59 RI Bar J., No. 4, Pg. 27. Attorney Practice Guide: Criminal Defense Representation Part III* The Post-Verdict Phase.

Author:George M. Muksian, Esq. Chief Legal Counsel to the Rhode Island Department of Elementary and Secondary Education
 
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Rhode Island Bar Journal

Volume 59.

59 RI Bar J., No. 4, Pg. 27.

Attorney Practice Guide: Criminal Defense Representation Part III* The Post-Verdict Phase

Rhode Island Bar Journal59 RI Bar J., No. 4, Pg. 27January / February 2011Attorney Practice Guide: Criminal Defense Representation Part III(fn*) The Post-Verdict PhaseGeorge M. Muksian, Esq. Chief Legal Counsel to the Rhode Island Department of Elementary and Secondary EducationI. Motion for a New Trial

a. Counsel should be knowledgeable about the procedural requirements and legal standards for requesting a new trial pursuant to Rule 33 of the Superior Court Rules of Criminal Procedure, and should approach the preparation and hearing according to the following: a) in arguing for a new trial, the court should be viewed primarily as a finder-of-fact, and all the testimony and material evidence presented at trial should be taken into consideration; b) in asking the court to exercise its own independent judgment, counsel should articulate the evidence in terms of witness credibility and the weight of the evidence, and do so in light of the charge to the jury; c) in conclusion, counsel should argue that the evidence and all reasonable inferences drawn from there should be viewed as insufficient, that the prosecution has failed to sustain its burden of proof, and that the jury's verdict should be adjudged as clearly wrong. b. In weighing the appropriateness of filing a motion for a new trial, counsel should consider its merits per se and whether a denial of the motion for a new trial would offer a meritorious issue for appellate review.

  1. Sentencing Considerations

    1. Given that the sentencing process is built on information drawn from the totality of the evidence admitted at trial, or, in the case of a negotiated plea, based on the information contained within the reports and witness statements, as well as the information provided by the presentence report, counsel's first responsibility is to ensure that such information is not misconstrued, inaccurate or otherwise misstated or improperly presented to the court. Moreover, counsel should undertake the following:

      a. Fully inform the client as to all sentencing possibilities and the prerequisites and consequences as to each; b. Prepare the client for the presentence report interview process and, anticipating his...

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