Criminal Trial Advocacy Handbook

Transcription

1 Criminal Trial Advocacy Handbook National Student Leadership Conference Law & Advocacy 2012 NSLC i

2 Copyright 2012 by National Student Leadership Conference. All rights reserved. No part of this publication may be reproduced or transmitted in any form or by any means, electronic or mechanical, including photocopy, recording, or any information storage and retrieval system, without permission in writing from the publisher. Printed in the United States of America. ii

3 Table of Contents Chapter 1: The American Judicial System... 3 State and Federal Courts... 5 Judicial Levels: Trial and Appellate... 5 United States District Courts... 7 United States Courts of Appeals... 9 Criminal and Civil Cases Types of Law: Statutory and Case Chapter 2: Fundamentals of the Trial The Parties of the Case The Role of the Attorney The Role of the Jury The Judge The Charges Motions The Burden of Proof Layout of the Courtroom Chapter 3: Preparing for Trial Discovery Narrowing the Issues Chapter 4: Elements of Criminal Trial Procedure Pre-Trial Motions Jury Selections Opening Statements Prosecution s Case in Chief Directed Verdict Defense s Case in Chief Jury Instruction Conference Closing Argument Jury Deliberations & Returning the Verdict Sentencing Phase Appeal Chapter 5: Homicide Laws: Murder and Manslaughter Understanding the Statutes Defenses Homicide Statutes Legal Briefs Freddo v. State United States v. Fleming Homicide Problems

4 Chapter 6: The Federal Rules of Evidence...43 General Provisions...45 Presumptions in Civil Actions and Proceedings...46 Relevancy and Its Limits...46 Witnesses...48 Opinions and Expert Testimony...51 Hearsay...52 Authentication and Identification...55 Contents of Writings, Recordings, Photographs...56 Chapter 7: Practice Problems...57 Theory of the Case...59 Opening Argument...60 Introduction of Physical Evidence...62 Direct Examinations...64 Cross-Examinations...67 Closing Arguments...69 Chapter 8: The NSLC Mock Trial Handbook...73 Preparing Your Case...75 The Opening Statement...82 Direct Examinations...86 Entering and Using Physical Evidence...90 Cross-Examinations...94 Offers of Proof...96 Impeaching a Witness on Cross-Examination...97 Objections and Offers of Proof...99 The Closing Argument Courtroom Decorum Chapter 9: The Law & Advocacy Trial Notebook Theory/Theme My Side s Witnesses Opposing Side s Witnesses Physical Evidence and Stipulated Facts Why and How I Can Improve My Case Problems with My Case Problems with Opposing Side s Case Notes Chapter 10: Useful Documents Mock Trial Time Limits Time Cards Witness Selection Form Common Legal Terms

5 The American Judicial System 1 There isn t one single court system in America; instead, each state has its own court system to handle cases involving disputes or crimes within that state. The federal government also has a court system that is responsible for handling cases involving disputes governed by federal laws or the Constitution. Within the state and federal judicial branches, the two basic categories are trial and appellate courts. There are also different types of law, as well as a system of judicial ethics that all attorneys and judges are expected to follow. This chapter describes in detail the intricacies of the American judicial system. State and Federal Courts Judicial Levels: Trial and Appellate United States District Courts United States Courts of Appeals Criminal and Civil Cases Judicial Ethics Types of Law: Statutory and Common Law 3

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7 State and Federal Courts Every state has its own judicial branch. These courts handle 95% of court cases in the United States those involving disputes arising under state laws. While every state court system is unique (states differ widely in how they organize their courts), the basic fundamental rules and principles apply in all courts. Some states have as many as fifty different types of courts; some as few as two. The federal court system, which handles cases addressing a violation of the Constitution, federal laws, or disputes over interstate contracts with damages over $75,000, accounts for only 5% of all the cases tried in the United States. Included in the federal court level are: U.S. District Courts (see page 30), the Court of International Trade, Claims Court, the Circuit Courts of Appeal (see page 32), the Court of Appeals for the Federal Circuit and the Supreme Court. Judicial Levels: Trial and Appellate There are two levels in the judicial system: trial courts and appellate courts. The trial court is sometimes called a lower court but it would be a mistake to downplay its importance. It is in the trial court where the facts are heard by either a judge (bench trial) or a jury. It is here that witnesses testify, exhibits are introduced and credibility is judged. The trial courts are where cases begin. In the federal system, they are called district courts. In individual states, they are referred to as circuit courts or superior courts. Trial judges make rulings on what evidence will be admitted and what laws will apply. It is at the trial level where the parties present facts to either a judge or a jury to determine their rights, guilt, liability or responsibility. The judge and jury determine what the facts are, who they are going to believe and the damages to be assessed. In most criminal cases it is the judge who determines a convicted defendant s sentence. In capital cases it may be the jury who determines the sentence. There are two special trial courts: the Court of International Trade, which handles cases involving international trade and customs disputes, and the United States Court of Federal Claims, which addresses money damages against the U.S. and disputes over federal contracts. If a party feels that justice was not served by the trial court s decision, they may appeal the ruling; they do so by petitioning to the appellate court to review their case. It is important to note that a trial court decision cannot be appealed simply because the losing side is dissatisfied with the ruling; the petitioner must prove that the ruling was somehow biased, unjust or unconstitutional. Appellate courts usually include a panel of at least three judges (most often more). In a court of appeals, there is no presentation of witnesses or physical evidence. The final judgment is determined by a majority of the panel of appellate judges; juries are never called upon at the appellate level. 5

8 Most states and the federal courts have two levels of appellate courts: an intermediate court of appeals and the Supreme Court. An intermediate court of appeals handles all or most of the appeals from the trial courts in the state or federal system. A Supreme Court is the final court of appeal. In total, there are 94 federal judicial districts; each is organized into one of 12 regional circuit courts, which handle appeals within that circuit. The following flow chart shows the progression of cases from the trial to the appellate level. U.S. Supreme Court Highest court in the land. Power of judicial review. State Supreme Court Final court of appeals for cases addressing only state laws. State Court of Appeals Exist in 40 states as first court of appeal (10 only have Supreme). APPELLATE LEVELS U.S. Circuit Court of Appeals Each state and district belongs to a circuit. There are 12 of these courts. State Trial Courts County, District or Superior Courts. Handle state laws only. TRIAL LEVELS U.S. District Courts 94. Handle: federal statutes, U.S. Constitution, interstate conflicts. The U.S. District Courts and U.S. Courts of Appeals are listed in detail on the following three pages. 6

9 United States District Courts State District Authorized Judgeships Location Alabama Northern district Middle district Southern district Birmingham, AL Montgomery, AL Mobile, AL Alaska 3 Anchorage, AK Arizona 9 Phoenix, AZ Arkansas Eastern district Western district 5 3 Little Rock, AR Fort Smith, AR California Northern district Eastern district Central district Southern district San Francisco, CA Sacramento, CA Los Angeles, CA San Diego, CA Colorado 7 Denver, CO Connecticut 8 New Haven, CT Delaware 4 Wilmington, DE District of Columbia 15 Washington, DC Florida Northern district Middle district Southern district Tallahassee, FL Jacksonville, FL Miami, FL Georgia Northern district Middle district Southern district Atlanta, GA Macon, GA Savannah, GA Guam 1 Agana, GU Hawaii 3 Honolulu, HI Idaho 2 Boise, ID Illinois Northern district Southern district Central district Chicago, IL East St. Louis, IL Springfield, IL Indiana Northern district Southern district 5 5 South Bend, IN Indianapolis, IN Iowa Northern district Southern district 2 3 Cedar Rapids, IA Des Moines, IA Kansas 5 Wichita, KS Kentucky Eastern district Western district 5 4 Lexington, KY Louisville, KY Louisiana Eastern district Middle district Western district New Orleans, LA Baton Rouge, LA Shreveport, LA Maine 3 Portland, ME Maryland 10 Baltimore, MD Massachusetts 13 Boston, MA Michigan Eastern district Western district 15 4 Minnesota 7 St. Paul, MN Mississippi Northern district 3 Oxford, MS Southern district 6 Jackson, MS Missouri Eastern district 6 Western district 5 Detroit, MI Grand Rapids, MI St. Louis, MO Kansas City, MO 7

10 State District Authorized Judgeships Location Montana 3 Billings, MO Nebraska 3 Omaha, NE Nevada 5 Las Vegas, NV New Hampshire 3 Concord, NH New Jersey 17 Newark, NJ New Mexico 6 Albuquerque, NM New York Northern district Eastern district Southern district Western district Syracuse, NY Brooklyn, NY New York, NY Buffalo, NY North Carolina Eastern district Middle district Western district Raleigh, NC Greensboro, NC Asheville, NC North Dakota 2 Bismarck, ND N. Mariana Islands 1 Saipan, N. Mar. I Ohio Northern district 11 Cleveland, OH Oklahoma Southern district Northern district Eastern district Western district Columbus, OH Tulsa, OK Muskogee, OK Oklahoma City, OK Oregon 6 Portland, OR Pennsylvania Eastern district Middle district Western district Philadelphia, PA Scranton, PA Pittsburgh, PA Puerto Rico 7 Hato Rey, PR Rhode Island 3 Providence, RI South Carolina 10 Columbia, SC South Dakota 3 Sioux Falls, SD Tennessee Texas Eastern district Middle district Western district Northern district Southern district Eastern district Western district Knoxville, TN Nashville, TN Memphis, TN Dallas, TX Houston, TX Tyler, TX San Antonio, TX Utah 5 Salt Lake City, UT Vermont 2 Burlington, VT Virgin Islands 2 St. Thomas, V.I. Virginia Eastern district Western district 10 4 Alexandria, VA Roanoke, VA Washington Eastern district Western district 4 7 Spokane, WA Seattle, WA West Virginia Northern district Southern district 3 5 Elkins, WV Charleston, WV Wisconsin Eastern district Western district 5 2 Milwaukee, WI Madison, WI Wyoming 3 Cheyenne, WY 8

11 United States Courts of Appeals Court of Appeals Districts Included In Circuit Authorized Judgeships Location Federal Circuit United States 12 Washington, DC District of Columbia Circuit District of Columbia 12 Washington, DC First Circuit Maine Rhode Island Massachusetts Puerto Rico New Hampshire 6 Boston, MA Second Circuit Connecticut New York Vermont 13 New York, NY Third Circuit Delaware Pennsylvania New Jersey Virgin Islands 14 Philadelphia, PA Fourth Circuit Maryland Virginia North Carolina West Virginia South Carolina 15 Richmond, VA Fifth Circuit Louisiana Mississippi Texas 17 New Orleans, LA Sixth Circuit Ohio Michigan Kentucky Tennessee 16 Cincinnati, OH Seventh Circuit Illinois Indiana Wisconsin 11 Chicago, IL Eighth Circuit Arkansas Nebraska Iowa North Dakota Minnesota South Dakota Missouri 11 St. Louis, MO Ninth Circuit Alaska Nevada Arizona Oregon California Washington Hawaii Guam Idaho Montana N. Mariana Islands 28 San Francisco, CA Tenth Circuit Colorado Oklahoma Kansas Utah New Mexico Wyoming 12 Denver, CO Eleventh Circuit Alabama Florida Georgia 12 Atlanta, GA 9

12 Criminal and Civil Cases There are two basic types of cases that are brought to trial: criminal cases and civil cases. While there are similarities in the manner in which both criminal and civil trials are conducted, there are some very distinct differences. When there is a violation of a statute, a law which imposes a penalty of either a fine or the potential of going to jail, a crime has been committed: any charges brought of this nature are done so in a criminal trial. There are three types of crimes: traffic crimes, which are violations of the road; misdemeanors, which are crimes in which you may be sentenced to supervision, probation or up to a year in jail; and felonies, which are crimes in which you may be sentenced to probation or more than a year in jail. Congress and state legislatures are responsible for determining what constitutes a crime. Many states have established juvenile courts which hear cases involving individuals under a certain age who are charged with a crime. These courts have been established with the belief that juveniles need different services, and to have them intermingled with adult offenders is not in their best interest. Civil cases, on the other hand, are suits where a disagreement has arisen, and at least one party is seeking some type of relief from the court. Types of Law: Statutory and Case There are two types of law: statutory law and case law. Statutory laws are those written by state legislatures and by Congress. Case law is the law that has developed through the years by court opinions by appellate and supreme courts in deciding certain cases. It is binding law until it is changed by either the legislature or a later court opinion. Only appellate courts and the Supreme Court have the ability to establish case law. Trial judges are bound by case law already handed down by appellate and supreme courts; case law is also referred to as precedent. 10

13 Fundamentals of the Trial 2 In order to be an effective trial attorney it is essential to learn the fundamentals of trial advocacy. This chapter will outline how a trial is conducted, what a courtroom looks like, the difference between a criminal and civil trial, as well as the roles of people essential to conducting a fair trial. The Parties of the Case The Role of the Attorney The Role of the Jury The Judge The Charges Motions The Burden of Proof Layout of the Courtroom 11

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15 The Parties of the Case Once a determination is made that either a crime has been committed or an individual wants to be compensated for a wrong, the matter has to be brought to the court. It is done formally with the filing of papers. This is called the Complaint. Lawsuits are brought by individual citizens; in civil cases they are called plaintiffs. In a criminal case, the case or charge may only be brought by the prosecution, which is the office of the federal, state or local government which is bringing charges against an individual or individuals for committing a crime. The government s attorney is called the District Attorney, State s Attorney, U.S. Attorney, or Attorney General. Anyone charged with a crime is the defendant. They are represented either by an attorney they hire to represent them; if they are unable to afford counsel, an attorney (usually called the Public Defender) will be appointed to represent them. The Role of the Attorney The American judicial system is one of advocacy: the act of advancing a specific position. The role of an attorney is to protect the interests and rights of their clients. In order to practice law, one must be certified as an attorney. Attorneys must graduate from law school, where they receive their Juris Doctor (JD) degree; they must also pass the bar exam in the state where they will be trying the case. At the trial court level, attorneys prepare and file motions, present witnesses and argue before juries. At the appellate level, they prepare and file written briefs and argue the case to the justices hearing the appeal. It is important that attorneys are knowledgeable on both statutory and case law, and have a complete understanding not only of the case, but also the applicable statutes and precedent that may affect the court s ruling. In many instances, their work begins long before a case is argued in the courthouse. The decision whether to file a case, what to file and how to proceed are all decisions made by lawyers. The gathering of evidence, organizing of witnesses and researching the law are 13

16 done outside of the courthouse. The research and organization of a case before the filing or arguing begins is crucial for success in the courtroom. The Role of the Jury Juries are present in both civil and criminal cases. They are comprised of a group of American citizens summoned to appear in court. While state laws dictate the number of jurors that serve, there are typically between 6 and 12 people. As instructed by the judge, it is the jury s job to determine the guilt of the parties, the weight of evidence, the credibility of witnesses and often the sentencing of the convicted. The Judge The judge is responsible for ensuring that justice is served in his/her courtroom. Judges wield extensive authority and discretion in the cases over which they preside, and should be treated with the utmost respect in their courtroom. Anyone addressing the judge (or the Court) is expected to stand while speaking and to ask permission before proceeding on questioning or approaching the bench or a witness. The Charges Charges are brought by either an indictment or after a preliminary hearing. An indictment is the name given a formal charge after the prosecution brings evidence before a grand jury. Grand juries are citizens who will hear a very short summary of the evidence presented by the prosecution in a private proceeding. Their job is to determine if there is sufficient evidence to make the defendant appear before a court for trial. A preliminary hearing occurs before a judge: the prosecution presents an abbreviated form of the evidence they have, and the defendant is presented. Attorneys for the defense are able to question any witnesses presented by the prosecution, and if they so choose, present evidence. The prosecution only has to show the court there is sufficient evidence to charge the defendant, not necessarily sufficient evidence to convict someone. It is important to remember the indictment or finding after a preliminary hearing is merely the way a defendant is formally charged with committing a crime, and is not evidence that a crime was committed. Motions A motion is a request by one party that the court order the other side to do something; not do something; or have the court rule on certain evidence. 14

17 The Burden of Proof How much evidence is a party required to present so they will win their case? What are the standards the jury or the judge sitting without a jury use in determining who should prevail? This is referred to as the burden of proof. The party who brought the suit will have the burden. In civil cases, the plaintiff has the burden; in criminal cases, the prosecution has the burden. The scales of justice are often used as a visual aid to describe what is needed to meet the burden. At the beginning of a case the scales are even on both sides. Determining whether or not a burden has been met is viewed after the introduction of evidence and is shown by whether the scales are tipped in favor of one side or another. In a civil case, the plaintiff must prove his case by a preponderance of the evidence; that is, it is more likely than not that the defendant is at fault. To visualize what this burden means, think of the scales of justice as having to be tipped in favor of the plaintiff by a feather, but not necessarily all the way to one side. In criminal cases, the prosecution must prove beyond a reasonable doubt that the defendant is guilty of the crimes for which he is being tried. To visualize what this burden means, think of the scales of justice as having been tipped in favor of the prosecution by a brick, to the point of touching the base on which the scales rest. If one small bit of the defendant s evidence has any reasonable merit, the prosecution has not met its burden. This is an outgrowth of the constitutional presumption of innocence that every defendant has until a verdict is rendered. The burden of proof must always be kept in mind by all parties, whether it is a criminal or civil case. The prosecution and plaintiff must take every step possible to show that there is enough evidence to meet the burden, and the defense must fight with equal fervor to show that there is insufficient evidence; the defense may also wish to show there is information that actually vindicates the defendant. Remember, in a criminal trial the defendant DOES NOT HAVE A BURDEN to prove his innocence; he must only show that there exists some reasonable doubt. It is because of this burden that the plaintiff and the prosecution go first in presenting evidence, and as you will learn later, have the last word in closing arguments. 15

18 Layout of the Courtroom Court Clerk Judge s Bench Witness Stand The Well Jury Box Lecturn Defense / Defendant Prosecution / Plaintiff Observation Area Attorneys and judges alike treat the courtroom with reverence. There are several rules, written and unwritten, which attorneys must follow if they hope to remain in the good graces of the judge. Among these are the importance of the layout and the areas of the court that an attorney can enter. Contrary to what television courtroom dramas imply, the area of the court in front of the counsel table (the well) is an area that lawyers may only enter with permission from the judge. In reality, the witness s space is to be well-respected and rarely entered. Good attorneys know how to use the layout of a courtroom to their advantage and understand the individual judge s preferences about where attorneys should be during various elements of trial. 16

19 Preparing for Trial 3 It is often said that one of the best ways to avoid going to trial is to get ready for trial: the more prepared you are, the better you will know your case and the better position you will be in to try to settle the matter outside of the courtroom. Often, your level of preparation can have a psychological effect on the other side. The Trial Notebook provided to you by the NSLC will be extremely helpful in organizing your case and preparing your witnesses (for further preparation and organization, refer to Chapter 9 of this text: NSLC Mock Trial Guide). In addition to organization and preparation, there are also some court formalities which this chapter explains. Discovery Narrowing the Issues 17

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21 Discovery Once the case proceeds to court, you do not go to trial immediately. Attorneys start a process called discovery: the process in which information is given to the other side about the evidence you have to support your case. Discovery is very different in civil and criminal cases. Civil Discovery In civil cases, both parties have the right to request that the other answer written questions under oath; these are called interrogatories. They will ask what documents exist; who their witnesses are; what damages they claim; as well as background information. The interrogatories usually request the names and addresses of witnesses, background information of the plaintiff or defendant, names and addresses of treating physicians, what type of damages are claimed, what it is the plaintiff thinks the defendant did wrong or what affirmative defenses the defendant is going to claim. Each party may then question the opposing party and their witnesses at a deposition: a questioning by a party or a witness by an attorney in front of a court reporter and the attorney for the opposing party. The purpose is to find out what that witness will say at trial and may even lead to other evidence. Information and questions may be asked at a deposition that would not be allowed at trial. Another aspect of discovery is document production. A party may request the opposing party to produce medical reports, lost wage statements, letters, repair estimates and any document that is relevant to the case. This includes information stored on computers. It is the discovery process that can cause delays before a case is ready to go to trial. This happens when there are experts retained by a party who needs to review the material or examine the plaintiff or the place of the accident before they can render an opinion. An expert is an individual who because of special training or experience in a certain field is able to render an opinion as to some fact in issue in the case. A physician may testify that the way the plaintiff fell on a slippery floor caused the injuries; a medical examiner can testify as to the cause of death in a murder case. After the expert s opinion is given to the opposing party, the opposing party is given a chance to take the expert s deposition and then retain its own expert. If a party does not comply with discovery requests, motions may be brought before the judge to order compliance or sanction the non-complying party. Sanctions can include fines, payment of the other side s attorney s fees, exclusion of certain evidence, or, in extreme cases, being precluded from introducing any evidence. Judges prefer attorneys to work out their discovery differences between themselves. Criminal Discovery In criminal cases the discovery requirements are not the same for both parties. The requirements for the prosecution are much greater since the prosecution has the burden of proof. As the defendant has a presumption of innocence and cannot be made to testify 19

22 against herself, she does not have to give the prosecution information that will help convict her. The prosecution has to tender the names and addresses of their witnesses, along with reports, statements, physical evidence and information concerning expert testimony. The prosecution may obtain the name and address of all defense witnesses, as well as any experts reports and may only request information concerning an affirmative defense, such as an alibi or insanity. Then the defendant would have to disclose information concerning where she is claiming to have been at the time of the incident or the nature of her mental disease or defect. Usually there are no depositions in criminal cases. This is changing somewhat in capital cases, where depositions are being allowed under certain circumstances. Criminal attorneys do have the right to interview witnesses to learn what their testimony will assert, but they cannot require the witness to talk to them as civil attorneys can through a deposition. Narrowing the Issues When an attorney is first presented a case, she must review the law and outline the elements of the criminal charge or the cause of action. In analyzing the case the attorney needs to focus on what issues are being contested. In a murder case, are you contesting that someone died? How they died? Who caused the death? In an auto accident are you contesting there was an accident? Who caused the accident? The injuries claimed by the plaintiff? Judges want you to do this so they and the jury can focus on what is really at issue and not waste time hearing evidence about which both sides agree. This is also important for the attorney to develop a theory of the case, which we will discuss later. Once you narrow the issues, you can then concentrate on organizing your evidence for proving or disproving. It will also allow the attorney to determine if it is possible to enter into settlement negotiations. Negotiations are important in both criminal and civil cases. Trials are expensive, both financially and emotionally, for those involved. There are times when it is in the best interest of everyone to reach a settlement. Settlements by definition are compromises, meaning that neither side is declared the winner or the loser. There are instances in which settlement is not possible due to the nature of the case or the position of the parties. When that occurs, it is necessary to proceed to trial. In criminal cases the defendant has the right to a jury until it is waived. While in most states the prosecution may not request a jury, in federal criminal cases the prosecution does retain this right. 20

23 Elements of Criminal Trial 4 Procedure This chapter details the basic elements of a criminal trial. Depending on the type of crime committed and the jurisdiction in which the case is being tried, many more elements may be added. Note: Because of the time constraints in the NSLC Mock Trial, we will not be engaging in pre-trial motions, jury selection or jury instruction. However, a real criminal trial will include all of these elements. Pretrial Motions Jury Selection Opening Statements Prosecution s Case in Chief Directed Verdict Defense s Case in Chief Jury Instruction Conference Closing Arguments Jury Deliberations and Returning the Verdict Sentencing Phase Appeal 21

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25 Pretrial Motions Pretrial motions may be called by either side before the jury is called into the courtroom and questioned as prospective jurors. Many of these motions can be made before the case is even set for trial. Some pretrial motions are routine and some are very specific as to the facts in the particular case. The most common is a Motion for Discovery, where the prosecution is required to disclose certain information they have, as to who their witnesses are, the physical evidence, any statements, any expert reports, and any evidence which might exculpate the defendant. The defense may be required to disclose their potential witnesses, any expert witness reports, affirmative defenses they may introduce and physical evidence they may introduce. Motions to Suppress are filed by the defense, which claims a violation of the defendant s rights in obtaining either physical evidence or statements. They may require a hearing so the judge may hear evidence to make a determination as to whether or not the prosecution may use the contested evidence. Motions to Determine the Fitness of the Defendant to Stand Trial may be filed by either party if there is a question as to whether or not the defendant understands the charges and is capable of aiding his attorney in preparing the case. This would require an evaluation by an expert and a hearing to determine if the defendant may stand trial. Motions in Limine may be filed by both sides, usually on the eve of trial. The purpose is to have the trial judge rule as to whether or not the opposing side may mention facts, or permit a witness to mention certain facts. The facts which are subject to a Motion in Limine are often highly prejudicial and of questionable admissibility. They may contain information that is extremely damaging to the moving party s case. An example is a prior criminal conviction or evidence not relevant to guilt or innocence in this case but potentially inflammatory (such as child pornography found in the car of a defendant who is charged with the murder of his wife). The moving attorney s objective is to prevent the information from being brought before the jury. Any mention of evidence excluded in a motion in limine is cause for an immediate mistrial. This is a common mistake among new lawyers and have a devastating effect on not only a case, but a career. Jury Selection Juries are composed of citizens who live in the jurisdiction in which the trial is being heard. How a jury is selected (including the questions asked of potential jurors) is called Voir Dire, which comes from the French phrase to see to speak. A group of prospective jurors is brought to the courtroom, and they are sworn in to answer all questions honestly. The judge will usually ask the jurors general questions: do they know any of the people involved; do they have any pending lawsuits; have they served as jurors before? Then, each attorney will be able to ask certain questions. The attorney for the burden bearer (prosecution, or plaintiff) will have an opportunity to question each juror first, then the attorney for the 23

26 defendant. Their questions are designed to elicit any biases and/or prejudices that the individual may have which would affect their ability to be fair and impartial. For example, if the case at hand deals with driving while under the influence of alcohol, both sides would ask how each prospective juror feels toward that issue. If one of the prospective jurors feels the law is too stringent as to what constitutes driving under the influence, the prosecution may want that individual excused. If another of the prospective jurors had a family member killed by a drunk driver, the defense may want that individual excused. Jurors are excused from serving on a jury by either a challenge for cause or a peremptory challenge. A challenge for cause occurs when there is an obvious bias/ prejudice that would prevent that individual from being fair and impartial. It may also occur for medical reasons. There is no limit on the number of challenges for cause either side may make. Each attorney is given a limited number of peremptory challenges, which is a challenge they may make without giving a reason. As with most rules there is an exception to this. If it appears that either side is excusing potential jurors due to the jurors race, religion, gender or national origin, they may be required to give a basis for excusing the jurors. Opening Statements Once the jury is selected, the trial is ready to proceed. The opening statement is the attorney s opportunity to tell the jury the story of the case as he sees it. In this statement, the attorney discusses the issues in dispute and tells the jury who will testify and what they can expect to hear and see during the trial. Since the prosecution has the burden of proof, they give their opening statement first. Please note that the prosecution must limit their statements to what evidence they will be presenting during trial, as the presumption of innocence does not require the defendant to put on a defense. The defense has an opportunity to give an opening statement at this time; in some jurisdictions, they may wait until the start of their case in chief. Remember, this is an opening statement not an argument, an argument is not appropriate at this stage in the game. Prosecution s Case in Chief Following the opening statements, the prosecution has the opportunity to present its evidence to the jury. They will call individuals to the witness stand who will describe facts of the case that are favorable to the prosecution s theories and explain physical evidence. This is called direct examination. The facts that the prosecution presents at this stage of the trial must establish evidence of each element of the crime that is charged. It is called establishing a prima facie case. This means that by the end of the prosecution s case, a jury of reasonable people could find the defendant guilty beyond a reasonable doubt. After each witness is questioned by the prosecution on direct examination, the defense is given the opportunity to question the witness; this is called cross-examination. The defense attorney will use this opportunity to bring out information favorable to the defense, show 24

27 bias of a witness, or inconsistencies of the witnesses statements. This is called impeaching, or discrediting, a witness. After the prosecution has called all of their witnesses and introduced all of their exhibits, they will rest their case. Directed Verdict After the prosecution rests, the defense will usually move for what is called a directed verdict. This, in essence, is an appeal by the defense to the judge during which the defense argues that the prosecution has not presented evidence to establish each element of the cause of action. The defense argues that the prosecution did not present a prima facie case (a case which presents evidence that a reasonable person could find establishes each element). If the judge agrees with the defense, he/she grants the motion for a directed verdict and finds the defendant not guilty. That is the end of the trial. In most cases, the motion for a directed verdict is denied and the defense proceeds with its case in chief. One of the quickest ways to insure a directed verdict is for the prosecution to fail to have any of its witnesses identify the defendant. If the defendant is never identified by anyone, the prosecution may have provided evidence of a crime, but they have provided no evidence that establishes that it was the defendant who committed the crime. The jury can only deliberate on the evidence presented in court. It would be a waste of time for the defense to present its entire case if the prosecution had not presented any evidence of the defendant s involvement in the crime. Defense s Case in Chief Because the burden of proof lies with the prosecution, the defense is not required to put forth any evidence or call any witnesses. Unless a directed verdict is granted, however, it is generally wise for the defense to present its version of the facts to the jury. The defense will call witnesses to the stand who will present evidence rebutting or contradicting the evidence presented by the prosecution. These witnesses may also present evidence of what is called an affirmative defense. Selfdefense is an example of an affirmative defense. When the defense chooses to assert an affirmative defense, the burden of proof then shifts to the defense. In some jurisdictions, it becomes the defense s responsibility to prove the affirmative defense beyond a reasonable doubt; in others they just need to present sufficient evidence to raise the issue. In those jurisdictions the state must then prove the affirmative defense did not exist beyond a reasonable doubt. Similar to the prosecution s case in chief, each witness s testimony is presented through direct examination by the defense. The prosecution is then given the opportunity to crossexamine the witness in order to discredit him or elicit favorable testimony. Once the defense has called all of its witnesses, it will rest. 25

28 Jury Instruction Conference Once both sides have rested, the judge will meet outside the presence of the jury to discuss what instructions of law will be given to the jury to guide them in making their findings of fact. The instructions are written statements of the law the judge will read to the jury prior to their beginning deliberations. The jury instructions include general statements as to the law and specific statements as to the elements of the crime being charged. For example, the judge will instruct the jury that the defendant is presumed innocent until proven guilty; that the jury will determine the credibility of the witnesses; and that to find the defendant guilty they must find certain facts beyond a reasonable doubt. The jury will also be given verdict forms. These are forms which state what the jury s verdict is, and it has places for the signatures of all twelve jurors. The prosecution and defense will present to the judge their versions of what instructions should be given to the jury. It is at this conference that the judge rules on which instructions will be given. This is done prior to closing argument so the attorneys may refer to the instructions in their closing argument. The jury is given a copy of the instructions to take into the jury room during deliberations. Closing Arguments This is the attorneys final opportunity to speak with the members of the jury before they go to deliberate. This is the time for the attorney to tell the jurors what they have seen and heard throughout the course of the trial. It is the attorneys opportunity to argue how the facts and evidence presented during the trial support their version of what happened and prove or do not prove the elements of the crime as set forth in the jury instructions. The prosecution, as the party bringing the action before the court, is permitted to go first. The defense is then permitted to argue. Since the prosecution has the burden of proof, they are given the opportunity to rebut the argument presented by the defense and briefly restate why they have met their burden. Jury Deliberations and Returning the Verdict This means just what it says. Once the closing arguments are complete, the jury goes back to the deliberating room with all of the evidence that has been admitted during the course of the trial and attempts to reach a verdict. In all criminal cases, the verdict must be unanimous. Once a verdict is reached, the jury returns and the foreperson reads the verdict to the court for the record. If a unanimous verdict cannot be reached after a reasonable amount of time has been spent in deliberation, the jury is declared to be hung. This does not mean that the defendant goes free; it means the prosecution has the option of retrying the case with a new jury that may be more successful in reaching a decision. 26

29 Sentencing Phase If the defendant is found guilty of any crime, the trial proceeds to the sentencing phase. Prior to that, the defense will file any post-trial motions in which they allege any errors they feel were committed during the trial by either the introduction of certain evidence, refusal to allow certain evidence or that new evidence has come to light. If after a hearing these motions are denied, the defendant will be sentenced. In most cases sentencing is done by the judge. In death penalty cases sentencing may be by judge or jury. If a jury hears the sentencing phase, this hearing is usually done separately from what is called the guilt phase (determination if defendant is guilty or not). This is called a bifurcated trial. Appeal In a criminal case, if the defendant is found guilty, she may file a notice of appeal to the appellate court to have a review of the findings by the trial court. In civil cases, either side may appeal. 27

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31 Homicide Laws: Murder and 5 Manslaughter The NSLC mock trial is a murder trial. The first step in preparing for court is developing an understanding of relevant laws. Crimes are statute specific, which means each crime is defined by statute. Thus, to be convicted, the defendant must have done what is stated in the law, not something similar or close to what is stated. This chapter will help you understand the appropriate homicide statutes for your mock trial; the homicide problems will help you develop your legal reasoning skills. Understanding the Statutes Defenses Homicide Statutes Legal Briefs Freddo v. State (1913) United States v. Fleming (1984) Homicide Problems 29

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33 Understanding the Statutes HOMICIDE is the killing of one human being by another human being. JUSTIFIABLE or EXCUSABLE HOMICIDES are those which are authorized by law (imposition of the death penalty), or those in which the circumstances do not justify infliction of full punishment (self-defense, accident). MURDER is the killing of a human being without lawful justification. FIRST DEGREE MURDER or CAPITAL MURDER A person who kills an individual without lawful justification commits first degree murder if in performing the acts which cause the death: (a) he either intends to kill the individual or another, or knows that such acts will cause death to that individual or another; or (b) he knows that such acts create a strong probability of death or great bodily harm to that individual or another; or (c) he is attempting or committing a forcible felony. First degree murder includes intent to kill, intent to commit a forcible felony, or an awareness of a high risk of death. It is this intent which causes the sentence to be more severe. If certain conditions are met after a conviction for first degree murder, a defendant may be subject to the death penalty, natural life in prison without possibility of parole, an extensive parole or an extensive prison term. Many states have minimum sentences a defendant must serve if convicted of first degree murder. Forcible felonies include: armed robbery; robbery; burglary; rape; kidnapping; arson; escape; and aggravated battery. SECOND DEGREE MURDER or VOLUNTARY MANSLAUGHTER A person commits the offense of second degree murder when he commits the offense of first degree murder as defined in paragraphs (a) or (b) above, and either of the following mitigating factors are present: (1) At the time of the killing he is acting under a sudden and intense passion resulting from serious provocation by the individual killed, or by another whom the offender endeavors to kill, but negligently or accidentally causes the death of the individual killed; or (2) At the time of the killing he believes the circumstances to be such that, if they existed, would justify or exonerate the killing, but his belief is unreasonable. Statutes may define what constitutes serious provocation. There is also the issue of burden of proof. The statute may require the defendant to show some evidence by preponderance. The burden would then be on the prosecutor to show beyond a reasonable doubt the elements of first degree murder and then the absence of mitigating circumstances in order to have a first degree murder conviction. To prove 31

34 a second degree murder conviction, the prosecutor would still need to prove beyond a reasonable doubt the elements of first degree murder, and then the jury, or a judge sitting without a jury, may find mitigating circumstances, and so may find the defendant guilty of second degree murder. Sentences for second degree murder are less severe. INVOLUNTARY MANSLAUGHTER and RECKLESS HOMICIDE A person who unintentionally kills an individual without lawful justification commits involuntary manslaughter if his acts, whether lawful or unlawful, that cause the death are such as are likely to cause death or great bodily harm to some individual, and he performs them recklessly, except in cases in which the death consists of the driving of a motor vehicle or operating a snowmobile, all-terrain vehicle, or watercraft, in which the person commits reckless homicide. In cases involving reckless homicide, being under the influence of alcohol or any other drug or drugs will be considered an aggravation for purposes of sentencing. In many states a defendant may receive a sentence of probation after being convicted of either involuntary manslaughter or reckless homicide. It would depend on the facts of the case and the defendant s prior criminal background. Defenses There are always certain defenses which may apply to a case. Mentioned earlier were selfdefense and provocation. The defendant is usually required to introduce evidence of the defense before the prosecution needs to disprove the existence of the defense. This means the prosecution does not have to show there was no threat to the defendant which was reasonable if the defendant has not shown fear for his life or great bodily harm. SELF-DEFENSE For an individual to assert self-defense, he must show he acted because he had a reasonable fear of death or great bodily harm. USE OF FORCE IN DEFENSE OF DWELLING To assert this defense, a defendant must show that his acts were necessary to prevent or terminate another person s entry into his dwelling. To use deadly force the defendant must show entry was in a violent manner and that such force was necessary to prevent an assault upon him. INSANITY Each state has its own definition, but in general it means the lack of substantial capacity to appreciate the criminality of one s conduct as a result of mental disease or mental defect. 32

35 Justifiable Use of Deadly Force Homicide Statutes The use of deadly force is justifiable when a person is resisting any attempt to murder such person or to commit any felony upon him or upon or in any dwelling house in which such person shall be Excusable Homicide Homicide is excusable when committed by accident and misfortune in doing any lawful act by lawful means with usual ordinary caution, and without any unlawful intent, or by accident and misfortune in the heat of passion, upon any sudden and sufficient provocation, or upon a sudden combat, without using any dangerous weapon and not done in a cruel or unusual manner Murder 1.A. The unlawful killing of a human being when: (1) Perpetrated from a premeditated design to effect the death of the person killed or any human being; or (2) Committed by a person engaged in the perpetration of, or in the attempt to perpetrate, any of the following crimes: (a) Trafficking offense prohibited by (1), (b) Arson, (c) Sexual battery, (d) Robbery, (e) Burglary, (f) Kidnapping, (g) Escape, (h) Aggravated child abuse, (i) Aircraft piracy, (j) Unlawful throwing, placing or discharging of a destructive device or bomb, or (k) Which resulted from the unlawful distribution of any substance controlled under (1), cocaine as described in (2)(a)4., or opium or any synthetic or natural salt, compound, derivative, or preparation of opium by a person 18 years of age or older, when such drug is proven to be the proximate cause of the death of the user, is murder in the first degree and constitutes a capital felony, punishable as provided in

36 1.B. In all cases under this section, the procedure set forth in shall be followed in order to determine sentence of death or life imprisonment. 2. The unlawful killing of a human being, when perpetrated by any act imminently dangerous to another and evincing a depraved mind regardless of human life, although without any premeditated design to effect the death of any particular individual, is murder in the second degree and constitutes a felony of the first degree, punishable by imprisonment for a term of years not exceeding life or as provided in , , or The unlawful killing of a human being, when perpetrated without any design to effect death, by a person engaged in the perpetration of, or in the attempt to perpetrate, any felony other than any: Manslaughter (a) Trafficking offense prohibited by (1), (b) Arson, (c) Sexual battery, (d) Robbery, (e) Burglary, (f) Kidnapping, (g) Escape, (h) Aggravated child abuse, (I) Aircraft piracy, or (j) Unlawful throwing, placing or discharging of a destructive device or bomb, or (k) Unlawful distribution of any substance controlled under (1), cocaine as describe in (2)(a)4, or opium or any synthetic or natural salt, compound, derivative, or preparation of opium by a person 18 years of age or older, when such drug is proven to be the proximate cause of the death of the user, is murder in the third degree and constitutes a felony of the second degree, punishable as provided in , , or The killing of a human being by the act, procurement, or culpable negligence of another, without lawful justification according to the provisions of Chapter 776 and in cases in which such killing shall not be excusable homicide or murder, according to the provision of this chapter, shall be deemed manslaughter and shall constitute a felony of the second, punishable as provided in , , or Assisting Self- Murder Every person deliberately assisting another in the commission of self-murder shall be guilty of manslaughter, a felony of the second degree, punishable as provided in , , or