Andy
It's time for your case to go to trial. You're about to hear two seasoned trial attorneys analyze it in depth. Stay tuned. This is attorney Andy Markel and attorney Mark j Victor. We're the partners of the Attorneys for Freedom Law Firm here today to talk about a huge subject in our fighting the state series trial. How are you doing today, mark?
Marc
Dude, this is such a big video, the anatomy of a trial. I don't know how long this video is going to be, but let's just jump in and try to give people the highlights of what the flow of a trial is, the anatomy of a trial so people can get some flavor of really what a trial is and how they proceed. And really there's a lot to be proud of here in terms of the American criminal justice system. I know a lot of people make fun of it, and yeah, there's room for improvement everywhere, but if there's one area that I think we do a pretty good job on, it's how we present a case for trial and to try to present it in a way that's reasonably fair to both sides.
Andy
As you and I were coming up for the outline, just some sort of a logical construction for how we were going to present this massive subject today. Our staff just reminded us that we have to keep this video reasonable length, so we're not going to go too in depth on any of these subjects. Certainly every single thing that we talk about today could warrant its own video, but I think the idea of this video today and just this series as a whole, the fighting the State series, is to give a general flavor of what these things look like in the justice system and what the considerations are of criminal defense attorneys.
Marc
Yeah, I think people are learning a lot about what goes into representing somebody in a criminal case, and this video I think is going to go a long way to let people know what the flow of a trial is. So yeah, let's just jump right in.
Andy
And also a lot of this is going to reference back to the stages leading up to a trial in some of the previous episodes. So if at any point if you're just hopping in this series, maybe in the middle or you just wanted to click on the video about trial because trials are just sexier than plea negotiations, that's fine, but if you hear us talk about anything that doesn't sound familiar to you, we've probably covered it in a previous episode, so make sure to peruse back and you'll be able to figure out what we're talking about. But Mark, I think a good place to start is why do cases go to trial?
Marc
Yeah, there can be different reasons that cases go to trial. Obviously most cases don't go to trial, right? The vast majority, there's been some negotiated settlement, and that's because we live with these cases for quite some time before you get to a trial. And so normally the criminal defense lawyer has had many conversations with the prosecutor and there's this whole discovery process we've already talked about. We are imagining now that we're sort of on the verge of starting a trial. Everybody's been interviewed, all the motions have been filed. Both sides know what the evidence is going to look like. So we have a pretty good feel. And at this point, if we feel like, you know what? We don't have a very good case here, our guy's probably going to lose and get 10 years, then we'll go to our client and say, look, we're happy to try it if you want to try it, but if you can get out with a lot less than 10 years, this is probably a good time to pull the eject.
Marc
The reverse is also true right now we've gone through everything and we say, we got a great case here. This is a really strong case. We feel like we got a really good chance of walking our client and we're having that discussion with the prosecutor. And the prosecutor. They don't want to just lose, so they may offer something very good. They may even dismiss the case. And so you're normally in the area where the two sides just can't agree where the question is, especially in a self-defense case, is it reasonable? And we think, yeah, it is reasonable, and they think, no, it's not reasonable. And it's just a real jury question. We really don't know the answer to that. Another possibility is you're forced into it. People think that you have some right to a plea. You don't have a right to a plea. And I've had cases that were, you might say so egregious or that the prosecutor felt so strongly about or that were high profile enough that they didn't even offer a plea.
Marc
One of 'em that I tried that was very high profile nationally was the baby Gabriel Case. People can look that up. You literally could just go to Google and put Baby Gabriel Case and it'll come right up. We didn't get a plea in that case. They didn't even offer a way out. They felt so strong about their case and it was a national high profile case. As it turns out, they probably should offer something really good. I kicked their ass on that one. And I've also had cases that were terrible cases where they didn't offer a plea and we were forced into trial. So all of that can happen. Also, you can have an unreasonable client, right? Sometimes clients, they don't want to listen and you get what is otherwise a great plea on a case and you bring it to the client and the client says, no, it's the point of the thing or something like that.
Marc
And you can try really hard. You can do what we call a settlement conference and put it in front of a disinterested judge and have that judge listen to the case and say, look, Mr. Defendant, this is not going to be a great case at trial. The plea looks pretty good. I can't tell you what to do, but if I was in your shoes, I would take it, but do whatever you want. And sometimes clients are unreasonable. I can say this, in my 30 plus years of doing this, I've won them at trial and I've lost them at trial. Every single case that I have lost at trial has been a situation where the client has ignored my advice to take the plea and instead said, I want to go to trial. To be fair, I have had some on the other side as well where I've told the client, look, you really should take the plea. And the client has said, no, no, no. I got a great lawyer. I'm going to trial. And I said, no, you're making a big mistake and we've won. We've got a not guilty. So that happens too. I think the point here is that
Andy
It's nice to be proven wrong. Sometimes
Marc
You have some egg on your face there, but it's good egg. But I think the bigger point here is nobody can predict what a jury is going to do.
Andy
And the reason why trials are so rare in our system, when you put it in the grand context of how many cases, which is usually about 95 to 98% of cases depending on the jurisdiction, settle with some sort of a plea or something like that, is because at this point, both sides can kind of see all the cards in the other one's hand. And if the prosecutor, as you pointed out, feels that the criminal defense attorney has a good case at trial and has a chance to acquit that client, they're going to be highly incentivized to offer some sweetheart deal. And they can do this at any time they hold all the strings here when it comes to negotiations because I mean, we've even had pleas offered in the middle of trial. At any time if they feel like there's a good chance that they could lose, they can buy the case with some sort of a sweetheart deal.
Marc
You could even make a plea after the trial has done after the verdict. If it comes in guilty, if it comes in not guilty, it doesn't matter. But if it comes in guilty and there are strong appellate issues, prosecutors can offer a sentencing agreement that's not done very often, but it can be done and the prosecutor might say, Hey, why don't you waive your right to appeal and I'll offer you this deal at sentencing. So they hold a lot of cards.
Andy
It can happen way after sentencing right now, and we'll talk about this area when we get into our post-conviction relief episode next time. But right now in this office, we have a case where the client was convicted 15 years ago and we're about to make a plea in the case because they brought the case to us to analyze post-conviction relief. We found an excellent issue. We showed it to the prosecutor and said, we're going to file to try to get the case overturned and the verdict's going to be overturned, and we figured out a way to get around all the statutory deadlines. And the prosecutor said, hold up, hold up, hold up before you do that, would your guy take this? And so our client's considering it. The point is that at any time, if the prosecutor feels like their case is threatened, they have the right to buy the case with a plea, which is why of course the number of cases that actually go to trial are pretty low.
Marc
But when they do go to trial, they're fun In terms of criminal defense lawyers who like what they do, this is the best case. I mean, look, forgetting about the client's interest for a moment and just looking at our interest, we love going to trial.
Andy
So many times when I'm talking to a client about a plea and they're kind of trying to feel me out on what my advice is, I have to kind of bite my tongue sometimes because there are some cases that I would be really, really excited to take to trial. And I've had to tell clients on multiple occasions, look, it's not about what Andy wants to do. It's not like I would objectively have a much better time if we went to trial. But it's not about what the criminal defense lawyer wants to do. It's about what's in the best interest of the client. So in many, many occasions I've had to advise clients even when I thought that they had a really good case at trial to take some sort of a plea deal. So leading up to the trial, there is so much preparation involved.
Andy
You mentioned a couple and we've talked about them in previous videos, the interviews with the witnesses, getting the experts on board and all ready to go knowing the evidence like the back of our hand, making the legal challenges, evidentiary, pretrial motions, things of that nature. But by the time all that stuff is concluded, both sides really have a good idea of what the evidence is going to look like. Now, trials on TV are depicted as a lot of times with these jaw dropping breathtaking moments of a big shock, a big surprise that nobody expected. While they do happen occasionally in practice, that is a rare thing and it's because there's so much preparation that goes to these things. And frankly, you don't want your lawyer to be surprised by anything that's presented at trial. It might be a sign of ill preparation if your defense attorney is surprised by anything at trial.
Marc
On the other hand, every trial you ever have, there's something that comes in.
Andy
There's curve balls.
Marc
Yeah, there's always some curve balls. Things happen. And so really you start with the jury, right? Because at the end of the day, it's those citizens who are in the box. They're the ones that are going to make the decision. And so the focus shifts a little bit from the person wearing the black robe to the people in the box because at the end of the day, they're the ones that are going to say either guilty or not guilty. And so really the beginning of the trial starts with picking the jury. That's always a fun day because you have all these people from outside the legal system and you're walking into court all ready to go, and there's people everywhere. They're in the jury room
Andy
Hanging out in the booth, hanging out in the gallery,
Marc
And you start calling them in and they're nervous and they don't know what's going on. And usually they've never been through anything like this. And you go through this process called voir dire. And so this is a process where mostly the judge, because in most cases the judge is going to start with sort of routine questions. Okay, what do you do for work? Are you married? Do you have kids? Have you ever served on a jury before? Do you have any criminal convictions? Just sort of basic routine questions. Sometimes you get a jury questionnaire. If you've got a really big case and it's complex, then you'll file a motion to have a jury questionnaire. And if the judge grants that, you'll have a whole host of questions that you will have given to the jurors long before they showed up that day. And then we'll already have those back.
Marc
And in a perfect world, you will have had a hearing, will you have gone through all those questions and struck people for cause And then the jury commissioner will have called them and said, okay, you don't have to show up. And everybody who's now there are people who are mostly cleared for cause. These are usually going to be long trials when you're doing a questionnaire. And I've had trials that have gone on for months. I've had four month trials, and there are just people who say, I can't do that. I have non-refundable tickets out of the country, or I'm going to lose my job or something like that. You can screen those kinds of people out. Also high profile cases, people who have heard quite a bit and they say, I can't put that stuff out of my mind. No, I can't start from scratch listening to the evidence. You can kind of call those people out of the pack. Most cases don't get jury questionnaires. So the judge is going to go through a whole bunch of routine questions and usually the lawyers will get to do some questions.
Andy
And some of those routine questions might include, do you know anybody involved in this case? Here's the names of the lawyers, here's the name of the defendant, here's the names of the witnesses. Raise your hand if you know any of these people. And you'll inevitably, especially in maybe more rural jurisdictions, get lots of hands.
Marc
And that may or may not be a free pass off the jury. So we try to cull out people who have some bias in the case. They have some knowledge that they can't put aside. And so there's this whole, it's really my least favorite part of the case because I know some lawyers will put a lot of stock into this. I think it's very hard to figure out how people are inclined. I have some fun questions that I like to ask that usually a judge will allow me to ask. I'll sometimes say, who's got a bumper sticker on their car? What does your bumper sticker say? Or refrigerator magnet. Sometimes you can get a good insight. Someone might answer love trump or hate Trump. And depending on the type of case you have, you might be able to glean some insight on a particular issue. For example, if it's a firearms case and you're looking for somebody who is sort of pro-gun, you probably want somebody who likes the conservative person and dislikes the person on the left. Although these are generalizations,
Andy
People will surprise you
Andy
As we found out in the past. And they don't always just go on issues based on assumptions about party lines and everything like that, which is why the most effective questions are usually a little bit more direct in that whenever we do a guns case, anything involving a firearm or self-defense claim, we'll ask questions. Do you think gun laws are too strict or not strict enough? Things like that. Do you think that only law enforcement officers should carry weapons or do you think citizens should be able to carry weapons? Do you think assault rifles, and we might use a term like that, that we know is going to get a certain reaction. Do you think assault rifles should be owned by citizens? Things like that to try to get a reaction so that we can get a reading on what type of people are we dealing with here?
Marc
And there's a couple of different schools of thought here on jury selection. I think probably the majority position is get as much information as you can about these people so you can make an informed decision. And I think I probably started my career off with that mindset, and I think that's the prevailing mindset. On the other hand, maybe the minority position, if you get too much information, even if it's great, this person says, yeah, I love firearms. I have an arsenal at my home and I'm a second amendment absolutist. And they keep talking and talking and talking and this and that. They're gone.
Andy
Yeah, the prosecutor's not going to want that
Marc
Person, right? The prosecutor's going to get rid of that person. And so there's probably a point at which you're like, I think I like this person. I think I'm going to get them to just kind of shut up and not ask any more questions. So there's a bit of strategy that goes on here. There's normally two different kinds of strikes. One strike is for cause, which is somebody just can't be fair for whatever reason. My husband's a cop and I believe all cops. Well, could you put that aside for this case and judge the evidence just based on what you hear in court? No, I'm going to always believe the police.
Andy
Yeah, or the nature of the offense is this. This is what the defendant is charged with. Could you be fair on that? No. I had a daughter that was victimized by somebody in that same type of incident and so I just wouldn't be able to do my job.
Marc
Yeah, that's a strike for cause, right? And so sometimes you'll hash that out with the judge and the defense attorney will say, I want this person struck for cause. And the prosecutor said, no, no, no. They said they could be fair and you get these weird. Do you think you could be fair Mrs. Jones? I think so. You get an answer like that and the prosecutor will say, well, yeah, they said they think they could be fair. And I would say, but judge, did you see how they said it? This person's not very certain about whether they could be fair. Why take a chance? Let's get rid of this person for cause.
Marc
And then the judge will make rulings on that. The judge will say, okay, this person is struck for cause or no, this person is not struck for cause. And as a defense attorney, you're always thinking down the road. And when I first started practicing, the senior partner at the law firm that I worked out said, mark, you got to think three dimensionally. And what he meant was you got to think about an appeal. And so when you try to strike somebody for cause and the judge denies it, you go back to your table and you write that down on a piece of paper that presumably you're ready to go here with possible appellate issues just in case you lose and you say, on such and such a day, I move to strike juror number 53 for cause. Here's the reason. And the judge said no.
Andy
And something tells me we're going to be mentioning this topic several times throughout this video today because as we'll cover in our next video dealing with appeals and post-conviction relief of trying to overturn a guilty verdict. All that stuff is important to preserve throughout the trial. So we'll try to flag that as we go through
Marc
And real fast. The reason you got to preserve it is because an appellate court is going to say, look, if you didn't object to something at the trial, that means you deprived the judge of an opportunity to fix the problem. You have waived that issue on appeal. And sometimes you can still come back in and say, well, yes, but the issue is so fundamental to a fair trial that it can't be waived. And now they're going to say yes, but you got to show it's a fundamental error and that's a much harder standard. So when we talk about preserving issues, that's what we mean. We're preserving it just in case things go sideways. So you have strong appellate issues later on because if you do lose the case, that's what your client is going to care about. A successful appeal,
Andy
A very, very common type of strike that we see all the time is a strike for hardship. And you alluded to it earlier, I'm just not able to take the time off from work or from my family. Maybe I'm a single parent or something like that. Maybe I can't do a four month death penalty case. There are so many reasons why somebody might not be able to financially be there, or maybe there's a health issue that they have. I have a surgery scheduled for next week. This is a type of for cause strike that we might call a hardship strike. And we always see a bunch of these.
Marc
Then there's preemptory strikes, which you don't get everywhere and sometimes you get 'em and sometimes you don't. And at the moment you don't get these in Arizona, although you used to get them in Arizona, maybe they'll bring them back. I dunno. These are just freebie strikes. These are just, you can talk to your client and the client says, I just didn't like the look on this person's face.
Andy
This is the one the prosecutor uses against the guy who has the arsenal who hasn't said that he can't do his job fairly. Maybe he insists he can do his job fairly, but because he talked too much and seems a little bit more defense oriented, this is the type of strike the prosecutor's going to use
Marc
On that. Yeah, this is the guy who says, I never believe cops. I hate cops. I think everything they say is a lie. Alright, that guy's gone, right? I mean, but he's going to be gone for cause. But if he said something of just I am skeptical of the police, okay, that's not going to be a cause strike. He should be skeptical of everything he hears, but that prosecutor's probably going to get rid of that person as a peremptory strike, freebie strike. And so you get a certain number of those and usually you alternate on those one side strikes. Then the other side strikes. And so we generally save the people we really want to get rid of for the end because maybe the prosecutor for some reason will get rid of that person and you'll get to strike a different person. So anyways, that's kind of how you select the jury. But at some point the judge will say, do the parties pass the panel for cause? Which means you've hashed everything out on cause all that's left are the peremptories. And once each side makes their strikes, that's your jury right there. They sometimes in different jurisdictions will do this differently. They'll select the alternates, usually random, sometimes not.
Andy
You should mention what an alternate is.
Marc
Yeah, an alternate juror is somebody who sits there, they may not even know they're an alternate. Say if the number of jurors you need is eight, you might pick nine. If it's not going to be a long trial, if it's going to be a really long trial, you might pick 10. And so you'll have 10 sitting there. And the reason for that is say somebody has some kind of an emergency in the middle of the trial, oh, my wife got into a car accident, I got to go to the hospital, I can't come to court today. Alright, that person's, that's going to be our alternate. We'll deem that person the alternate, no problem. And we'll move forward if you get to the end, usually it's a random lot or something like that. Imagine being told that you've sat through the whole trial now and you're ready to deliberate. You're finally for the first time can talk to everyone else. They don't let you talk about the case. Even you can go out and have lunch with these people, but you don't get to talk about the case yet until all the evidence is in and all of a sudden, boom, you are an alternate. You're going to be sitting outside the jury room while the jurors deliberate.
Andy
Yeah, yeah. That would be frustrating. And they have to stay around and be available while deliberations are going on, which can take days and sometimes even weeks, maybe somebody who is an active juror becomes unavailable and they need to switch in the alternate, so the alternate's instructed to remain available. But real quick, I wanted to hit on the subject of randomization here. Oftentimes, especially if you're in a jurisdiction that does not allow preemptory strikes, you end up with more jurors than you need. And if you end up with more jurors that have survived all the four cause strikes and everything in such a jurisdiction, they'll simply just randomly choose the jury size that you need out of the available jurors that
Marc
Are, yeah, there are different ways to do it and different jurisdictions do sometimes even in the same jurisdiction, different judges do it differently, but at the end of the day, you're going to wind up with people on the jury who have survived challenges for cause and are the ones who are left there that didn't get struck for other reasons and those are your jurors. Now,
Andy
People might be wondering too, why have juries of different sizes, what would cause a jury to have this many or that many? I've been asked that question many times.
Marc
Yeah, it's a good point. And there are different requirements in misdemeanor cases. Sometimes in some misdemeanors you don't even get a jury, and so that's a bench trial. You don't have a right to a jury in some misdemeanors. Others you might get a jury in different, again, different jurisdictions will pick different numbers, but you might get a jury of six or something like that. On a misdemeanor case, maybe you get eight on a felony case. And then if the felony case is the risk of prison exceeds a certain number of years, maybe 25 years or 35 years or something like that. And again, different jurisdictions will draw the line at different places. You might go to 12 and some jurisdictions may say it's always 12 on every felony and federal, it can be more as well.
Andy
Yeah. So the answer to that question is check your jurisdiction's rules
Marc
For
Andy
Different levels of crimes and different penalties that are on the table. And as you say, it's different throughout the country.
Marc
Arizona actually has some innovative rules here. Arizona has something called the mini opening statement, which I really like by the way. And this is only in the state court, not in the federal court. But what happens here is at the very beginning, one of the very first things you do to the whole panel is just give a little overview of the case. I like it because it gives you an opportunity to talk to the jurors and kind of set up what your theme of the case is or maybe your theory of the case. But most places don't do that. So once you have the jury picked, the jury takes an oath. Sometimes you'll get preliminary jury instructions. In fact, you always get preliminary jury instructions. Sometimes you argue about what they should be, and this is the most boring part of the trial for me. When the judge is going to read this long list of instructions to the jury.
Andy
When you're doing that, especially in the preliminary, we're already reared and ready to go. We've got our game plan for trial. They're going to read as we'll talk about in a bit. They're going to read the jury instructions, the final jury instructions before they send the jurors to go and deliberate. And by that time we can be doing other things to keep ourselves busy because we've just gone through a trial and there's different things we can strategize at that point, but especially in the beginning when we're just ready to go, yeah, the judge has to take the time to read all those prelims to the jury. But then there's also some admonitions that the judge will give to the jury. You referenced one earlier, which is don't talk to each other about the case. They oftentimes include things like don't look on social media, don't search for this case, don't Google this case. Also, these are the attorneys and this is the bailiff and everything like that. If you see them in the hall and they don't talk to you, it's not because being rude to you, they're not allowed to talk to you, don't go up to the attorneys and try to talk to them or if you do keep it short and not related to the case. So there's all these admonitions about preserving the sanctity of their deliberations.
Marc
So then you get to opening statements and the government gets to open first. And so opening statement is not argument. This is supposed to be sort of a preview of what the evidence in the case is going to show, what it's going to be, what it's going to show. So kind of the theme of this is thanks for coming here. You guys do a really important job. This is a case about X, Y, Z, and we're going to present witnesses that are going to tell you this, that and the next thing. You're going to see exhibits about this and that. And at the end of the case, I'm going to come back and talk to you in closing argument and tell you what I think it all adds up to. I got the burden of proof and here it is and keep an open mind and thank you very much.
Marc
And then the prosecutor sits down and then the defense attorney has an option. Option number one, go ahead and make your opening statement right now, which is when you get out there and you say, here's what we think the evidence is going to show. You just heard the prosecutor said this. Now we think it's going to show something different. We think the evidence is going to show A, B, C, not x, y, z and keep an open mind and usually the defense attorney is going to say in the opening statement, look, the prosecutor has the burden of proof. You want to start talking about that right at the beginning. And so they get to go first. I don't get to present my case until after they've gone. So understand you're going to hear their whole side first. All I'm asking is keep an open mind, don't make any decisions. And so they'll give their overview. Option two is to reserve opening statement. I've done this successfully on several occasions actually. And the judge will say, counsel, would you like to make an opening statement? No. Judge will reserve our opening statement. Judge will say, okay, fine. Now why might you want to do that?
Andy
And explain what reserving an opening statement
Marc
Means. Yeah, reserving an opening statement means you're not going to make your opening statement right now. You're going to wait until right before you start the defense case said another way after the state has presented its entire case, why might you want to do that? There could be really good reasons for that, which is I got a great theory and I don't think the prosecutor knows what the heck it is. And I want the prosecutor to go and present their whole case on the wrong theory and then I'll get up there an opening statement after they've rested and said, this is a case about X, Y, and Z. And everybody's going to be like, wow, I thought it was about something different, but no, now it's about this. And so you don't want to give that away. You might want to have them parade all their witnesses up there. Those are really fun to do when they have no idea what your theory is.
Andy
Yeah, there's definitely positives and negatives to both, right? In the practical world, given that the state goes first, there's definitely value to being able to make your opening statement at the beginning rather than them just get a bad opinion of your client from the prosecutor's opening statement unchallenged, followed by the entire state's case. When people only see one side of it, just human nature is they tend, their mind starts closing up a little bit. They tend to start having an opinion and feeling strong about it. And so that's really the value of giving your own opening statement as the defense attorney at the beginning is because you make 'em a promise, right? I'm going to show you some stuff. You guys are going to sit through the state's case first, but we're going to show you some stuff and it's going to change your mind on this. So promise me that you'll keep an open mind and I can promise you we're going to give you some really strong evidence at the close of the state's case. So it's good to use that opportunity to keep them open-minded about your theory of defense.
Marc
And it's important to note you're really not supposed to make arguments in opening statement. And so oftentimes lawyers will say things like, and the evidence is going to show that this and that rather than here's what the evidence is or something like that. Because if you say do too much of that, you could get an objection from the other side or the judge might say move along, those kinds of things. So another reason you might want to reserve your opening statement is you might be deciding between two different theories. You might say, we could go with self-defense, we also might go with alibi. It wasn't him, he wasn't there. But you can't quite go with both. You can't say, well, he wasn't there, but if he was there, he reacted in self-defense. I mean you've really got to pick one.
Andy
So people might say to that, well, you didn't decide before you went to trial. This is such an important decision. And the answer back is a lot of times we want to see how the witness testimony comes out in that state's case. We want to see exactly what each of the witnesses are going to say and how they're going to testify and whether they present credibly to the jury. And that might totally change our perspective on whether to go with say, a self-defense or a defense of a third party.
Marc
And you might be in a jurisdiction where you don't get to do interviews, and so you really might not know what these people are going to say.
Andy
Very good point. And in the federal system, you never get interviews, you never have a right to interviews,
Marc
Right? And even in a jurisdiction where you generally get interviews, you may not get to interview the alleged victim in the case, that might be the most important witness. And they may not have done a written statement, there may not be a full interview. You really might not know what it is they're going to say. And so you might say, they could say this or they could say that. Well, if they say this, then my defense will be X. If they say that my defense will be y, I'm not going to commit to something in opening statement. I will take the hit of not getting to say anything to them until my case because I want to find out what is said first by the witness, and then I'll declare my theory at the end. So there's a lot of strategy in there and you and I have wrestled over this point on many occasions. Do we open right at the beginning or do we reserve an opening? I love reserving opening because it kind of lets the judge know. I remember some trials where I've reserved opening and after the trial the judges said to me, Mr. Victor, when you reserved your opening, I knew you were up to something.
Speaker 3:
I
Marc
Knew there was something going on. And so yeah, there's usually something going on, so that's always fun. But in most cases, the defense lawyer is going to make an opening statement
Andy
And that opening statement too, just practically, once again, because you're dealing with humans in that jury box, this is a chance for you to build some rapport. That's right. It's a chance for you to give them some respect for showing up and being willing to take time and put their life on pause in order to be there. It's a time to get the jury to like you, right? It's really important to connect to the jury in a human level, and the opening is a really good opportunity to start doing that.
Marc
And also you can start making some deals with them. I did this on one of my trials where I got them to raise their hand and just, all I'm asking is, can you follow the law? I knew it was going to be a dry, a boring but legal defense. And then at the end of the case, remember when I asked you to raise your hand if you don't think you can follow the law, whether you like it or not, and this and that, and you guys all said you could follow the law. So now I want to cash that check. You guys have an obligation to follow the law. I gave you an opportunity to get off the jury early if you couldn't follow the law. That's the only thing I asked you at the beginning. Now it's time for you to follow the law, and if you do follow the law, that gets you to not guilty. So we want to think the think through carefully. So what you are presenting at the beginning works at the end when you stand up and closing, really that's the whole trial. The whole trial builds up to the closing argument. That's where you get to stand up and say, now you've seen everything, but we'll get to that,
Andy
We'll get to that. So I think we've said a heck of a lot about openings and reserving and opening and everything. So then after the openings happen, now we have the state's case and how this is going to go is the state's going to go, and then some stuff's going to happen in the middle and then the defense is going to go. So let's talk about the state's case in chief. Now, what this consists of is presentation of evidence. That's what it's all about. As the judge will remind the jury maybe several times throughout the trial. Lawyers' arguments are not evidence. You can consider lawyers' arguments for what they are, the lawyer's opinions on what the evidence looks like, but they are not evidence. And so what we do as lawyers during trial is we present evidence and evidence is presented in multiple different ways.
Andy
Most of it is presented through testimony. It's a witness actually taking the stand, going under oath, under penalty of perjury to tell the truth and giving their version of the facts and giving their versions of events. And in the case of expert witnesses that we'll talk about in a second, giving their opinions on certain subjects. And then it's also introducing evidence in terms of physical evidence, documents, maybe if there's a weapon involved, the weapon, if there's a substance or contraband involved that's admitted as evidence, maybe the evidence is as big as a vehicle or something like that that needs to be admitted. So there's different rules for admitting evidence. And the idea is that the jury's not allowed to consider things that aren't admitted as evidence, as actual evidence in the case. It has to be admitted and submitted to them by the court in order to consider it evidence.
Marc
So the state gets to present their case first and they get to think through how they want to present their case. Lots of times they'll call sort of the investigating officer. First will give sort of an overview, here's what happened and I showed up and this is what I did and here's what my investigation was about and on and on and on. So they give a nice an overview of what happened and then they'll call specific witnesses. They get to decide how to present their case. For each witness, the state will call a witness. They'll say, judge, we call so-and-so to the stand, and then by the way, we should talk about the rule of excluding witnesses. Usually there's a rule that is invoked at the beginning, which essentially says if you're a witness in this case, you don't get to sit here and listen to the whole trial and hear what other witnesses said. You got to sit outside the courtroom. And so this is where professionalism of lawyers come up. You might say, okay, we're not going to get to this guy until three days from now, so I'm going to keep, give us a list so we can coordinate. So people aren't sitting around for days outside the courtroom
Marc
Normally we'll say, okay, and this is why sometimes I think jurors can get upset because we may run out of witnesses, the witnesses went faster and we don't have anybody next ready to go because we weren't anticipating this person until tomorrow or something. So that happens, and it's hard to estimate. They don't know how long our cross-examination is going to go, but for each witness they call the witness, they then do direct examination, which means they don't get to ask leading questions. So they get to say what happened next? And this is typically a prosecutor, what did you do next and what did you do after that? And then what did you do? And they sort of walk them through the story. If they say, isn't it true that the next thing you did was X, Y, and Z? That'll generally get an objection.
Andy
Objection,
Marc
Yeah, that's leading the witness. You don't get to do that on direct examination. On direct examination, it should be the witness doing most of the speaking, not the person asking the question. Once they finish with that witness, they say, judge, I have no further questions for this witness. And then the judge will turn to the defense lawyer and say, cross-examination. You don't have to do cross-examination. And there have been many times where I have stood up and say, thank you, judge, no questions, and then sit down. That's always a dramatic thing to do in the courtroom, and I did quite a bit of this on the Baby Gabriel trial and people were stunned. This trial was covered live on national tv, and I remember it was yesterday the state put up their star witness and everybody was anticipating a tremendous amount of cross-examination. And I stood up and said, no questions. And I sat down and it was a gasp amongst the press that was there in the courtroom and people were wondering why I didn't ask any question. I had a reason for that. I
Andy
Think Nancy Grace went on TV and accused you of legal malpractice for that, no
Marc
Question. Yes, the national, it was funny because the national commentators were like, this guy, this guy's not asking any questions. What kind of a crazy guy is this? The local commentator said, we know Mark Victor, he's up to something. We don't know what he's up to yet. And where I was going with that was their whole case doesn't matter. None of that matters. And that's the argument I wanted to make, and that's the reason I didn't ask any questions. But you can stand up and say no questions. You can also say, thank you, judge, I'm going to cross examine the witness. Now you get up there and this is fun. Cross-examination is really, the spotlight should be on the questioner, right? Isn't it true officer such and such that when you did this, that happened and you're looking for a yes or a no? And these you can ask leading questions.
Andy
Yeah, that's what I was about to say. Really important there is that previous rule we just talked about where the direct examiner cannot ask leading questions. That's out the window on cross-examination. Leading is fair game
Marc
And cross-examination really should be a surgical strike. You should know exactly what it is you want to get from this witness. This isn't a fishing expedition. You may ask only a very few carefully placed questions. You can start yes or no or is it true? Would you agree with this or that or something like that. These are very tight questions. You don't want the witness giving long rambling answers and you can cut 'em out. Ask your simple question, Mr. So-and-so isn't it accurate that X, Y and Z happened and that's what you did correct? And then you're looking for a yes or a no. And if they start rambling, judge, please instruct the witness to answer the question. And so yeah, you can have a lot of fun on cross-examination. In fact, the good cross examiners stand right there in front of the jury. You want to be the center of attention right there, and sometimes it doesn't even matter what the witness says.
Marc
You're weaving in your theory on cross-examination is one of those really fun areas for criminal defense lawyers in terms of the way it's much more fun to do, especially if you can catch 'em in a lie or you know have good impeachment evidence. And impeachment is something that tends to show the witness might not be telling the truth or is inaccurate in some way, maybe not in a good position to see. And the cool thing about impeachment is you don't normally have to disclose that in advance. You can hold that and drop it on them right there in the middle of cross-examination.
Andy
Yeah, normally the evidentiary rules are really, really clear and really, really strict, which is that you don't get to sandbag the other side. You don't get to surprise them at trial with evidence that you didn't disclose to the other side. And for a defendant, this comports with their right to due process, the idea is that we don't want to do trial by ambush. We don't want people to get surprised by things that the state kept secret. And so for these reasons, there are procedural rules that say if you want to use this piece of evidence at trial, you got to get it submitted to the other side within this many days and they've got to get a chance to look at it. And if it's a witness, they got a chance to interview 'em and rules like that in different jurisdictions to prevent surprise evidence from being presented at trial. Well, once again, as you said, that rule does not apply to impeachment evidence. Stuff that tends to show that they're lying on the stand. We can pull that out of our back pocket figuratively and for the first time, present it. Now on your direct examination, you said that you were at this place at this time, right? Well, isn't this a picture of you at that time at a different place, things like that that we don't have to present ahead of time if the person basically perjures himself on the stand,
Marc
That's super fun.
Andy
It's always a blast
Marc
When you get something great like that. But you may also just want to stand up and highlight something now, officer, so-and-so on direct examination, isn't it true that you testified that, I dunno, the car was blue. Yes, it's true. That's what I said. The car was blue. Okay, thank you. And they sit down. Why might you want to do that? You want to just hide because later on you're going to show your guy was in the red car or something. You might just want to highlight that for the jury and you watch them and they write down on cross-examination. Yes, he reiterated the car was definitely blue.
Andy
Yeah, this is the human element coming in again is like you want that jury to notice that you're asking certain questions, and this goes to what you were saying strategically about keeping it short and sweet wherever possible because the fewer questions that you bury that important question and the more focused they're going to have on that important question. I love doing one question cross examination,
Marc
And if you want to argue later on that everything this witness said doesn't make any difference, it doesn't matter to the case, then you stand up and say No questions,
Andy
No questions, no thank you.
Marc
Then later on you can say in closing argument, ladies and gentlemen, did you notice I didn't even question everything he said, doesn't matter to this case. It was nothing relevant there. Here's why. So don't just get up there and see young lawyers feel like they have to cross examinee. In fact, I remember in cases that I have stood up and said No question. Sometimes my client is like, you're not going to ask any, what do you mean you're not going to ask any, you're not defending me. Just relax. We're going to be fine. This is not an important witness. We don't want to make this witness seem important. Because if you stand up and you do a lot of cross-examination, the jury's going to think, wow, this witness must really be important. They're fighting over little points and then later on you want to say this witness wasn't important at all. It doesn't quite jive properly. So there are good strategy reasons about why you might or might not cross examine somebody in how many questions you ask and how you ask the questions. Of course, you have to remember that after cross-examination, the prosecutor will have another opportunity to do what we call redirect.
Marc
And oftentimes redirect can be limited just to the questions that were raised on cross-examination. If you think about it, that's really fair, right? Because otherwise a prosecutor would just ask one or two questions on direct. You then do cross-examination and now they do their full direct examination with a whole bunch of new areas that you don't get to cross examine about. So redirect is supposed to be limited to the areas that were raised on cross-examination.
Andy
Yeah, absolutely. And so what we just described of direct examination by one party, cross-examination by the next, and then the original party coming back for redirect basically happens over and over and over again with different witnesses until all of the witnesses on the list are exhausted and then that party rests their case. Now I want to say things about different types of witnesses here because there are different designations that a witness might have. Obviously have people like law enforcement and people who basically are the state's agents, but a lot of times there are witnesses who don't have an affiliation like that. We might call this person a lay witness who's just isn't an expert, isn't maybe just saw something was present at the time of an incident, something like that. And so a lay witness comes in and gives testimony based on what they saw, basically their sensory perception of the incident, maybe knowledge that they have about the case and they're not held to a standard of a certain sort of scientific caliber or something like that. They simply give their opinions and this turns out to be the vast majority of witnesses. Then there are victims as you mentioned, that can testify if there's an alleged victim. And it always gives me a little bit of a heartburn to call them victims ahead of time. This is a term of art in the legal system, but they're really not victims at that point. While my client is presumed innocent, they're alleged victims at that point and we're always very careful that nobody refers to them as the victim in front of the jury.
Andy
That is a term of art. These victims oftentimes take the stand and give testimony for the first time in trial. As you alluded to earlier, many jurisdictions do not guarantee the defendant to have a crack at the victim with an interview before the actual trial. There are usually things like victims', bills of rights and statutory laws to protect the victims from being interviewed.
Marc
Yeah. We should also point out that while it might seem obvious to us, it may not be obvious to everybody, the prosecutor doesn't get to call the defendant as a witness in their case. The defendant never has to testify. The defendant has a right to remain silent, does not have to testify in the state's case, was never going to be called to testify in the state's case and doesn't even have to get up in the defense case. And if the defendant doesn't, the judge will instruct the jury that, hey, the defendant testify. You can't use that as evidence against the defendant. You can't even draw an inference. It's just the defendant has a right not to testify and the state or the prosecutor has to convict the defendant with its own evidence.
Andy
Now, interesting. On that point, the prosecutor can however call other witnesses knowing that they're going to take the fifth Amendment in front of the jury. You might call somebody who has an unrelated case or something like that and put 'em in front of the jury and say, isn't it true that you were there that night and you handed him the gun or something like that. I plead the fifth. Maybe they want the jury to see that person take the fifth Amendment as a strategy decision, continuing on with different types of witnesses. There's a whole category called expert witnesses. And geez, mark, we could talk, make a whole video about the different standards to designate somebody as an expert and what the different elements are. But in the interest of our staff actually going home at some point today, suffice it to say you're not an expert just because you call yourself an expert. There's different rules and different jurisdictions and different jurisdictions adopt different standards. So you got to know which standard that your jurisdiction uses, but you got to get that person qualified and designated by the court as an expert for them to give opinions and opine about things that require technical knowledge.
Marc
And sometimes this comes in the area of motion practice before you might file a motion or one side might file a motion and say, Hey, they've noticed up an expert. This person's not an expert. So it's a motion to disqualify. so-and-So as an expert or maybe to limit their testimony while they're an expert, they're an expert in this area, not that area. So I don't want to hear any opinions about something outside their area of expertise. But generally speaking, an expert is somebody who has some specialized knowledge that the average person doesn't have. That would be of some assistance to the members of the jury in resolving the issues at hand. And so usually courts are pretty good at letting experts testify if they have something more than an average person has. And this is how you get into the battle of the experts. One person might have a master's, another person has a PhD, and so at the end of the case, the argument's going to be by the person who called the PhD. Look, our expert is far more qualified than their
Andy
Expert. There's so many cases that get into a battle of the experts, battle of the
Marc
Experts.
Andy
Jurors are hearing different experts from different sides. And the stuff that's used to impeach expert witnesses is pretty interesting too. Some of the things from the typical playbook there might be, isn't it true you were paid for your testimony today? Isn't it true you've testified for this prosecutor in 18 different trials in the last two years? You're biased towards the state, aren't you? Things like that.
Marc
Yeah. It's also interesting little point too, that rule of excluding witnesses, generally experts are exempt from that, and so experts usually will get to sit in the courtroom and listen to the other expert testify so they can take notes. I think that makes a lot of sense because how am I going to explain to our DNA expert the various things that the other DNA expert has said? It's hard to get to the truth. That way it's easier if they sit there and listen to the various jargon in terms of art that are being espoused by the person with the knowledge that nobody knows what the heck they're talking about. And also it's really not just a matter of education and qualifications is who testifies better. Sometimes you'll have somebody who's really bright that just don't do a good job at explaining it to lay people very well, and sometimes the better expert is the one who just testifies better, is more liked by the jury. So you have to factor all these things in When you select an expert, it's not just who has the most experience and education and this and that, but who's going to testify in a way that jurors are more likely to believe what this person says?
Andy
Yeah, the rapport with the jury extends to your expert witnesses for sure, and the best witnesses you'll see they are trained enough in testifying and maybe are more experienced or have good direction from the lawyers conducting the case to actively work on building that report every moment during their testimony. For example, if you see a seasoned cop who testifies regularly for the state, you'll notice something in most of these cases. A prosecutor will ask questions and say, officer, what's the answer to this question? And you'll actually see the officer turn, face the jury and start explaining, well, I was there at this time, blah, blah, blah, blah, blah. Turn back face prosecutor, prosecutor, ask questions. So we do this with our experts and with our clients and when people like you're trying to connect with the jury, we're going to ask you a question. You'll turn, you'll make eye contact, you'll look around and you'll genuinely try to connect with them as you're answering the question. And some people need a little bit of smoothing over in this area. Some of the witnesses and defendants we've represented have been more difficult to train in this area than others for sure.
Marc
And even when you're dealing with that really, really good state's expert, that polished cop who knows exactly how to, sometimes you could bring this up in closing argument. Did you notice that police officer really expert you notice each time he turned and made eye contact? This is a professional witness, right?
Andy
Professional witness.
Marc
And so sometimes I like it when we use an expert who has testified routinely for both sides, right? A use of force expert who has said, yeah, the police acted appropriately and the police acted inappropriately and has testified on both sides. Many times that person looks much more unbiased. So yeah, everything is fair game when you're talking about experts and every case is unique. This is why you've really got to be creative and think outside the box when you're trying a case.
Andy
I want to say some things at this juncture about objections. So objections. There are some of the most dramatic moments, right in the public's perception. An objection is simply somebody is doing something or testifying to something or asking a question that warrants for some legal or evidentiary reason them to stop testifying to that or to revise their statement or have something stricken from the record. We've only alluded to one so far, which is a leading question on direct examination, which you are not allowed to do, and so that would warrant an objection, but objections can be for all kinds of different reasons. Let's go over some common ones. So for example, maybe the judge has forbidden certain evidence in the pretrial phase from coming in at trial and one of the parties or witnesses is trying to either elicit that testimony through a question or is trying to give that in violation of a court order that was previously made. That definitely warrants an objection.
Marc
Yeah. Also, hearsay is really a common objection. Everybody thinks they know what hearsay is. Hearsay is officially an out of court statement that is offered for the truth of the matter asserted. What the hell does that mean? You're essentially using an out of court statement to prove the truth of that statement. Now, there are exceptions to that. There are exemptions to that. Anything the defendant has said outside of court is automatically not subject to the hearsay rule. Then even if it is hearsay, there are so many exceptions to the hearsay rule. So these are the kinds of evidentiary battles we get into.
Andy
Yeah, hearsay, we could do a whole video about whole video because the rules, the hearsay rules are so because you have certain instances of things that look like hearsay but aren't actually hearsay, non hearsay, perhaps they're not being presented for the truth of the matter asserted, which seems kind of like a technical point. And then you have stuff that everybody agrees is hearsay, but for certain important policy and procedural reasons, we're going to allow it in anyway.
Marc
That's right.
Andy
I mean rather than go through each and every one of those different things, suffice it to say there's tons of hearsay rules. Every lawyer who goes through law school and learns evidence usually spends close to an entire damn semester talking about the hearsay rules, exceptions, and so on. So hearsay is a very common objection.
Marc
Lack of foundation is also really a very popular one, which is, hey, this person is now testifying about things that you haven't laid the foundation. How would this person know such a thing? So yes, sometimes a judge will say, sustained, lay some more foundation. Okay, were you there? Were you in a position to see? Did you see or does the photograph accurately reflect what it looked like on the day in question? Those kinds of things. Sometimes I think that lawyers object too much at trial just because something is technically in the wrong form, why object and then have them just restate it in a different form if it's going to come in anyways, what you've just highlighted to the jury is that this is really important. I really care about this
Andy
Excellent point, and I was thinking about this point with objections when you were talking about cross-examination because you were talking about unnecessarily and maybe overly aggressively cross-examining witnesses when you don't have to. All you're highlighting for the jury is what this guy just said. It was really damaging to my case, and so I feel the need to try to fight back against that. You're doing the same thing with unnecessary objections. If it's unimportant and it's probably coming in anyway strategically, you very well might make a decision not to object even though you're correct on the law to do so.
Marc
Yeah, and there are different strategies here. I mean, you might have a brand new prosecutor on the other side and you just want to rattle the person and make it hard for them to present their case. You can do that too. On the other hand, that can backfire, right? A jury might look at you and say, this guy's really,
Andy
You don't want to look like a jerk.
Marc
Yeah, this guy's kind of a jerks making it. He's dragging the trial out and the prosecutor says, oh, okay, now let's go back and ask five questions and he knows I'm going to ask, and this is coming in anyways, but it's a waste of time. And so sometimes instead of laying everybody's credentials out, you might skip over that sort of you have an agreement that we don't have to lay all this foundation. We'll just agree the guy's an expert in that area move on. And so these are the kinds of things that you might want to stipulations. There's also stipulations, and so sometimes there might be a fact where prosecutors going to, he's going to have to fly in five witnesses from across the nation and it's going to take three days and it's coming in and why waste three days of trial time just stipulate and then the judge will read to the jury, the parties have stipulated to the following facts, X, Y, and Z are true. And you can accept those as being true just to shorten the trial up because it could piss off the jury if one side was just being a pain in the neck causing everybody to sit there and go through unnecessary evidence. So these are
Andy
Decisions. You might have a witness that has to testify for hours in order to get out one particular point, and maybe you don't want the jury to see that. First of all, it's the practical concern of maybe you don't want the jury to have to sit through that unnecessarily, but maybe you also don't want the jury to see it. Another kind of a technical expert or something like that who seems credible and everything testifying for the state's case. It might be a strategic advantage to actually stipulate to the fact and shorten the trial and one less thing that the state gets to present is credible to the jury.
Marc
Also, character evidence is another really popular one. Trials are supposed to be based on the evidence, not based on this. Defendant did something previously in his past and he's a bad guy and we want to let the jury know that this guy's a bad guy and then they'll be more likely to convict this person based on past bad characters. So generally speaking, character evidence just to show the person's a bad person and they should be convicted. That's not admissible. However,
Andy
There's so many exceptions.
Marc
Yeah, there's 4 0 4
Andy
B,
Marc
Every lawyer knows 4 0 4 B, which is, well, we're not using it for that purpose. We're using it for some other purpose to show their motive or their identity or their modus operandi or a common plan or scheme or something like that. 4 0 4 B is a very hotly contested evidentiary rule that every trial attorney knows about.
Andy
Yeah, so yeah, there's lots and lots of evidentiary rules and if you notice the other side violating those evidentiary rules that should draw an objection.
Speaker 3:
Yeah,
Andy
So how does a judge deal with objections? Sometimes the judge will immediately have a ruling on the objection and you either get a sustained or overruled. If you get a sustained, that means the judge finds that the objection is valid and instructs either the prosecutor don't ask that question or witness, don't answer that question because that would violate a rule or something like that. Or sometimes the judge calls people up in order to try to deal with an objection that was sustained and we'll talk about bench conferences in a second. Then there's overruled, which is the judge saying, all right, I've considered your objection and I don't find it to be meritorious for whatever reason, and so therefore I'm going to allow the question or the answer or whatever it may be. Now, sometimes the judge needs some convincing and says, okay, tell me what's your reasoning behind that objection, and you may have to make a little bit of an argument and the prosecutor's going to get a chance to respond and make their argument. Oftentimes this is outside of the presence of the jury. We don't want the jury to hear lawyers talking about technical legal points and the hearsay rules and everything like that when that stuff is irrelevant to what they're there to decide, which is has the state proven all the elements of the case beyond a reasonable doubt?
Marc
Yeah, I was just going to talk about relevance. And sometimes the objection is, judge, objection, relevance.
Andy
It's not relevant,
Marc
It's not relevant. And the judge says Either sustained, you might say, judge, could we approach because the judge doesn't see why it's relevant, but the judge doesn't know where you're going. And so you may approach and say, look, judge, I recognize so far this isn't relevant, but here's why it's important because I'm laying some foundation to get to somewhere that's going to be very relevant in the case. And lots of times you can convince a judge because this, again, they don't want to create appellate issues, and you can make a record here if the judge cuts you off and doesn't let you get to an important relevant point. You can do an offer of proof the next time the jury's out. You say, now, judge, I was asking this question and there was an objection on relevance and you sustained it, and I just want to say, judge, had you let me go.
Marc
Here are the things that would've occurred. I would've asked this question, this question, this question, and the witness was going to say this thing at the end, and that's really important to this case. That's sort of an offer of proof. We call that to put information into the record to put it in front of the judge so the judge might change his or her mind, and if the judge doesn't, now the court of appeals will see that and your argument is going to be this was a critical piece of evidence. They didn't get to hear. The judge made a bad ruling. I laid it all out for the judge and still the judge didn't reverse it.
Andy
Yeah, the point that you just made is so important and it's so important that we probably should have made it at the beginning, which is that the judge doesn't want to create appellate issues. That's right. It reflects poorly typically on the judge to be reversed by the higher court. In other words, to have a higher court, usually a panel of judges on a higher courts say that trial level judge screwed up. He screwed up.
Marc
Do it all over again.
Andy
Yeah, do it all over again. Use the taxpayer funds in your jurisdiction to do that all over again because the judge screwed up. So if you're, what motivation does the judge have to make the correct rulings legally correct rulings on all of these objections and motions and some of the stuff we've already talked about, that is a guiding principle here is that judges do not want to be reversed on appeal. Obviously we got a big video coming up about appeal and post-conviction relief, but this is really important guiding principle that the judge as that neutral arbiter of the trial constantly has in their mind.
Marc
So at some point the state calls all of its witnesses, lay witnesses, expert witnesses, admits all of its evidence. The state will say, we move to admit exhibit number 1, 2, 3, and the judge will say any objection and either if you have an objection, you'll give the objection. If not, you'll say no objection. The judge will say it's admitted, and then the state says the state rests, and at that point, usually there'll be a break, right? Because the judge knows what's coming. There'll almost always be some type of a motion for a judgment of acquittal and just explaining what this is sort of conceptually. The idea here is, hey, judge, everything they've presented so far, it's not enough for a conviction. We don't want the conviction to come from evidence we present because at this point there really needs to be enough to sustain that conviction. And if there's not, say they didn't present enough evidence or any evidence on some aspect, some element of that crime, then the judge might say, you know what? I find, and you and I have won several of these, these are pretty rare.
Andy
I remember that year I won three in a row. These I was so happy.
Marc
We've had several of these actually. And the judge will say, you know what? I agree with the defense. The state has not presented enough evidence on one or more elements that I'm going to enter a judgment of acquittal right now. Boom.
Andy
Let me give the layman's rephrasing of what that judgment of acquittal is at the halftime mark, you are turning to the judge and you're saying, judge, even if the jury believes every single thing that the state just said, and even if my client never opens his mouth and I don't present a single shred of evidence or testimony, I still win. And here's why. That's basically what you're arguing.
Marc
And if you can win that, that is really egg on a prosecutor's face, right? Because look, they've presented everything and even if it's believed, the judges to look at it in the light most favorable to the state at this point, and even if it's all believed and it still doesn't add up to a conviction, we shouldn't have to go any further. And that's what you're asking. A judge is supposed to rule on that right then and there because you shouldn't have to proceed and put your evidence on if they haven't proven the case beyond a reasonable doubt.
Andy
And you always file that motion if you find whatever issue that you can that has merit to file in that motion to include in that argument. Because as we were talking about earlier, if you don't preserve it, you don't get to bring it up later and it's possible. One of your appellate issues might be, I made a valid motion at halftime to get whole thing dismissed and the judge was just legally wrong on that, and I want the appellate court to take a look at that.
Marc
Yeah, I won one of these one time just on a misidentification issue. The witnesses on the stand identified the wrong person as the defendant, and I showed the judge that they didn't identify the right person. I don't have to put my guy on the stand. So now I say, here's the guy that was the defendant in the, how's he supposed to talk about what happened? And then later on we have an argument that they didn't identify the right person. There's a question about that. So I won that on what an Arizona is termed a rule 20, which is that halftime motion to motion for judgment of acquittal. So if that's denied, then the defense has their opportunity to put on their case. The defense can just say, we rest. The defense isn't required to call one witness or present one piece of evidence, and there are many trials where the defendant doesn't present anything, says defense rests. Great. Let's move to closing argument.
Andy
Remember that burden we talked about at the very beginning? The burden is, and you've heard us say it and hammer it in all throughout this series, the burden is on the state to prove every element of the offense beyond a reasonable doubt. We don't even have to open our mouth, we don't have to put the defendant on. We don't have to put a witness on. So that's why we could simply rest if we wanted to. But if we don't simply rest and we want to present some evidence of our own, the process is going to follow the very similar path that we just described with the state. We're going to be putting witnesses on one by one of the different varieties that we already referred to. It'll look exactly the same in terms of direct examination. We're now, we can't ask the leading questions. Then the state gets to go up and now they do get to ask the leading questions on cross. We get our opportunity with the last word of rebuttal to address the issues that arose on cross-examination. And we go through that whole process again with our witnesses until we've exhausted all of them.
Marc
And then at some point we say the defense rests. Then at that point the state gets another opportunity. They get a second bite at the apple for what's called a rebuttal case. If there have been new things that have been brought up, now they get to call witnesses, which can be the investigating officer. Maybe you've brought up a theory they weren't expecting, and now the state wants to sort of reopen their case in rebuttal and call the investigating officer and say, did you hear the defendant say this or that, or one of the defense witnesses say this or that. They may say The state never investigated this person, John Smith, and that lack of investigation is what our defense is based on, and that's our reasonable doubt. And you may get the prosecutor call the investigator up and say, did you ever do an investigation on John Smith? As a matter of fact, we did and we didn't find anything there, so we just moved on. That's why we didn't talk about it. In our case, something like that might come up in the rebuttal case. Those are usually pretty short. So then they get to present their rebuttal case and then that's the end evidence is now closed.
Andy
Before we go to closing arguments, which I know is a subject near and dear to both of our hearts, I wanted to talk about a few miscellaneous things that are important all throughout the trial, and one of them we alluded to earlier, which is these bench conferences that these attorneys do, and these happen frequently at trial. As I alluded to earlier, there's certain things we don't want the jury to hear or taint them in any way, shape or form because we want them to be impartial. We want them to do their job and be impartial. And so sometimes the things that lawyers argue about, maybe it's an objection, something we're trying to preserve, the admission of a piece of evidence that maybe we disagree with, that the state doesn't think we should be able to introduce in our case where we need to talk privately among the lawyers oftentimes geared towards making the judge reach a decision regarding these things.
Andy
Now when you see the lawyers go up to the bench and sometimes they even put on the white noise so that nobody can hear what we're talking about, that's what we're doing. We're having a private conversation about some sort of a relevant legal point, and we're usually hashing it out. Sometimes those bench conferences can get a little intense because we're quietly trying to make an oral argument to convince the judge. Also common is the judge may say, counsel, see me in the back room real quick. Ladies and gentlemen, hang out here for a moment. Don't talk to each other about the case. We're going to have a conversation. They might pop into chambers and invite the parties in the back and we can talk about the evidentiary issue or whatever the issue is back there. And then also what happens sometimes maybe the judge is a savvy judge and understands that this might be a big issue.
Andy
That's going to take a little while to argue, and there might be a really good point here that one or more of the parties it's trying to make, and I'm expecting this to take a while, not something that we could just do at the bench conference. The judge may say, ladies and gentlemen, there's some issues that have arisen that I need to investigate. So I'm going to have you go back into the jury room. Bail is going to come and take you back into the jury room. Don't talk to each other about the case and excuse the jury so that the lawyers can hash it out on the record in the courtroom.
Marc
All that stuff is fun. Sometimes this is where we talk about they opened the door.
Andy
Oh yeah, there's another miscellaneous topic.
Marc
Yeah, these can be super fun. Sometimes you'll get a ruling. You want to go into something in your defense and the judge is like, no, you don't get to go into that unless of course they start going into it. Then you can go into it and they may have said something about, and you might say, judge, they just opened the door. They went into that. So now I got to go into it and open up this. It might be something you're really excited to bring into the trial, and the argument is going to be whether or not they went far enough to actually open the door. And you and I had that one time. I
Andy
Think I remember it was my second year as a lawyer. I was brand new. We were in a major federal trial and we were up against an attorney from the United States District Attorney's office who I have great respect for. Excellent, excellent lawyer. I won't name him here, but I'm guessing you know exactly what I'm
Marc
About. Yes, I know exactly what
Andy
He's one of my most respected prosecutors I've ever worked with. Incredible prosecutor. I think he's retired now actually recently. But I remember there was a pretrial ruling where the judge said, Mr. Markell, you're not allowed to ask this question to your expert witness for X, Y, and Z evidentiary reasons. So I was prohibited in that pretrial motion from asking a certain question. So I got up, I did my direct examination of that expert. I didn't ask him that question. Well, this prosecutor got up on cross-examination and oops, accidentally opened the door, asked him something close enough. That question then became relevant, and there'd be no other way for me to cure it in the eyes of the jury without asking that question. And left totally unchallenged would've been completely unfair to our client. So just like the third scenario that we just described where the judge excuses the jury, we went up to the bench at first and I said, judge, I got a big problem right now.
Andy
The prosecutor just opened the door and now I should be able to ask that question. The judge, who also was an excellent judge I remember said, oh, this is going to take a while. I'm going to excuse the jury. And so we hashed it out and in the end, the judge agreed with us and said, yeah, that top prosecutor over there at the United States District Attorney's office, they can make mistakes sometimes when it comes to the evidence and cross-examination. They did, and we were able to ask the question after we brought the jury back in. I remember that was a big one.
Marc
That was such a fun trial. I wish we could talk more about it, but we just don't have the authorization to do that. That's as much as we could say. But yeah, so all of these things, we could talk for hours and hours about just trying cases and even this is a pretty high level overview, but I hope we're giving people the flavor of how these things go. So eventually both sides have now rested and you get what we call final jury instructions. There's a little haggling over which jury instructions are going to be given to the jury. Sometimes we will either side, we will write what's called a special jury instruction because the existing jury instructions may not be adequate, and there's really no magic. All you're trying to do is give the jury an accurate statement of what the law is.
Andy
Well, let's contextualize that for people. So every jurisdiction usually has these things that we might call standard jury instructions. So every state or even in the federal system, they have sometimes they're called the rajes, there's different names for them that abbreviations. But the idea is that in these types of cases involving these types of issues, we need to explain the law to the jury through a jury instruction and instruct the jury what they're required to do as jurors and what they must find, for example, in order to convict somebody of this type of an offense. And so to streamline that process, we have these standard jury instructions that we give in all of these cases and we hand 'em to the jury. Special instructions, which I think you should talk a little more about here, fun are outside of those standard instructions.
Marc
I love special instructions, and one of the reasons I like 'em is because you can really zero in on what your is. So you might want an instruction from the judge that says, if the jury finds fact A, fact B, in fact C, then you must acquit. And if that's an accurate statement of the law, you may want the judge to read that specific jury instruction to the jury because now you sort of have the judge telling them. So you're setting up what you're doing in closing argument. And so in closing argument, you want to come in and say, you heard the judge say if you find fact A, B, and C, that's a not guilty. Well, let's talk about it. Fact A is definitely true. Fact B is true, and fact C is true. The judge already told you if A, B and C are true, this is a not guilty. They're true, it's a not guilty. That's what I'm asking you to come back and
Andy
Do. Yeah, if you can use those instructions in order to make your argument like that and say, the judge has instructed you to find this, it's very powerful because the judge does turn to them and read all those instructions and say, ladies and gentlemen of the jury, you must do this X, Y, and Z.
Marc
And usually there's some good case law out there that says, look, a defendant is entitled to a jury instruction if it is an accurate statement of the law and if it tracks what the defense theory is on the case. And so this is also a very fertile area for appellate issues, right? Because you'll haggle around with what these things should say and what the law exactly is. And if this thing is wrong, then you can argue on a PLA, there was an erroneous jury instruction. Now, if you're the one who sort of proffered the jury instruction, you're not going to later be able to say This was a mistake. They're going to say That's invited error. You're the one who offered the jury instruction. But on the other hand, if it was your adversary who offered that jury instruction and you preserve that issue, you say, judge, this is not an accurate statement of the lie. Oppose that jury instruction, and the judge says, I'm going to give the jury instruction. I think it's accurate. Turns out it's not. That's going to be a pretty easy appellate issue and it's going to affect the whole trial.
Andy
And once again, every step of the way we're preserving those issues with a good lawyer doesn't just think about the task in front of them, they think down the line, right? That's right. The down the line to if we need to appeal this case, we're going for the win right now. But if we got to appeal it and win it later, I got to preserve those issues every step of the way.
Marc
So we like to get really creative on special jury instructions. I can't think of a case where I've tried where I haven't written special jury instructions. So this is good. Lawyers will sit and write special jury instructions. So once you get that all settled, now it's the best time. Now it's closing argument. And the prosecutor always has the burden so they get to go first. Sometimes the judge will give you a hard, here's how many minutes you get for this, and other times in a big case, judge will just let you go. And so the prosecutor will get to do their closing argument, which is now argument. Right at the beginning, I told you you were going to see this, that, and the next thing. Here's what I showed you. Here's how it all adds up. Here's why you should come back with the verdict of guilty.
Marc
They sit down, then the defense attorney gets to get up there and say, no, no, no. That's not what the evidence shows. Here's all these problems. He glossed over this, that, and the next thing. Instead, the evidence shows this problem and this problem and this problem. And they did not prove their case beyond a reasonable doubt. That's why you should come back with a not guilty. And then because the prosecutor has the burden of proof, they get to have the last word. This is also why the prosecutor, if you'll notice in the courtroom, gets to sit right next to the jury, right? There's two tables and one side has the jury in almost all courtrooms, it's the prosecutor who gets to sit next to the jury. It's sort of symbolic just to say, look, they got the burden of proof. They get the seat right there next to the jury, so they get the last word in the case. They get to do their rebuttal closing argument. And once that's done and your jury instructions are done, the judge gives them the final instructions and then the jury is whisked off to the jury room to deliberate about the case.
Andy
Yeah, just to say a few more things about closing argument, how important it's, here's our opportunity now to go through everything, to go through all of the evidence, every piece of testimony, all the good stuff in our case, and even highlight things that happened such as objections. Hey, you notice ladies and gentlemen of the jury, when this person in our case was testifying, they objected a lot. Maybe they didn't want you to hear what that witness had to say. Did you notice how the officer said this? And he's a professional witness. In other words, there are opportunities to talk about the behavior in the process of the state and how they chose to bring the prosecution and how they did their case. So this is a great chance to really complete that rapport with the jury to come back and echo the arguments that you made in your opening statement to make good on promises that you promised them, Hey, we told you in the opening statement the evidence is going to show this. There you go. We showed it to you. We now ask that you follow the law.
Marc
Closing can be, it's the most fun part of the case. We talked about the baby Gabriel Case. Maybe we'll link that closing argument, put it in there for people to see
Andy
You. And I like to do things to get the jury inspired. We like to talk about the founding fathers. That's right. We like to talk about the burden of proof and why the burden of proof exists and why it weighs against the state and the importance of the doctrine that it's better. 10 guilty go free than one innocent person go to prison or get convicted. We like to talk about, inspire them to do their duties. So yeah, I also, if people can't tell love doing closing arguments. So after the arguments are done, now the case is submitted to the jury, and this is the part that's the most tense perhaps of the entire trial. This is when the jury is back in deliberations and for the first time in the entire case, they're now allowed to talk to one another about the evidence and about the case.
Marc
Sometimes they send questions in for the judge and usually the parties get called back in, say, here are the questions. And depending on the jurisdiction jurisdictions handle this differently. The judge will then send back an answer that both parties have either agreed to or lodged objections to. And at some point you hear that either the jury is deadlocked, in which case they're brought back. The judge gives a very carefully crafted instruction to them.
Andy
They kind of nudge,
Marc
Tell us which direction you're locked, but go back and try harder. And then if they're still deadlocked, then you usually will get a mistrial, which could result in another trial, start from scratch with a new jury, or you get a unanimous guilty or a unanimous not guilty.
Andy
Yeah, absolutely. And while you're in the courtroom and they tell you the jury has reached a verdict and maybe you're out and about, maybe you're close to the courthouse and you get your client and you go in, you sit down and then that jury files in and they've got the verdict form in their hand, and they hand it over to the bailiff who hands it to the judge and secretly looks at it. You can hear a pin drop in that courtroom. It is the most tense for people who haven't experienced that. That is an intense moment
Andy
For our client more than anybody else. Then the verdict is read. It's either guilty or not guilty if they reached a verdict. And then the trial is over at that point. Now, there are some motions that you can file post verdict in order to try to overturn the conviction. So there are some more things that you can preserve there. For the appellate courts, the types of standards here are no reasonable jury given how the evidence came out could have possibly reached this verdict. That's a tough one to get. It's a very high burden, right? No reasonable jury could have come back with this verdict. We give a lot of deference to what the jury decides, and so they're rarely granted. But if you have a chance of raising good issue, you better preserve it.
Marc
And also usually whoever loses we'll ask to poll the jury. And so you'll go through and each juror will be put on the spot. Is this your true and correct verdict? Yes, it is. And if somebody hesitates or say no, then you might have an issue there. But essentially, that's how a trial goes. Super fun, super long, super tiring. It's the pinnacle of what we do.
Andy
Yeah. And so our next video in the Fighting the State series, we'll talk about if you get convicted at trial, what your options are, because there's several different avenues of what we might call post-conviction relief that are available to defendants, both in the appeal and the formal process that each state has that they might have their own name for or just simply call post-conviction relief. So we'll talk about that in the state system, the federal system, what appeals look like. We'll talk about appealing it up to circuit courts. We'll talk about all kinds of habeas corpus. All kinds of fun stuff will be covered in our next video. I'm glad we got through this one, mark. It was a long one.
Marc
I hope people come to the conclusion it's not quite as simple as people think it is just going to trial. But I hope this series is helpful for people to just understand really what's involved in a criminal case in terms of flowing through the system. That's what we're trying to do here.
Andy
And so many of these topics, and even some we didn't mention in this video today, really deserve their own video to learn all the nuances. But that's the rough and dirty 30,000 foot view of how a trial goes from a criminal defense perspective. And I'm thankful that you guys tuned in for it today. Go and check out attorneys on retainer us to learn all about our Self-defense program and what it can do for you. Also check out attorneys for freedom.com to learn all about our law firm and how we represent our clients in the justice system. And as you guys may know, we have our first annual attorneys on retainer conference coming up in November, 2024. It's going to be November 8th through the 10th. There's going to be all kinds of awesome speakers, events, breakout sessions, arranged day, a cocktail hour, a tour of our law firm. It's going to be here in Arizona. So if you guys are interested in that, make sure to check the link down below. And just a reminder, it's free for a OR clients. So now's a great time to sign up if you're interested in the conference. As always, if you liked the video, leave us a like down below, leave us a comment, subscribe and share it with a friend. Until next time, this has been attorney Andy Markell and attorney Mark j Victor. Peace.
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