PART 3 - CHAPTER 11 Preparation for Trial

• Jurisdiction: United States

Chapter 11 Preparation for Trial

CHAPTER OBJECTIVES

After reading this chapter, you should be able to:

■ Explain how paralegals can help attorneys prepare for voir dire.
■ Prepare motions and pocket briefs concerning the admissibility of evidence.
■ Discuss how attorneys and paralegals prepare witnesses (defendants, other lay witnesses, and expert witnesses) for trial.
■ Explain how to organize materials for trial.
■ Prepare a computer-based opening statement.

INTRODUCTION

In one sense, pre-trial preparation begins as soon as the government receives the police reports or when the defense attorney begins representation of the client. From this point forward, both prosecutors and defense attorneys are gathering information that not only influences the plea bargaining process but is also used in evaluating potential witnesses and other evidence that can be used at a trial. The discovery process, discussed in Chapter 8 and the motions, discussed in Chapter 9, are designed to gather information that will minimize surprises at the trial.

In this chapter, we discuss the preparations that generally don't take place until after the case has been set for trial. This is the point at which the parties must notify the opposition the witnesses who will be called to testify and identify the exhibits that will be offered as evidence. Activities taking place during this period usually include preparing for voir dire, meeting with witnesses, preparing trial subpoenas, conducting further factual research, preparing exhibits, creating slide presentations, organizing the file for trial, and preparing motions and briefs on evidentiary issues.

A. JURY TRIALS

1. THE DECISION TO USE A JURY

In Chapter 10, we noted that the right to be tried by a jury varies between the federal and state courts, and depends upon the severity of the crimes being charged. In situations in which the right to a jury trial applies, state court defendants ultimately decide whether to exercise this right or to waive it and leave the verdict in the hands of the judge.

It is the defense attorney's obligation to carefully discuss the pros and cons associated with this decision. As a general rule, defendants typically choose to be tried by a jury because they think at least some of the jurors will be more sympathetic and more likely to identify with their situation than a judge would. Since jury verdicts must either be unanimous or require a supermajority to convict, the odds of avoiding a conviction usually seem better with a jury. On the other hand, in cases where there has been a great deal of prejudicial publicity, the community is perceived as being prejudiced against members of the defendant's racial or ethnic group, or the crime was particularly gruesome, some defendants believe that they are better off being tried by a professional who is committed to following the letter of the law and less likely to be influenced by these prejudicial factors. The procedure is different in federal court because Rule 23(a) requires felonies to be tried by a jury unless the defendant files a written waiver, the prosecutor consents, and the court approves.¹

2. PREPARATION FOR VOIR DIRE

If a jury will be used, both prosecution and defense begin preparation for the voir dire examinations that will occur during the process of seating the jury. These examinations are supposed to uncover factors that might prevent the person being questioned from being a fair and impartial juror.

The combination of challenges for cause and peremptory challenges (which we discussed in Chapter 10) is designed to eliminate jurors who are not deemed to be impartial. However, there is no guarantee that they will successfully achieve that result, and much depends on the extent to which each side has researched the background of the potential jurors, how skillful their questioning is, how well they listen to inflections in their answers, and how well they read the potential juror's body language.

The preparation for this questioning typically begins by examining the list of people who have been summoned for jury duty during the time that the trial is expected to begin. In addition to having names and addresses, it may list the potential juror's date of birth. If juror questionnaires are available, the attorneys can also learn other information about jury candidates. This information includes such matters as educational and employment background, marital and family status, whether they have previously been victims of a crime, and whether they have friends or relatives who are crime victims, police officers, or attorneys.

If the financial resources are available, attorneys for both sides may actually have their paralegals or outside investigators do further research to find out as much as they can about the people on the list. Public records frequently give indications of the potential juror attitudes. Voter registration lists may reveal party affiliation. Real estate and vehicle ownership records may indicate financial wherewithal and self-image. Court documents often show detailed information about financial status, criminal background, and relationships with others. Sources such as the Haines Directory, the City Directory, and Who's Who are available in most public libraries. These reference books provide information as to occupation, neighborhood income level, and family members.

In addition, the internet is an excellent source of information. Social media sites like Facebook, LinkedIn, and Twitter reveal personal data and give insight into the personality, emotions, interests, and attitudes of the author. Instagram, blogs, and personal websites also can be productive sources of information. People seem to be less guarded in communicating on the Internet than in person.

Search engines, such as Google, can yield fruitful information, as well. When you conduct this type of research, use more than one search engine. Using Bing, for instance, may yield different results than using Google. Although Google and Bing are excellent places to begin, don't limit yourself to one or two search engines. Yahoo and DuckDuckGo are also popular search engines. There also are a multitude of websites that can be used to acquire information about people.

In high-profile cases, either or both sides may contract with special jury consultants to collect and review this background information. Jury consultants may even organize and evaluate focus groups and mock trials to identify characteristics that are correlated with different views about the type of crimes or the type of defendants involved. While this information is unlikely to convince a judge to remove a juror for cause, it may well become the basis for exercising peremptory challenges.

In addition to collecting background information, paralegals can help attorneys draft questions to either be submitted to the judge or for the attorneys to ask themselves. Good voir dire questions should be designed to uncover potential conflicts of interest or biases that might work against your client's interests. Sample voir dire questions appear in Figure 11.1.

DISCUSSION QUESTIONS

1. If you were an attorney for the defense, in what types of situations would you recommend having a bench trial rather than a jury trial?

2. Do you think that attorneys should be allowed to ask their own questions during voir dire, as opposed to having the judge read the attorney's questions to the jurors? Why?

1. As the Court has just stated, my client is an African-American Chicago Police Department patrolman. Is there anything about him being an African-American male that would prejudice you for or against him in connection with your obligation to hear all of the evidence, listen to all arguments given by counsel, and carefully consider all of the instructions and law provided by the Court before making a decision as to whether my client, Officer Isaac Berry Innocent, is guilty of the crimes charged?
2. Is there anything about my client's status as a Chicago police officer that would unfairly bias or prejudice your own opinion concerning the Defendant's guilt or innocence based on his occupational status?
3. Have you ever been involved in any law enforcement work whatsoever?
4. Do you have any family members or close friends who are currently or who have been previously involved in law enforcement?
5. Have you had any adverse encounters with African American males under any circumstances whatsoever? If so, describe those experiences.
6. Have you had any adverse encounters with any African American law enforcement personnel on any level whatsoever? If so, describe those experiences.
Source: William H. Hooks, Trial Issues, Defending Illinois Criminal Cases (IICLE, 2003, Supp. 2007) at 11S-65.

Figure 11.1 Proposed Voir Dire Questions from the Defense

APPLICATION EXERCISES
1. List five biographical resources or community directories available at your school's library.

2. Conduct an Internet search of your instructor for this course and then prepare a list of all facts about the instructor's professional life, along with the web address for the source for each fact.

3. Conduct an Internet search of the mayor of your community, list four attitudes and beliefs of the mayor and cite the web addresses for this information.

4. Prepare six voir dire questions concerning alcoholic beverages that would be appropriate to use in People v. Bud Cook (see hypothetical case on page xxxvii).

5. Prepare six voir dire questions concerning "experiencing financial troubles" to use in United States v. William Edwards (see hypothetical case on page xxxviii).

6. Prepare six voir dire questions concerning Clay Marshall's participation in marital counseling, history of consensual relationships with women outside his marriage, and his reputation for making sexual innuendos to use in People v. Clay Marshall (see hypothetical case on pages xxxviii-xxxix).

B. PREPARATION OF EXHIBITS

To be entered into evidence at a...