Chapter 18 Practice Points

• Library: How to Try a Murder Case: Pretrial and Trial Guidelines for Prosecution and Defense (ABA) (2011 Ed.)

CHAPTER 18 Practice PointsThe Trial Is Over—Now What?

This book is about trials, not posttrial litigation. Nevertheless, here is a brief summary of some posttrial processes that can be utilized. These processes include

• Motion for new trial (or similar motions such as motions for resentencing)
• Direct appeals
• Appeals to a parole board
• Applications for habeas under 28 U.S.C. § 2254 (for state prisoners) or § 2255 (for federal prisoners
• Appeals to state governors
• Appeals to a board of pardons¹
• Applications for expungements
• Requests for postconviction DNA testing

Each of these avenues can be used to advocate for or against the interest of the defendant. Through these processes attorneys can either attack or protect the outcome of the trial or influence the final disposition of a convicted defendant. Remember that since the stakes are higher in murder cases, the defendant, serving a life sentence or worse in many cases, will not be reluctant to attack the performance of his trial defense counsel, or even the counsel that first represented him on appeal. He has nothing to lose by doing so, and will do so. In other words, no matter which side of the case you are on, you need to be aware of these posttrial processes.²

Another posttrial process that skilled attorneys undertake is to analyze the trial. What was done well? What did not work out as planned? Why? How could our pretrial preparation have been improved? What could we have better planned and anticipated? How could we have improved our presentation? It is through a post-battle assessment that we can critique ourselves and improve our performance.

What You Can Do to Prepare Yourself to Try a Murder Case

You might ask yourself, since you do not have a murder case that you have been assigned to prosecute or defend, is there anything you can do to help prepare yourself to try one? The answer is that there are several things that can be accomplished in advance to prepare for the trial of a murder case.

Master the Homicide Laws of Your Jurisdiction and of the Federal Jurisdiction

You must become very knowledgeable regarding the homicide statutes of your state or states and the federal statutes. You should not stop there. Read the cases that impact how those laws are applied. What sets of facts will necessarily raise certain lesser-included offenses? How will the aggravating factors that are charged affect upon the aggravating factors to be raised in a sentencing hearing? How will other related offenses merge or affect the homicide charges? What defenses are available? Who has the burden concerning affirmative defenses? Mental issues? Motions concerning evidence? If you are a prosecutor, which forum is the best choice—state or federal? Why?

Master the Rules of Evidence

To be a skilled advocate in a murder case one must be a master of the rules of evidence. Tactics can affect presentations, but evidence wins and loses trials. This is true for both sides.

In the courtroom, one only has about a second to decide whether to say, "Objection!" To make a skilled decision in that one second, one must decide:

1. Do I have a valid objection under the rules of evidence in this jurisdiction?
2. If so, what is that objection? Exactly which rule of

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