motion.
Discovery in Criminal Cases
The Ohio Rules of Criminal Procedure allow discovery. Criminal discovery is more limited
than the discovery in civil cases. Criminal discovery involves various disclosures, including:
statements made by the defendant or a codefendant to the police; the defendant's prior criminal
record, if any; documents and other tangible evidence; reports of examinations and tests; the names
of witnesses; and other matters. The defense must initiate discovery by asking for one or more of the
disclosures allowed. When the defense makes such a request, the prosecution acquires a right to ask
for corresponding disclosure from the defense. Under certain circumstances the deposition of a
witness may be taken. The defendant's deposition cannot be taken because defendants cannot be
forced to give testimony. Defendants, and witnesses, have the constitutional right to avoid
compulsory self-incrimination.
Pretrial Conference
Pretrial conferences are used in criminal cases for plea negotiations and for basically the
same purposes as civil pretrial conferences.
th
The Law and You, 11 Edition, Ohio State Bar, Used By Permission
31
TRIAL
The main steps in a trial include: selection of a jury; opening statements by the attorneys;
presentation of witnesses and evidence (the complaining party always goes first, and the defense
next); closing arguments by the attorneys; instructions by the judge to the jury; and deliberation and
decision by the jury. Civil and criminal trials use essentially the same process.
The Trial as an Adversary Proceeding
A trial is an adversary proceeding, that is, a contest between opponents. The judge's
function is to control the contest as a neutral referee and to rule on questions of law. The jury's
function is to decide questions of fact. Each party presents evidence and argument. See "The Jury
and Non-jury Cases" below.
Burden and Degree of Proof
The fact that a trial is a contest dictates the order in which its events proceed. The initial
burden falls on the complaining partythe plaintiff in a civil case, or the state in a criminal case.
The complaining party must first establish that party's case. If the complaining party fails to
establish a case, there is nothing for the defendant to refute. The case ends there. On the other
hand, if the complaining party produces evidence which shows that he or she is entitled to the kind
of relief or judgment requested, the burden shifts to the defendant. The defendant must refute the
complaining party's evidence, explain it, place it in its proper light, or produce his or her own
evidence.
Different kinds of cases require different degrees of proof. In most civil cases, the winner is
the party whose position is supported by the preponderance of the evidence. This means that the
decision must be awarded to the party whose favorable evidence carries greater weight and
believability, even if the evidence is only a fraction more weighty and believable than the evidence
favoring the other party. Plaintiffs who are seeking an injunction or other extraordinary remedy
have a heavier burden of proof. They must establish their case by clear and convincing evidence.
This means that the decision must go against them even if their position is established by a
preponderance of the evidence.
In a criminal case, the state must prove the defendant's guilt beyond a reasonable doubt.
This means that even if a preponderance of the evidence favors the state, and even if the state's
evidence is clear and convincing, the decision must be awarded to the defendant if a reasonable
doubt of the defendant's guilt remains.
Jury and Non-jury Cases
While the right to trial by jury applies in many situations, the right does not apply in all
situations. Further, even where there is a right to jury trial, a jury must be requested in most cases.
(The jury which actually hears cases is a "petit" (or "petty") jury. The grand jury does not hear cases;
it determines probable cause and issues indictments.)
Persons accused of "minor offenses" (offenses where the maximum penalty is a fine not
exceeding $100) are not entitled to a jury trial. Otherwise, juries may be used, but are not
automatically provided except in criminal cases involving serious offenses. "Serious offenses" include
all felonies and those misdemeanors punishable by more than six months' imprisonment. Even in
serious offense cases, the right to a jury can be waived by the defendant. In all other criminal cases
the defendant is given a jury trial only if he requests it in writing in advance of the trial. Similarly,
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juries are not provided in civil cases unless one of the parties makes a written request for a jury in
advance of the trial.
When a civil or criminal case is tried without a jury, it is tried to the judge alone. In capital
casescriminal cases in which death is a potential penaltya three-judge panel tries the case if a jury
is waived. When a criminal case is tried to a jury, it consists of 12 jurors in felony cases and eight
jurors in misdemeanor cases. In most civil cases the jury usually consists of eight members,
although the parties can agree to a lesser number. In Ohio, when a person's property is
appropriated for a public purpose (under the government's right of eminent domain), he is entitled to
have his compensation determined by a jury of 12, but he can agree to a lesser number of jurors.
The Start of the Trial
Court is opened by the bailiff, a court official who acts as an aid to the judge. Everyone will
be asked to stand when the judge enters, and to be seated after the judge is seated. The judge then
calls the case by name (Brown v. Green; State v. Blue; etc.) and asks the attorneys for each side if
they are ready to proceed. In jury trials, the first step is the selection of the jurors.
Choosing the Jury
The process of choosing jurors is called "voir dire." Potential jurors are interviewed in open
court by each of the attorneys. There are two ways of rejecting potential jurors: "challenge for
cause" and "peremptory challenge."
Prospective jurors may be challenged for cause for any of a number of specific reasons. Some
of the more obvious reasons include that a juror: (1) is a party or witness in the case; (2) is related
to a party; (3) has some close personal or business relationship to a party; (4) has already served on a
jury in a case involving one or more of the parties; (5) has already formed an opinion or is otherwise
biased; (6) is an alcoholic, drug addict, mental incompetent, or convicted felon; (7) does not speak or
understand English well enough to follow the proceeding and participate in jury deliberations.
There is no limit to the number of prospective jurors who may be challenged for cause. Each time a
prospective juror is excused, another will be interviewed.
When each side has run out of challenges for cause, each side may exercise its peremptory
challenges. No reason need be given for peremptorily excusing a juror, but each party has only a
limited number of peremptory challenges. In criminal cases the number of peremptory challenges
allowed each party is six in capital cases, four in all other felony cases, and three in misdemeanor
cases. Each party is allowed three peremptory challenges in civil cases. Beginning with the
complaining party, each side takes turns exercising its peremptory challenges one at a time. A
peremptory challenge is lost when the turn comes to use it and it is not used. When all challenges
are used or passed, the jury is complete. The jury then takes an oath to do its duty.
Opening Statements
After the jury is impaneled and takes its oath, the attorneys for each party make their
opening statements, beginning with the plaintiff's attorney or, in a criminal case, the prosecutor.
The opening statement is an outline of the facts of the case, what the party intends to prove, and the
evidence by which the party expects to prove it.
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Finally, evidence may be both competent and relevant to the case being tried, but adds
nothing of real importance. Such evidence is immaterial and inadmissible. For example, in a trial
for murder committed in the course of a robbery, it would be immaterial that the victim had terminal
cancer and probably would have lived no more than one month longer even if he had not been shot
and killed during the robbery.
One of the judge's most important functions in a trial is to rule on the admissibility of
evidence. Evidence may be so blatantly improper that even the attempt to introduce it at trial
requires a mistrial. (When a mistrial is declared, the trial is stopped immediately and the case is
retried at a later date before a new jury.) In such a situation, the judge might exclude such evidence
on her own motion (without the request of the attorney of another party), rather than immediately
declare a mistrial.
Generally, the judge will not exclude evidence without the request (objection) of the attorney
for another party. If the judge sustains the objection, the evidence is excluded. If she overrules the
objection, the evidence is admitted. The improper admission or exclusion of evidence may be the
basis of an appeal.
Examining Witnesses
A witness is first questioned by the attorney for the party who called her to testify. This
questioning is called "direct examination." When the direct examination is complete, the other party
has the right to question the witness. This questioning is called "cross-examination." During direct
examination, the attorney is not permitted to ask leading questions (unless the witness is obviously
hostile). That is, the attorney cannot ask the witness a question which suggests the answer.
Leading questions are permitted on cross-examination. For example, on direct examination the
attorney must ask, "Where were you on the evening of July 4th?" On cross-examination the attorney
could phrase the question, "You were at the corner tavern on the evening of July 4th, weren't you?"
The chief purposes of cross-examination are to place a witness' testimony in perspective, to
test its accuracy, and to bring out information not mentioned during direct examination. For
example, the testimony of a credible witness in a murder case that she saw the defendant shoot the
victim would, standing alone, be very damaging to the defense. The testimony takes on a different
light when, upon cross-examination, the witness testifies: she was a city block away when she saw
the shooting; it was 11:00 P.M.; she regularly wears glasses for night and distance vision, but was
not wearing them when she saw the shooting because the glasses were broken.
It is obvious that cross-examination is very important to the fairness of the judicial process
and the justice of its results. The right of cross-examination is considered so important that it is
guaranteed in both the United States and Ohio Constitutions.
How Witnesses Should Act
Everyone can expect to be a witness in a trial. Testifying under oath at a real trial can be a
difficult experience. Television and movie trials do not prepare witnesses for real trials. The
following "rules" are really common sense suggestions which may benefit or assist witnesses and
help the trial to be fair and efficient. The list is not exhaustive. Additional rules or suggestions
could be added, some could be deleted. Many could be restated.
First, tell the truth. A witness who lies under oath faces conviction for the serious offense of
perjury. If you do not know the answer to a question, say so. Do not make up answers.
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Second, be fair and objective. Even though you have strong feelings about the case, you
cannot overemphasize a particular part of your testimony. Your feelings should not affect your
testimony.
Third, pay attention when you are testifying. You do not want to be viewed as indifferent or
unconcerned. You do not want to repeatedly ask the examining attorney what he said.
Fourth, if you did not hear the question or do not understand what a question (or anything
else) means, say so. The judge and jury are interested in what you know about the case. Do not be
shy about saying that you did not hear the question or that you do not understand.
Fifth, be courteous to everyone. Proper behavior develops mutual respect.
Sixth, take a little time before you respond to a question. This practice will allow you to
think about the question and develop an appropriate and thoughtful answer. If you do make a
mistake in your testimony, say so as soon as you realize you made the mistake.
Seventh, answer the question which was asked. If the question can be answered "yes" or
"no," answer it that way. Do not volunteer additional explanations, or your opinions or philosophy.
The attorneys and the judge will ask for additional information if they want it. However, if you feel
that an answer must be explained or that the examining attorney is bullying you, you can ask the
judge for assistance and direction.
Eighth, do not lose your temper. If you lose your temper you give the examining attorney a
tremendous advantage. Further, even though your testimony may be absolutely true, it may be
discounted or even totally disregarded because it may appear that the testimony was emotionally
biased.
Ninth, speak clearly so you can be heard.
Tenth, dress appropriately. Dress and appearance depend on individual style and resources.
If you want advice on how to dress, ask the attorney or party who requested you to testify.
Eleventh, be yourself. Do not become an entertainer or comedian because you have an
audience in court. A trial is not entertainment; humor is generally out of place.
Final Arguments
When all the evidence is in, the attorneys make their closing arguments to the jury. The
attorney for the plaintiff or, in a criminal case, the prosecutor, goes first. When he is finished, it is
the defense attorney's turn. In general, each attorney uses the closing argument to summarize the
evidence and comment on it in the most favorable light. The attorney may talk about the facts and
all the inferences which can properly be drawn from them. The attorney cannot talk about evidence
which was not presented, or argue about points which do not apply to the case. If an attorney uses
improper material in final argument, the opposing attorney may object and the judge may instruct
the jury to disregard what was said. If the offending material is seriously prejudicial, the judge may
declare a mistrial.
Instructions to the Jury
When the attorneys have completed their closing arguments, the judge "instructs" or
"charges" the jury (the judge explains the duties of a jury and also explains the law applicable to the
case to the jury). Before the closing arguments, the attorneys may request the judge to give certain
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instructions on the law as it applies to the evidence. If these instructions are proper and would not
have been covered by her charge, the judge will include them as part of her charge to the jury. The
charge to the jury may take a few minutes, or it may take hours, or even days, in complicated cases.
Verdict
After the judge has given her charge, the jury goes to the jury room to make its decision or
verdict. The bailiff sits outside the jury room and allows no one to enter or leave the room.
Sometimes the jury's deliberations go on for several days. In such cases, the jurors may be allowed
to go home for the night or they may be "sequestered," that is, housed at a local hotel under guard.
In either event, the jury is told not to discuss the case.
Usually, the court will give the jury written forms for every one of the possible verdicts in the
case. In a civil case in Ohio, at least three-fourths of the jurors must agree on a verdict. In a
criminal case, the verdict must be unanimous. Occasionally, the jury becomes hopelessly deadlocked
and the necessary number of jurors cannot agree on a decision. This is called a hung jury, and the
case may have to be retried with a new jury.
If the required number of jurors agree on a decision, they sign the appropriate verdict form
and return to the courtroom. The court session begins and the verdict is announced either by the
jury foreman (whom the jurors select from among their number) or by the clerk of the court. Either
party may ask that the jury be polled (each juror asked if he agrees with the verdict). After the
verdict is announced, or the jury polled, the jury is dismissed. The trial is over.
Judgment
The jury's verdict is its finding of fact. An appropriate court order, called a "judgment," is
required to implement the verdict. In civil cases the judgment (judgment entry) is often made
immediately after the trial. In complicated civil cases, the judgment is delayed to allow the
preparation of the judgment entry.
In criminal cases, the sentence is part of the judgment. In serious criminal cases, judgment
may be delayed pending a pre-sentence investigation. In minor cases judgment is usually made
immediately.
PROCEEDINGS AFTER THE TRIAL
A number of legal proceedings may be conducted after the trial is over. In civil cases, it may
be necessary to take steps to enforce the judgment. In criminal cases, particularly serious cases,
sentencing is often a separate proceeding. The losing party may appeal in either a civil or criminal
case. In some criminal cases, there may be a probation revocation hearing, or the offender may, at a
later date, ask for post-conviction relief on the ground that his constitutional rights were not
adequately protected.
Enforcing Civil Judgments
An entry of judgment in a civil case does not automatically insure that the winner will
receive the relief he has won. When money damages have been awarded and the loser does not
voluntarily pay the judgment, the loser must be compelled to pay. When an injunction has been
granted, the order is not always obeyed and must be enforced. The party who wishes to have a civil
judgment enforced must institute the necessary procedures. Generally, a court will not enforce a
judgment unless the winning party requests enforcement and pays all pending court costs.
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There are a number of methods to enforce money judgments. The three most common
methods are "garnishment," "attachment," and "foreclosure." In garnishment, the court allows the
judgment creditor to impose a charge upon property of the judgment debtor which is held by a third
party. Usually the property involved is either unpaid wages or money in a bank account. When a
garnishment order is issued to the judgment debtor's employer, or bank, a portion of the debtor's
wages or bank account must be paid into court to satisfy the judgment. Wages can be garnished only
once per month and only 25 percent of the wages due can be taken at any one time. (A law effective
in April 1993 has a special provision regarding judgments based on money owed for health care
service or health care supplies. Under this law, an employer cannot pay more than 12 percent of the
judgment debtor's net earnings.)
In attachment proceedings, personal property of the judgment debtor (such as the debtor's
car, television, or stereo) is seized and sold to pay the judgment.
When a money judgment is filed with the clerk of the common pleas court of the county
where the judgment debtor owns real property, the judgment becomes a lien on the debtor's real
estate within the county. Foreclosure of a judgment lien is a proceeding in which the real estate is
sold to satisfy the judgment. (The proceeding is virtually the same as a mortgage foreclosure.) A
judgment creditor may institute a proceeding in aid of execution to determine the nature, extent, and
location of the judgment debtor's property. During this proceeding, the judgment debtor is examined
under oath.
In many cases, a court may grant a type of judgment in which the defendant is personally
ordered to do, or refrain from doing, a certain thing. This order is usually called an "injunction." If
the order is disobeyed, the defendant is in contempt of court and may be fined or jailed, or both. For
example, an injunction would be used to prevent a person from polluting a stream, or to compel her
to move a fence which encroaches on another's property. Continued pollution or failure to move the
fence is contempt of court. The orders or decrees a court grants in domestic relations cases are often
similar to injunctions in that the orders require the parties to personally do, or refrain from doing,
specific things. The most common use of contempt proceedings to enforce court orders is in domestic
relations cases. Contempt proceedings are used to compel the parties to observe the court's decrees
as to spousal support (alimony), division of property, child custody, child support, and visitation
rights.
Sentencing in Criminal Cases
In minor criminal cases, sentencing usually takes place immediately after a verdict of guilty
or the judge's finding that the offender is guilty. In serious criminal cases, sentencing is often
deferred pending a pre-sentence investigation to gather information on the case and on the offender's
background. The judge can then determine the proper sentence to be imposed.
Appeal
Any party may file an appeal in civil cases. Because of the double jeopardy provisions in the
United States and Ohio Constitutions, the right to appeal in criminal cases is more limited. In
criminal cases, a person who is convicted may appeal, but the state's (prosecution's) right of appeal is
narrowed by "double jeopardy." In general, double jeopardy means a person cannot be tried or
punished more than once for the same offense. See Part IV at "Double Jeopardy."
Appeals are generally on questions of law rather than questions of fact. The trial process,
not the appeal process, is best equipped to determine facts. Appellate courts will usually accept the
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factual determinations of trial courts. The questions for the appellate court are whether the trial
court made an incorrect interpretation or application of the law.
In addition, not every decision of a trial court can be appealed. In general, only final
judgments or final orders may be appealed. Limiting appeals to final judgments or orders prevents
the continual interruption of the trial process by the appeal of each interim order or ruling of the
lower court.
Generally, a party has 30 days after a final judgment or order to file an appeal. Appeals
after that time are allowed only with the appeals court's permission (called "leave of court").
Permission to file a late appeal is granted only when the appellant can show a good reason why he or
she failed to meet the regular deadline. The right to appeal is lost if an appeal is not filed within the
time allowed, or leave to file a late appeal is not granted. In Ohio, leave to file a late appeal is
limited to criminal cases. It must be noted that in many kinds of proceedings the time in which to
file an appeal is much less than 30 days. The parties to any proceeding should determine if the
proceeding may be appealed. Specifically, they should know when and how to make an appeal.
Other Post-trial Proceedings
In criminal cases, there are a number of other proceedings which may be held following
trialoften many months or years later. If an offender is placed on probation, but then violates one
of the conditions of his probation, the court may hold a hearing to determine if the probation should
be revoked and the offender sent to jail or prison. Similarly, when a person is released on parole
from prison, and violates the conditions of his or her parole, a hearing may be held to determine if he
or she should be returned to prison. Also, the trial court may hold a post-conviction relief proceeding
to determine the validity of later claims that the offender's constitutional rights were violated.
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subordinate to the United States Constitution. In the event of a conflict between the Ohio and
United States Constitutions, the United States Constitution controls.
STATUTORY LAW
Statutes are written laws adopted by a legislative authority, and may themselves come from
several sources. Statutes affecting the entire state are enacted by the Ohio General Assembly.
Federal statutes, enacted by Congress, also affect all of Ohio. Local laws, called ordinances, are
enacted by city or village councils.
State Statutes
Ohio statutes are enacted by the General Assembly, and affect the whole state. They take
precedence over city ordinances, the regulations of government agencies, and the common law.
Most Ohio statutes are compiled into a set of laws called the "Ohio Revised Code," which is
arranged according to subject matter into titles, chapters, and sections. The Revised Code deals with
a wide range of subjects. Some of the most important of these include: organization and operation of
state and local government; agriculture; financial institutions; commercial transactions; natural
resources; business organizations; courts and procedures; criminal law and procedure; family law;
education; elections; health and safety; insurance; labor and industry; liquor control; motor vehicles
and traffic; occupations and professions; public utilities; public welfare; real estate; roads; taxation;
veterans and military affairs; and water and sanitation.
Federal Statutes
Federal statutes are enacted by Congress and affect the entire country. Most are compiled
into the "United States Code" which, like the Ohio Revised Code, is arranged according to subject
matter. Some subjects, such as the armed forces, bankruptcy, patent law, and interstate commerce,
are federal matters. Under the United States Constitution only Congress may deal with these
matters. In other areas, federal statutes might govern some parts of an activity and state law might
govern other parts. Sometimes both the state and federal governments have similar laws covering
the same subject. Usually, the state law governs a particular activity within the state, and the
federal law governs the same activity in interstate and foreign commerce. Examples of this type of
law are controls on firearms, explosives, and drugs.
Municipal Ordinances
Under the Ohio Constitution, municipal corporations (that is, incorporated cities and
villages) may adopt laws for their own self-government. These local laws are called ordinances, and
are adopted by the village or city council, which is the legislative branch of municipal government.
Municipal ordinances are effective only within the municipality enacting them, and are valid only if
they do not conflict with state law. The concept of "conflict with state law" requires some
explanation. Ordinances may duplicate or overlap state statutes; ordinances cannot permit anything
the state law prohibits or prohibit anything the state law specifically permits.
Like state law, municipal ordinances may deal with a wide range of subjects. For example,
they concern: the organization and operation of police and fire departments, housing, sanitation,
licensing and inspection of various businesses, and many other matters. Municipal codes commonly
contain a traffic code which is similar to, or even a duplicate of, the state traffic code. Further,
municipal codes generally have many provisions similar to those of the state criminal code. This
similarity or duplication is permissible as long as the corresponding state offense is not a serious
crime called a felony (which calls for a penitentiary term or death as a penalty), and provided the
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municipality does not try to attach felony penalties to any of its ordinances. The only penalties
which can be imposed for violation of a municipal ordinance are a fine or a term of not more than one
year in the local jail or workhouse, or both.
ADMINISTRATIVE LAW
Many activities governed by statutes or ordinances are so technical, or change so often or so
fast, that they cannot effectively be regulated by statute or ordinance alone. In such cases, the
government agency which administers the activity may be authorized to adopt written rules to
supplement the statutes. These written rules are a substantial part of what is known as
administrative law. Most of the regulations issued by the State of Ohio are compiled in the "Ohio
Administrative Code."
Adoption and Effect of Rules
The authority to adopt administrative rules is a kind of legislative power. Under the United
States and Ohio Constitutions, an administrative agency can adopt rules only when a statute or
ordinance specifically grants such power. Further, the rules themselves are limited. They can cover
only the specific subjects authorized by the statute or ordinance.
Most rules are adopted under a procedure where: (1) proposed rules are published; (2) a
public hearing or time to respond is provided; (3) the response of the public and those affected is
considered; (4) the proposed rules are amended; (5) the amended rules are published with an
opportunity to respond; and (6) final rules are published. Rules adopted in this way have the force of
law and can be enforced by court action just like statutes. Violation of some rules may be a crime
where the basic statute or ordinance specifically states that a violation is a crime and provides a
penalty. The power to adopt administrative rules does not include the power to create crimes and
criminal penalties.
Scope of Administrative Rules
Many activities in Ohio are governed extensively by rules adopted by state or local
government agencies. Some examples include: hunting, fishing, and wildlife management;
development of natural resources; parks and public recreation; pollution control; health and
sanitation; liquor control; housing; building construction and safety; land use and development;
industrial safety; and many others. Many activities are also governed extensively by federal
administrative rules. Most of these rules are published in the "Code of Federal Regulations."
Federal income taxation is the best known of these activities. Federal income tax is subject to a long
list of rules adopted by the Internal Revenue Service.
THE COMMON LAW
The common law is a large body of principles, rules, and concepts. The common law was not
based on written (statutory) law, but many of its basic concepts have been interwoven into the
written law through usage and custom. Because it is (and was) created by the courts, common law is
a product of judicial rather than legislative power. It fills in the gaps and helps unify constitutional,
statutory, and administrative law, and is therefore indispensable to an effective system of justice.
Because it is based on generations of experience, it gives continuity and consistency to the law. At
the same time, it allows the law to respond to the changing needs of society.
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Excerpts from
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For protecting them, by a mock Trial from punishment for any Murders which they
should commit on the Inhabitants of these States:
For cutting off our Trade with all parts of the world:
For imposing Taxes on us without our Consent:
For depriving us in many cases, of the benefit of Trial by Jury:
For transporting us beyond Seas to be tried for pretended offences:
For abolishing the free System of English Laws in a neighbouring Province, establishing
therein an Arbitrary government, and enlarging its Boundaries so as to render it at once an
example and fit instrument for introducing the same absolute rule into these Colonies
For taking away our Charters, abolishing our most valuable Laws and altering
fundamentally the Forms of our Governments:
For suspending our own Legislatures, and declaring themselves invested with power to
legislate for us in all cases whatsoever.
***
In every stage of these Oppressions We have Petitioned for Redress in the most humble
terms: Our repeated Petitions have been answered only by repeated injury. A Prince, whose
character is thus marked by every act which may define a Tyrant, is unfit to be the ruler of a free
people.
***
We, therefore, the Representatives of the united States of America, in General Congress,
Assembled, appealing to the Supreme Judge of the world for the rectitude of our intentions, do,
in the Name, and by Authority of the good People of these Colonies, solemnly publish and
declare, That these united Colonies are, and of Right ought to be Free and Independent States,
that they are Absolved from all Allegiance to the British Crown, and that all political connection
between them and the State of Great Britain, is and ought to be totally dissolved; and that as Free
and Independent States, they have full Power to levy War, conclude Peace, contract Alliances,
establish Commerce, and to do all other Acts and Things which Independent States may of right
do. And for the support of this Declaration, with a firm reliance on the protection of Divine
Providence, we mutually pledge to each other our Lives, our Fortunes, and our sacred Honor.
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Right to Counsel
An accused person is constitutionally entitled to the services of an attorney. If she cannot
afford an attorney, the state is bound to provide one for her in any case in which imprisonment is a
possible punishment. In serious cases, the accused must be provided with legal counsel at all
significant steps of the procedure, beginning with the lineup in the police station after her arrest,
through questioning by the police, preliminary hearing, arraignment, trial, and appeal, if any.
Indictment by a Grand Jury
Both the United States and Ohio Constitutions provide that no one can be brought to trial for
a felony except on indictment by a grand jury. Indictment by a grand jury helps ensure that no one
is subjected to trial on false, flimsy, or spiteful accusations.
Notice of the Charge
An accused is entitled to fair notice of the specific charges against her. This notice allows her
to prepare her defense intelligently. An accused cannot prepare a defense if the charge is a vague
statement of some unspecified wrongdoing.
Speedy Trial
Both the United States and Ohio Constitutions state that an accused is entitled to a speedy
trial. An accused cannot be made to wait indefinitely with a criminal charge hanging over her head,
but must be given the opportunity to have the matter resolved quickly.
In Ohio, specific time limits are provided by statute; these time limits can be extended only
for good cause. The times within which an accused must be brought to hearing or trial after an
arrest or service of summons are as follows: 30 days for trial in mayors' courts, or trials for minor
misdemeanors in any court; 45 days for trials of misdemeanors carrying a maximum penalty of 60
days in jail; 90 days for trials of more serious misdemeanors; 15 days for preliminary hearings in
felony cases; and 270 days for trials in felony cases. The statute provides that in counting time, each
day spent in jail awaiting trial must be counted as three days. Thus, for example, if the accused in a
felony case cannot make bail, she must be given a preliminary hearing within five days (153=5)
after her arrest, and must be brought to trial within 90 days (2703=90) after her arrest.
Public Trial in the Locality
Both the United States and Ohio Constitutions give an accused the right to a public trial.
The right to a public trial ensures that trials are conducted fairly and properly. (There is no way to
know whether a secret trial was conducted fairly and properly. Further, there can be questions
whether such a trial was in fact conducted.) An accused also has the right to be tried in the locality
where the alleged offense was committed. The right to be tried where the alleged offense occurred
ensures that the witnesses and evidence are readily available and that the state cannot transfer the
trial to a place where the atmosphere is hostile to the accused. However, an accused can have the
trial transferred (a change of venue) if she cannot get a fair trial in the locality where the alleged
crime occurred.
Confronting Accusers and Securing Witnesses
Generally, the United States and Ohio Constitutions provide that a defendant in a criminal
case is entitled to meet his accusers and the witnesses against him. The Ohio Constitution
specifically requires that this confrontation occur face to face. That is, the state cannot rely on
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anonymous accusers and witnessesthe defendant is entitled to know who they are and to have an
opportunity to question them in person. Moreover, an accused is entitled to secure witnesses in his
own behalf. Further, the process the state uses to haveeven forceits witnesses to come to court
and testify must be available to the accused. The accused is allowed to haveeven forcethe
witnesses he wants to come and testify.
Trial by Jury
Under the United States Constitution, a defendant is entitled to trial by jury if the potential
penalty for the crime charged exceeds imprisonment for six months. The Ohio Constitution and
statutes are even more stringent. An accused in Ohio is entitled to a jury trial if the potential
penalty for the crime charged exceeds a fine of $100.
Other Constitutional Rights
In addition to the rights mentioned above, there are other constitutional rights which are
important in criminal proceedings. These include constitutional prohibitions against certain kinds of
laws, as well as constitutional rights which limit criminal laws. The following paragraphs explain
some of these constitutional rights.
Neither the Congress nor the states can enact retroactive or "ex post facto" laws. This means
that a person's criminal liability must be established according to the law in effect at the time the
person committed the alleged offense. If a person's conduct was innocent when it occurred, she
cannot be subjected to liability under a subsequent law which prohibits the earlier conduct. Further,
such a person cannot be subjected to a greater penalty, or have a defense taken away, by a
subsequent law.
Neither the Congress nor the states can pass "bills of attainder." In earlier times, bills of
attainder were used to condemn a person by legislative enactment without benefit of trial. English
kings used these bills to declare their enemies outlaws and to confiscate their enemies' property.
Both the United States and Ohio Constitutions prohibit cruel and unusual punishment for
crimes. These constitutional provisions prohibit such things as torture, or death by barbaric,
painful, or lingering means, and excessive punishments. (An example of an excessive punishment
would be a prison term for a minor traffic offense.) Additionally, the Ohio Constitution prohibits
punishments which include forfeiture of all the offender's property or disinheritance of his family.
Another important constitutional requirement is that criminal laws must be specific.
Persons are entitled to fair notice of what the law prohibits them from doing or requires them to do.
Criminal laws which are so vague that they do not provide fair notice are invalid under the United
States and Ohio Constitutions.
The United States and Ohio Constitutions also guarantee certain basic rights to everyone,
and laws which prohibit or interfere with the exercise of such rights are invalid. Everyone is entitled
to religious freedom. For example, a person cannot be condemned under a law which compels a
person to renounce her religion, or to proclaim adherence to a particular religion. Everyone is
entitled to freely speak and write her sentiments. Thus, general censorship laws or laws prohibiting
criticism of the government are invalid. (The right to speak freely is not an absolute privilege. A
person cannot yell "Fire" in a crowded theater merely to see the resultant terror. Similarly, a person
may be sued for defamation.) Persons are entitled to assemble for peaceful purposes, thus the police
cannot constitutionally break up an orderly, lawful meeting. Everyone has a right to petition the
government to have grievances adjusted, and cannot be prosecuted for doing so. The federal
government cannot prohibit a state from forming a militia. In Ohio, persons are entitled to keep and
bear weapons for their own defense, thus the state cannot make the mere possession of weapons for
defensive purposes a crime. The state and the federal government can impose specific restrictions on
the possession, sale, or use of certain firearms. The government cannot punish persons for refusing
to provide housing for the military. There are many other constitutional requirements and
prohibitions which can be important in criminal cases.
64
65
66
Privilege
United States Constitution 5th Amendment
No person . . . shall be compelled in any criminal case to be a witness against himself . . . .
Compare Ukrainian Constitution, Chapter II, Article 62 and 63
No one is obliged to prove his or her innocence of committing a crime.
A person shall not bear responsibility for refusing to testify or to explain anything about himself
or herself, members of his or her family or close relatives in the degree determined by law.
The prosecution may not call a criminal defendant as a witness and may not comment on
the defendants choice to not testify. The government may not use statements obtained
involuntarily from the defendant and may not use evidence derived as a result of those
statements.
At the scene of a drug arrest, Sandra is handcuffed and placed in the back seat of a police
car. As she is driven to the police station, she is asked who brought the drugs and if she
bought any. She was never advised of her right to remain silent and consult with an
attorney. The statements she makes may not be used in court.
Robert is stopped by a policeman and asked to come to the police station a block away.
The policeman says he is investigating a neighborhood robbery. He is invited into a
conference room, where another officer also appears. He is told that he is free to leave
and at one point, goes out to buy a soft drink. The two officers ask him questions, and
Robert mentions that he has bought a television at a very cheap price from a neighbor.
The statements Robert makes may be used in court if Robert is charged with robbery.
Uniform Rules of Evidence 501-511 (summary)
67
68
Political Vote Privilege An individual has a privilege to refuse to disclose how the
individual voted at a political election conducted by secret ballot.
Karl is on trial for bribery of a city council member. Karl cannot be asked how he
voted in the city elections.
Trade Secret Privilege A person has a privilege to refuse to disclose and to prevent
other persons from disclosing a trade secret. The privilege does not apply if allowance of
the privilege will tend to conceal fraud or otherwise work injustice. If disclosure is
directed, the court may take measures to protect against unnecessary further disclosure.
Hugh and Lena are charged with theft of company customer lists. The court may
order that the lists be under seal and not part of the public record.
State Secrets The constitution, laws or rules of the United States or a state may create a
privilege not to reveal state secrets.
Ahmed is charged with aiding a terrorist organization. His lawyer wants the court
to order the government to produce documents listing alleged terrorists the
government claims are associated with the organization. The government may
object to providing the documents.
Identity of Informer The government has a privilege not to disclose the identity of an
confidential informer. However, if the informer has first hand knowledge of the crime
held by no one else, the identity must be revealed, at least to defense counsel.
Mario is alleged to have participated in a theft of firearms. All the defendants
(and many other people) were in a hotel room the morning after the theft. The
guns were present and there was a general discussion of the events during the
theft. A person who was present in the hotel room has confidentially informed
the government that Mario spoke of details of the theft as if he participated in the
theft. If the government intends to call that person as a witness, the government
must reveal his identity in advance of trial.
Rose is charged with sale of methamphetamine. A confidential informant told the
police that people were buying meth at Roses house. An undercover police
officer went to Roses house and bought meth from her. Because the testimony of
the informant is not necessary evidence, the government will not have to reveal
the informants identity.
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Comment on Privilege Privilege objections should be made without calling the claim
of privilege to the attention of the jury. If a privilege is invoked, no party may comment
on it.
In the closing argument, the prosecutor states, There is one person who knows
exactly what happened that night, and he has not testified today. This is
improper.
70
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Chapter I
General Principles
Article 8
Chapter II
Human and Citizens' Rights, Freedoms and Duties
Article 21
All people are free and equal in their dignity and rights.
Human rights and freedoms are inalienable and inviolable.
Article 22
Human and citizens' rights and freedoms affirmed by this Constitution are not
exhaustive.
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Constitutional rights and freedoms are guaranteed and shall not be abolished.
The content and scope of existing rights and freedoms shall not be diminished in
the adoption of new laws or in the amendment of laws that are in force.
Chapter VIII
Justice
Article 129
In the administration of justice, judges are independent and subject only to the
law.
Judicial proceedings are conducted by a single judge, by a panel of judges, or by a
court of the jury.
The main principles of judicial proceedings are:
1) legality;
2) equality before the law and the court of all participants in a trial;
3) ensuring that the guilt is proved;
4) adversarial procedure and freedom of the parties to present their evidence to
the court and to prove the weight of evidence before the court;
5) prosecution by the procurator in court on behalf of the State;
6) ensuring the right of an accused person to a defence;
7) openness of a trial and its complete recording by technical means;
8) ensuring complaint of a court decision by appeal and cassation, except in cases
established by law;
9) the mandatory nature of court decisions.
The law may also determine other principles of judicial proceedings in courts of
specific judicial jurisdiction.
Persons guilty of contempt of court or of showing disrespect toward the judge are
brought to legal liability.
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DRAFT
CRIMINAL PROCEDURE CODE OF
UKRAINE
Prepared by the Working Group
of the National Commission on Strengthening Democracy
and the Rule of Law
Approved by the Sub-committee of the National Commission on Strengthening
Democracy and the Rule of Law on 21 May 2007
74
4.
Trial by jury
Article 390.
1.
2.
Jury court conducts trial being composed of the presiding professional judge and the panel of seven
jurors.
Article 391.
1.
The court draws up the list of citizens who may be summoned to court as jurors under the Law of
Ukraine On Judicial System of Ukraine.
2.
The date and time when an individual shall appear in court to function as juror is communicated to
the individual concerned at least seven days before.
3.
The individual who is unable to appear in court upon summons shall inform the court thereon in
advance.
4.
During selection, candidate for jurors shall answer questions honestly and provide other required
information on him.
Article 392.
1.
Trial by jury court is conducted in accordance with Articles 291 to 344 of the present Code subject
to provisions of the present Chapter.
Article 393.
1.
The individual who is accused of having committed criminal offence punishable, under criminal
law, with life imprisonment shall have the right to be tried by jury.
2.
The accused who wishes to have charges brought against him considered by the jury shall submit a
written application thereon prior to the beginning of preliminary trial.
3.
Whenever one indictment contains charges against several individuals, trial is conducted by jury if
at least one of them applied for the trial by jury.
4.
The accused who did not apply for the trial by jury is immediately informed if such application is
made by another accused.
Article 394.
1.
When informing the accused on the completion of pre-trial investigation, investigator, public
prosecutor advises him of the right laid down in Article 393 of the present Code, specific features and
legal implications of the trial by jury. In addition, the accused is given the instruction containing the said
information.
Article 395.
1.
Before preliminary court session, in accordance with the present Code, a defence counsel shall be
ensured to each accused that has no defender.
Article 396.
1.
Presiding judge alone decides matters referred to in Article 287 of the present Code at the
preliminary court session regarding charges which will be considered by jury. In addition, presiding judge
takes decision on:
1)
motions of the parties to find certain evidence inadmissible;
2)
list of evidence which will be examined during (main) trial.
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2.
Participation of the accused who will appear before the jury, as well as participation of their defence
counsels in preparatory court session is compulsory.
3.
Ruling on the trial by jury, in addition to what is referred to in Article 290 of the present Code,
states the number of candidates for jurors who shall be summoned in court session.
Article 397.
1.
The judge presiding in the trial by jury decides all matters on his own, except those which fall
within the competence of the jury.
Article 398.
1.
2.
3.
In case of disrespect for duties referred to in the present Article, presiding judge, by his ruling, may
suspend the juror concerned from further participation in trial and bring him to liability for the contempt of
court.
4.
Reserve jurors stay in courtroom during the trial. Reserve jurors are included in the jury prior to
rendering a verdict instead of those jurors who are unable to participate in trial. When possibilities in
respect of replacement of outgoing jurors have been exhausted, presiding judge announces the trial as not
conducted and passes to a new selection of jurors.
5.
Parties, witnesses, court experts, specialists, and translators may not, prior to rendering a verdict by
jury, communicate with jurors and reserve jurors otherwise than as prescribed in the present Code.
Article 399.
1.
Selection of jurors
2.
Jurors are selected after preparatory part of trial has been completed. Secretary of court session
reports to the presiding judge about arrival of candidates for jurors in court session. Thereafter, the
presiding judge:
1)
2)
3)
3.
An individual may not participate in trial as juror if there are grounds referred to in Articles 68 and
69 of the present Code. Such an individual is released from duties of the juror upon his request, motion of
a party or upon presiding judges initiative. Public prosecutor and the accused have the right to challenge
two jurors each without explaining reasons.
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4.
The accused may assign the right to challenge jurors to his legal representative or defender. If there
are several accused, the latter may challenge four jurors without explaining reasons. The matter who of
jurors has to be challenged is decided upon their mutual consent and in case of disagreement through
dividing among them the number of juries to be challenged or, if it is impossibly, - by lot.
5.
Secretary of the court session drops ballots with candidates names in the voting box and mixes
them. Presiding judge, one by one, takes out ballots with candidates names from the box and announces
the candidates name stated in the ballot; finds out if everyone of them was advised of facts related to the
proceedings, of legal grounds based on which the can be released from participation in trial. Having heard
parties, presiding judge resolves the matter related to challenging jurors. When selecting jurors, presiding
judge may ask them questions suggested by the parties.
6.
Having established that the individual concerned was informed on facts of the proceedings to the
extent that can affect his impartiality or that grounds for the challenge exist, presiding judge, without
retiring in the deliberation room, passes the ruling on releasing individuals concerned from participation in
trial as jurors.
7.
After selecting sever jurors, presiding judge selects two reserve jurors according to the same
procedure.
8.
Secretary of court session enters names of selected jurors in the journal of court session in the order
the ballots were taken out of the voting box.
9.
After the jury has been created, presiding judge advices the jury and reserve jurors to take their
seats.
10. If individuals appeared in court in a lesser number than is necessary to hold trial or when, after the
procedure referred to in the present Article has been completed, the number of jurors is lesser than is
necessary to set up the jury, presiding judge orders to summon new individuals for participation in trial as
jurors.
Article 400.
1.
Each of the participant to trial may, before jurors have been administered the oath, submit well
reasoned statement that, as a result of specific features inherent to proceedings or by virtue of other
circumstances, the jury in the whole can appear unable to render an objective verdict.
2.
Having heard parties opinions in respect of the said statement, presiding judge, by his ruling which
shall be passed in the deliberation room, dismisses such statement or sustains it and dissolves the jury and
re-starts preparation for trial.
Article 401.
1.
After the jury has been set up and foreman of the jury elected, jurors are administered the following
oath: I swear that I will fulfil my duties honestly and impartially and will take into account only those
evidence which were examined by court, will be guided but law, common sense and the conscience
inherent to a free citizen and fair human being.
2.
Foreman of the jury reads out the text of oath. Thereafter, presiding judge mentions name of each of
jurors. Each of them shall say: I swear and confirm that he understands his rights, duties and
competence.
Article 402.
1.
After having been administered the oath, jurors retire in the deliberation room where they elect the
foreman of the jury out of them.
2.
The foreman of the jury has the same rights as other jurors do in resolving all matters which arise
during holding trial and rendering a verdict.
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3.
The foreman of the jury presides at meetings of the jury, submits motions to the presiding judge and
asks him questions upon jurors instruction, announces, in deliberation room, questions asked by presiding
judge, asks jurors about their answers, fills in checklist containing jurors answers taking into account
voting results and reads out this checklist in court session.
Article 403.
1.
Trial by jury is conducted with full respect of Articles 291 to 344 of the present Code with
specificities laid down in the present Article.
2.
Evidence of the prosecution is examined in the first place while evidence of the defence is examined
in the second place.
3.
Presiding judge, upon parties motion or proprio motu, is required to exclude evidence obtained
illegally out of evidence to be examined and, if such evidence has been examined, to point out that jurors
shall not take into account such evidence.
4.
If the court finds evidence admissible in part or for a certain purpose, presiding judge is required to
ensure that the jury examines only the admissible part of the evidence and to give jurors appropriate
instructions as to proving what circumstances they may take this evidence into account.
5.
An appropriate evidence, even if it is admissible under other provisions of the present Code, may be
found by the jury inadmissible unless its probative value justifies the risk that jurors will be biased,
misrepresented, a matter confused, as well as results in unnecessary delay in administering justice.
6.
Facts or data which are found or may be found by presiding judge inadmissible may not be
disclosed to jurors through expert findings.
7.
Jurors put questions to examined individuals through presiding judge. The latter may clarify the
question asked by the juror concerned.
Article 404.
1.
After the last statement of the accused, presiding judge formulates questions to be answered by
jurors, reads them out and suggests that parties discuss them. Parties have the right to propose excluding
questions, introduce corrections to the questions formulated by presiding judge and ask other questions.
2.
After the discussion, presiding judge formulates final checklist, signs it and approves by his ruling.
3.
With regard to each offence for which charges have been brought, the checklist contains the
following questions:
1)
whether it was proved that the event of which an individual is accused has really occurred;
2)
whether it was proved that this event resulted from the act of the accused;
3)
whether the accused is guilty of this act.
4.
Presiding judge may ask the following supplementary questions to make more understandable
questions to be resolved by jurors:
1)
whether facts which constitute elements of criminal offence have been proved;
2)
whether it was proved that facts which preclude liability for the act committed by the
accused are absent or reduce the level of guilt.
5.
It is permitted to put question in respect of the guilt in the way that the answer thereto could allow
establishing the guilt of the accused in the commission of less serious criminal offence if the same act
constitutes a separate crime of which the individual concerned is accused.
6.
Wording of the questions shall be understandable for jurors. It is not allowed to put questions
requiring from jurors legal determination of the act concerned, position of the accused, as well as other
questions whose addressing requires legal evaluation.
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7.
If more than one person is accused, the checklist shall be drawn up regarding each accused
separately.
8.
Article 405.
1.
Before the jury has retired in the deliberation room for rendering a verdict, presiding judge proceeds
to summing-up in which he reminds the substance of charges, informs on the contents of the criminal law
which punishes criminal offence of which the individual concerned is accused, reminds evidence which
were examined in court and positions of the parties, explains basic rules for the evaluation of evidence,
narrates contents of the presumption of innocence, provision about interpretation of doubts in favour of the
accused, explains contents of the sentenced person ion standard beyond reasonable doubt.
2.
Presiding judge draws attention of the jury to that silence kept by the accused may not be
interpreted against him.
3.
Jurors are explained that their conclusions shall be based only on evidence which were examined
during trial, as well as reminded his instruction as to inadmissibility of certain evidence. Presiding judge
also explains to jurors the manner in which their deliberations shall be conducted, answers to the questions
prepared and the verdict voted and rendered.
4.
Presiding judge finalizes his instructions to the jury with reminding contents of the oath they have
taken.
5.
When giving instructions to the jury, presiding judge may not express, in any form whatsoever, his
thoughts about questions put to the jury.
6.
Jurors, having heard presiding judges instructions and reviewed questions put to the jury, may ask
presiding judge to give them supplementary clarifications.
Article 406.
1.
After instructions of presiding judge, jurors retire in deliberation room to render a verdict.
2.
3.
Upon consent of the presiding judge, jurors may make a break after the end of working hours.
4.
Article 407.
The way in which deliberations of the jury are conducted and vote made
1.
The foreman of the jury directs deliberations and consistently puts questions included in the
checklist to discussion, conducts vote and counts votes.
2.
Any documents and materials which were examined during trial, as well as records of examination
of witnesses are submitted to jurors in deliberation room at their request.
3.
Vote is conducted openly. No one of the jurors may abstain during the vote. The foreman votes in
the last place.
Article 408.
1.
Jurors verdict
Verdict constitutes decision the jury has taken regarding questions included in the checklist.
2.
Jurors answer to each question yes or no accompanied by explaining word or phrase which
discloses the substance of the answer given. If the answer to the previous question excludes the answer to
the next question, the foreman, upon consent of the majority of jurors, indicates without answer.
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3.
The foreman of the jury enters answers to questions in the checklist immediately next to each
question and indicates therein the number of jurors who voted in favour and against the question
concerned.
4.
If the jury has not arrived at a unanimous decision regarding questions put, jurors formulate the
answers which were adopted by the majority of votes.
5.
Positive answer to the question with regard to the guilt of an individual in the commission of
criminal offence is deemed to be adopted if at least five jurors voted in favour thereof.
6.
Article 409.
Renewal of the trial, clarificatio n of wording in the checklist and suppl ementary
explanations at the request of the jury
1.
If during deliberations of the jury, jurors find it necessary to examine any facts again or
additionally, jurors return to the courtroom where foreman of the jury submits the appropriate request to
presiding judge. Presiding judge may renew trial after the end of which clarifications to questions put
before the jury may be introduced or new questions included in the checklist taking into account parties
opinion.
2.
The jury returns back to deliberation room to render a verdict after renewed trial has been finished.
3.
If during deliberations of the jury, jurors find it necessary to clarify wording of the questions put,
jurors return to the courtroom where foreman of the jury submits the appropriate request to presiding
judge. If presiding judge, taking into account parties opinion, finds it necessary, he/ she introduces
clarifications in the questions concerned or formulates new questions. Having heard presiding judges
instructions related to changes in the checklist, the jury returns back to deliberation room to render a
verdict.
4.
If during deliberations of the jury, jurors find it necessary to obtain supplementary clarifications
from the presiding judge, jurors return to the courtroom where foreman of the jury submits the appropriate
request to presiding judge. Having heard required clarifications of the presiding judge, the jury returns
back to deliberation room to render a verdict.
Article 410.
1.
After the checklist has been prepared and signed, jurors return back to the courtroom and the
foreman of the jury hands over the checklist containing answers to presiding judge.
2.
If presiding judge finds any controversies in the verdict, he/ she draws attention of the jury thereto
and proposes clarify it in deliberation room.
3.
Presiding judge may also, after having heard parties opinion, introduce in the checklist required
changes. Having heard presiding judges instructions related to changes in the checklist, the jury returns
back to deliberation room to render a verdict.
4.
In the absence of objections, presiding judge returns the checklist containing answers of jurors to
the foreman of the jury for announcement.
5.
The foreman of the jury announces the verdict and reads out questions put before the jury and
answers thereto.
6.
Those present in the courtroom listen to the jurys verdict standing up.
7.
The verdict of the jury as pronounced is handed over to the secretary of the court session for
including it into records of the case.
Article 411.
Actions by the jury after the verdict of the jury has been pronounced
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1.
If the jury rendered the verdict that the accused is fully not guilty, the accused that is kept in custody
is immediately released upon presiding judges order.
2.
If the jury found the accused guilty of having committed criminal offence punishable with life
imprisonment, presiding judge puts on trial the issue of previous sentenced person ions of the accused, his/
her state of health, family and property status, style of living, and other circumstances which characterize
the accused, as well as other issues which can affect his/ her sanction. After the end of trial and final
pleadings on these issues, presiding judge provides foreman of the jury supplementary checklist
containing questions on whether the accused deserves life imprisonment, and proceeds to summing-up.
3.
The jury renders supplementary verdict in respect of whether the accused deserves life
imprisonment in accordance with Articles 406 to 409 of the present Code. This verdict is pronounced in
accordance with Article 410 of the present Code.
4.
After the verdict of acquittal or supplementary verdict of the jury has been pronounced, presiding
judge informs the jury that they have finished participation in the trial. Jurors have the right to stay in
courtroom till the end of trial at the seats intended for the public.
Article 412.
1.
2.
Presiding judge gives the parties possibility to speak about legal implications of the verdict,
including legal determination of the nature of the act committed by the accused, imposing a sanction and
resolving the issue of repairing damage caused as a result of criminal offence. Defence counsel of the
accused or the accused himself/ herself speaks in the last place.
3.
Presiding judge stops the party if it elaborates on issues other than legal implications of the verdict
or other issues to be resolved after the verdict has been pronounced.
Article 413.
1.
Jurys verdict is binding on presiding judge and the latter shall pass the appropriate judgment.
2.
Jurys verdict guilty does not preclude the judgment of acquittal if the jury included in its verdict
facts which, under criminal law, exclude criminal liability of an individual.
Article 414.
1.
Prior the jury has retired in the deliberation room to render a verdict, presiding judge may, by his
ruling, close criminal proceedings in cases specified in the present Code.
2.
Article 415.
Specific features of drawing up and pronouncing the sentence imposed based on the
jurys verdict
1.
Presiding judge draws up and pronounces the sentence of the jury in accordance with Articles 346
to 367 of the present Code with such specificities:
1)
introduction of the judgment does not state names of jurors;
2)
in the reasoning of the court, facts established in jurys verdict are substantiated only by
reference to this verdict.
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Article 416.
Specific features of challenging the sentenced imposed based on the jurys verdict
1.
Sentence imposed based on the jurys verdict takes legal effect upon its pronouncement. It may not
be challenged.
2.
Sentence imposed based on the jurys verdict may be challenged in cassation instance by
individuals specified in Article 444 of the present Code.
3.
Cassation proceedings in respect of sentences imposed based on the jurys verdict are conducted in
accordance with general rules provided for in the present Code, taking into account specificities referred to
in the Article.
4.
If the sentence is reversed, the court of cassation assigns a new trial in first instance court by
another composition of the court.
Article 417.
1.
Exceptional review of sentences imposed based on the jurys verdict is conducted in accordance
with general rules provided for in the present Code.
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Trial by Jury
83
Trial by Jury
PART I.
THE RIGHT TO TRIAL BY JURY
Standard 15-1.1. Right to jury trial
(a) Jury trial should be available to a party, including the state, in criminal prosecutions
in which confinement in jail or prison may be imposed.
(b) The jury should consist of twelve persons, except that a jury of less than twelve (but
not less than six) may be provided when the penalty that may be imposed is confinement
for six months or less.
(c) The verdict of the jury should be unanimous.
(d) This chapter does not apply to procedures of military justice tribunals.
Standard 15-1.2. Waiver of trial by jury
(a) Cases required to be tried by jury should be so tried, unless jury trial is waived with
the consent of the prosecutor.
(b) The court should not accept a waiver unless the defendant, after being advised by
the court of his or her right to trial by jury and the consequences of waiver of jury trial,
personally waives the right to trial by jury in writing or in open court on the record.
(c) A defendant may not withdraw a voluntary and knowing waiver as a matter of right,
but the court, in its discretion, may permit withdrawal prior to the commencement of the
trial.
(d) A defendant may withdraw a waiver of jury trial as a matter of right, and a
prosecutor may withdraw consent to a waiver as a matter of right if there is a change in
the trial judge.
Standard 15-1.3. Waiver of full jury or of unanimous verdict
(a) At any time before verdict, the parties, with the approval of the court, may stipulate
that the jury shall consist of any number less than that required for a full jury.
(b) At any time before verdict, the parties, with the approval of the court, may stipulate
that the verdict may be less than unanimous. The stipulation should be clear as to the
number of concurring jurors required for the verdict to be valid.
(c) The court should not accept such a stipulation unless the defendant, after being
advised by the court of his or her right to trial by a full jury, personally waives the right to
trial by a full jury, or the right to a unanimous verdict, in open court on the record.
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PART II.
JURY SELECTION
Standard 15-2.1 Selection of prospective jurors
The selection of prospective jurors should be governed by the following general
principles:
(a) The names of those persons who may be called for jury service should be selected at
random from sources which will furnish a representative cross-section of the community.
85
(b) Jury officials should determine the qualifications for prospective jurors by
questionnaire or interview, and disqualify those who fail to meet specified minimum
requirements.
(c) All persons should be eligible for jury service who are eighteen years of age, are
United Sates citizens whose civil rights have not been lost by reason of criminal
conviction or whose civil rights have been restored, are residents of the geographical
district in which they are summoned, and are able to communicate in English.
(d) A person should be excused from jury service only for mental or physical disability
which, despite reasonable accommodation for the disability, substantially impairs the
capacity to serve or prior jury service within the previous year. Temporary deferral of
service should be permitted in cases of public necessity, undue hardship, temporary
disability, or extreme inconvenience. Requests for excuse from service should be
determined under the direct supervision of a judge.
Standard 15-2.2. Juror questionnaires
(a) Basic questionnaire
Before voir dire examination begins, the court and counsel should be provided with
data pertinent to the qualifications of the prospective jurors and to matters ordinarily
raised in voir dire examination.
(1) The questionnaire should include information about the juror's name, sex,
age, residence, marital status, education level, occupational industry, employment
address previous service as a juror, and present or past involvement as a party to
civil or criminal litigation.
(2) Such data should be obtained from prospective jurors by means of a
questionnaire furnished to the prospective jurors with the jury summons, and to be
returned by the prospective jurors before the time of jury selection.
(b) Specialized questionnaire
In appropriate cases, the court, with the assistance of counsel, should prepare a
specialized questionnaire addressing particular issues that may arise.
(1) The questionnaire should be specific enough to provide appropriate
information for utilization by counsel, but not be unnecessarily embarrassing or
overly intrusive.
(2) If questionnaires are made available to counsel prior to the day of the voir
dire, the identity of the jurors may be protected by removing identifying
information from the questionnaires.
(c) All questionnaires should be prepared and supervised by the court.
(1) The jurors should be advised of the purpose of the questionnaire, how it will
be used and who will have access to the information.
(2) All questionnaires should be provided to counsel in sufficient time before
the start of voir dire to enable counsel to adequately review them before the start
of voir dire.
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87
88
(c) When a prima facie case of discrimination is established, the burden shifts to the
party making the challenge to show a nondiscriminatory basis for the challenge.
(d) The court should evaluate the credibility of the proffered reasons. If the court finds
that the reasons stated are constitutionally permissible and are supported by the record,
the court should permit the challenge. If the court finds that the reasons for the challenge
are constitutionally impermissible, the court should deny the challenge and, after
consultation with counsel, determine whether further remedy is appropriate. The court
should state the reasons, including whatever factual findings are appropriate, for
sustaining or overruling the objection on the record.
Standard 15-2.9. Alternate jurors
The court may impanel one or more alternate jurors whenever, in the court's discretion,
the court believes it advisable to have such jurors available to replace jurors who, prior to
the time the jury retires to consider its verdict, become or are found to be unable or
disqualified to perform their duties.
(a) Alternate jurors should be selected in the same manner, have the same qualifications,
be subject to the same examination and challenges, and take the same oath as the regular
jurors. Jurors should not be informed of their status as regular jurors or as alternates until
time for jury deliberation.
(b) A juror who becomes incapacitated during trial, in the discretion of the court, may
be replaced by an alternate juror, who shall then have the same functions, powers,
facilities and privileges as a regular juror.
PART III.
CONDUCT OF THE TRIAL
Standard 15-3.1. Defendant's presence at proceedings
The defendant should have the right to be present at every stage of the trial proceedings,
including selection and impaneling of the jury, all proceedings at which the jury is
present, and return of verdict.
(a) If a defendant, with knowledge that the trial is going on, voluntarily absents him or
herself from the court, the proceedings may continue to verdict without the defendant's
physical presence, and the defendant should be deemed to have waived the right to be
physically present at the trial.
(b) No trial or proceeding on the merits of the case should commence without the
physical presence of the defendant, unless the defendant has personally waived physical
presence in the courtroom.
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(a) The notes should be used by the juror solely for the juror's purposes during the jury
deliberations, and should be made available to other jurors solely at the discretion of the
juror taking the notes. No person, other than the juror taking the notes, should have the
right to view the notes.
(b) The jurors should be informed at the beginning of the trial that, at the close of the
deliberations, all jurors' notes will be collected by the court and destroyed.
Standard 15-3.6. Method of making and ruling on motions and objections
(a) During trial, when in the presence of the jury, counsel should raise any motion, or
any objection to the introduction of evidence, testimony of witnesses, or orders of the
court, by stating only that counsel has a "motion" or an "objection," and by then stating
the legal grounds for the motion or the objection.
(b) Any further argument or discussion that may be required or permitted by the court
should be conducted outside the hearing of the jury.
(c) Rulings on motions and objections should be made by the court in the presence and
hearing of the jury, but the reasons therefor should be stated outside the hearing of the
jury.
(d) Objections, motions, statements of grounds, argument and discussion, the ruling of
the court, and the reasons given by the court for its ruling, should all be made a part of
the record.
Standard 15-3.7. Evidence of prior convictions
When the defendant's prior convictions are admissible solely for the purpose of
determining an enhancement of an offense or the sentence to be imposed, the jury should
not be informed of them, either through allegations in the charge or by the introduction of
evidence, until it has found the defendant guilty of the offense.
Standard 15-3.8. Motion for judgment of acquittal
(a) After the evidence on either side is closed, the court on motion of a defendant or on
its own motion should order the entry of a judgment of acquittal of one or more offenses
charged if the evidence is legally insufficient to sustain a conviction of such offense or
offenses. Such a motion by the defendant, if not granted, should not be deemed to
withdraw the case from the jury or to bar the defendant from offering evidence.
(b) If the defendant's motion is made at the close of the evidence offered by the
prosecution, the court may not reserve decision on the motion. If the defendant's motion
is made at the close of all the evidence, the court may reserve decision on the motion,
submit the case to the jury, and decide the motion either before the jury returns a verdict
or after it returns a verdict of guilty or is discharged without having returned a verdict.
(c) If the jury returns a verdict of guilty or is discharged without having returned a
verdict, the defendant's motion may be made or renewed within a certain time, set by
statute or rule, after discharge of the jury or within such further time as the court may fix.
Such a motion is not barred by defendant's failure to make a similar motion prior to the
submission of the case to the jury.
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PART IV.
JUDICIAL RELATIONS WITH JURY; JURY INSTRUCTIONS
Standard 15-4.1. Control over and relations with the jury
(a) The court should take appropriate steps ranging from admonishing the jurors to
sequestration of them during trial, to ensure that the jurors will not be exposed to sources
of information or opinion, or subject to influences, which might tend to affect their ability
to render an impartial verdict on the evidence presented in court.
(b) The court should require a record to be kept of all communications received from a
juror or the jury after the jury has been sworn, and he or she should not communicate
with a juror or the jury on any aspect of the case itself (as distinguished from matters
relating to physical comforts and the like), except after notice to all parties and
reasonable opportunity for them to be present.
(c) At the outset of the case, the court should instruct the jury on the relationship
between the court, the lawyers and the jury, ensuring that the jury understands that
counsel are permitted to communicate with jurors only in open court with the opposing
party present.
(d) When scheduling recesses and time for adjournment, the court should keep in mind
that it is equally offensive to jurors to subject them to too stringent or too lenient a
schedule, and should take all reasonable steps to avoid wasting the jurors' time.
Standard 15-4.2. Right of judge to give assistance to the jury during trial
(a) The court should not express or otherwise indicate to the jury his or her personal
opinion whether the defendant is guilty or express an opinion that certain testimony is
worthy or unworthy of belief.
(b) When necessary to the jurors' proper understanding of the proceedings, the court
may intervene during the taking of evidence to instruct on a principle of law or the
applicability of the evidence to the issues. This should be done only when the jurors
cannot be effectively advised by postponing the explanation to the time of giving final
instructions.
(c) The development of innovative mechanisms to improve juror comprehension of the
issues of the case and the evidence presented should be encouraged consistent with the
rules of evidence and the rights of the parties.
Standard 15-4.3. Judicial communication with jurors
While it is appropriate for the court to thank jurors at the conclusion of a trial for their
public service, such comments should not include praise or criticism of their verdict.
(a) All communications between the judge and members of the jury panel, from the
time of reporting to the courtroom for voir dire until dismissal, should be in writing or on
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the record in open court. Counsel for each party should be informed of such
communication and given the opportunity to be heard.
(b) After the conclusion of the trial and the completion of the jurors' service , the court
may engage in discussions with the jurors. Such discussions should occur only on the
record and in open court with counsel having the opportunity to be present. This standard
does not prohibit incidental contact between the court and jurors after the conclusion of
the trial.
(c) At the conclusion of the juror's service, with the concurrence of all the parties and
the court, the judge may conduct a discussion with the jurors who agree to participate for
the purpose of educating the court and counsel.
(d) Under no circumstances should the court state or imply an opinion on the merits of
the case, or make any other statements that might prejudice a juror in future jury service.
(e) At the conclusion of the trial, the court should instruct the jurors that they have the
right either to discuss or to refuse to discuss the case with anyone, including counsel or
members of the press.
Standard 15-4.4. Jury instructions
(a) Instructions to the jury should be not only technically correct but also expressed as
simply as possible and delivered in such a way that they can be clearly understood by the
jury. The instructions should not contain comments by the court reflecting the court's
personal belief regarding credibility of certain witnesses, evidentiary value of specific
items of evidence, or the guilt or innocence of the defendant. A written copy or audio
version of the instructions should be given to the jury when it retires to deliberate.
(b) At the beginning of the trial, the court should give preliminary instructions to the
jury deemed appropriate for their guidance in hearing the case, which may include
instructions on the law of the case. Instructions on the law of the case should be given
only after consultation with counsel.
(c) A collection of accurate, impartial, and understandable pattern jury instructions
should be available for use in criminal cases in each jurisdiction. Whenever necessary,
the pattern instructions should be modified or supplemented.
(d) At the close of the evidence or at such earlier time as the court reasonably directs,
the courts should allow any party to tender written instructions and may direct counsel to
prepare designated instructions in writing. Copies of tendered instructions and
instructions prepared at the direction of the court should be furnished the other parties.
(e) At a conference on instructions, which should be held out of the hearing of the jury,
and, on request of any party, out of the presence of the jury, the court should advise
counsel what instructions will be given by providing the instructions in writing prior to
their delivery and before the arguments to the jury. Counsel should be afforded an
opportunity to object to any instruction. The grounds of any objection should be stated on
the record. No party should be permitted to raise on appeal the failure to give an
instruction unless such party shall have tendered it or made timely objection to its
omission. No party should be permitted to raise on appeal the giving of an instruction
unless such party objected thereto. In either instance, the party should state distinctly the
matter to which the party objects and the grounds of the objection. However, if the
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PART V.
JURY DELIBERATIONS; RETURN OF VERDICT
Standard 15-5.1. Materials to jury room
(a) The court in its discretion may permit the jury, upon retiring for deliberation, to take
to the jury room a copy of the charges against the defendant; the court should permit the
jury to take exhibits and writings that have been received in evidence, except depositions,
and copies of instructions previously given.
(b) The court may refrain from sending certain material to the jury room if the court
determines:
(1) that the material may be subjected to improper use by the jury; or
(2) that the material might be dangerous to jurors or to others.
(c) In sending any exhibits to the jury, the court should ensure that the evidentiary
integrity of the exhibit is preserved.
Standard 15-5.2. Jury request to review testimony
(a) If the jury, after retiring for deliberation, requests a review of certain testimony the
court should notify the prosecutor and counsel for the defense, and allow all parties to be
heard on the jury's request. Unless the court decides that a review of requested testimony
is inappropriate, the court should have the requested parts of the testimony submitted to
the jury in the courtroom. The court may permit testimony to be reread outside the
presence of counsel, with the personal waiver of the defendant and the stipulation of the
parties.
(b) The court need not submit testimony to the jury for review beyond that specifically
requested by the jury, but in its discretion the court may also have the jury review other
testimony relating to the same factual issue so as not to give undue prominence to the
testimony requested.
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Page 1 of 1
Trial by Jury
Trial by jury is another constitutional protection for the rights of the people. By assuring
that the people themselves participate in the judicial process, governing authorities are
prevented from unjustly prosecuting individuals. Trial by jury assumes that the people
themselves are the best guardians of their own rights, and that they will release from
custody any person unjustly charged.
"I consider [trial by jury] as the only anchor ever yet imagined by man, by which a government
can be held to the principles of its constitution." --Thomas Jefferson to Thomas Paine, 1789. ME
7:408, Papers 15:269
"[The people] are not qualified to judge questions of law, but they are very capable of judging
question of fact. In the form of juries, therefore, they determine all controverted matters of fact,
leaving thus as little as possible, merely the law of the case, to the decision of the judges." -Thomas Jefferson to Abbe Arnoux, 1789. ME 7:422, Papers 15:283
"With us, the people (by which is meant the mass of individuals composing the society), being
competent to judge of the facts occurring in ordinary life, they have retained the functions of
judges of facts under the name of jurors." --Thomas Jefferson to Pierre Samuel Dupont de
Nemours, 1816. ME 14:488
"The following [addition to the Bill of Rights] would have pleased me:... All facts put in issue
before any judicature shall be tried by jury except, 1, in cases of admiralty jurisdiction wherein a
foreigner shall be interested; 2, in cases cognizable before a court martial concerning only the
regular officers and soldiers of the United States or members of the militia in actual service in
time of war or insurrection; and, 3, in impeachments allowed by the Constitution." --Thomas
Jefferson James Madison, 1789. ME 7:450, Papers 15:367
"It will be worthy [of] consideration whether the protection of the inestimable institution of
juries has been extended to all the cases involving the security of our persons and property. Their
impartial selection also being essential to their value, we ought further to consider whether that is
sufficiently secured in those States where they are named by a marshall depending on Executive
will, or designated by the court or by officers dependent on them." --Thomas Jefferson: 1st
Annual Message, 1801. ME 3:338
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http://etext.virginia.edu/jefferson/quotations/jeff1520.htm
8/3/2007
Excerpts from
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ABA Division for Public Education: Lawyers & Judges: Judge's Chambers: What Does a Judge Do?
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http://www.abanet.org/publiced/volunteer/judge_whatdo.html
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8/3/2007
ABA Division for Public Education: Lawyers & Judges: Judge's Chambers: What Does a Judge Do?
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http://www.abanet.org/publiced/volunteer/judge_whatdo.html
8/3/2007
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3.01
3.02
3.03
3.04
3.05
3.06
3.07
3.08
3.09
3.10
3.11
3.12
3.13
3.14
3.15
3.16
3.17
3.18
Role of Jury
Evidence
Direct and Circumstantial Evidence
Credibility of Witnesses
Not All Evidence, Not All Witnesses Needed
Presumption of Innocence; Burden of Proof; Reasonable Doubt
Nature of Indictment
On or About
Venue
Elements of Offense(s) Charged
Lesser Included Offenses
Separate Consideration Single Defendant Charged With Multiple Offenses
Separate Consideration Multiple Defendants Charged With Single Offense
Separate Consideration Multiple Defendants Charged With Same Offense
Separate Consideration Multiple Defendants Charged With Different Offenses
Election Of Foreperson; Unanimous Verdict; Do Not Consider Punishment; Duty To
Deliberate; Communication With Court
Verdict Form
Special Verdict Form; Special Interrogatories
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3.01
Role of Jury
Members of the jury, you have seen and heard all the evidence and the
arguments of the lawyers. Now I will instruct you on the law.
You have two duties as a jury. Your first duty is to decide the facts from the
evidence that you have heard and seen in court during this trial. That is your job
and yours alone. I play no part in finding the facts. You should not take anything I
may have said or done during the trial as indicating what I think of the evidence or
what I think about what your verdict should be.
Your second duty is to apply the law that I give you to the facts. My role now
is to explain to you the legal principles that must guide you in your decisions. You
must apply my instructions carefully. Each of the instructions is important, and you
must apply all of them. You must not substitute or follow your own notion or
opinion about what the law is or ought to be. You must apply the law that I give to
you, whether you agree with it or not.
Whatever your verdict, it will have to be unanimous. All of you will have to
agree on it or there will be no verdict. In the jury room you will discuss the case
among yourselves, but ultimately each of you will have to make up his or her own
mind. This is a responsibility that each of you has and that you cannot avoid.
Perform these duties fairly and impartially. Do not allow sympathy,
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prejudice, fear, or public opinion to influence you. You should also not be influenced
by any person's race, color, religion, national ancestry, or gender (, sexual
orientation, profession, occupation, celebrity, economic circumstances, or position in life
or in the community).
Comment
See OMalley 12.01. For variations on this instruction in other Circuits, see First
Circuit 3.01; Fifth Circuit 1.03,1.04; Seventh Circuit 1.01; Eighth Circuit 3.01, 3.02;
Ninth Circuit 3.01.
One or more of the characteristics listed in the bracketed language in the last paragraph
should be mentioned also, if it appears that there may be a risk that jurors could be influenced by
those characteristics in a particular case. The trial judge may need to mention other
characteristics that are not listed if it appears that they might influence jurors in a particular case.
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3.02
Evidence
You must make your decision in this case based only on the evidence that you
saw and heard in the courtroom. Do not let rumors, suspicions, or anything else
that you may have seen or heard outside of court influence your decision in any way.
The evidence from which you are to find the facts consists of the following:
(1) The testimony of the witnesses;
(2) Documents and other things received as exhibits; and
(3) Any fact or testimony that was stipulated; that is, formally agreed to by
the parties.
((4) Any facts that have been judicially noticed--that is, facts which I say you may
accept as true even without other evidence.)
The following are not evidence:
(1) The indictment;
(2) Statements and arguments of the lawyers for the parties in this case;
(3) Questions by the lawyers and questions that I might have asked;
(4) Objections by lawyers, including objections in which the lawyers stated
facts;
(5) Any testimony I struck or told you to disregard; and
(6) Anything you may have seen or heard about this case outside the
courtroom.
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You should use your common sense in weighing the evidence. Consider it in
light of your everyday experience with people and events, and give it whatever
weight you believe it deserves. If your experience and common sense tells you that
certain evidence reasonably leads to a conclusion, you may reach that conclusion.
As I told you in my preliminary instructions, the rules of evidence control
what can be received into evidence. During the trial the lawyers objected when they
thought that evidence was offered that was not permitted by the rules of evidence.
These objections simply meant that the lawyers were asking me to decide whether
the evidence should be allowed under the rules.
You should not be influenced by the fact that an objection was made. You
should also not be influenced by my rulings on objections or any sidebar conferences
you may have overheard. When I overruled an objection, the question was
answered or the exhibit was received as evidence, and you should treat that
testimony or exhibit like any other. When I allowed evidence (testimony or exhibits)
for a limited purpose only, I instructed you to consider that evidence only for that
limited purpose and you must do that.
When I sustained an objection, the question was not answered or the exhibit
was not received as evidence. You must disregard the question or the exhibit
entirely. Do not think about or guess what the witness might have said in answer to
the question; do not think about or guess what the exhibit might have shown.
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Sometimes a witness may have already answered before a lawyer objected or before
I ruled on the objection. If that happened and if I sustained the objection, you must
disregard the answer that was given.
Also, if I ordered that some testimony or other evidence be stricken or
removed from the record, you must disregard that evidence. When you are deciding
this case, you must not consider or be influenced in any way by the testimony or
other evidence that I told you to disregard.
Although the lawyers may have called your attention to certain facts or
factual conclusions that they thought were important, what the lawyers said is not
evidence and is not binding on you. It is your own recollection and interpretation of
the evidence that controls your decision in this case. Also, do not assume from
anything I may have done or said during the trial that I have any opinion about any
of the issues in this case or about what your verdict should be.
Comment
See OMalley 12.03, 12.07, 12.08. For variations on this instruction in other Circuits,
see First Circuit 3.04, 3.08; Fifth Circuit 1.06; Sixth Circuit 1.04; Eighth Circuit 3.03;
Ninth Circuit 3.03, 3.04.
The bracketed instruction (4) under what is evidence should be given only when the court
has taken judicial notice of facts during the trial.
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3.03
Two types of evidence may be used in this trial, direct evidence and
circumstantial (or indirect) evidence. You may use both types of evidence in
reaching your verdict.
Direct evidence is simply evidence which, if believed, directly proves a fact.
An example of "direct evidence" occurs when a witness testifies about something the
witness knows from his or her own senses something the witness has seen,
touched, heard, or smelled.
"Circumstantial evidence" is evidence which, if believed, indirectly proves a
fact. It is evidence that proves one or more facts from which you could reasonably
find or infer the existence of some other fact or facts. A reasonable inference is
simply a deduction or conclusion that reason, experience, and common sense lead
you to make from the evidence. A reasonable inference is not a suspicion or a guess.
It is a reasoned, logical decision to find that a disputed fact exists on the basis of
another fact.
For example, if someone walked into the courtroom wearing a wet raincoat
and carrying a wet umbrella, that would be circumstantial or indirect evidence from
which you could reasonably find or conclude that it was raining. You would not
have to find that it was raining, but you could.
Sometimes different inferences may be drawn from the same set of facts. The
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government may ask you to draw one inference, and the defense may ask you to
draw another. You, and you alone, must decide what reasonable inferences you will
draw based on all the evidence and your reason, experience and common sense.
You should consider all the evidence that is presented in this trial, direct and
circumstantial. The law makes no distinction between the weight that you should
give to either direct or circumstantial evidence. It is for you to decide how much
weight to give any evidence.
Comment
See OMalley et al., 1A Fed. Jury Prac. & Instr. 12.04 (5th ed. 2000); Sand, Federal
Jury Instructions, 74-2. For variations of this instruction in other Circuits, see Fifth Circuit
1.07; Sixth Circuit 1.06; Seventh Circuit 1.05; Eighth Circuit 1.03 & 1.04; Ninth Circuit
1.6.
This instruction provides a general explanation of what the terms direct and
circumstantial evidence, infer and inference mean in the context of a trial. This instruction
should be given in most cases since it is likely that the lawyers will use these terms.
In Woodson v. Scott Paper Co., 109 F.3d 913 (3d Cir. 1997), the Third Circuit defined
direct evidence as evidence that proves an ultimate fact in a case without any process of
inference, save inferences of credibility. Direct evidence is evidence given by a witness as to a
fact which the witness has observed or perceived. In contrast to direct evidence, circumstantial
evidence is offered to prove an ultimate fact, but an inferential step by the fact finder is required
to reach that fact. See United States v. Casper, 956 F.2d 416 (3d Cir. 1992). It is essential that
there be a logical and convincing connection between the facts established and the conclusion
inferred. See, e.g., County Court v. Allen, 442 U.S. 140 (1979). The fact that evidence is
circumstantial does not mean that it has less probative value than direct evidence. See Lukon v.
Pennsylvania R. Co., 131 F.2d 327 (3d Cir. 1942). Also see Jackson v. Virginia, 443 U.S. 307,
319 (1979).
In criminal cases, the Constitution mandates the use of permissive inferences rather than
presumptions. See Sandstrom v. Montana, 442 U.S. 510, 515-17 (1979). The court should avoid
the use of the term presume because it may unconstitutionally shift the burden of proof to the
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defendant.
Instructions explaining specific permissible inferences are included in Chapter 6 with the
other instructions concerning the offenses to which they apply. See, e.g., cross reference.
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3.04
Credibility of Witnesses
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(5) Any relation the witness may have with a party in the case and any effect
the verdict may have on the witness;
(6) Whether the witness said or wrote anything before trial that was different
from the witness testimony in court;
(7) Whether the witness testimony was consistent or inconsistent with other
evidence that you believe [alternative: how believable the witness testimony was
when considered with other evidence that you believe]; and
(8) Any other factors that bear on whether the witness should be believed.
Inconsistencies or discrepancies in a witness testimony or between the
testimony of different witnesses may or may not cause you to disbelieve a witness
testimony. Two or more persons witnessing an event may simply see or hear it
differently. Mistaken recollection, like failure to recall, is a common human
experience. In weighing the effect of an inconsistency, you should also consider
whether it was about a matter of importance or an insignificant detail. You should
also consider whether the inconsistency was innocent or intentional.
You are not required to accept testimony even if the testimony was not
contradicted and the witness was not impeached. You may decide that the witness is
not worthy of belief because of the witness bearing and demeanor, or because of the
inherent improbability of the testimony, or for other reasons that are sufficient to
you.
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After you make your own judgment about the believability of a witness, you
can then attach to that witness testimony the importance or weight that you think it
deserves.
The weight of the evidence to prove a fact does not necessarily depend on the
number of witnesses who testified or the quantity of evidence that was presented.
What is more important than numbers or quantity is how believable the witnesses
were, and how much weight you think their testimony deserves.
Comment
See OMalley 15.01 (Credibility of Witnesses--Generally). For variations on this
instruction in other Circuits, see First Circuit 3.06; Eighth Circuit 3.04; Ninth Circuit 3.09.
This instruction should be given in the final instructions at the end of the trial. In
preliminary instructions at the beginning of trial, Instruction No. 1.10 should be given. The last
paragraph of the instruction may be given usefully in a case in which more witnesses testify or
more evidence is presented on one side than on the other. See instruction No. __ (Number of
Witnesses). When the defendant testifies, Instruction No. 4.28 should also be given.
Some judges may want to explain the factors in this instruction by presenting them as
questions that the jurors should ask themselves. See Sixth Circuit 1.07.
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3.05
Comment
As a general matter, there is no requirement that all witnesses or evidence be presented,
and ordinarily no inference can be drawn from the failure to present all witnesses or evidence.
However, in the rare case in which the government could have called an important witness, but
failed to do so, Instruction 4.16 may be considered. Also, if the defendant has argued that the
governments case is deficient because of the failure to use one or more specific investigative
techniques, Instruction 4.14 should be considered.
The bracketed second paragraph should be used if the defendant produced witnesses or
presented evidence.
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3.06
The defendant (name) pleaded not guilty to the offense(s) charged. (Name) is
presumed to be innocent. (He)(She) started the trial with a clean slate, with no
evidence against (him)(her). The presumption of innocence stays with (name) unless
and until the government has presented evidence that overcomes that presumption
by convincing you that (name) is guilty of the offense(s) charged beyond a reasonable
doubt. The presumption of innocence requires that you find (name) not guilty,
unless you are satisfied that the government has proved guilt beyond a reasonable
doubt.
The presumption of innocence means that (name) has no burden or obligation
to present any evidence at all or to prove that (he)(she) is not guilty. The burden or
obligation of proof is on the government to prove that (name) is guilty and this
burden stays with the government throughout the trial.
In order for you to find (name) guilty of the offense(s) charged, the
government must convince you that (name) is guilty beyond a reasonable doubt.
That means that the government must prove each and every element of the
offense(s) charged beyond a reasonable doubt. A defendant may not be convicted
based on suspicion or conjecture, but only on evidence proving guilt beyond a
reasonable doubt.
Proof beyond a reasonable doubt does not mean proof beyond all possible
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Comment
See 1A OMalley 12.10. For variations in other Circuits, see First Circuit 3.02;
Eighth Circuit 3.05-3.08, 3.11; Ninth Circuit 3.2, 3.5.
It is imperative that the trial judge accurately define the governments burden of proof
and the meaning of beyond a reasonable doubt. As long as these concepts are accurately
conveyed to the jury, there are no specific words that must be used. See, e.g., United States v.
Dufresne, 58 Fed. Appx. 890 (3d Cir. 2003); United States v. Hernandez, 176 F.3d 719 (3d Cir.
1999). This instruction is modeled after the instructions the Third Circuit approved in these
cases.
In United States v. Issac, 134 F.3d 199 (3d Cir. 1998), the Third Circuit considered a
challenge to the district courts instructions on reasonable doubt. Specifically, the district court
gave the so-called two inference instruction, as follows: So if the jury views the evidence in
the case as reasonably permitting either of two conclusions, one of innocence, the other of guilt,
the jury should, of course, adopt the conclusion of innocence. 134 F.3d at 202. The Third
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Circuit in Issac first noted that in United States v. Jacobs, 44 F.3d 1219, 1226 & n. 9 (3d Cir.),
cert. denied, 514 U.S.1101 (1995), it urged trial courts to heed the Second Circuit's criticism of
the "two-inference" instruction when it is specifically brought to their attention. (The Courts
reference to the Second Circuit was to United States v. Inserra, 34 F.3d 83, 91 (2d Cir.1994),
which held that the "two-inference" instruction is improper because it "may mislead a jury into
thinking that the government's burden is somehow less than proof beyond a reasonable
doubt,quoting United States v. Khan, 821 F.2d 90, 93 (2d Cir.1987)). The Third Circuit in Issac
continued, Although we disapproved of the "two-inference" instruction in Jacobs, we did not
hold that the instruction was so constitutionally deficient per se that it infected the entire
instruction on reasonable doubt. 44 F.3d at 1226. Ultimately, the Third Circuit upheld the
instruction in Issac, because this deficiency was rectified by the remainder of the reasonable
doubt instruction. 134 F.3d at 202. Courts are, nevertheless, advised to instruct in accordance
with the instruction above and to refrain from using the two-inference instruction.
If the defense presented an affirmative defense (one which does not seek to refute one of
the elements of the offense(s) charged), as to which the law places the burden of persuasion on
the defense, the second and third paragraph of this instruction should be modified to read as
follows:
The prosecution always has the burden or obligation to prove each and every
element of the offense(s) charged beyond a reasonable doubt. The defendant(s) (name) is
(are) presumed to be innocent of the charge(s). The law does not impose on the (name)
the burden of proving (his) (her) (their) innocence or of disproving any of the elements of
the offense(s) charged.
The defendant(s) (name) in this case has (have), however, asserted the defense of
(state the affirmative defense that the defendant(s) asserted). This is what the law calls
an affirmative defense. This affirmative defense does not require (name) to disprove
any element of the offense[s] charged, but it does require the defense to prove certain
other facts that the law recognizes as a sufficient reason to find (name) not guilty.
You must consider the evidence presented by (name) in deciding if the
government has proved the elements of the offense beyond a reasonable doubt. If you
find that the government has proved each and every element of the offense(s) charged
beyond a reasonable doubt, and only after you have made that finding, then you should
decide whether (name) has proved the facts necessary to establish (his) (her) affirmative
defense of (state the affirmative defense raised). To find that (name) has proved this
affirmative defense, you must find that (name) has proved the elements of that defense by
(state the burden of proof by which the defendant must prove the specific affirmative
defense raised in this case).
See, e.g., Patterson v. New York, 432 U.S. 197, 206 (1977) (In convicting Patterson under its
murder statute, New York did no more than Leland v. Oregon, 343 U.S. 790 (1952) and Rivera
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(v. Delaware, 429 U.S. 877 (1976) permitted it to do without violating the Due Process Clause.
Under those cases, once the facts constituting a crime are established beyond a reasonable doubt,
based on all the evidence including the evidence of the defendant's mental state, the State may
refuse to sustain the affirmative defense of insanity unless demonstrated by a preponderance of
the evidence.).
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3.07
As you know, the defendant (name) is charged in the indictment with violating
federal law, specifically (state the offense(s) charged). As I explained at the beginning
of trial, an indictment is just the formal way of specifying the exact crime(s) the
defendant is accused of committing. An indictment is simply a description of the
charge(s) against a defendant. It is an accusation only. An indictment is not
evidence of anything, and you should not give any weight to the fact that (name) has
been indicted in making your decision in this case.
Comment
See 1A OMalley 13.04. For variations in other Circuits, see Seventh Circuit 2.01;
Eighth Circuit 3.05-3.08; Ninth Circuit 3.2.
In United States v. Todaro, 448 F.2d 64, 66 (3d Cir. 1971), cert. denied, 404 U.S. 1040
(1972), the Third Circuit held that the District Judge did not err in allowing the jurors to have a
copy of the indictment with them during their deliberations. This is a matter within the
discretion of the District Judge, subject to a limiting instruction that the indictment does not
constitute evidence, but is an accusation only. Also see, e.g., United States v. Stitt, 380 F. Supp.
1172, 1175 (W.D.Pa.1974), aff'd mem., 510 F.2d 971 (3d Cir.), cert. denied, 421 U.S. 962
(1975). Many judges do not send the indictment out with the jury unless the parties request it. If
the trial judge does allow the jurors to have the indictment, he or she may need to redact it to
eliminate any charges that have been dismissed or any irrelevant allegations.
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3.08
On or About
You will note that the indictment charges that the offense was committed "on
or about" a certain date. The Government does not have to prove with certainty the
exact date of the alleged offense. It is sufficient if the Government proves beyond a
reasonable doubt that the offense was committed on a date reasonably near the date
alleged.
Comment
This instruction is derived from Eleventh Circuit 9.1. For variations, see 1A OMalley
13.05; Sand, Form Instruction 3-12; Fifth Circuit 1.18; Sixth Circuit 2.04; and Seventh
Circuit 4.04.
In United States v. Somers, 496 F.2d 723 (3d Cir. 1974), the Third Circuit detailed the
approach to variances between charges and proof as to the time of the offense.
[I]n evaluating variances, we must first determine whether there has been a
modification in the elements of the crime charged. If such a modification exists,
we will apply the per se rule of Stirone [reversal without inquiry into prejudice to
the defendant] so as to preserve the shielding function of the grand jury. If, on the
other hand, the variance does not alter the elements of the offense charged, we
will focus upon whether or not there has been prejudice to the defendant . . . .
496 F.2d at 744 (citations omitted).
The court noted also that when "the grand jury speaks in more general terms, . . . [b]y the use of
the qualifying phrase 'on or about', the grand jury indicates its unwillingness to pinpoint the date
of the offense charged." 496 F.2d at 745. See also United States v. Schurr, 775 F.2d 549, 558
(3d Cir. 1985) (noting that in a case involving an alibi defense, a variance in proof of a date is
not material in the absence of some specific evidence of prejudice); United States v.
Frankenberry, 696 F.2d 239, 245 (3d Cir. 1982) (concluding that exact date of firearm
possession was critical in light of prosecution theory that defendant possessed two firearms
simultaneously).
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3.09
Venue
The indictment alleges that some act in furtherance of the offense charged
occurred here in (name of venue). There is no requirement that (all aspects of the
offense charged)(the entire conspiracy) take place here in (name of venue). But for you
to return a guilty verdict, the government must convince you that (some act in
furtherance of the crime charged)(either the agreement, or one of the overt acts), took
place here in (name of venue).
Unlike all the elements that I have described, this fact only has to be proved
by a preponderance of the evidence. This means the government only has to
convince you that it is more likely than not that (some act in furtherance of the crime
charged)(part of the conspiracy) took place here.
Remember that the government must prove all the elements I have described
beyond a reasonable doubt.
Comment
This instruction is derived from Sixth Circuit 3.07. For variations, see Sand 3-11 and
Eighth Circuit 3.13.
Venue is a question of fact for the jury. While generally described as an element of the
offense, venue need only be established by a preponderance of the evidence. United States v.
Perez, 280 F.3d 318, 329-30 (3d Cir. 2003).
If venue is in issue in the case, it may be error to refuse to instruct the jury concerning the
requirement that the government prove venue. However, the instruction is not otherwise
required, and is normally not given. In Perez, 280 F.3d 318, 327 (3d Cir. 2003), the Third
Circuit held that:
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[W]here the indictment alleges venue without a facially obvious defect, the failure
to instruct the jury to determine whether that venue is proper is reversible error
only when (1) the defendant objects to venue prior to or at the close of the
prosecution's case-in-chief, (2) there is a genuine issue of material fact with regard
to proper venue, and (3) the defendant timely requests a jury instruction. Because
the first and second prerequisites were unmet here, the District Court did not err in
failing to instruct the jury on venue.
See also United States v. Schofield, 80 Fed. Appx. 798, 805 (3d Cir. 2003) (holding that venue
was not in issue under Perez).
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3.10
Comment
See 1A OMalley 13.03. For variations in other Circuits, see Seventh Circuit 4.01;
Eighth Circuit 3.09.
Chapter 6 of these Model Instructions includes specific instructions on the elements of
the most commonly charged federal offenses. If the defendant is charged with an offense
included within that Chapter, the instruction there should be given. The instruction above should
be used for offenses not specifically covered in Chapter 6.
The relevant statutory provision defining the offense and any controlling case law should
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be examined to determine the essential elements of the offense. The trial judge should describe
the elements in this instruction. This description should state the elements using language that is
as plain and simple as possible. In addition, ii may be necessary to explain to the jury what these
elements mean. Chapters 5 (Criminal Responsibility ), 7 (Mental States), 8 (Definitions), and 9
(Defenses and Theories of Defense) should also be consulted and used where appropriate.
If the indictment contains multiple counts or if there are multiple defendants who are
being tried together, see Instructions 1.16.
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3.11
I have just explained what the government has to prove for you to find (name)
guilty of the offense(s) charged in (Count __ of) the indictment, (e.g., committing a
bank robbery in which someone was exposed to risk of death by the use of a dangerous
weapon). The law also permits the jury to decide whether the government has
proven (name) guilty of another, lesser offense which is, by its very nature,
necessarily included in the offense of (state offense) that is charged in (Count ___ of)
the indictment.
The offense of (state offense), that is charged in (Count ___ of) the indictment,
necessarily includes the lesser offense(s) of (state lesser included offense(s)). In order
to find (name) guilty of this (these) lesser included offense(s), the government must
prove the following elements beyond a reasonable doubt:
First, (state the first element);
Second, (state the second element);
Third, (state the third element); and
(State each additional element).
The difference between the offense charged in (Count ___ of) the indictment
and the lesser offense(s) that (is)(are) included within it is that for the offense
charged in (Count __ of) the indictment, the government must prove __________, but
it does not have to do so to prove the lesser included offense(s).
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If you find unanimously that the government has proved beyond a reasonable
doubt each of the elements of the offense of (state offense) charged in (Count ___ of)
the indictment, then you should find (name) guilty of that offense and your
foreperson should write "guilty" in the space provided on the verdict form for that
offense (for that defendant). Your consideration of that offense (for that defendant) is
then concluded.
However, if you find unanimously that the government has not proved
beyond a reasonable doubt each element of the offense of (state offense) charged in
(Count ___ of) the indictment, then you must find (name) not guilty of that offense
and your foreperson should write "not guilty" in the space provided for that offense
(for that defendant) on the verdict form. You should then consider whether the
government has proved beyond a reasonable doubt all the elements of the lesser
offense(s) of (name of offense(s)) that (is)(are) included in the offense of (state offense)
charged in (Count ___ of) the indictment.
If you find unanimously that the government has proved beyond a reasonable
doubt each of the elements of (this)(these) lesser included offense(s), then you should
find (name) guilty of (this)(these) lesser included offense(s) and your foreperson
should write "guilty" in the space provided for (this)(these) lesser included offense(s)
(for that defendant) on the verdict form. However, if you find unanimously that the
government has not proved beyond a reasonable doubt each element of (this)(these)
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lesser included offense(s), then you must find (name) not guilty of (this)(these)
offense(s) and your foreperson should write "not guilty" in the space provided for
(this)(these) lesser included offense(s) (for that defendant) on the verdict form.
You should remember that the burden is always on the government to prove,
beyond a reasonable doubt, each and every element of the offense charged in the
indictment or of any lesser included offense.
Comment
See OMalley 20.05. For variations in other Circuits, see Sixth Circuit 8.07; Seventh
Circuit 7.02; Eighth Circuit 11.02.
Rule 31(c) of the Federal Rules of Criminal Procedure provides: The defendant may be
found guilty of any of the following: (1) an offense necessarily included in the offense charged;
(2) an attempt to commit the offense charged; or (3) an attempt to commit an offense necessarily
included in the offense charged, if the attempt is an offense in its own right. The rule restates
prior law, see Berra v. United States, 351 U.S. 131 (1956), and permits the jury to find the
defendant guilty of a lesser included offense even though it was not explicitly charged in the
indictment.
In Schmuck v. United States, 489 U.S. 705 (1989), the Supreme Court concluded that,
"one offense is not 'necessarily included' in another [under Rule 31(c)] unless the elements of the
lesser offense are a subset of the elements of the charged offense. Where the lesser offense
requires an element not required for the greater offense, no instruction is to be given under Rule
31(c)." 489 U.S. at 716. Thus, under the elements only test, an offense is a lesser included
offense only if all of its statutory elements can be demonstrated without proof of any fact or
element in addition to those which must be proved for the greater offense. An offense is not a
lesser included offense if it contains an additional statutory element that is not included in the
greater offense.
A lesser included offense instruction is not automatic merely because legally there is a
lesser included offense. First, ordinarily a lesser included offense instruction must be requested
by one of the parties. Second, an instruction for a lesser included offense is proper only if the
evidence would permit a rational jury to find guilt for the lesser offense and acquit on the greater
offense that is charged in the indictment; i.e., only if under a reasonable view, the evidence is
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sufficient to establish guilt of the included offense and also leave a reasonable doubt as to some
particular element of the charged offense. Thus, an instruction for a lesser included offense is
proper only when conviction of the charged offense requires that the jury find a disputed fact
which is not an element of the included offense. [A] lesser-offense charge is not proper where,
on the evidence presented, the factual issues to be resolved by the jury are the same as to both the
lesser and greater offenses.... In other words, the lesser offense must be included within but not,
on the facts of the case, be completely encompassed by the greater. Sansone v. United States,
380 U.S. 343, 349-50 (1965).
When the jury is instructed on lesser included offenses of the offense charged in the
indictment, the verdict form should accurately reflect the choices presented to the jury. See
Instruction 3.17 (Verdict Form). This is important to avoid the type of ambiguous verdict that
prompted the Third Circuit to reverse in United States v. Barrett, 870 F.2d 953 (3d Cir. 1989). In
Barrett, the trial judge instructed the jury that it might find the defendant guilty as charged, guilty
of a lesser included offense, or not guilty, but the verdict slip only provided places to mark guilty
or not guilty. Thus, the jurys mark of guilty on the verdict slip could have meant it convicted
defendant either of the charged offense or the lesser included offense, and thus amounted to a
fatal ambiguity in the verdict constituting reversible error. The Third Circuit stated that the
problem should be avoided by providing verdict forms to the jury that leave no doubt as to what
the jury has determined. 870 F.2d at 954-55, citing 1 F. Devitt and C. Blackmar, Federal Jury
Practice and Instructions 18.05, at 584 (3d ed. 1977). The Third Circuit also rejected the
governments argument that the trial judge could use special interrogatories to clarify the
ambiguous verdict (see Instruction 3.18 Comment), but noted that the trial judge could have sent
the jury back for further deliberations to clarify the ambiguity before accepting the verdict. 870
F.2d at 955, 955 n.1. Also see James A. Strazzella & James A. Shellenberger, The Lesser
Included Offense Doctrine and the Constitution: The Development of Due Process and Double
Jeopardy Remedies, 79 Marq. L. Rev. 1, 180-83 (Submitting Verdict Options to the Jury and
Receiving the Verdicts).
OMalley suggests alternative language in the lesser included offense instruction, [If,
after reasonable efforts have been unsuccessful, the jury is unable to reach a verdict as to
whether or not the government has proven each element of the offense charged in [Count ___ of]
the indictment, the jury should then consider whether or not Defendant _______ is guilty or not
guilty of the [less serious] [other] crime of _______ which is necessarily included in the offense
of _______ charged in [Count ___ of] the indictment.] OMalley, 20.05. Other Circuits
include similar alternative language. See, e.g., Sixth Circuit 8.07; Seventh Circuit 7.02;
Eighth Circuit 11.02. This alternative is not included in the above instruction because it might
encourage jurors not to agree on a verdict. Also, although retrial is permitted after a mistrial has
been properly declared because of a hung jury, Fed. R. Crim P. 31(b)(3); Richardson v. United
States, 468 U.S. 317 (1984), it is not clear whether a conviction on a lesser included offense
might preclude retrial on the charged offense on which the jury could not agree.
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3.12
The defendant (name) is charged with (more than one offense)(several offenses);
each offense is charged in a separate count of the indictment.
The number of offenses charged is not evidence of guilt, and this should not
influence your decision in any way. You must separately consider the evidence that
relates to each offense, and you must return a separate verdict for each offense. For
each offense charged, you must decide whether the government has proved beyond a
reasonable doubt that the defendant is guilty of that particular offense.
Your decision on one offense, whether guilty or not guilty, should not
influence your decision on any of the other offenses charged. Each offense should be
considered separately.
Comment
See 1A OMalley 12.11-12.14. For variations in other Circuits, see Eighth Circuit
3.05-3.08; Ninth Circuit 3.12-3.14; Eleventh Circuit 10.1-10.04.
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3.13
The defendants (names) are all charged with one offense. In our system of
justice, however, guilt or innocence is personal and individual. You must separately
consider the evidence against each defendant, and you must return a separate
verdict for each defendant. For each defendant, you must decide whether the
government has proved that particular defendant guilty beyond a reasonable doubt.
Your decision on one defendant, whether guilty or not guilty, should not
influence your decision on any of the other defendants. Each defendant should be
considered individually.
Comment
See 1A OMalley 12.11-12.14. For variations in other Circuits, see Eighth Circuit
3.05-3.08; Ninth Circuit 3.12-3.14; Eleventh Circuit 10.1-10.04.
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3.14
The defendants (names) are all charged with (more than one offense)(several
offenses); each offense is charged in a separate count of the indictment. The number
of offenses charged is not evidence of guilt, and this should not influence your
decision in any way. Also, in our system of justice, guilt or innocence is personal
and individual. You must separately consider the evidence against each defendant
on each offense charged, and you must return a separate verdict for each defendant
on each offense. For each defendant and offense, you must decide whether the
government has proved beyond a reasonable doubt that the particular defendant is
guilty of the particular offense.
Your decision on any one defendant or any one offense, whether guilty or not
guilty, should not influence your decision on any of the other defendants or offenses.
Each offense and each defendant should be considered separately.
Comment
See 1A OMalley 12.11-12.14. For variations in other Circuits, see Eighth Circuit
3.05-3.08; Ninth Circuit 3.12-3.14; Eleventh Circuit 10.1-10.04.
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3.15
The defendants (names) are charged with different offenses. I will explain to
you in more detail shortly which defendants are charged with which offenses.
Before I do that, however, I want to emphasize several things.
The number of offenses charged is not evidence of guilt, and this should not
influence your decision in any way. Also, in our system of justice, guilt or innocence
is personal and individual. You must separately consider the evidence against each
defendant on each offense charged, and you must return a separate verdict for each
defendant for each offense. For each defendant and each offense, you must decide
whether the government has proved beyond a reasonable doubt that a particular
defendant is guilty of a particular offense.
Your decision on any one defendant or any one offense, whether guilty or not
guilty, should not influence your decision on any of the other defendants or offenses.
Each offense and each defendant should be considered separately.
Comment
See 1A OMalley 12.11-12.14. For variations in other Circuits, see Eighth Circuit
3.05-3.08; Ninth Circuit 3.12-3.14; Eleventh Circuit 10.1-10.04.
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3.16
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anything I may have said or done during trial as indicating what I think of the
evidence or what I think your verdict should be. What the verdict should be is the
exclusive responsibility of the jury.
Fifth, now that all the evidence is in, the arguments are completed, and once I
have finished these instructions, you are free to talk about the case in the jury room.
In fact, it is your duty to talk with each other about the evidence, and to make every
reasonable effort you can to reach unanimous agreement. Talk with each other,
listen carefully and respectfully to each other's views, and keep an open mind as you
listen to what your fellow jurors have to say. Do not hesitate to change your mind if
you are convinced that other jurors are right and that your original position was
wrong. But do not ever change your mind just because other jurors see things
differently, or just to get the case over with. In the end, your vote must be exactly
that--your own vote. It is important for you to reach unanimous agreement, but only
if you can do so honestly and in good conscience. Listen carefully to what the other
jurors have to say, and then decide for yourself if the government has proved the
defendant guilty beyond a reasonable doubt.
No one will be allowed to hear your discussions in the jury room, and no
record will be made of what you say. You should all feel free to speak your minds.
[Remember, if you elected to take notes during the trial, your notes should be used
only as memory aids. You should not give your notes greater weight than your
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independent recollection of the evidence. You should rely upon your own independent
recollection of the evidence or lack of evidence and you should not be unduly influenced
by the notes of other jurors. Notes are not entitled to any more weight than the memory or
impression of each juror.]
Sixth, once you start deliberating, do not talk about the case to the court
officials, or to me, or to anyone else except each other. If you have any questions or
messages, your foreperson should write them down on a piece of paper, sign them,
and then give them to the court official who will give them to me. I will first talk to
the lawyers about what you have asked, and I will respond as soon as I can. In the
meantime, if possible, continue with your deliberations on some other subject.
[If you want to see any of the exhibits that were admitted in evidence, you may
send me a message and, if I can legally do so, I will have those exhibits provided to you.]
One more thing about messages. Do not ever write down or tell anyone how
you or any one else voted. That should stay secret until you have finished your
deliberations. If you have occasion to communicate with the court while you are
deliberating, do not disclose the number of jurors who have voted to convict or
acquit on any offense(s).
Comment
See OMalley 20.01. For variations in other circuits, see First Circuit 6.01-6.03,
6.05; Fifth Circuit 1.24, 1.20; Sixth Circuit 8.01, 8.03-8.05, 8.09-8.10; Seventh Circuit
7.01-7.02, 7.05-7.06; Eighth Circuit 3.12; Ninth Circuit 7.1-7.4, 7.6; Eleventh Circuit 1134
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12.
This instruction should be modified if necessary to be consistent with the practice within
the district. For example, with respect to the First paragraph, the trial judge selects the jury
foreperson in the District of Delaware.
The bracketed paragraph with respect to the use of jurors notes should be used if the
jurors were permitted to take notes during trial. See Instruction No. 1.05.
Court official in paragraph Sixth includes the court personnel who are responsible for
caring for the jury during their deliberations.
Whether to send exhibits out with the jury is within the trial courts discretion and
practice varies widely. See OMalley 20.04. Some judges send out the exhibits routinely in all
cases, others do so only with the agreement of the lawyers, others leave it to the jury to ask for
the exhibits. As for allowing the jurors to have the indictment during deliberations, see
Comment to Instruction __.
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3.17
Verdict Form
A verdict form has been prepared that you should use to record your
verdict(s).
Take this form with you to the jury room. When you have reached your
unanimous verdict(s), the foreperson should write the verdict(s) on the form, date
and sign it, return it to the courtroom and give the form to my courtroom deputy to
give to me. If you decide that the government has proved (name) guilty of any or all
of the offenses charged beyond a reasonable doubt, say so by having your foreperson
mark the appropriate place on the form. If you decide that the government has not
proved (name) guilty of some or all of the offenses charged beyond a reasonable
doubt, say so by having your foreperson mark the appropriate place on the form.
Comment
See OMalley 20.01. For variations in other circuits, see First Circuit 6.04; Sixth
Circuit 8.06; Seventh Circuit 7.01-7.02; Eighth Circuit 3.12, 11.01-11.03; Ninth Circuit
7.5; Eleventh Circuit 12.
The trial judge should review the verdict form with counsel before submitting it to the
jury. This instruction and the verdict form will need to be modified to reflect different practices
among the districts and trial judges. For example, in the Western District of Pennsylvania each
juror signs the verdict form, not only the foreperson. If that practice is followed, it should be
explained to the jury. (E.g., When you have reached your unanimous verdict(s), the foreperson
should write the verdict(s) on the form and date it. Each juror should then sign the verdict form
in the spaces provided at the end. When you return to the courtroom, the foreperson will give the
form to my courtroom deputy to give to me.) Also, different judges may have different
practices with respect to presenting the verdict form to the jury. Some judges may read the form
to the jury, others may hand it out and then orally review it with the jurors, others may refer to
the verdict form throughout their instructions on the offense(s).
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When the jury has been instructed on lesser included offenses of the offense charged in
the indictment, the verdict form should accurately reflect the choices presented to the jury. See
Instruction 3.11.
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3.18
No instruction recommended
COMMENT
The Third Circuit has stated that special interrogatories are disfavored in criminal cases,
but they may be used in the discretion of the trial court. If special interrogatories are used, the
trial court should make it clear that the jury should answer the special interrogatories only after it
has already found the defendant guilty. Thus, in United States v. Hedgepeth, 434 F.3d 609, 613
(3d Cir 2006), the Third Circuit stated that:
Although special interrogatories are disfavored in criminal trials, this court has
established no per se rule against them. United States v. Palmeri, 630 F.2d 192, 202 (3d
Cir.1980), cert. denied, 450 U.S. 967 (1981) (citations omitted). Nevertheless, there are
circumstances where the use of special findings may be necessary," including "where a
determination of certain facts will be crucial to the sentence...." United States v.
Desmond, 670 F.2d 414, 418 (3d Cir.1982); see also United States v. Barrett, 870 F.2d
953, 955 (3d Cir.1989) ("sharply contrast[ing]" use of special interrogatories "to assist in
sentencing" with their impermissible use "to clarify an ambiguous verdict").
The disfavor with which courts view special interrogatories in criminal cases
results from interrogatories that lead the jury in a step-by-step progression to a verdict of
guilty. Palmeri, 630 F.2d at 202. Therefore, our Court has held that, when special
findings are necessary for sentencing purposes, "the appropriate information may be
obtained by submitting special interrogatories to the jury after a guilty verdict has been
returned." Desmond, 670 F.2d at 418.
The Third Circuit also noted in Hedgepeth that, [a] special interrogatory has been submitted
after a guilty verdict has been returned when jurors are instructed on a single form to answer the
special interrogatory only after filling out a verdict of guilty or not guilty. United States v.
Hegepeth, 434 at 613 fn 2. In Hedgepeth, the verdict slip was structured so that it instructed the
jury to determine first whether the defendant was guilty of possession of a firearm by a felon and,
only after making that determination, to consider the special interrogatories. The Third Circuit
reasoned that the danger of prejudice to Hedgepeth was thus alleviated, as we cannot say that
the jury was led step-by-step to a guilty verdict when the special findings followed the guilt
determination, id. citing United States v. Console, 13 F.3d 641, 663 (3d Cir. 1993). The court
concluded, As we have held that special interrogatories are appropriate in the sentencing context
when they are considered by the jury after a guilty verdict has been rendered, it was not an abuse
of discretion for the District Court to allow the Government to submit the special verdict form to
the jury. 434 F.3d at 614.
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The Supreme Courts decisions in Apprendi v. New Jersey, 530 U.S. 466 (2000), and its
progeny emphasize the need for specific jury findings for sentencing purposes and the potential
use of special interrogatories after a guilty verdict. Apprendi held that [o]ther than the fact of a
prior conviction, any fact that increases the penalty for a crime beyond the statutory maximum
must be submitted to a jury, and proved beyond a reasonable doubt. Id. at 490. Also see
Blakely v. Washington, 542 U.S. 296, 303 (2004) (the statutory maximum for Apprendi
purposes is the maximum sentence a judge may impose solely on the basis of the facts reflected
in the jury verdict or admitted by the defendant.); Washington v. Recuenco, __ U.S. __, S. Ct.
(2006) (government conceded error by trial judges imposing firearm enhancement to
defendants sentence, but Supreme Court remanded for determination whether the error was
harmless, where the jury answered a special verdict form that defendant convicted of assault in
the second degree was armed with a deadly weapon at the time of the offense, but nothing in
the verdict form required jury specifically to find that defendant had used a firearm).
In United States v. Console, 13 F.3d 641, 663 (3d Cir. 1993), the issue was whether the
trial judge should have submitted to the jury special interrogatories with respect to the elements
of a RICO charge. The Third Circuit stated, A defendant has no right to a verdict on the
elements of an offense. United States v. Riccobene, 709 F.2d at 228. The district court has
discretion in determining whether to submit special interrogatories to the jury regarding the
elements of an offense. Riccobene, 709 F.2d at 228. [E]ven where the opposing party does not
object, the court is not required to submit special questions to the jury. Id. In Console, the
court found no evidence that the district court abused its discretion in denying defendant's request
for special interrogatories, as the jury already was faced with the difficult task of resolving
multiple RICO and mail fraud counts against multiple defendants. Moreover, even when special
interrogatories regarding RICO predicates are submitted to the jury, the court is permitted to give
an instruction to the jury to answer the interrogatories only after it votes to convict, thereby
alleviating the danger of prejudice to the defendant. 13 F.3d at 663 (emphasis added).
The only Circuit to include a special verdict instruction or form in its model instructions
is the Eighth Circuit, Model Jury Instruction 11.03 (Sample Special Verdict Form
(Interrogatories To Follow Finding Of Guilt)), which states:
VERDICT
We, the jury, find defendant (name) _______ guilty/not guilty of the use of a
firearm during and in relation to a crime of violence [as charged in Count _______ of the
indictment] [under Instruction No. _______ ].
If you find defendant "guilty," you must answer the following:
Which of the following firearms do you find were used by defendant?
_______ A 9mm semi-automatic pistol.
_______ An M-16 fully automatic rifle.
_______ A short-barreled 12-gauge shotgun.
39
September 2006
150
(Check each firearm which the jury unanimously agrees defendant used.)
________________________________________________________________________
Foreperson
________________________________________________________________________
(Date)
Under Apprendi, et al, the jury should also be instructed it must unanimously find that the
sentencing factors were proved beyond a reasonable doubt.
In addition to RICO and firearms cases, special interrogatories may also be useful in
narcotics cases in which the potential sentence may depend on the quantity and type of drug
proved by the evidence. See Instructions cross-reference.
40
September 2006
151
152
153
154
155
156
157
158
159
160
161
162
163
164
165
x
166
167
168
169
As noted in Chapter Three (p. 44 supra), non-lawyer judges serve in the magistrate courts in many
states. However, all general trial court judges and appellate court judges will be lawyers. Moreo
ver, in those states in which magistrates need not be lawyers, the defendant often has a right to a
trial de novo before the general trial court, which will provide him with a fresh trial before a
lawyer-judge. See p. 39 supra.
2.
There are a few states in which graduates of the state law school are automatically admitted to
practice law in that state without taking the bar examination. There are also a few states in which
a person can qualify to take the examination by learning law while clerking in a law firm rather
than by attending law school. However, this route to the taking of the examination is rarely
utilized.
3.
Each state has its own Code of Professional Responsibility, but those codes all follow closely the
American Bar Association's Code of Professional Responsibility (Approved Draft 1970, with
subsequent amendments). The A.B.A.'s Code consists of "Cannons," "Disciplinary Rules," and
"Ethical Considerations." The Cannons are statements of general concepts (e.g., that a lawyer
"should exercise independent professional judgment on behalf of a client"). The Disciplinary
Rules are specific guidelines, violation of which will result in the imposition of sanctions. The
state codes commonly consist solely of the Cannons and the Disciplinary Rules. The Ethical
Considerations are statements of principles designed to assist the attorney in resolving ethical
issues presented in particular situations. They are described by the A.B.A. as "aspirational in
character and represent[ing] the objectives toward which every member of the profession should
strive."
425
<
426
differences in their roles, their methods of selection, their training, and their
relationship to the non-lawyer professionals in the criminal justice process. We
start with a description of the various officials who may serve as prosecutors.
The statistics on prosecuting attorneys used in this chapter come from the Sourcebook of Crimi
nal Justice Statistics-1976, note 1 at p. 1 supra, and the National District Attorney Association,
National Prosecution Standards, Chicago, Ill., 1977.
5.
Part-time prosecutors ordinarily spend the remainder of their time in the private practice of law.
That practice may affect in various respects the prosecutor's handling of his public role, although
statutes ordimirily bar the prosecutor from private practice in situations presenting a direct
conflict with his public position. (Most part-time prosecutors limit their private practice to civil
matters, although some handle criminal defense work in adjoining counties), In recent years,
considerable effort has been made to make the prosecutor's position a full-time position, with
private practice barred.
171
427
only to a limited class of offenses, such as tax fraud and criminal antitrust viola
tions, as to which local prosecutors are likely to lack sufficient expertise. 6 In these
areas, they often create special units that will deal with almost all such offenses
committed throughout the state. The success of these units has led several states
that do not permit the general initiation of prosecution by the attorney general to
authorize initiation for limited groups of crimes, like antitrust, that often have a
statewide impact and require special expertise to prosecute.
The prosecuting attorney and the attorney general ordinarily are the only
officials with authority to prosecute violations of state law. Public attorneys at
other levels of government, such as a city or township attorney, cannot enforce
state provisions. They may, however, bring prosecutions to enforce local ordi
nances, and such ordinances frequently duplicate state misdemeanors both i~1
substance and authorized punishments. Where the city attorney and the prose
cuting attorney follow different policies as to the treatment of minor offenses (e.g.,
whether plea bargaining will be used in drunk driving cases), the result often is
disparate treatment of defendants depending upon whether the local police pre
sent their case to the city attorney for prosecution as an ordinance violation or to
the local prosecutor for prosecution as a state misdemeanor.
The reference here is only to states that utilize local prosecutors. In addition, there are three
states, described at note 9 infra, in which the attorney general bears responsibility for all local
prosecutions.
7... There are various aspects of litigation as to which the prosecutor may have considerable discre
tion, providing he meets the minimum legal standards. Thus, the prosecutor may choose between
prosecuting on several different offenses in a single prosecution or in separate prosecutions. He
may prosecute accomplices separately or in ajoint trial. He may give defense counsel substantial
ly more advance notice of the nature of the prosecution's case than is legally required (usually,
this is done if the defense counsel is willing to give reciprocal disclosure). In a few jursidictions, the
prosecutor may insist upon a jury trial even though the defendant desires to waive a jury trial.
172
--------------aa
428
Federal Prosecutions. In the federal system, the final authority over all prose
cutions rests with the Attorney General. Of course, the Attorney General does not
personally supervise individual prosecutions; he relies heavily on various
subordinate officials who are given the primary responsibility for prosecutorial
decisions. For most federal offenses, that responsibility lies with the United States
Attorneys. There are 94 United States Attorneys, one for each of the federal
judicial districts. Their offices range in strength from a single Assistant U.S.
Attorney (in Guam) to over 150 Assistants (in the District of Columbia). Over half
of the offices have fewer than ten attorneys. The U.S. Attorneys are given consid
erable discretion, but they must operate within general guidelines prescribed by
the Attorney General. For certain types of cases (e.g., civil rights prosecutions),
they must receive specific approval from the Attorney General or the Deputy
Attorney General in charge of the Criminal Division of the Department of Justice.
The Criminal Division operates as the arm of the Attorney General in coordinat
ing the enforcement offederallaws by the U.S. Attorneys. In various areas-most
8.
One of the earlier recommendations was that advanced by the Wickersham Commission in 1931.
More recently a similar proposal Was made by the Committee for Economic Development, com
posed of a distinguished group of businessmen. Both proposals are discussed in National ASHocia
tion of Attorneys General, The Prosecution Function, Raleigh, North Carolina, 1974, p. 37.
9.
In each of these states, all prosecutions are conducted under the direction of the Attorney
General. In Alaska, local prosecutors are used, but they are appointed by the attorney general,
and he is responsible for their performance.
173
429
notably white collar crime and public corruption-the Criminal Division provides
substantial assistance to United States Attorneys in the investigation and presen
tation of cases. In a few specialized areas (e.g.,' antitrust), the initial responsibility
for enforcement is given to other divisions of the Justice Department. If any
conflicts arise between the policies followed by those divisions and the U.S. Attor
neys, they can be resolved by the Attorney General.
THE SELECTION
AND TRAINING OF PROSECUTORS
Selection o/the Prosecuting Attorney. With few exceptions, local prosecut
ing attorneys are elected in a partisan election in the district they serve. 10 They are
elected for a fairly short term of office, usually four years, with eleven states
having terms of only two years. Two states provide for the appointment of local
prosecutors, but political considerations also are said to playa part in their selec
tion. l l United States Attorneys are appointed by the President, with the consent
of the Senate. The Presidential appointees ordinarily have been recommended by
the Senators from the state in which they will serve. The United States Attorneys
tend to be of the same political party as the President and usually are replaced
when a new President from another party takes office.
As one might expect, with the minimal job security provided by the political
selection process, most prosecuting attorneys do not view their office as a career
position. Indeed, this attitude carries over even to jurisdictions in which incum
bents ordinarily are reelected, so that the prosecutor could assume that he would
have a fairly long tenure ifhe so desired. Studies conducted in various states have
produced such statistics as: (1) almost 50 % of the local prosecutors were serving
their first term; (2) most former prosecuting attorneys had left office voluntarily
rather than because of an election defeat; (3) almost 50% of the prosecutors
interviewed were interested in seeking other government positions.1 2 Of course,
there are exceptions to this general pattern. In almost every state, one can point to
prosecutors who have remained in office for twenty or thirty years and have
rejected countless opportunities to become judges or enter private practice. The
number of prosecutors following such a career pattern appears to be growing
slightly, but it still represents only a small portion of the 2,600 local prosecutors in
this country.
10. As noted supra, state attorneys general may also have significant prosecutorial authority. Attor
neys general are elected in forty-two states, appointed by the governor in six states, appointed by
the legislature in one state, and by the state supreme court in another.
ll. Prosecuting attorneys are appointed by the court in Connecticut and by the governor in New
Jersey. The National District Attorneys Association, National Prosecution Standards, note 4
supra, at 1.1, favors local election, as opposed to appointment, on the ground that appointment
eliminates the prosecutor's "direct authority from and responsibility to, the voters of his district."
The commentary to the standard further notes, however, that nonpartisan elections may be
desirable in some settings.
12. See National Prosecution Standards, note 4 supra, at p. 11-12. These statistics also are ex
plained, in part, by the fact that the post of prosecuting attorney is not a full-time position in
many areas of the country. See note 5 supra.
174
430
431
experience. Continuing education programs also are available. The National Col
lege of District Attorneys offers, in particular, a wide variety of courses covering
topics ranging from office management to the newest legal developments.
432
prosecuting attorneys are given specialized assignments that permit them to capi
talize on their experience. An attorney who is particularly successful with a certain
type of case-homicide or robbery, for example-may try a majority of those cases
that go to trial in his jurisdiction. Successful prosecutors become familiar with the
abilities and also the idiosyncracies of the trial judges. In some jurisdictions, they
can arrange their dockets so as to have cases set before the judges they believe will
be most favorable to the type of case they are presenting. Prosecutors (along with
defense attorneys) often investigate the background of the members of the jury
panel, seeking to determine profession, social status, and other matters that might
be valuable in the exercise of peremptory challenges.
If the case results in a conviction, either through a guilty verdict or guilty
plea, the prosecutor will participate in the sentencing hearing. In many jursidic
tions, he will make a recommendation on sentence. In all jurisdictions, he is
responsible for presenting to the court any special information bearing on the
sentence that is not likely to be in the presentence report. If there is a subsequent
appeal, or a collateral proceeding (e.g., a habeas corpus petition), he will represent
the state in that proceeding as well.
In many communities, the prosecutor serves still other functions in the
criminal justice system. He often is the foremost spokesman for law enforcement
in the community. He goes before the legislature to recommend or oppose penal
reform. He is called upon to make speeches on crime and law enforcement before
various groups. He participates in police training programs. In highly publicized
cases, he often supervises the release of information to the media so as to minimize
the possibility that prejudicial pretrial publicity will deny the defendant a fair
trial.
In most jurisdictions, the prosecutor also will have significant responsibility
in civil matters involving the county government. Thus, the prosecc.tor ordinarily
represents the county in all suits against it. He also may be involved in negotia
tions relating to accident claims, contract claims, and labor relation problems
involving the county.16 Ordinarily, the prosecutor's civil obligations do not inter
fere with his primary responsibility of presenting criminal prosecutions. There are
some situations, however, in which conflicts may arise. Thus, in a particular case,
the prosecutor may be forced to consider not only the need for enforcement of the
criminal law against a likely defendant, but also that defendant's ability to press a
civil suit against the local government arising from excessive use of police force.
The resulting trade-off may be one that would not have been arrived at if the
prosecutor's perspectives were not shaped by his civil as well as his criminal
responsibilities.
The Duty 1b Seek Justice. In exercising his extensive authority within the
criminal justice process, the prosecutor is not simply the adversary of the defense
counsel. Unlike the defense counsel, his duty is not to "win" wherever he can do so
16. In recent years, there has been a movement towards relieving the prosecutor of responsibility for
handling civil matters. In about one-fourth of the states, the local prosecutor now is responsible
only for criminal cases. In several other states, prosecutors in large urban areas have been divested
of civil responsibilities, which have become the province of special county counsel. The federal
prosecutors-the United States Attorneys-still have very substantial responsibilities for repre
sentation of the United States government in civil litigation.
177
433
within the limits of the law. The prosecutor also must be satisfied that the result
reached in a particular case is a correct one and that the government has not
treated the accused unfairly. The interest of his client-the state-is not
equivalent to the narrow self-interest of the defendant. His overall objective is to
"seek justice" within the law. The Code of Professional Responsibility sets forth
this obligation, and the reasons for its existence, as follows:
The responsibility of a public prosecutor differs from that of the usual advocate; his
duty is to seek justice, not merely to convict. This special duty exists because: (1) the
prosecutor represents the sovereign and therefore should use restraint in the discre
tionary exercise of governmental powers, such as in the selection of cases to prose
cute; (2) during trial the prosecutor is not only an advocate but he also may make
decisions normally made by an individual client, and those affecting the public
interest should be fair to all; and (3) in our system of criminal justice the accused is to
be given the benefit of all reasonable doubts. 17
434
cooperate in securing leave of the court for the withdrawal of the plea of guilty.
The Standards require high professional conduct from the prosecutor in the
course of a trial. He must act with dignity in the courtroom and support the
authority of the court. It is unprofessional conduct for a prosecutor to engage in
179
435
436
21. Sourcebook of Criminal Justice Statistics-1976, note 1, p. 1 supra, at p. 38. The organization of
various defender agencies is described in the report of the National Study Commission on De
fense Services, Guidelines For Legal Defense Systems in the United States, Chicago, Ill.: Nation
al Legal Aid and Defender Association, 1976.
22. Some statewide agencies serve only on appeals, with county defender agencies or court appointed
private counsel providing representation at trial.
181
248
Ch. 5
Common Practices
(a) In a particular community the local attitude toward state
liquor laws was such that the prosecutor would charge offenders for
liquor violations only when they became extensive or notorious or
were combined with other vice crimes. He said that though the state
legislation was strict the laws were unpopular in his county and it was
almost impossible to get a jury that would convict.
(b) A warrant had been issued for passing bad checks and the
offender arrested in a distant state. The prosecutor, noting that it
would cost about $500 to extradite him and that the checks amounted
only to $60, decided against requesting extradition. The prosecutor
stated that if the checks had totaled $100 or more he would probably
have gone ahead with extradition.
(c) In a case of burglary where the evidence was somewhat weak,
the prosecutor agreed with the one of two offenders whom he con
sidered only a follower not to charge him with burglary if he would
agree to testify against the other. The fellow said he would, and the
prosecutor pointed out that the charge could always be filed later on
if he backed down.
(d) A seventeen-year-old defendant in Michigan was charged
with sale of narcotics based upon the sale of some marihuana ciga
rettes to a friend. While the state's evidence was clearly sufficient
to establish the crime of "sale," the prosecutor's office reduced the
charge to "possession," a lesser offense. A prosecutor explained, "We
can't take these kinds of cases to trial. In the first place the law isn't
intended to cover this type of situation. In the second place, when
juries find out that the mandatory penalty is twenty years to life they
just won't convict. Who is going to send a seventeen-year-old to prison
for twenty years? And the judges don't like the law either, because
they are caught in the same bind." The defendant pleaded guilty to
the "possession" charge.
Question
Do any of the prosecutor's decisions in the above excerpt seem
wrong?
* Remington,
Ch.5
249
183
250
Ch.5
ly complained against for fraud but there was never enough evidence
to support charges. Despite the practice not to charge doctors and
dentists with minor offenses alleged by their patients, a warrant was
issued charging this dentist with assault and battery.
Questions
The above excerpt contains difficult decisions for the prosecu
tor.
* Hall,
Ch. 5
251
(c) A man called the prosecutor's office to ask that his next
door neighbor be prosecuted for tearing down part of his fence which
ran between their properties. Investigation disclosed that the offense
of criminal damage to property had in fact occurred, but also that
this was merely the latest incident in a longstanding feud between the
two men concerning the boundaries of their respective properties.
(d) A police officer reported the following: He was called to a
stabbing in the Negro ghetto. Upon investigation, he learned that the
wife had stabbed her husband with a pair of scissors during an argu
ment. The husband said he did not want his wife prosecuted and that
he called the police because he needed a ride to the hospital. The of
ficer, assigned to this precinct for some years, volunteered the ob
servation that "this is the way these people settle their differences."
(e) A local merchant has complained that a customer purchased a
television set from him and paid for the set with a forged check in the
amount of $150. The customer has since moved away and is now
known to reside in another state over 500 miles away. The merchant
has demanded that something be done, and has asserted, "All I want is
my $150."
Questions
Can one argue, in case (a), that the decision whether the young
boy's action constituted a crime had been made by the legislature, and
that the prosecutor had no choice, but to prosecute-hoping that the
courts in the event of conviction, would be lenient as to the sentence?
In (b), should the prosecutor consider that the crime was commit
ted out of conscience and that not much harm was done, or should he
leave this to the judge to decide? Should he be influenced by the fact
that prosecuting a minister, who may be able to raise considerable
funds to defend himself and generate considerable excitement in the
community, may be a mis-allocation of his office's resources.
Should the prosecutor, in case (c), intervene at any arbitrary
point in a neighborhood dispute where, although he is certain he can
prove that one has committed a crime, he feels that, over the course
of time, the two neighbors have been about equally guilty?
In case (d), should the prosecutor be influenced by the fact that
jurie'S" are notoriously unwilling to convict for assault upon a com
plainant who does not seem to want the defendant punished? Is it al
so relevant that the complainant might be a very unwilling witness and
that unwilling witnesses tend to make very unconvincing witnesses
before the jury?
In case (e), should the prosecutor be influenced by the fact that
it would cost more to prosecute the defendant than the financial harm .
the defendant has done; that it would really be cheaper'for the gov
ernment to give the merchant $150 rather than prosecute; that if the
185
276
Ch.5
the defendant and his attorney have the right to put the state to its
proof?
Where the accused is indigent and is provided with a lawyer at
public expense, there seems to be no stigma attached to the public
defender or the court-appointed counsel for doing his job. In the
main, it is the private attorney who can, but does not, refuse the case
who may suffer from a community reaction against one who defends
the guilty.
How different is this from the case of a physician who cures some
one of a disease knowing that, when cured, his patient will do harm
to others? Presumably we would say that the patient's future con
duct-or, even more clearly, his past conduct-is simply none of the
physician's business. Why do we not simply say the same thing about
the guilty client and the defense attorney? Is it possible that the
reason for the difference in the way we look at the two roles is that
we can think of ourselves as needing a physician but not as needing
a defense attorney?
In any event the important issue is not whether a defense attor
ney can defend a particular unpopular client, but rather what the de
fense attorney can legally and ethically do for his client.
2.
a. CANON 15.
Canons of
Professional Ethics (Chicago, Ameri
186
187
Prosecution Function
PART I.
GENERAL STANDARDS
Standard 3-1.1 The Function of the Standards
These standards are intended to be used as a guide to professional conduct and
performance. They are not intended to be used as criteria for the judicial evaluation of
alleged misconduct of the prosecutor to determine the validity of a conviction. They may
or may not be relevant in such judicial evaluation, depending upon all the circumstances.
Standard 3-1.2 The Function of the Prosecutor
(a) The office of prosecutor is charged with responsibility for prosecutions in its
jurisdiction.
(b) The prosecutor is an administrator of justice, an advocate, and an officer of the court;
the prosecutor must exercise sound discretion in the performance of his or her functions.
(c) The duty of the prosecutor is to seek justice, not merely to convict.
(d) It is an important function of the prosecutor to seek to reform and improve the
administration of criminal justice. When inadequacies or injustices in the substantive or
procedural law come to the prosecutor's attention, he or she should stimulate efforts for
remedial action.
(e) It is the duty of the prosecutor to know and be guided by the standards of
professional conduct as defined by applicable professional traditions, ethical codes, and
law in the prosecutor's jurisdiction. The prosecutor should make use of the guidance
afforded by an advisory council of the kind described in standard 4-1.5.
188
189
190
191
192
(d) A prosecutor should not intentionally misrepresent facts or otherwise mislead the
court in order to obtain a continuance.
(e) A prosecutor, without attempting to get more funding for additional staff, should not
carry a workload that, by reason of its excessive size, interferes with the rendering of
quality representation, endangers the interests of justice in the speedy disposition of
charges, or may lead to the breach of professional obligations.
Standard 3-2.10 Supercession and Substitution of Prosecutor
(a) Procedures should be established by appropriate legislation to the end that the
governor or other elected state official is empowered by law to suspend and supersede a
local prosecutor upon making a public finding, after reasonable notice and hearing, that
the prosecutor is incapable of fulfilling the duties of office.
(b) The governor or other elected official should be empowered by law to substitute
special counsel in the place of the local prosecutor in a particular case, or category of
cases, upon making a public finding that this is required for the protection of the public
interest.
Standard 3-2.11 Literary or Media Agreements
A prosecutor, prior to conclusion of all aspects of a matter, should not enter into any
agreement or understanding by which the prosecutor acquires an interest in literary or
media rights to a portrayal or account based in substantial part on information relating to
that matter.
PART III.
INVESTIGATION FOR PROSECUTION DECISION
Standard 3-3.1 Investigative Function of Prosecutor
(a) A prosecutor ordinarily relies on police and other investigative agencies for
investigation of alleged criminal acts, but the prosecutor has an affirmative responsibility
to investigate suspected illegal activity when it is not adequately dealt with by other
agencies.
(b) A prosecutor should not invidiously discriminate against or in favor of any person
on the basis of race, religion, sex, sexual preference, or ethnicity in exercising discretion
to investigate or to prosecute. A prosecutor should not use other improper considerations
in exercising such discretion.
(c) A prosecutor should not knowingly use illegal means to obtain evidence or to
employ or instruct or encourage others to use such means.
(d) A prosecutor should not discourage or obstruct communication between prospective
witnesses and defense counsel. A prosecutor should not advise any person or cause any
person to be advised to decline to give to the defense information which such person has
the right to give.
193
(e) A prosecutor should not secure the attendance of persons for interviews by use of
any communication which has the appearance or color of a subpoena or similar judicial
process unless the prosecutor is authorized by law to do so.
(f) A prosecutor should not promise not to prosecute for prospective criminal activity,
except where such activity is part of an officially supervised investigative and
enforcement program.
(g) Unless a prosecutor is prepared to forgo impeachment of a witness by the
prosecutor's own testimony as to what the witness stated in an interview or to seek leave
to withdraw from the case in order to present the impeaching testimony, a prosecutor
should avoid interviewing a prospective witness except in the presence of a third person.
Standard 3-3.2 Relations With Victims and Prospective Witnesses
(a) A prosecutor should not compensate a witness, other than an expert, for giving
testimony, but it is not improper to reimburse an ordinary witness for the reasonable
expenses of attendance upon court, attendance for depositions pursuant to statute or court
rule, or attendance for pretrial interviews. Payments to a witness may be for
transportation and loss of income, provided there is no attempt to conceal the fact of
reimbursement.
(b) A prosecutor should advise a witness who is to be interviewed of his or her rights
against self-incrimination and the right to counsel whenever the law so requires. It is also
proper for a prosecutor to so advise a witness whenever the prosecutor knows or has
reason to believe that the witness may be the subject of a criminal prosecution. However,
a prosecutor should not so advise a witness for the purpose of influencing the witness in
favor of or against testifying.
(c) The prosecutor should readily provide victims and witnesses who request it
information about the status of cases in which they are interested.
(d) the prosecutor should seek to insure that victims and witnesses who may need
protections against intimidation are advised of and afforded protections where feasible.
(e) The prosecutor should insure that victims and witnesses are given notice as soon as
practicable of scheduling changes which will affect the victims' or witnesses' required
attendance at judicial proceedings.
(f) The prosecutor should not require victims and witnesses to attend judicial
proceedings unless their testimony is essential to the prosecution or is required by law.
When their attendance is required, the prosecutor should seek to reduce to a minimum the
time they must spend at the proceedings.
(g) The prosecutor should seek to insure that victims of serious crimes or their
representatives are given timely notice of: (i) judicial proceedings relating to the victims'
case; (ii) disposition of the case, including plea bargains, trial and sentencing; and (iii)
any decision or action in the case which results in the accused's provisional or final
release from custody.
(h) Where practical, the prosecutor should seek to insure that victims of serious crimes
or their representatives are given an opportunity to consult with and to provide
information to the prosecutor prior to the decision whether or not to prosecute, to pursue
a disposition by plea, or to dismiss the charges.
194
195
(b) No prosecutor should knowingly fail to disclose to the grand jury evidence which
tends to negate guilt or mitigate the offense.
(c) A prosecutor should recommend that the grand jury not indict if he or she believes
the evidence presented does not warrant an indictment under governing law.
(d) If the prosecutor believes that a witness is a potential defendant, the prosecutor
should not seek to compel the witness's testimony before the grand jury without
informing the witness that he or she may be charged and that the witness should seek
independent legal advice concerning his or her rights.
(e) The prosecutor should not compel the appearance of a witness before the grand jury
whose activities are the subject of the inquiry if the witness states in advance that if called
he or she will exercise the constitutional privilege not to testify, unless the prosecutor
intends to judicially challenge the exercise of the privilege or to seek a grant of immunity
according to the law.
(f) A prosecutor in presenting a case to a grand jury should not intentionally interfere
with the independence of the grand jury, preempt a function of the grand jury, or abuse
the processes of the grand jury.
(g) Unless the law of the jurisdiction so permits, a prosecutor should not use the grand
jury in order to obtain tangible, documentary or testimonial evidence to assist the
prosecutor in preparation for trial of a defendant who has already been charged by
indictment or information.
(h) Unless the law of the jurisdiction so permits, a prosecutor should not use the grand
jury for the purpose of aiding or assisting in any administrative inquiry.
Standard 3-3.7 Quality and Scope of Evidence for Information
Where the prosecutor is empowered to charge by information, the prosecutor's
decisions should be governed by the principles embodied in Standards 3-3.6 and 3-3.9,
where applicable.
Standard 3-3.8 Discretion as to Noncriminal Disposition
(a) The prosecutor should consider in appropriate cases the availability of noncriminal
disposition, formal or informal, in deciding whether to press criminal charges which
would otherwise be supported by probable cause; especially in the case of a first offender,
the nature of the offense may warrant noncriminal disposition.
(b) Prosecutors should be familiar with the resources of social agencies which can assist
in the evaluation of cases for diversion from the criminal process.
Standard 3-3.9 Discretion in the Charging Decision
(a) A prosecutor should not institute, or cause to be instituted, or permit the continued
pendency of criminal charges when the prosecutor knows that the charges are not
supported by probable cause. A prosecutor should not institute, cause to be instituted, or
permit the continued pendency of criminal charges in the absence of sufficient admissible
evidence to support a conviction.
196
(b) The prosecutor is not obliged to present all charges which the evidence might
support. The prosecutor may in some circumstances and for good cause consistent with
the public interest decline to prosecute, notwithstanding that sufficient evidence may
exist which would support a conviction. Illustrative or the factors which the prosecutor
may properly consider in exercising his or her discretion are:
(i) the prosecutor's reasonable doubt that the accused is in fact guilty;
(ii) the extent of the harm caused by the offense;
(iii) the disproportion of the authorized punishment in relation to the particular
offense or the offender;
(iv) possible improper motives of a complainant;
(v) reluctance of the victim to testify;
(vi) cooperation of the accused in the apprehension or conviction of others; and
(vii) availability and likelihood of prosecution by another jurisdiction.
(c) A prosecutor should not be compelled by his or her supervisor to prosecute a case in
which he or she has a reasonable doubt about the guilt of the accused.
(d) In making the decision to prosecute, the prosecutor should give no weight to the
personal or political advantages or disadvantages which might be involved or to a desire
to enhance his or her record of convictions.
(e) In cases which involve a serious threat to the community, the prosecutor should not
be deterred from prosecution by the fact that in the jurisdiction juries have tended to
acquit persons accused of the particular kind of criminal act in question.
(f) The prosecutor should not bring or seek charges greater in number of degree than
can reasonably be supported with evidence at trial or than are necessary to fairly reflect
the gravity of the offense.
(g) The prosecutor should not condition a dismissal of charges, nolle prosequi, or
similar action on the accused's relinquishment of the right to seek civil redress unless the
accused has agreed to the action knowingly and intelligently, freely and voluntarily, and
where such waiver is approved by the court.
Standard 3-3.10 Role in First Appearance and Preliminary Hearing
(a) A prosecutor who is present at the first appearance (however denominated) of the
accused before a judicial officer should not communicate with the accused unless a
waiver of counsel has been entered, except for the purpose of aiding in obtaining counsel
or in arranging for the pretrial release of the accused. A prosecutor should not fail to
make reasonable efforts to assure that the accused has been advised of the right to, and
the procedure for obtaining, counsel and has been given reasonable opportunity to obtain
counsel.
197
(b) The prosecutor should cooperate in good faith in arrangements for release under the
prevailing system for pretrial release.
(c) The prosecutor should not seek to obtain from an unrepresented accused a waiver of
important pretrial rights, such as the right to a preliminary hearing.
(d) The prosecutor should not seek a continuance solely for the purpose of mooting the
preliminary hearing by securing an indictment.
(e) Except for good cause, the prosecutor should not seek delay in the preliminary
hearing after an arrest has been made if the accused is in custody.
(f) The prosecutor should ordinarily be present at a preliminary hearing where such
hearing is required by law.
Standard 3-3.11 Disclosure of Evidence by the Prosecutor
(a) A prosecutor should not intentionally fail to make timely disclosure to the defense,
at the earliest feasible opportunity, of the existence of all evidence or information which
tends to negate the guilt of the accused or mitigate the offense charged or which would
tend to reduce the punishment of the accused.
(b) A prosecutor should not fail to make a reasonably diligent effort to comply with a
legally proper discovery request.
(c) A prosecutor should not intentionally avoid pursuit of evidence because he or she
believes it will damage the prosecution's case or aid the accused.
PART IV.
PLEA DISCUSSIONS
Standard 3-4.1 Availability for Plea Discussions
(a) The prosecutor should have and make known a general policy or willingness to
consult with defense counsel concerning disposition of charges by plea.
(b) A prosecutor should not engage in plea discussions directly with an accused who is
represented by defense counsel, except with defense counsel's approval. Where the
defendant has properly waived counsel, the prosecuting attorney may engage in plea
discussions with the defendant, although, where feasible, a record of such discussions
should be made and preserved.
(c) A prosecutor should not knowingly make false statements or representations as to
fact or law in the course of plea discussions with defense counsel or the accused.
Standard 3-4.2 Fulfillment of Plea Discussions
(a) A prosecutor should not make any promise or commitment assuring a defendant or
defense counsel that a court will impose a specific sentence or a suspension of sentence; a
prosecutor may properly advise the defense what position will be taken concerning
disposition.
198
(b) A prosecutor should not imply a greater power to influence the disposition of a case
than is actually possessed.
(c) A prosecutor should not fail to comply with a plea agreement, unless a defendant
fails to comply with a plea agreement or other extenuating circumstances are present.
Standard 3-4.3 Record of Reasons for Nolle Prosequi Disposition
Whenever felony criminal charges are dismissed by way of nolle prosequi (or its
equivalent), the prosecutor should make a record of the reasons for the action.
PART V.
THE TRIAL
Standard 3-5.1 Calendar Control
Control over the trial calendar should be vested in the court. The prosecuting attorney
should advise the court of facts relevant in determining the order of cases on the court's
calendar.
Standard 3-5.2 Courtroom Professionalism
(a) As an officer of the court, the prosecutor should support the authority of the court
and the dignity of the trial courtroom by strict adherence to codes of professionalism and
by manifesting a professional attitude toward the judge, opposing counsel, witnesses,
defendants, jurors, and others in the courtroom.
(b) When court is in session, the prosecutor should address the court, not opposing
counsel, on all matters relating to the case.
(c) A prosecutor should comply promptly with all orders and directives of the court, but
the prosecutor has a duty to have the record reflect adverse rulings or judicial conduct
which the prosecutor considers prejudicial. The prosecutor has a right to make respectful
requests for reconsideration of adverse rulings.
(d) Prosecutors should cooperate with courts and the organized bar in developing codes
of professionalism for each jurisdiction.
Standard 3-5.3 Selection of Jurors
(a) The prosecutor should prepare himself or herself prior to trial to discharge
effectively the prosecution function in the selection of the jury and the exercise of
challenges for cause and peremptory challenges.
(b) In those cases where it appears necessary to conduct a pretrial investigation of the
background of jurors, investigatory methods of the prosecutor should neither harass nor
unduly embarrass potential jurors or invade their privacy and, whenever possible, should
be restricted to an investigation of records and sources of information already in
existence.
199
(c) The opportunity to question jurors personally should be used solely to obtain
information for the intelligent exercise of challenges. A prosecutor should not
intentionally use the voir dire to present factual matter which the prosecutor knows will
not be admissible at trial or to argue the prosecution's case to the jury.
Standard 3-5.4 Relations With Jury
(a) A prosecutor should not intentionally communicate privately with persons
summoned for jury duty or impaneled as jurors prior to or during trial. The prosecutor
should avoid the reality or appearance of any such communications.
(b) The prosecutor should treat jurors with deference and respect, avoiding the reality
or appearance of currying favor by a show of undue solicitude for their comfort or
convenience.
(c) After discharge of the jury from further consideration of a case, a prosecutor should
not intentionally make comments to or ask questions of a juror for the purpose of
harassing or embarrassing the juror in any way which will tend to influence judgment in
future jury service. If the prosecutor believes that the verdict may be subject to legal
challenge, he or she may properly, if no statute or rule prohibits such course,
communicate with jurors to determine whether such challenge may be available.
Standard 3-5.5 Opening Statement
The prosecutor's opening statement should be confined to a statement of the issues in
the case and the evidence the prosecutor intends to offer which the prosecutor believes in
good faith will be available and admissible. A prosecutor should not allude to any
evidence unless there is a good faith and reasonable basis for believing that such evidence
will be tendered and admitted in evidence.
Standard 3-5.6 Presentation of Evidence
(a) A prosecutor should not knowingly offer false evidence, whether by documents,
tangible evidence, or the testimony of witnesses, or fail to seek withdrawal thereof upon
discovery of its falsity.
(b) A prosecutor should not knowingly and for the purpose of bringing inadmissible
matter to the attention of the judge or jury offer inadmissible evidence, ask legally
objectionable questions, or make other impermissible comments or arguments in the
presence of the judge or jury.
(c) A prosecutor should not permit any tangible evidence to be displayed in the view of
the judge or jury which would tend to prejudice fair consideration by the judge or jury
until such time as a good faith tender of such evidence is made.
(d) A prosecutor should not tender tangible evidence in the view of the judge or jury if
it would tend to prejudice fair consideration by the judge or jury unless there is a
reasonable basis for its admission in evidence. When here is any substantial doubt about
the admissibility of such evidence, it should be tendered by an offer of proof and a ruling
obtained.
200
201
PART VI.
SENTENCING
Standard 3-6.1 Role in Sentencing
(a) The prosecutor should not make the severity of sentences the index of his or her
effectiveness. To the extent that the prosecutor becomes involved in the sentencing
process, he or she should seek to assure that a fair and informed judgment is made on the
sentence and to avoid unfair sentence disparities.
(b) Where sentence is fixed by the court without jury participation, the prosecutor
should be afforded the opportunity to address the court at sentencing and to offer a
sentencing recommendation.
(c) Where sentence is fixed by the jury, the prosecutor should present evidence on the
issue within the limits permitted in the jurisdiction, but the prosecutor should avoid
introducing evidence bearing on sentence which will prejudice the jury's determination of
the issue of guilt.
Standard 3-6.2 Information Relevant to Sentencing
(a) The prosecutor should assist the court in basing its sentence on complete and
accurate information for use in the presentence report. The prosecutor should disclose to
the court any information in the prosecutor's files relevant to the sentence. If
incompleteness or inaccurateness in the presentence report comes to the prosecutor's
attention, the prosecutor should take steps to present the complete and correct
information to the court and to defense counsel.
(b) The prosecutor should disclose to the defense and to the court at or prior to the
sentencing proceeding all unprivileged mitigating information known to the prosecutor,
except when the prosecutor is relieved of this responsibility by a protective order of the
tribunal.
16
202
203
436
21. Sourcebook of Criminal Justice Statistics-1976, note 1, p. 1 supra, at p. 38. The organization of
various defender agencies is described in the report of the National Study Commission on De
fense Services, Guidelines For Legal Defense Systems in the United States, Chicago, Ill.: Nation
al Legal Aid and Defender Association, 1976.
22. Some statewide agencies serve only on appeals, with county defender agencies or court appointed
private counsel providing representation at trial.
204
437
15 social workers, and a psychiatrist on its staff. The chief public defender of a
local agency commonly is appointed by the county or city council, the local judges,
or a nonpartisan advisory board. The chief defender of a statewide agency com
monly is appointed by the state supreme court or a nonpartisan advisory board.
Ordinarily partisan politics will not enter into the selection process, but the
appointing body certainly may consider various "political" factors, such as com
munity support for the candidate. The assistant defenders are then selected on a
nonpartisan basis by the chief defender. As with assistant prosecutors, they usu
ally are young lawyers interested in obtaining trial experience. Most will not make
their career in the public defender office, although they may stay in the criminal
field as private defense lawyers.
Estimates of the number of lawyers who specialize in criminal defense work
vary, but it generally is assumed that that group is composed of less than 5 % of the
more than 400,000 lawyers in the United States. If we define the specialist as the
lawyer who spends most of his time in the criminal field, the defense specialists
probably are divided about equally between private attorneys and public defend
ers. Of course, there are far more private attorneys who will take criminal cases on
a regular basis, but spend most of their time in other fields. The vast majority of
attorneys view criminal defense work as a most undesirable field for specializa
tion. The financial rewards are not nearly as great as in most other legal fields.
Lawyers in defender offices, like lawyers in prosecutor offices, are poorly paid as
compared to private practitioners generally. Private lawyers specializing in
defense work, moreover, may be even more poorly paid. Most non-indigent crimi
nal defendants can pay only a moderate fee, and only organized crime can provide
the steady business comparable to a prosperous businessman-client in the field of
civil law. Moreover, the conditions under which the defense attorney works,
whether private practitioner or public defender, are unappealing to most lawyers.
Counsel for the defendant must expect to lose more cases than he wins, not for any
reason related to his legal capabilities, but simply because most prosecutions that
are not dismissed early in the process will be well founded. The defense counsel
must expect to spend most of his time in overcrowded courtrooms, dealing with
people who have committed questionable acts, and attempting to place those acts
in the best possible light.
Finally, the public image of the defense lawyer tends to be quite poor as
compared to other lawyers. To some extent, the criminal defense lawyer is identi
fied unjustifiably with the client he represents. Also, particularly in large cities, a
small segment of the defense bar is of low legal and dubious ethical quality. These
are the private practitioners who operate on a volume basis, pushing their clients
towards a guilty plea and collecting a quick fee. Unfortunately, the poor reputa
tion of this portion of the bar often rubs off on all criminal defense lawyers. To
some extent, the working conditions and the public esteem of the defense attorney
have improved with the growth of the public defender agencies. Nevertheless,
both factors are still far below that which is available to lawyers practicing in many
fields of civil law.
Training. The training of the defense counsel is similar in most respects to that
of the prosecutor. There are no legal qualifications for handling criminal defense
205
438
work other than admission to the bar. Most defense lawyers enter the field imme
diately upon receiving their license to practice. They have the legal skills learned
in law schools, but must acquire other skills "on the job." Private practitioners
often suffer from the disadvantage that they are not associated with a group of
more experienced lawyers. In defender offices, as in prosecutor offices, the new
lawyer can learn from his seniors. He also can be moved along from the less serious
to the more serious cases as he gains experience. Training programs for new
defenders, similar to those provided for new prosecutors, are available in many
areas. Continuing education programs also are available to all criminal defense
counsel. The National College of Criminal Defense Lawyers and Public Defenders
serves as a counterpart in this area to the National College of District Attorneys.
The Role Of Defense Counsel. The defense counsel's role, simply put, is that of
an advocate for his client. As the Code of Professional Responsibility notes, his
obligation is to represent his client "zealously" within the "bounds of the law."23
The defense counsel's function is to employ all legal means to secure the acquittal
of his client, and, if that is not possible, to make every effort to have his client
convicted of some lesser offense or to have the court impose the lightest possible
sentence. The defense attorney is not a policeman or a prosecutor, and he cannot
be expected to assist these professionals (except where doing so will help his
client). He is, of course, an officer of the court, as is any lawyer. He must abide by
the rules of procedure and the ethical standards of his profession. Thus, like any
attorney, he cannot knowingly use perjured testimony or false evidence or advance
a legal point that cannot be supported by good faith argument. Neither can he
counsel a client in the commission of a future crime. On the other hand, he has no
obligation to reveal his client's past crimes. Indeed, with few exceptions, the Code
of Professional Responsibility prohibits a lawyer from revealing, without the cli
ent's authorization, confidential information received from the client. 24
A question frequently asked by non-lawyers is, "How can a lawyer in good
conscience defend a guilty person at a trial"? Different defense lawyers offer
different answers to this question, but they all agree that they can justifiably
contest the guilt of a client even when the client has told them that he is guilty.
Some argue that it is inappropriate for a lawyer ever to assume that his client is
guilty. The fact that his client appears to be guilty, indeed that he has confessed to
the crime, does not necessarily mean that he is guilty. The determination as to
guilt can only be made by the judge or jury. Other lawyers argue that it does not
matter whether the client is guilty. All defendants, guilty or not, have a right to
insist that the state prove its case. The function of defense counsel, they note, is to
protect that right by going to trial if the client desires to do so. Still other lawyers
stress that the defense of a guilty defendant at trial should not be viewed as an act
simply benefiting the defendant, but as an act benefiting the criminal justice
23. See A.B.A., Code of Professional Responsibility, note 3 supra, Cannon 7 and Ethical Considera
tion 7-19.
24. A.B.A., Code of Professional Responsibility, note 3 supra, at Disciplinary Rule 4-101. A major
exception permitting disclosure without client approval, refers to information needed by authori
ties to prevent a future crime.
206
439
process itself. The Code of Professional Responsibility advances this theory in its
Ethical Consideration 7-19:
An adversary presentation counters the natural human tendency to judge too swiftly
in terms of the familiar that which is not yet fully known; the advocate, by his zealous
preparation and presentation of facts and law, enables the tribunal to come to the
hearing with an open and neutral mind and to render impartial judgments. The duty
of a lawyer to his client and his duty to the legal system are the same: to represent his
client zealously within the bounds of the law.2~
The duty of the legal profession to represent all defendants, the unpopular as
well as the sympathetic, is clear. No lawyer need accept employment from a
defendant he would rather not represent, but he must recognize that the fulfill
ment of the obligation of the profession requires that he accept his share of
unpopular clients. When he is appointed by the court to represent a client who
could not otherwise obtain counsel, he cannot lightly refuse that appointment. As
Ethical Consideration 2-29 notes:
When a lawyer is appointed by a court ... to undertake representation of a person
unable to obtain counsel, whether for financial or other reasons, he should not seek to
be excused from undertaking the representation except for compelling reasons. Com
pelling reasons do not include such factors as the repugnance of the subject matter of
the proceeding, the identity or position of a person involved in the case, [or] the belief
of the lawyer that the defendant in a criminal proceeding is guilty ... 26
26.
27.
440
how to conduct cross-examination, and all other strategic and tactical decisions
tend to be the exclusive province of the lawyer after consultation with his client.
The defense lawyer is instructed to explore the possibility of an early diver
sion of the case from the criminal process through the use of other community
agencies. If it appears desirable, he is to secure the permission of his client to enter
into plea discussions with the prosecutor. High standards of ethical conduct in the
presentation of evidence, examination of witnesses, argument to the jury, and in
other courtroom proceedings also are imposed upon the defense attorney.
The defense attorney should be familiar with the sentencing alternatives
available to the court, and these alternatives should be fully explained by the
lawyer to his client. Defense counsel should present in court any argument that
will assist it in reaching a proper sentence; he also should check the facts in the
presentence report and be prepared to challenge or supplement them if necessary.
After conviction, the lawyer should explain to the defendant the meaning and
consequences of the court's judgment and his right to appeal. Appellate counsel
should not seek to withdraw from a case solely on the basis of his own determina
tion that the appeal lacks merit. After a conviction is affirmed on appeal, appellate
counsel should determine whether there is any ground for relief under other post
conviction remedies, such as habeas corpus, although he has no duty to represent
his client in such proceedings unless he has agreed to do so.
The Standards place a duty on the bar to encourage through every available
means the widest possible participation in the defense of criminal cases by exper
ienced trial lawyers; lawyers active in general trial practice should be encouraged
to qualify themselves for participation in criminal cases both by formal training
and through experience as associate counsel; qualified trial lawyers should not
announce a general unwillingness to appear in criminal cases, and law firms should
encourage partners and associates to appear in criminal cases.
The duties of the lawyer to his client are said to be the same whether he is
privately employed, judicially appointed, or serving as part of a defender system.
Every jurisdiction is urged to guarantee by statute or rule of court the right of an
accused to prompt and effective communication with a lawyer, with reasonable
access to a telephone and other facilities for that purpose. There should be a
referral service which maintains a list oflawyers willing and qualified to undertake
the defense of a criminal case which is organized to provide prompt service at all
times. Personnel of jails, prisons, and custodial institutions should be prohibited
by law or administrative regulations from examining or otherwise interfering with
any communication or correspondence between a client and his lawyer relating to
legal actions arising out of criminal charges or conditions of incarceration.
Defense Role and Client Relationships. A defense lawyer often finds that,
notwithstanding his substantial efforts to serve as an effective advocate for his
clients, many losing clients will be dissatisfied with his services. A study of over
2,000 applications for writs of habeas corpus filed by prisoners in Florida prison
system disclosed that such dissatisfaction often is the product of the defendant's
unrealistic notion of his lawyer's function. Basically, the offender sees it as his
lawyer's duty to "get him off," no matter how guilty he may be of the offense. In
the process, the offender wants his attorney to act in a highly aggressive manner
with which he can identify. The "fighting" criminal lawyer is the one who is
208
441
appreciated by his clients, even when counsel's conduct may antagonize judge and
jury and actually result in a more severe sentence. Offenders take literally the
ethical admonition given to a lawyer to represent his client's interest "exclusive of
all others." Lawyers interpret this to mean "exclusive of all other whose interests
may be adverse to those ofthe client;" the offender insists that it means "exclusive
of all others-period." Many an inmate complained in his habeas application that
his lawyer was handling cases for other clients when he should have been devoting
full time to his case. An attorney who fraternized with the prosecutor or spoke well
of the judge was suspected by his client of a "sell-out." A substantial number of
prisoners insisted that they were victims of a "frame-up," participated in by the
prosecutor, the judge, and their own coum;el. It was interesting to note that the
inmates complained as often of lawyers whom they had selected and paid as they
did of appointed counsel.28 Other studies suggest, however, that defendants who
had privately retained counsel tend to rate their counsel somewhat more highly.29
Defendants are naturally suspicious of lawyers who don't cost them anything and
are selected for them by the court.
THE JUDGE
Functions of the Judge. We already have examined, in Chapter Three, the
structure of the court system and the role of the courts in determining and apply
ing the law. Various rulings that must be made by judges have been noted through
out Part Three. Accordingly, we need only briefly review here the functions of
28. H. Kerper. Development of a Theoretical Foundation for the Use of "Writs" in the Resocializa
tion Process in the Correctional Setting, (Unpublished Master's Thesis, Florida State Universi
ty, December, 1965. Major Professor, Dr. Vernon Fox); H. Kerper. "On 'Writs' and 'Resocializa
tion'" American Journal of Correction (November/December, 1967).
29. See J. Casper, Criminal Courts: The Defendant's Perspective, Washington, D.C.: Government
Printing Office, 1978, p. 30-37.
209
276
Ch.5
the defendant and his attorney have the right to put the state to its
proof?
Where the accused is indigent and is provided with a lawyer at
public expense, there seems to be no stigma attached to the public
defender
the court-appointed
for doing
his job.
the
John Kaplan, Criminalor
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who may suffer from a community reaction against one who defends
the guilty.
How different is this from the case of a physician who cures some
one of a disease knowing that, when cured, his patient will do harm
to others? Presumably we would say that the patient's future con
duct-or, even more clearly, his past conduct-is simply none of the
physician's business. Why do we not simply say the same thing about
the guilty client and the defense attorney? Is it possible that the
reason for the difference in the way we look at the two roles is that
we can think of ourselves as needing a physician but not as needing
a defense attorney?
John Kaplan, Criminal Justice Introductory Cases
In any event the important
issueFoundation
is not whether
a defense attor
and Materials,
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ney can defend a particular unpopular client, but rather what the de
fense attorney can legally and ethically do for his client.
2.
a. CANON 15.
Canons of
Professional Ethics (Chicago, Ameri
210
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277
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Ch.5
Comment
One major difference between the prosecutorial ethics and the
defense counsel's ethics, as a practical matter, is related to the fact
that the prosecution cannot appeal an acquittal. As a result, if un
ethical conduct by a defense attorney has resulted in his client's ac
quittal, the matter typically receives little further attention. If, how
ever, the prosecutor has misbehaved, that matter can be reviewed by
an appellate court or, even after the defendant has exhausted his ap
peals and is imprisoned, by a writ of habeas corpus. The continuing
interest we have in the derelictions of the prosecutor allows us to hold
him to a higher standard than we do the defense attorney.
c.
Ch. 5
279
Communist Party. Mr. Diukmejiev stated that his client, Mr. Kostov,
had asked him to show, in refutation of the charges, first, that he
(Kostov) had presented an anti-Tito report at the Communist Party
conclave that expelled the Yugoslav party, and second, that Tito him
self had said that he had always believed that Kostov was the agent
of a foreign power. The defense lawyer did not bother waiting for
the courts refutation of these remarks and said that the first was
"hardly a serious argument as Mr. Kostov was presenting a report
only in behalf of the central committee of the Bulgarian Communist
Party." The second point, Diukmejiev said, was invalid because Mar
shall Tito was only "covering up his tracks for the day when Mr.
Kostov would be arrested so he could prove Mr. Kostov had not been
his agent."
In conclusion, Kostov's lawyer stated "If Traicho Kostov finds
words to show he recognizes his crimes, then I beg this may be taken
in his favor". Kostov was convicted and executed.
About six years later, a re-examination of the trial cleared Kos
tov's name. *
Comment
It is possible, of course, that even a vigorous defense would not
have saved Mr. Kostov. It is clear, however, that the kind of defense
he received from his attorneys-who conformed to the norms of their
profession-had three consequences. First, it made Kostov's erro
neous conviction that much more likely. Second, the fact that the of
ficials in charge of the prosecutorial apparatus could count on such
an apologetic defense allowed them to prosecute cases of, at best, du
bious strength. And finally, the failure of the defense to reveal the
weakness of the prosecution's case, prevented the publicity which
might have acted as a check upon such prosecutions in the future.
**
* The
** Jesse
213
214
Standard 4-7.3
Standard 4-7.4
Standard 4-7.5
Standard 4-7.6
Standard 4-7.7
Standard 4-7.8
Standard 4-7.9
215
(e) Defense counsel, in common with all members of the bar, is subject to standards of
conduct stated in statutes, rules, decisions of courts, and codes, canons, or other standards
of professional conduct. Defense counsel has no duty to execute any directive of the
accused which does not comport with law or such standards. Defense counsel is the
professional representative of the accused, not the accused's alter ego.
(f) Defense counsel should not intentionally misrepresent matters of fact or law to the
court.
(g) Defense counsel should disclose to the tribunal legal authority in the controlling
jurisdiction known to defense counsel to be directly adverse to the position of the accused
and not disclosed by the prosecutor.
(h) It is the duty of defense counsel to know and be guided by the standards of
professional conduct as defined in codes and canons of the legal profession applicable in
defense counsel's jurisdiction. Once representation has been undertaken, the functions
and duties of defense counsel are the same whether defense counsel is assigned, privately
retained, or serving in a legal aid or defender program.
Standard 4-1.3 Delays; Punctuality; Workload
(a) Defense counsel should act with reasonable diligence and promptness in
representing a client.
(b) Defense counsel should avoid unnecessary delay in the disposition of cases.
Defense counsel should be punctual in attendance upon court and in the submission of all
motions, briefs, and other papers. Defense counsel should emphasize to the client and all
witnesses the importance of punctuality in attendance in court.
(c) Defense counsel should not intentionally misrepresent facts or otherwise mislead the
court in order to obtain a continuance.
(d) Defense counsel should not intentionally use procedural devices for delay for which
there is no legitimate basis.
(e) Defense counsel should not carry a workload that, by reason of its excessive size,
interferes with the rendering of quality representation, endangers the client's interest in
the speedy disposition of charges, or may lead to the breach of professional obligations.
Defense counsel should not accept employment for the purpose of delaying trial.
Standard 4-1.4 Public Statements
Defense counsel should not make or authorize the making of an extrajudicial statement
that a reasonable person would expect to be disseminated by means of public
communication if defense counsel knows or reasonably should know that it will have a
substantial likelihood of prejudicing a criminal proceeding.
Standard 4-1.5 Advisory Councils on Professional Conduct
(a) In every jurisdiction, an advisory body of lawyers selected for their experience,
integrity, and standing at the trial bar should be established as an advisory council on
problems of professional conduct in criminal cases. This council should provide prompt
and confidential guidance and advice to lawyers seeking assistance in the application of
standards of professional conduct in criminal cases.
(b) Communications between an inquiring lawyer and an advisory council member
have the same attorney-client privilege for protection of the client's confidences as
216
ordinarily exists between any other lawyer and client. The council member should be
bound by statute or rule of court in the same manner as a lawyer is ordinarily bound in
that jurisdiction not to reveal any disclosure of the client. Confidences may also be
revealed, however, to the extent necessary:
(i) if the inquiring lawyer's client challenges the effectiveness of the lawyer's
conduct of the case and the lawyer relies on the guidance received from the
council member, or
(ii) if the inquiring lawyer's conduct is called into question in an authoritative
disciplinary inquiry or proceeding.
Standard 4-1.6 Trial Lawyer's Duty to Administration of Justice
(a) The bar should encourage through every available means the widest possible
participation in the defense of criminal cases by lawyers. Lawyers should be encouraged
to qualify themselves for participation in criminal cases both by formal training and
through experience as associate counsel.
(b) All such qualified lawyers should stand ready to undertake the defense of an
accused regardless of public hostility toward the accused or personal distaste for the
offense charged or the person of the defendant.
(c) Such qualified lawyers should not assert or announce a general unwillingness to
appear in criminal cases. Law firms should encourage partners and associates to become
qualified and to appear in criminal cases.
(d) Such qualified lawyers should not seek to avoid appointment by a tribunal to
represent an accused except for good cause, such as: representing the accused is likely to
result in violation of applicable ethical codes or other law, representing the accused is
likely to result in an unreasonable financial burden on the lawyer, or the client or crime is
so repugnant to the lawyer as to be likely to impair the client-lawyer relationship or the
lawyer's ability to represent the client.
PART II.
ACCESS TO COUNSEL
Standard 4-2.1 Communication
Every jurisdiction should guarantee by statute or rule of court the right of an accused
person to prompt and effective communication with a lawyer and should require that
reasonable access to a telephone or other facilities be provided for that purpose.
Standard 4-2.2 Referral Service for Criminal Cases
(a) To assist persons who wish to retain defense counsel privately and who do not know
a lawyer or how to engage one, every jurisdiction should have a referral service for
criminal cases. The referral service should maintain a list of defense counsel willing and
qualified to undertake the defense of a criminal case; it should be so organized that it can
provide prompt service at all times.
(b) The availability of the referral service should be publicized. In addition, notices
containing the essential information about the referral service and how to contact it
should be posted conspicuously in police stations, jails, and wherever else it is likely to
give effective notice.
217
218
(d) Defense counsel should not divide a fee with a nonlawyer, except as permitted by
applicable ethical codes of conflict.
(e) Defense counsel not in the same firm should not divide fees unless the division is in
proportion to the services performed by each counsel or, by written agreement with the
client, each counsel assumes joint responsibility for the representation, the client is
advised of and does not object to the participation of all counsel involved, and the total
fee is reasonable.
(f) Defense counsel should not enter into an arrangement for, charge, or collect a
contingent fee for representing a defendant in a criminal case.
(g) When defense counsel has not regularly represented he client, defense counsel
should communicate the basis or rate of the fee to the client, preferably in writing, before
or within a reasonable time after commencing the representation.
Standard 4-3.4 Obtaining Literary or Media Rights from the Accused
Defense counsel, prior to conclusion of all aspects of the matter giving rise to his or her
employment, should not enter into any agreement or understanding with a client or a
prospective client by which defense counsel acquires an interest in literary or media
rights to a portrayal or account based in substantial part on information relating to the
employment or proposed employment.
Standard 4-3.5 Conflicts of Interest
(a) Defense counsel should not permit his or her professional judgment or obligations to
be affected by his or her own political, financial, business, property, or personal interests.
(b) Defense counsel should disclose to the defendant at the earliest feasible opportunity
any interest in or connection with the case or any other matter that might be relevant to
the defendant's selection of counsel to represent him or her or counsel's continuing
representation. Such disclosure should include communication of information reasonably
sufficient to permit the client to appreciate the significance of any conflict or potential
conflict of interest.
(c) Except for preliminary matters such as initial hearings or applications for bail,
defense counsel who are associated in practice should not undertake to defend more than
one defendant in the same criminal case if the duty to one of the defendants may conflict
with the duty to another. The potential for conflict of interest in representing multiple
defendants is so grave that ordinarily defense counsel should decline to act for more than
one of several codefendants except in unusual situations when, after careful investigation,
it is clear either that no conflict is likely to develop at trial, sentencing, or at any other
time in the proceeding or that common representation will be advantageous to each of the
codefendants represented and, in either case, that:
(i) the several defendants give an informed consent to such multiple
representation; and
(ii) the consent of the defendants is made a matter of judicial record. In
determining the presence of consent by the defendants, the trial judge should
make appropriate inquiries respecting actual or potential conflicts of interest of
counsel and whether the defendants fully comprehend the difficulties that defense
counsel sometimes encounters in defending multiple clients.
219
(d) Defense counsel who has formerly represented a defendant should not thereafter use
information related to the former representation to the disadvantage of the former client
unless the information has become generally known or the ethical obligation of
confidentiality otherwise does not apply.
(e) In accepting payment of fees by one person for the defense of another, defense
counsel should be careful to determine that he or she will not be confronted with a
conflict of loyalty since defense counsel's entire loyalty is due the accused. Defense
counsel should not accept such compensation unless:
(i) the accused consents after disclosure;
(ii) there is no interference with defense counsel's independence of professional
judgment or with the client-lawyer relationship; and
(iii) information relating to the representation of the accused is protected from
disclosure as required by defense counsel's ethical obligation of confidentiality.
Defense counsel should not permit a person who recommends, employs, or pays
defense counsel to render legal services for another to direct or regulate counsel's
professional judgment in rendering such legal services.
(f) Defense counsel should not defend a criminal case in which counsel's partner or
other professional associate is or has been the prosecutor in the same case.
(g) Defense counsel should not represent a criminal defendant in a jurisdiction in which
he or she is also a prosecutor.
(h) Defense counsel who formerly participated personally and substantially in the
prosecution of a defendant should not thereafter represent any person in the same or a
substantially related matter. Defense counsel who was formerly a prosecutor should not
use confidential information about a person acquired when defense counsel was a
prosecutor in the representation of a client whose interests are adverse to that person in a
matter.
(i) Defense counsel who is related to a prosecutor as parent, child, sibling or spouse
should not represent a client in a criminal matter where defense counsel knows the
government is represented in the matter by such a prosecutor. Nor should defense counsel
who has a significant personal or financial relationship with a prosecutor represent a
client in a criminal matter where defense counsel knows the government is represented in
the matter by such prosecutor, except upon consent by the client after consultation
regarding the relationship.
(j) Defense counsel should not act as surety on a bond either for the accused
represented by counsel or for any other accused in the same or a related case.
(k) Except as law may otherwise expressly permit, defense counsel should not negotiate
to employ any person who is significantly involved as an attorney or employee of the
government in a matter in which defense counsel is participating personally and
substantially.
Standard 4-3.6 Prompt Action to Protect the Accused
Many important rights of the accused can be protected and preserved only by prompt
legal action. Defense counsel should inform the accused of his or her rights at the earliest
opportunity and take all necessary action to vindicate such rights. Defense counsel should
consider all procedural steps which in good faith may be taken, including, for example,
motions seeking pretrial release of the accused, obtaining psychiatric examination of the
220
accused when a need appears, moving for change of venue or continuance, moving to
suppress illegally obtained evidence, moving for severance from jointly charged
defendants, and seeking dismissal of the charges.
Standard 4-3.7 Advice and Service on Anticipated Unlawful Conduct
(a) It is defense counsel's duty to advise a client to comply with the law, but counsel
may advise concerning the meaning, scope, and validity of a law.
(b) Defense counsel should not counsel a client in or knowingly assist a client to engage
in conduct which defense counsel knows to be illegal or fraudulent but defense counsel
may discuss the legal consequences of any proposed course of conduct with a client.
(c) Defense counsel should not agree in advance of the commission of a crime that he
or she will serve as counsel for the defendant, except as part of a bona fide effort to
determine the validity, scope, meaning, or application of the law, or where the defense is
incident to a general retainer for legal services to a person or enterprise engaged in
legitimate activity.
(d) Defense counsel should not reveal information relating to representation of a client
unless the client consents after consultation, except for disclosures that are impliedly
authorized in order to carry out the representation and except that defense counsel may
reveal such information to the extent he or she reasonably believes necessary to prevent
the client from committing a criminal act that defense counsel believes is likely to result
in imminent death or substantial bodily harm.
Standard 4-3.8 Duty to Keep Client Informed
(a) Defense counsel should keep the client informed of the developments in the case
and the progress of preparing the defense and should promptly comply with reasonable
requests for information.
(b) Defense counsel should explain developments in the case to the extent reasonably
necessary to permit the client to make informed decisions regarding the representation.
Standard 4-3.9 Obligations of Hybrid and Standby Counsel
(a) Defense counsel whose duty is to actively assist a pro se accused should permit the
accused to make the final decisions on all matters, including strategic and tactical matters
relating to the conduct of the case.
(b) Defense counsel whose duty is to assist a pro se accused only when the accused
requests assistance may bring to the attention of the accused matters beneficial to him or
her, but should not actively participate in the conduct of the defense unless requested by
the accused or insofar as directed to do so by the court.
PART IV.
INVESTIGATION AND PREPARATION
Standard 4-4.1 Duty to Investigate
(a) Defense counsel should conduct a prompt investigation of the circumstances of the
case and explore all avenues leading to facts relevant to the merits of the case and the
penalty in the event of conviction. The investigation should include efforts to secure
information in the possession of the prosecution and law enforcement authorities. The
221
222
223
prospective jurors, and to avoid either the reality or the appearance of any other improper
activity.
Standard 4-5.2 Control and Direction of the Case
(a) Certain decisions relating to the conduct of the case are ultimately for the accused
and others are ultimately for defense counsel. The decisions which are to be made by the
accused after full consultation with counsel include:
(i) what pleas to enter;
(ii) whether to accept a plea agreement;
(iii) whether to waive jury trial;
(iv) whether to testify in his or her own behalf; and
(v) whether to appeal.
(b) Strategic and tactical decisions should be made by defense counsel after
consultation with the client where feasible and appropriate. Such decisions include what
witnesses to call, whether and how to conduct cross-examination, what jurors to accept or
strike, what trial motions should be made, and what evidence should be introduced.
(c) If a disagreement on significant matters of tactics or strategy arises between defense
counsel and the client, defense counsel should make a record of the circumstances,
counsel's advice and reasons, and the conclusion reached. The record should be made in a
manner which protects the confidentiality of the lawyer-client relationship.
PART VI.
DISPOSITION WITHOUT TRIAL
Standard 4-6.1 Duty to Explore Disposition Without Trial
(a) Whenever the law, nature, and circumstances of the case permit, defense counsel
should explore the possibility of an early diversion of the case from the criminal process
through the use of other community agencies.
(b) Defense counsel may engage in plea discussions with the prosecutor. Under no
circumstances should defense counsel recommend to a defendant acceptance of a plea
unless appropriate investigation and study of the case has been completed, including an
analysis of controlling law and the evidence likely to be introduced at trial.
Standard 4-6.2 Plea Discussions
(a) Defense counsel should keep the accused advised of developments arising out of
plea discussions conducted with the prosecutor.
(b) Defense counsel should promptly communicate and explain to the accused all
significant plea proposals made by the prosecutor.
(c) Defense counsel should not knowingly make false statements concerning the
evidence in the course of plea discussions with the prosecutor.
(d) Defense counsel should not seek concessions favorable to one client by any
agreement which is detrimental to the legitimate interests of a client in another case.
(e) Defense counsel representing two or more clients in the same or related cases
should not participate in making an aggregated agreement as to guilty or nolo contendere
pleas, unless each client consents after consultation, including disclosure of the existence
and nature of all the claims or pleas involved.
224
PART VII.
TRIAL
Standard 4-7.1 Courtroom Professionalism
(a) As an officer of the court, defense counsel should support the authority of the court
and the dignity of the trial courtroom by strict adherence to codes of professionalism and
by manifesting a professional attitude toward the judge, opposing counsel, witnesses,
jurors, and others in the courtroom.
(b) Defense counsel should not engage in unauthorized ex parte discussions with or
submission of material to a judge relating to a particular case which is or may come
before the judge.
(c) When court is in session, defense counsel should address the court and should not
address the prosecutor directly on all matters relating to the case.
(d) Defense counsel should comply promptly with all orders and directives of the court,
but defense counsel has a duty to have the record reflect adverse rulings or judicial
conduct which counsel considers prejudicial to his or her client's legitimate interests.
Defense counsel has a right to make respectful requests for reconsiderations of adverse
rulings.
(e) Defense counsel should cooperate with courts and the organized bar in developing
codes of professionalism for each jurisdiction.
Standard 4--7.2 Selection of Jurors
(a) Defense counsel should prepare himself or herself prior to trial to discharge
effectively his or her function in the selection of the jury, including the raising of any
appropriate issues concerning the method by which the jury panel was selected and the
exercise of both challenges for cause and peremptory challenges.
(b) In those cases where it appears necessary to conduct a pretrial investigation of the
background of jurors, investigatory methods of defense counsel should neither harass nor
unduly embarrass potential jurors or invade their privacy and, whenever possible, should
be restricted to an investigation of records and sources of information already in
existence.
(c) The opportunity to question jurors personally should be used solely to obtain
information for the intelligent exercise of challenges. Defense counsel should not
intentionally use the voir dire to present factual matter which defense counsel knows will
not be admissible at trial or to argue counsel's case to the jury.
Standard 4-7.3 Relations With Jury
(a) Defense counsel should not intentionally communicate privately with persons
summoned for jury duty or impaneled as jurors prior to or during the trial. Defense
counsel should avoid the reality or appearance of any such communications.
(b) Defense counsel should treat jurors with deference and respect, avoiding the reality
or appearance of currying favor by a show of undue solicitude for their comfort or
convenience.
(c) After discharge of the jury from further consideration of a case, defense counsel
should not intentionally make comments to or ask questions of a juror for the purpose of
harassing or embarrassing the juror in any way which will tend to influence judgment in
225
future jury service. If defense counsel believes that the verdict may be subject to legal
challenge, he or she may properly, if no statute or rule prohibits such course,
communicate with jurors to determine whether such challenge may be available.
Standard 4-7.4 Opening Statement
Defense counsel's opening statement should be confined to a statement of the issues in
the case and the evidence defense counsel believes in good faith will be available and
admissible. Defense counsel should not allude to any evidence unless there is a good faith
and reasonable basis for believing such evidence will be tendered and admitted in
evidence.
Standard 4-7.5 Presentation of Evidence
(a) Defense counsel should not knowingly offer false evidence, whether by documents,
tangible evidence, or the testimony of witnesses, or fail to take reasonable remedial
measures upon discovery of its falsity.
(b) Defense counsel should not knowingly and for the purpose of bringing inadmissible
matter to the attention of the judge or jury offer inadmissible evidence, ask legally
objectionable questions, or make other impermissible comments or arguments in the
presence of the judge or jury.
(c) Defense counsel should not permit any tangible evidence to be displayed in the view
of the judge or jury which would tend to prejudice fair consideration of the case by the
judge or jury until such time as a good faith tender of such evidence is made.
(d) Defense counsel should not tender tangible evidence in the presence of the judge or
jury if it would tend to prejudice fair consideration of the case, unless there is a
reasonable basis for its admission in evidence. When there is any substantial doubt about
the admissibility of such evidence, it should be tendered by an offer of proof and a ruling
obtained.
Standard 4-7.6 Examination of Witnesses
(a) The interrogation of all witnesses should be conducted fairly, objectively, and with
due regard for the dignity and legitimate privacy of the witness, and without seeking to
intimidate or humiliate the witness unnecessarily.
(b) Defense counsel's belief or knowledge that the witness is telling the truth does not
preclude cross-examination.
(c) Defense counsel should not call a witness in the presence of the jury who the lawyer
knows will claim a valid privilege not to testify.
(d) Defense counsel should not ask a question which implies the existence of a factual
predicate for which a good faith belief is lacking.
Standard 4-7.7 Argument to the Jury
(a) In closing argument to the jury, defense counsel may argue all reasonable inferences
from the evidence in the record. Defense counsel should not intentionally misstate the
evidence or mislead the jury as to the inferences it may draw.
(b) Defense counsel should not express a personal belief or opinion in his or her client's
innocence or personal belief or opinion in the truth or falsity of any testimony or
evidence.
226
(c) Defense counsel should not make arguments calculated to appeal to the prejudices
of the jury.
(d) Defense counsel should refrain from argument which would divert the jury from its
duty to decide the case on the evidence.
Standard 4-7.8 Facts Outside the Record
Defense counsel should not intentionally refer to or argue on the basis of facts outside
the record whether at trial or on appeal, unless such facts are matters of common public
knowledge based on ordinary human experience or matters of which the court can take
judicial notice.
Standard 4-7.9 Post-trial Motions
Defense counsel's responsibility includes presenting appropriate posttrial motions to
protect the defendant's rights.
PART VIII.
AFTER CONVICTION
Standard 4-8.1 Sentencing
(a) Defense counsel should, at the earliest possible time, be or become familiar with all
of the sentencing alternatives available to the court and with community and other
facilities which may be of assistance in a plan for meeting the accused's needs. Defense
counsel's preparation should also include familiarization with the court's practices in
exercising sentencing discretion, the practical consequences of different sentences, and
the normal pattern of sentences for the offense involved, including any guidelines
applicable at either the sentencing or parole stages. The consequences of the various
dispositions available should be explained fully by defense counsel to the accused.
(b) Defense counsel should present to the court any ground which will assist in
reaching a proper disposition favorable to the accused. If a presentence report or
summary is made available to defense counsel, he or she should seek to verify the
information contained in it and should be prepared to supplement or challenge it if
necessary. If there is no presentence report or if it is not disclosed, defense counsel
should submit to the court and the prosecutor all favorable information relevant to
sentencing and in an appropriate case, with the consent of the accused, be prepared to
suggest a program of rehabilitation based on defense counsel's exploration of
employment, educational, and other opportunities made available by community services.
(c) Defense counsel should also insure that the accused understands the nature of the
presentence investigation process, and in particular the significance of statements made
by the accused to probation officers and related personnel. Where appropriate, defense
counsel should attend the probation officer's interview with the accused.
(d) Defense counsel should alert the accused to the right of allocution, if any, and to the
possible dangers of making a statement that might tend to prejudice an appeal.
Standard 4-8.2 Appeal
(a) After conviction, defense counsel should explain to the defendant the meaning and
consequences of the court's judgment and defendant's right of appeal. Defense counsel
227
should give the defendant his or her professional judgment as to whether there are
meritorious grounds for appeal and as to the probable results of an appeal. Defense
counsel should also explain to the defendant the advantages and disadvantages of an
appeal. The decision whether to appeal must be the defendant's own choice.
(b) Defense counsel should take whatever steps are necessary to protect the defendant's
rights of appeal.
Standard 4-8.3 Counsel on Appeal
(a) Appellate counsel should not seek to withdraw from a case solely on the basis of his
or her own determination that the appeal lacks merit.
(b) Appellate counsel should give a client his or her best professional evaluation of the
questions that might be presented on appeal. Counsel, when inquiring into the case,
should consider all issues that might affect the validity of the judgment of conviction and
sentence, including any that might require initial presentation in a postconviction
proceeding. Counsel should advise on the probable outcome of a challenge to the
conviction or sentence. Counsel should endeavor to persuade the client to abandon a
wholly frivolous appeal or to eliminate contentions lacking in substance.
(c) If the client chooses to proceed with an appeal against the advice of counsel,
counsel should present the case, so long as such advocacy does not involve deception of
the court. When counsel cannot continue without misleading the court, counsel may
request permission to withdraw.
(d) Appellate counsel has the ultimate authority to decide which arguments to make on
appeal. When appellate counsel decides not to argue all of the issues that his or her client
desires to be argued, appellate counsel should inform the client of his or her pro se
briefing rights.
(e) In a jurisdiction with an intermediate appellate court, counsel for a defendantappellant or a defendant-appellee should continue to represent the client if the
prosecution seeks review in the highest court, unless new counsel is substituted or unless
the court permits counsel to withdraw. Similarly, in any jurisdiction, such appellate
counsel should continue to represent the client if the prosecution seeks review in the
Supreme Court of the United States.
Standard 4-8.4 Conduct of Appeal
(a) Appellate counsel should be diligent in perfecting appeals and expediting their
prompt submission to appellate courts.
(b) Appellate counsel should be accurate in referring to the record and the authorities
upon which counsel relies in the presentation to the court of briefs and oral argument.
(c) Appellate counsel should not intentionally refer to or argue on the basis of facts
outside the record on appeal, unless such facts are matters of common public knowledge
based on ordinary human experience or matters of which the court may take judicial
notice.
Standard 4-8.5 Post-conviction Remedies
After a conviction is affirmed on appeal, appellate counsel should determine whether
there is any ground for relief under other post-conviction remedies. If there is a
reasonable prospect of a favorable result, counsel should explain to the defendant the
228
advantages and disadvantages of taking such action. Appellate counsel is not obligated to
represent the defendant in a post-conviction proceeding unless counsel has agreed to do
so. In other respects, the responsibility of a lawyer in a post-conviction proceeding should
be guided generally by the standards governing the conduct of lawyers in criminal cases.
Standard 4-8.6 Challenges to the Effectiveness of Counsel
(a) If defense counsel, after investigation, is satisfied that another defense counsel who
served in an earlier phase of the case did not provide effective assistance, he or she
should not hesitate to seek relief for the defendant on that ground.
(b) If defense counsel, after investigation, is satisfied that another defense counsel who
served in an earlier phase of the case provided effective assistance, he or she should so
advise the client and may decline to proceed further.
(c) If defense counsel concludes that he or she did not provide effective assistance in an
earlier phase of the case, defense counsel should explain this conclusion to the defendant
and seek to withdraw from representation with an explanation to the court of the reason
therefor.
(d) Defense counsel whose conduct of a criminal case is drawn into question is entitled
to testify concerning the matters charged and is not precluded from disclosing the truth
concerning the accusation to the extent defense counsel reasonably believes necessary,
even though this involves revealing matters which were given in confidence.
16
229
230
231
Felony Arrests
1,000
Juveniles Transferred
300
Adult Arrestees Considered
For Prosecution
700
i
Cases Dropped
175
Cases Dropped
20
Dismissed on Defense
Objection or
Prosecutor's Motion
30
Trial Acquittals
20
Prosecutorial Screening
Felony Charges Approved
450
Cases Approved
410
Reduced to Misdemeanors
75
Reduced to Misdemeanors
20
Trial Level
410
Guilty Plea
Felonies
260
f-
Trial Convictions
40
Misdemeanor
Dispositions
140 convictions
and 15 dismissals
or acquittals
Felony Convictions
300
Probation
200
Guilty Plea
Misdemeanor
60
I-
Prison Sentence
100
232
BY
951
PLEA
1.
~{gotiated
** *
Plea Negotiation Practices. While research has shown plea bargaining
to be common in courts across the land, there are variations in types of
plea-agreements and in the actual procedures followed by prosecutors and
defense in different jurisdictions. Part of this variation is the result of
differences in criminal codes, especially sentencing provisions, from one
place to another. In states with statutorily mandated sentences for certain
crimes (20-to-life for armed robbery, for example), the only way a defen
dant can achieve sentence leniency is to have the charges lowered. In other
* Reprinted from Trial Magazine, 20
Garden St., Cambridge, Mass. (May/June
1973).
233
952
PART
places, where indeterminate sentences are common and the judge has wide
discretion to choose among types and lengths of sentences regardless of
charge, reduction is less important than a pre-plea promise from the
prosecutor to "recommend" probation or some other lenient penalty.
The way a typical bargaining session works is as follows: A defendant
is apprehended and initially charged with armed robbery, an offense
carrying a mandatory minimum prison term of 20 years. Either on his own
or through counsel he indicates to the prosecutor a willingness to plead
guilty to a lesser crime in order to avoid the mandatory sentence of the
higher charge.
In some cases, though actually a settlement process, negotiation can be
quite adversary in its own right. The defense counsel may indicate to the
prosecutor that he thinks the state has no evidence against his client except
possibly a charge of disorderly conduct. The prosecutor in turn may state
that he is not only going to push the armed robbery charge but plans to
level a special count of being a habitual offender unless the defendant
cooperates. Defense counsel then offers to have his client plead guilty to
petty larceny with the prosecutor countering by offering to reduce the
charge to second degree robbery.
So it goes. Eventually an agreed upon lesser charge-burglary or grand
larceny, for example-may result and the defendant will plead guilty, facing
at most a substantially reduced prison sentence and at best perhaps
probation.
If the defendant wishes to be placed on probation, he may push in
negotiation lor more than charge reduction. He may also ask the prosecut
ing attorn~y to promise that at sentencing the state will "recommend"
probationiif and when asked by the court. This is a customary (though not
universal) \practice.
A prosecut~r's recommendation of probation is a strong factor in the
defendant's favor although a weaker, and also a vigorously sought after
promise, is for the prosecutor to make no recommendation at the time of
sentencing or to agree "not to oppose" probation if requested by the
defendant. After all, the offender knows that should the prosecutor arise at
sentencing and recommend a long prison term (perhaps reading prior
convictions into the record) it is highly likely that incarceration will result.
Therefore, in most jurisdictions, a preplea sentence promise by the
prosecutor is a major concession, even though the district attorney has no
official authority to actually impose sentence.
There are other considerations that occasionally arise in plea negotia
tion depending upon the particular defendant, the crime or crimes charged
and the sentencing structure and practices of the jurisdiction in question.
For example, often a person arrested for one crime is subsequently
charged with others. It is rare that a burglar is apprehended on his first
attempt and, once nabbed, the police may "solve" 20 or 30 separate
burglaries, all potential charges against the defendant. Theoretically he
could be tried on each count and could receive consecutive sentences. If, for
example, he were accused of ten burglaries, tried separately on each and
convicted on only half yet got one to three on each (to be served consecu
234
r
!
CHAPTER 22
953
235
954
PART
In passing such laws the drafters typically have in mind the worst
offenders-the organized criminal or the professional dopefiend who sells
heroin to school children or is otherwise the most vicious or professional
violator. However, in the day-to-day operation of courts the types of sale-of
narcotics defendants who appear are rarely professional heroin pushers but
are more likely to be young men or women who have sold a couple of pills
or marijuana cigarettes to friends.
Technically they are guilty of sale of narcotics and in most cases there
is little doubt that the evidence held by the state is sufficient to prove the
charge. Yet confronted with these cases it is a rare prosecutor or trial judge
who wishes to give a mandatory life sentence (sometimes nonparoleable) to
an 18-year-old offender whose crime is selling a few reefers to a buddy. On
the other hand the district attorney may be unwilling or reluctant to
dismiss the case entirely so that the lesser charge of "possession" or some
related crime may be offered as a desirable solution.
This motivation pattern for bargaining is an extension of traditional
prosecutor's discretion but here instead of dismissing the case the prosecu
tor in effect sentences the defendant. The reason for this is the nature of
criminal law itself. Legislation defining crimes and fixing penalties is
necessarily general and broad and if the prosecutor and other court officials
are confronted with individual cases which, while they technically fit the
same statutory category, are readily distinguishable in terms of the actual
harm they have done to victims or to the social order in general they can
only achieve individualization of sentences by reducing charges. There are a
236
CHAPTER 22
955
***
where there is a crime involving codefendants of unequal culpability.
This is simply a recognition of the prosecutor's discretion to distin
guish what the legislatures cannot do; that is, to determine the
degree of involvement in a single offense on the prot of multiple
persons involved in a crime.
An older, sophisticated armed robber who has as a look-out a young,
inexperienced, clean-record accomplice may be convicted "on the nose" but
his accomplice offered a lesser charge (perhaps attempted robbery or
burglary) to balance culpability and consequences. The same thing occurs
when there are other mitigating circumstances in the crime, such as the
participation of the victim in the criminal activity itself as, for example, in
certain forms of confidence games.
* **
The prevailing attitude toward the process (until recently at least) on
the part of many, including some appellate courts, is that there is some
thing dirty about plea bargaining, something corruptive or potentially
corruptive in negotiating with criminals for punishment less than could be
levied if the full force of the law were used. While it is true that from one
perspective plea negotiation does act to avoid legislative mandate, and, like
the exercise of all administrative discretion, has the potential for corrup
tion, another side of the coin is presented by equity decisions, by a
conscientious attempt to introduce "justice" into individual cases.
237
956
PART
***
[I]t is wholly unacceptable to add to [the inevitable costs of trial] the
necessity of forfeiting a discount that could otherwise have been obtained.
Probably the major individual victim of today's plea bargaining system is
the defendant who exercises his right to trial and suffers a substantially
more severe sentence than he would have received had he pleaded guilty.
By imposing a penalty upon the exercise of procedural rights in those
cases in which there is a reasonable likelihood that the rights will be
vindicated, the plea negotiation system creates a significant danger to the
innocent. Many of the rights it discourages are rights designed to prevent
the conviction of innocent defendants. To the extent these rights are
rendered nonoperative by the plea negotiation system, innocent defendants
are endangered.
NOTES
1. Impact of defense counsel on plea bargaining. Some studies have
developed evidence that a lawyer's success in the plea bargaining process may
depend not only upon the prosecutor's perception of the lawyer's skill and vigor but
also upon the existence or nonexistence of a personal relationship between defense
counsel and prosecutor. See Dear, Adversary Review: An Experiment in Perfor
mance Evaluation, 57 Den.L.J. 401, 416-17 (1980); White, A Proposal for Reform of
the Plea Bargaining Process, 119 D.Pa.L.Rev. 439, 448 (1971). A defendant, then,
may suffer by comparison with other defendants because of defense counsel's
inability or unwillingness to develop such relationships. But does this distinguish
plea bargaining from the trial process? Is a lawyer's personality likely to have no
effect upon the judge or jury in a contested case?
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CHAPTER 22
957
2.
a.
239
57 STNLR 1721
57 Stan. L. Rev. 1721
(Cite as: 57 Stan. L. Rev. 1721)
Page 1
Plea Bargaining's Triumph: A History of Plea Bargaining in America. By George Fisher. Stanford, CA:
Stanford University Press, 2003.
Introduction ...........................................................
I. Plea Bargaining's Triumph ............................................
. 1721
1725
Introduction
The reality of modern-day criminal trials is that they are almost as rare as the spotted owl. While the
idea of the adversarial trial, and in particular the idea of trial by jury, remains an iconic aspect of the
American legal system, the sheer fact is that criminal jury trials, if not truly on the endangered species list,
are nonetheless becoming ever less common with each passing year. In theory, trial by jury remains a
cornerstone of our system of justice: fans of the jury system emphasize its capacity to check the tyranny of
the state, the legitimacy that comes from a popular restraint on the administration of punishment, and of
course the Tocquevillian notion that "the jury, which is the most energetic means of making the people
rule, is also the most efficacious means of teaching it how to rule well." [FN1] And, to be sure, the public
continues to hear a great deal about criminal trials, or, more precisely, about a relatively small handful of
sordid and sensational ones. With Court TV's gavel-to-gavel coverage and the *1722 enormous press
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241
242
243
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*****
[FNa1]. Professor of Law, Barron F. Black Research Professor, University of Virginia School of Law.
Thanks to Darryl Brown and Anne Coughlin for helpful comments and suggestions.
[FN1]. Alexis de Tocqueville, 1 Democracy in America 287 (Phillips Bradley ed., Alfred A. Knopf, Inc.
1989) (1835).
[FN2]. Robert E. Scott & William J. Stuntz, Plea Bargaining as Contract, 101 Yale L.J. 1909, 1912 (1992).
[FN3]. These statistics come from Bureau of Justice Statistics, U.S. Dep't of Justice, Sourcebook of
Criminal Justice Statistics Online tbl. 5.22, at http://www.albany.edu/sourcebook/pdf/t522.pdf (last
visited Mar. 4, 2005). I am excluding from these numbers those cases that were dismissed. The rate of
pleas is strikingly similar in state trials as well. See generally id. at tbl. 5.46, at
http://www.albany.edu/sourcebook/pdf/t546.pdf (last visited Mar. 13, 2005) (showing that only five
percent of convictions in state criminal cases were the result of trials).
[FN4]. In this focus on incentives and institutional design as the central explanatory categories, Fisher's
approach is structurally similar to a public choice strand in recent criminal law scholarship. See, e.g.,
William J. Stuntz, The Pathological Politics of Criminal Law, 100 Mich. L. Rev. 505 (2001) (explaining
the enormous growth of criminal law in terms of incentives for legislators, prosecutors, and judges).
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57 STNLR 1721
57 Stan. L. Rev. 1721
(Cite as: 57 Stan. L. Rev. 1721)
Page 7
Guilty Pleas
PLEAS OF GUILTY
PART I.
RECEIVING AND ACTING UPON THE PLEA
Standard 14-1.1 Pleading by defendant; alternatives
(a) A defendant may plead not guilty, guilty, or (when allowed under the law of the
jurisdiction) nolo contendere. A plea of guilty or nolo contendere should be received only
from the defendant personally in open court, except when the defendant is a corporation,
in which case the plea may be entered, with due corporate authorization, by counsel or a
corporate officer. A defendant may plead nolo contendere only with the consent of the
court.
(b) As part of the plea process, appropriate consideration should be given to the views
of the parties, the interests of the victims and the interest of the public in the effective
administration of justice.
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(b) Whenever a defendant pleads nolo contendere or pleads guilty and simultaneously
denies culpability, the court should take special care to make certain that there is a factual
basis for the plea. The offer of a defendant to plead guilty should not be refused solely
because the defendant refuses to admit culpability. Such a plea may be refused where the
court has specific reasons for doing so which are made a matter of record.
Standard 14-1.7. Record of proceedings
A verbatim record of the proceedings at which the defendant enters a plea of guilty or
nolo contendere should be made and preserved. The record should include the court's
advice to the defendant (as required in Standard14-1.4), the inquiry into the voluntariness
of the plea (as required in Standard14-1.5), and the inquiry into the factual basis of the
plea (as required in Standard14-1.6). Such proceedings should be held in open court
unless good cause is present for the proceedings to be held in chambers. For good cause,
the judge may order the record of such proceedings to be sealed.
Standard 14-1.8. Consideration of plea in final disposition
(a) The fact that a defendant has entered a plea of guilty or nolo contendere should not,
by itself alone, be considered by the court as a mitigating factor in imposing sentence. It
is proper for the court to approve or grant charge and sentence concessions to a defendant
who enters a plea of guilty or nolo contendere when consistent with governing law and
when there is substantial evidence to establish, for example, that:
(i) the defendant is genuinely contrite and has shown a willingness to assume
responsibility for his or her conduct;
(ii) the concessions will make possible alternative correctional measures which
are better adapted to achieving protective, deterrent, or other purposes of
correctional treatment, or will prevent undue harm to the defendant from the form
of conviction;
(iii) the defendant, by making public trial unnecessary, has demonstrated
genuine remorse or consideration for the victims of his or her criminal activity; or
(iv) the defendant has given or agreed to give cooperation.
(b) The court should not impose upon a defendant any sentence in excess of that which
would be justified by any of the protective, deterrent, or other purposes of the criminal
law because the defendant has chosen to require the prosecution to prove guilt at trial
rather than to enter a plea of guilty or nolo contendere.
PART II.
WITHDRAWAL OF THE PLEA
Standard 14-2.1. Plea withdrawal and specific performance
(a) After entry of a plea of guilty or nolo contendere and before sentence, the court
should allow the defendant to withdraw the plea for any fair and just reason. In
250
determining whether a fair and just reason exists, the court should also weigh any
prejudice to the prosecution caused by reliance on the defendant's plea.
(b) After a defendant has been sentenced pursuant to a plea of guilty or nolo contendere,
the court should allow the defendant to withdraw the plea whenever the defendant, upon
a timely motion for withdrawal, proves that withdrawal is necessary to correct a manifest
injustice. A timely motion for withdrawal is one made with due diligence, considering the
nature of the allegations therein.
(i) Withdrawal may be necessary to correct a manifest injustice when the
defendant proves, for example, that:
(A) the defendant was denied the effective assistance of counsel
guaranteed by constitution, statute, or rule;
(B) the plea was not entered or ratified by the defendant or a person
authorized to so act in the defendant's behalf;
(C) the plea was involuntary, or was entered without knowledge of the
charge or knowledge that the sentence actually imposed could be imposed;
(D) the defendant did not receive the charge or sentence concessions
contemplated by the plea agreement and the prosecuting attorney failed to
seek or not to oppose these concessions as promised in the plea agreement;
or
(E) the defendant did not receive the charge or sentence concessions
contemplated by the plea agreement, which was either tentatively or fully
concurred in by the court, and the defendant did not affirm the plea after
being advised that the court no longer concurred and after being called
upon to either affirm or withdraw the plea; or
(F) the guilty plea was entered upon the express condition, approved by
the judge, that the plea could be withdrawn if the charge or sentence
concessions were subsequently rejected by the court.
(ii) The defendant may move for withdrawal of the plea without alleging that he
or she is innocent of the charge to which the plea has been entered.
(c) As an alternative to allowing the withdrawal of a plea of guilty or nolo contendere,
the court may order the specific performance by the government of promises or
conditions of a plea agreement where it is within the power of the court and the court
finds, in its discretion, that specific performance is the appropriate remedy for a breach of
the agreement.
Standard 14-2.2. Withdrawn plea and discussions not admissible
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(a) A plea of guilty or nolo contendere that has been withdrawn should not be admitted
as evidence against the defendant in any criminal or civil action or administrative
proceedings.
(b) Any statement made in the course of any proceedings concerning a plea of guilty or
nolo contendere that has been withdrawn, or in plea discussions with the prosecuting
attorney that result in a plea of guilty or nolo contendere that is later withdrawn, should
not be admitted as evidence against the defendant in any criminal or civil action or
administrative proceedings, except that such a statement may be admitted:
(i) in a criminal proceeding for perjury or false statement if the statement was
made by the defendant under oath, on the record, and in the presence of counsel;
or
(ii) in any proceeding in which another statement made in the course of the
same plea or plea discussions has been introduced and the statement ought in
fairness be considered contemporaneously with it.
PART III.
PLEA DISCUSSIONS AND PLEA AGREEMENTS
Standard 14-3.1. Responsibilities of the prosecuting attorney
(a) The prosecuting attorney may engage in plea discussions with counsel for the
defendant for the purpose of reaching a plea agreement. Where the defendant has
properly waived counsel, the prosecuting attorney may engage in plea discussions with
the defendant. Where feasible, a record should be made and preserved for all such
discussions with the defendant.
(b) The prosecuting attorney should make known any policies he or she may have
concerning disposition of charges by plea or diversion.
(c) The prosecuting attorney, in considering a plea agreement, may agree to one or
more of the following, as dictated by the circumstances of the individual case:
(i) to make or not to oppose favorable recommendations or to remain silent as to
the sentence which should be imposed if the defendant enters a plea of guilty or
nolo contendere, including such terms of the sentence as criminal forfeiture,
restitution, fines and alternative sanctions;
(ii) to dismiss, to seek to dismiss, or not to oppose dismissal of the offense
charged if the defendant enters a plea of guilty or nolo contendere to another
offense reasonably related to defendant's conduct;
(iii) to dismiss, to seek to dismiss, or not to oppose dismissal of other charges or
potential charges if the defendant enters a plea of guilty or nolo contendere;
(iv) where appropriate, to enter an agreement with the defendant regarding the
disposition of related civil matters to which the government is or would be a party,
including civil penalties and/or civil forfeiture; or
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253
(i) order the preparation of a preplea or presentence report, when needed for
determining the appropriate disposition;
(ii) give the agreement due consideration, but notwithstanding its existence
reach an independent decision on whether to grant charge or sentence concessions;
and
(iii) in every case advise the defendant whether the judge accepts or rejects the
contemplated charge or sentence concessions or whether a decision on acceptance
will be deferred until after the plea is entered and/or a preplea or presentence
report is received.
(c) The judge should not through word or demeanor, either directly or indirectly,
communicate to the defendant or defense counsel that a plea agreement should be
accepted or that a guilty plea should be entered.
(d) A judge should not ordinarily participate in plea negotiation discussions among the
parties. Upon the request of the parties, a judge may be presented with a proposed plea
agreement negotiated by the parties and may indicate whether the court would accept the
terms as proposed and if relevant, indicate what sentence would be imposed. Discussions
relating to plea negotiations at which the judge is present need not be recorded verbatim,
so long as an appropriate record is made at the earliest opportunity. For good cause, the
judge may order the record or transcript of any such discussions to be sealed.
(e) In cases where a defendant offers to plead guilty and the judge decides that the final
disposition should not include the charge or sentence concessions contemplated by the
plea agreement, the judge shall so advise the defendant and permit withdrawal of the
tender of the plea. In cases where a defendant pleads guilty pursuant to a plea agreement
and the court, following entry of the plea, decides that the final disposition should not
include the contemplated charge or sentence concessions, withdrawal of the plea shall be
allowed if:
(i) the judge had previously concurred, whether tentatively or fully, in the
proposed charge or sentence concessions; or
(ii) the guilty plea is entered upon the express condition, approved by the judge,
that the plea can be withdrawn if the charge or sentence concessions are
subsequently rejected by the court.
In all other cases where a defendant pleads guilty pursuant to a plea agreement
and the judge decides that the final disposition should not include the
contemplated charge or sentence concessions, withdrawal of the plea may be
permitted as set forth in standard 14-2.1.
Standard 14-3.4. Inadmissibility of nolo contendere pleas, pleas not accepted, and plea
discussions
(a) A plea of nolo contendere should not be admitted as evidence against the defendant
in any criminal or civil action or administrative proceedings.
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(b) A plea of guilty or nolo contendere that is not accepted by the court should not be
admitted as evidence against the defendant in any criminal or civil action or
administrative proceedings.
(c) Any statement made in the course of any proceedings concerning a plea of nolo
contendere or a plea of guilty or nolo contendere that is not accepted by the court, or in
the course of plea discussions with the prosecuting attorney that do not result in a plea of
guilty or that result in a plea of nolo contendere or a plea of guilty or nolo contendere that
is not accepted by the court, should not be admitted as evidence against the defendant in
any criminal or civil action or administrative proceedings, except that such a statement
may be admitted:
(i) in a criminal proceeding for perjury or false statement if the statement was
made by the defendant under oath, on the record, and in the presence of counsel;
or
(ii) in any proceeding in which another statement made in the course of the
same plea or plea discussions has been introduced and the statement ought in
fairness be considered contemporaneously with it.
PART IV.
DIVERSION AND OTHER ALTERNATIVE RESOLUTIONS
Standard 14-4.1. Diversion and other alternative resolutions
(a) Where the interests of justice will be served, the prosecuting attorney and the
defense may agree that a prosecution be suspended for a specified period of time, after
which time it will be dismissed if the offender has met specified conditions during the
suspension period. Such a diversion may be appropriate, for example, where:
(i) the offender is charged with an offense designated as appropriate for
diversion;
(ii) the offender does not have a prior criminal record that would make diversion
inappropriate;
(iii) the offender poses no threat to the community under the conditions
specified in the diversion program; and
(iv) the needs of the offender and the government can be better met outside the
traditional criminal justice process.
(b) An agreement to diversion should be contained in a writing reflecting all of the
conditions agreed upon. As a condition of diversion, an offender may be required, where
permissible under law, to waive speedy trial rights and to toll a statute of limitations, and
may also be required to fulfill other appropriate conditions, for example, to enter a
treatment program, to provide community service, to make restitution, and/or to refrain
from drug use and criminal activity.
255
(c) Diversion programs should be governed by written policies setting forth the
Standards for eligibility and the procedures for participation, so that all eligible offenders
have an equal opportunity to participate. An offender's eligibility to participate in
diversion should not depend on his or her ability to pay restitution or other costs.
(d) The development of other, alternative forms of noncriminal resolution for
appropriate cases should also be encouraged.
http://www.abanet.org/crimjust/standards/guiltypleas_toc.html
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II
JURY SELECTION
2.1. Introduction
2.2. Do you want a jury?
2.3. Jury examination and selection methods
2.4. Purposes of jury selection
2.5. Theories of jury selection
2.6. Checklist for examinations
2.7. Voir dire examinations
2.8. Summary checklist
2.1.
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Introduction
Within the field of trial work, perhaps no area is the subject of more
theory and speculation than jury selection. Every trial lawyer develops his
own theories. Every trial lawyer has a favorite story that can disprove any
theory. Some believe that jury selection is so unpredictable that any
twelve jurors will, in a given case, reach the same general conclusion.
Others feel that a case is largely won or lost by the time the jury has been
selected. Nevertheless, anyone aspiring to be a complete trial lawyer must
become familiar with the methods by which juries are selected and the
various theories on which their selection can be based.
This chapter will discuss the initial decision to request a jury trial;
various methods under which jurors are examined, empaneled, and chal
lenged; basic approaches and theories employed for the selection process;
and the ways prospective jurors should be questioned.
2.2.
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2.
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1.
There are several methods by which courts conduct the jury voir dire
examination. These vary, depending on the jurisdiction, the judge, or
even the type of case involved. The only safe procedure, when your case
is assigned, is to ask the judge or his court personnel how he intends to
conduct the voir dire in this particular case.
There are, nevertheless, three principal methods by which prospec
tive jurors are examined.
a. The traditional method was for the lawyers to conduct the entire
voir dire examination. The judge, following his preliminary remarks to
the jury, merely turned the jury over to the lawyers and limited his par
ticipation to ruling on objections made during the examination of jurors.
b. In recent years, the trend has been for the judge to conduct the
entire voir dire examination. The lawyer's role in this system is simply
restricted to exercising peremptory challenges. Although most trial law
yers have objected to this trend, claiming that their right to examine ju
rors personally is an inherent right as well as necessary to the intelligent
exercise of challenges, many judges favor it, since it keeps the lawyers
from "trying their case" during the voir dire examinations, and is more
efficient.
If your judge will conduct the examination himself, determine what
questions he will ask in your type of case. If there are additional ques
tions you feel should be asked to enable you to exercise challenges intelli
gently, prepare your proposed supplemental voir dire questions in
writing, submit them to the judge; and obtain a ruling. Make sure that
your proposed questions and the judge's rulings are made part of the
record.
c. The third method is a hybrid of the first two. The judge asks all
preliminary questions of law and determines if any jurors have precon
ceived attitudes about the case that would result in challenges for cause.
Each lawyer is then permitted to ask additional questions. Here, too, you
must determine in advance the latitude the judge will give you in ques
tioning the prospective jurors. Many judges, for example, will only per
mit the lawyers to inquire into jurors' backgrounds and experiences.
They will not permit questions of law or questions that test jurors' atti
tudes on issues and facts related to the case. Where this is the case, you
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again must submit to the judge in advance questions of law you would
like him to ask the jurors.
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3. Exercising challenges
There are two kinds of challenges that may be exercised against prospec
tive jurors: peremptory and cause. Peremptory challenges are given by
statute or court rules, and usually can be exercised for any reason. Cause
challenges, usually also enumerated by statute or rules, are granted
whenever a juror meets a disqualification basis - most commonly that
the juror cannot be fair and impartial in this particular type of case on
trial. While the number of cause challenges is always unlimited, each
party has a predetermined and limited number of peremptory challenges
that can be used during the selection process. Where the strike system is
used, challenges are communicated to the judge, so the principal consid
eration is knowing the number of challenges each party has. Where a
traditional method of jury selection is used, however, there are several
points that must always be remembered.
First, never run out of challenges. Always keep the remaining jurors
in mind when you exercise challenges. A great deal can be learned just by
watching the remaining jurors as they sit in the back of the courtroom
waiting to be selected. What those jurors look like will have a substantial
effect on the rate with which you use your challenges. Always save at least
one peremptory challenge. The cases are legion in which one lawyer used
all his challenges before the complete jury was picked only to discover
that the last juror seated was disastrous for him. Save your last challenge
for such an emergency.
Second, make sure you know the number of peremptory challenges
you and every other party have. The number of peremptory challenges
usually varies according to the kind of case on trial and the number of
parties to the lawsuit. Make sure that the numbers are clear to everyone
before jury selection begins. In addition, some statutes permit additional
peremptory challenges to be allowed in the discretion of the court. Find
out if your judge will permit additional challenges in your case. You must
also determine, in multiple-plaintiff or multiple-defendant situations,
how peremptory challenges will be exercised. Some judges permit all
plaintiffs or defendants to pool their challenges and exercise them as a
group. Other judges require that challenges be exercised by individual
parties. Find out in advance what procedure will be used in your case.
Third, determine if you will be allowed to "reinvade the jury." The
right to reinvade refers to your right to challenge jurors you previously
accepted when the jury panel is tendered back to you. Some judges allow
you to challenge jurors you initially accepted and tendered to the other
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side. Others do not. Find out in advance what procedure you will be re
quired to follow.
Fourth, find out how peremptory and cause challenges will be exer
cised in your case. Practices vary greatly. In many courtrooms peremp
tory challenges are made in open court by the lawyers. In others,
however, the judge will call side-bar conferences at the appropriate times
to determine which jurors will be challenged. The judge will then excuse
the challenged jurors himself. Challenges for cause can also be handled
both ways. Where a juror, because of an obvious disqualification, will be
excused for cause, the judge will usually excuse the juror himself and let
the parties know that he was excused for a cause. Where, however, the
questions have elicited a response that you feel entitles you to have the
juror excused for cause, but the judge has not excused him, the proce
dure is somewhat more delicate. Perhaps the safest approach is to ask the
judge for a side-bar conference, then argue that the witness' responses
justify a challenge for cause.
a. How do you exercise peremptory challenges? Here a bit of psychology
is crucial. Jurors hate to be excused. Waiting in the jury room to be called
for another case is tedious. Jurors want to sit on and hear cases. If possi
ble, therefore, have the court exercise challenges for you, particularly if
you anticipate using more challenges than your opponent. If you must
exercise your challenges in open court, do it as politely and softly as
possible.
Examples:
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Plaintiff Counsel: Over those eighteen years, were you ever involved
Examples:
Your Honor, plaintiff accepts the panel and tenders it to the defense.
or
Your Honor, the defense accepts the tendered panel.
or
Your Honor, we accept the panel.
2.4.
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disposed to you, your client, and your case, and will ultimately return a
favorable verdict. Your opponent, of course, while also looking for a jury
that has an open mind about the case, is also looking for a jury that will
react favorably to him, his client and his case. What constitutes a good jury
depends on which side of the case you represent and determines how you
will exercise your peremptory challenges. When two evenly matched ad
versaries participate in the jury selection process, injecting their concepts
of a good jury into that process, they will ultimately select a jury that will
fairly and impartially hear the evidence and reach a just verdict.
With these points in mind, what are your specific aims during the
voir dire examination of prospective jurors? There are three:
1. Present yourself and your client in a favorable light to the jury.
2. Learn about the jurors' backgrounds and attitudes, so that you
can exercise your challenges intelligently.
3. Familiarize the jury with certain legal and factual concepts, if
permitted by the court.
Notice that of these three aims only the second is directly related to voir
dire itself. The other two are more concerned with trial advocacy, which
begins when the venire first walks into the courtroom and continues until
the jury returns the verdict. You and your client as well as the facts are
all on trial and affect its final outcome. The successful trial lawyer is the
one who recognizes this and conducts himself accordingly.
2.5.
age
social background
marital status
family status (children)
family history (parents, brothers and sisters, etc.)
education (self, wife, children, etc.)
occupation (self, wife, children, parents)
employment history
1. residence history
J. hobbies and activities
k. relevant life experiences (general and specific)
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Remember that jurors usually think and act in ways that are consis
tent with their backgrounds. On the other hand, they will usually answer
questions about their attitudes and understanding of legal concepts in a
way they think the questioner would want them answered. Jurors, in
other words, want to be selected and will often say what they think you
want to hear. Inferring their true attitudes from their backgrounds is
usually the lesser risk.
No review of the jury selection process would be complete, however,
unless it mentioned some of the time-honored selection criteria lawyers
have used over the years. While every trial lawyer ultimately develops his
own approach, it is useful to know some of the standard schools of
thought. These include the following.
1.
Similarity-to-parties method
This method looks at the parties and their principal witnesses and ana
lyzes their characteristics and backgrounds. Each side then picks jurors
who have characteristics and backgrounds similar to their side, and dis
similar to the opponent's. This method presumes that jurors will natu
rally, although subconsciously, give greater weight and credibility to
witnesses whose backgrounds are similar to theirs. It has applicability, of
course, only where each party and its main witnesses have substantially
different backgrounds from the other side's. For example, where in a
personal injury case the plaintiff and his main witnesses are blue-collar
workers and the defendant is a business executive, plaintiff would prob
ably prefer workers, not executives, on the jury.
2.
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3.
This method presumes that people's attitudes and values are an inevita
ble product of their work, family status, and socioeconomic class and that
these persons will as jurors act consistently with those attitudes. Prosecu
tors in criminal cases and defense attorneys in personal injury cases look
for middle-aged or retired jurors who have average incomes, stable mar
riages and family lives, work at white- and blue-collar jobs, are business
men, or hold jobs that demonstrate traditional work ethics. Plaintiff's
attorneys in personal injury and defense counsel in criminal cases gener
ally prefer jurors whose backgrounds suggest greater subjectivity and re
ceptivity to emotional appeals, such as single and young persons or young
married couples, artists, actors, writers, and other creative individuals,
and persons at both extremes of the income and social scales.
4.
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5.
2.6.
Determine in advance of the voir dire examination what your most and
least desirable jurors will likely be in your case. This is best placed on a
checklist chart and kept in the jury selection part of the trial notebook.
Such a chart is also a convenient place to keep track of each party's exer
cised challenges, and to outline the special questions you plan to ask dur
ing the voir dire in addition to the usual background questions.
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Example:
(good)
Juror profile
Young
Service occupation
employees
Students
(bad)
1.
2.
3.
4.
5.
Challenges:
2. 7.
1.
Pl.
De!
Cause
Approach
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271
Later in this chapter you will learn a thorough method of preparing a mock trial
case for trial. Your ability to use this method effectively (or any other method, for that
matter) relies completely on your understanding of the substantive rules of evidence
that govern mock trials.
A. Relevance
"Irrelevant" evidence is not permitted at trial. Evidence is irrelevant if it does not
make any fact of consequence to the case more or less probable. For example, the
astrological sign of the defendant in a criminal case would not make any fact of
consequence more or less probable-the fact that the defendant is a Leo does not make
it any more likely that he killed his wife in a heat of passion. Ofcourse, whether or not
Steven Lubet,
Mock Trials Mock Trials: Preparing, Presenting and Winning
Your Case, NITA 2001, ISBN 1-55681-713-4
-9-
272
a piece of evidence is relevant depends on your theory of the case. The prosecution
could conceivably argue that the defendant was enraged by reading his daily horoscope
and acted accordingly. The presidingjudge makes the final determination ofrelevance.
B. Unfair Prejudice
By definition, all relevant evidence is prejudicial to some party-that is why it is
offered in the first place. Consequently, evidence cannot be excluded merely because
it is prejudicial. Even so, relevant evidence may be excluded if its "probative value" is
substantially outweighed by danger of "unfair prejudice." The probative value of
evidence refers to its helpfulness to the trier of fact in deciding the case. When the
helpfulness of evidence is outweighed by the possibility that it will have an unfair
impact on the fact-finder, it is considered unduly or unfairly prejudicial.
For example, consider a murder case involving a shooting where the defendant is
a member ofthe National Rifle Association. The prosecution wants to use this evidence
to show that the defendant knows about guns and is likely to be trained in the use of
guns. Thus, the prosecution argues that the defendant's NRA membership is probative
of his exposure to and skill in using guns-it shows that he had the ability to commit
the crime.
The defense argues, however, that the defendant's membership in the NRA may
also cause a juror who opposes that organization's political views to form a negative
opinion of the defendant. The defense points out that the defendant has never taken
any training courses from the NRA and that, at the time of the murder, he had only
been an NRA member for two months. Thus, the defense argues that the probative
value of the defendant's NRA membership is substantially outweighed by its
potentially unfair impact.
As always, the presiding judge makes the final determination.
D. Hearsay
"Hearsay" describes any out-of-court statement (even one made by the testifying
witness) that is used in court to prove the truth of the matter asserted. Under this
definition, a "statement" is any verbal, nonverbal, or written assertion of fact. A
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statement is "offered for its truth" only when it is being used to show that its content
is true.
For example, assume that witness Georgia testifies that "Bob told me he saw a wild
elephant walking down the street." On the surface it appears that Georgia is asserting
that Bob actually did see a wild elephant walking down the street. If so, it would be
hearsay. But what if counsel is merely trying to use Bob's statement to show that, at
age 94, his health is failing and dementia is setting in? In that case, the testimony is
not asserting the truth of the statement; it is being offered to show that Bob is
becoming senile. Thus, the testimony would not be hearsay.
In addition to statements that are not offered for their truth, two other types of
statements are recognized as nonhearsay. The first type is a prior sworn statement by
the witness that is inconsistent with his testimony at trial. The second are statements
made by a party (the defendant in a criminal case; either the plaintiff or defendant in
a civil case) or by an agent of that party (for example, an employee or a coconspirator)
if used against that party at trial. These statements are called "party admissions" or
"admissions of a party-opponent." In a criminal trial for example, the prosecution can
use any statements made by the defendant or one of his co-conspirators as admissions
of a party-opponent.
There are also many exceptions to the hearsay rule. A witness is allowed to repeat
an out-of-court statement offered for its truth if it fits into any of the following
categories:
Other exceptions exist, though these are the most common. Hearsay is discussed
further in Chapter 10 ("Objections").
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Here is a table illustrating how to recognize the most common forms of hearsay:
Cl
Is it an out-ot-court
statement offered to prove
the truth of the matter
asserted?
Is it an admission of a partyopponent?
Cl
Note that there is also such a thing as "double hearsay" or "hearsay within hearsay,"
which describes the possibility ofhearsay statements being made within other hearsay
statements, such as the statement by the testifying witness on the following page:
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To Witness: Julie
told me she took
that brooch:
.s
v
Julie
Bob
....llIIr-----------i.~
Testifying Witness
....l l I I - - - - - - - - -
In this example, the first level of potential hearsay is Julie's statement to Bob that, "I
am the one who got that brooch." The second layer of potential hearsay is Bob's
statement to the testifying witness that, "Julie told me that she took the brooch." To
pass the test of admissibility, each layer of double hearsay must be independently
allowable under the rules of evidence. So, you must answer the question "Is this
inadmissible hearsay?" (as outlined in the table above) for each of these statements.
The reason for this rule is obvious from the example: the more a statement is repeated,
the more likely it is that its content will change.
1. Conviction of crime
The commission, and even the conviction, of past crimes is not admissible to prove
guilt in the current matter. This follows logically from the principle that all defendants,
even those with criminal records, are presumed innocent until proven guilty at trial.
The credibility of a witness who takes the stand and testifies, however, may be
impeached on the basis of a prior criminal conviction, but only if the crime was either
a felony or one that involved dishonesty or false statement.
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With felonies, the evidence is generally not admissible unless the conviction
occurred within the last ten years Guvenile adjudications, regardless of how long ago
they occurred, are almost never admissible). Some convictions that are more than ten
years old may still be admissible if the court determines that their probative value,
supported by specific facts and circumstances in the case, substantially outweighs their
prejudicial effect.
If the crime was not a felony, the conviction may still be admissible if it involved
dishonesty. For example, if a witness was found guilty of committing fraud (making
false representations that were reasonably relied upon by others) two years before
testifying, that conviction is admissible even if the crime was only a misdemeanor.
Note that conviction evidence is generally limited to the fact ofconviction, the name
of the crime, and the sentence received. The details and events that constituted the
crime are generally inadmissible.
2. Untruthfulness
The past acts of a person may not be offered as proof that she subsequently
committed similar acts. These acts, called "specific instances of conduct," are only
admissible for the limited purpose of attacking or supporting the witness's credibility.
Thus, a witness may be cross examined concerning past acts when they reflect upon
her truthfulness or untruthfulness.
Evidence of a witness's reputation is admissible only if it is probative of her
character for truthfulness or untruthfulness. Thus, a witness's reputation as a "dirty,
rotten, scoundrel" is only admissible if it shows she was well known as untruthful. A
witness's reputation as "loud, obnoxious and contemptuous" is clearly inadmissible.
1. Most mock trial case files are distributed with the intention that participants will make
additional copies. Note, however, that "copyrighted" materials may not be duplicated without
permission.
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keep copies of your opening statement, direct examinations, cross examinations, and
closing argument. You may want to also include twenty-five to fifty sheets of blank
paper in the back of your binder in a section titled "Notes."
Other useful things to keep in your binder include an enlarged list ofobjections you
can refer to during the trial and a copy of the rules of evidence, procedure, and ethics
you will be following at trial.
preparation-it will make determining the final content of everything you say and do
at trial difficult indeed. There are no magic words of advice we can give you for solving
this problem; the best we can do is encourage you to be flexible, prepare vigorously,
practice as many witness combinations as possible, and learn the facts of your case
inside and out to demonstrate your superior skill at trial.
(Witness's Name)
Favorable to Prosecution
Favorable to Defense
Fact A (line 3)
Fact 2 (line 6)
Fact B (line 5)
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As you go through your list of favorable and unfavorable facts for each witness,
indicate those that are likely to be barred by the rules of evidence and make a note
explaining why. For instance, if you determined that "Fact 2" on the prosecution side
of your page was inadmissible hearsay, your page would now read:
(Witness's Name)
Favorable to Prosecution
Favorable to Defense
Fact 2 (line 5)
Be aware that rules of evidence are seldom clear-cut and that you and your adversary
will often disagree as to their applicability to a particular fact. That is why lawyers
spend so much time arguing over objections. The test you must use to determine the
admissibility of facts at this stage is whether you can state a reasonable theory of
admissibility. If a fact is arguably admissible, you may attempt to use it during
trial-but be prepared to state your grounds if you meet an objection.
Next, go through this same process with the exhibits in your case file; determine
what facts each exhibit establishes, outlining them as you did the facts in the witness
statements, and then determine the admissibility of each fact.
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Case Summary
Favorable to Prosecution
Favorable to Defense
Fact C
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Ifyou have followed the steps above, you already have the ingredients for your story
laid out. Your case summary is a list ofthe most important facts that may be admitted
at trial. From these facts, you can now put together the story each side is likely to tell
at trial.
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was in a hurry on the morning of the accident. The following story emerges, based
strictly on facts that you have no reason to doubt.
The defendant lives sixteen miles from his office. He usually takes a commuter
train to work, but on the day ofthe accident he drove. The accident occurred on
a major thoroughfare approximately eleven miles from the defendant's office.
The time of the accident was 8:20 A.M., and the defendant had scheduled an
important, and potentially lucrative, meeting with a new client for 8:30 A.M.
that day. The parking lot nearest to the defendant's office is over two blocks
away. The first thing that the defendant did following the accident was call his
office to say that he would be late for his meeting.
Your conclusion is that the defendant was in a hurry. Driving on a familiar stretch
of road, he was thinking about his appointment, maybe even starting to count the
money, and he failed to pay sufficient attention to the traffic. You are entitled to ask
the fact-finder to draw this inference because you reasonably believe its entire basis to
be true. Ai3long as the story you tell the fact-finder is not built on a false foundation,
you have met your ethical obligations.
Using the above example as a guide, put together the stories for each side of your
case, making sure to differentiate between when you can assume you know the truth
and when you cannot-to be sure your story is ethical.
1. Develop a theory
Your theory is the adaptation ofyour story to the legal issues in the case; it explains
why your client must win based on the combined facts and law. A successful case
theory is expressed in a short paragraph (at most) and contains these elements:
It is logical. A winning theory has internal logical force. It is based upon a
foundation of undisputed or otherwise provable facts, all of which lead in a single
direction. The facts upon which your theory is based should reinforce (and never
contradict) each other. Indeed, they should support each other, each fact or premise
making the next more likely to be true, in an orderly and inevitable fashion.
It speaks to the legal elements ofyour case. All ofyour trial persuasion must lead to
a "legal" conclusion. Your theory must not only establish that your client is good or
worthy (or that the other side is bad and unworthy), but also that the law entitles her
to relief. Your theory therefore must be directed to prove every legal element that is
necessary to justify a verdict on your client's behalf.
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2. Develop a theme
Whereas a case theory gives the logical and legal bases for a particular verdict, a
case theme provides the moral justification for it. A theme is a rhetorical or forensic
device with no independent legal weight; it adds persuasive force to your case theory.
The most compelling themes appeal to shared values, civic virtues, or common
motivations. Themes should be succinctly expressed, preferably in a short sentence or
phrase, and they should be repeated at virtually every phase of the trial.
Using the fire truck case once again, examples of strong themes are, "too busy to
be careful" or "too late to be safe."
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o
o
Did you consider every possible story and pick the one best
supported by the facts likely to come out at trial?
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suggest conclusions, articulate inferences, and otherwise present your theory to the
trier of fact as an uninterrupted whole.
In other words, during final argument you are most freely allowed to say what you
want to say, so long as what you say was at least arguably supported by the evidence
adduced during the trial. By determining the content ofyour final argument first, you
will know what you must bring out during the rest of your case. Remember, ifit does
not come out at trial, you cannot argue it during your summation.
When outlining your closing argument, ask yourselfthese two questions: What do
I want to say at the end of the case? What evidence must I introduce or elicit in order
to be able to say it? The answers to these questions will focus the content of your case
summary even further. Ifyou can effectively present, emphasize, and repeat these facts
throughout your trial using your theory and theme often, you will succeed in telling a
persuasive story.
Similarly, to outline your opening statement you should link together the absolutely
admissible facts that you listed in your closing argument outline and weave them into
a descriptive story about what happened in the case. The key to a good opening
statement is telling a story that the trier of fact will
care about; grabbing their
attention with the most important facts while using your theory and theme to explain
why your client should prevail.
288
matter ofboth logical development and legal admissibility. To the extent possible, you
may also wish to arrange your witnesses so that accounts of key events are given in
chronological order.
Impact. You may also order your witnesses to maximize their dramatic impact. For
example, you might wish to begin a wrongful death case by calling one of the grieving
parents of the deceased child. Conversely, a necessary witness who is also somewhat
unsavory or impeachable should probably be buried in the middle ofyour case in chief.
A common exception to the impact principle in real trials is the practice of calling a
criminal defendant as the last witness for the defense.
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A. Confidence
Think of yourself as a walking billboard with a different message appearing each
time you move and speak. What message appears when you talk softly in a courtroom?
"I'm sorry, I'm nervous." How about when you mumble? "I'm sorry, I'm not very sure
about what I'm saying." How about when you slouch in your seat or walk tentatively
from one side of the courtroom to the other? "I'm sorry, I probably don't belong here." Get
the point? When you act and speak without confidence, you are apologizing to everyone
around you. Do not apologize in the courtroom; there is no reason for it, no one enjoys
watching it, and it only interferes with your ability to persuade the fact-finder.
You can demonstrate confidence during trial by knowing and operating within the
rules of evidence, procedure, and ethics, by understanding how the judge wants the
trial to proceed, and by demonstrating your mastery ofthe facts ofthe case. A confident
lawyer enters the courtroom knowing what he wants to accomplish, why he wants to
accomplish it, and how he intends to do it; he has prepared his examinations, is ready
to call and cross examine witnesses, and can argue evidentiary objections at any time.
A confident lawyer is also well organized and well prepared; he knows where his
exhibits can be found, how they are to be numbered, and which witnesses will
introduce them. And, finally, a confident lawyer follows the rules of the trial; he
understands which documents can be used to impeach which witnesses, he has chosen
his objections ahead of time, and he knows how to explain his objections to the court.
As you can see, competence leads to confidence-and confidence is apparent to the
fact-finder. Unpreparedness, incompetence, and disorganization lead to insecurity,
which is also obvious and can be damning at trial.
B. Integrity
The word "integrity" comes from the Latin integritas, meaning wholeness or
soundness, complete in itself. Thus, our concept of integrity has come to mean
unsullied, unbroken, and undivided moral principle. In other words, it is a quality of
the whole and honest lawyer.
Steven Lubet,
Lubet, Steven, Jill Trumbull-Harris, Mock Trials: Preparing,Mock
Presenting,
and
Winning Your
Case (NITA
2001).
Trials:
Preparing,
Presenting
and Winning
2001 by the National Institute for Trial Advocacy
Used
by
permission
No
part
of
this
work
may
be
-27Your Case, NITA 2001, ISBN 1-55681-713-4
reproduced or transmitted in any form or by any
means,
Mock
Trialselectronic or mechanical, including photocopying and
recording, or by any information storage or retrieval system without the express written permission of the
National Institute for Trial Advocacy.
290
The most important thing you can do to demonstrate integrity in the courtroom is
to follow the court's ethical and procedural rules. Good lawyers, lawyers with integrity,
do not break these rules or even attempt to dance around them. Likewise, an honest
lawyer does not overstate her case, does not promise evidence that she cannot deliver,
and does not make arguments that she cannot support.
Demonstrating integrity also requires that you treat everyone in the courtroom
with respect. This includes your opponent, the witnesses, and especially the judge. You
do not have to like them, their words, or their actions, but you should respect them by
not interrupting them without good cause and by giving them your full attention when
it is requested. Do not use bullying tactics to intimidate your opponent or her
witnesses. Do not attempt to distract the fact-finder during your opponent's case. And
do not try to disrupt opposing counsel's legitimate presentation or use facial
expressions, grimaces, or gestures to "argue" your case while other arguments or
examinations are proceeding. Each time you fail to show respect to others at trial, your
credibility weakens, and with it your persuasiveness.
You can also demonstrate integrity by learning to lose gracefully. Without likening a
trial to a war, remember that you can lose a few battles and still prevail. So, when a
witness does not testify exactly the way you predicted, or an exhibit is not allowed into
evidence, do not take it out on others or display your frustration-let go and move ahead.
Being a good loser has the added benefit of not highlighting your loss for the trier of fact.
A final word about integrity: it cannot be "faked." It is not a face or costume that
you put on and take off. If you are truly committed to trying a case with integrity, it
will show; if you are not, the trier of fact will see that as well.
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has agreed to represent your client to the best ofyour ability; slouching and mumbling
will not do. Each time you stand, stand fully erect. Each time you speak, speak loud
enough so that every person in the courtroom can hear you. In short, demonstrate the
purpose and intent of each action and sound you make during trial so that your poise
befits your professional role.
This leads to an important corollary: be cautious that your posture and voice do not
overstep the bounds ofyour professional role. Yes, you should appear comfortable and
confident during trial, but do not allow your comfort or confidence to translate into
informal or arrogant behavior. It is never appropriate to lean back at counsel table with
your hands behind your head and, especially, not with your feet elevated. Also, do not
lean on the counsel table, chin in hand, or lay your head on the table. The same goes
for the other solid structures in the courtroom; do not use them as a crutch, seat, or
leaning post. At all times, remember that you are in the courtroom in a professional
capacity and that the fact-finder is watching.
Presiding Judge
Witness
Stand
Jury
Box
x
efendant/Defense
Plaintiff/Prosecution
The 'X" and "Y" in the diagram indicate the positions where you should stand when
conducting direct and cross examinations, respectively. Stand at the back of the jury
box during direct examinations to encourage your witnesses to make eye contact with
the jurors and to speak loudly enough so that every juror can hear their testimony.
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Stand in the middle of the courtroom during cross examinations to better control
opposing witnesses and to draw attention to yourself, upstaging the adverse witness.
During opening statements and closing arguments, begin where the "Y" is marked
and move about the courtroom to signal transitions and to emphasize important points.
As you move, be careful never to turn your back directly to the jury for more than a
second or two. Experienced trial attorneys are so conscious of this faux pas that they
apologize to the jury when it happens.
293
counsel could move to the place marked with a "2" and give a transition such as, "The
second way we know the defendant was negligent was because his mind was
completely focused on his business meeting as he drove to work that morning." And so
on.
Presiding Judge
Witness
Stand
1
2
Jury
Box
Defendant/Defense
Plaintiff/Prosecution
294
295
examination questions, for example, runs the risk of panicking if asked to rephrase a
question or elicit the testimony in a different manner.
The better alternative to rote memorization is to come to the same conclusion that
trial attorneys inevitably reach: notes are a necessity, but reliance on them is not. Yes,
it is possible for an exceptional attorney to try an entire case without using notes and
without missing important points-but most attorneys are human, after all, and even
attempting such a feat may be reckless. Thus, in order to avoid leaving out important
information but also to avoid relying on their notes to the detriment oftheir persuasive
ability, trial attorneys have developed a few solutions that allow them to meet their
obligations to their clients.
The first thing all trial attorneys learn is not to write detailed notes. For instance,
if each question in a direct examination appears in a lawyer's notes in this form,
"Please tell us, Dr. Harris, what sort of clinical training you have," the lawyer will be
tempted to read each question in that form at trial. The better way for counsel to
remind herself to ask the doctor about his clinical training is to simply write "Clinical
Training?" in her notes. This form provides direction at a quick glance and forces
counsel to ad-lib the question, which will make it seem more conversational and
sincere.
Another solution is simply practice. As you might have learned through
participation in music or sports, practice makes permanent. If an attorney practices
her direct and cross examinations and her opening statement and closing argument
enough, she will only need to resort to her notes occasionally to check to make sure she
has covered every necessary topic. In this case, she is better offleaving her notes at her
counsel table and referring back to them only when necessary.
Smart trial attorneys also make use oftheir cocounsel, if available. In this case, the
attorney gives a copy of each of her examinations and arguments to her cocounsel.
Then, when she loses her place or has finished her examination, she simply takes a
minute to walk to counsel table to ask about the next topic or to ask whether anything
was left out. Short interruptions such as these, if noticed at all, are easily forgiven by
the trier of fact.
If you are participating in a highly competitive mock trial, particularly those that
involve months of preparation, you can and should use these same approaches.
Whatever notes you use should be kept as simply written as possible and you should
keep your notes away from you as you perform your examinations and arguments. Most
importantly, you should practice working with the case so much and so often that the
facts become ingrained in your mind. The combination of all of these efforts will keep
you relatively note-free but still afford you flexibility in dealing with interruptions and
surprises at trial.
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"especially." During casual exchanges, use of qualifiers and intensifiers hardly raises
an eyebrow.
Trials are different. Trials are about persuasion. Trials are about certainty. Trials
are about asking the fact-finder to reject the other party's claims and to enter a verdict
in your client's favor. Whenever you use qualifiers or intensifiers in your speech during
trial, your credibility is decreased and the trier offact is less likely to be persuaded by
your words. The following excerpts from closing arguments are illustrative:
COUNSEL: The prosecution has probably not met its burden of proof in this case
and therefore you should think twice before finding the defendant
guilty.
Or,
COUNSEL: It is crystal clear that the prosecution has definitely not met its
burden ofproofin this case and therefore you absolutely must find the
defendant not guilty.
Neither of these statements is particularly effective; the former is imbued with
uncertainty and the latter is suspect of exaggeration. Do not use qualifiers at trial; if
you appear uncertain that your side should prevail, you cannot expect the fact-finder
to be certain either. Likewise, if you are so confident in your argument that you want
to add an intensifier, fight the temptation and let the argument speak for itself:
"Because the prosecution has not met its burden of proof, the defendant is not guilty."
The use of powerful speech also applies to the testimony of your witnesses. For
example, expert witnesses should testify in straightforward, unequivocal terms,
avoiding language that unintentionally qualifies or hedges their opinions.
Here is an example of how the use of powerful language can strengthen the
testimony of an expert witness. First consider a ''weak'' answer.
ANSWER:
In fact, the witness has conducted an exhaustive study and is completely certain,
within the bounds of professional competence, that $3.2 million is the correct figure.
That certainty can be better expressed through more powerful language:
ANSWER:
ANSWER:
Or,
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The principle of interment tells you that the safest approach, therefore, is to bury this
material deep in the middle of the examination or argument.
Of course, the concept of primacy does not necessarily refer to the very first words
out of your mouth. In your direct examinations, for example, there will be a sort of
preamble where you ask the witness to introduce himselfand generally warm up before
you really begin. Therefore, it may be helpful to think of primacy as applying to the
substantive beginning ofthe argument or witness examination, not to the introduction.
ANSWER:
QUESTION:
ANSWER:
It was your basic fire truck. It was red, and it had firefighters
riding on it. It had lights and a bell.
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QUESTION:
ANSWER:
QUESTION:
How far away were you when you first noticed the fire truck?
ANSWER:
ANSWER:
QUESTION:
ANSWER:
I slammed on my brakes.
QUESTION:
ANSWER:
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Note that this direct examination proceeds quickly, emphasizing both shortness oftime
and immediacy of response. This result will be enhanced if you fire off the questions,
and if the witness doesn't pause before answering.
In contrast, the plaintiff will claim that there was ample time for the defendant to
stop. Her direct examination should therefore be drawn out in order to demonstrate
exactly how much time there was:
QUESTION:
Where was the fire truck when you first saw it?
ANSWER:
QUESTION:
ANSWER:
QUESTION:
How many other cars were between you and the fire truck?
ANSWER:
Three or four.
QUESTION:
ANSWER:
QUESTION:
ANSWER:
QUESTION:
ANSWER:
QUESTION:
ANSWER:
QUESTION:
ANSWER:
QUESTION:
ANSWER:
QUESTION:
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ANSWER:
QUESTION:
How much time elapsed between the moment when you first saw
the fire truck and the time that the defendant's car hit yours?
ANSWER:
There is every reason not to hurry through this part of the examination. The length,
detail, and pace of your questions should be used to demonstrate the validity of your
theory: the defendant had plenty of time to stop.
ANSWER:
QUESTION:
303
ANSWER:
QUESTION:
ANSWER:
QUESTION:
ANSWER:
He jumped out of his car and started talking on his cell phone.
He shouted that he would talk to me later, but first he had to
cancel an important appointment.
This case is about broken promises. Let me tell you about the
first one.
A transition is a specific type of headline, one that signals the end of one subject
and the beginning of another. Transitions are particularly helpful when the movement
is from a boring or technical area into something more substantive. For example:
COUNSEL:
As I told you during the opening statement, the real heart of this
case is damages. I want to show you now just how inflated the
plaintiffs claim really is.
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Or, this portion of an expert's direct examination in a civil case involving the
calculation of lost profits:
QUESTION:
ANSWER:
QUESTION:
ANSWER:
Counsel can now ask the witness to explain each of the three points. Note that the
introduction of each point will reinitiate primacy and therefore heighten the factfinder's attention.
The technique ofenumeration is particularly effective when it is used in conjunction
with a visual aid. Do not simply tell the fact-finder that the defendant violated three
rules of the road. Write the numbered headlines down in bold letters.
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ANSWER:
QUESTION:
Isn't it true that you then opened the door to see if anyone was
inside?
ANSWER:
QUESTION:
Okay. But you did that without a search warrant for the
premises, true?
Like the previous example, this lawyer's use of the word "okay" is not proper.
The bottom line is that as much as lawyers like to believe that they are having a
conversation with the witnesses at trial, lawyers' opinions, beliefs or reactions to the
testimony provided are not relevant.
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C. Conduct Demonstrations
You can also ask witnesses to reenact crucial events or to re-create important
sounds by asking, for example: "Please show the jury exactly how the defendant raised
his hand before he struck you." "Please clap your hands together to show us how loud
the sound was." "Please repeat the plaintiffs words in exactly her tone of voice."
Demonstrations bring the facts of a case to life by giving the fact-finder the
opportunity to see and hear exactly what the witness experienced. In addition to being
more interesting than regular testimony, demonstrations have the added benefit of
providing truer depictions of events. Without a demonstration of how an event
occurred, each person in the courtroom could interpret the witness's testimony
differently.
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308
309
310
Table of Contents
Trial Notebook Instructions
Trial Preparation Checklist
Trial Notebook Contents*
Indictment, Statute and Cases
Trial Memorandum
Chronology
Elements of Proof
Jury*
Voir Dire
Witness List Prosecution*
Witness List Defense*
Exhibit List*
Preliminaries
Opening Statement*
Direct Examination*
Cross Examination*
Motions
Jury Instructions
Closing Argument*
Post Trial
Contact List*
*sample page(s) included in this material
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312
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Chronology
Date
Event
Witness
Exhibit
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Elements of Proof
Prosecution Defense
_________________________________________________________________
Element
Facts
Witnesses
Exhibits
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Courtroom
Name:
Address:
Family:
Education:
Employment:
Personal interests, hobbies:
Military:
Prior jury duty:
Law enforcement relatives / friends in:
Knows parties, lawyers, witnesses:
Party / witness experience:
Crime victim / witness:
Similar incident/experience:
Other questions:
Assessment:
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Jury Box
Witness List
Prosecution Defense
Name
Addresses
Telephone/ Email
Subpoena
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_____________DISTRICT COURT
DISTRICT OF
PLAINTIFFS ATTORNEY
DEFENDANTS ATTORNEY
COURT REPORTER
COURTROOM DEPUTY
PLF.
NO.
DEF.
NO.
DATE
OFFERED
MARKED ADMITTED
* Include a notation as to the location of any exhibit not held with the case file or not available because of size.
Page 1 of
Pages
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Opening Statement
Exhibits needed:
Obtain stipulation or
preliminary ruling.
In one sentence:
First sentence:
Last sentence:
Outline:
322
Direct Examination
Witness _______________________
Exhibits needed:
Most helpful points:
Most damaging points:
Prior statements:
Topic _________________________________________________________________
Subpoints
Exhibits
Topic _________________________________________________________________
Subpoints
Exhibits
323
Topic _________________________________________________________________
Subpoints
Exhibits
Topic _________________________________________________________________
Subpoints
Exhibits
Topic _________________________________________________________________
Subpoints
Exhibits
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Cross Examination
Witness _______________________
Exhibits needed:
Most helpful points:
Most damaging points:
Prior statements:
Topic _________________________________________________________________
Specifics
Exhibits/
Statements
Topic _________________________________________________________________
Specifics
Exhibits/
Statements
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Topic _________________________________________________________________
Specifics
Exhibits/
Statements
Topic _________________________________________________________________
Specifics
Exhibits/
Statements
Topic _________________________________________________________________
Specifics
Exhibits/
Statements
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Closing Argument
Exhibits needed:
Instructions needed:
In one sentence:
First sentence:
Last sentence:
Outline:
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Contact List
Case name ____________________________________ Case no._______________________
Judge: _______________________________________
Address
Telephone/ Email
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Case File
State v. Smith
Case No. 06-078 SP
Indictment
Investigation Summary
Ernestine Gerbing Statement
Angelo Davis Statement
Surveillance Photo
Store Layout
Store Photos
Utility Bill
Rent Receipt
Letter from Cynthia
Judgment and Order of Conviction
Statutes
Smith Statement for defense counsel only
Phone Message for prosecution only
329
INDICTMENT
v.
BOB SMITH,
330
Incident Date
Incident Time
3425-23
3/25/06
10:30 pm
Ernestine Gerbing
182 Highway 17
Calumet
732-0829
Report by
Assisting Officers
Complaint by
Complainant Address
Phone
Dan Patterson
Dispatch notified at 10:40 pm 3/25/06 robbery at Crossroads Convenience on Hwy 17. I reported at the
scene and took a statement from Ernestine Gerbling who took gave a statement, reporting armed robbery,
with a loss of at least $4,200.00, two suspects, one with a gun. Suspect 1 with gun - white male 6 0,
230 lbs, medium beard, stocky, hooded grey sweatshirt, black pants and shoes. Suspect 2 - younger
white male 5 10 180 lbs, black pants, long sleeve shirt, tennis shoes, wool hat.
Store has a video camera. Tape obtained from Gerbing.
Gerbing turned on outside lights and I found a bag of McDonalds trash and a utility bill near the second
pump. The utility bill had the name, address and phone number of a restaurant written on the back.
McDonalds bag contained receipt dated March 25, 2006, 9:15 pm. Evidence bagged.
Sealed store and called forensics to take fingerprints on doors and counter.
4/5/06 Interview Angelo Davis, resident at 412 Sandstrom Avenue address on utility bill. Copy rent
receipt.
4/5/06 Interview Bob Smith. Smith states no knowledge of robbery; does go to Crossroads
Convenience. Says he was at dinner with his girlfriend at Robentinos that evening; then came home.
Smith says he drives a white 2003 Chevy S-10 pickup. Did not question him about utility bill.
4/6/06 Site check at Robentinos. McDonalds next door.
4/8/06 Run a record on Bob Smith. 1997 Conviction for Theft. Request forensics to run prints.
4/18/06 Forensics reports fingerprint match on counter with Bob Smith.
4/19/06 Interview Bob Smith at his residence 7:30 pm. Advise of Miranda rights. Suspect refuses to
waive and insists on attorney.
4/22/06 Photo spread with Ernestine Gerbing. She identifies Smith as Suspect #2.
4/24/06 Case review with district attorney.
6/12/06 Grand jury appearance.
6/16/06 Initial appearance for Smith in Calumet District Court. Defender appointed.
331
Address
Phone
Ernestine Gerbing
182 Highway 17
Calumet
732-0829
Taken by
Statement Date
Statement Time
Dan Patterson
3/25/06
11:34 pm
Incident Number
Incident Date
Incident Time
3425-23
3/25/06
10:30 pm
I was just about getting ready to close tonight and then these two guys come in. Their car was parked out
by the pumps but they could not get any gas because I had shut off the pumps and the lights outside. I
saw the car pull in but couldnt see it real well, because no lights, but it was a sedan, four doors, and not a
big car. I thought I hope I didnt lose a sale, but they just parked out there for a few minutes, so I went on
closing stuff up and turning off machines and then I see two guys come in the front door. I was over in
the side, and I keep on cleaning, and turning off cookers, and they are over talking over by the beer
cooler, and one of them, the bigger guy says to the smaller one, We have got five minutes and this is
over. And that sounds strange to me, so I go back to the counter, and then the younger guy comes up
and has a six pack of beer. I was getting ready to empty the register into the safe, but he was right over
there at the counter and says, Just empty that here. And he gives me a plastic bag, from Walmart, and I
say Just buy your beer and get out of here. I think maybe he is kidding me. But he says, That guy has
a gun and you empty that cash drawer now. The bigger guy is standing back where the candy is and
doesnt look at me. He has a hooded sweatshirt on so I dont see him real well, but he has a beard, and
then I see it looks like he has a gun in his sweatshirt pocket. I think for a minute what is this? Is it real?
And then the big guy says, Do it right now, just like he says. So, I start cleaning out the drawer starting
with the change and the big guy says, Screw the change just bills and I clean the tray into the bag,
and the big guy he is still standing back there and says Under the tray, so I get that too, and the guy
with the hat closes the bag, and they walk out. The big guy comes right back in and now I see his gun
but I still cant see him in that sweatshirt. He throws my cell phone out the door and rips the phone off the
counter and makes me lie on the floor. I hear the car starting and he goes out the door and I hear car
doors slam, and I get up, but I cant see the car license plate because there is no light, but it is the car I
saw pull in and there are four doors. It is grey or green, I think, but I dont know what kind of car. I went
in the back into the office and use that phone to call you.
The big guy was wearing jeans and work boots and a grey hooded sweatshirt. He had a beard, and no
glasses. The younger guy was wearing all black and had a wool hat on. I could see his face real well
and I think the camera got him. The other guy was always standing back out of the camera, even when
he made me get on the floor. I think he knew where the camera was.
I looked at the register afterward, when I was waiting for the officer to come and am pretty sure we had at
least $2,200.00 in cash that evening.
332
Address
Phone
Angelo Davis
234-0098
Taken by
Statement Date
Statement Time
Dan Patterson
4/4/06
11:30 am
Incident Time
10:30 pm
Bob Smith has rented from me for three years. He is pretty good with his rent, but he is five or ten days
late most of the time but who isnt? He has kept the place up okay. There may be stuff going on because
people come and go, but he keeps the place up and doesnt give me trouble. His girlfriend Cynthia used
to be there too, but I dont see her for two weeks now, I think.
March 25th I dont remember anything about Bob except he always comes home from work around 7 and
the place quiets down around 11 or midnight. I am here all the time since this place is all I have and I
dont work or go out except to the store but not a lot.
Bob does not have any gun and I have never seen him with a gun.
I let the officer copy Bobs rent receipts for March and April.
333
334
Coolers
Groceries
Groceries
Pizza
Groceries
Counter
Groceries
Groceries
Doors
335
336
337
Utility Bill
front and back
338
Rent Receipts
339
Dear Bob,
I was so scared I did not know what to do, and I am still not
sure. I hope you can understand why I wont be coming back. After
what happened, you have to let me sort things out and make my
own decision.
I still love you,
340
BOB SMITH,
Defendant.
Defendants Name: Bob Smith
341
5)
the defendant shall work regularly at a lawful occupation, unless excused by the
probation officer for schooling, training, or other acceptable reasons;
6)
the defendant shall notify the probation officer at least ten days prior to any
change in residence or employment;
7)
the defendant shall refrain from excessive use of alcohol and shall not purchase,
possess, use, distribute, or administer any controlled substance or any paraphernalia related to
any controlled substances, except as prescribed by a physician;
8)
the defendant shall not frequent places where controlled substances are illegally
sold, used, distributed, or administered;
9)
the defendant shall not associate with any persons engaged in criminal activity
and shall not associate with any person convicted of a felony, unless granted permission to do so
by the probation officer;
10)
the defendant shall permit a probation officer to visit him or her at any time at
home or elsewhere and shall permit confiscation of any contraband observed in plain view of the
probation officer;
11)
the defendant shall notify the probation officer within seventy-two hours of being
arrested or questioned by a law enforcement officer;
12)
the defendant shall not enter into any agreement to act as an informer or a special
agent of a law enforcement agency without the permission of the court;
13)
as directed by the probation officer, the defendant shall notify third parties of risks
that may be occasioned by the defendants criminal record or personal history or characteristics
and shall permit the probation officer to make such notifications and to confirm the defendants
compliance with such notification requirement.
Dated this 12th day of November, 1997.
BY THE COURT:
________________________________________
District Judge
#206784 v1
2
342
Statutes
14-87. Robbery with firearms or other dangerous weapons.
(a) Any person or persons who, having in possession or with the use or threatened
use of any firearms or other dangerous weapon, implement or means, whereby the life of
a person is endangered or threatened, unlawfully takes or attempts to take personal
property from another or from any place of business, residence or banking institution or
any other place where there is a person or persons in attendance, at any time, either day
or night, or who aids or abets any such person or persons in the commission of such
crime, shall be guilty of a Class D felony
76-23 Compulsion.
A person is not guilty of an offense when he engaged in the proscribed conduct because he
was coerced to do so by the use or threatened imminent use of unlawful physical force upon him
or a third person, which force or threatened force a person of reasonable firmness in his situation
would not have resisted.
343
344
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In addition to following the rules of closing arguments, use the techniques for
effective communication at trial listed in Chapter 3 ("Communication Techniques").
Especially important when giving a closing are your use of movement, hand gestures,
headlines, and visual aids. One rule of thumb worth adding is that you can only use
exhibits in your closing if they were admitted into evidence. Demonstrative aids,
however, may be used at will.
Also, it should go without saying that you should not read a prepared closing
argument during trial. Making an outline ofyour argument is better than memorizing
it in its entirety since additional arguments for your closing will always arise during
trial and a fully memorized closing is not conducive to adding those arguments.
We recommend that you write out and memorize only the introduction and ending
of your closing argument; all the arguments you make in between should be outlined,
leaving yourself enough flexibility to expand on some and briefly state others.
347
approached from the perspective of rectitude by explaining how and why your client's
position makes sense for reasons other than strict legality.
That meeting was the only thing on the defendant's mind. It was so important
to him that the first thing he did after the accident was to call his office. He
didn't call an ambulance, he didn't call the police, and he didn't even check to
see if the other driver was injured. No, first and foremost he cared about that
new client. Everything else-driving, traffic, safety-was unimportant
compared to his need to get to that meeting.
Note that the details in the above passage could have come from as many as three
different witnesses and that they do not strictly follow the chronology of the accident.
The argument makes coordinated use of both direct evidence (the phone call after the
accident) and circumstantial evidence (the distance from the garage to his office). The
argument also utilizes both positive (a new client means money) and negative (he didn't
call an ambulance) inferences. It is the clustering or accumulation of all ofthese points
that gives the argument its persuasive weight.
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While analogies can be very powerful there is always the danger that they can be
inverted and exploited by the other side. Thus, so long as opposing counsel has yet to
argue, care must be taken to ensure that any analogies you use are airtight.
b. Allusions
An allusion is a literary or similar reference that adds persuasive force to an
argument. These references may be taken from movies, television, popular songs, fairy
tales, or even advertisements. For example, defense counsel in the fire truck case might
disparage the plaintiffs injury claim with a reference to the well-known fairy tale "The
Princess and the Pea":
The plaintiff claims that her life's activities are severely limited. She says that
sometimes she can't even sleep. But last Labor Day she went camping at Eagle
River Falls where she slept on the ground for four nights. Now that her case is
on trial, she claims that she was in pain, but the truth is that she stayed at the
campground for the whole weekend. We all know the story about the princess
who could feel a pea though it was underneath a stack of mattresses. But our
law doesn't allow recovery for that sort of super sensitivity. And this plaintiff,
who had no hesitation about sleeping on the ground, certainly can't complain
about peas under the mattress today. You can't be a backpacker when you want
to and then a princess when the time comes to try for damages.
c. Stories
Stories, in the form of either hypotheticals or anecdotes, can be used effectively in
closing argument. It is permissible to illustrate an argument with a hypothetical story
so long as the story is based on facts that are in evidence. Again, from the plaintiffs
argument in the fire truck case:
Imagine what the defendant's morning was like. His alarm clock didn't go off.
He woke up, looked at the clock, and began to panic. He was late, and if he
missed the meeting with this new client he would lose money and damage his
position with his firm. He rushed into the bathroom to shower and shave. He
had no time for breakfast and no time to stop for gas. You can be sure that the
defendant hurried to his car that morning and, most important, that this was
not the day for a leisurely drive.
This reconstruction of the defendant's morning is hypothetical in that the details are
all suppositions. It is proper argument because the entire story is derived from the
defendant's own testimony.
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is undisputed that Lieutenant E.J. Johnson was driving the fire truck. And it
is undisputed that fire department policy requires the siren to be used
whenever an engine company is responding to a call. The defendant may claim
that there was no siren, but he hasn't even tried to deny these uncontroverted
facts.
Thus, undisputed facts are helpful not only in their own right, but also because they
can be marshaled to cast light on disputed evidence.
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Witness examinations can bring out impeaching facts, and the opening statement
can use apposition to contrast the credibility ofdifferent witnesses. But only on closing
argument can counsel make direct comparisons. Consider the question of the siren as
plaintiffs counsel might argue it in the fire truck case:
The plaintiff told you that she stopped because she saw a fire truck, which was
flashing its warning lights and sounding its siren. The defendant has to concede
that the truck was there, but he claims that it was not using its warning
signals. Well, was there a siren or wasn't there? Who should you believe?
The defendant's story just isn't credible. Everyone agrees that the fire truck
entered the intersection on its way to a fire. You have even seen the transcript
of the 911 call that the truck was responding to. A fire truck would have to be
using its siren under those circumstances. Only the most negligent firefighter
would speed toward an intersection without sounding the siren, but this truck
was being driven by Lieutenant E.J. Johnson, one of the most decorated
firefighters on the force. Which is more likely, that Lieutenant E.J. Johnson
neglected such an elementary duty or that the defendant is wrong about the
siren?
The plaintiff heard the siren and stopped her car. The other drivers must have
heard it as well since all of the other traffic pulled over. Of course, it is possible
that the defendant testified the way he did because he simply didn't hear the
siren, but that is another story. Why didn't he hear the siren? Why didn't he
stop his car? For the answers to those questions we have to look at the events
of his day and why he was "too busy to be careful."
Finally, motive can be argued on the basis either of proven facts or logical
inferences. Counsel may tell the fact-finder why a witness would exaggerate, waffle,
conceal information, quibble, or lie. The suggested reasons need not be based on
outright admissions so long as they follow rationally from the testimony in the case.
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The plaintiff claims extreme disability, almost all of it based on pain. But pain
is an elusive concept. It cannot be seen or measured. We can, however, look at
the plaintiffs activities to see the extent of her alleged disability.
We know, for example, that she went camping last Labor Day at Eagle River
Falls. She put all of her gear into a backpack and stayed in a tent, sleeping on
the ground for four nights. Now she says that the camping trip was a mistake
and that she was in agony the whole time. But you have seen the records from
her doctor; she didn't visit the doctor, or even call, until over a month after the
camping trip. You have also seen the records from the pharmacy; she didn't
change her medication or even renew it for more than two months after the
camping trip. What did she do? She took aspirin.
To judge the extent of the plaintiffs alleged disability you must weigh the
evidence. Evaluate the claims that she made in her testimony against the proof
of her own actions and the records of her own physician and pharmacist. It is
easy to claim pain, and I don't want to minimize the plaintiffs discomfort, but
her own conduct makes it clear that nothing happened to limit her life's
activities.
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It is true that several of the prosecution witnesses were informers and former
drug users and of course they aren't the most upstanding citizens in the world.
It was not the prosecution, however, who chose them as witnesses. The
defendants chose these people as witnesses when they set out to sell illegal and
dangerous drugs. Who can we expect to serve as witnesses to drug deals? Drug
deals take place in a shadowy world that is populated by petty criminals and
addicts. Those were the people present for this transaction and, therefore, we
had to call them to testify.
Another example of a perceived weakness in your case might be its heavy reliance
on circumstantial evidence. Ifyour opposing counsel argues this point, you should take
time to explain the value and credibility ofcircumstantial evidence during your closing.
This is frequently done through an analogy like this one:
Circumstantial evidence can be just as reliable as direct evidence. For example,
consider the last time it snowed while you were sleeping. There was no snow on
the ground before you went to bed but when you awoke the streets were covered
in snow. Now, although you didn't actually see the snow fall, you know it had
to come from the sky. That is circumstantial evidence and the same applies to
the events in this case.
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Some defense attorneys prefer to avoid or minimize the issue ofdamages, reasoning
that any discussion may be seen as an implicit admission of liability. Many lawyers,
however, choose not to "roll the dice" on liability, concluding that a reduced damage
award is the next best thing to winning the case outright. When discussing damages,
defense lawyers have a choice: They may simply deny the plaintiffs damage claim, or
go on to present a competing estimate. The decision will rest upon the circumstances
of the particular case. Note, however, that the presentation of a competing damage
estimate may run a greater risk of seeming to concede liability.
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Is supported by details
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An essential aspect of closing argument is the marshaling of details that give weight
to counsel's argument.
The inclusion or exclusion of details is a tricky problem. While the right details at
the right time can add an airtight quality to your case, the use of too many details (or
their use in support ofunimportant propositions) can drag a closing argument into the
depths of boredom and despair. There is no single key to making judgments in this
area, but it is safe to look to the following guidelines:
unimportant reasons:
uncontested facts:
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The plaintiff claims that her life's activities have been severely limited. Now
pain is a subjective thing, and no one can step inside of the plaintiffs body to
see whether she is exaggerating. But we can look at her actions, and we can
interpret them in the light of our own common sense. The plaintiff went
camping last Labor Day at Eagle River Falls. She carried a backpack and slept
on the ground for four straight nights. She could have gone home after a night
or two, but she chose to stay for the entire trip. Is this the action of someone in
constant pain? Is this the action of someone whose life's activities are severely
limited? Can you imagine how the plaintiff might have thought about such a
trip: ''Well, things are difficult here at home; I guess I'll go sleep on the ground
for a long weekend." I don't want to minimize the plaintiffs real injuries, but
common sense certainly tells us that someone in as much pain as she claims
just wouldn't go camping for four nights.
b. Defendant's argument
The defendant generally has substantially more latitude than the plaintiff in
determining the content ofthe argument in chief. While the plaintiff/prosecution must
address every element, the defendant is usually free to select only those elements or
issues in which counsel has the most confidence. The defense theory, of course, must
be comprehensive in the sense that it explains all ofthe relevant evidence, but its legal
thrust may be significantly more pointed than the plaintiffs.
The defining characteristic of the defendant's argument in chief is that it is
sandwiched between the two plaintiff/prosecution arguments. Defense counsel must
respond to opposing counsel's argument in chief, but will not be able to respond to
rebuttal.
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This approach suffers from the drawback of suggesting that it is possible that the
plaintiff did not have enough time to pull over her car. If that suggestion is too
damaging to your case, simply argue in the affirmative that the plaintiff did have
enough time to pull over without referring to her counsel's rebuttal.
Most lawyers choose to anticipate rebuttal only in the general sense, making sure
to explain the phenomenon of rebuttal to the jury (when the fact-finder in your case is
a judge, such an explanation is usually unnecessary):
When I am done speaking, the plaintiffs attorney will have another opportunity
to argue. That is called rebuttal. Following rebuttal, however, I will not be
allowed to stand before you again. The rules of procedure allow me to speak to
you only once. It is not that I don't want to speak again, or that I will have no
responses to what plaintiffs counsel says, but only that I will not have the
opportunity to give you my responses.
I have only one request to make of you. When plaintiffs counsel returns to
argue, please bear in mind that, whatever she says, I will not be able to answer.
I think you know from the evidence that I will have answers to her rebuttal
argument. So please keep what I have said in mind and provide those answers
for me.
The timing of this aspect of the argument is important. Because it relates solely to
the rebuttal, it obviously is preferable to make these remarks near the end of the
defendant's argument in chief. On the other hand, placing them at the very end would
deprive the argument of a strong finish. Thus, it is generally best to use the discussion
of rebuttal as the penultimate point, saving the final moment for the most compelling
substantive argument.
c. Plaintiffs rebuttal
Rebuttal is a powerful tool since it allows the plaintiff/prosecution to reply to the
defendant's arguments while the defendant stands mute in response. Everyone likes
to have the last word and in trials that right is given to the plaintiff/prosecution.
Using this powerful tool effectively is a difficult endeavor. While the
plaintiff/prosecution argument in chiefcan be completely planned, and the defendant's
argument in chief can be mostly planned, rebuttal must be delivered almost
extemporaneously. Preparation for rebuttal typically takes place while you listen to the
defendant's argument in chief. Nonetheless, there are certain principles that can be
applied to make rebuttal more forceful and compelling.
The most important principle of rebuttal is to organize it according to your own
theory ofthe case. The best way to do this is to listen to the defendant's argument and
match his points to your own major propositions in the case. To do this, prepare a
truncated outline ofthe three or four most important, or hotly contested, issues in the
case, leaving several blank lines under each heading. In this manner, four major
arguments can be spread over an entire sheet ofpaper and they will be arranged in the
order most advantageous to your case. Then, as defense counsel argues, note his
arguments under the appropriate heading, making additional notations as to how you
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will respond. Your rebuttal can then be delivered topically, without regard to the order
of argument used by the defendant.
Be sure that when you respond to the defendant's argument, you do so
affirmatively. Even when it is well organized, your rebuttal will be weakened if it
becomes nothing more than a series ofretorts. Instead, every position should be framed
as a constructive statement ofyour own theory, with the refutation ofthe defense being
used to explain further or elaborate on the plaintiff/prosecution case. Consider this
short example from the rebuttal in the fire engine case:
I would like to talk to you again about damages. I'm sure that you remember
the plaintiffs own testimony about her efforts to cope with her injuries. She has
done everything possible to bring her life back to normal. She is a courageous
woman who won't give up. That is why it is particularly unfair to see defense
counsel trying to exploit the plaintiffs camping trip to Eagle River Falls. Of
course she tried to go camping. What does the defendant want her to do, give
up on life and just sit at home? Unfortunately, her efforts didn't work out. As
she told you, the camping trip was pure hell. She suffered every day, and she
had to stay on her back in the tent for hours at a time. Why didn't she come
home early? Because she and her family had all come in the same car, and she
didn't want to ruin the trip for everyone else. Sure she tried to enjoy camping.
But that only proves how brave and determined she is-it does not prove that
she was not injured.
Many lawyers attempt to save a single, devastating argument for rebuttal. The
theory behind this tactic is that the argument will be even more effective if it stands
unanswered. There is, no doubt, a great deal of truth to this theory, as it deprives the
defendant of all opportunity to respond. One caveat, however, is necessary. Rebuttal
is technically limited to issues that were addressed during the defense argument. If,
for whatever reason, defense counsel does not raise a particular issue, then it is
possible that the court will sustain an objection to its coverage on rebuttal.
Thus, it is inherently risky for the plaintiff to "sandbag" by completely omitting a
subject from the argument in chief. Suppose, for example, the plaintiffin the fire truck
case decided to defer all discussion of damages until rebuttal, thereby precluding the
defendant from replying to the plaintiffs specific arguments. Hearing no mention of
damages, the defendant could decide not to address damages either. Somejudges might
refuse to allow the plaintiff to raise damages for the first time on rebuttal, precluding
any argument about them at all during closings.
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The rule that requires rebuttal to be within the scope of the defendant's closing
argument is enforced with varying strictness by judges. It is generally safe to assume,
however, that the rule will be applied more rigidly to discrete topics (such as damages)
than to lines of argument (such as elaboration on a theme). Consequently, it usually
is not risky to withhold the use ofan analogy or story until rebuttal, thereby preventing
the defendant from turning the argument around to illustrate a point of his own.
B. Organization
The structure ofthe closing argument must be developed for maximum persuasive
weight. The central thrust of the closing argument must always be to provide
reasons-logical, moral, legal, or emotional-for the entry of a verdict in your client's
favor.
The use of topical organization is the guiding principle in the structure of closing
arguments. The following section will discuss the various methods ofemploying topical
organization as well as the drawbacks and advantages of alternative structures.
a. Issues
One of the simplest and most effective forms of organization is to divide the case
into a series of discrete factual or legal issues. Large issues, such as liability and
damages, are obvious, but they are also so broad as to provide relatively little help in
ordering an argument. It is more useful to think of issues as narrower propositions of
fact or law.
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In the fire truck case, for example, the plaintiff might organize the liability section
ofher argument according to these factual issues: (1) the defendant's hurried morning;
(2) the siren; and (3) the events ofthe accident. The first section ofthe argument would
emphasize why the defendant was inattentive; the second would explain why the other
traffic stopped for the truck (and why the trier of fact should not believe the
defendant's claim that there was no siren); and the third segment would describe the
actual collision.
Note that this format, as opposed to strict chronology, will allow plaintiffs counsel
to plan the discussions of motivation and credibility in a coherent and logical fashion.
All ofthe considerations pointing to the defendant's preoccupation can be addressed at
once, including events that occurred before (being late for the meeting) and after
(calling the office without checking on the plaintiff) the accident. Similarly, the
question ofwhether or not the fire engine's siren was sounding can be resolved, making
it clear that it was, before discussing the collision.
b. Elements
A second form oftopical organization revolves around elements and claims. Every
legal cause or defense is composed ofvarious discrete elements. A claim of"negligence,"
for instance, must be supported by proof of duty, breach of duty, cause in fact,
proximate cause, and damages. A plaintiffcan therefore develop her closing argument
by discussing the evidence as it supports each of the distinct elements of her cause of
action. A defendant who needs to challenge only a single element in order to win, can
use the same form of organization but can truncate it by focusing only on those
elements that are truly likely to be negated.
c. Jury instructions
If your case file includes them, you can also use the jury instructions to organize
your closing argument. You should use them selectively, however, since they can
become tiresome if read in their entirety. Pick and choose the most important
instructions and use those to develop the central points ofyour closing argument. Thus,
the plaintiff in the fire engine case might focus on the instructions dealing with due
care and credibility, while the defendant might choose to utilize the instruction on
damages.
2. Alternative organization
Although the overriding organizational method used in your closing argument
should be topical, consider using chronological organization to order its discrete subparts, where helpful. On the other hand, there is little benefit to organizing your
closing as a witness-by-witness account of the trial.
a. Chronological organization
Chronology is the most obvious alternative structure for a closing argument. Since
the events in a case manifestly occurred in a chronological order, it seems obvious to
replay them in the same progression during closing argument.
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While chronology certainly plays an important role in closing argument, it may not
be the best approach to overall structure. The difficulty with chronology is that events
are unlikely to have occurred in the most persuasive possible sequence. Early events
can frequently be illuminated by their subsequent consequences.
Consider, then, the following two snippets of defense argument. The first is in
chronological order:
As the fire truck approached the intersection, it flashed its lights but it did not
use its siren. The plaintiff saw the fire truck and stopped for it, but she did not
have time to pull over. That is why the accident occurred. She saw the fire truck
only at the last moment.
Now, the same argument presented topically:
The plaintiff stopped her car in the middle of the street. She didn't pull over.
This can only mean that the fire truck was not using its siren. Everyone knows
that you must pull over as soon as you become aware of an emergency vehicle,
and a siren can be heard blocks away. The location of the plaintiffs car tells us
that she saw that fire truck only at the last moment.
While both arguments make the same point, the discussion is clearly more persuasive
once it is freed of the chronological straitjacket. It then becomes possible to move both
backward and forward in time, in order to place events in the most compelling order.
There can be no doubt, of course, that chronology is an essential tool in the
structure of a closing argument. There will come a time, or several times, in every
argument when key occurrences will have to be time-ordered. Indeed, the precise
sequence of events can often be the central issue in a case.
Chronology often fails, however, when it is used as the primary organizational
device, as though the entire story ofthe case can be presented in a single order. Rather,
it is best to think of the case as consisting of a series of discrete sub-stories. Each substory can be set out in chronological order while maintaining an overall format of
topical organization.
b. Witness listing
Some lawyers persist in presenting closing argument as a series of witness
descriptions and accounts, essentially recapitulating the testimony ofeach person who
took the stand. This approach is unlikely to succeed, as it diminishes the argument's
logical coherence and force. Where topical organization focuses on the importance of
issues and chronological organization focuses on the real-life sequence of events,
witness listing depends on nothing more than the serendipity of which witness said
what. It is a lazy, and usually ineffective, method of organization.
To be sure, it will often be necessary to compare witness accounts in the course of
a closing argument. You may wish to demonstrate the consistency of your own
witnesses as opposed to the contradictions among the opposition's witnesses. You may
want to dwell on the integrity and credibility of your witnesses. Or you might want to
point out the bias and self-interest of opposing witnesses. All of this can be
accomplished through topical organization.
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As does undeniability:
The one thing the defendant cannot deny is that he failed to stop for a fire
engine. There is no doubt that the fire truck was there. There is no doubt that
it was answering a call. There is no doubt that the other cars stopped. And
there is no doubt that the defendant kept driving right into the back of the
plaintiffs automobile.
The most important point is that the opening salvo in the closing argument should
be directed at making the trier of fact want to decide the case in your favor.
The last few minutes ofthe closing argument should serve the same function, either
summarizing the theory, utilizing the theme, driving home the strongest evidence, or
painting the most compelling picture. Note that ending on a strong and memorable
note is particularly important to the defendant, who will not be able to argue again
following the plaintiffs rebuttal.
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The real argument, of course, would be far longer, but the organization of the above
paragraph holds true. Counsel began with a denial, demonstrated that the defendant's
actions were reasonable, and went on to explain the plaintiffs own negligence.
Note finally that our advice that you begin with your affirmative case does not
mean that you only argue your affirmative case. A substantial part of most closing
arguments should be devoted to the weaknesses in the opposition case-just not the
first part.
One important exception to starting with your affirmative case applies to the
defense in criminal cases. Since a criminal defendant is not required to present an
affirmative case, it is common for a defense argument to focus solely (or primarily) on
the deficiencies in the prosecution's proof.
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Let us turn to the question of the siren. There is no doubt that a fire engine's
siren is a signal that traffic must stop. Ignoring a siren is definite negligence.
The defendant claims that there was no siren, but he cannot be believed. He has
too much at stake in this case, and he knows that the siren is a vital piece of
evidence against him. And remember that Lieutenant E.J. Johnson testified
that she always used her siren when answering a call. She has no stake in this
case and no reason to tell you anything but the truth. So it comes down to this:
either you believe the defendant or you believe Lieutenant Johnson.
While the defendant might be unsavory and Lieutenant Johnson upstanding, it makes
no sense to discuss their character traits in the abstract. By weaving the witnesses into
the story, however, counsel can make full use of their disparate believability.
e. Argue damages
The timing of when to argue damages in civil cases presents a special problem,
especially in the context of cases involving torts. Where your mock trial covers both
liability and damages in a tort case, most authorities agree that plaintiffs counsel
should argue liability before proceeding to damages. Particularly where the damages
are great or ongoing, the trier of fact will be more inclined to accept the plaintiffs
argument once convinced the defendant is liable for those damages. Stated otherwise,
the desire to award damages flows naturally from a conclusion of liability. The
converse, however, is not true. Proof of damages does not necessarily imply that the
defendant was at fault.
For the same reason, defendants are often advised to address damages first, if at
all. It is discordant to argue, "The defendant was not at fault, but even if he was, the
damages were not so great as the plaintiff claims." The subsequent discussion of
damages may be taken as a concession of liability.
Of course, you might have a mock trial based primarily, if not exclusively, on the
issue of damages. In these cases it should be obvious that damages should form the
first, last, and most important part of the argument.
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IV. OBJECTIONS
Though more common than during opening statements, objections are still
somewhat unusual during closing arguments. It is generally considered a common
courtesy to allow opposing counsel to speak uninterrupted. This does not mean, of
course, that seriously improper arguments should be tolerated. (Note, however, that
some mock trial competitions do not permit objections during closing arguments.)
A. Raising Objections
If opposing counsel does make an improper argument (see Section V below titled
"Ethics of Closing Argument" for a listing), you should not hesitate to object.
Objections during closing argument follow the same general pattern as objections
during witness examinations. Counsel should stand and state succinctly the ground for
the objection. There is usually no need to present argument unless requested by the
court.
Remember that it is unethical to raise objections during your opponent's closing
argument simply for the purpose of interfering or breaking up its flow.
B. Responding to Objections
The best response to an objection is often no response. An objection disrupts the
flow ofclosing argument, and an extended colloquy with the court will only prolong the
interruption. A dignified silence will usually be sufficient to allow the court to rule and
to impress the judge or jury with the basic rudeness of the interruption. Even more
effective than silence is keeping silent without turning your gaze away from the factfinder.
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Once the court rules, whether favorably or unfavorably, counsel should simply
proceed by adapting his argument to the court's ruling.
v.
While you should take advantage of the opportunity to argue during your closing
argument, be mindful of the following limitations on permissible argument.
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These are, by and large, assertions of fact and not simply inferences. (While the
statement that the plaintiff was an "enthusiastic" camper might be seen as an
inference, the statements concerning the "heaviest pack" and the plaintiffs desire to
go camping the next weekend are clearly presented as proven facts.) They may not be
made in closing argument unless supported by the evidence.
The plaintiff in this case lost his right arm in an industrial accident. You must
now determine how much money is necessary to compensate him for his loss.
Let me ask you this question: How much money would you want if it had been
your right arm? If someone offered you $1,000,000 to have your arm crushed,
would you take it? Would you accept $2,000,000?
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Such arguments obviously appeal to the fact-finder's sympathy. They also ask the
jurors to decide the case on the basis oftheir own self-interest, as though they were the
people actually affected by the outcome of the case.
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The "nonargument rule" states that opening statements may only be used to inform
the trier of fact of "what the evidence will show." Thus, lawyers are restricted to
offering a preview of the anticipated testimony, exhibits, and other evidence. This
limitation results in a highly stylized set of rules for the presentation of opening
statements, as lawyers strive to influence the fact-finder without crossing the line into
prohibited argument.
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In the final analysis, the most successful opening statements are those that explain
exactly how you intend to win your case.
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A. Do Not Argue
As we noted above, argument is improper during opening statements.
1. Defining argument
Most judges recognize that "argument" is a relative concept and allow lawyers a
reasonable amount of latitude. As with many other rules we have discussed,
application of this rule will vary by competition and by presiding judge.
To help you through the uncertainty involved in determining whether a statement
is an argument, ask yourself the following questions:
If the answer to any of these questions is or possibly could be "yes," you are probably
arguing.
To illustrate to the application ofour test, consider the following portions ofopening
statements that are based on a personal injury case:
Just before the accident the plaintiff was sitting in a bar. In less than an hour
and a half he consumed at least four shots of Everclear. He bought a round for
the house and then he left. He left in his car. The accident occurred within the
next twenty minutes.
And,
The plaintiffwas obviously drunk. No person could drink four shots ofEverclear
in that amount oftime without feeling it. Only an alcoholic or a liar would claim
to have been sober under those circumstances.
The first example passes our test since the bartender will testify to the facts contained
in the first three sentences and the police will verify the remainder ofthe information.
The second example is more problematic. To begin, the drunkenness of the plaintiff is
an inference based on the lawyer's conclusion "no person could drink four shots of
Everclear" without feeling it. Calling the plaintiff "an alcoholic or a liar" is pure
argument, since it characterizes the plaintiffs behavior. Thus, the second example fails
our test and is therefore improper.
2. Other considerations
In addition to the words you speak, a variety of other considerations may lead a
judge to conclude that your opening statement has crossed the line into argument. A
statement can be transformed into an argument simply by the way in which it is
spoken, including the use sarcasm, volume, or vocal caricature.
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What happened? Describe the crucial events in your story. The crucial events are
those that speak to the legal elements of your claim or defense. For instance, if your
client is charged with murder and is claiming self-defense, you will want to describe
those events that led your client to believe that his life was threatened by the deceased.
Why did it happen? It is not sufficient to list the facts. A story is most persuasive
when it explains why events occurred as they did. It is particularly important to
explain why individuals acted as they did, since a compelling reason for an action will
tend to rule out alternatives. For example, you may state that the defendant in a
collision case was driving slowly and carefully just before the accident. Even so, your
explanation will be more persuasive if it is supported by the fact that the defendant
was returning from an antique auction, carrying an expensive and fragile chandelier
in the back seat ofher car. The defendant's reason for driving slowly not only supports
her version of events, but it makes less likely a claim by the plaintiff that she careened
around a corner at high speed.
Which witnesses should be believediUthough it is improper to argue the credibility of
witnesses in your opening statement, you may, and should, provide the trier of fact with
facts that bolster your own witnesses and detract from the opposition's. Bias, motive,
prejudice, and interest in the outcome of the case are always relevant to a witness's
believability. Explain the facts that demonstrate your own witnesses' lack ofbias; include
as well the facts that demonstrate the motive or interest of the opposition. For example:
Two experts will testify as to the cause of the fire. The plaintiff will call Fire
Chief Barry Roberts, who will testify that he investigated the fire as part of his
normal professional duties. Chief Roberts concluded that the fire was
accidental. He was not paid by either of the parties. He was simply doing his
job. The defendant's expert is Pam Copley. She does not work for the city or the
state; she is a private investigator. All of her income is derived from private
clients. She was hired by the defendant to reach an opinion about the cause of
the fire in this case, and she was paid $300 an hour to do so. Ms. Copley will
testify that the fire was caused by arson.
How can we be sure? As should be apparent from the examples above, the
persuasiveness of an opening statement, indeed the persuasiveness of virtually any
aspect of a trial, is often established through the use of details. Broad assertions can
stake out territory and raise issues, but the truth will be determined by the details. An
essential element of an opening statement, then, is the judicious use of details in
support of the accuracy, dependability, or believability of your facts.
Does it all make sense? Finally, the theory you present in opening, or at any other
point in the trial, must make sense when it is measured against the everyday
experiences of the fact-finder. The provision of reasons, biases, or details, no matter
how compelling they are to your way of thinking, will accomplish nothing if the judge
or jury cannot place them into a context that they understand and accept.
383
finder offact the reason that your client deserves to win. Thus, introducing a theme in
opening is particularly effective as a persuasive matter since it can focus the factfinder's attention on a cognitive image that you will return to throughout the trial.
Nonetheless, using a theme in your opening statement presents some difficulty.
Unlike a trial theory, a theme is intended to reflect upon or interpret the evidence
rather than simply to describe or outline it. Overuse or constant repetition of your
theme may bring you perilously close to argument. Mostjudges, however, will allow the
statement ofa theme at both the beginning and end ofan opening statement, especially
when it is phrased in terms of fact as opposed to opinion or characterization.
One of our previous themes for the plaintiff in the fire truck case is that the
defendant was "too busy to be careful." This theme can be used at the beginning of the
opening as a reference point for the information about the defendant's course ofconduct
on the morning of the accident:
Ladies and gentlemen, this is a case about a driver who was too busy to be
careful. On the morning of the accident he woke up late. He had to be at an
important meeting downtown and he had less than an hour left in which to get
there.
Although there is a sense in which "too busy to be careful" is a conclusion, it is used
here solely as an introduction to the facts that follow. Busyness and carefulness are
ordinary incidents of life that are easily recognized without questionable inferences.
Therefore, the theme "too busy to be careful" can almost certainly be invoked at the
outset of the plaintiffs opening statement.
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took approximately fifty minutes. By the time the defendant got to his car it
was 8:00 A.M. He had thirty minutes left before the new client was scheduled
to arrive at his office.
Note that the example begins when the defendant woke up, skips ahead to the
information about the scheduled meeting, and then goes back to describe the rest ofthe
defendant's morning routine. Other facts, of course, could be added to show how
seriously late the defendant was, and therefore how likely he was to drive carelessly
or too fast. The point is that the individual events build upon each other to explain,
without saying so, why the defendant would have been driving negligently.
Contrast is the juxtaposition of contradictory facts, most often used in an opening
statement to demonstrate the implausibility of some aspect of the opposing case. The
defendant in the fire engine case might use contrast this way:
The plaintiff in this case is seeking damages for pain and suffering and lost
income. She claims a permanent disability. You will see medical bills offered
into evidence that start with the date of the accident and which continue right
through to last December 10. You will also see a receipt for the purchase of a
new backpack and camp stove, purchased by the plaintiff last August 17. She
went to the doctor on August 15, she bought her backpack on August 17, and
she went camping at Eagle River Falls on August 31. She returned to town on
September 3. Her next visit to the doctor was not until October 19.
Without resort to argument, the simple contrast between the medical bills and the
camping trip casts doubt on the plaintiffs allegation of permanent injury.
o
o
o
Are you interpreting the evidence or urging the factfinder to draw inferences? Are you explaining the
importance of evidence or suggesting the amount of
weight it should be given? Are you appealing overtly
to the fact-finder's sense of mercy or justice? If so, you
are arguing and you should refrain from doing so.
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A. Content
Every good opening statement, no matter what the case, contains enough
information to help you win the trial but not so much as to distract the fact-finder or
risk exploitation by the other side. So, how do you know what to include? Although the
content of openings will vary depending on the type of case, the following
considerations are helpful in most trials.
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First, a short paragraph that makes maximum use of adverbs and adjectives:
It was a heinous, horrible crime. The defendant's actions were inhuman and
awful. He brutally grabbed at the victim's gold chain, fiercely yanking it away.
He left an ugly, ugly bruise on the victim's neck.
Now consider a paragraph with virtually no modifiers at all:
The defendant placed his knife against the victim's body. Without waiting, he
grabbed the gold chain from the victim's neck and wrenched it until it snapped,
leaving bruises on the victim's neck that didn't heal for over a week.
The second paragraph is more vivid because it describes the deeds as they occurred
whereas the first paragraph actually short-circuits the action by substituting valueladen modifiers for an account of the events themselves.
The message here is that you should use nouns and verbs in your opening
statement and limit your use ofmodifiers, which are frequently judgments rather than
descriptions (and as such are argumentative). Words like heinous, brutal, and awful
may convey the lawyer's opinion about the nature of the crime, but they do not depict
a vision of the event itself.
Plaintiffs counsel must determine whether to anticipate and respond to the expected
defenses. Defendant's counsel has to consider whether and how much to react to the
plaintiffs opening.
a. PlaintifflProsecution opening
Unlike final arguments, there is no rebuttal in opening statements. You only get
to address the fact-finder once and without the advantage of knowing what the
defendant's theory and theme will be. No matter what your opposing counsel says, you
will not be able to respond directly until the end of the trial. This can be especially
troublesome in cases where the defendant presents an affirmative defense. Since an
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affirmative defense, by definition, raises issues that go beyond the plaintiffs own case,
the plaintiff faces a delicate problem in dealing with them during the opening
statement. Should the plaintiff ignore the affirmative defense, thereby foregoing the
opportunity to reply to it at the outset of the trial? Or should the plaintiff respond to
the defense in advance, in essence forecasting the defendant's case? Here are some
guidelines to responding to the other side's case.
First, give primary attention to the strongest aspects ofyour own case. The opening
statement is your opportunity to begin to capture the fact-finder's imagination. Do not
get them started imagining the things that might be wrong with your case. Accentuate
the positive. To the extent possible, the defenses raised by the other side should be
treated as technicalities or annoyances.
Since you will know with some certainty which defenses will be raised, there is no
reason to address all of the holes that the defendant might try to punch in your case.
Concentrate on the most likely defenses.
Do not apologize when it comes time to discuss the opposition's case; your tone
should be firm, unapologetic, and straightforward. If you seem overly concerned or
worried about a defense, it will suggest that there are indeed problems with your case.
Finally, it must be noted that the Fifth Amendment prohibits prosecutors from so
much as suggesting that the defendant will testify (even if you know for a fact that he
will be called). The Fifth Amendment does not, however, prevent the prosecutor from
reading from a confession or prior statement of the defendant so long as your case file
does not contain a ruling that the statement is inadmissible.
b. Defendant's opening
Defense lawyers can plan and outline opening statements just like their opposing
counsel. But, when the time comes to present their opening, good defense attorneys are
flexible in determining the final content. It is a tremendous advantage to deliver the
second opening statement, and defense counsel can only take advantage of this
opportunity by being ready to respond to at least some aspects of the plaintiffs
opening.
Responding to opposing counsel's opening is not easy; you must listen carefully and
pick your battles. If you are new to mock trial, stick to your prepared outline. For the
more confident and experienced students, there are a few techniques you should use
when responding.
First, state your denial right up front. The civil plaintiffs opening statement, and
even more so the criminal prosecutor's, is essentially an accusation. Its entire thrust
is to tell a story that accuses the defendant of negligence, breach of contract, criminal
acts, or some other negative conduct. Mter hearing such an extended charge against
the defendant, the trier of fact's first inclination will be to ask the question, "Well, is
it true?" The defendant, then, absolutely must respond with a deniaL Anything short
of a denial is likely to be regarded as evasion, equivocation, or worse, an admission of
fault.
It is also important to respond directly to the plaintiffs version of significant
controverted evidence. Simply telling your own independent story is not sufficient since
that will not allow you to explain why the facts in support ofyour version are superior.
It is also risky to expect the trier offact to keep the plaintiffs opening in mind and then
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to appreciate the implications of the contrary facts as you reveal them. Instead, you
should make it apparent that you are contradicting the plaintiffs factual claims.
Finally, point out significant omissions in your opposing counsel's opening
statement. As all trial lawyers learn, the absence of evidence can be as telling as the
evidence itself. Defense counsel should therefore be ready to respond not only to what
was said in plaintiffs opening but also to what was not said. While it would be
argumentative to accuse opposing counsel of concealing information, it is perfectly
proper to point out evidentiary gaps in the plaintiffs opening statement by stating, for
example, "What Plaintiffs counsel didn't tell you is that ..."
B. Organization
Although adaptations based on the particular facts of your case may often be
advisable, you should generally follow these steps in organizing your opening
statement.
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In the fire truck case, the plaintiff might want to open something like this:
This is a case about a defendant who was too busy to be careful. Because he
failed to stop for a fire truck, he smashed his car right into the back of the
plaintiffs automobile. The fire truck was flashing its lights and sounding its
siren. All of the other drivers noticed the fire truck and stopped. Except the
defendant. He had his mind on an important meeting, so he kept on driving
until it was too late. Now the plaintiff will never take another step without
feeling pain.
The opening on the preceding page is direct and to the point. It states plaintiffs theory
and theme right at the outset and launches immediately into the facts that support her
case. The three central points that the plaintiff will make are all mentioned: (1) The
fire truck was clearly visible, (2) all of the other traffic stopped, and (3) the defendant
was preoccupied and caused the accident.
In considering what to include in your opening paragraph, choose the information
that you hope will remain in the mind of the fact-finder when the trial is over. Ask
yourself: What facts most support a verdict in my favor? What issues will be most hotly
contested? Which witness will be most relied upon?
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Introducing the victim at the outset of your case humanizes her so that the judge and
jury will remember who the victim was and the gravity of the crime committed.
reason, in fact, that opening statements have become part ofthe trial: to allow lawyers
to take individual witness accounts and meld them into a single chronological
narrative. Consider the following:
The weather was clear and dry on the morning of the accident. Fire Engine
Company Number 9 received a call to respond to a fire, and the crew boarded
their truck and left the firehouse, headed east on Alta Vista toward Craycroft
Road. In keeping with standard procedure, they sounded their siren and flashed
their lights from the moment they left the station. At about that same time, the
plaintiff, Ms. Trumbull was driving south on Craycroft and the defendant,
Hartmann, was driving behind her.
As Ms. Trumbull approached the intersection with Alta Vista, she saw and
heard the fire truck, so she immediately applied her brakes. She had plenty of
time to stop. The defendant, whose car was directly behind hers, didn't stop. At
one point he slammed on his brakes, but it was too late. As hard as he hit his
brakes, it did not keep him from crashing right into the plaintiffs car.
This story is far more cohesive than the witness-based account. It brings all of the
vehicles together at the fateful intersection without the necessity of the jurors having
to keep a running account oftheir whereabouts and it connects the fire engine's use of
lights and siren directly to the cause of the accident.
Be aware that there are drawbacks to using strict chronology in telling your story.
It can encourage the use of excessive detail. For instance, the fact that the plaintiff in
the fire truck case left her home five minutes before the defendant is not worth
mentioning unless it supports your theory or theme.
Chronology can also interfere with the logical exposition of your theory or theme.
For instance, in the fire truck case the plaintiffs theme is that the defendant was too
rushed to be careful. This conclusion is supported by the fact that the defendant woke
up late that morning as well as the fact that he called his office regarding his meeting
immediately after the collision. When inserted into the story chronologically, however,
these facts stand a good chance ofbeing lost to the fact-finder since they are separated
by nearly an hour worth of events. Putting these facts together would maximize their
impact.
Despite the drawbacks mentioned above, the judicious use of chronology is an
essential part of every opening statement. Chronological development should always
be used to explain independent events. Every trial can be understood as a series ofsubevents, which fit together to comprise the entire story. The discussion of these subevents is always open to arrangement by counsel. The sub-events themselves, however,
have their own internal logic, which generally can be understood only when explained
chronologically.
The best way, then, to organize the story you tell during your opening statement
is to break the action into "chunks" which are told chronologically. Between each
chunk, insert information that helps the fact-finder understand the chronological
narrative. For instance, consider the question of the siren in our fire truck case. The
plaintiffsays there was a siren, and the defendant says there was not. Thus, plaintiffs
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The plaintiff has the burden of proof in this case. They must prove by a
preponderance of the evidence that the defendant was negligent. The evidence
will show that the plaintiffs request for damages is unreasonable and, more
importantly, that the defendant was not the cause of this collision.
5. Request a verdict
Your opening statement should almost always conclude with a request for, or
explanation of, the verdict that you will seek at the end ofthe trial. This request should
be made in general terms: "At the end of the case we will ask you to return a verdict
that the defendant was not guilty of negligence."
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Request a verdict
IV. OBJECTIONS
Even if your mock trial competition rules allow objections during opening
statements (some do not), they are a fairly unusual occurrence. In jury trials the
objecting attorney risks seeming rude by interrupting opposing counsel's address to the
members of the jury. In bench trials objections are even more likely to be met with
annoyance. For these reasons, most attorneys try to avoid objecting during opposing
counsel's opening. There are times, however, when objections are called for and should
be made.
A. Raising objections
The most common objection during an opening statement is to improper argument.
Mostjudges will sustain this objection only when the argument is extended or over-thetop. An argumentative sentence or two is not likely to draw an objection and even less
likely to be sustained. Drawn out argument, however, is more vulnerable to both.
It is also objectionable to argue the law during opening statements. While some
brief mention of the applicable law is unavoidable, lengthy discourse on the law, and
especially misstatement of the law, should draw an objection.
While opening statements are required to preview only the evidence that will
ultimately come before the trier offact, objections usually will not be sustained on the
ground that counsel is discussing inadmissible evidence. A lawyer is entitled to take
a chance that her evidence will be admitted, and most judges will not rule on
evidentiary objections during the opening statements.
Finally, it is worth noting that there is no such objection as "That is not what the
evidence will be." Opposing counsel presents her case and you present yours. You will
naturally disagree as to what the evidence will show. If counsel ultimately fails to live
up to the commitments given during her opening statement, then you can and should
pound that point home during your final argument. For the same reason, there is also
no such objection as "mischaracterizing the evidence." If a characterization amounts
to argument, object to it. Otherwise, opposing counsel is free to put whatever spin she
can on the evidence.
B. Responding to objections
An objection during your opening statement can be distracting. Offering a lengthy
argument in response to an objection, however, can be even more disruptive. The best
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method ofhandling objections during opening statements is simply to stand still (facing
the jury or judge) while the objection is made and argued. Turn and respond to the
objection only if the judge asks you to, and then keep your argument brief.
The best response to an "argumentative" objection is to simply to respond that a
witness (or several witnesses) will testify to the specific facts during the trial. For
instance, say plaintiffs counsel stated during the fire truck opening that, "You will
learn that the defendant's first concern after the accident was his meeting and not the
health of the plaintiff." If defense counsel objects to that statement as argument, the
plaintiff should respond with a proffer to the judge telling her that the testimony will
verify that fact. Counsel might say, ''Your Honor, two witnesses will testify that
immediately after the accident the defendant called his office on his cellular phone
before he checked on the plaintiff."
If the objection is overruled, simply pick up where you left off. If the objection is
sustained, you must adapt your opening to the court's ruling.
Consider, for instance, what you would do if your theme "too busy to be careful" is
found to be improper argument by the presiding judge. Do not ask for reconsideration
or try to explain why you were not being argumentative. A small adjustment to your
opening is sufficient:
The evidence will show that the defendant was extremely busy and not careful
on the morning of the accident. He was busy because he had an important
meeting scheduled with a new client. He was running late for the meeting, and
he wanted to get there on time. We know that he wasn't careful because he kept
on driving when all of the other traffic stopped for a fire truck. The truck was
flashing its lights and sounding its siren, but the defendant didn't notice it until
it was too late.
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