Foundations of A Free Society, English P1

Rev.
J une 26, 2009

The Leavitt Institute for International Development
Jury Trial Education Initiative
Fall 2009 Curriculum

Weeks 1 and 2 - Introduction and Baseline exam
September 14-25, 2009
Lesson 1.1: Introduction and Baseline Test ..............................................................1
Courtroom Photos ..............................................................................................2
Courtroom Layout ..............................................................................................4
Lesson 1.2: Identification of Participants and Jury Trial Video Presentation ......5
MT Chapter One Trial Basics .........................................................................6
Glossary ...........................................................................................................13
Lesson 2.1: Criminal Procedure Overview ..............................................................27
TLY How a Criminal Case Begins ..................................................................28
TLY Trial .........................................................................................................32
Lesson 2.2: The Sources of Law................................................................................41
TLY The Sources of Law and the Common Law ............................................42
The American Founding .................................................................................46
Excerpts from the U. S. Declaration of Independence .....................................58

Weeks 3 and 4 The Right to Jury Trial and Roles of Judge and Jury
September 28 - October 9, 2009
Lesson 3.1: Criminal Law and Individual Rights ..................................................61
TLY Criminal Law and Constitutional Rights.................................................62
Privilege ...........................................................................................................67
Lesson 3.2 The Right to Trial By Jury ....................................................................71
Excerpts from the Constitution of Ukraine ......................................................72
Ukrainian Code of Criminal Procedure, Section IV, Chapter 4, 4,
Article 393. ......................................................................................................74
ABA Standards Trial By J ury 15-1.1 - 1.3 ......................................................83
J efferson on Right to J ury Trial .......................................................................98
Amendments VI and VII to the United States Constitution ............................99
Lesson 4.1: The Roles of the Judge and Jury ......................................................101
ABA Standards Trial By J ury 15-4.1 - 4.4 ......................................................92
Ukrainian Code of Criminal Procedure, Section IV, Chapter 4, 4 ................74
ABA What Does a J udge Do? .......................................................................102
J udicial Gatekeeping ......................................................................................104
Lesson 4.2: Jury Instructions and Deliberation ....................................................111
J ury Instructions ............................................................................................112
ABA Standards Trial By J ury 15-5.1-5.7 ........................................................94

(Bound Separately)
Rev. J une 26, 2009

Weeks 5 and 6 Roles of Prosecutor, Law Enforcement and Defense Counsel
October 12-23, 2009
Lesson 5.1: Prosecutors and Law Enforcement ....................................................153
Presidents Commission on Criminal J ustice The Structure of the Criminal
J ustice System ...............................................................................................154
Rule 3.8 Special Responsibilities Of A Prosecutor .......................................167
Lesson 5.2: Prosecution Role and Standards .......................................................169
Kerper Prosecutors ......................................................................................170
Criminal J ustice Kaplan - Prosecution Decisions .......................................182
ABA Standards Prosecution Function ...........................................................187
Lesson 6.1: Defense Counsel Role and Standards ...............................................203
Kerper Defense Attorney ............................................................................204
Criminal J ustice Kaplan Defense Ethics ..................................................210
ABA Standards Defense Function .................................................................214
Lesson 6.2: Plea Negotiation ..................................................................................231
Kerper Flow Chart ......................................................................................232
Plea Bargaining Practice ................................................................................233
History of Plea Bargains ................................................................................240
ABA Standards Guilty Pleas ..........................................................................247

Weeks 7 and 8 Jury Selection, Baseline Exam and Case Preparation
October 26- November 6, 2009
Lesson 7.1: Jury Selection .....................................................................................257
Mauet - J ury Selection ...................................................................................258
ABA Standards Trial By J ury 15-2.1 2.9 ......................................................85
Lesson 7.2: Baseline Exam
Lesson 8.1: Case Preparation I ..............................................................................271
MT Chapter Two Case Preparation ............................................................272
MT Chapter Three- Communication Techniques ..........................................290
Lesson 8.2: Case Preparation II ............................................................................309
Trial Notebook ...............................................................................................315
Sample Case File............................................................................................329

Weeks 9 and 10 Closing Argument and Opening Statement
November 9-20, 2009
Lesson 9.1: Closing Argument Lecture .................................................................345
MT Chapter Twelve Closing Argument .....................................................346
Lesson 9.2: Closing Argument Exercise.................................................................375
Lesson 10.1: Opening Statement Lecture .............................................................377
MT Chapter Eleven Opening Statement .....................................................378
Lesson 10.2: Opening Statement Exercise ............................................................397
Rev. J une 26, 2009
Winter 2010 Curriculum

Weeks 11 and 12: Evidence
February 15-26, 2010
Lesson 11.1 Introduction To Evidence .......................................................................1
Glossary ............................................................................................................2
Evidence Concepts ............................................................................................9
Review pages MT Chapter Two Case Preparation pages 9-14
(pages 302-307 in Fall Curriculum)
Lesson 11.2: Foundation and Exhibits .....................................................................13
MT Chapter Five Foundation and Exhibits ..................................................14
Sample Case File (pages 359-373 in Fall Curriculum)
Sample Exhibits ...............................................................................................46
Lesson 12.1: Objections .............................................................................................69
MT Chapter Ten Objections .........................................................................70
Lesson 12.2: Exercises Introducing Exhibits .........................................................103
Exhibit Dialogs ..............................................................................................104

Weeks 13 and 14: Witnesses
March 1-12, 2010
Lesson 13.1: Preparation of Witnesses...................................................................107
Review MT Chapter Three - Communication Techniques (pages 320-337 in Fall
Curriculum)
Suggestions to Witnesses ...............................................................................108
Lesson 13.2: Direct Examination Lecture .............................................................111
MT Chapter Four Direct Examination ........................................................112
Lesson 14.1: Direct Examination Practice
Lesson 14.2: Cross Examination Lecture ..............................................................133
MT Chapter Six Cross Examination ...........................................................134

Weeks 15 and 16: Cross Practice; Redirect and Recross; Impeachment
March 15-26, 2010
Lesson 15.1: Cross Examination Practice ..............................................................155
Lesson 15.2: Impeachment; Redirect and Recross ...............................................157
MT Chapter Seven Impeachment ....................................................................158
MT Chapter Eight Redirect and Recross ..........................................................177
Lesson 16.1: Impeachment Practice .......................................................................181
(distribute Mock Trial Case file in class)
Lesson 16.2: Introduction of Case File ...................................................................183
Discussion of Case File in Class

Rev. J une 26, 2009
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


Lesson 1.1: Introduction and Baseline Test
Courtroom Photos
Courtroom Layout

Lesson Objective: Students will become familiar with the
physical characteristics of a courtroom in the United States.
A baseline examination will be administered for comparison
with results later in the semester, to assist in measuring
teaching and learning performance.
1

from Courtroom for the 21st Century, Courtrooms for Lehigh County Court of Common Pleas, Courtroom 3

2

3
Courtroom Layout

4


Lesson 1.2: Identification of Participants and
Jury Trial Video Presentation
MT Chapter One Trial Basics
Glossary

Lesson Objective: Students will be able to explain the
sequence of events and the participants in a criminal trial in
the United States.

5
- CHAPTER ONE -
Trial Basics
Before you prepare your case, there are basic legal concepts you must grasp in order
to fulfill your role as an attorney in a mock trial. You should have a basic
understanding of how our legal system operates, you must understand the order of a
mock trial and be able to visualize the setup of a courtroom, and you must be familiar
with the contents of a mock trial case file.
I. UNDERSTANDING THE LAW
There are two kinds of cases: "civil" and "criminal." Both types of cases involve
laws, also referred to as "ordinances" and "statutes," enacted by the legislative bodies
of the local, state, and federal governments.
When an individual, business, or government agency is charged with violating a
law, a civil or criminal case may be brought, depending on the law involved. Many
times, cases are settled or dropped soon after being filed. A small number of cases,
however, result in trials.
At trial, the parties on each side of a case argue the law and the facts. The judge
decides all issues or questions oflaw; it is thejudge'sjob to determine which laws apply
to the case and how they should be applied. In jury trials, the members of the jury
decide the issues offact that are contested by the parties. In bench trials, the presiding
judge performs this function, listening to the evidence and deciding what to believe.
When serving in this capacity, the judge or jury is referred to as the "finder of fact",
"fact-finder," or "trier offact" of the case. While deliberating, the fact-finder must rely
upon the testimony of witnesses and the evidence presented; the lawyers' arguments
are considered only to the extent they explain the witnesses' testimony and the
evidence.
Many court decisions are recorded and collected for future reference by the public.
When a judge interprets and applies a law, her decision is referred to as "case law."
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.
-1-
Mock Trials
Steven Lubet,
Mock Trials: Preparing, Presenting and Winning
Your Case, NITA 2001, ISBN 1-55681-713-4
Lubet, Steven, Jill Trumbull-Harris, Mock Trials: Preparing, Presenting, and Winning Your Case (NITA 2001).
2001 by the National Institute for Trial Advocacy Used by permission No part of this work may be
reproduced or transmitted in any form or by any means, electronic 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.
6
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 propertydamage. 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.
2. The burden of proof
A plaintiffcan prevail in a civil case only if she can prove each element of her claim
by a "preponderance of the evidence." Translated literally, preponderance of the
evidence means a majority of the evidence. This does not mean that the plaintiff must
merely present more evidence or more witnesses than the defendant; it means that the
evidence presented must indicate that, more likely than not, the defendant is "liable,"
as opposed to "not liable." There is no finding of guilt in civil actions.
A party found liable in a civil case may be ordered to correct the action ifreversible,
alter the current course of action if ongoing, or pay money to the plaintifffor damages.
With each of these remedies, the goal is to make the plaintiff"whole" again; to return
her to her pre-injured state, if possible, or to compensate her fairly for her loss due to
the defendant's actions.
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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Mock Trials
7
B. Criminal Cases
Criminal cases are brought by the government against individuals or businesses
accused ofviolating local, state, or federal criminal laws. The parties in criminal cases
are the "prosecution" and the "defense." The prosecution is the local, state, or federal
government (depending on the law violated), which is represented by a local, state, or
federal prosecutor. The defendant is the accused individual or business, who is
represented by private counselor by a government defense attorney (typically called
a "public defender") if he lacks the financial resources to pay for his own attorney.
Laws defining crimes list the criminal elements the government must prove to
convict the defendant. These elements usually include a physical act and a mental
state. Most statutes also set forth the range of sentences available if the defendant is
convicted.
1. The burden of proof
Our criminal justice system is based on the premise that allowing a guilty person
to go free is better than putting an innocent person behind bars. For this reason, the
defendant is presumed innocent and the prosecution carries a heavy burden of proof
during criminal trials. (Note: there is no finding of "innocent" in criminal trials; only
"guilty" or "not guilty.")
To prevail in a criminal case, the prosecution must prove each element ofthe crime
"beyond a reasonable doubt." Despite its frequent use, reasonable doubt remains
difficult to define. As the U.S. Supreme Court explained, reasonable doubt is "doubt
based on reason which arises from evidence or lack ofevidence." Johnson v. Louisiana,
406 U.S. 356,360 (1972). Thus, a defendant can be found guilty even if a possible (but
unreasonable) doubt remains in the minds ofthejurors. Conversely, the defendant can
be found not guilty even if the jurors believe that the defendant probably committed
the crime but they are not convinced beyond a reasonable doubt. Ifa defendant is found
guilty in a criminal case he may be sentenced by the presiding judge to serve time in
jail, fulfill conditions of supervised release, or even perform community service.
Be aware that under some criminal statutes, the burden of proving particular
elements of the crime or a defense to the crime shifts between the parties.
2. Aggravating and mitigating factors and affirmative defenses
Some criminal statutes raise or lower the severity of the crime charged (or the
punishment) on the basis ofcertain "aggravating" or "mitigating" factors, when proven
at trial. Aggravating factors are circumstances that make the crime or the punishment
worse. Mitigating factors are circumstances that tend to decrease the severity of the
crime or punishment. For example, a criminal statute outlining the charge of first-
degree murder might include aggravating or mitigating factors addressing the state of
mind of the defendant, the age of the victim, or the method used to commit the crime.
Likewise, some criminal statutes outline "affirmative defenses" to the crime. An
affirmative defense, once proven, legallyexonerates the defendant ofthe crime charged.
For example, a frequently used affirmative defense in first-degree murder cases is self-
defense.
-3-
Mock Trials
8
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: Personal Injury, Civil Rights Burglary, Murder
Titles of Parties: Plaintiff and Defendant Prosecution and Defense
Burden of Proof: Preponderance of the Evidence Beyond a Reasonable Doubt
Possible Verdicts: Liable or Not Liable GUilty or Not Guilty
Common Remedy: Payment of Damages Prison Sentence
-4-
Mock Trials
9
II. THE ORDER OF A TRIAL
The different stages of a mock trial proceed as follows:
A. Opening Statements
1. Plaintiff/Prosecution
2. DefendantlDefense
B. Witness Testimony (the number of witnesses may vary)
1. Plaintiff/Prosecution Case in Chief
a. Direct examination of Witness 1 by Plaintiff/Prosecution
b. Cross examination of Witness 1 by DefendantlDefense
c. Redirect and recross of Witness 1*
d. Direct examination of Witness 2 by Plaintiff/Prosecution
e. Cross examination of Witness 2 by DefendantlDefense
f. Redirect and recross of Witness 2*
g. Direct examination of Witness 3 by PlaintifflProsecution
h. Cross examination of Witness 3 by DefendantlDefense
i. Redirect and recross of Witness 3*
2. DefendantlDefense Case in Chief
a. Direct examination of Witness 4 by DefendantlDefense
b. Cross examination of Witness 4 by Plaintiff/Prosecution
c. Redirect and recross of Witness 4*
d. Direct examination of Witness 5 by DefendantlDefense
e. Cross examination of Witness 5 by Plaintiff/Prosecution
f. Redirect and recross of Witness 5*
g. Direct examination of Witness 6 by DefendantlDefense
h. Cross examination of Witness 6 by Plaintiff/Prosecution
i. Redirect and recross of Witness 6*
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
* At the judge's discretion, if requested.
-5-
Mock Trials
10
III. THE FORMAT OF A COURTROOM
Mock trials attempt to mirror actual trials in every way possible, including the
setup ofthe courtroom. At the front of each courtroomthere are places set aside for the
presiding judge, the clerk, and the witnesses. Likewise, the jury is separated from
those observing the trial. Jurors sit along one side of the courtroom with the
plaintiff/prosecution seated closer to thejury and the defendanUdefense seated further
away. The diagram at the bottom of this page illustrates the setup of a courtroom.
IV. THE ANATOMY OF A CASE FILE
For the most part, mock trial case files include the same basic components.
Case Summary. Most mock trial case files begin with a short summary ofthe case.
The case summary will help you determine the arguments the drafter of the case
anticipates each side making during the trial. If available, read the case summary
carefully and often as you prepare for trial.
Court
Clerk
Presiding JUdge
Witness
Stand
Defendant/Defense
Plaintiff/Prosecution
Jury
Box
Spectator Area
-6-
Mock Trials
11
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 ofa "deposition" transcript. Adeposition 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 ofevidence 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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Mock Trials
12
Glossary Alphabetical List English

Accused
Someone or something implicated in wrongdoing.

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 decision-
maker.
()

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.

13

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,
14
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.

15
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.
, ,
16

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.

17
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.
()

18

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.

19
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.

20
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.
()
21

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.
,

23
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.
,

24
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.

25

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.

Witness box; witness stand
The place in a courtroom where the witness sits while testifying.

26


Lesson 2.1: Criminal Procedure Overview
TLY How a Criminal Case Begins
TLY Trial

Lesson Objective: Students will be able to explain the steps
before and after trial in a criminal case in the United States
and make comparisons with Ukrainian Criminal Procedure.

27
HOW A CRIMINAL CASE BEGINS

There are four common ways to begin a criminal case: (1) the filing of a complaint by a
private citizen; (2) the return of an indictment by a grand jury; (3) in certain cases, a proper arrest
without a warrant, followed by the filing of a complaint; and (4) the issuance of a summons or
citation.

Complaint

A criminal case can begin when a person goes to court and files a complaint that another
person has committed an offense. The complaint is followed by an arrest warrant or a summons
which is served on the defendant by a peace officer. The arrest or service of summons constitutes
service of process which, as in civil cases, gives the accused notice of the case against him.

The complaint in a criminal case is a statement of the essential facts constituting the crime
charged. It must designate the statute or ordinance which the accused is alleged to have violated. A
warrant is executed by arresting the defendant and taking him into custody. An officer can issue a
summons in lieu of arrest if it appears the defendant will come to court without being arrested. A
summons tells the defendant when and where he must appear in court, and is merely delivered to
the defendant without placing him under arrest.

Indictment

A criminal case can begin with an indictment. Like a complaint, an indictment is an
accusation. In general, indictments are accusations of felonious conduct against persons who have
already been arrested and referred to the grand jury by a municipal or county court through a
process called "preliminary hearing." Grand juries, however, do not have to wait for cases to be
referred, but can make direct indictments. When this is done, the indictment begins the case. As in
cases begun by filing a complaint, the indictment must be served upon the defendant through a
warrant and arrest, or a summons and delivery of the summons.

The grand jury consists of up to 14 citizens (nine jurors and up to five alternates), who have
the power to inquire into any offense committed in the county. A grand jury is convened in each
county at least every three months. In some larger counties, one or more grand juries may be in
continuous session.

An "information" is a substitute for an indictment by a grand jury. It is a formal accusation
made by the county prosecutor. Because a person has a constitutional right to indictment by grand
jury in serious cases, he can be tried on an information only with his consent. Consequently,
informations are used less often than indictments.

Arrest

A criminal case can begin with an arrest. Under certain circumstances, a person can be
arrested without a warrant.

If any personwhether peace officer or private citizenhas probable cause to believe a felony
(a serious crime punishable by death or a penitentiary term) has been committed and that a
particular suspect committed it, that person may place the suspect under arrest and then file a
complaint. This is known as a citizen's arrest.

In cases other than a felony, only law enforcement officers can make an arrest. They can
arrest without a warrant for any misdemeanor committed in their presence. They can also arrest
The Law and You, 11th Edition, Ohio State Bar, Used By Permission
28
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.
29
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
30

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.

The Law and You, 11
th
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,
32
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.

33
Order of Presenting Evidence

Following the opening statements, the plaintiff's attorney, or the prosecutor, presents his
evidence. When he is finished, or rests his case, the attorney for the defense then presents her
evidence. In general, the presentation of evidence is the most important phase of the trial.

How Evidence is Presented

Evidence is almost always presented through witnesses. In fact, witnesses are so important
that they can be compelled to attend the trial. A "subpoena" is a court order commanding a witness
to appear in court and give testimony. A person who disobeys a subpoena is in contempt of court,
and may be fined or jailed, or both.

Witnesses may tell about events they saw or heard, report on tests or investigations which
they conducted, give expert opinions, or testify about other matters. Even tangible evidence, such as
a murder weapon or a document, must normally be introduced or "qualified" through the testimony
of a witness.

Evidence may be direct or circumstantial. Contrary to popular opinion, circumstantial
evidence is often reliable evidence. Even criminal convictions can be based on circumstantial
evidence. An example of circumstantial evidence is the testimony of a witness that he had come
outside a building and noted that everything (the outside of the building, the cars, and the street)
were wet and that water was running down the street in the gutters. The testimony offers
circumstantial evidence that it recently rained, even though the witness did not see or feel the actual
rain. The other side could introduce evidence to overcome this circumstantial evidence. For
example, the other side could call a city street maintenance supervisor who testifies that the
operator of a city water tanker had over-enthusiastically watered the entire area while preparing the
street for a street cleaning machine. The jury can use the circumstantial evidence and other
evidence to determine the facts.

The parties are not free to present any evidence, in any way they please, but must abide by
the rules of evidence. The main purpose of the rules of evidence is to prevent a jury from being
influenced by unreliable evidence. The rules of evidence require that evidence must be competent,
relevant, and material to the case being tried. The term "rules of evidence" includes the common law
and statutory guidelines for the admission of evidence, and the Ohio Rules of Evidence promulgated
by the Supreme Court of Ohio.

There are certain kinds of evidence which cannot be presented. Some evidence is said to be
incompetent, and cannot be allowed or admitted into the case. For example, evidence of a
defendant's prior criminal record is normally inadmissible in a criminal case. Evidence of his past
crimes is not proof that he committed the crime which is the basis of the current case, and serves
only to bias the jury against him. Similarly, a witness cannot testify third-hand to what another
person said or saw. This kind of testimony is hearsay. A witness cannot testify, "Joe said he saw
Sam in the house." The proper way to establish Sam's whereabouts is to put Joe on the stand so he
(Joe) can testify, "I saw Sam in the house." (There are a number of exceptions to the hearsay rule.
For example, the witness could testify that "Joe said he saw Sam in the house" if Joe made this
statement while he [Joe] was on his deathbed.)

Evidence may be competent, but have nothing to do with the case at hand. Such evidence is
irrelevant, and inadmissible. For example, in a suit to collect a dentist's bill, a plaintiff's attempt to
show that the defendant is a month behind in the mortgage payments on her house is not relevant.

34
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.

35
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
36
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.
37

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
38
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.

The Law and You, 11
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Lesson 2.2: The Sources of Law
TLY The Sources of Law and the Common Law
The American Founding

Lesson Objective: Students will understand the sources of
law in the United States and the history and function of the
Common Law.

41
Writing Assignment:
Write at least two pages explaining distinctions between
American Criminal Procedure and Ukrainian Criminal
Procedure, and the relative advantages of each.
Due next week at Lesson 3.1

THE SOURCES OF LAW

The law is a compilation of rules and principles which establish rights and duties. The rules
and principles concern freedom, conduct, and property. The law has many sources. For example,
every group of human beings needs order. The need for order gave rise to customs. Certain customs
were accepted by the group and, over time, became law.

The law which governs Ohio and its citizens can be classified into four main types. These
are: (1) constitutional law, which is the fundamental law; (2) statutory law, which is written law
adopted by legislative bodies; (3) administrative law, which consists of written rules adopted by
various government agencies under limited authority granted by legislative bodies; and (4) the
common law, which is a large set of principles based on the decisions of judges in particular cases.
These written decisions are often referred to as "case law."

THE CONSTITUTIONS

The United States Constitution is the basic law of the nation, and the Ohio Constitution is
the basic law of the State of Ohio. The two are similar in many respects, but where a conflict arises
the United States Constitution takes precedence.

The United States Constitution

Our national or federal government is a union of independent states. The basic purposes of
the United States Constitution is to form an effective national government while preserving a
measure of state sovereignty, to promote the general welfare, and to protect the individual rights of
all citizens. To achieve these ends, the Constitution enumerates the powers to be exercised by the
federal government, reserves all other powers to the states, and spells out the relationships of the
states among themselves and with the federal government. It establishes three branches of the
federal government: (1) legislative, which is the Congress and has the duty to make the laws; (2)
executive, which is the President (and the President's subordinates) whose duty is to see that the
laws made by Congress are carried out; and (3) judicial, consisting of the national court system
headed by the United States Supreme Court, whose duties are to interpret the laws and to
administer justice. One of the most important aspects of the United States Constitution is a special
concern for individual rights. It lists several things the federal government and the states cannot do,
and enumerates a far-reaching series of individual rights and immunities.

As the supreme law of the nation, the United States Constitution sets the standards against
which all other laws and the administration of those laws must be judged.

The Ohio Constitution

Ohio's Constitution is like the United States Constitution in many respects. It establishes
the government of Ohio and provides for legislative, executive, and judicial branches; enumerates
the powers of the state government; and lists fundamental individual rights. The Ohio Constitution,
however, addresses more issues than its federal counterpart. For example, it establishes the right of
"referendum" whereby the people can adopt and repeal laws by direct vote; contains detailed
provisions for financing public works and various state programs; and establishes the organization
and operation of local governments.

The Ohio Constitution is the supreme law of Ohio. It is the standard against which all other
laws of the state and local governments must be judged. Nevertheless, the Ohio Constitution is
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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.

44

Case Law as Common Law

The common law originated in England and was brought to this country by the colonists. It
owes its present vitality to the custom, begun in the 17th century, of recording not only judicial
proceedings and decisions, but the principles and reasoning behind them. When a court decides a
case and records its decision in a written opinion that opinion, or case, becomes a "precedent." That
is, the principles on which the case was decided may be used to decide future cases with similar
factual situations.

The common law provides a method called the "synthesis of decisions," whereby the principle
of a case can be applied to different fact patterns. This method involves the careful formulation of
principles for general application, coupled with the extension of those principles through logic to
meet new fact patterns.

The impact of a case as precedent depends mainly on the court in which it is decided. A
higher court is not bound to follow the precedents established by the lower courts in its jurisdiction.
Lower courts, however, are bound to follow the precedents of the higher courts having jurisdiction
over them. Courts of equal rank may use each other's precedents, just as the courts of one state may
borrow from the precedents of another state or federal court. Courts often use the precedents of
equal or lower courts, the courts of other states, and the federal courts when such precedents are
well reasoned or address new problems. For information on the ranking of courts, see Part II, "The
Courts."

Scope of the Common Law in Ohio

Many major divisions of Ohio law are governed almost entirely, or in significant respects, by
the common law. One important subject governed almost entirely by common law is "torts." Torts is
the division of the law which deals with civil remedies for injuries or damage caused by negligence,
or other wrongful acts or omissions. For example, most of the law governing the question of liability
for injuries suffered in automobile accidents is based on the common law of torts. Another important
subject governed extensively by common law principles is property law. Contract law is covered
partly by the common law and partly by statutes. Some parts of the law are based entirely on
statute, for example, the conduct which is considered a crime, and the benefits which are available
under workers' compensation. However, the common law retains its importance even in the parts or
divisions of the law which are based on statute. For example, common-law principles and concepts
are used to decide if, or how, a statute, ordinance, or regulation applies to a particular situation.
Further, when a statute, ordinance, or regulation is interpreted in a certain way, the interpretation
itself becomes part of the common law, and is thus entwined with the written law.

The Importance of the Common Law

The common law is important not merely because it represents a substantial part of all law,
but also because it provides a process which unifies and stabilizes the law while giving the law the
flexibility to meet new situations. The common law is a reservoir of methods and approaches to legal
and social issues.

The traditions of the common law do not permit established principles to be dismissed
capriciously. Yet those same traditions compel an endless, almost daily process of testing and
retesting in light of new experience, so that outmoded principles must in due time be reshaped or
replaced to meet the changing needs of society.

The Law and You, 11
th
45
The American Founding
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The American founding
Frank W. Fox
Publisher: Pearson Custom Pub; Brief ed edition (2000)
ISBN-10: 0536614377 ISBN-13: 978-0536614377
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Excerpts from
The Declaration of Independence
IN CONGRESS, J ULY 4, 1776
The unanimous Declaration of the thirteen united States of America:
When in the Course of human events it becomes necessary for one people to dissolve the
political bands which have connected them with another and to assume among the powers of the
earth, the separate and equal station to which the Laws of Nature and of Nature's God entitle
them, a decent respect to the opinions of mankind requires that they should declare the causes
which impel them to the separation.
We hold these truths to be self-evident, that all men are created equal, that they are
endowed by their Creator with certain unalienable Rights, that among these are Life, Liberty and
the pursuit of Happiness. That to secure these rights, Governments are instituted among Men,
deriving their just powers from the consent of the governed, That whenever any Form of
Government becomes destructive of these ends, it is the Right of the People to alter or to abolish
it, and to institute new Government, laying its foundation on such principles and organizing its
powers in such form, as to them shall seem most likely to effect their Safety and Happiness.
***The history of the present King of Great Britain is a history of repeated injuries and
usurpations, all having in direct object the establishment of an absolute Tyranny over these
States. To prove this, let Facts be submitted to a candid world.
He has refused his Assent to Laws, the most wholesome and necessary for the public
good.
He has forbidden his Governors to pass Laws of immediate and pressing importance,
unless suspended in their operation till his Assent should be obtained; and when so suspended, he
has utterly neglected to attend to them.
He has refused to pass other Laws for the accommodation of large districts of people,
unless those people would relinquish the right of Representation in the Legislature, a right
inestimable to them and formidable to tyrants only.
He has called together legislative bodies at places unusual, uncomfortable, and distant
from the depository of their Public Records, for the sole purpose of fatiguing them into
compliance with his measures.
He has dissolved Representative Houses repeatedly, for opposing with manly firmness
his invasions on the rights of the people.
He has refused for a long time, after such dissolutions, to cause others to be elected,
whereby the Legislative Powers, incapable of Annihilation, have returned to the People at large
for their exercise; the State remaining in the mean time exposed to all the dangers of invasion
from without, and convulsions within.
***
He has obstructed the Administration of Justice by refusing his Assent to Laws for
establishing Judiciary Powers.
He has made Judges dependent on his Will alone for the tenure of their offices, and
the amount and payment of their salaries.
***
He has affected to render the Military independent of and superior to the Civil Power.
He has combined with others to subject us to a jurisdiction foreign to our constitution,
and unacknowledged by our laws; giving his Assent to their Acts of pretended Legislation:
For quartering large bodies of armed troops among us:
58
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 J udge 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.
59

60


Lesson 3.1: Criminal Law and Individual Rights
TLY Criminal Law and Constitutional Rights
Privilege

Lesson Objective: Students will understand the fundamental
constitutional rules governing criminal procedure in the
United States and the philosophical foundations for those
principles.

61
CRIMINAL LAW AND CONSTITUTIONAL RIGHTS

The United States and Ohio Constitutions provide accused persons with various basic rights.
These rights are designed to protect the individual from unreasonable government intrusion and to
insure fundamental fairness. Violation of these rights may result in dismissal of criminal charges,
and may also result in criminal or civil liability for the persons responsible for violating the rights.

Equal Protection of the Law

The 14th Amendment to the United States Constitution states that everyone is entitled to
equal protection under the law. This means that the law must be the same for all. For example,
there cannot be one law for the rich and another for the poor, or one law for blacks and another law
for whites.

Due Process of Law

The 14th Amendment of the United States Constitution also states that no one can be
deprived of life, liberty, or property without due process of law. This means that the laws must be
enforced only through a rational procedure which is constructed and used to insure fundamental
fairness. An accused person cannot arbitrarily be fined, jailed, or put to death. Guilt or innocence
must be determined fairly and impartially through an appropriate procedure.

Double Jeopardy

The United States and Ohio Constitutions provide that no one can be placed in jeopardy
more than once for the same crime. In general, this means that in criminal prosecutions, the state
has only one chance. If a person is found not guilty, the state cannot appeal or attempt to try her
again. The same is true if an accused is found guilty. The state cannot accuse her again and
attempt to inflict double punishment for the crime. There are exceptions to the general rule. For
example, a second trial can be held if the accused was found guilty and the guilty finding was
overturned on appeal. Similarly, the state can appeal certain questions of law.

Search and Seizure

Both the United States and Ohio Constitutions prohibit unreasonable searches and seizures.
Generally, law enforcement officers cannot search a person or his property without a search warrant.
A search warrant can only be issued by a judge on probable cause to believe that particular evidence
of a crime will be uncovered at the specific place to be searched. There are a number of situations
where law enforcement officers can conduct searches without a warrant. For example, searches can
be conducted without a warrant in connection with a lawful arrest, when the search is conducted
with the permission of the person whose property is being searched, when the items found were in
plain view, etc.

Self-Incrimination

Both the United States and Ohio Constitutions state that no one can be compelled to
incriminate himself. This means that a person cannot be tortured into confessing or making
damaging statements, or even any statement. (Torture is also prohibited by the due process clause.)
Further, a person cannot be forced to confess or make a statement by: attempts to frighten him or
wear him down with questioning, trickery, or promises of leniency. During a trial, the accused
cannot be forced to testify (be a witness). Moreover, if the accused decides to remain silent, the
prosecution cannot suggest to the jury that the accused's silence indicates guilt.

The Law and You, 11th Edition, Ohio State Bar,
Used By Permission
62

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.
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Informing the Accused of Rights

An accused cannot intelligently insist on her constitutional rights if she is not fully aware of
them. She must be informed of her rights in any case if she asks, and in serious cases even if she
does not ask. Specifically, when a person is in custody on a serious charge she must be told of her
right to remain silent, of her right to counsel, and of her right to have counsel provided at state
expense if she cannot afford it. She must be given an explanation of her constitutional rights at each
stage in which she appears before a judge.

Waiver of Rights

In general, an accused can waive a constitutional right. For example, she can waive her
right against self-incrimination and confess, or she can waive her right to counsel and represent
herself, or she can waive her right to indictment and consent to be tried on an "information." A
waiver must be voluntary, and must be made with full knowledge of the right being waived and of
the consequences of waiver.

Enforcement of Rights

Constitutional rights can be enforced in a variety of ways. Evidence obtained through an
unreasonable search or an involuntary confession can be suppressed. A decision can be reversed and
the case dismissed or remanded for a new trial. Public officials responsible for a violation of
constitutional and other rights could be liable for civil damages. Under Ohio law, certain violations
of civil rights can themselves be crimes.

Review on Appeal

In Ohio, a defendant has the right to appeal to the court of appeals. If the defendant is
indigent, the state must provide her with counsel and a transcript of the trial proceedings. The
appeal is limited to issues that appear on the record, that is, those issues which appear in the trial
transcript or in papers filed in the case. If the court of appeals finds that an error occurred which
affected the outcome of the trial, it will reverse the conviction and remand the case to the trial court
for retrial or other proceedings. If no harmful error occurred, the court of appeals will affirm the
conviction.
In Ohio, a defendant has no statutory right to appeal the decision of the court of appeals
except where the court of appeals has affirmed a judgment of a trial court which imposed the death
penalty. In non-death penalty cases, the defendant may petition (request) the Supreme Court of
Ohio to review her case.
In general, the Supreme Court of Ohio is not required to allow an appeal, but may do so
depending on the issues raised in the appeal and the impact of the decision of the court of appeals on
Ohio law. If the Supreme Court of Ohio declines to accept the defendant's appeal or if it affirms the
conviction after allowing the appeal, the defendant may petition the United States Supreme Court to
review the case. The United States Supreme Court can review only issues involving rights granted
or claimed under the United States Constitution. The United States Supreme Court is not required
to allow an appeal, but may do so depending upon the issues presented in the appeal.
It should be noted that strict time limitations must be met when filing the appeal (a
document called a "notice of appeal" must be filed within the required time) to secure review in any
of the above-mentioned courts. Further, there is no right to counsel when petitioning the Supreme
Court of Ohio or the United States Supreme Court to allow the appeal, although, in rare cases,
counsel may be appointed.

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Review of Sentence on Appeal

In July, 1996, the Criminal Code was amended to afford new rights to appeal certain felony
sentences. The defendant may appeal: (1) when the maximum prison term is imposed; (2) when
there was guidance against a prison sentence and the judge sentenced the offender to prison; and (3)
when the sentence is otherwise contrary to law. The prosecution may appeal: (1) when a non-prison
sentence was imposed on a first or second degree felon; (2) when judicial release was granted to such
a felon; and (3) when the sentence was otherwise contrary to law. However, if the sentence was
based on an agreement between the defendant and prosecution, and lawfully imposed, neither party
has a new right to appeal. (The defendant also may appeal certain consecutive sentences, but the
appellate court does not have to review this appeal.) These appeals must be consolidated with any
other appeal in the case.

Post-conviction Relief

The appeal procedure outlined above, referred to as "direct appeal," is limited to the review of
issues which appear on the record. Where the defendant claims that errors occurred which violated
her constitutional rights and contributed to her conviction, but which do not appear on the record,
the defendant may file a petition for post-conviction relief. The petition is filed in the trial court in
which the defendant was convicted. The defendant must attach to or include with the petition some
evidence which is not already on the record which supports defendant's claims. The petition may be
denied without a hearing. There is no time limitation within which a post-conviction petition must
be filed. There is no right to counsel in post-conviction proceedings, although the court may choose
to appoint counsel in rare cases.
After the defendant has sought all relief available in Ohio's courts, she may file a petition for
federal habeas corpus relief in the United States District Court. Although the court may only
consider violations of the United States Constitution, its review is not limited to matters which
appear on the record of the original trial. Generally, any federal issue which was fairly presented by
the defendant to the Supreme Court of Ohio and which was not otherwise waived, may be reviewed
in a federal habeas corpus proceeding.
Also, a defendant may seek post-conviction relief if the sentencing pattern of an individual
judge shows an impermissible bias based on the race, ethnicity, gender, or religion of defendants.

The Law and You, 11
th

66
Privilege

United States Constitution 5
th
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)

Attorney Client Privilege A client has a privilege to refuse to disclose (and to
prevent any other person from disclosing) a confidential communication made for the
purpose of facilitating legal services by the attorney for the client.

Walter is testifying in a theft case against David. Walter says that he met David in his
attorneys office. The prosecutor asks Walter why Walter was seeing an attorney.
Walter may decline to answer.

The prosecutor asks what day Walter was in the attorneys office and met David. There
is no privilege.

Mark is hospitalized after a bomb went off in his car. Marks attorney visits him in the
hospital. A secretary comes with the attorney to take notes. May the government require
the notes to be produced? May the government call the secretary to testify as Marks
trial? If a janitor enters the hospital room to clean it and overhears the conversation
between Mark and his attorney, may the government call the janitor as a witness?
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Physician Patient Privilege A patient has a privilege to refuse to disclose (and to
keep his physician from disclosing) information acquired while treating the patient, if the
information was necessary for treatment.
Frank is being prosecuted for a shooting that occurred in a gang fight. Frank went to his
doctor right after the fight and received medical treatment. The government calls Franks
doctor to testify about Franks medical condition. Is there a basis for an objection?

[The scenario continues]
Prosecutor: What day did you treat Frank?
Defense Counsel: Objection. Violates the physician patient privilege.

Should the objection be sustained or overruled?

Spousal Privileges An individual has a privilege to refuse to testify and to prevent the
individuals spouse or former spouse from testifying as to any confidential communication
made during their marriage. In addition, one spouse may refuse to testify against another
in a criminal proceeding. However, these privileges do not apply if one spouse is charged in
a crime against the other.

Peter is on trial for forging prescriptions. His wife Carol is called to testify.
Prosecutor: When did Peter first start using painkillers?
Defense Counsel: Objection. Violates the spousal privilege.


Prosecutor: Did Peter ever tell you he was addicted to painkillers?
Defense Counsel: Objection. Violates the spousal privilege.


Religious Privilege An individual has a privilege to refuse to disclose and to prevent
another from disclosing a confidential communication by the individual to a cleric (priest) in
the clerics professional capacity as spiritual adviser.

Spencer is charged with stealing money from his aunt. Spencer told his aunt he
knows who did it and that he went to his priest to discuss what to do. The priest
cannot be compelled to testify about his discussions with Spencer.

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.

69
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


Lesson 3.2 The Right to Trial By Jury
Excerpts from the Constitution of Ukraine
Ukrainian Code of Criminal Procedure, Section IV, Chapter 4, 4,
Article 393.
ABA Standards Trial By Jury 15-1.1 - 1.3
Jefferson on Right to Jury Trial

Lesson Objective: Students will be able to explain
Ukraines constitutional and legal provisions governing jury
trial and discuss the reasons for these provisions.

71
Excerpts from the Constitution of Ukraine
The Verkhovna Rada of Ukraine, on behalf of the Ukrainian people citizens of
Ukraine of all nationalities,
expressing the sovereign will of the people,
based on the centuries-old history of Ukrainian state-building and on the right to
self-determination realised by the Ukrainian nation, all the Ukrainian people,
providing for the guarantee of human rights and freedoms and of the worthy
conditions of human life,
caring for the strengthening of civil harmony on Ukrainian soil,
striving to develop and strengthen a democratic, social, law-based state,
aware of our responsibility before God, our own conscience, past, present and
future generations,
guided by the Act of Declaration of the Independence of Ukraine of 24 August
1991, approved by the national vote of 1 December 1991,
adopts this Constitution the Fundamental Law of Ukraine.

Chapter I
General Principles

Article 8
In Ukraine, the principle of the rule of law is recognised and effective.
The Constitution of Ukraine has the highest legal force. Laws and other normative
legal acts are adopted on the basis of the Constitution of Ukraine and shall
conform to it.
The norms of the Constitution of Ukraine are norms of direct effect. Appeals to
the court in defence of the constitutional rights and freedoms of the individual and
citizen directly on the grounds of the Constitution of Ukraine are guaranteed.
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.

73
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. Jury court and its composition
1. Jury court is set up under circuit criminal courts.
2. Jury court conducts trial being composed of the presiding professional judge and the panel of seven
jurors.
Article 391. Candidates for jurors
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. Trial by jury court
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. Right of trial by jury
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. Advising of the right of trial by jury
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. Appointment of a defence counsel
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. Preparatory court session
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.
75
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. Powers of the judge presiding in the trial by jury
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. Rights and duties of jurors during the trial
1. During trial, a juror has the right to:
1) participate in the examination of all evidence of importance for deciding matters which
fall within the competence of the jury;
2) put, through presiding judge, questions to the accused, victim, witnesses, experts;
3) motion that presiding judge explains legal rules related to the trial and concepts which
hardly understands;
2. A juror is required to:
1) appear in court in day and time fixed and, if there are valid reasons precluding the juror
from participating in trial, to inform the court thereon well in advance;
2) maintain order in court session and obey presiding judge;
3) before the verdict has been passed, not to communicate with composition of the court;
4) not to collect information related to the matters examined during trial, outside court
session.
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. Selection of jurors
1. Jury which will conduct trial is set up by lot.
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) informs candidates for jurors on what criminal proceedings will be conducted;
2) advises them of legal grounds that preclude their participation in trial;
3) advises parties of the way in which jurors can be challenged.
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. Dissolution of the jury
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. Administering oath to the jury
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. Foreman of the jury
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. Specific features of the trial by jury
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. Preparation of the checklist
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. The checklist is transmitted to the foreman of the jury.
Article 405. Presiding judges summing-up
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. Secrecy of deliberations by the jury
1. After instructions of presiding judge, jurors retire in deliberation room to render a verdict.
2. Presiding judge ensures that one is present at jurors deliberations.
3. Upon consent of the presiding judge, jurors may make a break after the end of working hours.
4. Jurors may not disclose thoughts expressed during deliberations.
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. Jurors verdict
1. 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. All jurors sign the checklist containing answers of the jury.
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. Announcing the verdict by the jury
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. Discussing implications of the jurys verdict
1. Verdicts implications are discussed without involvement of jurors.
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. Binding force of the jurys verdict
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. Types of decisions to be taken by presiding judge during the trial by jury
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. After jurys verdict has been pronounced, presiding judge shall:
1) render the judgment of acquittal if the jury found the accused not guilty of having
committed criminal offence or if it established facts which, under criminal law, exclude
criminal liability of an individual;
2) render the judgment of sentenced person ion if the jury found the accused guilty of
having committed at least one of criminal offences;
3) pass the ruling on closure of proceedings in cases specified in the present Code.
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. Exceptional review of sentences imposed based on the jurys verdict
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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American Bar Association Criminal Justice Standards
Trial by Jury

PART I. THE RIGHT TO TRIAL BY JURY
Standard 15-1.1 Right to jury trial
Standard 15-1.2 Waiver of trial by jury
Standard 15-1.3 Waiver of full jury or of unanimous verdict
Standard 15-1.4 Change of venue or continuance

PART II. JURY SELECTION
Standard 15-2.1 Selection of prospective jurors
Standard 15-2.2 Juror questionnaires
Standard 15-2.3 Challenge to the array
Standard 15-2.4 Conduct of voir dire examination
Standard 15-2.5 Challenges for cause
Standard 15-2.6 Peremptory challenges
Standard 15-2.7 Procedure for exercise of challenges; swearing the jury
Standard 15-2.8 Impermissible peremptory challenges
Standard 15-2.9 Alternate jurors

PART III. CONDUCT OF THE TRIAL
Standard 15-3.1 Defendant's presence at proceedings
Standard 15-3.2 Control, restraint or removal of defendants and witnesses
Standard 15-3.3 Substitution of judge
Standard 15-3.4 Opening statement and closing argument
Standard 15-3.5 Note taking by jurors
Standard 15-3.6 Method of making and ruling on motions and objections
Standard 15-3.7 Evidence of prior convictions
Standard 15-3.8 Motion for judgment of acquittal

PART IV. JUDICIAL RELATIONS WITH JURY; JURY INSTRUCTIONS
Standard 15-4.1 Control over and relations with the jury
Standard 15-4.2 Right of judge to give assistance to the jury during trial
Standard 15-4.3 Judicial communication with jurors
Standard 15-4.4 Jury instructions

PART V. JURY DELIBERATIONS; RETURN OF VERDICT
Standard 15-5.1. Materials to jury room
Standard 15-5.2. Jury request to review testimony
Standard 15-5.3. Additional instructions
Standard 15-5.4. Length of deliberations; deadlocked jury
Standard 15-5.5. Entry of plea during deliberations
Standard 15-5.6. Polling the jury
Standard 15-5.7. Impeachment of the verdict

http://www.abanet.org/crimjust/standards/jurytrial_toc.html
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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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Standard 15-1.4. Change of venue or continuance
The following standards govern the consideration and disposition of a motion in a
criminal case for change of venue or continuance based on a claim of threatened
interference with the right to a fair trial.
(a) Except as federal or state constitutional or statutory provisions otherwise require, a
change of venue or continuance may be granted on motion of either the prosecution or
the defense.
(b) A motion for change of venue or continuance should be granted whenever there is a
substantial likelihood that, in the absence of such relief, a fair trial by an impartial jury
cannot be had. A showing of actual prejudice should not be required.
(c) If a motion for change of venue or continuance is made prior to the impaneling of
the jury, the court may defer ruling until the completion of voir dire. The fact that a jury
satisfying prevailing standards of acceptability has been selected should not be
controlling if the record shows that the criterion for the granting of relief set forth in
paragraph (b) has been met.
(d) It should not be a ground for denial of a change of venue that one such change has
already been granted. The claim that the venue should have been changed or a
continuance granted should not be considered to have been waived by the waiver of the
right to trial by jury or by the failure to exercise all available peremptory challenges.
(e) After the court has determined, on the criteria set forth above, that a change of
venue should be granted, the appropriate authority should designate the geographical
location to which venue will be changed. In determining the location to which venue
should be changed, the appropriate authority should consider the following factors:
(1) The nature and extent of pretrial publicity, if any, in the proposed venue;
(2) The relative burdens on the respective courts in changing to the proposed
venue;
(3) The relative hardships imposed on the parties, witnesses, and other
interested persons with regard to the proposed venue;
(4) The racial, ethnic, religious and other relevant demographic characteristics
of the proposed venue, insofar as they may affect the likelihood of a fair trial by
an impartial jury;
(5) Any other factor which may be required by the interests of justice.

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.
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(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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Standard 15-2.3. Challenge to the array
The prosecuting attorney or the defendant or defendant's attorney may challenge the
array on the ground that there has been a material departure from the requirements of the
law governing selection of jurors.
Standard 15-2.4. Conduct of voir dire examination
(a) Questioning of jurors should be conducted initially by the court, and should be
sufficient, at a minimum, to determine the jurors' legal qualifications to serve.
(b) Following initial questioning by the court, counsel for each side should have the
opportunity, under the supervision of the court and subject to reasonable time limits, to
question jurors directly, both individually and as a panel.
(c) Voir dire examination should be sufficient to disclose grounds for challenges for
cause and to facilitate intelligent exercise of peremptory challenges.
(d) Where there is reason to believe the prospective jurors have been previously
exposed to information about the case, or for other reason are likely to have
preconceptions concerning it, counsel should be given liberal opportunity to question
jurors individually about the existence and extent of their knowledge and preconceptions.
(e) Jurors should be examined outside the presence of other jurors on sensitive matters
or prior exposure to potentially prejudicial material.
(1) Sensitive matters are those matters which might be potentially embarrassing
or intrusive into the juror's private life, feelings or beliefs, or those matters which
if discussed in the presence of the jury panel, might prejudice or influence the
panel by exposing other potential jurors to improper information.
(2) Examination of the prospective juror with respect to that juror's exposure to
potentially prejudicial material should be conducted in accordance with ABA
Standards for Criminal Justice relating to Fair Trial and Free Press.
(f) It is the responsibility of the court to prevent abuse of voir dire examinations.
Standard 15-2.5. Challenges for cause
(a) Each jurisdiction should develop a list of grounds, establishment of which will
sustain a challenge to a particular juror for cause. The list of enumerated grounds should
permit a challenge for cause on the ground that the juror has an interest in the outcome of
the case, may be biased or prejudiced for or against one of the parties, is serving a
criminal sentence, is on parole or supervised probation, has been charged with a criminal
offense, or is unable or unwilling to hear the case at issue fairly and impartially.
(b) If, after the voir dire examination of a juror, the court is of the opinion that grounds
for challenge for cause have been established, the court, upon either party's challenge of
the juror for cause or upon the court's own motion after consultation with counsel, should
excuse that juror from the trial of the case.
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Standard 15-2.6. Peremptory challenges
(a) Peremptory challenges should be allowed in all cases, but in a number no larger
than ordinarily necessary to provide reasonable assurance of obtaining an unbiased jury,
but the court should be authorized to allow additional peremptory challenges when
special circumstances justify doing so.
(b) The procedure for exercise of peremptory challenges should permit challenge to any
of the persons who have been passed for cause.
(c) The number of peremptory challenges should be governed by rule or statute.
(d) In cases involving a single defendant, both the defendant and the prosecution should
have the same number of peremptory challenges.
Standard 15-2.7. Procedure for exercise of challenges; swearing the jury
(a) All challenges, whether for cause or peremptory, should be addressed to the court
outside of the presence of the jury, in a manner so that the jury panel is not aware of the
nature of the challenge, the party making the challenge, or the basis of the court's ruling
on the challenge.
(b) After completion of the voir dire examination and the hearing and determination of
all challenges for cause, counsel should be permitted to exercise their peremptory
challenges by alternately striking names from the list of panel members until each side
has exhausted or waived the permitted number of challenges. A party should be permitted
to exercise a peremptory strike against a member of the panel who has been passed for
cause.
(c) The court should not require the attorney for the defendant to exercise any
challenges until the attorney has had sufficient time to consult with the defendant, and in
cases involving multiple defendants, with counsel for the codefendants, regarding the
exercise of the challenges.
(d) No juror should be sworn to try the case until all challenges have been exercised, at
which point all jurors should be sworn as a group.
Standard 15-2.8. Impermissible peremptory challenges
Neither party should be permitted to use peremptory challenges to dismiss a
prospective juror for constitutionally impermissible reasons.
(a) It should be presumed that each party is utilizing peremptory challenges validly,
without basing those challenges on constitutionally impermissible reasons.
(b) A party objecting to the challenge of a prospective juror on the grounds that the
challenge has been exercised on a constitutionally impermissible basis, establishes a
prima facie case of purposeful discrimination:
(1) by showing that the challenge was exercised against a member of a
constitutionally cognizable group, and
(2) by demonstrating that this fact, and any other relevant circumstances, raise
an inference that the party challenged the prospective juror because of the juror's
membership in that group.
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(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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Standard 15-3.2. Control, restraint or removal of defendants and witnesses
(a) During trial the defendant should be seated where he or she can effectively consult
with counsel and can see and hear the proceedings.
(b) The court should not permit a defendant or witness to appear at trial in the
distinctive attire of a prisoner, unless waived by the defendant.
(c) No defendant should be removed from the courtroom, nor should defendants and
witnesses be subjected to physical restraint while in court unless the court has found such
restraint necessary to maintain order. Removing a defendant from the courtroom or
subjecting an individual to physical restraint in the courtroom should be done only after
all other reasonable steps have been taken to insure order. In ordering remedial measures,
the court must take all reasonable steps to preserve the defendant's right to confrontation
of witnesses and consultation with counsel.
(d) If the court orders physical restraint or removal of a defendant from the courtroom,
the court should enter into the record of the case the reasons therefor. Whenever physical
restraint or removal of a defendant or witness occurs in the presence of jurors trying the
case, the court should instruct those jurors that such restraint or removal is not to be
considered in assessing the proof and determining guilt.
Standard 15-3.3. Substitution of judge
If, by reason of death, sickness, or other disability, the judge before whom a jury trial
has commenced is unable to proceed with the trial, another judge, upon certifying that he
or she has familiarized himself or herself with the record of the trial, may proceed with
and finish the trial.
Standard 15-3.4. Opening statement and closing argument
(a) Opening statement
(1) Each party should be afforded the opportunity to make an opening statement
for the purpose of explaining the issues and the evidence to be adduced at trial.
The defense should have the option to present its opening statement either at the
outset of the trial or at the beginning of the defense case in chief.
(2) In the opening statement, counsel should not allude to evidence to be
presented unless, in good faith, there is a reasonable basis for believing that such
evidence will be tendered and admitted in evidence.
(b) Closing argument
(1) Each party should be afforded the opportunity to make a closing argument
before the jurors retire to consider the case.
(2) Procedures should be adopted relating to the timing and the order of the
closing arguments.
Standard 15-3.5. Note taking by jurors
During the trial of the case, the jurors should be permitted to make notes and keep these
notes with them when they retire for their deliberations.
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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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interests of justice so require, substantial defects or omissions should not be deemed
waived by failure to object to or tender an instruction.
(f) At the conclusion of the evidence, and before closing arguments in the case, the
court may instruct the jury on the law of the case. At the conclusion of the closing
arguments of counsel, the court should give the jury its final instructions on the law of the
case, if not given earlier, and other appropriate closing instructions.
(g) All instructions, whether given or refused, should become a part of the record. All
objections made to instructions and the rulings thereon should be included in the record.

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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Standard 15-5.3. Additional instructions
(a) After the jury has retired to deliberate, the court should have no communication of
any kind with the jurors, until counsel have been notified of the proposed communication,
and have had an opportunity to be heard on any issues arising.
(b) If the jury, after retiring for deliberation, desires to be informed of any point of law,
the court should give appropriate additional instructions in response to the jury's request
unless:
(1) the jurors may be adequately informed by directing their attention to some
portion of the original instructions;
(2) the request concerns matters not in evidence or questions which do not
pertain to the law of the case; or
(3) the request would call upon the court to express an opinion upon factual
matters that the jury should determine.
(c) The court should give additional instructions to the jurors, or re-read instructions
initially given, only when the jury has been returned to the courtroom, with the defendant
and counsel for the parties present, after notice to counsel and opportunity to be heard.
(d) The court need not give additional instructions beyond those specifically requested
by the jury, but in its discretion the court may also give or repeat other instructions to
avoid giving undue prominence to the requested instructions.
(e) The court may recall the jury after it has retired and give additional instructions in
order:
(1) to correct or withdraw an erroneous instruction;
(2) to clarify an ambiguous instruction; or
(3) to inform the jury on a point of law which should have been covered in the
original instructions.
(f) The provisions of standard 15-4.4(e) and (g) also apply to the giving of all additional
instructions, except that the court in its discretion should decide whether additional
argument will be permitted.

Standard 15-5.4. Length of deliberations; deadlocked jury

(a) Before the jury retires for deliberation, the court may give an instruction
which informs the jury:
(1) that in order to return a verdict, each juror must agree thereto;
(2) that jurors have a duty to consult with one another and to deliberate
with a view to reaching an agreement, if it can be done without violence to
individual judgment;
(3) that each juror must decide the case for himself or herself but only
after an impartial consideration of the evidence with the other jurors;
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(4) that in the course of deliberations, a juror should not hesitate to
reexamine his or her own views and change an opinion if the juror is
convinced it is erroneous; and
(5) that no juror should surrender his or her honest belief as to the
weight or effect of the evidence solely because of the opinion of the other
jurors, or for the mere purpose of returning a verdict.
(b) If it appears to the court that the jury has been unable to agree, the court may
require the jury to continue their deliberations and may give or repeat an
instruction as provided in section
(a). The court should not require or threaten to require the jury to deliberate for
an unreasonable length of time or for unreasonable intervals.
(c) The jury may be discharged without having agreed upon a verdict if it
appears that there is no reasonable probability of agreement.

Standard 15-5.5. Entry of plea during deliberations

If the defendant should elect to enter a plea at any time after the jury has been
sworn but before the jury has returned a verdict, the jury should be dismissed
immediately upon acceptance of the plea by the court and should not be permitted
to return a verdict.

Standard 15-5.6. Polling the jury

When a verdict has been returned and before the jury has dispersed, the jury
should be polled at the request of any party or upon the court's own motion. The
poll should be conducted by the court or clerk of court asking each juror
individually whether the verdict announced is his or her verdict. If upon the poll
there is not unanimous concurrence, the jury may be directed to retire for further
deliberations or may be discharged.

Standard 15-5.7. Impeachment of the verdict

(a) Upon an inquiry into the validity of a verdict, no evidence should be
received to show the effect of any statement, conduct, event, or condition upon
the mind of a juror or concerning the mental processes by which the verdict was
determined.
(b) The limitations in section
(a) should not bar evidence concerning whether the verdict was reached by lot.
(c) Subject to the limitations in section
(a), a juror's testimony or affidavit should be received when it concerns:
(1) whether matters not in evidence came to the attention of one or more
jurors, under circumstances which would violate the defendant's
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15
constitutional right to be confronted with the witnesses against him or her;
or
(2) any other misconduct for which the jurisdiction permits jurors to
impeach their verdict.

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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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Supplement for Lesson 3.2
Excerpts from
Amendments to the United States Constitution
Amendment VI Right to a fair trial
In all criminal prosecutions, the accused shall enjoy the right to a speedy and public trial, by an
impartial jury of the State and district wherein the crime shall have been committed; which
district shall have been previously ascertained by law, and to be informed of the nature and cause
of the accusation; to be confronted with the witnesses against him; to have compulsory process
for obtaining witnesses in his favor, and to have the assistance of counsel for his defence.
Amendment VII Rights in civil cases
In Suits at common law, where the value in controversy shall exceed twenty dollars, the right of
trial by jury shall be preserved, and no fact tried by a jury shall be otherwise re-examined in any
Court of the United States, than according to the rules of the common law.

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Lesson 4.1: The Roles of the Judge and Jury
ABA Standards Trial By Jury 15-4.1 - 4.4 (page 115)
Ukrainian Code of Criminal Procedure,
Section IV, Chapter 4, 4 (page 106)
ABA Role of Judge
Judicial Gatekeeping

Lesson Objective: Students will be able to explain the roles
of a judge and jury in the United States and discuss the
reasons for the roles.

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What Does a Judge Do?
Purpose: To explain how judges do their jobs
Materials: None
Ease of Presentation: Easy. Talking points that can be adapted for various groups. The points
set out clearly the role of the judge and what happens at a trial (some details might have to be
changed for particular jurisdictions). The judge adapting these points can flesh them out with
examples.
What Does a Judge Do?
Many who work in the judicial system feel the public misunderstands the systemwhat it
cannot do, what it can do, and how it functions. The role of the courts is often misconstrued, as
is the role of the judge in society. The following points were taken from an outline for a
presentation given at a bench-press seminar by District Judge Lewis D. Nicholls of Kentucky.
We need to be willing to explain how we do our jobs:
A. A judge is an appointed or elected magistrate who is tasked with promoting justice by
presiding in a fair and impartial manner over court proceedings and deciding questions of law
or discretion in which advocates present their cases for a resolution of the issues by a jury or
the judge.
B. Socrates once said, "Four things belong to judge: To hear courteously, to answer wisely, to
consider soberly and to decide impartially."
1. Decide impartially

a. To adhere strictly to and not divert from a standard of what has been
determined as right, true or lawful.

b. To be completely devoid of favor for or prejudice against one side more than
the other.

c. Being just means more than being fair. It means to demonstrate humanity; to
feel compassion for and understanding of the concerns of the litigants as
persons; a recognition that achieving justice to the litigants before you is more
than slavish allegiance to dictates of mechanical jurisprudence.
2. A judge is like an umpire at a baseball game. He or she is not on either side. The
judge represents neither the state nor the defendant in a criminal case. The judge
represents neither the plaintiff nor the defendant in a civil case. The judge's job is to
remain neutral and let the parties present their cases to the jury, which resolves the
ultimate issues (called issues of fact). The parties present their cases according to a
fixed set of rules (called issues of law), which the judge enforces.

3. When a jury hears a case and decides the issues, it is called the trier of fact.
Sometimes the judge becomes the trier of fact in addition to deciding the issues of law.
In a criminal case, this can only happen when the state and defendant both agree in
writing. In a civil case, a party has to timely demand a jury trial; otherwise, it is a trial by
the judge.
C. What a judge does depends on the type of case before him or her.
1. J ury Trial

a. A judge rules on questions of law at a jury trial.

(1) What evidence is permitted to be heard by the jury.

(2) What attorneys can argue before a jury.

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102
(3) Whether there is probable cause.

(4) Whether evidence should be suppressed.
b. A jury decides issues of fact.

(1) Whether or not the defendant is guilty of the charged offense.

(2) Whether or not the defendant was negligent or committed some other
civil wrong and sometimes the amount of damages.

c. The judge prepares the jury instructions.

d. The judge instructs the jury on the issues they are to resolve.

2. Bench Trial

a. The judge rules on questions of law.

b. The judge decides the questions of fact.

c. Bench trial can only be had upon written consent of both the state and the
defendant in a criminal trial and only upon a timely and proper demand in a civil
case by either party.

3. Preliminary Hearing at District Court

a. The judge determines if there exists probable cause that a felony offense
occurred and that defendant committed said offense.

b. The judge appoints an attorney to represent the defendant.

c. The judge sets bond.

(1) Amount considering appearance of defendant at trial and the
protection of the public

(2) District Court loses jurisdiction of bond at end of preliminary hearing.

4. Plea of guilty by defendant

a. The judge determines if plea is voluntary

b. The judge considers recommendation of the state, if any

(1) If the state recommends a sentence upon a plea of guilty, it is duty of
judge to determine if terms of proposed recommendations are fair and
reasonable.

(2) J udge does not know of facts of case and therefore must rely upon
recommendations of the state in most cases.

(3) It is not duty of the judge to prosecute a case; it is the duty of the state
to prosecute a case.
D. A judge does not create cases. He or she only deals with them as they are filed.
Adapted from an outline prepared by District Judge Lewis D. Nicholls of Kentucky, which appeared in the ABA
publication Educating the Public About the Courts.
Lawyers & J udges | J udges' Chambers
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Lesson 4.2: Jury Instructions and Deliberation
Jury Instructions
ABA Standards Trial By Jury 15-5.1-5.7 (page 115)

Lesson Objective: Students will understand the functions of
jury instructions generally and of specific instructions.

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1 September 2006
Chapter 3. Final Instructions: General
3.01 Role of Jury
3.02 Evidence
3.03 Direct and Circumstantial Evidence
3.04 Credibility of Witnesses
3.05 Not All Evidence, Not All Witnesses Needed
3.06 Presumption of Innocence; Burden of Proof; Reasonable Doubt
3.07 Nature of Indictment
3.08 On or About
3.09 Venue
3.10 Elements of Offense(s) Charged
3.11 Lesser Included Offenses
3.12 Separate Consideration Single Defendant Charged With Multiple Offenses
3.13 Separate Consideration Multiple Defendants Charged With Single Offense
3.14 Separate Consideration Multiple Defendants Charged With Same Offense
3.15 Separate Consideration Multiple Defendants Charged With Different Offenses
3.16 Election Of Foreperson; Unanimous Verdict; Do Not Consider Punishment; Duty To
Deliberate; Communication With Court
3.17 Verdict Form
3.18 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 Direct and Circumstantial Evidence
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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8 September 2006
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
As I stated in my preliminary instructions at the beginning of the trial, in
deciding what the facts are you must decide what testimony you believe and what
testimony you do not believe. You are the sole judges of the credibility of the
witnesses. Credibility refers to whether a witness is worthy of belief: Was the
witness truthful? Was the witness testimony accurate? You may believe
everything a witness says, or only part of it, or none of it.
You may decide whether to believe a witness based on his or her behavior and
manner of testifying, the explanations the witness gave, and all the other evidence in
the case, just as you would in any important matter where you are trying to decide if
a person is truthful, straightforward, and accurate in his or her recollection. In
deciding the question of credibility, remember to use your common sense, your good
judgment, and your experience.
In deciding what to believe, you may consider a number of factors:
(1) The opportunity and ability of the witness to see or hear or know the
things about which the witness testified;
(2) The quality of the witness knowledge, understanding, and memory;
(3) The witness appearance, behavior, and manner while testifying;
(4) Whether the witness has an interest in the outcome of the case or any
motive, bias, or prejudice;
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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 Not All Evidence, Not All Witnesses Needed
Although the government is required to prove the defendant guilty beyond a
reasonable doubt, the government is not required to present all possible evidence
related to the case or to produce all possible witnesses who might have some
knowledge about the facts of the case. In addition, as I have explained, the
defendant is not required to present any evidence or produce any witnesses.
[In this case, the (name of defendant) [presented evidence] [produced witnesses].
(Name) is not required to present all possible evidence related to the case or to produce all
possible witnesses who might have some knowledge about the facts of the case.]
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 Presumption of Innocence; Burden of Proof; Reasonable Doubt
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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doubt or to a mathematical certainty. Possible doubts or doubts based on
conjecture, speculation, or hunch are not reasonable doubts. A reasonable doubt is
a fair doubt based on reason, logic, common sense, or experience. It is a doubt that
an ordinary reasonable person has after carefully weighing all of the evidence, and
is a doubt of the sort that would cause him or her to hesitate to act in matters of
importance in his or her own life. It may arise from the evidence, or from the lack
of evidence, or from the nature of the evidence.
If, having now heard all the evidence, you are convinced that the government
proved each and every element of the offense charged beyond a reasonable doubt,
you should return a verdict of guilty for that offense. However, if you have a
reasonable doubt about one or more of the elements of the offense charged, then you
must return a verdict of not guilty of that offense.
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 Nature of the Indictment
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 Elements of the Offense(s) Charged
The defendant (name) is charged in the indictment with committing the
offense of (state the offense charged). This offense has ___ essential elements, which
are:
First, (state the first element);
Second, (state the second element);
Third, (state the third element); and
(State each additional element).
(Name) is also charged with committing the offense of (state any additional
offense charged). The elements of that offense are:
(State the elements of any additional offense, as above.)
In order to find (name) guilty of (this)(these) offense(s), you must all find that
the government proved each of these elements beyond a reasonable doubt, as I will
explain in more detail shortly.
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 Lesser Included Offenses
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 Separate Consideration--Single Defendant Charged with Multiple
Offenses
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 Separate Consideration--Multiple Defendants Charged with a Single
Offense
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
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3.14 Separate Consideration--Multiple Defendants Charged with the Same
Offenses
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
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3.15 Separate Consideration--Multiple Defendants Charged with Different
Offenses
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
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3.16 Election of Foreperson; Unanimous Verdict; Do Not Consider Punishment;
Duty to Deliberate; Communication with Court
That concludes my instructions explaining the law regarding the testimony
and other evidence, and the offenses charged. Now let me explain some things about
your deliberations in the jury room, and your possible verdicts.
First, the first thing that you should do in the jury room is choose someone to
be your foreperson. This person will speak for the jury here in court. He or she will
also preside over your discussions. However, the views and vote of the foreperson
are entitled to no greater weight than those of any other juror.
Second, I want to remind you that your verdict, whether it is guilty or not
guilty, must be unanimous. To find (name of defendant) guilty of an offense, every
one of you must agree that the government has overcome the presumption of
innocence with evidence that proves each element of that offense beyond a
reasonable doubt. To find (name) not guilty, every one of you must agree that the
government has failed to convince you beyond a reasonable doubt.
Third, if you decide that the government has proved (name) guilty, then it will
be my responsibility to decide what the appropriate punishment should be. You
should never consider the possible punishment in reaching your verdict.
Fourth, as I have said before, your verdict must be based only on the
evidence received in this case and the law I have given to you. You should not take
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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 11-
145
35 September 2006
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 __.
146
36 September 2006
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).
147
37 September 2006
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.
148
38 September 2006
3.18 Special Verdict Form; Special Interrogatories
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.
149
39 September 2006
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.
150
40 September 2006
(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.
151

152


Lesson 5.1: Prosecutors and Law Enforcement
Presidents Commission on Criminal Justice
The Structure of the Criminal Justice System
Rule 3.8 Special Responsibilities Of A Prosecutor

general structure of the criminal justice system in the United
States and compare that structure with the Ukrainian
structure.

153

154

155

156

157

158

159

160

161
162
163

164

165
x

166
Model Rules of Professional Conduct
Rule 3.8 Special Responsibilities Of A Prosecutor
The prosecutor in a criminal case shall:
(a) refrain from prosecuting a charge that the prosecutor knows is not supported by probable
cause;
(b) 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;
(c) not seek to obtain from an unrepresented accused a waiver of important pretrial rights, such
as the right to a preliminary hearing;
(d) make timely disclosure to the defense of all evidence or information known to the prosecutor
that tends to negate the guilt of the accused or mitigates the offense, and, in connection with
sentencing, disclose to the defense and to the tribunal all unprivileged mitigating information
known to the prosecutor, except when the prosecutor is relieved of this responsibility by a
protective order of the tribunal;
(e) not subpoena a lawyer in a grand jury or other criminal proceeding to present evidence about
a past or present client unless the prosecutor reasonably believes:
(1) the information sought is not protected from disclosure by any applicable privilege;
(2) the evidence sought is essential to the successful completion of an ongoing
investigation or prosecution; and
(3) there is no other feasible alternative to obtain the information;
(f) except for statements that are necessary to inform the public of the nature and extent of the
prosecutor's action and that serve a legitimate law enforcement purpose, refrain from making
extrajudicial comments that have a substantial likelihood of heightening public condemnation of
the accused and exercise reasonable care to prevent investigators, law enforcement personnel,
employees or other persons assisting or associated with the prosecutor in a criminal case from
making an extrajudicial statement that the prosecutor would be prohibited from making under
Rule 3.6 or this Rule.
http://www.abanet.org/cpr/mrpc/rule_3_8.html
167

168


Lesson 5.2: Prosecution Role and Standards
Kerper Prosecutors
Criminal Justice Kaplan - Prosecution Decisions
ABA Standards Prosecution Function

qualifications, selection and responsibilities of a prosecutor
in the United States.

169
TheLegalandJudicialProfessionals
Threeprofessionalsinthecriminaljusticesystem-prosecutors,defensecounsel
andjudges-willbelawyers.
l
Whileeachperformsasomewhatdifferentrole,all
are concerned with thejudicial process andthe interpretation ofthe law. The
lawyer-professionals all will be graduates oflaw schools, andtheyall will have
passedanexaminationestablishingtheirknowledgeofthelawandtheirabilityto
utilize legal analysis.
2
As persons admittedtothe practice ofthe law (which is
describedasadmissiontothe"bar"),theyallaresubjecttothatprofession'sCode
of Professional Responsibility.3 These siplilarities in educational background,
skills,andprofessionalstandardswillserveasthestartingpointforouranalysisof
the three professionals in this chapter. We will concentrate primarily on the
1. AsnotedinChapterThree(p.44supra), non-lawyerjudgesserveinthemagistratecourtsinmany
states.However,allgeneraltrialcourtjudgesandappellatecourtjudgeswillbelawyers.Moreo-
ver,inthosestatesinwhichmagistratesneednotbelawyers,thedefendantoftenhasarighttoa
trial de novo before the general trial court, which will provide himwith a fresh trialbefore a
lawyer-judge.Seep.39supra.
2. Therearea few statesinwhichgraduatesofthestatelawschoolareautomaticallyadmittedto
practicelawinthatstatewithouttakingthebarexamination.Therearealsoafewstatesinwhich
apersoncanqualifytotaketheexaminationbylearninglawwhileclerkinginalawfirmrather
than byattending law school. However, this route to the takingofthe examination is rarely
utilized.
3. EachstatehasitsownCodeofProfessionalResponsibility,butthosecodesallfollowcloselythe
American Bar Association's Code of Professional Responsibility (Approved Draft 1970, with
subsequentamendments).TheA.B.A.'sCode consistsof"Cannons,""DisciplinaryRules,"and
"EthicalConsiderations."TheCannonsarestatementsofgeneralconcepts (e.g., thata lawyer
"shouldexercise independentprofessional judgmenton behalfofa client"). TheDisciplinary
Rules arespecificguidelines, violation ofwhichwill resultin theimposition ofsanctions. The
state codes commonly consistsolely ofthe Cannons and the Disciplinary Rules. The Ethical
Considerationsarestatementsofprinciplesdesignedtoassisttheattorneyin resolvingethical
issues presentedin particularsituations. Theyare described bythe A.B.A. as "aspirationalin
characterandrepresent[ing]theobjectivestowardwhicheverymemberoftheprofessionshould
strive."
425
Prosecutors
Hazel B. Kerper, Introduction to the Criminal
Justice System, Second Edition, West Publishing
Company, 1979 ISBN 0-8299-0276-7
Hazel B. Kerper, Introduction to the Criminal Justice System,
Second Edition, West Publishing Company,
Copyright 1972 and 1979, All Rights Reserved
170
<
426 The Criminal Justice Process
differences in their roles, their methods ofselection, their training, and their
relationship to the non-lawyer professionals in the criminaljusticeprocess. We
startwithadescriptionofthevariousofficialswhomayserveasprosecutors.
THEDIVISIONOFPROSECUTINGAUTHORITY
State Prosecutions. Theauthoritytoprosecuteisdividedamongvariousstate
and federal officials. The state officials are responsible for prosecutions under
statelawandthefederalofficialsforprosecutionsunderfederallaw.Thedivision
of prosecutingauthorityatthestatelevelvariesfromstatetostate.Ordinarily,the
officialwithprimaryresponsibilityfor prosecutions understatelaw is thelocal
prosecutingattorney (also called the "districtattorney," "countyattorney," or
"state'sattorney").Thelocalprosecutorisselectedeitherfromasinglecountyor
from a group ofcountiesthatare combinedtoform a prosecutorial districtina
sparselypopulatedarea.Thelocal prosecutorhastheprimaryresponsibilityfor
bringing prosecutions for allviolationsof statelawcommitted withinhiscounty or
district.Thereareapproximately2,600localprosecutingattorneysintheUnited
States.
4
Mostserveonlypart-timeanddonothaveanyfull-timestaff attorneysto
assist t h m ~ The prosecuting attorney offices in urban areas tend to be quite
large,however,andoftenhavemore lawyersthanthelargestlocallawfirm. The
officeoftheDistrictAttorneyofLosAngeles County,for example,hasover 500
staffattorneys.
Inmanystates,thelocalprosecutor'sprosecutionsaresubject,atleasttheo-
retically,tothesupercedingauthorityofthestateattorneygeneral. Somedozen
statesallowtheattorneygeneralon hisowninitiativetoreplacetheprosecuting
attorneyinanypendingprosecution,andseveralotherstatespermittheattorney
generaltointerveneinapendingprosecutionupondirectionofthegovernor.This
authoritypermitstheattorneygeneraltointerveneanddismissa case whichhe
believestohave beeninitiatedfor improperpurposes,ortointerveneandpress
forward ina casewhere hefeels theprosecutingattorneyisnotexercisingsuffi-
cientdiligence. Inpractice, however, interventionfor eitherpurpose is rare. By
andlarge,attorneysgeneralinterveneonlyincaseswherethelocalprosecutorhas
a potentialconflictofinterest(e.g., prosecutionagainsta former staffmember)
andwouldpreferthatanoutsideofficerprosecute.
In fourteen states, the attorney generalmay himselfinitiate prosecution.
Mostoften,attorneysgeneralusetheirpowertoinitiateprosecutionswithrespect
4. ThestatisticsonprosecutingattorneysusedinthischaptercomefromtheSourcebook of Crimi-
nal Justice Statistics-1976, note1 at p.1supra, andtheNationalDistrictAttorneyAssociation,
National Prosecution Standards, Chicago,Ill.,1977.
5. Part-time prosecutors ordinarily spend the remainder of their time in the private practice of law.
Thatpracticemayaffectinvariousrespectstheprosecutor'shandlingofhispublicrole,although
statutes ordimirily bar the prosecutor from private practice in situations presenting a direct
conflictwithhispublicposition. (Mostpart-timeprosecutorslimittheirprivatepracticetocivil
matters, although some handlecriminal defense work in adjoining counties), In recent years,
considerableefforthas been madetomakethe prosecutor's position a full-time position,with
privatepracticebarred.
171
The Legal and Judicial Professionals 427
onlytoa limitedclassofoffenses,suchastaxfraudandcriminalantitrustviola-
tions,astowhichlocalprosecutorsarelikelytolacksufficientexpertise.
6
Inthese
areas,theyoftencreatespecialunitsthatwill dealwithalmostallsuchoffenses
committedthroughoutthestate.Thesuccessoftheseunitshasledseveralstates
thatdonotpermitthegeneralinitiationofprosecutionbytheattorneygeneralto
authorizeinitiationfor limitedgroupsofcrimes,likeantitrust,thatoftenhavea
statewideimpactandrequirespecialexpertisetoprosecute.
Theprosecutingattorneyandtheattorneygeneral ordinarilyaretheonly
officials with authorityto prosecute violations ofstatelaw. Publicattorneys at
otherlevels ofgovernment, suchas a cityortownship attorney,cannotenforce
state provisions. They may, however, bring prosecutions to enforce local ordi-
nances, and such ordinances frequently duplicate state misdemeanors both ~
substanceandauthorizedpunishments. Wherethecityattorneyandtheprose-
cutingattorneyfollowdifferentpoliciesastothetreatmentof minoroffenses(e.g.,
whetherpleabargainingwill beusedindrunkdrivingcases), theresultoften is
disparatetreatmentofdefendantsdependinguponwhetherthelocalpolicepre-
senttheircasetothecityattorneyforprosecutionasanordinanceviolationorto
thelocalprosecutorforprosecutionasastatemisdemeanor.
The Advantages and Disadvantages of Divided State Prosecuting
Authority. One major concern relating to the division of state prosecuting
authority is the inconsistency in the application ofthe law resulting from the
differentpoliciesofdifferentprosecutors.Aswejustsaw,thiscanoccurwithina
single countywhere particularconductconstitutesbotha misdemeanorandan
ordinance violation. For felony level crimes, the central authority of the local
prosecuting attorney ensures a consistent county-wide prosecution policy, but
differencesarisebetweencounties.Differentprosecutorsindifferentcountiescan
followquitedifferentpoliciesonsuchmattersasthedecisiontocharge,theuseof
diversion programs, plea bargaining, and use ofcertain trialtactics.
7
Inrecent
years, various efforts have been made to eliminate such inconsistencies. To
achieveclosercommunicationsamonglocalprosecutors,stateprosecutingattor-
neyassociations andsome stateattorneysgeneral haveestablishedspecialpro-
grams designedto keeplocalprosecutorsinformedofthevariouspolicies being
followedacrossthestate.Programshavealsobeendevelopedtoassistprosecutors
inusingnewprosecutionproceduresthathaveprovensuccessfulinotherdistricts
andtodevelop general guidelines as toprosecution policies. While suchefforts
havehelpedtolessenthedifferencesinthepoliciesfollowedbythevariousprose-
cutors,thosepoliciesstillremainfarfromuniform-particularlywithrespectto
pleanegotiation.
6. Thereference here is only tostates thatutilize local prosecutors. In addition, there are three
states,describedatnote9 infra, inwhichtheattorneygeneralbearsresponsibilityfor all local
prosecutions.
7... Therearevariousaspectsoflitigationas towhichtheprosecutormayhaveconsiderablediscre-
tion,providinghemeetstheminimumlegalstandards.Thus,theprosecutormaychoosebetween
prosecutingonseveraldifferentoffensesina singleprosecutionorinseparateprosecutions. He
mayprosecuteaccomplicesseparatelyorinajointtrial.Hemaygivedefensecounselsubstantial-
lymoreadvancenoticeofthenatureoftheprosecution'scasethanis legallyrequired (usually,
thisisdoneif thedefensecounseliswillingtogivereciprocaldisclosure).Inafewjursidictions,the
prosecutormayinsistuponajurytrialeventhoughthedefendantdesirestowaiveajurytrial.
172
--------------aa
Anotherproblempresentedbythefragmentationofprosecutingauthorityis
thatmanyofficesaretoosmalltobeefficient. Again,stateattorneysgeneraland
prosecutingattorneyassociationshavesoughttooffsetthisdeficiencybyprovid-
ing various support services tothesmaller offices, such as legal research assis-
tance,officemanagementprograms, andshareduse ofcomputerfacilities. Also,
almost a third of the states have moved to a district selection system, which
permitsthemtocreatemultiple countydistrictslarge enough tosupporta full-
time prosecutor with part-time assistants in each county. These reforms have
beenonlypartiallysuccessful,however,andtheinefficiencyofthesmalleroffices
remainsamajordifficultyinmoststates.
Over the years, various proposals have been advanced for adoption of a
single,statewidepl'osecutorialauthority,vestedintheAttorneyGeneral.
s
Sofar,
onlythree states have adopted such a program, Alaska, Delaware, and Rhode
Island.
9
Adoptionofa statewidesystemofprosecutionhas beenopposed onthe
groundthatitwouldplacetoomuchpowerina singleofficial. Proponentsofthe
currentsystemalsonotethatthepoliticalaccountabilityoftheprosecutingattor-
neytohislocaldistrictensuresthatlocalconditionswillbeconsideredinformu-
latingprosecutionpolicies. Theycontendthat,ina criminaljusticesystemthat
lackstheresourcestoprovidefull enforcementofalllaws,itisextremelyimpor-
tantthatcommunitysentimentbeconsidered in allocatingthe resources ofthe
prosecutor's office and in appraising the disposition appropriate to particular
offensesandoffenders.Insofaras thedivision ofprosecutingauthorityamonga
large number of local prosecuting officials results in inconsistency and ineffi-
ciency, those costs are viewed as more than offset by the benefits of local
autonomy.
FederalProsecutions. Inthefederalsystem,thefinalauthorityoverallprose-
cutionsrestswiththeAttorneyGeneral.Ofcourse,theAttorneyGeneraldoesnot
personally supervise individual prosecutions; he relies heavily on various
subordinateofficials who aregiven the primaryresponsibility for prosecutorial
decisions.Formostfederaloffenses,thatresponsibilitylieswiththeUnitedStates
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(inGuam)toover150Assistants(intheDistrictofColumbia).Overhalf
oftheofficeshavefewerthantenattorneys.TheU.S.Attorneysaregivenconsid-
erablediscretion,buttheymustoperatewithingeneralguidelinesprescribedby
theAttorneyGeneral. Forcertaintypesofcases (e.g., civil rights prosecutions),
they must receive specific approval from the Attorney General or the Deputy
AttorneyGeneralinchargeoftheCriminalDivisionof theDepartmentofJustice.
TheCriminalDivisionoperatesasthearmoftheAttorneyGeneralincoordinat-
ingtheenforcementoffederallawsbytheU.S.Attorneys.Invariousareas-most
8. OneoftheearlierrecommendationswasthatadvancedbytheWickershamCommissionin1931.
More recentlyasimilarproposalWas madebytheCommitteeforEconomicDevelopment,com
posedofadistinguishedgroupofbusinessmen.BothproposalsarediscussedinNationalASHocia-
tionofAttorneysGeneral, The Prosecution Function, Raleigh,NorthCarolina,1974,p.37.
9. In each of these states, all prosecutions are conducted under the direction of the Attorney
General. InAlaska, local prosecutors areused, buttheyareappointed by theattorneygeneral,
andheisresponsiblefortheirperformance.
173
notablywhitecollarcrimeandpubliccorruption-theCriminalDivisionprovides
substantialassistancetoUnitedStatesAttorneysintheinvestigationandpresen-
tationofcases.Inafewspecializedareas(e.g.,' antitrust),theinitialresponsibility
for enforcement is given to other divisions of the Justice Department. If any
conflictsarisebetweenthepoliciesfollowedbythosedivisionsandtheU.S.Attor-
neys,theycanberesolvedbytheAttorneyGeneral.
THE SELECTION
AND TRAINING OF PROSECUTORS
Selection o/the Prosecuting Attorney. Withfew exceptions,localprosecut-
ingattorneysareelectedinapartisanelectioninthedistricttheyserve.
10
Theyare
elected for a fairly short term ofoffice, usually four years, with eleven states
havingtermsofonlytwoyears. Twostatesprovidefor theappointmentoflocal
prosecutors,butpoliticalconsiderationsalsoaresaidtoplayapartintheirselec-
tion.
ll
UnitedStatesAttorneysareappointedbythePresident,withtheconsent
oftheSenate.ThePresidentialappointeesordinarilyhavebeenrecommendedby
theSenatorsfromthestateinwhichtheywillserve.TheUnitedStatesAttorneys
tendto be ofthesame politicalpartyas thePresidentandusuallyarereplaced
whenanewPresidentfromanotherpartytakesoffice.
Asonemightexpect,withtheminimaljobsecurityprovidedbythepolitical
selectionprocess,mostprosecutingattorneysdonotviewtheirofficeasa career
position.Indeed,thisattitudecarriesovereventojurisdictionsinwhichincum-
bentsordinarilyarereelected,sothattheprosecutorcouldassumethathewould
haveafairlylongtenureifhesodesired.Studiesconductedinvariousstateshave
producedsuchstatisticsas: (1) almost50 %ofthelocalprosecutorswereserving
theirfirstterm; (2) mostformerprosecutingattorneyshadleftofficevoluntarily
rather than because of an election defeat; (3) almost 50% of the prosecutors
interviewedwere interestedinseeking othergovernmentpositions.1
2
Ofcourse,
thereareexceptionstothisgeneralpattern.Inalmosteverystate,onecanpointto
prosecutors who have remained in office for twenty or thirty years and have
rejectedcountlessopportunitiestobecomejudgesor enterprivatepractice.The
number of prosecutors following such a career pattern appears to be growing
slightly,butitstillrepresentsonlyasmallportionofthe2,600localprosecutorsin
thiscountry.
10. Asnotedsupra, stateattorneysgeneralmayalsohavesignificantprosecutorialauthority.Attor-
neysgeneralareelectedinforty-twostates,appointedbythegovernorinsixstates,appointedby
thelegislatureinonestate,andbythestatesupremecourtinanother.
ll. Prosecutingattorneys are appointed by the courtinConnecticutand by thegovernor in New
Jersey. The National DistrictAttorneys Association, National Prosecution Standards, note 4
supra, at1.1,favorslocalelection,asopposedtoappointment,onthegroundthatappointment
eliminatestheprosecutor's"directauthorityfromandresponsibilityto,thevotersof hisdistrict."
The commentary to the standard further notes, however, that nonpartisan elections may be
desirableinsomesettings.
12. See National Prosecution Standards, note 4 supra, at p. 11-12. These statistics also are ex-
plained, in part, bythe fact thatthe postofprosecutingattorneyis nota full-time position in
manyareasofthecountry.Seenote5supra.
174
2
Assistant Prosecutors. Theselectionandtenureofassistantprosecutorsgen-
erally rests in the sole discretion ofthe prosecuting attorney.13 The standards
employedbytheprosecutingattorneyinhiringassistantswillvarywiththeindi-
vidualoffice.Atonetime,manyofficesreliedheavilyupontheapplicant'spoliti-
cal affiliation. New prosecutors, upon entryinto office, would make an almost
"cleansweep"of theassistantsof aformerprosecutorof anopposingparty.Today,
manymoreofficeshireonastrictlynonpartisan,merit-orientedbasis. Moreover,
while theassistantsarenotprotected bycivil service,theyoftendohavea sub-
stantialdegree ofjobsecurityas a practicalmatter. Nevertheless,theassistants
generallydonotviewthejobas acareerposition. Mostassistantprosecutorsare
hiredduringtheearlystagesoftheircareers,stayseveralyears,andthenleavefor
higherpayingpositionsoutsidethegovernment.Thehighturnoverinmanypros-
ecutorofficesoftenisasourceofconcernamongjudgesandpoliceofficers.They
viewthetypicalassistantprosecutorasayoungattorneywhoiswillingtospenda
coupleofyearshandlinganoverloadofcasesata lowsalaryinordertogetsome
criminaltrialexperience.Toooftenthisproduces,theyargue,somethinglessthan
afullydedicatedpublicservant.
Training. Moststatesimposeonlyasinglequalificationforselectiontothepost
ofprosecutor or assistant prosecutor-thatthe individual be a member ofthe
statebar.Severalstatesalsorequirethatthelocal prosecutorhaveseveralyears
experienceinthepracticeoflaw,thoughnoneoftheserequirethatthatpractice
beinthefieldofcriminallaw.Instateswhereexperienceisnotmandatedbylaw,
lawyers elected to the office oflocal prosecutor nevertheless usually have had
somepreviouspracticeexperience.Assistantprosecutors,ontheotherhand,com-
monlyarehireddirectlyupontheiradmissiontothebar.Whilepracticeexperi-
ence generally is viewed as helpful, theunderlyingassumption is thatthebasic
toolsrequiredforeffectivepracticearethelegalskillslearnedinlawschool.Other
skills,relatingprimarilytotheexerciseof judgment,canbelearnedonthejob.
While new prosecutors or assistant prosecutors may have only limited
knowledgeofthecriminalfield, lawschooltrainingisdesignedtopermitalawyer
toenteranewfield andeducatehimself.
14
Inmanystates,theattorneygeneral's
officeorthestateprosecutingattorneyassociationwillassistthenewprosecutor
orassistantprosecutorinthisprocessofself-educationbyprovidingspecialtrain-
ingprograms.Thelargerprosecutorofficesoftenwilloperatetheirownprograms.
Inaddition,thejobassignmentsofnewassistantsinsuchofficeswillbegearedto
permittheassistanttomove from less serioustomoreseriouscases as he gains
13. Thediscretionary aspect ofthe appointment process commonly carries over to the promotion
process. Althoughweightis giventoseniority,thereordinarilyis no firm policyonpromotions.
Indeed,unlikepolicedepartments,whichrelyentirelyoninternalpromotions,highlevelvacan-
ciesinprosecutorofficesoftenarefilled byattorneyshiredfromoutsidetheoffice.
14. Thetypicallawschool graduatewill havetaken 24-30coursesinlawschool. Mostschoolsoffer
from3-7coursesdirectlyrelatedtothepracticeofcriminallaw,butwill requirethatthestudent
takeonlyonesuchcourse. (Othercriminallawcoursesmaybeelectedatthestudent'soption).
The basic teaching philosophy of most law schools is to emphasize general skills (e.g., legal
argumentation,statutoryinterpretation),ratherthanthelawsapplicabletoaparticularfield ina
particularjurisdiction. Excellenttreatisesareavailablethatprovidea goodintroductionto the
lawgoverningmostmajorfields.
175
experience.Continuingeducationprogramsalsoareavailable.TheNationalCol-
legeofDistrictAttorneysoffers, in particular,a widevarietyofcoursescovering
topicsrangingfromofficemanagementtothenewestlegaldevelopments.
THE ROLE OF THE PROSECUTING ATTORNEY
The Broad Range 01the Prosecutor's Authority. Therangeoftheprosecu-
tor's authority in making crucial decisions probably exceeds thatofany other
professionalinthecriminaljusticesystem.Perhapsthemostsignificantseriesof
decisions made by the prosecutor, in terms of their implications for both the
individualinvolvedandthecommunity,arethedecisionsrelatingtothecharge.
Theprosecutormustdetermineinitiallywhetherornottocharge.If hedecidesto
proceed,hethenmustselecttheappropriatechargeorseriesofcharges.Whilethe
lawsetsthemaximumcharge,itdoesnotprohibitchargingata levellowerthan
thatmaximum iftheprosecutorfeels thatis appropriate. Later,theprosecutor
also may decide to reduce thecharge in return for a guilty plea. Inall ofthese
decisions, thereare veryfew legal limitationsupontheprosecutor. Hisdecision
nottocharge,inparticular,islargelyunreviewable.Heisresponsibleprimarilyto
theelectoratethatputhiminoffice,ratherthantothecourts. III
Whiletheprosecutor'sdecisionsrelatingtothechargeareenoughinthem-
selvestoestablishthecrucialnatureof theprosecutor'srole,hisresponsibilityalso
extends to various other important steps in the criminal justice process. His
functionsstartatthepointoftheinvestigationof thecrimeandcontinuethrough
totheimpositionofsentence.If thepolicedesiretoconducta searchrequiringa
warrant,theprosecutorusuallywillbeinvolvedinobtainingthatwarrant.If they
desire toutilize electronic surveillance, he mustbe involved in obtainingcourt
approval for suchsurveillance. In some cases, the prosecutor will be consulted
priortothearrestfor thepurposeofobtaininganarrestwarrant.Followingthe
arrest,hemaybeinvolvedinvariousaspectsoftheinvestigationhavingabearing
onthedecision tochargeandtheconductoftheprosecution. Hetalkswiththe
arrestingofficer,interviewswitnesses,goestothesceneofthecrime,andstudies
ballistics tests, blood tests, and other physical evidence. He acquaints himself
withthepreviouscriminalhistoryoftheaccused;oftenmakesrecommendations
onbail; maintainsanactionagainstthebailbondsmanincase offorfeited bail;
cooperateswithlawenforcementofficersfromsisterstateswhoseektoapprehend
andextraditefugitives;andobtainsextraditionof fugitivesfromhisownstatewho
mustbebroughtbackfortrialorimprisonment.
The prosecutor prepares the accusation-the grand jury indictments or
information.Hepresentsthecasebeforethegrandjurywhenheseeksanindict-
ment;establishestheprimafaciecaseatthepreliminaryhearing;andappearsfor
thestateatthearraignment.Hedefendsagainstmotionstodismisstheprosecu-
tion.If thecase is notresolvedbya guiltyplea,theprosec;utormustpresentthe
case attrial. Conducting a trial requires very special skills, manyofwhich are
acquired only through experience. Prosecutors will gain that experience more
rapidlythanlawyersinalmostanyotherfieldoflaw.Inlargeoffices,theassistant
15. See p. 283 supra. See also note 7 supra as to other discretionary decisions ofthe prosecutor
relatingtothecharge.
176
432 The Criminal ,Justice Process
prosecutingattorneysaregivenspecializedassignmentsthatpermitthemtocapi-
talizeontheirexperience.Anattorneywhoisparticularlysuccessfulwithacertain
typeofcase-homicideorrobbery,forexample-maytryamajorityof thosecases
thatgototrialinhisjurisdiction.Successfulprosecutorsbecomefamiliarwiththe
abilitiesandalsotheidiosyncraciesofthetrialjudges.Insomejurisdictions,they
canarrangetheirdocketssoastohavecasessetbeforethejudgestheybelievewill
bemostfavorabletothetypeofcasetheyarepresenting.Prosecutors(alongwith
defense attorneys) ofteninvestigate the background ofthemembersofthejury
panel,seekingtodetermineprofession,socialstatus,andothermattersthatmight
bevaluableintheexerciseofperemptorychallenges.
If thecase results ina conviction, eitherthrough a guiltyverdictorguilty
plea, theprosecutorwill participateinthesentencinghearing. Inmanyjursidic-
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
sentencethatisnotlikelytobeinthepresentencereport.Ifthereisasubsequent
appeal,oracollateralproceeding(e.g.,ahabeascorpuspetition),hewillrepresent
thestateinthatproceedingaswell.
In many communities, the prosecutor serves still other functions in the
criminaljusticesystem.Heoftenistheforemostspokesmanfor lawenforcement
inthecommunity.Hegoes beforethelegislaturetorecommendoropposepenal
reform.Heis calledupontomakespeechesoncrimeandlawenforcementbefore
variousgroups. Heparticipatesinpolicetrainingprograms. Inhighlypublicized
cases,heoftensupervisesthereleaseof informationtothemediasoastominimize
thepossibilitythatprejudicial pretrial publicity will denythe defendanta fair
trial.
Inmostjurisdictions,theprosecutoralsowillhavesignificantresponsibility
incivilmattersinvolvingthecountygovernment.Thus,theprosecc.torordinarily
representsthecountyinall suitsagainstit. Healso maybeinvolvedinnegotia-
tions relating to accident claims, contract claims, and labor relation problems
involvingthecounty.16Ordinarily,theprosecutor'scivilobligationsdonotinter-
ferewithhisprimaryresponsibilityof presentingcriminalprosecutions.Thereare
somesituations,however,inwhichconflictsmayarise.Thus,ina particularcase,
theprosecutormaybeforcedtoconsidernotonlytheneedforenforcementof the
criminallawagainstalikelydefendant,butalsothatdefendant'sabilitytopressa
civilsuitagainstthelocalgovernmentarisingfromexcessive use ofpoliceforce.
The resulting trade-offmay be one thatwould nothave been arrived atifthe
prosecutor's perspectives were not shaped by his civil as well as his criminal
responsibilities.
The Duty 1bSeek Justice. In exercising his extensive authority within the
criminaljusticeprocess,theprosecutorisnotsimplytheadversaryofthedefense
counsel.Unlikethedefensecounsel,hisdutyisnotto"win"whereverhecandoso
16. Inrecentyears,therehasbeena movementtowardsrelievingtheprosecutorofresponsibilityfor
handlingcivil matters.Inaboutone-fourthofthestates,thelocalprosecutornowisresponsible
onlyforcriminalcases.Inseveralotherstates,prosecutorsinlargeurbanareashavebeendivested
ofcivil responsibilities,whichhave becometheprovinceofspecialcountycounsel. Thefederal
prosecutors-theUnitedStatesAttorneys-stillhaveverysubstantialresponsibilitiesfor repre-
sentationoftheUnitedStatesgovernmentin civillitigation.
177
withinthelimitsofthelaw. Theprosecutoralsomustbesatisfiedthattheresult
reached in a particular case is a correct one and thatthe government has not
treated the accused unfairly. The interest of his client-the state-is not
equivalenttothenarrowself-interestofthedefendant.Hisoverallobjectiveisto
"seekjustice"withinthelaw. TheCodeofProfessionalResponsibilitysetsforth
thisobligation,andthereasonsforitsexistence,asfollows:
Theresponsibilityofapublicprosecutordiffersfromthatoftheusualadvocate;his
dutyistoseekjustice,notmerelytoconvict.Thisspecialdutyexistsbecause:(1)the
prosecutorrepresentsthesovereignandthereforeshoulduserestraintinthediscre-
tionaryexercise ofgovernmentalpowers,suchas intheselection ofcases toprose-
cute; (2) duringtrialtheprosecutorisnotonlyanadvocate buthe alsomaymake
decisions normally made by an individual client, and those affecting the public
interestshouldbefairtoall;and(3) inoursystemofcriminaljusticetheaccusedisto
begiventhebenefitofallreasonabledoubts. 17
The A.B.A. Standards. Whatdoesa prosecutor'sobligationto"seekjustice"
mean as applied to the various functions noted at the outset of this section?
PerhapsthemostcompleteanswertothisquestionisfoundintheAmericanBar
Association'sStandards Relating to the Prosecution Function.
Is
TheStandards
projectprovidesguidelinesfortheperformanceofmostbasicprosecutorialfunc-
tions.It includesstandardsastopreferredconductandastoconduct(described
as"unprofessional")soclearlyinconsistentwiththeprosecutor'sresponsibilities
astocallfordisciplinaryaction.
I9
Throughout,itviewstheprosecutorasa"minis-
terofjustice,"occupyingwhatisdescribedasa "quasi-judicial"roleratherthan
simplytheroleof anadvocate.Thisviewhasabearingontheprosecutor'sactions
asanadministrator,asalitigant,andasanadvisertothepolice.
As an administrator, the Standards stress that the prosecutor should
develop a statementofgeneralprinciples toguidethe exercise ofprosecutorial
discretioninhisoffice.Thoseprinciplesshouldassistinprovidingfair, efficient,
andconsistentenforcementof thelaw.Theprosecutoralsoshouldsharplyrestrict
theprivatepracticeofhimselforhisassistants(ifprivatepracticeis allowed) to
avoid any appearance ofa conflict ofinterest as well as any actual conflict of
interest.Heshouldworkforthepromptdispositionofcases;itisunprofessional
conducttouseproceduraldevicesfordelaywherethereisnolegitimatebasisfor
delay.Asanadvisertothepolice,theprosecutorisdirectedtoprovidelegaladvice
and aid in the training of the police in the performance oftheir functions in
accordancewiththelaw.It istheobligationoftheproser-utoralsotoinvestigate
suspectedillegalactivitywhenthetraditionalinvestigativeagencieswillnotdeal
with it. This includes investigation ofallegations ofpolice illegality when such
allegationsarenotadequatelyinvestigatedbythepolice.Inhisinvestigations,itis
17. A.B.A.,Code of Professional Responsibility, note3supra, EthicalConsideration7-13.
18. American Bar Association, Standards Relating to the Prosecutor Function and The Defense
Function (ApprovedDraft1971).
19. Disciplinaryactionordinarilyconsistsof temporarysuspensionfromthepracticeoflawordisbar-
ment(revocationoflicensetopracticelaw).Inmostjurisdictions,alawyerchargedwithviolation
ofthestandardsofprofessionalresponsibilityisentitledtoa hearingbeforea committeeofthe
bar,withanappealofanyadversedecisiontothehigheststatecourt.
178
unprofessional conduct for a prosecutor to use illegal means to obtain evidence or
to instruct or encourage others to use such means.
In considering whether to charge, the standards suggest that the prosecutor
consider the availability of non-criminal dispositions, including rehabilitation
programs. Prosecutors should be familiar wi th social agencies that can assist in the
evaluation of cases for diversion from the criminal process. The Standards note
that the prosecutor should not charge in a case unless he first determines there is
evidence which would support a conviction. Even then, it continues, the prosecu-
tion is not obliged to prosecute, but may decline to do so "for good cause consistent
with the public interest." Among the factors that may be considered in making
that decision are the prosecutor's own reasonable doubt as to the accused's guilt
and the disproportion of the authorized punishment in relation to the particular
conduct of the offender. Among the factors that should not be considered are the
personal or political advantages or disadvantages that might be involved in prose-
cution and the prosecutor's desire to enhance his record of conviction.
Once the decision to prosecute has been made, the prosecutor must recognize
the validity of the processes designed to screen his decisions. He should not
encourage an uncounselled waiver of the preliminary hearing. He should present
to the grand jury only evidence which he believes properly admissible at the trial,
and should disclose to the grand jury any evidence which he knows will tend to
negate guilt. The prosecutor also must recognize the procedural rights of the
defendant and the basic objective of avoiding the erroneous conviction of the
innocent. He should cooperate, when asked, in obtaining counsel for the accused.
He should cooperate as well in arrangments for release of the accused pending trial
under the prevailing state system for release. It is unprofessional conduct for the
prosecutor to advise a prospective witness to decline to give information to the
defense. It also is unprofessional conduct for a prosecutor to fail to disclose to the
defense at the earliest feasible opportunity evidence that would tend to negate
guilt or reduce the degree of the offense. The prosecutor is never justified in
avoiding the pursuit of evidence because he believes it will damage his case or aid
the accused.
In the area of plea negotiations, the Standards state that the prosecutor
should make known a general policy of willingness to consult with defense counsel
concerning entry of a guilty plea. It is unprofessional conduct to engage in plea
discussions directly with an accused when the accused is represented by counsel
(except with counsel's approval). It is unprofessional as well for a prosecutor
knowingly to make false statements or representations in the course of plea dis-
cussions. It also is unprofessional conduct for a prosecutor to make any promise or
commitment concerning the sentence which will be imposed by the judge, but he
may properly discuss with the defense what recommendation he will make con-
cerning the sentence. If the prosecutor finds he is unable to fulfill an understand-
ing arrived at in plea discussions, he should give notice to the defendant and
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
tactics or behavior purposefully calculated to irritate or annoy the opposing coun-
sel. It is unprofessional conduct also to attempt to communicate privately with the
jury or any person called for jury service. In his opening argument, his presenta-
tion of evidence, his examination of witnesses, and his arguments to the jury, he
must abide by the rules of evidence and refrain from arguments calculated to
inflame the jury. He should not make any public comments critical of a verdict,
whether rendered by a judge or jury.
The prosecutor should not make the severity of the sentences the index of his
effectiveness; he should seek to assure that a fair and informed judgment is made
on sentence and to avoid unfair sentence disparities; he should assist the court in
obtaining full and accurate information in the presentence report and should
disclose all information in his files which is relevant to the sentencing issue.
The Prosecutor in Relation to Other Professionals in the Criminal Justice
System. The prosecutor works closely with the police, with the judge, and with
defense attorneys. His relationships with the police are usually amicable. Where
difficulties arise, they often are the product of the different perspectives of the
police and prosecutor produced by their distinct roles in the system. A prosecutor
understandably resents police illegalities that result in the exclusion of evidence
and thereby prevent the conviction of a guilty person. Prosecutors also may quar-
rel with police over the use of arrest authority in settings suggesting the arrest was
used for purposes other than prosecution. Similarily, prosecutors expect police to
successfully stay on the proper side of the sometimes narrow line that divides
investigative encouragement of a criminal act from actual entrapment. Police do
not necessarily defend illegal actions on their part, but they often tend to view the
law as too technical and the prosecutor's expectations as far too high considering
the conditions under which they must operate.
The police, for their part, sometimes have grievances against the prosecutor.
They suspect that political reasons occasionally enter into the decision of the
prosecutor to prosecute or not to prosecute. They think that the prosecutor's
acquiescence in the setting of low bail for dangerous offenders is unjustifiable.
Police see some prosecutors as just plain incompetent, and believe that good police
work is sometimes frustrated by bungled prosecution. Many police also believe
that plea bargaining works against the safety of the community and good law
enforcement. Here again, the major difficulty often lies in the failure of the differ-
ent professionals to appreciate the problems faced by the other professionals.
Burdened by a chronic case overload, prosecutors and police may be so preoccu-
pied with their own problems that neither is able to recognize the administrative
realities of the other's situation.
Most judges and prosecutors work harmoniously together. Judges and prose-
cutors share a common caseload problem and accommodate each other in resolv-
ing it. Thus, judges often are willing to accept sentence recommendations that are
part of a plea bargain even though they personally view the sentence as too lenient.
Similarly, prosecutors may grant the defendant certain concessions at the urging
of a judge who says the point is "not worth arguing about." On issues such as
pretrial disclosure of evidence, a judge may take the position that the prosecutor
would best serve the interests of justice by granting disclosure rather than chal-
lenging every defense request for disclosure, winning some and losing others, and
180
436 TheCriminalJusticeProcess
takingupa considerableamountofeverybody'stime.Whiletheprosecutorhasa
righttoinsiston litigatingeveryissue, he is likelytorespond affirmativelytoa
judge'ssuggestionthatheconcedethepointandgoontomoreimportantmatters.
Judges, prosecutors, anddefensecounsel, all beinglawyers, tendtohavea
better appreciation of each other's role than do the other professionals in the
process. Thepolice andprosecutor, becauseoftheirconstantcontact,gradually
shoulddevelopafairunderstandingof eachother'srole.Thegreatestcommunica-
tiongapinvolvingtheprosecutorliesbetweentheprosecutorandthecorrections
official.Prosecutorstypicallyconcernthemselvesverylittlewiththecorrectional
process, and usually have little knowledge about it. Their chiefcontact with a
correctional institution is withthejail-theyinterviewwitnesses andtalk with
accused persons being held in thejail. Theircontactwithprobationand parole
officersiscursory;theyrecommendprobationbutsometimesmayknowverylittle
aboutthesupervisoryfunctions performedbyprobationofficers. Manyprosecu-
torslacka fullunderstandingofthecaseworkmethodusedinprobation,parole,
andsocialcasework,andsomeprosecutorsareactivelyantagonistictoitsusewith
theoffender. Inrecentyears, law schools havedeveloped courses on corrections
andprosecutorshaveparticipatedmoreheavilyintheprobationrevocationproc-
ess.Theresulthasbeenincreasedawarenessoftheproblemsfacedincorrections,
althoughtheprosecutors,likethepolice,oftenapproachtheareafromaconsider-
ablydifferentperspectivethanmanycorrectionsofficials.
THE DEFENSE ATTORNEY
Selection. Wherethedefendanthasthemeans,hesimplyhiresalawyer,usually
onrecommendationofa friend oranotherlawyerwho does nothandle criminal
work.Wherethedefendantis indigent,counselwillbeappointedthroughoneof
thethreemethodsthatwe discussedinChapterEleven.
2o
As we notedthere,the
growingtrendacrossthecountryis towardsuseofeitherthe"mixed"or"public
defender"methodsof appointment,asopposedtothetraditionalassignedcounsel
method. This trend has produced a dramatic increase in the number ofpublic
defenderagencies.As of1974,therewereapproximately500suchagencies.
21
The
defender agencies usually are partofthestate or countygovernment, although
there are some local defender offices supported by municipalities. About one-
thirdof thestateshavestatewidepublicdefenderagencies.Thosestatewideagen-
cies thathandle trials ordinarily have branch offices throughoutthestate, and
thoseofficesoftenhaveconsiderableindependence.
22
Whilethelocalpublicdefender'sofficeislikelytobesomewhatsmallerthan
theprosecutor'soffice,itcan,nevertheless,haveafairlylargestaff.TheDefender
AssociationofPhiladelphia,forexample,hasover100attorneys,24investigators,
20. Seep.279supra.
21. SourcebookofCriminalJusticeStatistics-1976,note1, p.1supra,atp. 38.Theorganizationof
various defenderagencies is described in the reportofthe National StudyCommission on De-
fenseServices,GuidelinesForLegalDefenseSystemsintheUnitedStates,Chicago,Ill.:Nation-
alLegalAidandDefenderAssociation,1976.
22. Somestatewideagenciesserveonlyonappeals,withcountydefenderagenciesorcourtappointed
privatecounselprovidingrepresentationattrial.
181
248 ROLE OF' THE ATTORNEY
Ch. 5
sons as well, the resistance of juries lessened and convictions became
considerably easier to obtain.
(2) THE DECISION NOT TO CHARGE *
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, Newman, Kimball, Melli, polis, Bobbs-Merrill Co., Inc., 1969), pp.
Goldstein, Criminal Justice Adminis- 429-430. 1969. Reprinted with per-
tration, Materials and Cases, (Indian- mission of Bobbs-Merrill.
Prosecution Decisions
John Kaplan, Criminal Justice: Introductory Cases and Materials Foundation Press 1978
Copyright 1973 and 1978 The Foundation Press All Rights Reserved
182
Ch.5
THE PROSECUTING ATTORNEY
249
(3) THE DECISION TO CHARGE WHERE REFUSAL
TO CHARGE IS NORMAL *
(a) A 78-year-old man was arrested for indecent exposure upon
complaint of the father of a young girl who had seen him. The old
man had no record and explained that he was merely urinating in
the alley and offered to get a statement from his doctor to the effect
that he had a kidney ailment. The prosecutor asked the father what
he wanted done and the father said, "I think the man should be pun-
ished for what he did." The prosecutor said, "Well, he's pretty old
and has never committed any offense before. Don't you think jail
is the wrong place for him?" The father replied, "He committed a
crime and I think he ought to be punished." The prosecutor eventual-
ly shrugged his shoulders and approved the warrant recommenda-
tion.
(b) Police stopped a known criminal for a traffic offense and
searched his car, finding a loaded pistol in the glove compartment.
The police arrested him for carrying a concealed weapon and the pros-
ecutorapproved the charge even though he knew the case would be
lost as soon as a motion was made to suppress the only evidence of
guilt.
(c) Several inmates of the House of Corrections had escaped and
were apprehended. In recent months there had been a large number
of escapes. Though escapees from the House of Corrections (in con-
trast to the prison) were usually charged under a misdemeanor stat-
ute, an assistant prosecutor approved warrants charging each of this
latest group with a felony.
(d) A 66-year-old man had been plaguing the prosecutor's office
and courts with his frequent misconduct as a begger. He was arrest-
ed for begging and $199 in cash was found on him. He also had in
his possession two bank books showing deposits of $5,700. He had
been arrested some thirty-five times and convicted twenty times of
begging or some related offense. It was felt by the prosecuting at-
torney's office that it was time to teach the old man a lesson. The
charge was that of being a third offender, with substantially higher
maximum penalty.
(e) A young lady complained to the police that a dentist slapped
her across the face when she told him he was hurting her while ex-
tracting a tooth. He failed to respond to the letter routinely sent to
professional men about complaints of that nature. In a phone con-
versation as a follow-up to the letter, he told the police sergeant to go
to hell. He failed to appear at the police felony detail at the request-
ed time for a discussion of the matter. His firm had been repeated-
* Remington, op. cit., pp. 440-442.
183
250 ROLE OF THE ATTORNEY 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.
Did the prosecutor fail to show sufficient courage in case (a)?
Did he violate his legal duty in (b)?
Was it right for him to raise the charge in (c) just because the
public was becoming concerned with the problem?
Was it proper for the prosecutor in (d) to consider the wealth of
the prospective defendant and his previous record, in deciding with
what crime to charge him?
In (e) was it proper, first of all, to have a practice not to charge
doctors and dentists with minor offenses alleged by their patients?
Second, was it proper to consider, in departing from this policy, the
fact that the dentist had failed to show the proper courtesy to law
enforcement officials, or that he had previously been repeatedly
charged with an entirely different type of crime for which there was
insufficient evidence to prosecute?
(4) MORE' PROBLE'MS *
What decision would you, as prosecuting attorney, reach in the
following cases? What additional facts, if any, would you desire in
each case prior to making a decision?
(a) A man lured several 14-year-old-boys to a mountain cabin,
bound them up, and sexually molested them. One of the lads managed
to free himself, found a rifle in the cabin, and then shot and killed their
abductor. The juvenile court law of the state gives the criminal courts
exclusive jurisdiction over juveniles when they are charged with mur-
der. ,The law of self-defense in the jurisdiction only permits the use
of deadly force "to prevent imminent death or great bodily harm to
himself or another," which was not the case here.
(b) A minister entered the offices of the local draft board and
poured a quart bottle of blood over some of the draft board records.
His purpose was to make a public protest against the Vietnam war.
Only a few records were defaced, and they were easily replaced. Mut-
ilation of public records is in violation of 18 U.S.C. 2071, and is pun-
ishable by a fine of not more than $2,000 and imprisonment up to
three years.
* Hall, Kamisar, LaFave, Israel, eds., Minn.: West Publishing Co., 1969) pp.
Modern Oriminal Procedure (St. Paul, 757-758. 1969.
184
251 Ch. 5 THE PROSECUTING ATTORNEY
(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
ROLE OF THE ATTORNEY Ch.5
the defendant and his attorney have the right to putthe 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, itistheprivateattorneywhocan, butdoes not, refusethecase
who may sufferfrom a community reactionagainst one who defends
the guilty.
Howdifferentisthisfromthecaseofa physicianwhocuressome-
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-issimply none of the
physician's business. Whydo wenotsimplysaythesamethingabout
the guilty client and the defense attorney? Is it possible that the
reason for the difference in the way we look atthe two roles is that
we canthink of ourselves as needinga physician but not as needing
a defenseattorney?
Inanyeventthe important issue is not whethera defense attor-
ney can defend a particular unpopularclient, butratherwhatthe de-
fense attorney can legally and ethically do for his client.
2. THE ETHICS OF THE DEFENSE
a. CANON 15. HOW FAR A LAWYER MAY GO IN SUPPORT-
ING A CLIENT'S CAUSE*
Nothing operates more certainly to create or to foster popular
prejudiceagainstlawyers as a class, andto deprive theprofessionof
that full measure of public esteem and confidence which belongs to
the proper discharge of its duties thand.oes the false claim, oftenset
up by the unscrupulous in defense of questionable transactions, that
itis thedutyofthelawyertodo whatevermayenablehimtosucceed
in winninghis client's cause.
Itisimproperfor a lawyertoassertinargumenthispersonalbe-
lief in his client's innocence or in the justice ofhis cause.
The lawyer owes "entire devotion to the interest of the client,
warm zeal in the maintenance and defense of his rights and the ex-
ertion ofhis utmost learningand ability," totheendthatnothingbe
taken or be withheld from him, save by the rules of law, legally ap-
plied. No fearof judicial disfavor or public unpopularityshould re-
strainhimfrom thefull dischargeofhisd.uty. Inthejudicialforum
the client is entitled to the benefit ofanyand every remedy and de-
fensethatisauthorizedbythelawoftheland, andhemayexpecthis
* American Bar Association, Canons of
Professional Ethics (Chicago, Ameri-
can Bar Association, 1968), Canon 15.
John Kaplan, Criminal Justice Introductory Cases
and Materials, Foundation Press, 1979
186
The Prosecution Function

PART I. GENERAL STANDARDS
Standard 3-1.1 The Function of the Standards
Standard 3-1.2 The Function of the Prosecutor
Standard 3-1.3 Conflicts of Interest
Standard 3-1.4 Public Statements
Standard 3-1.5 Duty to Respond to Misconduct

PART II. ORGANIZATION OF THE PROSECUTION FUNCTION
Standard 3-2.1 Prosecution Authority to be Vested in a Public Official
Standard 3-2.2 Interrelationship of Prosecution Offices Within a State
Standard 3-2.3 Assuring High Standards of Professional Skill
Standard 3-2.4 Special Assistants, Investigative Resources, Experts
Standard 3-2.5 Prosecutor's Handbook; Policy Guidelines and Procedures
Standard 3-2.6 Training Programs
Standard 3-2.7 Relations With Police
Standard 3-2.8 Relations With the Courts and Bar
Standard 3-2.9 Prompt Disposition of Criminal Charges
Standard 3-2.10 Supercession and Substitution of Prosecutor
Standard 3-2.11 Literary or Media Agreements

PART III. INVESTIGATION FOR PROSECUTION DECISION
Standard 3-3.1 Investigative Function of Prosecutor
Standard 3-3.2 Relations With Victims and Prospective Witnesses
Standard 3-3.3 Relations With Expert Witnesses
Standard 3-3.4 Decision to Charge
Standard 3-3.5 Relations With Grand Jury
Standard 3-3.6 Quality and Scope of Evidence Before Grand Jury
Standard 3-3.7 Quality and Scope of Evidence for Information
Standard 3-3.8 Discretion as to Noncriminal Disposition
Standard 3-3.9 Discretion in the Charging Decision
Standard 3-3.10 Role in First Appearance and Preliminary Hearing
Standard 3-3.11 Disclosure of Evidence by Prosecutor

PART IV. PLEA DISCUSSIONS
Standard 3-4.1Availability for Plea Discussions
Standard 3-4.2Fulfillment of Plea Discussions
Standard 3-4.3Record of Reasons for Nolle Prosequi Disposition

PART V. THE TRIAL
Standard 3-5.1 Calendar Control
Standard 3-5.2 Courtroom Professionalism
Standard 3-5.3 Selection of Jurors
Standard 3-5.4 Relations With Jury
187
Standard 3-5.5 Opening Statement
Standard 3-5.6 Presentation of Evidence
Standard 3-5.7 Examination of Witnesses
Standard 3-5.8 Argument to the Jury
Standard 3-5.9 Facts Outside the Record
Standard 3-5.10 Comments by Prosecutor After Verdict

PART VI. SENTENCING
Standard 3-6.10 Role in Sentencing
Standard 3-6.20 Information Relevant to Sentencing

http://www.abanet.org/crimjust/standards/pfunc_toc.html

Prosecution Function
PART I.
GENERAL 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
(a) A prosecutor should avoid a conflict of interest with respect to his or her official
duties.
(b) A prosecutor should not represent a defendant in criminal proceedings in a
jurisdiction where he or she is also employed as a prosecutor.
(c) A prosecutor should not, except as law may otherwise expressly permit, participate
in a matter in which he or she participated personally and substantially while in private
practice or nongovernmental employment unless under applicable law no one is, or by
lawful delegation may be, authorized to act in the prosecutor's stead in the matter.
(d) A prosecutor who has formerly represented a client in a matter in private practice
should not thereafter use information obtained from that representation to the
disadvantage of the former client unless the rules of attorney-client confidentiality do not
apply or the information has become generally known.
(e) A prosecutor should not, except as law may otherwise expressly permit, negotiate
for private employment with any person who is involved as an accused or as an attorney
or agent for an accused in a matter in which the prosecutor is participating personally and
substantially.
(f) A prosecutor 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.
(g) A prosecutor who is related to another lawyer as parent, child, sibling, or spouse
should not participate in the prosecution of a person who the prosecutor knows is
represented by the other lawyer. Nor should a prosecutor who has a significant personal
or financial relationship with another lawyer participate in the prosecution of a person
who the prosecutor knows is represented by the other lawyer, unless the prosecutor's
supervisor, if any, is informed and approves or unless there is no other prosecutor
authorized to act in the prosecutor's stead.
(h) A prosecutor should not recommend the services of particular defense counsel to
accused persons or witnesses unless requested by the accused person or witness to make
such a recommendation, and should not make a referral that is likely to create a conflict
of interest. Nor should a prosecutor comment upon the reputation or abilities of defense
counsel to an accused person or witness who is seeking or may seek such counsel's
services unless requested by such person.
(a) A prosecutor 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 the prosecutor knows or reasonably should know that it will have a
substantial likelihood of prejudicing a criminal proceeding.
(b) A prosecutor should exercise reasonable care to prevent investigators, law
enforcement personnel, employees, or other persons assisting or associated with the
prosecutor from making an extrajudicial statement that the prosecutor would be
prohibited from making under this Standard.
189
Standard 3-1.5 Duty to Respond to Misconduct
(a) Where a prosecutor knows that another person associated with the prosecutor's
office is engaged in action, intends to act or refuses to act in a manner that is a violation
of a legal obligation to the prosecutor's office or a violation of law, the prosecutor should
follow the policies of the prosecutor's office concerning such matters. If such policies are
unavailing or do not exist, the prosecutor should ask the person to reconsider the action or
inaction which is at issue if such a request is aptly timed to prevent such misconduct and
is otherwise feasible. If such a request for reconsideration is unavailing, inapt or
otherwise not feasible or if the seriousness of the matter so requires, the prosecutor
should refer the matter to higher authority in the prosecutor's office, including, if
warranted by the seriousness of the matter, referral to the chief prosecutor.
(b) If, despite the prosecutor's efforts in accordance with section
(a), the chief prosecutor insists upon action, or a refusal to act, that is clearly a violation
of law, the prosecutor may take further remedial action, including revealing the
information necessary to remedy this violation to other appropriate government officials
not in the prosecutor's office.

PART II.
ORGANIZATION OF THE PROSECUTION FUNCTION
Standard 3-2.1 Prosecution Authority to be Vested in a Public Official
The prosecution function should be performed by a public prosecutor who is a lawyer
subject to the standards of professional conduct and discipline.
Standard 3-2.2 Interrelationship of Prosecution Offices Within a State
(a) Local authority and responsibility for prosecution is properly vested in a district,
county, or city attorney. Wherever possible, a unit of prosecution should be designed on
the basis of population, caseload, and other relevant factors sufficient to warrant at least
one full-time prosecutor and the supporting staff necessary to effective prosecution.
(b) In some states, conditions such as geographical area and population may make it
appropriate to create a statewide system of prosecution in which the state attorney general
is the chief prosecutor and the local prosecutors are deputies.
(c) In all states, there should be coordination of the prosecution policies of local
prosecution offices to improve the administration of justice and assure the maximum
practicable uniformity in the enforcement of the criminal law throughout the state. A state
association of prosecutors should be established in each state.
(d) To the extent needed, a central pool of supporting resources and personnel,
including laboratories, investigators, accountants, special counsel, and other experts,
should be maintained by the state government and should be available to assist all local
prosecutors.
190
Standard 3-2.3 Assuring High Standards of Professional Skill
(a) The function of public prosecution requires highly developed professional skills.
This objective can best be achieved by promoting continuity of service and broad
experience in all phases of the prosecution function.
(b) Wherever feasible, he offices of chief prosecutor and staff should be full-time
occupations.
(c) Professional competence should be the basis for selection for prosecutorial office.
Prosecutors should select their personnel without regard to partisan political influence.
(d) Special efforts should be made to recruit qualified women and members of minority
groups for prosecutorial office.
(e) In order to achieve the objective of professionalism and to encourage competent
lawyers to accept such offices, compensation for prosecutors and their staffs should be
commensurate with the high responsibilities of the office and comparable to the
compensation of their peers in the private sector.
Standard 3-2.4 Special Assistants, Investigative Resources, Experts
(a) Funds should be provided to enable a prosecutor to appoint special assistants from
among the trial bar experienced in criminal cases, as needed for the prosecution of a
particular case or to assist generally.
(b) Funds should be provided to the prosecutor for the employment of a regular staff of
professional investigative personnel and other necessary supporting personnel, under the
prosecutor's direct control, to the extent warranted by the responsibilities and scope of the
office; the prosecutor should also be provided with funds for the employment of qualified
experts as needed for particular cases.
Standard 3-2.5 Prosecutor's Handbook; Policy Guidelines and Procedures
(a) Each prosecutor's office should develop a statement of (i) general policies to guide
the exercise of prosecutorial discretion and (ii) procedures of the office. The objectives of
these policies as to discretion and procedures should be to achieve a fair, efficient, and
effective enforcement of the criminal law.
(b) In the interest of continuity and clarity, such statement of policies and procedures
should be maintained in an office handbook. This handbook should be available to the
public, except for subject matters declared "confidential," when it is reasonably believed
that public access to their contents would adversely affect the prosecution function.
Standard 3-2.6 Training Programs
Training programs should be established within the prosecutor's office for new
personnel and for continuing education of the staff. Continuing education programs for
prosecutors should be substantially expanded and public funds should be provided to
enable prosecutors to attend such programs.
191
Standard 3-2.7 Relations With Police
(a) The prosecutor should provide legal advice to the police concerning police functions
and duties in criminal matters.
(b) The prosecutor should cooperate with police in providing the services of the
prosecutor's staff to aid in training police in the performance of their function in
accordance with law.
Standard 3-2.8 Relations With the Courts and Bar
(a) A prosecutor should not intentionally misrepresent matters of fact or law to the
court.
(b) A prosecutor's duties necessarily involve frequent and regular official contacts with
the judge or judges of the prosecutor's jurisdiction. In such contacts the prosecutor should
carefully strive to preserve the appearance as well as the reality of the correct relationship
which professional traditions, ethical codes, and applicable law require between
advocates and judges.
(c) A prosecutor 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.
(d) A prosecutor should not fail to disclose to the tribunal legal authority in the
controlling jurisdiction known to the prosecutor to be directly adverse to the prosecutor's
position and not disclosed by defense counsel.
(e) A prosecutor should strive to develop good working relationships with defense
counsel in order to facilitate the resolution of ethical problems. In particular, a prosecutor
should assure defense counsel that if counsel finds it necessary to deliver physical items
which may be relevant to a pending case or investigation to the prosecutor the prosecutor
will not offer the fact of such delivery by defense counsel as evidence before a jury for
purposes of establishing defense counsel's client's culpability. However, nothing in this
Standard shall prevent a prosecutor from offering evidence of the fact of such delivery in
a subsequent proceeding for the purpose of proving a crime or fraud in the delivery of the
evidence.
Standard 3-2.9 Prompt Disposition of Criminal Charges
(a) A prosecutor should avoid unnecessary delay in the disposition of cases. A
prosecutor should not fail to act with reasonable diligence and promptness in prosecuting
an accused.
(b) A prosecutor should not intentionally use procedural devices for delay for which
there is no legitimate basis.
(c) The prosecution function should be so organized and supported with staff and
facilities as to enable it to dispose of all criminal charges promptly. The prosecutor
should be punctual in attendance in court and in the submission of all motions, briefs, and
other papers. The prosecutor should emphasize to all witnesses the importance of
punctuality in attendance in court.
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
(a) A prosecutor who engages an expert for an opinion should respect the independence
of the expert and should not seek to dictate the formation of the expert's opinion on the
subject. To the extent necessary, he prosecutor should explain to the expert his or her role
in the trial as an impartial expert called to aid the fact finders and the manner in which the
examination of witnesses is conducted.
(b) A prosecutor should not pay an excessive fee for the purpose of influencing the
expert's testimony or to fix the amount of the fee contingent upon the testimony the
expert will give or the result in the case.
Standard 3-3.4 Decision to Charge
(a) The decision to institute criminal proceedings should be initially and primarily the
responsibility of the prosecutor.
(b) Prosecutors should take reasonable care to ensure that investigators working at their
direction or under their authority are adequately trained in the standards governing the
issuance of arrest and search warrants and should inform investigators that they should
seek the approval of a prosecutor in close or difficult cases.
(c) The prosecutor should establish standards and procedures for evaluating complaints
to determine whether criminal proceedings should be instituted.
(d) Where the law permits a citizen to complain directly to a judicial officer or the
grand jury, the citizen complainant should be required to present the complaint for prior
approval to the prosecutor, and the prosecutor's action or recommendation thereon should
be communicated to the judicial officer or grand jury.
Standard 3-3.5 Relations with Grand Jury
(a) Where the prosecutor is authorized to act as legal advisor to the grand jury, the
prosecutor may appropriately explain the law and express an opinion on the legal
significance of the evidence but should give due deference to its status as an independent
legal body.
(b) The prosecutor should not make statements or arguments in an effort to influence
grand jury action in a manner which would be impermissible at trial before a petit jury.
(c) The prosecutor's communications and presentations to the grand jury should be on
the record.
Standard 3-3.6 Quality and Scope of Evidence Before Grand Jury
(a) A prosecutor should only make statements or arguments to the grand jury and only
present evidence to the grand jury which the prosecutor believes is appropriate or
authorized under law for presentation to the grand jury. In appropriate cases, the
prosecutor may present witnesses to summarize admissible evidence available to the
prosecutor which the prosecutor believes he or she will be able to present at trial. The
prosecutor should also inform the grand jurors that they have the right to hear any
available witnesses, including eyewitnesses.
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.
(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.
(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.
(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.
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.
(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
(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) The prosecutor's belief that the witness is telling the truth does not preclude cross-
examination, but may affect the method and scope of cross-examination. A prosecutor
should not use the power of cross-examination to discredit or undermine a witness if the
prosecutor knows the witness is testifying truthfully.
(c) A prosecutor should not call a witness in the presence of the jury who the prosecutor
knows will claim a valid privilege not to testify.
(d) A prosecutor should not ask a question which implies the existence of a factual
predicate for which a good faith belief is lacking.
(a) In closing argument to the jury, the prosecutor may argue all reasonable inferences
from evidence in the record. The prosecutor should not intentionally misstate the
evidence or mislead the jury as to the inferences it may draw.
(b) The prosecutor should not express his or her personal belief or opinion as to the
truth or falsity of any testimony or evidence or the guilt of the defendant.
(c) The prosecutor should not make arguments calculated to appeal to the prejudices of
the jury.
(d) The prosecutor should refrain from argument which would divert the jury from its
duty to decide the case on the evidence.
The prosecutor 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 may take
judicial notice.
Standard 3-5.10 Comments by Prosecutor After Verdict
The prosecutor should not make public comments critical of a verdict, whether
rendered by judge or jury.

201
16
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.

202


Lesson 6.1: Defense Counsel Role and Standards
Kerper Defense Attorney
Criminal Justice Kaplan Defense Ethics
ABA Standards Defense Function

qualifications, selection and responsibilities of a defense
lawyer in the United States.

203
Writing Assignment:
Select three ethical obligations of a prosecutor or defense
lawyer and explain why they are important to a criminal
justice system. Explain what consequences may follow
breach of these duties.
Due next week at Lesson 6.2
436 TheCriminalJusticeProcess
takingupa considerableamountofeverybody'stime.Whiletheprosecutorhasa
righttoinsiston litigatingeveryissue, he is likelytorespond affirmativelytoa
judge'ssuggestionthatheconcedethepointandgoontomoreimportantmatters.
Judges, prosecutors, anddefensecounsel, all beinglawyers, tendtohavea
better appreciation of each other's role than do the other professionals in the
process. Thepolice andprosecutor, becauseoftheirconstantcontact,gradually
shoulddevelopafairunderstandingof eachother'srole.Thegreatestcommunica-
tiongapinvolvingtheprosecutorliesbetweentheprosecutorandthecorrections
official.Prosecutorstypicallyconcernthemselvesverylittlewiththecorrectional
process, and usually have little knowledge about it. Their chiefcontact with a
correctional institution is withthejail-theyinterviewwitnesses andtalk with
accused persons being held in thejail. Theircontactwithprobationand parole
officersiscursory;theyrecommendprobationbutsometimesmayknowverylittle
aboutthesupervisoryfunctions performedbyprobationofficers. Manyprosecu-
torslacka fullunderstandingofthecaseworkmethodusedinprobation,parole,
andsocialcasework,andsomeprosecutorsareactivelyantagonistictoitsusewith
theoffender. Inrecentyears, law schools havedeveloped courses on corrections
andprosecutorshaveparticipatedmoreheavilyintheprobationrevocationproc-
ess.Theresulthasbeenincreasedawarenessoftheproblemsfacedincorrections,
althoughtheprosecutors,likethepolice,oftenapproachtheareafromaconsider-
ablydifferentperspectivethanmanycorrectionsofficials.
Selection. Wherethedefendanthasthemeans,hesimplyhiresalawyer,usually
onrecommendationofa friend oranotherlawyerwho does nothandle criminal
work.Wherethedefendantis indigent,counselwillbeappointedthroughoneof
thethreemethodsthatwe discussedinChapterEleven.
2o
As we notedthere,the
growingtrendacrossthecountryis towardsuseofeitherthe"mixed"or"public
defender"methodsof appointment,asopposedtothetraditionalassignedcounsel
method. This trend has produced a dramatic increase in the number ofpublic
defenderagencies.As of1974,therewereapproximately500suchagencies.
21
The
defender agencies usually are partofthestate or countygovernment, although
there are some local defender offices supported by municipalities. About one-
thirdof thestateshavestatewidepublicdefenderagencies.Thosestatewideagen-
cies thathandle trials ordinarily have branch offices throughoutthestate, and
thoseofficesoftenhaveconsiderableindependence.
22
Whilethelocalpublicdefender'sofficeislikelytobesomewhatsmallerthan
theprosecutor'soffice,itcan,nevertheless,haveafairlylargestaff.TheDefender
AssociationofPhiladelphia,forexample,hasover100attorneys,24investigators,
20. Seep.279supra.
21. SourcebookofCriminalJusticeStatistics-1976,note1, p.1supra,atp. 38.Theorganizationof
various defenderagencies is described in the reportofthe National StudyCommission on De-
fenseServices,GuidelinesForLegalDefenseSystemsintheUnitedStates,Chicago,Ill.:Nation-
alLegalAidandDefenderAssociation,1976.
22. Somestatewideagenciesserveonlyonappeals,withcountydefenderagenciesorcourtappointed
privatecounselprovidingrepresentationattrial.
Hazel B. Kerper, Introduction to the Criminal
Justice System, Second Edition, West Publishing
Company, 1979 ISBN 0-8299-0276-7
204
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
workotherthanadmissiontothebar.Mostdefenselawyersenterthefieldimme-
diatelyuponreceivingtheirlicensetopractice.Theyhavethelegalskillslearned
in lawschools, butmustacquireotherskills"onthejob."Privatepractitioners
oftensufferfrom thedisadvantage thattheyare notassociatedwith a groupof
more experienced lawyers. Indefender offices, as inprosecutoroffices, thenew
lawyercanlearnfromhisseniors.Healsocanbemovedalongfromthelessserious
to the more serious cases as he gains experience. Training programs for new
defenders, similarto thoseprovidedfor new prosecutors, are available in many
areas. Continuingeducation programs also are available toall criminaldefense
counsel.TheNationalCollegeofCriminalDefenseLawyersandPublicDefenders
servesasacounterpartinthisareatotheNationalCollegeofDistrictAttorneys.
The Role Of Defense Counsel. Thedefensecounsel'srole,simplyput,isthatof
anadvocate for his client. As theCodeofProfessionalResponsibilitynotes, his
obligationistorepresenthisclient"zealously"withinthe"boundsofthelaw."23
Thedefensecounsel'sfunctionistoemployalllegalmeanstosecuretheacquittal
ofhis client, and, ifthatis notpossible, to make everyeffortto have his client
convictedofsomelesseroffenseortohavethecourtimposethelightestpossible
sentence.Thedefenseattorneyisnotapolicemanoraprosecutor,andhecannot
be expected to assist these professionals (except where doing so will help his
client).Heis,ofcourse,anofficerofthecourt,asisanylawyer.Hemustabideby
therulesofprocedureandtheethicalstandardsofhisprofession.Thus,likeany
attorney,hecannotknowinglyuseperjuredtestimonyorfalseevidenceoradvance
a legal pointthatcannotbesupported bygood faith argument. Neithercan he
counselaclientinthecommissionofafuturecrime.Ontheotherhand,hehasno
obligationtorevealhisclient'spastcrimes.Indeed,withfewexceptions,theCode
ofProfessionalResponsibilityprohibitsa lawyerfromrevealing,withoutthecli-
ent'sauthorization,confidentialinformationreceivedfromtheclient.
24
A questionfrequently asked bynon-lawyersis, "Howcana lawyeringood
conscience defend a guilty person at a trial"? Different defense lawyers offer
different answers to this question, butthey all agree that they can justifiably
contesttheguiltofa clienteven whentheclienthastoldthemthatheis guilty.
Somearguethatitis inappropriatefor a lawyerevertoassumethathisclientis
guilty.Thefactthathisclientappearstobeguilty,indeedthathehasconfessedto
thecrime, does notnecessarilymean thathe is guilty. Thedetermination as to
guiltcanonlybemadebythejudgeorjury.Otherlawyersarguethatitdoesnot
matterwhethertheclientis guilty. All defendants,guiltyornot,havea rightto
insistthatthestateproveitscase.Thefunctionof defensecounsel,theynote,isto
protectthatrightbygoingtotrialiftheclientdesirestodoso. Stillotherlawyers
stressthatthedefenseofaguiltydefendantattrialshouldnotbeviewedasanact
simply benefiting the defendant, but as an act benefiting the criminal justice
23. SeeA.B.A.,Code of Professional Responsibility, note3supra, Cannon7andEthicalConsidera-
tion7-19.
24. A.B.A., Code of Professional Responsibility, note3supra, atDisciplinaryRule4-101. Amajor
exceptionpermittingdisclosurewithoutclientapproval,referstoinformationneededbyauthori-
tiestopreventafuturecrime.
206
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 a w ~
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
A.B.A. Standards. The American Bar Association's Standards Relating to the
Defense Function
27
sets forth basic guidelines for a defense counsel in fulfilling his
obligation to his client. While recognizing counsel's duty to zealously represent
his client within the bounds of the law, the Standards admonish against excesses.
Defense counsel is to avoid unnecessary delay, to refrain from misrepresentations
oflaw and fact, and to avoid personal publicity connected with the case. Fees must
be set on the basis of the time and effort required by counsel, the responsibility
assumed, the novelty and difficulty of the question involved, the gravity of the
charge, the experience, reputation and ability of the lawyer, and the capacity of
the client to pay a fee. The lawyer may not obtain literary rights from the accused
to publish books, plays, articles, interviews, or pictures relating to the case.
The defense lawyer is required to conduct a prompt investigation of the
circumstances of the case relative to guilt and degree of penalty, to keep his client
informed of developments in the case, and to take prompt action to preserve all of
the legal rights of the accused. Certain decisions relating to the conduct of the case
are ultimately for the accused and others are ultimately for the defense counsel.
The decisions which are to be made by the accused, after full consultation with
counsel, are: (1) what plea to enter; (2) whether to waive jury trial; and (3) whether
to testify in his own behalf. The decision on what witnesses to call, whether and
25. A.B.A., Code of Professional Responsibility, note 3 supra, Ethical Consideration 7-19.
26. A.B.A., Code of Professional Responsibility, note 3 supra, Ethical Consideration 2-29.
27. See note 18 supra.
207
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
appreciatedbyhisclients,evenwhencounsel'sconductmayantagonizejudgeand
juryand actually result in a more severe sentence. Offenders take literallythe
ethicaladmonitiongiventoalawyertorepresenthisclient'sinterest"exclusiveof
allothers."Lawyersinterpretthistomean"exclusiveofallotherwhoseinterests
maybeadversetothoseoftheclient;"theoffenderinsiststhatitmeans"exclusive
ofallothers-period."Manyaninmatecomplainedinhishabeasapplicationthat
hislawyerwashandlingcasesforotherclientswhenheshouldhavebeendevoting
full time tohis case.Anattorneywhofraternizedwiththeprosecutororspokewell
ofthejudgewassuspectedbyhisclientofa "sell-out."Asubstantialnumberof
prisonersinsistedthattheywerevictimsofa "frame-up,"participatedinbythe
prosecutor,thejudge,andtheirowncoum;el. It was interestingtonotethatthe
inmatescomplainedasoftenoflawyerswhomtheyhadselectedandpaidasthey
didofappointedcounsel. 28 Otherstudiessuggest,however,thatdefendantswho
hadprivatelyretainedcounseltendtoratetheircounselsomewhatmorehighly.29
Defendantsarenaturallysuspiciousoflawyerswhodon'tcostthemanythingand
areselectedforthembythecourt.
The Defense Attorney in Relation to Other Professionals in the Criminal
Justice System. Thedefenseattorneyoftenfindshimselfinconflictwiththe
police,theprosecutor,andthecorrectionsofficer.As anadvocateforthedefend-
ant,hemustputtoonesideanysympathieshemayhavefortheproblemsfacedby
theotherprofessionalsin theperformanceoftheirroles. Hecannotignorelegal
objections thatwill assist his client's case simply because those objections are
basedupon"technicalities."Neithercanheignorepoliceviolationsof hisclient's
rights because these violations are "understandable" in light ofthe pressures
placed upon the police. He must challenge the probation officer's request for
probationrevocationeventhoughheknowsthattheofficeralsohasconcernfor
thebestinterestsoftheprobationer.Insum,muchof the"conflict"istheinevita-
bleproductofthedifferentfunctionsofthedefenseattorneyandtheotherpar-
ticipants in the process. The prosecutor usually will understand that defense
counsel'sobligationdiffersfromhis,andhewillnotthinklessofdefensecounsel
for his honesteffortstorepresenthis client. Thepolice andcorrectionsofficers
tendtobeless appreciative oftheadversarysystem,andtheythereforetendto
viewthedefensecounselmoreharshly.Hereagain,abroaderunderstandingof the
totalsystem byall oftheprofessionals involved would be helpful in improving
theirworkingrelationships.
THEJUDGE
Functions of the Judge. We already have examined, in Chapter Three, the
structureofthecourtsystemandtheroleofthecourtsindeterminingandapply-
ingthelaw.Variousrulingsthatmustbemadebyjudgeshavebeennotedthrough-
outPartThree. Accordingly, we need onlybriefly 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, (UnpublishedMaster'sThesis,FloridaStateUniversi-
ty,December,1965.MajorProfessor,Dr.VernonFox);H.Kerper. "On 'Writs' and 'Resocializa-
tion'" AmericanJournalofCorrection(November/December,1967).
29. SeeJ. Casper, Criminal Courts: The Defendant's Perspective, Washington, D.C.: Government
PrintingOffice,1978,p. 30-37.
209
276
ROLE OF THE ATTORNEY Ch.5
the defendant and his attorney have the right to putthe 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, itistheprivateattorneywhocan, butdoes not, refusethecase
who may sufferfrom a community reactionagainst one who defends
the guilty.
Howdifferentisthisfromthecaseofa physicianwhocuressome-
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-issimply none of the
physician's business. Whydo wenotsimplysaythesamethingabout
the guilty client and the defense attorney? Is it possible that the
reason for the difference in the way we look atthe two roles is that
we canthink of ourselves as needinga physician but not as needing
a defenseattorney?
Inanyeventthe important issue is not whethera defense attor-
ney can defend a particular unpopularclient, butratherwhatthe de-
fense attorney can legally and ethically do for his client.
2. THE ETHICS OF THE DEFENSE
a. CANON 15. HOW FAR A LAWYER MAY GO IN SUPPORT-
ING A CLIENT'S CAUSE*
Nothing operates more certainly to create or to foster popular
prejudiceagainstlawyers as a class, andto deprive theprofessionof
that full measure of public esteem and confidence which belongs to
the proper discharge of its duties thand.oes the false claim, oftenset
up by the unscrupulous in defense of questionable transactions, that
itis thedutyofthelawyertodo whatevermayenablehimtosucceed
in winninghis client's cause.
Itisimproperfor a lawyertoassertinargumenthispersonalbe-
lief in his client's innocence or in the justice ofhis cause.
The lawyer owes "entire devotion to the interest of the client,
warm zeal in the maintenance and defense of his rights and the ex-
ertion ofhis utmost learningand ability," totheendthatnothingbe
taken or be withheld from him, save by the rules of law, legally ap-
plied. No fearof judicial disfavor or public unpopularityshould re-
strainhimfrom thefull dischargeofhisd.uty. Inthejudicialforum
the client is entitled to the benefit ofanyand every remedy and de-
fensethatisauthorizedbythelawoftheland, andhemayexpecthis
* American Bar Association, Canons of
Professional Ethics (Chicago, Ameri-
can Bar Association, 1968), Canon 15.
John Kaplan, Criminal Justice Introductory Cases
and Materials, Foundation Press, 1979
John Kaplan, Criminal Justice: Introductory Cases and Materials Foundation Press 1978
Copyright 1973 and 1978 The Foundation Press All Rights Reserved
210
277
1
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Ch.5 THE DEFENSE ATTORNEY
lawyer to assert every such remedy or defense. But it is steadfastly
to be borne in mind that the great trust of the lawyer is to be per-
formed within and not without the bounds of law. The office of at-
torney does not permit, much less does it demand of him for any client,
violation of law or any manner of fraud or chicane. He must obey
his own conscience and not that of his client.
b. PROSECUTORIAL ETHICS VERSUS DEFENSE
COUNSEL ETHICS *
Defense counsel and prosecutor have significantly different roles
and functions, and their ethical difficulties vary accord-
ingly. Defense counsel has obligations deriving from the importance,
to the adversary system, of confidentiality between attorney and
client, the presumption of innocence and burden of proof, the con-
stitutional right to counsel, and the constitutional privilege against
self-incrimination. The prosecutor, who does not represent a private
client, is not affected by these considerations in the same way. For
example, the defense attorney is privileged to withhold evidence:
there is nothing unethical in keeping a guilty defendant off the stand,
and putting the government to its proof. The Constitution guarantees
nothing less than this. Obviously, however, it does not follow that the
prosecutor is also privileged to withhold or suppress material evidence,
or that there is something essentially unfair in this double standard.
Similarly, it is ethical for defense counsel to cross-examine a
prosecution witness to make him appear to be inaccurate or untruth-
ful, even when the defense attorney knows that the witness is testify-
ing accurately and truthfully. Although it appears to be inconsistent
with their general position that counsel should never mislead the court
in any way, [Chief Justice] Judge Warren E. Burger
agrees with this conclusion. He reach [es] this result on the reason-
ing that the defense is entitled to "put the government to its proof"
and to "test the truth of the prosecution's case," whereas I base the
same conclusion on the necessities of the obligation of confidentiality.
However, neither of these rationales would justify a prosecutor in ob-
taining a conviction by making a defense witness appear to be lying
when the prosecutor knows that the witness is testifying truthfully.
The defendant, who is presumed innocent, does not have a burden of
proof to be tested, nor does the prosecutor function under the burden
of an obligation of confidentiality in conducting himself at trial.
Also bearing upon the different obligations of defense counsel and
prosecutor are the relevant and important distinctions between the
government and the individual citizen who is prosecuted. One such
distinction is the paramountcy of the individual and the sanctity of
his personality in our society. Another is the awesome power of the
* Freedman, op. cit., p. 1030.
211
278
ROLE OF' THE ATTORNEY Ch.5
government, a power that the Founding Fathers had good reason to
circumscribe in the Bill of Rights and elsewhere in the Constitution.
A third difference is the majesty and dignity of our government.
Conduct that may be tolerable in individuals may be reprehensible
when done "under color of law" on behalf of the nation or a state.
These considerations must be given due regard in setting the stand-
ards of ethical conduct to be expected of the prosecutor as attorney
for the government. In addition, the prosecutor has enormous and
unique discretion in defining the particular crime, affecting the pun-
ishment, and even in deciding whether to prosecute at all. Thus, to
say that the prosecutor has special responsibilities in exercising his
discretion is simply to recognize that he is the attorney who has dis-
cretion to exercise.
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. THE LAWYER'S DUTY TO HIS CLIENT VERSUS
HIS DUTY TO THE COURT
(1) THE DUTY OF THE' ADVOCATE IN OTHER LEGAL SYSTEMS
(aJ Note Onl the Kosto"/) Case:
In 1949, Traicho Kostov, Former Vice Premier of Bulgaria was
tried in that country for espionage and treason. His lawyer, Lueben
Diukmejiev, began his defense by drawing a distinction between the
role of the defense lawyer in a socialist country as opposed to his role
in a Western "bourgeois" state. In a socialist state, he said, a lawyer
could not defend a criminal whom he knew was guilty, "merely by
scoring technical points" against the prosecution. As he stated "In
a Socialist state there is no division of duty between the judge, pros-
ecutor and defense counsel the defense must assist the
prosecution to find the objective truth in a case." There were several
other defense counsel all of whom agreed with Mr. Kostov and joined
in what seemed to be his apology for defending the case at all. They
pointed out that under the Bulgarian Constitution, every accused was
entitled to a defense.
The charges apparently involved a treasonous conspiracy with
Marshall Tito and what was considered to be the renegade Yugoslavian
212
279 Ch. 5
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.
(b) Cuban Defense Lawyers **
Cuban justice is not an adversary system. As the law professors
at the University of Havana explained, "the first job of a revolu-
tionary lawyer is not to argue that his client is innocent, but rather
to determine if his client is guilty and, if so, to seek the sanction which
will best rehabilitate him."
Questions
If this is the duty of the revolutionary defense lawyer, what does
the revolutionary prosecutor do? Under this view of the defense law-
yer's role, is he not simply a spy on the defendant?
* The trial of Kostov and its aftermath ** Jesse Berman, "The Cuban Popular
were reported in the New York Times Tribunals," Columbia Law Review, 60
of December 14, 1949, pp. 1 and 9, end (1969), 1341.
of April 4, 1956, p. 1.
213
The Defense Function

PART I. GENERAL STANDARDS
Standard 4-1.2 The Function of Defense Counsel
Standard 4-1.3 Delays; Punctuality; Workload
Standard 4-1.5 Advisory Councils on Professional Conduct
Standard 4-1.6 Trial Lawyer's Duty to Administration of Justice

PART II. ACCESS TO COUNSEL
Standard 4-2.1 Communication
Standard 4-2.2 Referral Service for Criminal Cases
Standard 4-2.3 Prohibited Referrals

PART III. LAWYER-CLIENT RELATIONSHIP
Standard 4-3.1 Establishment of Relationship
Standard 4-3.2 Interviewing the Client
Standard 4-3.3 Fees
Standard 4-3.4 Obtaining Literary or Media Rights from the Accused
Standard 4-3.6 Prompt Action to Protect the Accused
Standard 4-3.7 Advice and Service on Anticipated Unlawful Conduct
Standard 4-3.8 Duty to Keep Client Informed
Standard 4-3.9 Obligations of Hybrid and Standby Counsel

PART IV. INVESTIGATION AND PREPARATION
Standard 4-4.1 Duty to Investigate
Standard 4-4.2 Illegal Investigation
Standard 4-4.3 Relations With Prospective Witnesses
Standard 4-4.5 Compliance With Discovery Procedure
Standard 4-4.6 Physical Evidence

PART V. CONTROL AND DIRECTION OF LITIGATION
Standard 4-5.1 Advising the Accused
Standard 4-5.2 Control and Direction of the Case

PART VI. DISPOSITION WITHOUT TRIAL
Standard 4-6.1 Duty to Explore Disposition Without Trial
Standard 4-6.2 Plea Discussions

PART VII. TRIAL
214
Standard 4-7.9 Posttrial Motions

PART VIII. AFTER CONVICTION
Standard 4-8.1 Sentencing
Standard 4-8.2 Appeal
Standard 4-8.3 Counsel on Appeal
Standard 4-8.4 Conduct of Appeal
Standard 4-8.5 Post-conviction Remedies
Standard 4-8.6 Challenges to the Effectiveness of Counsel

http://www.abanet.org/crimjust/standards/dfunc_toc.html

DEFENSE FUNCTION
PART I.
GENERAL 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 defense counsel to determine the validity of a conviction. They
may or may not be relevant in such judicial evaluation, depending upon all the
circumstances.

Standard 4-1.2 The Function of Defense Counsel
(a) Counsel for the accused is an essential component of the administration of criminal
justice. A court properly constituted to hear a criminal case must be viewed as a tripartite
entity consisting of the judge (and jury, where appropriate), counsel for the prosecution,
and counsel for the accused.
(b) The basic duty defense counsel owes to the administration of justice and as an
officer of the court is to serve as the accused's counselor and advocate with courage and
devotion and to render effective, quality representation.
(c) Since the death penalty differs from other criminal penalties in its finality, defense
counsel in a capital case should respond to this difference by making extraordinary
efforts on behalf of the accused. Defense counsel should comply with the ABA
Guidelines for the Appointment and Performance of Counsel in Death Penalty Cases.
(d) Defense counsel should seek to reform and improve the administration of criminal
justice. When inadequacies or injustices in the substantive or procedural law come to
defense counsel's attention, he or she should stimulate efforts for remedial action.
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.

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

Standard 4-2.3 Prohibited Referrals
(a) Defense counsel should not give anything of value to a person for recommending
the lawyer's services.
(b) Defense counsel should not accept a referral from any source, including prosecutors,
law enforcement personnel, victims, bondsmen, or court personnel where the acceptance
of such a referral is likely to create a conflict of interest.

PART III.
LAWYER-CLIENT RELATIONSHIP

Standard 4-3.1 Establishment of Relationship
(a) Defense counsel should seek to establish a relationship of trust and confidence with
the accused and should discuss the objectives of the representation and whether defense
counsel will continue to represent the accused if there is an appeal. Defense counsel
should explain the necessity of full disclosure of all facts known to the client for an
effective defense, and defense counsel should explain the extent to which counsel's
obligation of confidentiality makes privileged the accused's disclosures.
(b) To ensure the privacy essential for confidential communication between defense
counsel and client, adequate facilities should be available for private discussions between
counsel and accused in jails, prisons, courthouses, and other places where accused
persons must confer with counsel.
(c) 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 client and defense counsel relating to legal
action arising out of charges or incarceration.

Standard 4-3.2 Interviewing the Client
(a) As soon as practicable, defense counsel should seek to determine all relevant facts
known to the accused. In so doing, defense counsel should probe for all legally relevant
information without seeking to influence the direction of the client's responses.
(b) Defense counsel should not instruct the client or intimate to the client in any way
that the client should not be candid in revealing facts so as to afford defense counsel free
rein to take action which would be precluded by counsel's knowing of such facts.

Standard 4-3.3 Fees
(a) Defense counsel should not enter into an agreement for, charge, or collect an illegal
or unreasonable fee.
(b) In determining the amount of the fee in a criminal case, it is proper to consider the
time and effort required, the responsibility assumed by counsel, the novelty and difficulty
of the questions involved, the skill requisite to proper representation, the likelihood that
other employment will be precluded, the fee customarily charged in the locality for
similar services, the gravity of the charge, the experience, reputation, and ability of
defense counsel, and the capacity of the client to pay the fee.
(c) Defense counsel should not imply that his or her compensation is for anything other
than professional services rendered by defense counsel or by others for defense counsel.
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.

(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
duty to investigate exists regardless of the accused's admissions or statements to defense
counsel of facts constituting guilt or the accused's stated desire to plead guilty.
(b) Defense counsel should not seek to acquire possession of physical evidence
personally or through use of an investigator where defense counsel's sole purpose is to
obstruct access to such evidence.

Standard 4-4.2 Illegal Investigation
Defense counsel should not knowingly use illegal means to obtain evidence or
information or to employ, instruct, or encourage others to do so.

Standard 4-4.3 Relations With Prospective Witnesses
(a) Defense counsel, in representing an accused, should not use means that have no
substantial purpose other than to embarrass, delay, or burden a third person, or use
methods of obtaining evidence that violate the legal rights of such a person.
(b) Defense counsel should not compensate a witness, other than an expert, for giving
testimony, but it is not improper to reimburse a witness for the reasonable expenses of
attendance upon court, including transportation and loss of income, attendance for
depositions pursuant to statute or court rule, or attendance for pretrial interviews,
provided there is no attempt to conceal the fact of reimbursement.
(c) It is not necessary for defense counsel or defense counsel's investigator, in
interviewing a prospective witness, to caution the witness concerning possible self-
incrimination and the need for counsel.
(d) Defense counsel should not discourage or obstruct communication between
prospective witnesses and the prosecutor. It is unprofessional conduct to advise any
person other than a client, or cause such person to be advised, to decline to give to the
prosecutor or defense counsel for codefendants information which such person has a right
to give.
(e) Unless defense counsel is prepared to forgo impeachment of a witness by counsel'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 such impeaching testimony, defense counsel should
avoid interviewing a prospective witness except in the presence of a third person.

(a) Defense counsel who engages an expert for an opinion should respect the
independence of the expert and should not seek to dictate the formation of the expert's
opinion on the subject. To the extent necessary, defense counsel should explain to the
expert his or her role in the trial as an impartial witness called to aid the fact finders and
the manner in which the examination of witnesses is conducted.
(b) Defense counsel should not pay an excessive fee for the purpose of influencing an
expert's testimony or fix the amount of the fee contingent upon the testimony an expert
will give or the result in the case.

Standard 4-4.5 Compliance With Discovery Procedure
Defense counsel should make a reasonably diligent effort to comply with a legally
proper discovery request.

222
Standard 4-4.6 Physical Evidence
(a) Defense counsel who receives a physical item under circumstances implicating a
client in criminal conduct should disclose the location of or should deliver that item tO
law enforcement authorities only: (1) if required by law or court order, or (2) as provided
in paragraph (d).
(b) Unless required to disclose, defense counsel should return the item to the source
from whom defense counsel received it, except as provided in paragraph (c) and (d). In
returning the item to the source, defense counsel should advise the source of the legal
consequences pertaining to possession or destruction of the item. Defense counsel should
also prepare a written record of these events for his or her file, but should not give the
source a copy of such record.
(c) Defense counsel may receive the item for a reasonable period of time during which
defense counsel: (1) intends to return it to the owner; (2) reasonably fears that return of
the item to the source will result in destruction of the item; (3) reasonably fears that
return of the item to the source will result in physical harm to anyone; (4) intends to test,
examine, inspect, or use the item in any way as part of defense counsel's representation of
the client; or (5) cannot return it to the source. If defense counsel tests or examines the
item, he or she should thereafter return it to the source unless there is reason to believe
that the evidence might be altered or destroyed or used to harm another or return is
otherwise impossible. If defense counsel retains the item, he or she should retain it in his
or her law office in a manner that does not impede the lawful ability of law enforcement
authorities to obtain the item.
(d) If the item received is contraband, i.e., an item possession of which is in and of
itself a crime such as narcotics, defense counsel may suggest that the client destroy it
where there is no pending case or investigation relating to this evidence and where such
destruction is clearly not in violation of any criminal statute. If such destruction is not
permitted by law or if in defense counsel's judgment he or she cannot retain the item,
whether or not it is contraband, in a way that does not pose an unreasonable risk of
physical harm to anyone, defense counsel should disclose the location of or should
deliver the item to law enforcement authorities.
(e) If defense counsel discloses the location of or delivers the item to law enforcement
authorities under paragraphs (a) or (d), or to a third party under paragraph (c)(1), he or
she should do so in the way best designed to protect the client's interests.

PART V.
CONTROL AND DIRECTION OF LITIGATION

Standard 4-5.1 Advising the Accused
(a) After informing himself or herself fully on the facts and the law, defense counsel
should advise the accused with complete candor concerning all aspects of the case,
including a candid estimate of the probable outcome.
(b) Defense counsel should not intentionally understate or overstate the risks, hazards,
or prospects of the case to exert undue influence on the accused's decision as to his or her
plea.
(c) Defense counsel should caution the client to avoid communication about the case
with witnesses, except with the approval of counsel, to avoid any contact with jurors or
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

(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.

(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.

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.

(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.

(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.

(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.

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 defendant-
appellant 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
16
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.

229

230


Lesson 6.2: Plea Negotiation
Kerper Flow Chart
Plea Bargaining Practice
History of Plea Bargains
ABA Standards Guilty Pleas

Lesson Objective: Students will be able to explain the role
of plea negotiations in the United States and in a criminal
justice system using lay persons as adjudicators.

231
200 An Overview of the Criminal Justice Process
The Sieve Effect-Disposition of 1,000 Felony Arrests
JuvenilesTransferred
300
CasesDropped

175
CasesDropped
20

-
DismissedonDefense
Objectionor
Prosecutor'sMotion
30
TrialAcquittals
f--
20
Probation
200
FelonyArrests
1,000
AdultArresteesConsidered
ForProsecution
700
i
ProsecutorialScreening
FelonyChargesApproved
450
PreliminaryHearingand
GrandJuryReview:Felony
CasesApproved
410
FelonyCasesPresentedAt
TrialLevel
410
TrialConvictions
40
FelonyConvictions
300
I--
-
ReducedtoMisdemeanors
75
ReducedtoMisdemeanors

-
20
GuiltyPlea
Felonies
260
GuiltyPlea
Misdemeanor
60
\
Misdemeanor
Dispositions
140convictions
and15dismissals
oracquittals
PrisonSentence
100
232
951 CHAPTER 22 ADJUDICATION OF GUILT BY PLEA
(iii) the defendant, by making public trial unnecessary, has
demonstrated genuine consideration for the victims of his or her
criminal activity, by desiring either to make restitution or to
prevent unseemly public scrutiny or embarrassment to them; or
(iv) the defendant has given or offered cooperation when such
cooperation has resulted or may result in the successful prosecu-
tion of other offenders engaged in equally serious or more serious
criminal conduct.
(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.
III ABA Standards for Criminal Justice, Standard 14-1.8 (1980). Is there a
significant difference between the two versions of the standard? If so,
which is the more desirable? Which is most "practical?" Which is most
consistent with the various constitutional rights involved? Is some other
approach better? Consider the position(s) of the Standards in evaluating
the following material.
1. PRACTICES AND CONTROVERSIES
N Reshape the Deal
9 TIlaU1 (1973).*
Plea. Throwing oneself on the mercy of the court is one
thing; arranging for charge and sentencing concession ahead of time is, or
may be, a more complex and even more controversial issue. When the term
"plea bargaining" is used, it rarely refers to simple mercy-of-the-court
situations. What is generally meant is a prearraignment "deal" between
the prosecution and the defense in which charges are dropped (in spite of
sufficient evidence) or where specific sentence promises are made in ex-
change for the defendant's willingness to plead guilty. There is ample
research today to indicate that plea negotiations are common, even routine,
in many-perhaps all-jurisdictions in the country.
* * *
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).
Frank W. Miller, Prosecution and Adjudication,
Fifth Edition, Foundation Press Copyright 2000
Frank W. Miller, Prosecution and Adjudication,
Fifth Edition, Foundation Press Copyright 2000
All Rights Reserved
233
952 PART 2 PROSECUTION AND ADJUDICATION
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 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 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 ADJUDICATION OF GUILT BY PLEA 953
I
tively) he would in effect face a five to fifteen-year sentence. Therefore he
may seek to have charges joined into a single accusation, or have some of
the counts dismissed if he is willing to plead to one or perhaps two.
Additionally, some offenders may be facing a habitual offender rap,
which is normally filed as a separate indictment or information. In ex-
change for pleading to the crime as charged he may avoid such "super-
charging" by the state. Then, too, some defendants are on parole or
probation for prior convictions and may negotiate for revocation of the old
sentence if the new charge is dismissed or sufficiently reduced.
There is even some "lateral" bargaining, primarily to modify the
conviction label without affecting sentence at all. Some defendants are
willing to plead guilty to serious crimes such as robbery to avoid conviction
of certain sex crimes like rape or sodomy because, while the potential
sentence may be longer, the label and its attendant consequences through-
out the life of the defendant are considered to be a better deal.
,
Permutations and combinations of plea agreements are almost endless
especially where multiple charges are involved, but the end result is always
the same: The defendant is allowed to plead guilty to lesser offenses or
receives a preadjudication sentence promise in exchange for his willingness
to give up his right to trial.
Why Plea Bargain? Motivations of the guilty defendant in plea bar-
gaining are readily discernible. He wishes to minimize both the sentence
which follows conviction and the label which attaches to it. He also usually
hopes to avoid publicity, not only for himself, but perhaps to protect his
family and friends from likely notoriety if he demands trial. Occasionally he
may wish to protect accomplices or confederates by taking the rap himself.
The bargaining motivations of the state are somewhat less readily
discernible, though in every instance the bargained plea is much more
efficient, cheaper and more certain than a contested case.
There are, however, other more subtle but no less important motiva-
tions on the part of the prosecutor and other state officials for engaging in
plea negotiation and in fact encouraging it. Some of these are self-seeking,
but others rest on a sincere attempt to individualize justice, to build equity
into a system that otherwise would be too harsh in certain types of cases.
One of the self-seeking motivations on the part of the state is to avoid
challenge not only of the amount of evidence but the ways it was obtained.
In spite of all the current controversy about illegal searches, wiretaps,
failure to give Miranda warnings and the like, such issues are really
paramount only in cases where pretrial motions are denied and which go to
trial.
A plea of guilty waives almost all defects in the state's case. The way
evidence was obtained is never tested. Whether the Miranda warning was
given or not is irrelevant in the case of the defendant who pleads guilty.
The insanity defense, or entrapment, and other important procedural and
substantive issues are mooted by the guilty plea.
In short, the guilty plea doesn't refine and hone the law, rather it
avoids sticky questions of police practices, prosecutorial trial skills and even
235
954 PART 2 PROSECUTION AND ADJUDICATION
the adequacy of legislative sentencing provisions. Furthermore, in most
cases the plea satisfies all interested parties. The defendant has his deal;
the prosecutor has an assured conviction (for a trial, no matter how
carefully prepared, is always an uncertainty given the vagaries of juries),
the victim is theoretically satisfied by conviction of the perpetrator and
correctional agencies receive an offender who has admitted his guilt. It is
always a difficult task for correctional authorities who receive an offender
who, though sentenced after a full jury trial, still protests his innocence.
How does rehabilitation begin?
At any rate, given the absence of challenge to police methods at one
end, and a confessed criminal received in prison at the other, there is more
than simple overcrowding behind the state's willingness, to accept the plea.
It is not only a quick and efficient way of processing defendants, it is a safe
way, for pleading defendants do not rock the boat.
There are, however, a number of other state considerations underlying
plea negotiation that are less self-seeking, and perhaps more consistent
with a general desire to build equity into our criminal justice system,
particularly in regard to sentencing.
It is common practice in many state legislatures (and in Congress as
well) for very severe laws to be passed in the heat of anger or at the height
of public indignation over what appears to be a serious crime wave. A few
years ago about half the states adopted very harsh "sex psychopath" laws.
In recent years a number of states have adopted severe sale-of-narcotic
laws, mandating life imprisonment or even death to "pushers."
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
955
CHAPTER 22 ADJUDICATION OF GUILT BY PLEA
number ofsuch situations where charge reduction is used to individualize
justice without really violating the legislative intent ofproceeding against
veryseriouscriminals.
In addition to the avoidance of inappropriately excessive mandatory
sentences,othermotivationswhichhavebeenidentifiedare:
reduction to avoid a criminal label which would imply inthe public
mind that the defendant was guilty ofconduct which is really not
consistentwiththeactionsthatform hiscriminalviolation.
* * *
wherethereis a crimeinvolvingcodefendantsofunequalculpability.
This is simply a recognition ofthe 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
personsinvolvedina crime.
An older, sophisticated armed robber who has as a look-out a young,
inexperienced, clean-recordaccomplicemaybeconvicted "onthenose"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
participationofthevictim inthecriminal activityitselfas, for example, in
certainforms ofconfidencegames.
where the therapeutic benefits ofalternative sentences can best be
achieved by charge reduction or by awarding probation when nor-
mallysuchwouldnotbethecase. Thisisindeeda mercy-of-the-court
situationbutonewhichignorestheotheradministrativeadvantages
ofnegotiation.
Thisis anextensionofsentencingdiscretion, withprimaryconcern to
placethedefendantinthebestcorrectionalsettingpossiblewhichmightbe
precluded if he's convicted on the nose. A mandatory prison term for a
good-risk young violator may be more damaging to the community inthe
longrunthanifheis givenabreakonhisfirstsentence.
reduction to support law enforcement efforts by rewarding infor-
mants, state witnesses and the like with lesser charges and sen-
tences. This is sometimes called "tradingthe little ones for the big
ones," butthe fact remainsthatunless differential courtleniency is
shownmajorcasescannotbedeveloped.
* * *
Theprevailingattitude toward the process (until recently atleast) on
the part ofmany, including some appellate courts, is that there is some-
thing dirty about plea bargaining, something corruptive or potentially
corruptive innegotiatingwithcriminals for punishmentless thancould be
levied ifthefull force ofthe lawwere used. While itis true thatfrom one
perspectivepleanegotiationdoes acttoavoid legislativemandate, and, like
the exercise ofall administrative discretion, has thepotential for corrup-
tion, another side of the coin is presented by equity decisions, by a
conscientiousattempttointroduce"justice"intoindividualcases.
237
PART 2 PROSECUTION AND ADJUDICATION 956
National Advisory Commission on Criminal Justice Standards
and Goals
Courts 47--48 (1973).
The Commission ... totally condemns plea bargaining as an institu-
tion. . .. [I]t has concluded that [plea bargaining] exacts unacceptable costs
from all concerned. Perhaps the major cost is that of reduced rationality in
the processing of criminal defendants. Whether a defendant is convicted
should depend upon the evidence available to convict him, and what
disposition is made of a convicted offender should depend upon what action
best serves rehabilitative and deterrent needs. The likelihood that these
factors will control conviction and disposition is minimized in the inevitable
"horsetrading" atmosphere of plea negotiation. Some defendants suffer
from the resulting irrationality.
But the public's interest in disposition of cases to serve its interest in
protection also suffers. . ..
Another major cost involved in plea negotiation is the burden it
inevitably places upon the exercise of the rights involved in trial-the
rights to jury trial, to confront and cross-examine witnesses, to have the
judge or jury convinced of guilt beyond a reasonable doubt, and similar
matters. It is inherent in plea negotiation that leniency will be given in
return for nonassertion of these rights.
* * *
[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?
238
r
I
CHAPTER 22 ADJUDICATION OF GUILT BY PLEA 957
2. Pressures on defense counsel to plea bargain. Alschuler, The Defense
Attorney's Role in Plea Bargaining, 84 Yale L.J. 1179 (1975), explores the factors
that may render lawyers susceptible to the pressures of the plea bargaining process.
Privately-retained lawyers, he notes, often set a single fee at the outset of the case
to cover the lawyer's work however the case may proceed. Once the lawyer has
collected this fee, the lawyer has a strong financial interest in e_arning that fee as
efficiently as possible. This can often be accomplished by pleading the client guilty.
"[T]he guilty-plea system," Alschuler concludes, "subjects even honest and consci-
entious lawyers to temptations that have no place in a rational system of adminis-
tering justice." Id., at 1199.
2. "VOLUNTARINESS" OF PLEAS AND RELATED MATTERS
a. BASIC VOLUNTARINESS CONSIDERATIONS
Challenges to the "voluntariness" (and thus the constitutional validi-
ty) of a guilty plea are not confined to situations in which the plea is the
culmination of plea bargaining. But the effect of plea bargaining upon the
validity of guilty pleas presents some of the most significant voluntariness
issues. In 1970, the Supreme Court undertook to deal with plea bargaining
and its effect upon guilty pleas when those pleas are challenged as violative
of federal constitutional standards. Three cases decided together in May of
1970, Brady v. United States, 397 U.S. 742, 90 S.Ct. 1463, 25 L.Ed.2d 747
(1970), McMann v. Richardson, 397 U.S. 759, 90 S.Ct. 1441, 25 L.Ed.2d 763
(1970), and Parker v. North Carolina, 397 U.S. 790, 90 S.Ct. 1458, 25
L.Ed.2d 785 (1970)-the Brady trilogy-resulted. These constitute the
foundation for federal constitutional doctrine in this area. Some aspects of
these cases, of course, have important ramifications for pleas that are not
related to plea agreements. For example, the issue of the impact of a
coerced confession or other inadmissible "evidence" upon a subsequent
plea of guilty, at issue in both McMann and Parker, can certainly arise in a
nonbargain situation.
Brady v. United States
Supreme Court of the United States, 1970.
397 U.s. 742, 90 S.Ct. 1463,25 L.Ed.2d 747.
MR. JUSTICE WHITE delivered the opinion of the Court.
In 1959, petitioner was charged with kidnaping in violation of 18
U.S.C.A. 120l(a). Since the indictment charged that the victim of the
kidnaping was not liberated unharmed, petitioner faced a maximum penal-
ty of death if the verdict of the jury should so recommend. Petitioner,
represented by competent counsel throughout, first elected to plead not
guilty. Apparently because the trial judge was unwilling to try the case
without a jury, petitioner made no serious attempt to reduce the possibility
of a death penalty by waiving a jury trial. Upon learning that his codefend-
ant, who had confessed to the authorities, would plead guilty and be
available to testify against him, petitioner changed his plea to guilty. His
plea was accepted after the trial judge twice questioned him as to the
voluntariness of his plea. Petitioner was sentenced to 50 years' imprison-
ment, later reduced to 30.
Frank W. Miller, Prosecution and
Adjudication, Foundation Press 2000
ISBN 1-56662-987-X
239
57 STNLR 1721 Page 1
57 Stan. L. Rev. 1721
(Cite as: 57 Stan. L. Rev. 1721)

Stanford Law Review
April, 2005

Book Review

*1721 UNCERTAIN BARGAINS: THE RISE OF PLEA BARGAINING IN AMERICA

Jennifer L. Mnookin [FNa1]

Copyright 2005 Board of Trustees of the Leland Stanford Junior University;

Jennifer L. Mnookin

Plea Bargaining's Triumph: A History of Plea Bargaining in America. By George Fisher. Stanford, CA:
Stanford University Press, 2003.

Introduction ........................................................... . 1721

I. Plea Bargaining's Triumph ............................................ 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
240

attention devoted to a handful of high-profile (and of course highly atypical) criminal cases like that of O.J.
Simpson or, most recently, Scott Peterson, the criminal trial has itself become a form of infotainment.
These media spectacles, however, while perhaps helping the criminal jury trial to retain a powerful hold
over our shared cultural imagination, bear almost no practical relation to the actual criminal processes
faced by most of those accused of a crime.

In actual practice, the vast majority of criminal defendants waive their right to a trial and instead agree
to a plea bargain. The proportion of criminal cases dispensed with through plea agreements is staggering.
As Robert Scott and Bill Stuntz wrote some years ago, plea bargaining "is not some adjunct to the criminal
justice system; it is the criminal justice system." [FN2] Nor is this rhetorical grandstanding; statistics bear
out such a stark pronouncement. In 2002, for example, if we look at adjudicated federal criminal cases,
3463 federal criminal defendants went to trial, while 72,110 entered pleas of guilty or nolo
contendere--meaning that less than 5% of federal criminal defendants went to trial. [FN3] Of the 95.4% of
those that chose a plea, the vast majority were no doubt the result of plea bargains--negotiated agreements
with the prosecutor about charge and punishment in which the defendant agreed to plead guilty in
exchange for a reduction in punishment. Plea bargains have become the norm and the trial an anomaly.

In Plea Bargaining's Triumph: A History of Plea Bargaining in America, George Fisher offers an
impressively researched and fascinating account of how plea bargaining was transformed over the course
of the nineteenth century from a "tiny beachhead" of little general importance to "the dominant force in
criminal procedure" (p. 230). Over the course of the century, plea bargaining came to be in the interest of
prosecutors and judges alike, and once the principal institutional players shared an interest in facilitating
deals, plea bargains quickly became both prevalent and entrenched. At the most basic level, Fisher's
argument is that when parties have both the incentive and power to bargain, they will, almost inevitably,
bargain.

At some risk of oversimplification, four central claims can be drawn from Fisher's rich and careful
narrative. First, Fisher's historical investigations show that prosecutors will tend to bargain whenever they
have the power to do so. Plea bargains, Fisher maintains, are "an almost primordial instinct of the *1723
prosecutorial soul" (p. 23). They provide a guaranteed conviction for the prosecutor, thereby enhancing
his "win" rate, and they are far less time-consuming and resource-intensive than a trial. In the early
nineteenth century, prosecutors often combined their responsibilities with other forms of lawyering, and
for such part-time prosecutors, quick guilty pleas provided more time for the rest of their (paying)
clientele. Even for full-time prosecutors, caseload pressures--or even just a taste for leisure or a preference
for anything apart from work--made guilty pleas a satisfying alternative to trial, so long as the defendant
could be persuaded to accept terms that still provided adequate punishment from the prosecutorial
perspective.

Second, Fisher emphasizes that to create incentives for defendants to plead guilty, prosecutors must
have the power to offer a carrot, a stick, or both. They need to be able credibly to establish that a plea will
result in a better outcome for the defendant than he could realistically expect from going to trial. The
prosecutor must therefore have a relatively high degree of control over, or at least clear knowledge of, the
likely sentence that would result from trial. Until judges became willing partners in plea bargaining in the
last quarter of the nineteenth century, indeterminate sentencing schemes or substantial judicial discretion
severely limited a prosecutor's plea bargaining power. The greater a judge's sentencing discretion, the
241

more uncertainty about what punishment would actually result from conviction; this greater uncertainty
made it difficult to "price" a conviction with any confidence. Thus bargains flourished only in limited
nooks and crannies of the system, until judges' civil caseload pressures shifted their attitudes about the
merits of negotiated pleas.

The third central argument is that once bargains took hold within our criminal justice system, only
those institutions and devices that proved compatible with plea bargaining have survived and flourished;
Fisher provides examples such as probation and the public defender. Even those procedural devices that
might have conceivably limited or slowed the advance of plea bargaining--the bench trial or the rule of
evidence restricting the use of prior convictions to impeach a testifying criminal defendant--developed in
ways that in fact stanched its advance only slightly, if at all.

Finally, though plea bargaining is sufficiently well entrenched at this point as to be practically
unstoppable, this does not mean that all approaches to plea bargaining are created equal. In the final
chapter of the book, Fisher's generally descriptive history takes a more normative turn, and he suggests
that plea bargaining will be fairest to defendants when there is an appropriate "balance of power" between
judge and prosecutor, so that each may operate as a check on unreasonably severe sentences even for those
defendants who plead. The Federal Sentencing Guidelines, in Fisher's view, have shifted this balance of
power too decisively to prosecutors as opposed to judges, and this new equilibrium may have contributed
to pushing the rate of plea bargains still higher in recent years.

******

I. Plea Bargaining's Triumph
Fisher's story begins in the early nineteenth century, in Massachusetts; his prodigious research focuses
on Middlesex County. In 1809, Samuel Dana, the first Middlesex County attorney, brought a four-count
indictment against Nathan Corey, charging him with being a "common seller of alcohol" and with three
counts of making unlicensed alcohol sales (p. 22). In exchange for a plea of no contest, Dana dropped
three of the four charges, and Corey paid a fine and court costs on the remaining charge. This was one of
the earliest examples Fisher found of a "clear plea bargain" (p. 22), an overt agreement between
prosecutor and defendant to reduce the penalty in exchange for a plea. In Fisher's close examination of the
middle-tier courts of Middlesex County, he found that between 1787 and 1849, clear bargains of this sort
were rare, but when they did occur, nearly two-thirds of them took place in liquor cases. Why? Liquor
cases in this period were unusual in that the penalty structure was carefully prescribed: anyone convicted
of being a "common seller of alcohol" had to pay a twenty-pound fine, and individual sales called for a
payment *1726 between two and six pounds, as well as whatever costs were assessed by the prosecutor (p.
24).

Unlike most other criminal matters, in which the judge had enormous sentencing discretion regarding
both the amount of fine and length of imprisonment, [FN8] these liquor statutes left judges with little
choice about what sentence to impose upon either a conviction or a guilty plea. It was precisely this lack of
judicial sentencing discretion that created for prosecutors the opportunity to deal. Because the charges
themselves determined the punishment, prosecutors could manipulate the charges to produce their desired
result. Specifically, a prosecutor could overcharge and then drop some of the most serious charges in
exchange for a guilty plea. Since the sentences were determinate, a defendant could know with precision
242

what punishment he risked if he were convicted at trial of the charges in their entirety and could also know
with confidence what punishment would be exacted if he agreed to the prosecutor's terms.

At first, such bargains were rare, even in liquor cases (p. 25). But as caseloads increased, Middlesex
prosecutors began to make greater use of the technique; by the 1830s, for example, Asahel Huntington
was using preprinted, multicount indictment forms for his liquor prosecutions, suggesting that the
multicount indictment and a subsequent nolle prosequi (nol pros) of several charges in exchange for a plea
were becoming increasingly routine. When the legislature discovered what Huntington was doing and
investigated him in 1844 for making such bargains--that is, for seemingly taking in less revenue and
holding fewer trials than it appeared that he should have--he gave the legislators a lesson in the merits of
his approach and successfully persuaded them that his tremendous workload made the arrangement both
necessary and appropriate. By 1849, the county attorney used multicount indictments in 89% of liquor
cases and, even using a conservative definition of what counts as a plea bargain that quite possibly
understates the actual proportion, Fisher finds that at least 35% of liquor cases that year were resolved
through clear plea bargains (p. 32).

However, in 1852, the Massachusetts legislature removed the prosecution's power to nol pros without
the judge's consent. This eliminated the prosecution's key leverage over defendants in liquor cases: the
power to charge and then drop some charges in exchange for a plea. Sure enough, the number of clear plea
bargains dropped dramatically, and the number of trials increased concomitantly. Between 1853 and 1910,
only 4 of the 602 liquor cases Fisher examined in Middlesex County resulted in the kind of clear plea
bargain that had been steadily growing in popularity until this legislative change (p. 52).

However, clever prosecutors, faced with ever-growing workloads, managed to find alternative
procedural devices to replace the nol pros. *1727 Essentially, late in the 1840s, prosecutors invented the
possibility of placing a case "on file," a device that amounted to an early form of "probation by another
name" (p. 84). For offenses of low to moderate seriousness, the prosecutor would, after a guilty plea had
been recorded, place the case "on file," meaning that it was indefinitely postponed and sentence was never
issued. It seems that in Massachusetts in this period, the judge could pass sentence only upon motion by
the prosecutor, so by placing the case on file, the prosecutor stayed the judge's sentencing power (pp.
74-75). But the prosecutor could move for a sentence at any time in the future, so defendants whose cases
were on file were, essentially, on probation. If they repeated their offense, or otherwise misbehaved, they
would be called to account and required to serve the sentence for their original misdeed. Moreover, friends
of the defendant had to become sureties who would forfeit a significant sum if the defendant failed to
appear before the court when called.

With the nol pros disallowed (unless judges gave their consent, which apparently they were generally
unwilling to do), the on-file system thrived as an alternative device by which prosecutors could give
defendants an incentive to opt out of trials. Tracing the details of this transmutation from charge
bargaining to probation is one of the most fascinating parts of Fisher's book, for he succeeds here in
showing precisely how prosecutors made the most of whatever devices were available to them to cut deals
when they could. Looking at the early history of plea bargaining leads to two general conclusions: First,
that bargaining is like a garden weed--malleable, organic, and exceedingly hard to eradicate. Even when
its roots are chopped down, it manages to grow back elsewhere, wherever and whenever the most basic
conditions for its survival are present. Second, at the same time, Fisher shows that the institutional design
243

does matter: hardy and resilient though bargaining may be, its particular shape responds directly to the
details of institutional arrangements.
*****

Until judges became willing participants in plea bargains, the only serious offenses for which Fisher
finds evidence of clear bargains are murder cases. Here, on occasion, prosecutors used their power to
partially nol pros-- they could reduce the charge from murder to manslaughter, and therefore reduce the
penalty from a mandatory death sentence to a prison term of zero to twenty years (p. 34). But the range of
punishment for manslaughter was both too broad and insufficiently severe for prosecutors to offer it
frequently as an alternative to a full-fledged murder charge. When the legislature created degrees of
murder in 1858, the frequency of charge bargaining rapidly increased. This development offered
prosecutors a new weapon in their plea bargaining arsenal: the power to reduce a first degree murder
charge, with its automatic death sentence upon conviction, to a second degree charge, which would result
in a mandatory sentence of life in prison. As with liquor prosecutions prior to *1728 1852, it was precisely
the lack of judicial discretion about penalty that provided prosecutors with the power to deal. While the
likelihood of a conviction might be uncertain and variable--depending on the evidence, the prosecutor's
talent, and so forth--the expected value of a conviction was a sure thing, so the defendant could understand
clearly the reduction in punishment that would result from accepting a bargain. Determinate sentences
thus constrained judges and thereby facilitated deals: if the defendant risked trial and was convicted, he
could not hope for the judge's leniency, and if he accepted the deal, he did not face the risk of a sentence
steeper than that bargained for because the charge determined the sentence. Charge bargaining of this sort
thus left even those judges who might disapprove of dealmaking without the power to prevent it.

Gradually, however, judges became full-fledged partners in plea bargaining. Fisher's innovation is to
recast one of the traditional explanations for why judges increasingly supported pleas. Some of the earliest
analysts of the rise of plea bargaining, such as Justin Miller in 1927, emphasized that plea bargaining had
dramatically increased because of the increasing caseload pressure on courts and prosecutors alike. [FN9]
Fisher largely buys the caseload-pressure explanation, but he emphasizes that it was the dramatically
increasing civil caseloads that prompted courts to embrace deals. Between 1880 and 1900, the quantity of
civil suits filed in Boston increased dramatically, from 120 to about 3300 (p. 123). But courts had more
power to coerce criminal plea bargains than they did civil settlements, so "overworked judges of the last
quarter of the century turned to plea bargaining for relief from their out-of-control civil caseloads" (p. 123).
The increasing need for some mechanism to reduce workload was abetted by the rise of the probation
officer, who could offer the judge a relatively impartial assessment of the defendant to help him assess the
facts of the case and the character of the defendant even without the benefit of a trial. Practically speaking,
the dominant way that judges assisted with plea bargaining was simply to acquiesce to the sentencing
recommendation of the parties. Once such acquiescence became routine and predictable, it had the benefit
of encouraging the defendant to strike a deal while avoiding the need to put the judge in the unseemly
position of overtly haggling over terms (pp. 131-33). Although Fisher presents his explanation for judicial
acquiescence in a plea bargain-dominated regime as somewhat at odds with John Langbein's explanation
for the same phenomenon, [FN10] which focuses on increasing evidentiary complexity and trial length, it
seems entirely plausible that civil caseload pressure and the changing nature of trials *1729 themselves
could have combined to prompt judicial acceptance of plea bargains.

Fisher's account also reveals how certain evidentiary changes had the probably unintended
244

consequence of further entrenching plea bargains. In 1866, Massachusetts began to allow criminal
defendants to testify under oath in their own trials, making it the third state to permit such testimony.
While this change was linked to much broader eliminations of competency restrictions, [FN11] it ended
up creating quite literal prisoners' dilemmas for defendants, especially for those who had a rap sheet. If the
defendant chose not to testify, it was highly probable that the jury would draw a negative inference from
this refusal, notwithstanding jury instructions declaring that no such inference should be drawn. But if the
defendant did testify, then because he was a witness, he was subject to the full panoply of
cross-examination techniques, including impeachment for lack of credibility because of a prior criminal
record. So if the defendant testified, his prior crimes would be introduced against him; if he stayed silent,
his failure to testify would likely be taken as evidence of guilt. Either way, defendants were worse off than
they were before they had the so-called right to testify, and they were now worse off at trial, which
probably increased the chances that they would accept a plea. The plea-encouraging dynamic of these
testimonial changes was further enhanced when judges began to give especially stiff sentences to those
defendants who had testified but were nonetheless convicted, as on top of whatever crime they had
presumably committed, they were taken to be perjurers to boot. This meant that all defendants, recidivists
or not, now faced a genuine bind: "All defendants risked being convicted for their silence, and when tried
before judges intent on penalizing them for their perjury, all defendants risked being punished for their
speech" (p. 108).

*****

[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).
245
57 STNLR 1721 Page 7
57 Stan. L. Rev. 1721

2007 Thomson/West. No Claim to Orig. U.S. Govt. Works.

[FN5]. 124 S. Ct. 2531 (2004).

[FN6]. 125 S. Ct. 738 (2005).

[FN7]. Booker, 125 S. Ct. at 749-50; Blakely, 124 S. Ct. at 2537-38. For the argument, made prior to
Blakely, that all factual determinations requiring particular mandatory punishments must either go to the
jury or the court must have the discretion to apply the law in a just manner, see Rachel E. Barkow,
Recharging the Jury: The Criminal Jury's Constitutional Role in an Era of Mandatory Sentencing, 152 U.
Pa. L. Rev. 33, 107-10 (2003).

[FN8]. For example, the sentencing range for grand larceny was zero to five years and the fine zero to six
hundred dollars (p. 24).

[FN9]. Justin Miller, The Compromise of Criminal Cases, 1 S. Cal. L. Rev. 1 (1927). For another classic
early study of plea bargaining, see Raymond Moley, The Vanishing Jury, 2 S. Cal. L. Rev. 97 (1928).

[FN10]. See generally John H. Langbein, Torture and Plea Bargaining, 46 U. Chi. L. Rev. 3 (1978); John
H. Langbein, Understanding the Short History of Plea Bargaining, 13 Law & Soc'y Rev. 261 (1979).

[FN11]. On the elimination of the various competency restrictions in England, see Christopher J.W. Allen,
The Law of Evidence in Victorian England (1997).

246
Guilty Pleas

PART I. RECEIVING AND ACTING UPON THE PLEA
Standard 14-1.1 Pleading by defendant; alternatives
Standard 14-1.2 Pleading to other offenses
Standard 14-1.3 Aid of counsel; time for deliberation
Standard 14-1.4 Defendant to be advised
Standard 14-1.5 Determining voluntariness of plea
Standard 14-1.6 Determining factual basis of plea
Standard 14-1.7 Record of proceedings
Standard 14-1.8 Consideration of plea in final disposition

PART II. WITHDRAWAL OF THE PLEA
Standard 14-2.1 Plea withdrawal and specific performance
Standard 14-2.2 Withdrawn plea and discussions not admissible

PART III. PLEA DISCUSSIONS AND PLEA AGREEMENTS
Standard 14-3.1 Responsibilities of the prosecuting attorney
Standard 14-3.2 Responsibilities of defense counsel
Standard 14-3.3 Responsibilities of the judge
Standard 14-3.4 Inadmissibility of nolo contendere pleas, pleas not accepted, and plea
discussions

PART IV. DIVERSION AND OTHER ALTERNATIVE RESOLUTIONS
Standard 14-4.1 Diversion and other alternative resolutions

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.

247
Standard 14-1.2. Pleading to other offenses
Upon entry of a plea of guilty or nolo contendere or after conviction on a plea of not
guilty, the defendant's counsel may request permission for the defendant to enter a plea of
guilty or nolo contendere as to other crimes committed within the jurisdiction of
coordinate courts of that government. Upon written approval of the prosecuting attorney
of the governmental unit in which these crimes are charged or could be charged, the
defendant should be allowed to enter the plea (subject to the court's discretion to refuse a
nolo contendere plea). Entry of such a plea constitutes a waiver of the following: venue,
as to crimes committed in other governmental units of the government; and formal charge,
as to offenses not yet charged.

Standard 14-1.3. Aid of counsel; time for deliberation
(a) A defendant should not be called upon to plead until an opportunity to retain
counsel has been afforded or, if eligible for appointment of counsel, until counsel has
been appointed or waived. A defendant with counsel should not be required to enter a
plea if counsel makes a reasonable request for additional time to represent the defendant's
interests.
(b) When a defendant has properly waived counsel and tenders a plea of guilty or nolo
contendere, the court should not accept the plea unless it is reaffirmed by the defendant
after a reasonable time for deliberation, set by rule or statute, after the defendant received
the advice from the court required in Standard14-1.4.

Standard 14-1.4. Defendant to be advised
(a) The court should not accept a plea of guilty or nolo contendere from a defendant
without first addressing the defendant personally in open court and determining that the
defendant understands:
(i) the nature and elements of the offense to which the plea is offered, and the
terms and conditions of any plea agreement;
(ii) the maximum possible sentence on the charge, including that possible from
consecutive sentences, and the mandatory minimum sentence, if any, on the
charge, or any special circumstances affecting probation or release from
incarceration;
(iii) that, if the defendant has been previously convicted of an offense and the
offense to which the defendant has offered to plead is one for which a different or
additional punishment is authorized by reason of the previous conviction or other
factors, the fact of the previous conviction or other factors may be established
after the plea, thereby subjecting the defendant to such different or additional
punishment;
(iv) that by pleading guilty the defendant waives the right to a speedy and public
trial, including the right to trial by jury; the right to insist at a trial that the
prosecution establish guilt beyond a reasonable doubt; the right to testify at a trial
and the right not to testify at a trial; the right at a trial to be confronted by the
248
witnesses against the defendant, to present witnesses in the defendant's behalf,
and to have compulsory process in securing their attendance;
(v) that by pleading guilty the defendant generally waives the right to file
further motions in the trial court, such as motions to object to the sufficiency of
the charging papers to state an offense or to evidence allegedly obtained in
violation of constitutional rights; and
(vi) that by pleading guilty the defendant generally waives the right to appeal,
except the right to appeal a motion that has been made, ruled upon and expressly
reserved for appeal and the right to appeal an illegal or unauthorized sentence.
(b) If the court is in doubt about whether the defendant comprehends his or her rights
and the other matters of which notice is required to be supplied in accordance with this
standard, the defendant should be asked to repeat to the court in his or her own words the
information about such rights and the other matters, or the court should take such other
steps as may be necessary to assure itself that the guilty plea is entered with complete
understanding of the consequences.
(c) Before accepting a plea of guilty or nolo contendere, the court should also advise
the defendant that by entering the plea, the defendant may face additional consequences
including but not limited to the forfeiture of property, the loss of certain civil rights,
disqualification from certain governmental benefits, enhanced punishment if the
defendant is convicted of another crime in the future, and, if the defendant is not a United
States citizen, a change in the defendant's immigration status. The court should advise the
defendant to consult with defense counsel if the defendant needs additional information
concerning the potential consequences of the plea.
(d) If the defendant is represented by a lawyer, the court should not accept the plea
where it appears the defendant has not had the effective assistance of counsel.

Standard 14-1.5. Determining voluntariness of plea
The court should not accept a plea of guilty or nolo contendere without first
determining that the plea is voluntary. By inquiry of the prosecuting attorney, the
defendant, and defense counsel, if any, the court should determine whether the tendered
plea is the result of prior plea discussions and a plea agreement, and, if it is, what
discussions were had and what agreement has been reached. If the plea agreement
contemplates the granting of charge or sentence concessions which are subject to judicial
approval, the court should advise the defendant, consistent with standard 14-3.3(e),
whether withdrawal of the plea will be allowed if the charge or sentence concessions are
rejected. The court should address the defendant personally to determine whether any
other promises or any force or threats were used to obtain the plea.

Standard 14-1.6. Determining factual basis of plea
(a) In accepting a plea of guilty or nolo contendere, the court should make such inquiry
as may be necessary to satisfy itself that there is a factual basis for the plea. As part of its
inquiry, the defendant may be asked to state on the record whether he or she agrees with,
or in the case of a nolo contendere plea, does not contest, the factual basis as proffered.
249
(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
251
(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
252
(v) in lieu of a plea agreement, to enter an agreement permitting the diversion of
the case from the criminal process where appropriate and permissible to do so.
(d) Similarly situated defendants should be afforded equal plea agreement opportunities.
(e) The prosecuting attorney should make every effort to remain advised of the attitudes
and sentiments of victims and law enforcement officials before reaching a plea agreement.
(f) The prosecuting attorney should not knowingly make false statements or
representations as to law or fact in the course of plea discussions with defense counsel or
the defendant.
(g) The prosecuting attorney should not, because of the pendency of plea negotiations,
delay any discovery disclosures required to be made to the defense under applicable law
or rules.
(h) In connection with plea negotiations, the prosecuting attorney should not bring or
threaten to bring charges against the defendant or another person, or refuse to dismiss
such charges, where admissible evidence does not exist to support the charges or the
prosecuting attorney has no good faith intention of pursuing those charges.

Standard 14-3.2. Responsibilities of defense counsel
(a) Defense counsel should keep the defendant advised of developments arising out of
plea discussions conducted with the prosecuting attorney, and should promptly
communicate and explain to the defendant all plea offers made by the prosecuting
attorney.
(b) To aid the defendant in reaching a decision, defense counsel, after appropriate
investigation, should advise the defendant of the alternatives available and address
considerations deemed important by defense counsel or the defendant in reaching a
decision. Defense counsel should not recommend to a defendant acceptance of a plea
unless appropriate investigation and study of the case has been completed.
(c) Defense counsel should conclude a plea agreement only with the consent of the
defendant, and should ensure that the decision whether to enter a plea of guilty or nolo
contendere is ultimately made by the defendant.
(d) Defense counsel should not knowingly make false statements or representations as
to law or fact in the course of plea discussions with the prosecuting attorney.
(e) At the outset of a case, and whenever the law, nature and circumstances of the case
permit, defense counsel should explore the possibility of a diversion of the case from the
criminal process.
(f) To the extent possible, defense counsel should determine and advise the defendant,
sufficiently in advance of the entry of any plea, as to the possible collateral consequences
that might ensue from entry of the contemplated plea.

Standard 14--3.3. Responsibilities of the judge
(a) The judge should not accept a plea of guilty or nolo contendere without first
inquiring whether the parties have arrived at a plea agreement and, if there is one,
requiring that its terms and conditions be disclosed.
(b) If a plea agreement has been reached by the parties which contemplates the granting
of charge or sentence concessions by the judge, the judge should:
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.
254
(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
256


Lesson 7.1: Jury Selection
Mauet - Jury Selection
ABA Standards Trial By Jury 15-2.1 2.9 (page 115)

Lesson 7.2: Baseline Exam

Lesson Objective: Students will be able to explain the steps
in jury selection in the United States and the value of each
part of the process. The baseline examination will be re-
administered to measure teaching and learning performance
to date.

257
i
I
II
JURY SELECTION
2.1. Introduction
23
2.2. Do you want ajury?
23
2.3. Juryexamination and selection methods
24
2.4.
2.5.
2.6.
2.7.
2.8.
2.1.
Purposes ofjury selection
29
Theories ofjury selection
30
Checklist for examinations
33
Voir dire examinations
34
Summary checklist
43
Introduction
Within the field of trial work, perhaps no area is the subject of more
theoryandspeculation thanjuryselection. Every triallawyerdevelops his
own theories. Everytrial lawyer has a favorite storythatcandisproveany
theory. Some believe that jury selection is so unpredictable that any
twelve jurors will, in a given case, reach the same general conclusion.
Othersfeel thata caseis largely wonorlostby thetime thejuryhasbeen
selected. Nevertheless, anyoneaspiringto bea complete trial lawyermust
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 methodsunderwhichjurorsareexamined,empaneled,andchal-
lenged; basicapproachesandtheoriesemployedfortheselection process;
and the ways prospectivejurors should be questioned.
2.2. Do you want a jury?
In mostjurisdictions, both parties to a lawsuit, whethercivil orcriminal,
havea righttoajurytrial. Thatright, ofcourse,canbewaived. Partiesin
bothcivil andcriminalcases musttherefore make a thresholddetermina-
tion: shouldyou demandajurytrialortakea trial beforethecourt?This
decision is based on the following two principal considerations.
1. Who is thejudge?
Somejurisdictions, usually in larger cities, use an assignment system for
their trial call. Consequently, you will not know who yourjudge is until
shortly before trial. In manyjurisdictions, however, your case will be as-
23
Thomas A Mauet, Fundamentals of Trial Techniques, Second
Edition, Little, Brown and Company, Boston
COPYRIGHT 1988 BY THOMAS A. MAUET
All rights reserved.
258
24 Fundamentals of Trial Techniques
signed to a specific judge well in advance of the trial date. Regardless of
the assignment method used, you can and should make every effort to
determine your judge's track record at the earliest possible time. Is he
plaintiff- or defense-oriented in personal injury cases? What kind of
judgments has he entered in similar civil cases? Do his trial rulings have
any particular bent? In criminal cases, is he prosecution- or defense-
minded? Does he have known attitudes in certain types of cases? What
sentencing disparity does he have between bench and jury trials? Ask at-
torneys familiar with the judge and other knowledgeable sources what
your reasonable expectations can be in your upcoming trial.
2. Does your case have jury appeal?
Plaintiff's attorneys in personal injury cases usually demand jury trials on
the theory that most of their cases have emotional appeal, and a jury in
such a case is more likely to find liability and award substantial damages,
while a judge who has heard it all before will have a more detached view
of the evidence and take a harder look at the issues of liability and gen-
eral damages.
Defense attorneys in criminal cases will usually demand a jury trial if
the client is presentable, the prosecution's case appears strong, the facts
will not shock a jury, and the case has no substantial defense to be raised.
On the other hand, where the prosecution case appears weak or a sub-
stantial defense, either legal or factual, can be developed, the defense will
often prefer a bench trial, particularly where a heinous crime or aggra-
vating facts would be shocking to the jury.
Commercial litigation cases usually involve complex issues of law and
fact revolving around substantial quantities of documentary proof. The
suits themselves often involve multiple parties, usually corporations or
other artificial entities. In these types of cases the parties, particularly the
plaintiffs, usually prefer a bench trial, since the facts can be both boring
and confusing to a jury.
This determination, however, can only be intelligently made if done
on a case-by-case basis, considering the facts, witnesses, parties, and law-.
yers involved. While generalizations are useful guides, they should not
override your evaluation of each individual case.
The final decision to take a bench or jury must also be discussed with
the client, who should be advised of the competing considerations in the
case. This is particularly so in criminal cases, where the defendant's con-
stitutional right to a jury trial can be waived only if the defendant makes
a knowing and intelligent waiver of his right.
2.J. Jury examination and selection methods
If you have decided on a jury trial, there are several questions that you
must know the answers to before the jury selection process begins:
259
25 Chapter II. Jury Selection
- Who will question the prospective jurors?
- What kinds of questions will be permitted?
- What jury selection method will be used?
- Will alternate jurors be selected?
- How many peremptory challenges does each party have?
- How will the lawyers exercise peremptory challenges?
The answers to these questions are discussed in this section.
1. Voir dire examinations
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
260
again must submit to the judge in advance questions of law you would
like him to ask the jurors.
2. Jury selection methods
How jury panels are examined and selected is controlled by statute, court
rules, local practices, and the judge's preferences. Your first step must
always be to determine how a jury is selected in your judge's courtroom.
When in doubt, ask the judge or his court personnel.
There are many variations in jury selection methods, but most are
based on the two principal systems used today. The first is generally
known as the "strike system." Under this system every juror in the venire
is questioned under one of the methods described earlier. As each juror
is questioned, the lawyers simply fill out a sheet, often a printed form,
that lists each juror in succession. When the last juror has been ques-
tioned, the lawyers for each party designate those jurors against whom
they wish to exercise peremptory challenges. The lawyers then give their
lists to the judge, who compares them and then simply calls the first 12
"names - assuming a 12 person jury - that have not been challenged by
any party. These 12 become the jury. Alternate jurors, if necessary, are
simply the next unchallenged names on the lists.
The strike system has advantages and disadvantages. Its disadvan-
tage is that it requires questioning every prospective juror in the venire.
Its advantages, which probably account for its growing popularity, are
that it avoids most of the gamesmanship of the selection process and
keeps jurors from knowing which party used a peremptory challenge
against them.
The traditional jury selection method, still common today, simply
fills the jury box with the necessary number of jurors. Only the prospec-
tive jurors in the box are questioned under one of the methods described
above. When each has been questioned, plaintiff's lawyer will exercise the
peremptory challenges he wishes to use at that time. The challenged ju-
rors are excused and they are replaced by new jurors from the venire,
who usually sit in the back of the courtroom. The new jurors in the box
are then questioned, and plaintiff's lawyer again can exercise peremptory
challenges against them. This process continues until plaintiff's attorney
accepts the panel and "tenders the panel" to the defense. The defense
lawyer then goes through the same steps, exercising his peremptory chal-
lenges, replacing the challenged jurors with new jurors from the venire,
and continuing with this process until the defendant's lawyer is satisfied
with the panel. He then accepts the panel and tenders it back to the
plaintiff. The plaintiff's lawyer can then exercise peremptory challenges
against jurors he had not previously accepted. This process goes back and
forth until both sides accept the same panel of jurors. Alternate jurors, if
necessary, are picked through the same process.
The traditional method also has advantages and disadvantages. Its
advantage is that only those jurors in the jury box need to be questioned.
261
Its disadvantages are that it permits a great deal of gamesmanship during
the selection process.
Keep in mind that the two selection methods described above are not
the only methods employed. There are numerous variations of these
methods. The safest course is always to learn-in advance how the jury for
your particular case and in front of the particular judge will be selected.
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
262
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:
Plaintiff Counsel: Your Honor, at this time we would ask that Mr.
Smith be excused.
or
Plaintiff Counsel: Your Honor, plaintiff would thank but excuse Mr.
Smith.
Court: Mr. Smith, thank you, you are excused.
If your decision to excuse a juror is based on unfavorable responses
that juror gave you, wait a while and ask questions of other jurors before
exercising your challenges, if you wish to disguise the reason you excused
him.
b. How do you exercise challenges for cause? As mentioned above, ask
for a side-bar conference and ask the judge to excuse the juror for cause.
Where the judge refuses to hold a side bar, make sure you have clearly
demonstrated why you are asking for and are entitled to a challenge for
cause.
Example:
Plaintiff is suing a truck driver for injuries arising out of a highway
accident.
263
PlaintiffCounsel: Mr. Smith, what kind ofwork do you do?
Juror: I'm a truck driver.
PlaintiffCounsel: For how many years?
Juror: Eighteen years.
PlaintiffCounsel: Overthose eighteen years, were youeverinvolved
in collisions with automobiles?
Juror: Yes, three ofthem.
PlaintiffCounsel: Were you ever involved in lawsuits as a result of
those incidents?
Juror: Well, on one ofthose I got sued.
PlaintiffCounsel: Mr. Smith, because you have the same occupation
as the defendant, and like him, were also the de-
fendant in a lawsuit, doyou think you mightstart
offin this case a little on the defendant's side?
Juror: It's possible.
PlaintiffCounsel: Lookingatit from theotherside, canyou promise
us that you have a completely fair and impartial
frameofmindandcangive myclienta fairverdict
based solely on the evidence you hear during the
trial?
Juror: I'm not sure.
PlaintiffCounsel: Your honor, to be fair to both sides here, we ask
that Mr. Smith be excused, for cause.
Court: Mr. Smith, you will be excused. Thankyou for your candor
in this maUer.
If the court refuses to excuse the juror for cause, you must ofcourse
exerciseoneofyourperemptorychallengesto getthis obviously unfavor-
able and now probably hostile juror offthejury. You have made your
reasonsclearto theotherjurors,andtheyshouldnotholdyourchallenge
against you.
e. How do you accept andtender panels? Simply tell thejudgein open
courtthatyou acceptthepaneland,ifappropriate, tenderitto theother
side.
Examples:
Your Honor, plaintiffaccepts 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. Purposes of jury selection
As an advocate your function during the jury selection process is both
clear and simple: you want to select a jury that will be fair, is favorably
264
30 FundamentalsofTrial Techniques
disposed to you, your client, and your case, and will ultimately return a
favorable verdict. Your opponent, ofcourse, while also looking for ajury
that has an open mind about the case, is also looking for ajurythatwill
reactfavorably tohim,his clientandhis case. Whatconstitutesa goodjury
dependsonwhich side ofthecase you representanddetermines howyou
will exercise your peremptory challenges. When two evenly matched ad-
versaries participate in thejury selection process, injecting their concepts
ofa goodjuryinto that process, they will ultimately select ajurythatwill
fairly and impartially hear the evidence and reach ajustverdict.
With these points in mind, what are your specific aims during the
voir dire examination ofprospectivejurors? There are three:
1. Present yourselfand your client in a favorable light to thejury.
2. Learn about thejurors' 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 thatofthese three aims only the second is directly related to voir
dire itself. Theother two are more concerned with trial advocacy, which
beginswhenthevenirefirst walks intothecourtroomandcontinuesuntil
thejuryreturns the verdict. You and yourclient as well as the facts are
all on trial and affectits final outcome. Thesuccessful trial lawyer is the
one who recognizes this and conducts himselfaccordingly.
2.5. Theories ofjury selection
One ofyour purposes in conducting voir dire examinations ofprospec-
tive jurors, as mentioned earlier, is to learn enough about the jurors'
backgrounds so thatyou can intelligently exercise your peremptorychal-
lenges. People's attitudes are inevitably the product oftheir social back-
ground, education, and experiences in life. Jurors are no different.
Accordingly, regardless ofwhatapproaches you preferto base yourjury
selections on, your examinations will necessarily take into consideration
the following:
a. age
b. social background
c. marital status
d. family status (children)
e. family history (parents, brothers and sisters, etc.)
f. education (self, wife, children, etc.)
g. occupation (self, wife, children, parents)
h. employment history
1. residence history
J. hobbies and activities
k. relevant life experiences (general and specific)
265
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. Ethnic characteristics method
The ethnic characteristics method was the dominant jury selection ap-
proach years ago, when substantial numbers of jurors, particularly in
large cities, were either immigrants or first-generation Americans. Hence,
it was believed that certain ethnic groups had predictable attitudes that
they would carry into the jury room. Whether the method is useful today
is, of course, subject to question.
The ethnic characteristics method looks at ethnic backgrounds and
assumes that attitudes are deep-rooted beliefs that are affected by values
acquired early in life from family and social peer groups. Consequently,
plaintiff's personal injury lawyers favor Irish, Jewish, Italian, French, and
Spanish jurors, under the belief that such jurors are more likely to re-
spond to a sympathetic story and an emotional appeal. Conversely, de-
fendants in such cases look favorably upon English, German, and
Scandinavian jurors, Nordic types who are viewed as more responsive to
law-and-order arguments and resent windfall damages. Criminal lawyers
who subscribe to this theory use the same approach, except that they re-
verse the conclusions. Prosecutors prefer Nordic types; defense attorneys
prefer Mediterraneans.
266
Closely tied to the ethnic origins approach is the religious beliefs
analysis. Catholics and fundamental Protestant sects are viewed as favor-
ing personal injury defendants and the prosecution in criminal cases. Lib-
eral Protestant and most Jewish sects favor the personal injury plaintiffs
and the defense in criminal cases.
3. Work and class method
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. Body language method
This method has become increasingly popular, due in part to a growing
awareness that voir dire examinations can be extremely inaccurate in de-
termining jurors' true attitudes. Since most jurors want to sit on the jury,
they will often hide their true feelings and attempt to answer questions
about themselves the way they think the questioner wants them an-
swered. In addition, trial lawyers are increasingly realizing that jurors'
attitudes toward, and reactions to, the lawyers are important aspects of
trial work that can have a significant impact on the outcome of a case.
Consequently, this method looks to a juror's appearance, behavior,
and non-verbal responses, since these are viewed as giving a truer picture
than verbal answers. It considers the juror's dress. Is he dressed appro-
priately for his work, age, sex, and class? Are his clothes compensating
for a perceived inadequacy? Does his immaculate dress suggest the juror
to be meticulous and analytically oriented? Do his clothes suggest what he
would like to be, but isn't? The body language method considers physical
responses in conjunction with verbal answers. Hands over mouth, licking
lips, sighs, swallowing, blushing, and restlessness all suggest that the juror
is sensitive or anxious about the subject being discussed. It also considers
the juror's attitude toward the lawyer. Leaning back, turning sideways,
suddenly crossing arms and legs, hands in pocket, coat buttoned, looking
at everything but the lawyer all indicate a negative attitude toward or
rejection of the lawyer. It analyzes whether those nonverbal responses are
consistent with the verbal answers. Finally, it considers speech patterns.
Do his responses have unusual or abnormal pauses? Does he hesitate or
267
look elsewhere before answering? Does his pattern of responses change
when certain topics are discussed? Does he hedge his answers?
If, as many trial lawyers believe, a juror's subjective response to you
as a lawyer is important, body language may be a significant aspect of the
selection process.
5. Strong vs. weak jurors
This approach is based on the general proposition that certain personal-
ity types are advantageous to certain parties. Plaintiffs, having the burden
of proof and usually requiring a unanimous verdict to prevail, generally
prefer jurors who are followers and compromisers, and will eventually go
along with the majority. Unless you are convinced that a strong juror is
favorably disposed toward your case, having such a juror on the case is
dangerous. If such a juror turns out to favor the opposition, he might
very well hang the jury or turn it against you.
Defendants in general prefer jurors with strong personalities, since
these are seen as more capable of assuming independent positions and
more likely to resist the majority. Defendants, in other words, prefer ju-
rors who have strong backgrounds and personalities that label them as
"take charge" types, since it often takes only one of these jurors to create
a hung jury or force a compromise on damages as the price for a unani-
mous verdict.
As with any theory involving human nature, the validity of these the-
ories and others is difficult, if not impossible, to confirm or deny, al-
though in recent years numerous studies have analyzed the factors that
can help predict how a particular type of juror will react to different
cases, and lawyers in major cases have begun to use clinical psychologists
and communication specialists to determine what their best and worst ju-
rors will be for the case. The theories simply became part of the ever-
increasing folklore surrounding jury selection. The best that any trial
lawyer can do is to be familiar with these approaches, use his common
sense and experience in determining what his best jurors will be for each
case to be tried, and formulate intelligent questions to uncover as much
useful information as possible. Jury selection can never be more scientific
than that.
2.6. Checklist for examinations
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.
268
34
I
T
Fundamentals of Trial Techniques
Example:
You represent plaintiff pedestrian, a 23-year-old cocktail waitress,
struck by truck driver.
(good)
Juror profile (bad)
Young
Service occupation
employees
Students
Particular areas of inquiry:
Truck, bus, cab, etc. drivers
Owners/managers of delivery
businesses
Nondrinkers
Fundamentalist religious sects
1. Social habits - restaurants, nightclubs, taverns
2. Attitudes toward social drInking
3. Ever work as a driver - employ drivers in business
4. Accident and injury history
5. Ever involved in similar lawsuit - result
Challenges: Pl.
De!
Cause
2. 7. Voir dire examinations
1. Approach
Once you have determined the characteristics of your most and least
desirable jurors, outline or draft voir dire questions designed to elicit
the information necessary to make intelligent selections. Most of your
questions, regardless of the case, will be general background questions.
Every case, however, has some particular aspect that will require you to
probe into jurors' attitudes on that particular aspect. Sometimes, of
course, the topic can be sensitive, yet necessary to probe. Ifthe court
will question the jurors, you have no problem. If, on the other hand,
the lawyers conduct their own examinations, a high degree of sensitivity
is called for.
There is one cardinal rule you cannot forget while questioning ju-
rors: Never embarrass a juror. Make sure you never force a juror to re-
veal anything about his job, family, home, education, or background that
may embarrass him. While it may sometimes be necessary to ask ques-
Thomas A. Mauet, Fundamentals of Trial
Techniques, Second Edition, 1988, Boston ISBN
0-316-55093-0
269

270


Lesson 8.1: Case Preparation I
MT Chapter Two Case Preparation
MT Chapter Three Communication Techniques

Lesson Objective: This lesson begins the practical
preparation for the mock trial in Spring 2008. Students will
be able to explain the steps in preparation of a criminal case
for trial and will be able to demonstrate effective
communication techniques that can be used in a jury trial.
271
- CHAPTER TWO -
Case Preparation
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.
I. EVIDENCE MADE SIMPLE
Like real trials, mock trial competitions adhere to rules of evidence. These rules,
usually a simplified form of the Federal Rules of Evidence, control the testimony and
exhibits allowed at trial. If a piece of evidence is allowed under the rules, it is
"admissible"; evidence that is not allowed under the rules is said to be "inadmissible."
The presidingjudge determines the admissibility ofthe evidence at trial; she hears
objections from counsel and rules upon them. Ifan objection is "sustained," that means
the judge believes it was appropriately raised and that either the form of the question
asked, or the content of the answer sought or given, violates the rules of evidence. If
an objection is "overruled" by the judge, she has determined that it was either
inappropriately raised or that the evidence is allowed under the rules.
There are two main types of objections: substantive and nonsubstantive.
Substantive objections bring into question the admissibility of the content of the
testimony or exhibit at issue. Nonsubstantive objections raise the appropriateness of
the manner in which the information is being sought or delivered to the court.
Understanding and knowing the rules ofevidence used in your mock trial is crucial.
If a portion of a witness's testimony or an exhibit is clearly not allowed under the rules
of evidence, you must disregard it when you are preparing for trial. Likewise, if you
believe one of your opponent's witnesses will offer testimony or an exhibit that is not
allowed under the rules of evidence, you should be prepared to object ifit is offered at
trial.
We will return to the nonsubstantive evidentiary rules in Chapter 10 ("Objections")
but for now we focus on the substantive rules, since they will play the largest role as
you prepare your case. The following is a short explanation of the most common
substantive rules of evidence your mock trial is likely to follow. Because the rules of
evidence used in mock trials vary, the explanations below are based on the Federal
Rules of Evidence.
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
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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 NRAmembership 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.
c. Lack of Personal Knowledge and Speculation
Witnesses (other than experts) must testify from their own personal knowledge and
they may not "speculate" about things they do not know firsthand. This means that
witnesses can only testify about their sensory perceptions: what they saw, heard,
smelled, touched, or tasted (subject to other evidentiarylimitations). Witnesses maynot
testify to what they think might have happened, no matter how firmly they believe it.
For instance, the neighbor of the defendant in a murder trial may testify to seeing
the defendant enter his apartment two hours before the murder took place. He may
also testify that he did not see the defendant leave his apartment again that night.
However, he may not testify that the defendant was definitely in his apartment at the
time of the murder, unless he saw the defendant there at the time that the crime was
committed.
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. Awitness is allowed to repeat
an out-of-court statement offered for its truth if it fits into any of the following
categories:
It is a description of an event made while the speaker observed that event
or immediately thereafter (called a "present sense impression");
It is a statement relating to a startling event made while the speaker was
under the stress of excitement caused by that event (called an "excited
utterance");
It illustrates the declarant's mental state, as in the elephant example above,
or it is being used to show the effect of the statement on the listener (called
the "state of mind" exception);
It is a record of a regularly conducted activity (called a ''business record"); or
It is a statement by a dying person about the cause or circumstances ofwhat
he believed to be impending death (called a "dying declaration").
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?
Cl Is it an admission of a party-
opponent?
Cl Is there an exception that
applies?
Does it assert some fact? Are you using the statement to
prove the truth of that fact?
If the answer to both of these questions is "yes, U go on to
the section below.
In criminal cases: did the defendant or a conspirator of
the defendant make the statement and is it being used
against the defendant now?
In civil cases: did the plaintiff or defendant or any of their
agents make the statement and is it being offered
against that party now?
If the answer to the applicable question is "no, U the
statement is hearsay. Go on to the section below to
determine whether an exception to the hearsay rule
applies.
Is the statement a present sense impression? Is the
statement an excited utterance? Is the statement being
used to illustrate the declarant's state of mind or the
effect of the statement on the person who heard it? Is the
statement itself a business record or is it included within
one? Is the statement a dying declaration?
If the answer to any of these questions is "yes, U the
statement is admissible. If the answer to each question is
"no, U check the less common hearsay exceptions to see
if one applies. If none apply, the statement is
inadmissible.
Note that there is also such a thing as "double hearsay" or "hearsay within hearsay,"
which describes the possibilityofhearsay statements being made within other hearsay
statements, such as the statement by the testifying witness on the following page:
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.s
v
Julie
To Witness: Julie
told me she took
that brooch:
Bob Testifying Witness
.... l I I r i ~ .... llII---------
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.
E. Improper Character Evidence Generally
Character evidence is generally not admissible to prove that because a person did
something in the past, he is more likely to have done it (or "acted in conformity" with
that character) again. For example, a driver's past involvement in a hit-and-run
accident cannot be offered as proof that he was negligent in a later collision.
There are exceptions to this rule. First, a criminal defendant may offer proof of his
good character, which the prosecution may then (and only then) rebut with proof ofhis
bad character. Also, past crimes and bad acts maybe offered to prove a person's motive,
opportunity, intent, preparation, plan, knowledge, identity, or absence of mistake.
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 logicallyfromthe 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, substantiallyoutweighs 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 generallylimited 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.
II. PREPARINGYOUR CASE
You are now ready to take the first steps in preparing your case. The following
sections explain how to organize your trial binder, read and outline your case, and
prepare your theme and theory. Although these steps are time-consuming, your
preparation will be rewarded at trial.
A. Organize Your Trial Binder
The very first thing you should do after receiving a mock trial case is make a copy
of it and place both copies in a three-ring binder. 1 You can write on the copy of each
document, but be sure not to write on the original. That way, you will be sure to have
a clean copy of every exhibit for use at trial.
Next, insert tabs to separate eachwitness's affidavit, each itemofevidence, and the
statutes or relevant case law included in your case file. Also, decide where you will
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.
B. Read and Outline the Case
Using the method we suggest below will take time. We guarantee, however, that
your efforts will be rewarded in the end.
1. Grasp the applicable statutes and case law
To be able to read and outline your case intelligently, you must begin with a strong
understanding ofthe causes ofaction or crimes that are alleged against the defendant.
Thus, start by reading and rereading the civil complaint or criminal indictment
included in your case file. Next, read the law that applies to your case.
In addition to understanding the statutes, be sure to read the applicable case law
(if it is included) to see how courts have interpreted the applicable statutes. Then,
make a list of the elements that each side will attempt to prove in order to prevail at
trial. Knowing these elements will help you determine which facts in the case file are
favorable to your case and which facts are favorable to your opponent's case. Keep your
summary of the applicable law next to you and refer to it often as you continue.
2. Determine which witnesses are helpful to each side
Now that you know the legal elements of the case, you can begin reading the
witnesses' affidavits to determine the witnesses that will best help you prove the legal
elements in your case. Many mock trial cases complete this next step for you by listing
the witnesses for each side. In these instances, you are limited to calling only those
witnesses listed on your side. Ifthe witnesses for each side are not delineated, however,
you must give careful consideration to which witnesses you will call to testify during
your case in chief.
To begin, ask yourself these questions about each witness: How does this witness
help me (or my opposing counsel) prove the legal elements ofthe case? What facts does
she establish that I (or my opponent) can build upon with other witnesses? Does she
add to (or detract from) the credibility of any of the other witnesses? Are there
inconsistencies in her testimony that need to be explained (or can be exploited)? What
facts strengthen (or weaken) her character? The answers to these questions should
direct you to the witnesses that will best enable you to succeed at trial.
Some mock trial competitions are designed so that participants remain unsure of
which witnesses will be called until virtually the last minute. While teams can rank the
witnesses they would most like to call, they can never be sure ofthe exact combination
of witnesses they will have at trial. This factor complicates every stage of trial
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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.
3. For each witness, identify the favorable and unfavorable facts
Once you have identified the witnesses you intend to call (or the most likely
witnesses you will call, if a definitive determination cannot be made), separate their
statements from those of the remaining witnesses. Then, beginning with the
statements of the witnesses you are likely to call, distinguish between the favorable
and unfavorable facts included in each witness's statement. You may want to use
highlighters ofdifferent colors to indicate the favorable facts and the unfavorable facts.
Be aware that some facts may be favorable to both sides or neither side.
Advanced students will also read between the lines and identify favorable and
unfavorable facts that are omitted from the witness statements. Sometimes what is left
unsaid is even more powerful than what is said. To identify these facts, ask yourself if
there is anythingyou would still like to know after reading through a witness's statement.
Are important details absent? Is an explanation mysteriously missing for a curious action
taken by the witness or another person? Did the witness refer to something early in the
statement but then never explainit in depth? Canthese missingfacts be explained through
reasonable inferences? As you will learn in Chapter 4 ("Direct Examination"), most mock
trial rules allow you to have your witnesses testify to reasonable inferences from their
statements. You can also point out omissions in the witnesses' statements during cross
examination, as we will discuss in Chapter 7 ("Impeachment").
Once you have identified the favorable and unfavorable facts in (or missing from)
each witness's statement, make a list of both on a separate piece of paper or in a new
computer document (Using a computer or other word processing device to complete this
step and the ones that follow could save you valuable time). The best way to do this is
to write each witness's name on a page and draw a line down the center. Use one side
of the page to list the favorable facts for the plaintiff/prosecution, with the favorable
facts for the defendant/defense on the other side. Be sure to "index" each fact by noting
the line number where it can be found in the witness's statement. The following is a
sample of how your page might look for a witness in a criminal case:
(Witness's Name)
Favorable to Prosecution Favorable to Defense
Fact 1 (lines 3-4)
Fact 2 (line 6)
Fact 3 (lines 6-7)
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Fact A (line 3)
Fact B(line 5)
Fact C (lines 11-12)
279
4. Determine the admissibility of all facts
The next step is tricky. You must now go through your list offacts for each witness
to determine which facts are likely to be admissible at trial. As explained above, the
admissibilityofeach fact is determined by the applicable substantive evidentiaryrules;
if a rule of evidence bars a fact, it cannot be used at trial. Each witness's testimony
must be evaluated for possible evidentiary problems. You cannot assume that any fact
is automatically admissible; you must be able to state a positive theory of relevance
(and be able to overcome any possible objection) for each fact that you intend to offer
during your case in chief. When examining the facts in your witnesses' statements, you
may find it helpful to place yourself in the mindset of your opponent and ask, ''What
can I attempt to exclude using the rules of evidence?" Likewise, with each adverse
witness, consider whether any part of the testimony might be excludable. For every
statement that the witness might make, imagine all reasonable evidentiary objections.
Here is a general checklist you can use when considering the admissibility of each
fact in a witness's statement:
D Is this evidence irrelevant?
D Is this evidence more prejudicial than
probative?
D Is this an opinion only an expert could
reach?
D Is this inadmissible hearsay?
D Is this improper character evidence?
Does this information fail to make at least one
fact of consequence to the case more or less
probable? If so, it is irrelevant.
Does the unfairly prejudicial nature of this
evidence outweigh its probative value? If so, it
is unduly prejudicial.
Is this an opinion that requires special training,
education, or knowledge? If so, the witness is
giving an improper lay opinion.
Is this an assertion that is being used to prove
its truth? If so, does a hearsay exception
apply? If not, the statement is hearsay.
Can this prior act be used to prove motive,
opportunity, intent, preparation, plan,
knowledge, identity, or absence of mistake?
Does this information go to the witness's
truthfulness? Is this a felony that occurred
within the past ten years?
Unless the answer to at least one of the above
questions is 'yes, H the information is improper
character evidence.
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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)
Fact 1 (lines 3-4)
Fact 2 (line 6. HEARSAY)
Fact 3 (lines 6-7)
Fact 1 (lines 3-4)
Fact 2 (line 5)
Fact 3 (lines 11-12)
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.
5. Compile a summary of all facts that will likely be established
at trial
You are nowready to compile a summary ofthe facts you and your opposing counsel
may be able to establish at trial. Takingonly the definitely or arguably admissible facts
from each witness outline and each exhibit outline, use a separate document to compile
a full list of the facts you and your opposing counsel may attempt to establish. Of you
use a computer, this step is accomplished with ease through the use of copying and
pasting.) Remember to cite the witness statement or exhibit where each fact is found.
If more than one witness or exhibit establishes the same fact, write the fact once on
your summary sheet but cite each of the separate sources. Thus, your case summary
sheet might look like this example on the next page:
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Case Summary
Fact 1 (Dr. Drew, line 4)
Fact 2 (A. Corolla, line 6
Witness C, line 9)
Fact 3 (Dr. Drew, lines 21-23)
-
Fact A (Defendant lines 6-10)
Fact B(Exhibit B, H. Stern,
line 18)
Fact C CR. Scelfo, lines 11-12)
This final step to outlining your case is so important it is worth double-checking.
Look over your summary of the admissible facts in the case file and compare it
carefully to the summary of the applicable law you created earlier. Every fact in your
summary should be relevant to an element that you or your opponent will attempt to
prove at trial. Otherwise, it is not an important fact and you should cross it off your
summary (and be prepared to object if it is offered by the opposition). The only
exceptions to this rule are facts that bolster or detract from the credibility of a witness,
since a witness's credibility is always at issue during trials.
Congratulations! You are nowready to begin putting together the storyyou will tell
at trial.
C. Analyze the Case and Devise a Story
The function ofa trial is to resolve factual disputes. These disagreements commonly
involve the existence or occurrence of events or actions, but they may also turn upon
questions of sequence, interpretation, characterization, or intent. Thus, trials may be
held to answer questions such as these: What happened? What happened first? Why
did it happen? Who made it happen? Did it happen on purpose? Was it justified or fair?
Each party to a trial has the opportunity to tell a story, albeit through the fairly
stilted devices ofopening and closingstatements, direct and cross examination, and the
introduction of evidence. The party who succeeds in telling the most persuasive story
should win.
A persuasive trial story has all, or most, of these characteristics: (1) it is told about
people who have reasons for the way they act; (2) it accounts for or explains all of the
known or undeniable facts; (3) it is told by credible witnesses; (4) it is supported by
details; (5) it accords with common sense and contains no implausible elements; and
(6) it is organized in a way that makes each succeeding fact increasingly more likely.
Depending on the trial story told by the plaintiff/prosecution, defense counsel must
often tell "counterstories," that negate the above aspects of the other side's case.
Devising the story you will use at trial is a creative process since the facts in the
case file will almost always be subject to several interpretations. To imagine the most
persuasive trial story, imagine a series of alternative scenarios and assess each for its
clarity, simplicity, and believability, as well as for its legal consequences.
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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.
1. Consider the possibilities
Assume that you are an attorney in a mock trial, representing a plaintiff who was
injured in an automobile accident. Your client knows only that when traffic slowed to
allow a fire truck to pass, her car was hit from behind by another car. You are suing
the driver of that automobile for his negligence in failing to take due care while
operating his car. You now must determine why the other driver failed to slow and stop
with the rest of traffic.
While it is not legally essential to determine a reason why the defendant failed to
stop, consider what the absence of a reason implies. The plaintiff claims that traffic
slowed for a fire truck, but the defendant-also part of traffic-did not slow. Could it
be that there was no fire truck? Perhaps there was a fire truck, but it was not sounding
its siren or alerting traffic to stop. Is it possible that your client did not slow, but rather
slammed on her brakes? As you can see, the very absence of a reason for the other
driver's actions may make your client's testimony less believable.
The skilled advocate will therefore look for a reason or cause for the defendant's
actions. Was the defendant drunk? In a hurry? Distracted? You can begin to choose
from among these potential reasons by considering each one in the context of your
story. Imagine how the story will be told if you claim that the defendant was drunk.
Does such a story account for all ofthe known admissible facts? When the police came
to the scene, was the defendant arrested? Did any credible, disinterested witnesses see
the defendant drinking or smell liquor on his breath? If not, drunkenness does not
provide a persuasive reason for the defendant's actions.
Assume that your case file shows that at 8:20 in the morning the defendant was
driving south on Craycroft Road on his way to work downtown. Rush hour was in full
swing and he had an important meeting that was to begin at 8:30 A.M. sharp. You also
learn that after he parked his car near work, the defendant would have to walk two
more blocks to get to his office. From the point at which the accident occurred, it would
likely take the defendant another twenty to thirty-five minutes to drive to his parking
lot, park, and then walk to his office. Furthermore, your case file reveals that
immediately following the collision the defendant used a cellular phone to call his
office.
How can these basic facts be assembled into a persuasive trial story? Astrong trial
story would paint the defendant as being in such a hurry that he did not notice the fire
truck until it was too late. This story accounts for the known facts, since it explains
why traffic might slow while the defendant did not. This story is also plausible and
believable; it is in complete harmony with everyone's everyday observations.
Furthermore, you already have details on hand that support this story.
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2. Be sure your story is ethical
Always remember that lawyers are bound to the truth-you are not free to pick
stories simply on the basis of their persuasive value. Within this parameter, exactly
how much room is there for creative theory choice?
a. Assuming that you "know" the truth
Let us assume, in this example only, that the plaintiffis certain that the fire truck
was flashing its lights but not sounding its siren or bell. Given this, you absolutely
cannot attempt to have her testify that the siren and bell were sounding, as that
testimony would be false and your use of it would be unethical.
On the other hand, there is no requirement that the absence ofthe fire truck's bell
and siren be made the centerpiece ofyour client's testimony. Sequencing and emphasis
may be used to minimize the adverse impact of this information. For example, the
direct examination could be developed as follows: "The fire truck was the largest
vehicle on the road. It was the standard fire-engine red. All of its lights were flashing
brightly-headlights, taillights, and red dome lights. It could be seen easily from all
directions. All of the traffic, save the defendant, slowed down for the fire truck. It was
not necessary to hear a siren in order to notice the fire truck." Here, the lawyer has
held closely to the truth while also establishing the unimportance of the potentially
damaging information.
b. Assuming that you do not know the truth
A different situation arises when the advocate is not able to identify the truth so
closely, as in the example above concerning the defendant's reasons for failing to notice
the fire truck in time. Recall that we considered a few possible reasons, including
hurriedness and drunkenness, to explain the defendant's actions. Some reasons have
clear persuasive advantages over others. What are the ethical limitations on the
attorney's ability to choose the best one?
First, it should be clear that, as the plaintiffs attorney, you are not bound to accept
the defendant's story in the same way that you must give credence to your own client.
Your duty as a lawyer to zealously represent your client requires that you resolve
doubts in your client's favor. When your client gives damaging testimony (such as the
absence of the fire truck's siren), it is even more likely to be true, since she obviously
has no incentive to inject such information falsely. Conversely, the defendant's
statements cannot necessarily be seen as reliable and you are entitled to mistrust
them.
The key to determining the ethical value of any trial theory is whether it is
supported by facts that we know, believe, or have a good faith basis to believe, are true.
In other words, the story has to be based on facts that are not false.
Returning to our fire truck case, assume that the defendant has denied that he was
in a hurry. He has the right to make this denial, but as the plaintiffs lawyer, you have
no duty to accept it. Assume also that no witness will testify that the defendant was
in a hurry. Despite this, your case file includes numerous facts about the defendant's
home, automobile, occupation, and place of employment that support a belief that he
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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.
D. Prepare Your Case Theory and Theme
You are now ready to turn your story into your case theory and theme-the very
heart ofyour case. Your case theory and theme will pervade every aspect of your case,
from your opening statement all the way through to your closing argument. When
choosing what facts to accentuate throughout the trial, you will rely on your theory and
theme for direction.
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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It is simple. A good theory makes maximum use of undisputed facts. It relies as
little as possible on evidence that maybe hotly controverted, implausible, inadmissible,
or otherwise difficult to prove.
It is easy to believe. Even "true" theories may be difficult to believe because they
contradict everyday experience, or because they require harsh judgments. You must
strive to eliminate all implausible elements from your theory. Similarly, you should
attempt to avoid arguments that depend upon proof of deception, falsification, ill
motive, or personal attack. An airtight theory is able to encompass the entirety of the
other side's case and still result in your victory by sheer logical force.
To develop your story into your case theory, include the answers to these three
questions: What happened? Why did it happen? Why does that mean that my client
should win? If your answer is longer than one paragraph, your theory may be logical
and true, but it is probably too complicated.
An example theory for the fire truck case outlined above is: "The defendant was in
a hurry to get to work because he was late for an important meeting. Because he was
preoccupied, he didn't notice the fire truck until it was too late to stop. As a result, he
rear-ended my client, causing her serious injuries."
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."
3. Return to your story
Going back to the story you devised earlier, be sure that each detail you included
supports the theory and theme you have selected for trial. Also, be sure that your
organization is persuasive. For instance, it is important that each fact make every
succeeding element increasingly more likely. Considering the fire truck case, ask
yourself which aspect should come first: the presence of the fire truck or the fact that
the defendant was in a hurry? Since the presence of the fire truck does not make it
more likely that the defendant was in a hurry, that probably is not the most effective
starting point. On the other hand, the defendant's haste does make it more likely that
he would fail to notice the fire truck.
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o Did you organize your
trial binder?
o Did you read and outline
the case?
o Did you analyze the
case and devise a trial
story?
o Did you prepare your
case theory and theme?
Are there two copies of the case in your trial binder?
Do you understand the applicable statutes and case law?
Do you know which witnesses are helpful to each side?
Did you identify the favorable and unfavorable facts each
witness adds to the case?
Do you have witness and exhibit summaries of these facts?
Did you determine the admissibility of all facts listed in your
summaries?
Do you have a case summary compiling all the arguably
admissible facts from each witness and exhibit summary?
Did you consider every possible story and pick the one best
supported by the facts likely to come out at trial?
Is your story ethical? Is it based on truth?
Is your theory a short explanation of what happened,
explaining to the fact-finder why your side should prevail?
Does your theme add moral force to your theory?
Did you go back to work your theme and theory into your
story?
III. GET THE MOST FROM YOUR WORK
Now that you have invested the time and energy preparing the foundation of your
case, you might as well benefit from your work.
Your goal at trial is to persuade the trier of fact that your theory is correct and to
constantly invoke the moral leverage ofyour theme. To accomplish this, you have four
basic tools: (1) jury address, which consists of opening statement and final argument;
(2) testimony on direct examination, and to a lesser extent on cross examination; (3)
introduction of exhibits, including real and documentary evidence; and (4) absolutely
everything else that you do in the courtroom.
The skills involved in each of these aspects of a trial will be discussed at length in
later chapters. What follows here is an outline of the general steps you should take to
get the most from your case preparation. With each ofthese areas, you should read the
applicable chapter that follows for more detailed instruction ofwhat to include and how
to organize your work.
A. Planning Closing Argument and Opening Statement
Good trial preparation begins at the end. It makes great sense to plan your final
argument first, because that aspect of the trial is the most similar to storytelling.
Closing arguments are the single element ofthe trial where it is permissible for you to
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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 openingstatement you should linktogether 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.
B. Planning Direct Examinations
Direct examinations should include only the admissible facts each witness may
offer. If you followed our method, you already have this information mapped out. The
favorable facts should be elicited in an order that effectively tells the witness's story.
Remember that once you have assembled all ofthe positive information for each ofyour
witnesses, you must also consider all possible problems and weaknesses. Are there
likely to be inconsistencies or gaps in the witness's testimony? Does the witness have
damaging information that is likely to be probed on cross examination? Your list of
unfavorable facts for each witness should provide answers to these questions.
Try to structure your direct examination to avoid or minimize these problems.
Perhaps you can resolve the inconsistencies in the witness's testimony by reevaluating
your theory. Perhaps a different witness can fill in the gaps of the witness's testimony.
Perhaps you can defuse the potentially damaging facts by burying them in the middle
of your direct examination.
Once you have outlined all of your direct examinations, arrange your witnesses in
the order that will be most helpful to your case. While there are no hard and fast rules
for determining witness order, the following three principles should help you decide:
Retention. You want your evidence not only to be heard, but also to be retained.
Following the principles ofprimacy and recency discussed in Chapter 3 ("Communication
Techniques"), call your most important witness first and your next most important
witness last. Your goal should be to start and end strong, as long as doing so results in
a logical progression of testimony.
Progression. The "first and last" principle must occasionally give way to the need
for logical progression. Some witnesses provide the foundation for the testimony of
others. Thus, it may be necessary to call a "predicate" witness early in the trial as a
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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.
C. Planning Cross Examinations
It is inherently more difficult to plan a cross examination than it is to prepare for
direct. Although it is impossible to safeguard yourself against every surprise that may
arise at trial, the following steps will help keep them to a minimum.
First, use those facts you have already identified as favorable to your side for each
witness you will cross examine. From those, catalog the facts with which the witness
will be most likely to agree. You will want to elicit this information early on in your
cross examination, while the witness is most cooperative. Next, list the missing
information-those facts that hurt the other side, and which will likely be left out of
your opponent's direct examination. Finally, list your "attack facts," the ones that
challenge the witness's credibility or directly contradict him.
D. Planning Objections and Responses
You can also use your preparation to identify the objections that may be raised at
trial. Ifyou followed our method, all you need to do nowis decide the objections you will
raise and how you will respond to every possible objection raised by your opposing
counsel.
Go through a process of elimination to chose your battles wisely. You will not want
to make every possible objection, but you will want to be prepared. The decision to
object must be made in reference to your theory of the case. The principal contribution
that an objection can make to your theory of the case is to prevent the admission of
truly damaging evidence. Hence the maxim, "Do not object to anything that doesn't
hurt you." Unless the exclusion ofthe evidence advances your theory, there is probably
no need to raise an objection. It should go without saying that you should never object
to information that you intend to elicit from the same or another witness.
For each objection you decide to make, plan and practice your argument and
prepare for every likely counterargument.
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- CHAPTER THREE -
Communication Techniques
I. THE IMPORTANCE OF EFFECTIVE COMMUNICATION
Every movement and sound you make in a courtroom can communicate a different
message to the fact-finder. Perhaps jurors will determine that you are prepared,
professional, and intelligent. Perhaps they will listen intently to your every word and
ponder your arguments. But what if they do not? What if the judge or jury perceives
you to be tired, overly anxious, bored, nervous, unconvinced, uninteresting and,
ultimately, not persuasive? You can make sure that your message is heard by
communicating effectively at trial.
To begin, every message you send during trial should be imbued with confidence
and integrity, the key attributes of a good litigator.
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. Aconfident
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.
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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 themwithout good cause and by giving themyour 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.
II. NONVERBAL AND VERBAL COMMUNICATION
There are two kinds of communication: "nonverbal" and "verbal." Nonverbal
communication refers to vocal variation, body movement, facial expression, use ofspace,
physical appearance, use of time, and physical context, among other factors. Verbal
communication refers to all vocal and written language. Below you will find verbal and
nonverbal techniques that, if followed, will make you a more persuasive advocate.
A. Nonverbal Communication Techniques
You have undoubtedly heard the expression, "actions speak louder than words."
This sentiment holds true in trials as well; nonverbal messages are often more
believable than verbal messages. Thus, you should be constantly conscious of the
nonverbal messages you send during a mock trial.
1. Stay in role at all times
During trial, assume that the trier of fact is watching your every move and facial
expression.
To make a positive first impression, pay particular attention to your physical
appearance, including your grooming and dress. Your posture and voice may also
determine how you are perceived. As a litigator, you are a professional advocate who
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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.
2. Be careful not to upstage witnesses
All actors know the rules about upstaging one another while they are performing.
Well, the same rules apply in the courtroom. As your client's advocate, you never want
to detract attention as your witnesses testify; the opposite holds true for the opposing
witnesses whose testimony you hope to diminish. The following diagram illustrates
where you should stand during the various stages of a trial:
Presiding Judge
Witness
Stand
y
x
Jury
Box
efendant/Defense Plaintiff/Prosecution
The 'X" and "Y" in the diagramindicate 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 courtroomto 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.
3. Make eye contact with the witnesses and fact-finder
Another concept actors understand is the importance ofeye contact. Fromyour own
experience you have undoubtedly learned that the best way to convince someone that
you are sincere and honest is to look them in the eyes when you are speaking. A trial
is no different. A lawyer who looks at the jurors while addressing them is more likely
to be believed than one who does not.
A particularly powerful use of eye contact during witness questioning is to look at
the fact-finder and pause for a moment when one of your witnesses gives important
testimony during a direct examination, as ifto say, "Did you hear that?" Or, shoot them
a knowing glance when you make a particularly damning point on cross examination,
as if to say, "Can you believe this guy?" Of course, as with any trial technique, overuse
will tend to backfire.
Eye contact is much more than a useful tool of persuasion; it is also a great way to
make sure the jurors are listening to, and understanding, your case. In other words,
do not just look at the jurors occasionally-make it your habit to watch them
throughout the trial. Just as the jurors will be evaluating your actions and reactions
throughout the trial, you should study theirs to determine whether they are following
and understanding the testimony.
4. Use body movement to explain and emphasize points
Like your eyes, your body can be a valuable tool of persuasion throughout a trial.
You can use your fingers to signal numbered points in your argument by lifting them
one at a time as you argue. You can also hold out each of your hands with your palm
facing up when comparing two arguments and asking the fact-finder to weigh one more
heavily than another. You can move from one place in the courtroom to another during
your argument to signal a transition in your argument or to differentiate between
items in a list.
For instance, going back to our fire truck case, assume that the plaintiffs attorney
wants to argue in closing that the defendant's negligence is demonstrated by three
facts established at trial: (1) he was in a hurry that morning; (2) his mind was focused
completely on the business meeting to which he was heading; and (3) he did not notice
the fire truck and pull over, unlike the other cars on the road. While counsel could
make all of these points while standing in the same position, his argument will be
stronger and more memorable if he uses movement in the courtroom to signal his
transitions from point to point. Starting where the "I" is in the diagram on the
following page, counsel could argue all the facts brought out at trial that prove the
defendant was rushed that morning. When he is ready to move on to his next point,
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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
3
Jury
Box
IDefendant/DefenseI
Plaintiff/Prosecution
A strong cross examination technique is to walk closer and closer to a witness
during each series of questions. So, returning to the diagram above, begin a line of
questioning where the "3" is shown and move to the "2" and then to the "1" as you
finish each series of questions, turning and going back to the "3" for each new topic.
Likewise, you can signal a new line of questioning during direct examination by
pausing for a moment and then moving purposefully a few steps in any direction; the
silence and movement will reinforce each other, making it clear that one topic has
ended and another is about to begin. In the same way, you can emphasize an important
point by stepping closer to the trier of fact during opening statements and closing
arguments.
Note that important points should not be made while you are walking since your
audience might pay more attention to your motion than to your words. Instead, use a
transition sentence while you are moving toward the fact-finder, then stop, pause a
moment, and deliver your crucial point while standing perfectly still. The contrast will
emphasize the issue even more.
Two cautions about movement must be given. First, be careful never to invade a
witness's or the jurors' personal space. As a rule, you should avoid getting closer than
three or four feet to any other person in the courtroom. Second, be sure your
movements in the courtroom are deliberate, since that is the best way to concentrate
the fact-finder's attention. Pacing is an example of ineffective movement during trial
since it only serves to distract the fact-finder from your verbal presentation.
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5. Minimize reliance on notes
When it comes to the use of notes at trial, students participating in mock trials can
learn a great deal from studying and understanding the actions of actual trial attorneys.
Trial attorneys nearly always refer to their notes when questioning witnesses and
addressing the finder of fact. They do this because they have an obligation to their
client to try the case to the best of their ability.
If a lawyer forgets to elicit a crucial fact during the testimony or to make a
persuasive argument in closing, real and serious consequences may result. Most
obviously, an innocent defendant could be wrongfully convicted or a guilty defendant
could be wrongfully set free.
Good lawyers therefore take concrete steps to ensure that they do not forget
anything important at trial. On the other hand, experienced trial attorneys recognize
that the overuse of notes can sometimes detract from their ability to persuade the fact-
finder.
Reliance on notes reduces an attorney's ability to make eye contact with the
witnesses and with the finders of fact. As we discussed in the previous section, eye
contact is essential to persuasion. If a lawyer reads every question she asks a witness
on direct, the examination will seem more like an exercise and less like a conversation.
Also, reliance on notes inhibits an attorney from effectively using movement in the
courtroom to explain and emphasize important points. In short, if any portion of a
lawyer's presentation at trial is read directly from her notes, she will appear stilted,
less confident and, ultimately, less persuasive.
Like actual trials, mock trials present an unfortunate dilemma when it comes to the
use ofnotes. Students need to use notes. On the other hand, although there are no real-
life consequences ifa student inadvertentlyleaves out important information in a mock
trial, doing so could affect the fact-finder's verdict (if given) or the scores awarded by
thejudges. Unfortunately, in many mock trials, students are actually marked down for
using notes. This may be because students who use notes in mock trials are perceived
as less persuasive since they cannot make eye contact as often or move around as much
as a result. But it may also be simply because students who use notes appear less
prepared for trial than their empty-handed counterparts. The truth is, the better
prepared all of the participants in a mock trial are, the harder it is for judges to
differentiate between their performances to pick a winner. So, all other things being
equal, judges may give higher scores to students who do not use notes.
What is the answer to this conundrum?
Some students memorize their examinations and arguments. While this certainly
takes away the need for notes, it brings up other possible problems. First, memorizing
the content of examinations and arguments can be more damaging to your
persuasiveness than using notes. There is nothing worse than realizing that you have
just made an argument during your closing about facts that did not come out during
trial. This sort of a mistake will stick out like a sore thumb to everyone in the room,
most notably the judges. Also, when a statement is memorized it may still seemstilted,
since it went straight from paper to prose. Another problem with memorizing the
content of your examinations and arguments is that you will be less prepared for and
able to deal with interruptions that may occur at trial. Astudent who memorizes direct
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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 themis 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, ifavailable. 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.
Ifyou 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 awayfromyou as you performyour 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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Stay in your role at all times
Do not upstage your witnesses
Make eye contact with witnesses and the finder of fact
Use body movement to explain and emphasize points
Minimize your reliance on notes
B. Verbal Communication Techniques
While closely monitoring your nonverbal communication at trial, be sure you are
also getting the most mileage out of your verbal communication. Follow the steps
outlined below to become a more persuasive speaker.
1. Show respect to the judge
Regardless of whether the fact-finder in your mock trial is a judge or jury, you must
always address the presidingjudge with deference (regardless ofwhether she is a real-life
judge). Address the judge as "Your Honor" or "Judge" and always stand when you do so.
Likewise, honor every ruling the judge makes and do not attempt to argue with the judge.
2. Use powerful speech
Intuitively, you already know that powerful speech is more persuasive than
powerless speech. Powerful speech is free of vocal pauses, qualifiers, intensifiers, and
dull adjectives. As with any skill, you can learn to speak more persuasively by training
yourselfto use only powerful speech. The following techniques will help get you started.
a. Take the lead out
Vocal pauses or fillers, such as "urn" and "uh," are sounds used by speakers to avoid
silence. Any student who has sat through a lecture knows that these sounds can be
annoying and even downright distracting.
Silence, as opposed to vocal pauses, adds drama to your speech and slows its rate,
allowing you time to process your thoughts and the listener time to absorb your
argument. The trick to replacing vocal pauses with silence is simple. First, become
aware of your use of vocal pauses. Then, practice isolating your vocal pauses and
consciously eliminate them from your speech. Eventually you will notice how effective
and dramatic long pauses can be. What seemed like an eternity ofsilence to you while
speaking will sound like a natural pause to the listener.
b. Say what you mean and mean what you say
Qualifiers and intensifiers are used in speech to soften or strengthen the meaning
of language. In ordinary conversation, people tend to qualify or temper their ideas as
a matter of politeness or convention and exaggerate or intensify their ideas to signify
emphasis. Examples ofqualifiers are "probably," "sometimes,""perhaps," "maybe," and
"you know what I mean?" Examples of intensifiers are "really," "very," "highly," and
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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: My best estimate at this time is that the restaurant chain would
probably have earned approximately $3.2 million.
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:
Or,
ANSWER:
ANSWER:
I have calculated lost profits at $3.2 million.
The result of my study is a determination of lost profits in the
amount of $3.2 million.
Of course, if the expert's conclusions really are tentative or provisional, counsel
should not attempt to have the witness testify otherwise.
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3. With descriptive language and legalese, be mindful of your
audience
a. When the fact-finder is a jury
Use descriptive language to keep the attention and interest of the jury. This is not
to say that you should change the meaning ofthe facts by using more colorful language;
instead, be creative in your use oflanguage to bring the established facts to life and to
allow the jurors to visualize the scene. As we discussed in Chapter 2 ("Case
Preparation"), the story you tell at trial can make or break your case. Whatever story
you tell, make sure to keep it interesting-the best explanation for the events in the
case is worthless if it falls on deaf ears.
Avoid the use of complex legal terms in jury trials. The members of any given jury
are not likely to have independent knowledge of the area of law in question at trial.
Most jurors are laypersons who have only been exposed to the law through the media
or social interaction with attorneys. Laypersons are often skeptical and mistrustful of
lawyers they do not know. All of these effects are minimized through the use of simple
language. By talking to the members of the jury and not above them, you will succeed
in explaining the law and earning their trust-improving your persuasiveness.
b. When the fact-finder is a judge
Judges are not as easily swayed by drama and emotion as jurors. Real-life judges
hear so many cases that after a while they become somewhat immune to gruesome
crimes; they are no longer shocked by events that might horrify the members of a jury.
Thus, while you can and should use descriptive language when presenting your case
to a judge, be mindful not to get too wrapped up in drama or emotion.
You may use legalese when addressing a judge, but you should still explain legal
terms simply to demonstrate that you understand them. Be careful when you do this,
however, that you do not adopt the same tone you might use when talking to a younger
sibling or cousin; it is safe to assume that the judge understands these concepts.
4. Make use of the effects of primacy and recency
Primacy and recency refer to the widely accepted phenomenon that people tend to
remember best those things that they hear first and last. So, put your strongest
arguments first and last so the jurors will remember them. This applies to every stage
of a trial, including discrete subparts within your witness examinations and
arguments. Without confusing the trier of fact or neglecting to lay foundation, always
try to put your two strongest points at the beginning and end to maximize their impact.
In our intersection case, for example, the presence of the fire truck may well be the
most important part ofthe plaintiffs testimony. It should therefore be introduced early
in her direct examination and alluded to again at the end.
A helpful corollary to the idea of primacy and recency is what might be called
"interment." If the first and last points are remembered best, then it follows that the
midpoints will be remembered least. In every trial there will be information that you
believe you must mention but that is embarrassing or potentially counterproductive.
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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 himselfandgenerallywarmup 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.
5. Use repetition and duration to emphasize your most
important points
Repetition and duration are also related concepts; they are used to emphasize the
significance of certain information.
The concept of repetition holds that the more times you repeat a fact, the more
likely it is to be believed, remembered, and understood by the fact-finder. Thus, your
most important points should arise again and again throughout the testimony to
ensure that they are retained. Repeating information can be tricky at trial since you
are not allowed to ask the same witness the same question twice due to the "asked and
answered" objection. To avoid an objection, employ your creativity to fashion several
slightly different questions, each stressing the same point.
How do you decide which facts are sufficiently important to bear repetition? To
answer this question consider your theory and theme and repeat only those facts that
are crucial to your theory and those that best evoke your moral theme.
In our fire truck case, the gist of the plaintiffs theory is that she stopped for a
passing fire truck while the defendant did not. Her single most important fact is the
observable presence of the fire truck. Thus, the words "fire truck" should be inserted
at every reasonable point during the examination. At the close of her testimony you
want to have created the image that the fire truck dominated the scenery. How many
different ways can the witness describe the fire truck? In how many locations can she
place it? How many times can she use it as a reference point for other testimony?
Similarly, the concept of duration states that the more time you spend on a topic,
the more important it will seem. For example, as we stated above, the most important
point for the plaintiffin the fire truck case is the presence and noticeability of the fire
engine. Thus, although the plaintiffs initial observation of the truck could be
established in a single question and answer, the importance of the subject dictates
greater duration for this part of the direct examination:
QUESTION:
ANSWER:
QUESTION:
ANSWER:
What did you see as you drove south on Craycroft Road?
I saw a fire truck.
Describe it, please.
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:
ANSWER:
Were the lights flashing?
Yes, and it was sounding its siren.
How far away were you when you first noticed the fire truck?
I would say almost a block away.
Repetition and duration can easily be overdone and misused. Dwelling on
something does not require beating it into the ground. Even the most crucial,
compelling, climactic evidence can be trivialized by extended overtreatment. Likewise,
iftoo many facts are repeated, repetition will lose its impact. Thus, use repetition and
duration, but always use themwith restraint. Remember that emphasizing everything
is the equivalent of emphasizing nothing.
6. Use reflective questioning to illustrate time, distance, and
intensity
One technique for creating a mental image in the jurors' minds is called reflective
questioning, an approach that uses the pacing of language to evoke time, distance, or
intensity. The timing or duration of an event, for example, is often crucial in a trial; one
side claims that things happened quickly and the other asserts that they were drawn
out. It is possible to use the pace of questioning to support your particular theory.
Speaking rapidly makes events seem faster, closer together, more intense, and more
disorganized. Speaking slowly makes things seem slower, further apart, more
reasoned, and more relaxed. Thus, you can reflect the story that you want to tell by
varying your pace as you proceed with your argument or questioning.
Assume that you represent the defendant in our fire truck case. His defense is that
the fire engine appeared only a moment before the collision and that hejust didn't have
enough time to stop his car. The goal of the defendant's direct examination must be to
re-create that scene by collapsing the time available to react to the fire truck. Hence,
you will ask only a few, fast-paced questions:
QUESTION:
ANSWER:
QUESTION:
ANSWER:
QUESTION:
ANSWER:
When did the fire truck first become visible?
It approached the intersection just as I did.
What was the very first action that you took?
I slammed on my brakes.
How much time did that take?
Less than a second.
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Note that this direct examination proceeds quickly, emphasizingboth 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:
ANSWER:
QUESTION:
ANSWER:
QUESTION:
ANSWER:
QUESTION:
ANSWER:
QUESTION:
ANSWER:
QUESTION:
ANSWER:
QUESTION:
ANSWER:
QUESTION:
ANSWER:
QUESTION:
ANSWER:
QUESTION:
Where was the fire truck when you first saw it?
It was about a quarter of a block away from the intersection.
How far away from you was it?
About one hundred yards.
How many other cars were between you and the fire truck?
Three or four.
What did they do as the fire truck approached?
They all stopped.
How long did it take those other cars to stop?
Normal stopping time-a few seconds.
What was the first thing that you did?
I started to pull over to the side.
How long did that take?
Five seconds or so.
What did you do after that?
I brought my car to a stop.
How long did that take?
Well, I applied my brakes right away, and it took a few seconds
for the car to stop.
Then what happened?
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ANSWER:
QUESTION:
ANSWER:
That's when the other car rear-ended me.
How much time elapsed between the moment when you first saw
the fire truck and the time that the defendant's car hit yours?
At least ten or fifteen seconds.
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.
7. Use nouns and verbs in place of adjectives
The most evocative words used in trials are nouns and verbs. This may seem
counterintuitive; many lawyers think that adjectives are the best words for conjuring a
mental image. But the fact is that adjectives tend to convey judgments, which can make
them seem argumentative and, thus, undependable to the fact-finder. Nouns and verbs,
however, do not suggest a beliefabout something but rather a description ofthe thing itself.
Suppose, for example, that someone told you that a certain automobile was "ugly."
The adjective "ugly" conveys an aesthetic judgment. Depending upon the speaker and
the circumstances, you might agree with the characterization or you might not. Adding
an intensifying adverb does not help. "The car was really ugly." Even with inflection,
adjectives and adverbs tend to lack intrinsically descriptive power. They convey
opinions but not the bases for those opinions.
Now suppose that the same person told you that the automobile's paint had peeled
off ofthe doors and that its hood was so rusted that you could see right through to the
engine in several places. The windshield was covered by a spider web of fracture lines.
The tailpipe dragged on the ground. One fender was missing and another was replaced
by a mismatched part from a different model. The hubcaps were gone and the trunk
was held down with bungee cords. These nouns and verbs (helped out by an occasional
participle) tell the whole story-that car was ugly!
8. Use apposition to compare related facts
Apposition refers to placement or juxtaposition ofimportant facts in a manner that
emphasizes their relationship. Again looking at the intersection case, a strictly
chronological direct examination might have the plaintiff begin by explaining where
she was headed on the morning of the accident. Assume now that she was going to an
art exhibit that would not open for another hour. The importance and value of this
seeminglyinnocuous fact can be heightened tremendously by apposingit to the conduct
ofthe defendant immediatelyfollowing the accident. Imagine the impact ofcontrasting
the plaintiffs unhurried trip with the following information about the defendant:
QUESTION:
ANSWER:
QUESTION:
Where were you going on the morning of the accident?
I was going to the Art Institute.
Were you in any hurry to get there?
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ANSWER:
QUESTION:
ANSWER:
QUESTION:
ANSWER:
It wasn't going to open for an hour, so I was in no hurry at all.
What did you do immediately after the accident?
I asked the defendant if he was all right.
What did the defendant do immediately following the accident?
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.
9. Use headlines for emphasis and transition
Believe it or not, trials are just plain dull to most observers. Argument is seldom
gripping, and most witness examinations tend to drag on and on. Burdened by this
millstone of tedium, the attorney's task is twofold. First, you must do your utmost to
make it all as interesting as possible. Second, you must develop means to let the fact-
finder knowwhen somethinginteresting (and truly important) is about to happen. This
last responsibility can be aided by the use of headlines, transitions, and signals.
A newspaper headline is printed in bold type so that it will draw the readers'
attention to the story below. Alawyer's headline serves the same purpose. It alerts the
fact-finder to the significance of the information that is about to follow. Although
lawyers lack the advantage of distinctive typeface, the phrasing of headlines can
perform the same function. In direct examination, a relatively modest headline might
take this form:
COUNSEL: Let's talk about your training now, Dr. Harris.
A much bolder headline during an opening statement could be:
COUNSEL: This case is about broken promises. Let me tell you about the
first one.
And the equivalent of a screaming banner might come in final argument:
COUNSEL: The defendant is a murderer-and here is the fact that proves it.
A transition is a specific type of headline, one that signals the end of one subject
and the beginning ofanother. Transitions are particularlyhelpful 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, during a direct examination:
COUNSEL: Doctor, now that we have talked about your qualifications as an
expert, let's move on to the opinions you reached in this case.
10. Use enumeration when addressing related points
Finally, the technique ofenumeration might be the most effective ofall. You might
recognize this phenomenon from your classes. As soon as the lecturer announces that
there are "three reasons" or "four rules" or "six characteristics," every person in the
room picks up a pen and begins to take notes. It seems that little serves to concentrate
the mind more than the onset of a numbered list. Take, for example, this portion of a
closing argument:
COUNSEL: There were three different moments at which the defendant
could have avoided this accident. Let me explain them to you.
Or, this portion of an expert's direct examination in a civil case involving the
calculation of lost profits:
QUESTION:
ANSWER:
QUESTION:
ANSWER:
Dr. Harris, what is your opinion of Dr. Gupta's study?
There are three basic problems with Dr. Gupta's study.
What are those problems?
First, she projected profits on the basis of only two factors.
Second, she failed to consider location, which should have been
the most important element. Third, she doesn't seemto recognize
that population growth can be extremely uneven.
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 fact-
finder's attention.
The technique ofenumeration is particularlyeffective 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.
11. Do not be overly thankful
We see this all too often. For some reason students feel compelled to thank the
presidingjudge and the witnesses constantly during mock trials. While it is natural to
thank someone for doing something they did not have to do, you should not thank the
participants ofa trial for simplydoing theirjob. Judges rule on objections-that is their
job. Do not thank ajudge for ruling on an objection. Witnesses answer questions-that
is their job. Do not thank a witness for answering a question.
While you can and should be polite at all times during a mock trial, do not be overly
thankful. After a while, your thankfulness will be distractingto everyone in the courtroom.
-42-
Mock Trials
305
12. Resist the temptation to respond to witnesses' answers
Another mistake beginners often make during mock trials is responding to
witnesses' answers, whether on direct or cross examination. This example is not at all
uncommon:
QUESTION:
ANSWER:
QUESTION:
What did you do next?
I opened the door to see if anyone was inside.
That makes sense. Then what did you do?
Technically the lawyer's response in this example is impermissible commenting on the
evidence and it merits an objection that "Counsel is testifying." This example is even
more common:
QUESTION:
ANSWER:
QUESTION:
Isn't it true that you then opened the door to see if anyone was
inside?
Yes, that's right.
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.
Refer to the presiding judge as "Your Honor" or "JUdge"
Maximize use of descriptive language and minimize "legalese"
Make use of primacy and recency
Use repetition and duration to emphasize important points
Use reflective questioning to illustrate the passage of time
Use nouns and verbs rather than adjectives
Use apposition to compare related facts
Use headlines for emphasis and transitions
Use enumeration when addressing related points
Do not be overly thankful
Do not reply to a witness's answers
-43-
Mock Trials
306
III. COMMUNICATING WITH PICTURES AND DEMONSTRATIONS
The saying "a picture is worth a thousand words" is true. Even the best speakers
cannot convey detailed information as well a picture, or, for that matter, a diagram, a
chart, or even a list. Therefore, whenever you can, you should use visual aids when
presenting your case.
A. Make Use of the Exhibits
Consider whether the testimony in each of your direct examinations can be
illustrated with an exhibit. If a witness is going to testify about a pivotal document,
have it enlarged or publish it to the fact-finder so they can look at it during the
witness's testimony. If the witness is going to testify about the events at the scene of
the crime and a map of the scene has been provided in your case file, enlarge it so the
witness can use it to explain what happened.
Then, return to these exhibits in your closing argument. Any item that has been
admitted in evidence may be read out loud, displayed, or enlarged for use during
closing argument. Counsel can underline key passages in important documents or can
array various documents side by side. This last technique is particularly useful to
demonstrate relational concepts such as contradiction or continuity.
You may also use exhibits in your opening statement, but only ifyou are sure they
are admissible.
B. Create Visual Aids
Depending on the rules ofyour mock trial, you may be allowed to create visual aids
to help explain the evidence to the trier of fact. During witness testimony, use these
"demonstrative" aids to help explain the witnesses' testimony. For instance, if a
witness will testify about a series oftransactions, create a demonstrative exhibit in the
form of a time line to illustrate the progression of events to the jurors.
As with exhibits, return to these aids during your closing argument to summarize
the witness's most important testimony. You may also create entirely new visual aids
that layout your arguments for the jury in closing. Be creative-anything you use to
spice up your argument will be appreciated by the trier of fact. Whatever you do, be
sure to incorporate your theory and theme, literally or in spirit.
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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307

308


Lesson 8.2: Case Preparation II
Trial Notebook
Sample Case File

Lesson Objective: Students will be familiar with a Sample
Case File which will be used in preparation exercises for the
mock trial. (This is not the case file to be used in the
competition, but a learning experience.) Students will be
able to organized the case file and information they gather
and prepare into the Trial Notebook.

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
311
Trial Notebook Instructions

This trial notebook is intended to be placed in a three ring binder to be used to organize trial
materials. If exhibits are voluminous they should be placed in a separate binder.

The trial notebook should be the center of your preparation for trial and your central resource at
trial. Create a section of the notebook for every item listed under Trial Notebook Contents.

312
Trial Preparation Checklist

Due: Assigned to: Task Done
1 2 months before trial
___/___/___ _______ Prepare chronology ___/___/___
___/___/___ _______ Review all discovery, statements, ___/___/___
___/___/___ _______ Identify potential exhibits for both sides and potential
objections
___/___/___
___/___/___ _______ Ensure contact information for witnesses is complete ___/___/___
___/___/___ _______ List and begin to prepare pretrial motions ___/___/___
___/___/___ _______ Order transcripts ___/___/___

2-4 weeks before trial
___/___/___ _______ File pretrial motions ___/___/___
___/___/___ _______ Send out subpoenas ___/___/___
___/___/___ _______ Draft jury instructions ___/___/___
___/___/___ _______ Assemble trial notebook ___/___/___
___/___/___ _______ Order demonstrative exhibits ___/___/___
___/___/___ _______ Prepare closing argument; opening statement;
elements of proof
___/___/___
___/___/___ _______ Order demonstrative exhibits ___/___/___
___/___/___ _______ Meet with client ___/___/___

1 2 weeks before trial
___/___/___ _______ Submit draft jury instructions and voir dire questions ___/___/___
___/___/___ _______ Obtain rulings on pre-trial motions ___/___/___
___/___/___ _______ Schedule meetings with witnesses; check contact data ___/___/___
___/___/___ _______ Verify all subpoenas served and returns filed in court ___/___/___
___/___/___ _______ Prepare witness outlines ___/___/___

313

1 week before trial
___/___/___ _______ Meet with witnesses and refine direct examination ___/___/___
___/___/___ _______ Mark exhibits; review objections and responses ___/___/___
___/___/___ _______ Review opposition exhibits ___/___/___
___/___/___ _______ Refine exhibit list ___/___/___

1-2 days before trial
___/___/___ _______ Check with each witness; advise of probable time;
update contact data
___/___/___
___/___/___ _______ Mark exhibits ___/___/___
___/___/___ _______ Meet with client ___/___/___
___/___/___ _______ Refine cross examination, closing. opening ___/___/___
___/___/___ _______ Rehearse closing and opening ___/___/___

314
Trial Notebook Contents

Indictment, Statute and Cases
Trial Memorandum
Chronology
Elements of Proof

Jury List
Voir Dire
Witness List Prosecution
Witness List Defense
Exhibit List
Anticipated Objections

Preliminaries

Opening Statement
Direct Examination
Cross Examination
Motions
Jury Instructions
Closing Argument

Post Trial
Contact List
315
Chronology

Date Event Witness Exhibit

316
Elements of Proof

Prosecution Defense

Count No. ___ _________________________________________________________________

Element Facts Witnesses Exhibits

317
Juror Information Form

Jury Box 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:
318
J
u
r
y

B
o
x

319
Witness List

Prosecution Defense

Name

Addresses Telephone/ Email Subpoena

H___________________
____________________
____________________
W___________________
____________________
____________________
C ______________
H ______________
W______________
Email:
_________________

___/___/___Issued
___/___/___Served

H___________________
____________________
____________________
W___________________
____________________
____________________
C ______________
H ______________
W______________
Email:
_________________

___/___/___Issued
___/___/___Served

H___________________
____________________
____________________
W___________________
____________________
____________________
C ______________
H ______________
W______________
Email:
_________________

___/___/___Issued
___/___/___Served

H___________________
____________________
____________________
W___________________
____________________
____________________
C ______________
H ______________
W______________
Email:
_________________

___/___/___Issued
___/___/___Served

320
AO 187 (Rev. 7/87) Exhibit and Witness List
_____________DISTRICT COURT
DISTRICT OF
EXHIBIT AND WITNESS LIST
V.
Case Number:
PRESIDING JUDGE PLAINTIFFS ATTORNEY DEFENDANTS ATTORNEY
TRIAL DATE (S) COURT REPORTER COURTROOM DEPUTY
PLF.
NO.
DEF.
NO.
DATE
OFFERED
MARKED ADMITTED DESCRIPTION OF EXHIBITS* AND WITNESSES
* 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
321
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

324
Cross Examination
Witness _______________________

Exhibits needed:

Most helpful points:

Most damaging points:

Prior statements:

Topic _________________________________________________________________

Specifics Exhibits/
Statements

Topic _________________________________________________________________

Specifics Exhibits/
Statements

325
Topic _________________________________________________________________

Specifics Exhibits/
Statements

Topic _________________________________________________________________

Specifics Exhibits/
Statements

Topic _________________________________________________________________

Specifics Exhibits/
Statements

326
Closing Argument

Exhibits needed:

Instructions needed:

In one sentence:

First sentence:

Last sentence:

Outline:

327
Contact List

Case name ____________________________________ Case no._______________________

Judge: _______________________________________ Our file number _________________

Other Lawyers, Investigators, Family Members:

Name

Address Telephone/ Email
__________________________

__________________________
__________________________
__________________________
C __________________
H __________________
W__________________
Email:
____________________

__________________________

__________________________
__________________________
__________________________
C __________________
H __________________
W__________________
Email:
____________________

__________________________

__________________________
__________________________
__________________________
C __________________
H __________________
W__________________
Email:
____________________

__________________________

__________________________
__________________________
__________________________
C __________________
H __________________
W__________________
Email:
____________________

328
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

This is a sample case file for use in class sessions and
is NOT the case file that will be used in competition.
329
IN THE DISTRICT COURT
FOR THE DISTRICT OF CALUMET
CITY OF CALUMET,
Plaintiff,
v.
BOB SMITH,
Defendant.

INDICTMENT
Case No. 06-078 SP
District Judge Sandra Peckham

We the Grand Jury duly empanelled in this court charge:
COUNT I
On or about March 25, 2006, in the District of Calumet,
BOB SMITH
the defendant herein, did unlawfully, willfully and feloniously steal, take, and carry away and
attempt to steal, take and carry away another's personal property, of the value of $500.00, from
the place of business of Crossroads Convenience Store. The defendant committed this act
having in possession and with the use and threatened use of firearms and other dangerous
weapons, implements, and means, whereby the life of Ernestine Gerbing was endangered and
threatened.
Dated this 12
th
day of June, 2006.
A TRUE BILL:

________________________________________
FOREPERSON FOR THE GRAND JURY
330
Calumet Police Department

Investigation Summary

Incident Number
3425-23
Incident Date
3/25/06
Incident Time
10:30 pm
Complaint by
Ernestine Gerbing

Complainant Address
182 Highway 17
Calumet
Phone
732-0829
Report by
Dan Patterson

Assisting Officers

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

Witness Statement

Statement of
Ernestine Gerbing

Address
182 Highway 17
Calumet
Phone
732-0829
Taken by
Dan Patterson

Statement Date
3/25/06
Statement Time
11:34 pm
Incident Number
3425-23
Incident Date
3/25/06
Incident Time
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, J ust empty that here. And he gives me a plastic bag, from Walmart, and I
say J ust 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.

I have read this statement and agree that it is true.

__________________________________________________ ____/____/____
Signature Date
332

Witness Statement

Statement of
Angelo Davis

Address
412 Sandstrom Avenue
Calumet
Phone
234-0098
Taken by
Dan Patterson

Statement Date
4/4/06
Statement Time
11:30 am
Incident Number 3425-23 Incident Date 3/25/06 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.

I have read this statement and agree that it is true.

__________________________________________________ ____/____/____
Signature Date

333

334
Coolers

Doors
C
o
u
n
t
e
r
Groceries
Groceries
Groceries
Groceries
Groceries
P
i
z
z
a

335

336

337

Utility Bill
front and back

338
Rent Receipts

339

April 10, 2006

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
IN THE DISTRICT COURT
FOR THE DISTRICT OF CALUMET
CITY OF CALUMET,
Plaintiff,
v.
BOB SMITH,
Defendant.

ORDER AND JUDGMENT
OF CONVICTION
Case No. 34-078 SP
District Judge Sandra Peckham

Defendants Name: Bob Smith Defendants Social Security Number: 546-20-0987
Date of Imposition of Sentence: October 29, 1997
The defendant pleaded guilty to Count I, Theft of Property (value exceeding $1000), and
is hereby sentenced to pay a fine of $1,500.00, and sentenced to a 366 day term of imprisonment
at the State Prison, which is suspended. The defendant is placed on probation for a period of
three years on the following standard conditions and the further condition that he shall serve a
total of 30 days in the Calumet Jail, which may be served on weekends.
STANDARD CONDITIONS OF PROBATION
1) the defendant shall not leave the judicial district without the permission of the
court or probation officer;

2) the defendant shall report to the probation officer and shall submit a truthful and
complete written report within the first five days of each month;

3) the defendant shall answer truthfully all inquiries by the probation officer and
follow the instructions of the probation officer;

4) the defendant shall support his or her dependents and meet other family
responsibilities;

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 12
th
day of November, 1997.
BY THE COURT:

________________________________________
District Judge
2
#206784 v1
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


Lesson 9.1: Closing Argument Lecture
MT Chapter Twelve Closing Argument

Lesson Objective: Students will understand the components
of a Closing Argument and its keystone position in a criminal
jury trial.

345
- CHAPTER TWELVE -
Closing Argument
I. THE PURPOSE OF THE CLOSING ARGUMENT
Closing argument is the advocate's only opportunity to tell the story of the case in
its entirety and free from most constraining formalities. It is the moment for pure
advocacy, when all of the lawyer's organizational, analytic, interpretive, and forensic
skills are brought to bear on the task of persuading the trier of fact.
Closing argument is the conclusion of the battle for the fact-finder's imagination.
Recall that opening statement marks the beginning ofthe attorney's efforts to help the
trier of fact construct a mental image of occurrences, locations, objects, and
transactions at issue in the case. This mental image, in turn, influences the way in
which the judge or members ofthe jury receive and interpret the evidence. At the close
ofthe case, counsel returns to strengthen and explain the significance ofthose mental
images.
Understanding this process should tell us something about closing arguments. If
counsel has been successful, the opening statement painted a picture that the fact-
finder began to accept and internalize. The witnesses, documents, and exhibits fit
neatly into that picture, reinforcing the image that counsel created. At closing
argument the attorney can then nail down the image by pointing out the crucial details,
weaving together the witnesses' accounts, and explaining the significant connections.
All three aspects of the trial-opening, witness examinations, and closing-should
combine to evoke a single conception of events.
Thus, the closing argument cannot be fully successful unless the preceding stages
of the trial were also successful. The opening statement's mental image will not stay
with the trier of fact unless it is sustained by evidence from the witness stand. More
to the point, the closing argument must not paint a picture that is contrary to, or
unsupported by, the evidence. While closing argument can and should be the capstone
of a well-tried case, it is unlikely to be the saving grace of a poor one.
In sum, the closing argument must tell the whole story ofthe case, but it cannot tell
just any story. The closing argument has to complement the portrait begun during the
opening statement, and, even more important, must reflect and encompass the
evidence in the case. This goal can be best accomplished only when the case is
presented according to a well-defined theory and powerful theme.
II. THE RULES OF CLOSINGARGUMENT
The three main rules of closing argument are to use your theory and theme, to
argue for a verdict in your favor based on the evidence admitted during trial, and to
avoid making impermissible arguments. Each of these rules is discussed in detail
below.
-217-
Mock Trials
346
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.
A. Use Your Theory and Theme
If nothing else, the closing argument must communicate the advocate's theory of
the case. Some witnesses can be disregarded, some details can be omitted, some legal
issues can be overlooked, but the theory of the case is essential.
The closing argument, therefore, must be used to illuminate your theory. This
means that you must tell the jury, or the court, why your client is entitled to a verdict.
A simple recitation of facts is not sufficient. Rather, the argument should bring
together information fromthe various witnesses and exhibits in a way that creates only
one result.
A good trial theme provides an incentive for the entry of a verdict in your client's
favor. In addition to being logical and believable, a trial theme invokes shared values,
civic virtues, or common motivations. The theme can be stated during the opening
statement and alluded to in witness examinations, but it can be hammered home in the
closing argument. Again, consider the plaintiffs closing argument in the fire truck
case:
The defendant was "too busy to be careful." We know that from his actions and
their consequences. But what was he busy doing? He was rushing to a meeting
for the sole purpose ofincreasinghis income. He was worrying about money, not
about safety. It is true that he was late, but that was no one's fault but his own.
And once he was late he was so obsessed with getting to the meeting that he
threw caution out the window. He was so busy that he didn't even care to see
whether the plaintiff was injured. No, that business meeting was all that
mattered. Well, everyone is at risk when drivers behave that way. No one is safe
on the road when people care more about their meetings than they do about the
way they are driving. You cannot allow someone to think that it is all right to
be "too busy to be careful."
Admittedly, the moral dimension of an intersection accident is not overpowering.
Cases involving crimes, frauds, civil rights violations, wrongful death, child custody,
reckless conduct, and even breach of contract will provide more fertile ground for the
assertion of a moral theme. Nonetheless, even the most mundane case can be
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approached from the perspective of rectitude by explaining how and why your client's
position makes sense for reasons other than strict legality.
B. Argue, Argue, Argue!
Recall that the cardinal rule of opening statements is that you may not argue. In
closing argument, on the other hand, you may, should, and must argue if you are
serious about winning your case. The gloves are off and the limitations are removed,
but what precisely distinguishes argument from mere presentation of the facts? The
following are some of the most useful techniques you can use during your closing
argument.
1. Make inferences and conclusions
In closing arguments, the attorneys are free to draw and urge inferences and
conclusions based upon the evidence.
For example, in the fire truck case, assume that the trial testimonyshowed that the
defendant's parking garage is located two blocks from his office. Fromthat known fact
it could be inferred that it would take the defendant at least five minutes to walk from
the garage to his office. It could further be inferred that the defendant knew how long
it would take him to reach his office. Such inferences, based upon a combination of
proven fact and everyday experience, could be used to support the larger conclusions
that the defendant was in a rush at the time of the accident, that he was preoccupied,
or that he was trying to plan for his meeting while driving because he wouldn't have
time to plan for it after he arrived at the office.
Remember as you make inferences and conclusions, however, that they will be
accepted only when they are based on the facts and well-grounded in common
understanding. It is not sufficient for a closing argument to draw, or even urge,
inferences and conclusions; the argument must go on to explain why the desired ones
are the correct ones.
2. Cluster circumstantial evidence and accumulate details
Closing argument is the time for gathering and presenting details. Although the
particulars may have occurred at different times and have been testified to by several
witnesses, they can and should be aggregated to make a single point in closing
argument.
For instance, the plaintiffin the fire truck case will want to collect all ofthe details,
both direct and circumstantial, that support her proposition that the defendant was
preoccupied with thoughts of his important meeting:
We know that his mind was not on his driving. Look at the details. He was late
for work. He had an important meeting scheduled for 8:30 A.M., and he was still
sixteen miles from downtown. He had to park his car, leave the garage, walk
over two blocks to his office, and get up to the fourteenth floor. And look at what
would happen if he were late. The defendant himself testified that he was
meeting with a potential new client and that he hoped to land a valuable
account. New clients mean advancement and raises. Losing a new client means
losing money. You can't land a new client if you don't make it to the meeting.
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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 newclient means money) and negative (he didn't
call an ambulance) inferences. It is the clustering or accumulation ofall ofthese points
that gives the argument its persuasive weight.
3. Use analogies, allusions, and stories
a. Analogies
An analogy can explain human conduct through reference to everyday human
behavior. Using an analogy can bolster a witness's testimony by comparingher version
of events to some widely understood experience or activity.
Suppose that the defendant in the fire engine case testified that he saw the fire
truck but that he did not slow because the siren was not sounding. To show that this
conduct was unreasonable, the plaintiffs attorney might compare it to playing Russian
roulette with the safety of every other driver on the road:
Just because the defendant didn't hear the siren ofthe fire truck doesn't mean
that it wasn't sounding. You wouldn't expect someone to pick up a gun and fire
it at somebody, claiming, ''Well, I didn't see any bullets." Of course not. A gun
is dangerous, and simple prudence means that you should always treat it as
though it is loaded. Well, cars can be dangerous too. As soon as he saw the fire
truck the defendant should have recognized the possibility that traffic would
slow or stop. He should have recognized the possibility that it was answering
a call, whether he heard the siren or not. Continuing to drive, without at least
slowing down, was the equivalent of pointing a loaded gun down the road.
The above excerpt takes conduct that everyone will recognize as unreasonable and
explains why the defendant's conduct falls into the same category.
Analogies can support testimony as well as deride it, and they can be short as well
as extended. Consider the following example from defense counsel's closing argument:
Fire trucks use their sirens to tell traffic to stop. We have all seen fire engines
on the street that weren't responding to calls. Without their sirens they arejust
part of traffic. If you look up into the sky and see an airplane flying by, you
don't say, "I'd better take cover; it's going to crash."
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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 inthe fire truck case might
disparage the plaintiffs injury claimwith 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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4. Emphasize the undisputed facts
Undisputed facts consist of the testimony, exhibits, and other evidence that you
have offered and which the other side has not controverted. The opposition's decision
not to produce contrary evidence greatly enhances the value of such undisputed facts.
While not quite so powerful as admissions from the other side, undisputed facts can
provide a sturdy cornerstone for case theory and closing argument:
It is undisputed that there was a fire truck at the corner of Alta Vista and
Craycroft. It is undisputed that the engine was answering a call. It is
undisputed that other drivers slowed down or pulled over for the fire truck. It
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.
5. Refute the opposing witnesses' testimony
Another distinguishing feature of argument is refutation of opposing positions.
Opening statements and witness examinations may recite and elicit facts that are
contrary to the opposition case, but closing argument can refute it directly by pointing
out errors, inconsistencies, implausibilities, and contradictions. Consider this extract
from the plaintiffs closing argument in the fire engine case:
The defendant claims that he was not distracted on the morning ofthe accident,
but that cannot be true. We know that he woke up late and had an important
meeting to attend with a potential new client that morning. By the time he got
ready for work and got to his car he was already at least thirty minutes behind
schedule. By the time he reached the corner of Craycroft and Alta Vista he was
still running over twenty minutes late-he still had to drive downtown, get to his
garage, park his car, and proceed to his office, all in less than twenty minutes.
There is no plausible way for the defendant to deny that he was preoccupied
and in a hurry. His mind must have been elsewhere; certainly it wasn't on his
driving. Every driver sawand heard the fire truck, but not the defendant. Every
driver stopped or pulled over, but not the defendant. Those were not the acts of
a careful man.
One last fact shows just how absorbed the defendant was. Right after the
accident he jumped out of his car and pulled out his cell phone. He called his
office. That meeting was so important to him that he didn't even check to see
if the other driver was hurt. That meeting was more important to him than a
possible injury. No wonder it was more important to him than safe, careful
driving.
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6. Tie up your cross examinations
Closing argument is your chance to tie up the issues that were intentionally left
unaddressed during cross examination. Recall the questions that are avoided by a
prudent cross examiner: never ask a witness to explain; never ask a witness to fill in
a gap; never ask a witness to agree with a characterization or conclusion. These
questions, and others like them, all risk losing control ofthe witness. There is a strong
consensus that it is better to refrain from asking "the ultimate question" and to make
the point instead during the closing argument. Thus, if your cross examinations were
artful and effective, you should be able to spend some portion of the closing argument
drawing the previously unspoken conclusions.
Likewise, be sure to use the admissions made by opposing witnesses during the
trial. Doing so can make for powerful arguments since the opposing party would not
offer self-damagingtestimony unless it was unavoidably true. The defendant in the fire
engine case, for instance, makes an admission when he testifies that he was late for a
meeting at the time of the accident. This fact passes every test of believability when
used in the plaintiffs closing argument:
How do we know that the defendant was running late that morning? He said so
himself. Just remember his words. He said, "I woke up late that morning, and
I knew that I would have to hurry up to get to my meeting."
This type of argument can continue, taking advantage of points that were scored on
cross examination precisely for this purpose:
The defendant's own words also tell us how preoccupied he was. After all, it was
the defendant who testified about the importance of new clients. I'm sure you
remember how he answered when I asked him if new clients mean money. He
said, "Yes, that's what we're in business for." And then I asked him whether
this particular new client was a valuable one, and he said, "Every new client is
valuable." So there he was, late for his meeting with a valuable new client,
worrying about how much money he might stand to lose.
Note that for the purpose of believability analysis, admissions need not be direct
concessions, nor do they need to come in the form of testimony from the actual party.
Anything can be exploited as an admission so long as it was produced by the other side.
A strong closing argument can therefore make use of the opposition's witness
testimony, exhibits, charts or graphs, tangible objects, or even statements and promises
made by opposing counsel during opening statement.
7. Argue witness credibility and motive
Counsel may also use the closing argument to comment on, and compare, the
motive and credibility of witnesses. Most mock trials involve competing renditions of
past events, which the trier of fact must resolve in order to reach a verdict. Closing
argument is the only time when the attorney may directly confront the character ofthe
witnesses and explain why some should be believed and others discounted.
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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 soundingits 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.
8. Assert the weight that should be given to evidence
While the opening statement is limited to a recitation ofthe expected evidence, the
closing argument can be used to assert the weight of the evidence. Why is one version
preferable to another? Why should some facts be accepted and others rejected? Why is
one case stronger than the other? Consider the way in which the defense counsel in the
fire truck case might argue the weight of the evidence regarding plaintiffs damages:
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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.
9. Comment on the opposing witnesses' demeanor
It is fair game in closing argument to comment on a witness's negative demeanor
so long as the comment is adequately based on observable fact. It is a good idea, for
instance, to remark upon a witness's refusal to give a simple answer or to make an
obvious concession during a cross examination. Such witnesses are common in mock
trials, where they are frequently members of the opposing team. In a real trial, any
witness who behaved this way would be perceived as evasive and untrustworthy.
Although yours is not a real trial, your presidingjudge orjurymight still agree that the
demeanor of the individual playing the witness role made him less than believable.
10. Confront your weaknesses
Closing argument can be used to solve problems and confront weaknesses. No
matter how well the evidentiary phase of the trial proceeded, you are sure to be left
with a number of difficult or troublesome issues. Once identified, these issues can be
addressed and resolved in the course of closing argument.
A classic instance of such a weakness is the government's reliance on informers in
drug prosecutions. Informers are assailable witnesses to begin with, and in drug cases
they are often further sullied with histories of their own substance abuse. Recognizing
the problems created by reliance on such witnesses, prosecutors have developed over
the years an almost standardized, and extremely effective, closing argument approach.
In its barest form it goes something like this:
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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 credibilityofcircumstantial evidence duringyour 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.
11. Comment on promises kept and broken
Attorneys on both sides of a case will inevitably make various promises and
commitments to the fact-finder during the course of the trial-usually during opening
statements. Now is your chance to comment on promises made, kept, or broken. Point
out the ways in which you fulfilled your commitments. Perhaps more importantly, and
certainly more dramatically, underscore the ways in which the opposition failed to live
up to their own promises. The most effective closing arguments are often those in
which counsel is able to state that, ''We kept our promises and they broke theirs."
12. Argue damages, where applicable
The trial of most civil cases can be divided into the conceptual areas ofliability and
damages. Although liability is the threshold issue, it is a mistake to underestimate the
importance of damages. Unless the trial has been "bifurcated," meaning that liability
and damages will be handled in separate stages, plaintiffs in particular should devote
a significant portion of the closing argument to the development of damages.
There are two significant aspects involved in most arguments for damages: method
and amount. It is important to explain precisely howdamages have been (or should be)
calculated. It is also usually important to request a specific amount rather than leaving
the award to the fact-finder's guesswork.
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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.
13. Apply the law
Closing argument provides the attorney an occasion to apply the law to the facts of
the case. Discussion oflaw is extremely limited during the opening statement and all
but forbidden during witness examinations, but it is a staple of the closing argument.
If jury instructions are included in your case file, you can read portions of the
instructions to the jury and explain how the relevant law dictates a verdict for your
client. If there are no jury instructions in your case file, you should summarize the
applicable law. One effective way to do this is to outline the elements the
plaintiff/prosecution must prove in the case and then to go through those elements
individually, arguing why the prosecution did or did not prove each one.
o Did you use your theory and
theme?
o Did you use as many of the
listed persuasive techniques
as possible?
Did you invoke your theory and theme at the beginning
and end of your closing argument? If not incorporate
them nowso you can take advantage of primacy and
recency.
Have you maximized the persuasive value of your
arguments by carefully outlining how you will tell your
story at trial? If not go back through the previous section
and incorporate those techniques that serve your goals.
III. PLANNING CLOSINGARGUMENTS
A. Content
Although the specific content of any closing argument will be determined by the
facts and issues in the case, it is possible to enumerate certain sorts ofinformation that
should be considered for inclusion in every closing argument. You must be sure to tell
a persuasive storywhile being mindful ofthe order in which each side presents its case.
We address both of these issues below in turn.
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1. Tell a persuasive story
Virtually every closing argument should contain all ofthe elements of a persuasive
story. The argument should detail the evidentiary support for counsel's theory of the
case and should consistently invoke the trial theme.
We have previouslydiscussed five substantive elements to a persuasive story. These
elements should be present at some point in all closing arguments.
Explains all of the known facts
Is told about people who have reasons for their actions
Is told by credible witnesses
Is supported by details
Accords with common sense
a. Known facts-what happened
A persuasive story accounts for all of the known facts; it is not premised on
incomplete information, and it does not glide over or ignore inconvenient occurrences.
This is not to say that a closing argument must mention every minor detail in the case,
but rather that it should, in some fashion, accommodate all of the established facts.
Assume that the fire truck case has been tried along the lines that we have
discussed in previous sections. The plaintiffhas used "Too busy to be careful" as a trial
theme, introducing evidence of the defendant's hurried morning. Since there was no
dispute as to details such as the defendant's scheduled meeting and various travel
times, these have become "known facts" in the sense that the fact-finder is not likely
to regard them with doubt or disbelief. Defense counsel might believe that these facts
are inconsequential to the issue of liability; after all, people can be late for work and
still drive carefully. Nonetheless, the defendant's closing argument should account for
these facts either by refuting them or by explaining their irrelevance.
b. Reasons-why did it happen
The trial story should also explain the reasons for the actions of the parties and
other witnesses. It is not enough to state that an individual did something; counsel
should go on to reveal why those activities were consistent with that individual's self-
interest, announced intentions, past behavior, lifestyle, or other understandable
motivations.
The articulation of reasons gives logical weight to the argument and can transform
it from an attorney's assertion into an acceptable statement of fact.
c. Credible witnesses-who should be believed
The credibility of witnesses should always be addressed during your closing
argument. At a minimum this means that the credibility ofyour own witnesses should
be developed in the course of establishing an affirmative case. This can usually be done
subtly and indirectly, simply by providing the background information that tends to
render your witnesses believable.
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In cases where credibility is seriously in issue it will be necessary to take a more
frontal approach.
d. Supportive details-how can we be sure
As we have seen, persuasion often rests on the accumulation of supportive details.
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:
Use details when important facts
are in dispute:
Use details when motivations
are in issue:
Use details to support an
interpretation of the evidence:
Do not use details for
unimportant reasons:
Do not use details to establish
uncontested facts:
When there is a disagreement as to an occurrence or
incident, details can be used effectively to support your
client's version of events.
The presence (or absence) of motive can frequently be
established by looking at specific facts. Explain why a
witness would want to act in a certain way.
The meaning of certain evidence is often contested
even when the underlying facts are not in dispute.
The judge or jury will have a limited tolerance for details;
every time you use a detail you diminish the effectiveness
of those that follow.
If a fact is uncontested, you need only state it.
e. Common sense-is it plausible
Perhaps the ultimate test of every closing argument is plausibility. Even if an
argument accounts for the known facts, gives reasons for every action, is supported by
credible witnesses, and is replete with convincing details, it still will not be accepted
ifit does not make sense to the trier offact. Almost every other failing can be overcome
or forgiven. You cannot, however, win with an implausible argument.
It is essential, therefore, that every closing argument address the subject of
common sense. Explain whyyour theory is realistic, usingexamples and analogies from
everyday life. A common-sense argument can be extremely helpful, as when defense
counsel argues damages in the fire truck case:
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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.
2. Use the format of closings to your advantage
In most mock trials, closing arguments are divided into three distinct segments,
which are presented in the following order: the plaintiff/prosecution argument in chief,
the defendant's argument, and the plaintiff/prosecution rebuttal. While general
principles of argument apply to all three, each segment also has its own unique set of
uses, applications, and special techniques.
a. Plaintiff Iprosecution argument in chief
The plaintiff/prosecution must use the argument in chief to define the issues and
layout the entire theory of the case. The plaintiffs argument in chief will not be
successful unless it provides the fact-finder with compelling reasons to find for the
plaintiff on every necessary issue.
Because of the nature of our litigation system, the initial argument of the
plaintiff/prosecution must be comprehensive. The plaintiffin a civil matter must prove
her case by a preponderance ofthe evidence, and the prosecutor in a criminal case must
present proof beyond a reasonable doubt. In either situation, the burdened party must
establish all ofthe elements ofher cause of action. Thus, a civil plaintiffmust establish
all ofthe elements ofthe particular personal injury or contract action and a prosecutor
must prove all ofthe elements ofthe charged crime. Failing to address an element can
be fatal.
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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i. Responding to the plaintiff's argument in chief
It is essential that the defense reply directly to the plaintiff/prosecution argument
in chief. Mter listeningto the other side's prolonged criticismofthe defendant, the trier
of fact will immediately want to know what the defendant has to say in return. This
does not mean that defense counsel cannot plan his closing argument before the trial
or that he should adopt the other side's organization and respond point by point, but
he must address the major points raised by the plaintiff/prosecution.
At a minimum, the defendant should deny the specific charges leveled in opposing
counsel's argument. It is a natural human response to deny unfair or untrue
accusations. The fact-finder will expect as much from a wrongly blamed defendant.
Unless there is a good reason for doing otherwise, the denial should come early in the
defendant's argument.
In a more general vein, the defendant should usually devote some time to
debunking the other side's case. Even where the defense has an extremely strong
affirmative case ofits own, it is risky to allowthe assertions ofthe plaintiff/prosecution
to stand unrebutted. The precise handling of the various arguments will be discussed
below in the section on organization.
Finally, the watchword for the defendant's argument in chief is flexibility. While
the plaintiff/prosecution may have the luxury of planning every aspect of her closing
argument, the defendant must always be alert to new issues and nuances raised once
the trial has begun. The defendant's argument is most effective to the extent that it
rebuts the arguments made by opposing counsel. A particularly effective device is to
use the plaintiff/prosecution theme, or an analogy counsel made during argument,
against the other side by turning it around so that it is supportive ofthe defendant. For
example, the defendant could turn around the plaintiffs theme of "too busy to be
careful" and argue that because the defendant was busy, he had to be careful-that
being rushed caused him to be especially watchful of what was going on around him.
ii. Anticipating rebuttal
The greatest difficulty for defense counsel is not being able to speak again following
the plaintiff/prosecution rebuttal. The other side may comment on, criticize, or even
ridicule the defendant's argument, but the defendant maynot respond. Defense counsel
may have perfectly good answers for everything opposing counsel says on rebuttal, but
no matter.
Under these circumstances it is extremely important that counsel do whatever is
possible to blunt the rebuttal in advance. One approach is to anticipate and reply
specifically to the possible rebuttal arguments of the plaintiff/prosecution, as in this
example from the defendant's argument in the fire truck case:
This entire accident could have been avoided ifthe plaintiffhad only pulled over
instead of slamming on her brakes in the middle of the street. If she didn't
cause the accident, she at least contributed to it. Now when plaintiffs counsel
argues again, she may claim that there was no time to pull over. Don't believe
it. There was plenty of time to pull over. Let's look at the evidence ...
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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 amdone speaking, the plaintiffs attorneywill 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, everyposition 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.
o Did you tell a persuasive
story?
o Did you take the format in
which closings are given into
account when deciding
content?
Does your story Include only known facts? Does your
story include reasons for why the parties acted as they
did? Did you comment on the credibility of witnesses in
your story? Did you use supportive details to your
advantage? Does your story make sense? If not
rewrite your story to make it more persuasive.
Is your closing argued strategically based upon your
opportunity to address opposing counsel's arguments?
If not move your arguments around to make the most
of the order in which closings are given.
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 sectionwill discuss the various methods ofemploying topical
organization as well as the drawbacks and advantages of alternative structures.
1. Use topical organization
The importance of topical organization in closing argument cannot be
overemphasized. Seemingly natural methods of organization, such as chronology and
witness listing, will not present the evidence in its most persuasive form. Topical
organization, on the other hand, allows counsel to determine the best way to address
the issues in the case. Topical organization can use, or combine, any of the following
strategies.
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. Aclaimof"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 sub-
parts, 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 sawthe 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 sub-
story 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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3. Whatever your format, follow these guidelines
Whatever organizational method you employ, be sure to follow these important
principles.
a. Start strong and end strong
Primacy and recency apply with full force to the closing argument. In presenting
a closing argument, counsel has a limited window in which to attempt to shape the
fact-finder's mental image of the acts, events, and circumstances at issue in the case.
Anything that bores the judge or jury, or that is a distraction from the task at hand,
must be eliminated from the closing argument. And it is certain that prime time-the
very beginning and the very end of the argument-must be devoted to the most
important considerations in the case.
The strength of a starting point can be measured against a number of standards
such as theory value, thematic value, dramatic impact, or undeniability. What is the
central proposition ofyour client's theory? What aspect ofthe evidence best evokes your
theme? What is the most emotional or memorable factor in the case? What is the
opposing party's greatest concession?
In the fire engine case, plaintiffs counsel might choose to begin the closing
argument with a compelling restatement of her theory:
The plaintiffwas driving safely in the southbound lane ofCraycroft Road. Afire
truck approached the intersection from the west. It was flashing its lights and
sounding its siren, so, as the law requires and as every driver understands, she
stopped her car. All of the other traffic stopped as well, with one exception. The
defendant kept his foot on the accelerator, and he crashed his car right into the
backside of the plaintiffs automobile.
Alternatively, plaintiffs counsel could start with her theme:
This accident happened because the defendant was too busy to be careful. He
was so preoccupied with his thoughts of a new client that he failed to notice
what every other driver on the road saw and heard. He was so late and so
rushed and so distracted that he paid no attention to the traffic all around him.
He was in such a hurry to get to his office that the fire truck's emergency lights
and sirens had no impact on him at all. He was so busy that getting to work
became more important than ordinarycaution. And make no mistake-ordinary
caution would have been enough to avoid this accident completely.
Dramatic impact also works:
In a single instant the defendant's carelessness changed the plaintiffs life
forever. In one moment she went from being an ordinary, healthy, active
individual to being a person who cannot take a step, lift a child, or even prepare
a meal without pain.
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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.
b. Argue your affirmative case first
Most closing arguments will consist of two distinct components: developing the
affirmative case and debunkingthe opposing party's claims and/or defenses. Generally,
it is preferable to build up your own case first and then debunk the opposition's case.
Plaintiff/prosecution in particular should resist the temptation to begin by
criticizing the defense case. No matter how weak or ridiculous the defenses, it is
usually best to begin with the strong points ofyour own case. The plaintiff/prosecution,
after all, bears the burden of proof and cannot win without establishing all of the
elements ofan affirmative case. Thus, there is less to be gained by refuting the defense
if you cannot prove your own case first.
The defendant has more latitude. Havingjust heard the other side's argument, the
fact-finder is unlikely to draw any adverse inference should defense counsel begin by
refuting the case of the plaintiff/prosecution. Indeed, most fact-finders will be waiting
to hear the defendant's denial. Therefore, the defendant should nearly always begin
with a denial. Mter all, that is the natural response after listening to the plaintiffs
accusations.
Once a strong denial has been made, however, the defendant should, if possible,
proceed to support it through the development of an affirmative case. That is, the
defendant should explain why he is right before going on to explain why the plaintiff
is wrong. Thus, the defendant's argument in the fire truck case might-in extremely
skeletal form-proceed as follows:
The defendant was not the cause of this accident. It was the plaintiffs fault.
The defendant was driving safely and carefully; well within the speed limit. The
fire engine was not sounding its siren, but as soon as he saw it, he hit his
brakes and started to pull over. Unfortunately, the plaintiff chose to stop dead
in the middle of the road instead of pulling over to the side of the road as the
traffic laws require.
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The real argument, of course, would be far longer, but the organization of the above
paragraph holds true. Counsel beganwith 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.
c. Embrace or displace the burden of proof
Ifyou represent the prosecution in a criminal matter, you have no other choice than
to embrace your burden of proof. The less you address it, the more likely the trier of
fact is to question whether you have proved your case beyond a reasonable doubt. For
that reason, you are well advised to remind the fact-finder that you have the burden
and to confidently state that you have met it.
The plaintiff in a civil case must also embrace the burden, with one proviso. Given
that the burden in civil cases is the lesser requirement of proof by a preponderance of
the evidence, the plaintiff is well-served to explain to the jury what that means (note
that there is no need to give this explanation to a judge). For example, you might say:
We have met our burden ofproofby a preponderance ofthe evidence. Remember
that this is not a criminal case and the plaintiff does not have to prove its case
beyond a reasonable doubt. Instead, we need only prove to you that it is more
likely than not that the defendant is liable. That means that we need only tip
the scales ofjustice one small fraction to prevail-ifyou find that it is 51 percent
likely that the defendant is liable and 49 percent likely that she is not, you must
find in favor of my client.
The defense in criminal cases should be sure to emphasize the fact that the
prosecution has the burden of proof and that the defendant is presumed innocent by
law and has no obligation to put forth testimony or evidence. When the defendant does
testify, the defense might also consider reminding the jury that he did not have to take
the stand but he chose to so that they could hear directly from him that he did not
commit the crime charged.
Unlike criminal proceedings, civil matters require the defendant to proceed with
mild caution when raising the burden of proof. It should be raised, to be sure. But,
because it is a relatively low requirement to meet, the defendant is best off stopping
with the recitation that: ''The plaintiff has the burden to prove her case by a
preponderance of the evidence." There is no need to explain the meaning of
preponderance of the evidence; many lawyers state the term ominously and place
emphasis on the word "preponderance," hoping to keep the term vague while making
it sound like a heavy burden.
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d. Address witness credibility throughout
As discussed above, reciting the trial testimony witness by witness is a useless
endeavor. Likewise, there is little value in addressing the credibility of each witness
in turn. Instead, You should weave discussion of the witnesses, and their relative
credibility, into the fabric of the story you tell during your closing.
In most cases it will be sufficient to discuss witnesses only at the point that they
become important to the theory of the case. So, for example, the credibility of the
defendant in the fire truck case should not form a separate section of the plaintiffs
argument. There will be relatively little value to a freestanding attack on the
defendant's credibility; it will seem like just that, an attack. On the other hand, the
fact-finder will be most receptive to a credibility argument at a moment when its
significance is apparent:
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. Byweaving 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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Use topical organization whenever possible
Use chronological and witness-by-witness organization sparingly
Start strong and end strong
Argue your affirmative case first
Tie up cross examination
Embrace or displace the burden of proof
Address witness credibility throughout
Recognize "turning points and address problems
Argue damages (if applicable)
Use jury instructions (if allowed)
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
duringwitness 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 fact-
finder.
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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.
C. Asking for a Cautionary Instruction
Injury trials, when an objection to closing argument has been sustained, thejudge
will usually caution the jury to disregard the offending remarks. If the court does not
give such an instruction on its own motion, objecting counsel should ask for one. To do
so, simply wait for the court's ruling and then politely say, "I ask that the jury be
instructed to disregard that statement, Your Honor." Doing so allows the jury to see
that opposing counsel has made an improper argument, which can affect her credibility
and thus her persuasiveness.
In extreme cases, and especially where a cautionary instruction may only
exacerbate the situation, a motion for a mistrial may be appropriate when allowed by
your competition rules.
v. ETHICS OF CLOSING ARGUMENT
While you should take advantage of the opportunity to argue during your closing
argument, be mindful of the following limitations on permissible argument.
A. Do Not Misstate the Evidence
While it is permissible to draw inferences and conclusions, it is improper to
intentionally misstate or mischaracterize evidence in the course of closing argument.
Accordingly, defense counsel in the fire truck case could portray the plaintiffs camping
trip as follows:
The plaintiff admits that she went camping at Eagle River Falls. She did all of
the things ordinary campers do. She carried a pack, she slept on the
ground-she went hiking. In other words, she willingly undertook all of the
strains, exertions, and activities of backpacking. No one made her take that
trip; she did it for recreation. Of course, she told a different story here on the
witness stand. The only possible conclusion is that she has exaggerated her
claim for injuries.
To be sure, the above example is replete with characterizations, but they are fair
characterizations. Even ifno witness actually testified that the plaintiffwent camping
voluntarily, it is a reasonable inference that "no one made her take that trip."
The following argument, on the other hand, definitely appears to misstate the
evidence:
The plaintiffwas an enthusiastic and carefree camper. She carried the heaviest
pack in the family, and she insisted on chopping the wood and pitching the tent.
She would have gone camping again the next weekend, but her family couldn't
keep up with her.
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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.
B. Do Not Misstate the Law
You may use closing argument to explain the relevant law, to discuss the jury
instructions, and to apply the law to the facts of the case. You may not, however,
misstate the law or argue for legal interpretations that are contrary to the court's
decisions and instructions.
Thus, defense counsel in a criminal case could not argue that the fact-finder must
acquit the defendant "ifthere is any doubt whatsoever, no matter how insignificant or
far-fetched it might be." By the same token, the prosecutor could not argue that a
reasonable doubt only exists ifthe fact-finder "is persuaded that there is a good chance
that the defendant is not guilty." In both of these examples the attorneys offered
definitions of reasonable doubt that are not found in any court oflaw.
c. Do Not Misuse Evidence
When evidence has been admitted only for a limited or restricted use, it is improper
to attempt to use it for any other purpose. Suppose, for example, that a police officer
is allowed to testify that his dispatcher directed him to a local residence to investigate
drug possession and the defendant is now on trial for drug trafficking. The content of
the dispatcher's call, which would otherwise be hearsay, was allowed by the presiding
judge to explain the officer's reason for driving to the defendant's house. Although the
statement was admitted during trial, you are not free to argue in closing that, "Even
the dispatcher at the police department said the defendant had drugs." That would be
an improper use ofthe evidence. The hearsay was allowed only to show why the officer
took his next step in the investigation, not as proof of drug possession.
Finally, it should go without saying that counsel may not use, or attempt to use,
evidence that was excluded by the court.
D. Do Not Make Appeals to the Fact-Finder's Personal Interest
An appeal to the fact-finder's personal interest invites the judge or jury to decide
the case on a basis other than the law and evidence. So, for instance, it is improper for
defense counsel to tell the fact-finder that a large verdict will raise taxes or insurance
rates. Similarly, a prosecutor cannot argue that an acquittal will increase the crime
rate or endanger the citizenry.
A specific form of this principle is the so-called "Golden Rule," which prohibits
counsel from asking thejudge or thejurors to envision themselves in the position ofone
of the litigants. The following is an excerpt from a classic forbidden argument:
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.
E. Do Not Make Appeals to Emotion, Sympathy, or Passion
While there is an emotional side to virtually every trial, counsel may not use closing
argument to ask the fact-finder to decide the case on the basis of sYmpathy or passion.
Impermissible appeals to passion are often found when counsel dwells upon some
dramatic but barely relevant aspect of the case, such as the nature of a plaintiffs
extreme injuries when only liability is at stake.
F. Do Not Comment on Privilege
In the instances where the defendant is not called to testify during a mock trial, it
is unethical for the prosecutor in a criminal case to comment on the defendant's
invocation ofthe privilege against self-incrimination. The prosecutor can neither point
out nor ask the fact-finder to draw any adverse inference from the defendant's decision
not to testify or present evidence.
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374


Lesson 9.2: Closing Argument Exercise

Lesson Objective: Students will demonstrate Closing
Argument, for prosecution or defense, in the Sample Case
File.

375

376


Lesson 10.1: Opening Statement Lecture
MT Chapter Eleven Opening Statement

Lesson Objective: Students will understand the components
of an Opening Statement and its keystone position in a
criminal jury trial.

377
- CHAPTER ELEVEN-
Opening Statement
I. THE PURPOSE OF THE OPENING STATEMENT
Opening statement is the parties' first opportunity to speak directly to the fact-
finder about the merits of their case. A good opening statement is a map and diary
rolled into one; it anticipates where the trial path will go and highlights the testimony
and evidence that will be presented by the witnesses.
The three general purposes of opening statements are to grab the fact-finder's
attention, to assist the fact-finder in understanding the anticipated events ofthe trial,
and to advocate your client's position.
A. Grab the Opening Moment
The competition for the fact-finder's imagination begins the first time you and your
opposing counsel speak. This moment is crucial. Ifyou can place a mental image in the
minds of the judge or jury, you can directly influence the way they interpret the
evidence at trial.
Consider, for example, the different mental images evoked by the terms "billiard
parlor" and "pool hall." For most people, a billiard parlor is thought of as a formal,
reserved, well-lit and fairly respectable establishment. A pool hall, however, is more
likely to be pictured as smoky, dark, perhaps slightly threatening, and probably a little
seedy. Along with the contrastingimages, the fact-finder will make different inferences
about events occurring in these two places. In general, things seem to happen
differently in pool halls than they do in billiard parlors. Visibility is better in a billiard
parlor, whereas things happen more furtively in a pool hall. A stranger might be
questioned in a billiard parlor, but a confrontation is more likely in a pool hall. In other
words, the initial mental image dictates, or at least suggests, a variety of assumptions
about the nature, context, and likelihood of events.
Your task in an opening statement is to engage the fact-finder's imagination-to
help them begin to imagine the case your way. This task is complicated by the legal
function that the opening statement plays in the conduct of the trial.
B. Explain the Anticipated Evidence
The legal function of an opening statement is to assist the trier of fact in
understanding the evidence to be presented at trial. While we hope the evidence will
be self-explanatory, even in the best-organized trials evidence is often developed in a
disjointed manner.
To reduce this confusion, the courts developed the concept ofthe openingstatement.
The opening statement gives the parties the opportunity to present an overview ofthe
case at the beginning of the trial so as to better equip the fact-finder to make sense of
the evidence as it is presented. This chance to give an overview of the expected
testimony, however, is not an invitation to argue about it.
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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.
C. Advocate for Your Client
Your goal in presenting an opening statement should be to use it as an opportunity
to advance your theory of the case. This is not as easy nor as obvious as it may sound.
The trick is to consider the relationship between the expected evidence and the
conclusions that you want the judge or jury to reach. In the fire truck case, the
expected evidence is that a fire truck approached the intersection and that the
defendant did not stop his car. But that doesn't advocate anything. It is only when the
expected evidence is combined with a case theory that the opening statement becomes
persuasive. Thus, using the plaintiffs theory, the evidence hopefullywill showthat the
defendant had ample opportunity to observe the fire truck, which was flashing its
lights and sounding its siren, but that he was so rushed and distracted he did not
notice it.
So long as you avoid lapsing into argumentative form you may develop your theory
of the case. While you may not urge the trier of fact to reach certain conclusions, you
may arrange your discussion ofthe facts so that the conclusions are inevitable. Many
tools are available to accomplish this goal. Inbrief, a well-developed opening statement
will take advantage of some or all of the following concepts:
Choice offacts. In every opening statement you must decide which facts to include
and which to leave out. While you will obviously want to emphasize the facts that you
find helpful, there is also considerable risk to telling an incomplete or illogical story.
Sequencing. The order of the facts may be as important as the nature of the facts.
Clarity of description. It is one thing to mention a fact, but it is better to describe
it with sufficient detail and clarity that you engage the finder of fact in your own
mental portrait.
Common sense. Common sense is used both to judge and predict outcomes. An
opening statement cannot be successful if its story does not resonate with everyday
experience.
A fact-finders's reflexive resort to common sense can also be used to lead them to
a desired conclusion. Consider an opening statement that begins this way: "The
defendant woke up late, he had an important meeting to go to, the meeting was to be
held far from his home, he skipped breakfast and went directly to his car, the
defendant drove to the meeting." Without sayingmore, common sense suggests that the
defendant was in a hurry when he was driving.
Moral attraction. An opening statement can be made more attractive when it tells
a story that people want to accept. The evidence can be described in a context ofshared
values or civic virtues so as to add moral force to your client's position. In the fire truck
case, for example, the plaintiffs evidence will show that the plaintiffknew that it was
important not to get in the way of a fire engine, and so she stopped to let it pass.
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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.
II. THE RULES OF OPENING STATEMENT
The rules of evidence used in your mock trial govern what evidence is admitted at
trial. Since the admission of a piece of evidence is left to the discretion of the presiding
judge, you may not know exactly what facts will come out at trial when you are
preparing your opening statement. To complicate matters, opening statements are
limited to admissible evidence. The best method, then, is to use only those facts for
which you have a reasonable theory of admissibility.
In addition to limiting your opening to only the facts that you believe will be
admissible at trial, there are other specific rules that set forth the manner in which you
may present your opening statement. Once you understand these rules, you can begin
to plan exactly what you will say. Before we address those rules, however, we will
briefly summarize the techniques you should follow when delivering your opening
statement.
First, if you have had weeks or even months to prepare for your mock trial, you
should memorize your opening statement. Where you have had less time, we
recommend that you write out your opening statement and then divide it into sections.
At trial, you can use an outline that lists the sections or headings. By triggering your
memory section by section, you can avoid reading your opening statement. Reading is
your enemy during openings since it introduces you to the fact-finder as stilted,
labored, or unprepared. It also prevents you from making eye contact, picking up on the
fact-finder's reactions, moving about the courtroom and quickly responding to
objections and rulings by the court. Ifyou represent the defense, reading your opening
further prevents you from replying to challenges, weaknesses, and omissions in the
plaintiffs opening statement.
Movement about the courtroom can also add considerable force to your opening
statement; it can be used to make the transition from one topic to another or to
emphasize a particular point. You should begin your opening statement standing
directly in front of the fact-finder. Then, to signal transitions, take a step or two to one
side or the other whenever you change topics. By using your body in this manner you
signal to the finder of fact that one subject has ended and another is about to begin.
This motion, in turn, will have the effect of reinitiating primacy. The fact-finder's
attention will refocus, and you will then have a new "opening moment" in which to take
advantage of their heightened concentration and retention.
Most judges will allow you to move freely about the courtroom during opening
statements. Even so, you might encounter ajudge who prefers that you argue your case
from the podium or behind counsel table. If you are unsure about which policy your
judge follows, ask her before the trial begins.
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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:
Am I interpreting the evidence?
Am I urging the fact-finder to draw inferences from the facts?
Am I explaining the importance ofa certain piece of evidence or suggesting the
weight it should be given in the fact-finder's deliberations?
Am I appealing overtly to the fact-finder's sense of mercy or justice?
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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In addition, the use of rhetorical questions is inherently argumentative. For
example, a suggestion of disbelief as in, ''What could he possibly have been thinking
of?" or a suggestion of incontrovertible certainty, "What other answer could there be?"
Questions like these strongly signal argument when used in an opening statement.
Likewise, although an excellent persuasive device when used elsewhere in a trial,
repetition can lead an opening statement into the forbidden territory of argument.
Even the most innocent of facts can become provocative when repeated as many as
three times, each with greater emphasis.
B. Do Not Comment on the Law
Closely related to the rule against argument is the general proscription against
discussing the law at length during opening statements. The rationale is the same:
opening statements are allowed for the purpose of organizing and previewing the
evidence for the finder of fact, not for arguing one's case based on the law.
Since it is virtually impossible for counsel to avoid some discussion of the law
during any but the simplest opening statement, we recommend that you do so quickly
and only to the extent necessary. For instance, at some point in the fire truck opening
the plaintiffs attorney will have to raise the legal concept of "due care," if only to
explain exactly how the defendant was negligent.
Remember when you do this, however, that it is never acceptable to advocate that
the fact-finder follow a particular interpretation or construction of the law.
C. Weave Your Theory and Theme into Your Trial Story
Your most important task when giving an opening statement is to tell the fact-
finder your theory and theme ofthe case. Although you need not use these exact words,
you should start each trial by saying, in effect, ''This is a case about ..." You can then
tell the fact-finder, in a single phrase or sentence, preciselywhy your client should win.
See Chapter 2 ("Case Preparation") for a detailed explanation of theme and theory.
1. State your theory clearly
The most important rule concerning opening statements is to present a coherent
theory of the case. You will, of course, have developed such a theory in your pretrial
preparation since no case can be won without one. The challenge now is to
communicate it clearly, succinctly, and persuasively.
Recall that a trial theory is the adaptation of a factual story to the legal issues in
the case. Your theory must contain a simple, logical, provable account offaets which,
when viewed in light ofthe controlling law, will lead to the conclusion that your client
should win. In short, you will want to use the opening statement to explain to the trier
of fact why the verdict should be in your favor.
Asuccessful theory will be built around a persuasive story. Ideally, such a story will
be told about people who have reasons for the way they act; it will explain all of the
known or undeniable facts; it will be told by credible witnesses; it will be supported by
details; and it will accord with common sense. Thus, your opening statement should,
at some point and in some manner, address all of these elements:
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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 claimby 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.
2. Introduce your theme
Your trial theme, as distinct from your theory, should be expressed in a single
sentence that captures the moral force of your case. A theme communicates to the
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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 fact-
finder'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 bringyou perilouslyclose to argument. Most judges, however, will allowthe
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
openingas 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.
D. Order and Contrast the Facts Persuasively
While argument is prohibitedduring opening statements, persuasion is not. Indeed,
persuasion is unavoidable. Few of the facts outlined in an opening statement will be
neutral; most facts will be favorable to one side or the other. So long as counsel refrains
from suggesting conclusions to be drawn from the facts, she is free to arrange them in
an order that maximizes their favorable impact. Persuasive ordering of the facts
actually assists the fact-finder in understanding the case since it will then be easy to
see just how the parties' stories diverge.
The persuasive ordering of facts can be accomplished either through incremental
development or through contrast. Incremental development involves the successive
ordering of a series of discrete facts, each building upon the last, until the desired
conclusion becomes obvious. Although the facts will be related, they need not be
presented in chronological order. The following example demonstrates howthe plaintiff
might use incremental development in our fire truck case:
The defendant awoke at 7:00 A.M. He had an important meeting scheduled with
a potential new client for 8:30 that morning. The client had not yet decided
whether to hire the defendant, but the account would have been worth a lot of
money. The meeting was to be held downtown, which was sixteen miles from
the defendant's home. The defendant showered, shaved, dressed, but he skipped
breakfast. He went to his car, which was parked about a block away. All ofthis
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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 Did you refrain from arguing?
o Did you refrain from
commenting on the law?
o Did you weave your theory and
theme into your trial story?
o Did you order and contrast the
facts of your case
persuasively?
Are you interpreting the evidence or urging the fact-
finder 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.
Are you going beyond giving explanations of the
allegations of wrongdoing in the case? If so, save the
further discussion for closing argument.
Are you beginning with a clear statement of your
theory and theme and then giving the supporting
facts in narrative form? If not rework your opening
statement to make it more persuasive.
Did you use incremental development of the facts to
support your theory and theme? Did you use contrast
to point out the opposing party's factual weaknesses?
If not. rework your opening statement to make it more
persuasive.
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III. PLANNINGYOUR OPENING STATEMENT
A great deal of thought is required to plan an effective opening statement. In
addition to following the rules outlined above, use these guidelines when determining
the content and organization of your opening statement.
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 knowwhat to include? Although the
content of openings will vary depending on the type of case, the following
considerations are helpful in most trials.
1. Include only provable facts
Every fact that you include in your opening statement must be provable at trial.
The law limits opening statements to a preview of the evidence that will be presented
once the trial begins. Evidence that no witness can verify or that is inadmissible under
the rules of competition is not provable.
Think of your opening as a promise to the fact-finder. By making a definitive
statement about the future evidence, you have committed yourself to producing that
evidence. Ifyou do not deliver, at best you may seem to have overstated your case and
at worst you may seem to have deliberately misled the fact-finder. Even if the trier of
fact does not realize that there has been a gap between your opening and your proof,
you can be certain that opposing counsel will point it out during final argument.
2. Include the necessary facts
The most important part of any opening statement is its treatment ofthe operative
facts. Although there is no recipe for determining which facts are necessary in a given
case, you will no doubt want to include some or all of the following:
a. The physical scene
The meaning and legal significance ofevents is often dependent upon their location.
It is important, therefore, to use your opening statement to set the scene for the major
events in your case.
Setting a scene involves describing a potentially unlimited number of details. Your
opening statement should dwell only on those details that are significant to your case
while avoiding those that are merely clutter. In the fire truck case, for example, it is
important for the plaintiff to note that the pavement was dry, since that would affect
the defendant's stopping distance. The height of the curb, however, would be
extraneous under virtually any theory of the case.
b. Action and key events
Most cases revolve around one or more actions or key events. In depicting actions
and events, nouns and verbs can be much more helpful than adjectives and adverbs.
This mayseemstrange since modifiers are commonlythought to add descriptive depth.
Consider, however, which of the following accounts is more evocative of the crime.
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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 value-
laden 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.
c. Transactions and agreements
Civil cases are likely to involve written and oral communications far more than they
do physical occurrences. In many ways these non-physical events may be more difficult
to describe during an opening statement since there is little or no activity to depict.
Nonetheless, when a case turns on the interpretation ofa document or the meaning of
a series of telephone calls, counsel must search for a way to bring the transaction to
life.
Transactions and agreements are brought to life by interpreting, in simple terms,
what happened or was agreed upon and then filling in the necessary details. There is
no need, for example, to recount every telephone conversation that went into the
negotiation of a purchase order. It will usually be sufficient to delineate the terms of
the order itself, supported by an account of one or two crucial conversations.
3. Include a brief reference to the other side's case
It is always difficult to decide how much attention to give to the opposition's case.
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 themstarted 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. Simplytellingyour own independent storyis 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 ..."
o Did you include only
provable facts?
o Did you include all the
necessary facts?
o Did you include a reference
to the other side's case (or
are you prepared to do so
at trial)?
Is each fact you mention in your opening statement likely
to be brought out during trial? If not take out the
unprovables.
Does your story describe the physical scene, actions and
key events, and any transactions and agreements? If not
add these operative facts to your trial story.
If you represent the plaintiff/prosecution, did you address
the defense theory (if known) in your opening statement?
If not consider whether you can do so. (Remember the
limitations imposed by the Fifth Amendment in criminal
cases.)
If you represent the defense, are you prepared to deny
the opposition's accusations and address the
controverted evidence in, or omissions from, their
opening? If not practice your opening until you are
comfortable enough to do so.
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.
1. Begin with your theme and theory
Recalling the principle ofprimacy, which posits that what is first heard will be best
remembered, you should begin your opening statement by getting right to the point:
state your theme; explain the most important part ofyour theory; lay the groundwork
for a crucial direct or cross examination; foreshadow your closing argument.
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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?
2. Introduce yourself and your client
While there is a natural inclination to begin your opening statement by introducing
yourself, your cocounsel and your client, it really is not important enough to warrant
the use of your opening moment. Thus, once you give the fact-finder a short
introduction of your theory and theme, you may pause and state, for example, "Good
morning. My name is Georgia Brousseau and, along with my cocounsel, Richard Kluck,
I represent the people of the State of Arizona."
Ifyou represent a specific person, nowis the time to introduce himto the fact-finder
as well. This is your chance to humanize your client, to give the fact-finder a chance to
come to like him. Don't point to him and announce that he is a great guy. Stand next
to him, place your hand on his shoulder and introduce him like you would your own
grandfather. Explain his many fine qualities. Remember that likable people are more
apt to be perceived as credible. Although there is no formula for how much information
you give during your introduction, it is generally a good idea to share your client's age,
marital status, educational background, occupation, and anythingelse relevant to your
case.
Ifyou represent the prosecution in a criminal case, it is a good idea to introduce the
victim of the crime after the traditional introduction. You might continue as follows:
Ladies and gentleman, you will hear Danielle Weeks referred to as "the victim"
in this case, "the deceased," and even, "the body." But remember when you hear
those terms we are really talking about a person-a person who used to be a
bright, young, talented twenty-six- year-old actress. Danielle Weeks grew up
here in Tucson with her mother, father, and two brothers. Danielle was heavily
involved in acting, dance, and musical theatre classes throughout junior high
and high school. Her teachers considered her to be exceptionally talented.
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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.
3. Tell the full story
Now that you have introduced your client, tell the fact-finder the story ofyour case.
a. Avoid the witness-by-witness approach
Recall that the very purpose of the opening statement, indeed its underlying
justification, is to overcome the disjointed fashion in which the witnesses will produce
evidence at trial. A witness-by-witness rendition of the facts is unlikely to produce a
coherent story when the witnesses take the stand and testify for themselves. This
method of organization becomes no more helpful simply because a lawyer has
substituted a summary ofthe testimony for the actual direct and cross examinations.
Imagine that plaintiffs counsel in the fire truck case opted for the witness-by-
witness approach in her opening statement:
Ladies and gentlemen, you will hear a number ofwitnesses testify in this case.
Let me tell you about some of them.
Karen Trumbull will testify that on the morning ofthe accident she was driving
south on Craycroft. As she approached the intersection of Craycroft and Alta
Vista, she saw a fire truck approaching from the west. It was flashing its lights
and sounding its siren, so she applied her brakes and stopped her car
immediately. Suddenly another car, driven by the defendant, Mr. Hartmann,
crashed into her from behind.
Michael Morales was a firefighter on Engine Number 9 on the day of the
accident. He will tell you that the weather was clear and dry that day. He will
also describe the call that his engine company received and the fact that they
followed their standard procedure when they left the firehouse-flashing their
lights and sounding their siren. The fire engine headed east on Alta Vista in the
direction of Craycroft.
The drawback ofthis method should be readily apparent; it quickly becomes boring and
hard to follow.
While the witness-by-witness approach is unlikely to result in an effective opening
statement, this does not mean that individual witnesses should not be mentioned in
the course of your opening. To the contrary, it is often quite important to inform the
finder of fact of the source of a specific fact or the precise nature of some anticipated
testimony. The key is to weave the information about the witnesses into the narrative
so that the witness references arise in the context of your theory of the case.
b. Use chronology wisely
Chronology is an obvious, natural, and often useful organizing technique for
opening statements. All events in the real world, after all, occur in chronological order.
Moreover, we are all used to thinking oflife in chronological terms. It is for this very
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reason, in fact, that opening statements have become part ofthe trial: to allowlawyers
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. Inkeepingwith 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 ofsub-
events, which fit together to comprise the entire story. The discussion of these sub-
events is always open to arrangement bycounsel. 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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counsel might tell the overall story chronologically, weaving in a non-chronological
"siren chunk" when it becomes relevant:
Just as she reached the intersection, the plaintiff saw and heard an
approaching fire truck. It was sounding its siren and flashing its lights. We
know that the siren was operating because Lieutenant E.J. Johnson, the driver
of the fire truck, will testify that she always sounds the siren when she is
answering a call. That is fire department policy, and Lieutenant Johnson is a
decorated firefighter who has been with the department for over ten years.
Perhaps, for whatever reason, the defendant didn't hear the siren, but
Lieutenant Johnson will testify that she is certain that she was doing her
official duty-that is, using her audio and visual alarms-on the day when the
accident occurred.
Used in this manner, the information about Lieutenant Johnson corroborates and
strengthens the plaintiffs theory of the case. It neither stands alone as an isolated
description of the witness, nor does it interfere with the flow ofthe narrative. Rather,
it adds support to the plaintiffs theory at the precise moment when support is likely
to be most readily understood.
4. Highlight the legal issues
Now that you have given the fact-finder your full story, you may want to briefly
introduce the legal issues of the case. A statement of legal issues will put the
significance of the facts into clear perspective. If you represent the
plaintiff/prosecution, mention your burden briefly and state that you will prove that the
defendant is liable/guilty:
The evidence you hear today will illustrate by a preponderance of the evidence
that the defendant was negligent-he was too busyto be careful and so he failed
to notice the fire truck and he was driving too quickly to be able to stop in time.
You will see today that his negligence caused the collision in this case.
If you represent the defendant/defense, tell the fact-finder that the other side has
the burden of proof and that they will not meet that burden:
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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Begin with your theory and theme
Introduce yourself and your client (if applicable)
Tell the full story (avoiding a strict witness-by-witness or chronological approach)
Highlight the legal issues
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 byinterruptingopposingcounsel'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.
Most judges will sustain this objection onlywhen the argument is extended or over-the-
top. 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. Ifcounsel 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 openingstatements is simplyto 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 presidingjudge. 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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396


Lesson 10.2: Opening Statement Exercise

Lesson Objective: Students will demonstrate Opening
Statement, for prosecution or defense, in the Sample Case
File.

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