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How to Defend a Criminal Case* - Part III

By this time in our series, the charges have been reviewed, broken into their elements and all of the facts have been gathered, poured over and sifted. It is now time to make that all important decision of whether to seek dismissal, suppression of evidence and file other aggressive motions such as motions in limine (pronounced lim-in-ee). A motion in limine is filed to exclude evidence, often based upon the applicable rules of evidence, and not usually based upon constitutional or statutory grounds that make obtaining the evidence illegal. Know the prosecutorial authority's policies regarding revocation or worsening of plea offers upon filing these motions or taking other aggressive action. For instance, if the D.A. office policy is to notify defense counsel or pro se (pro per in California) parties before revoking a plea, and no such threat has yet been made, then you may, at least, consider filing the applicable motion and, possibly withdrawing it later. This can have the effect of bluffing the prosecutor to be concerned that the motion has merit and there is risk to the prosecutor's case. The prosecutor may then take action to sweeten the plea offer and entice the defendant to take the deal. Conversely, the prosecutor may call your bluff and then threaten that, if you proceed further with the motion, then the plea offer is rescinded. Again, there is no way to determine, except upon the specific facts of each case, whether to act on the plea and abandon the Motion or to press forward despite the threat of no settlement. Obviously, if the case is strong for the defense or the defendant wants to vindicate his or her Fifth Amendment right to a jury trial, even if the Motion is weak, there is little to lose to proceed with the Motion. Even if the Motion loses, the case is planned to proceed to trial anyway. If, however, the case is weak and/or the defendant does not want a trial, then the defense must tread carefully, so as not to eliminate viable choices for resolution of the case.

In most instances, there will be a hearing on motions to dismiss and motions in limine, but those hearings will involve legal argument and rarely require the production of evidence by either side. Conversely, a motion to suppress based upon constitutional grounds usually places the burden on the prosecution to prove by producing evidence that the evidence at issue was lawfully obtained, e.g. police officer's testimony to facts before searching to demonstrate that he had probable cause to support a search. So, in a motion to suppress, the defense may or may not have to make an initial showing, i.e. in some Fourth Amendment challenges to evidence, the defense must first demonstrate a legitimate expectation of privacy that was invaded, but the prosecution will have the ultimate burden of proof that the evidence was not obtained in violation of the defendant's constitutional rights or, regardless, is lawfully admissible in the trial of the case.

A motion in limine is an interesting animal in that it tends to be a catchall motion for any evidence that should be excluded from the trial not properly addressed by some other vehicle. Limine is a Latin word meaning "on the threshold" because these motions are often filed just prior to or at the trial of the case. A motion in limine tends to be filed overwhelmingly when it may be argued that the rules of evidence do not or should not permit the admission of the evidence at issue. In the case of all of these pre-trial motions, it is both prudent and usually required to set forth the evidence to be targeted and the precise legal grounds and legal authorities supporting the position that the evidence should be excluded from the trial. Often, precise rules of criminal procedure, case authority or local rules and court's standing orders (in California, local local rules) will provide guidelines for the format and requirements of motions to dismiss, suppress and in limine.

Whether some or all of your pre-trial motions have succeeded, if the entire case or every piece of evidence is not excluded, the case may proceed to trial. If you have succeeded in eviscerating the prosecution's case, leaving scant or no evidence within which the prosecutor can ever hope to obtain a conviction, the prosecutor may bluff to the very end, but then seek to dismiss the case. If a trial ensues, it may be conveniently broken down into the following parts: jury selection (voir dire), preliminary instructions, opening statements, evidentiary portion, charge conference, closing arguments, charging the jury, deliberations and verdict. Unfortunately, as with most discussions of what lawyers learn to do in 3 years of school and scores of years of practice, it is impossible to go into the degree of detail that would teach someone how to competently conduct each of the stages of a trial. However, nothing prevents us from, at least, describing and giving some idea of how each stage works, which begins with the seating of the prosecution at counsel table closest to the jury.

Jury selection or voir dire (which means, again in Latin, to speak the truth) really should be called jury unselection or the unpicking of a jury. Generally, the first group (maybe 20-30) of jurors are placed in rows and pro per parties or their lawyers are given a grid with the names of those jurors in order to address them and ask them questions. The plan is to exercise strikes against jurors that you do not want on the jury in order of the first set of 6-12 (plus alternate jurors) that could be seated if everyone accepted them. There is no constitutional right for parties or their counsel to question jurors as long as the court does so adequately. There is a tendency for most federal courts to disallow questioning by parties or their lawyers or to allow it for few questions. Conversely, state courts often allow lawyers to extensively question a panel to the extent that your average DUI case may require jury selection to take from about 9:00 a.m. to noon. There are numerous rules governing jury selection, such as the fact that you cannot make racial or gender discriminatory challenges to jurors and are, likewise, prohibited from trying to commit jurors to your favored verdict.

After the jurors are selected and seated, they are sworn in to truly and faithfully try the cause before them. At this moment, jeopardy attaches and the defendant may not ordinarily be re-tried for the offenses based upon the same facts ever again, but the reasons are beyond the scope of this article (maybe not for a future one though). The court instructs the jury preliminarily about what they are to expect during the process, that the lawyers' opening statements are not evidence, but that they should listen because the lawyers will explain what they expect to prove, that the jurors should not discuss the case during breaks, etc. Opening statements then begin.

Opening statements, closing arguments and the evidentiary portion of the trial are the stages most paraded in fictional law-based television and, are thus, most familiar to all. What readers may not be aware of is that argument is generally prohibited in opening statements. Those are saved for closing arguments. Opening Statements are for thematic presentation and those pertinent facts that each party wishes to highlight that it intends to prove. A party may also inform the jury that it anticipates the jury will return a guilty or not guilty plea, as applicable. Overstating your case will come back with the other side handing you your head in closing arguments. The prosecution gives an opening statement first. The defendant in a criminal case has the right to give no opening statement or to defer until just after the government rests. Sometimes, this tactic is used when there are elements of the defendants case that remain secret and it is believed to be crucial to keep it so, until the last moment, and certainly until after the government has rested its case.

The evidentiary portion is governed by more rules than any other stage of the trial. The United States and state constitutions, state or federal statutes, rules of criminal procedure, case authority, local rules, court rules, custom, experience and some "voodoo" apply to the presentation of evidence in the form of lay and expert witness testimony, exhibits and the use of technology. Suffice it to say that there were (and are still) several whole classes in law school and many more extensive lessons in continuing legal education seminars and years of practice that shape how to navigate this stage of trial. The prosecution puts each witness up first (direct examination) and that witness is subject to cross examination by the defense. The prosecution may then re-examine the same witness on re-direct examination before the witness is excused. Less often, but for good cause, the process can continue through re-cross examination and re-re-direct examination. Exhibits may be introduced by the prosecution through its witnesses. This alternating the prosecution and defense spotlight continues until the prosecution rests its case. Then, the defendant gets to go. He or she has the constitutional right to hold the prosecution to its burden of proof and rest its case immediately without putting on any opening statement (if it was deferred) or any evidence of his or her own. However, if the defendant puts on a case, it begins with the defense questioning its witnesses and seeking admission of its exhibits the same way the prosecution has. The defendant has the Fifth Amendment right not to testify (and has the absolute right to testify at the defendant's option) without having any inferences drawn against him or her by the jury. In fact, the Judge will so instruct them. If the Defendant gives up that right and testifies, he or she is subject to the same witness rules as any other witness.

Often, before closing arguments, the lawyers or pro per parties will meet with the Judge in the jury's absence to discuss and argue about what jury instructions are to be read to the jury. This is often called the charge conference. This is one of my favorite processes and one that truly lets a lawyer's skill shine, even if more subtly. Often the difference between guilt and an acquittal lies in exactly what the Judge tells the jury to consider in order to find the defendant guilty or not guilty. These instructions can involve how the elements of the offenses are presented for the jury's application of the facts to them, how the jury must not consider certain evidence, how the burdens of proof are properly explained to the jury, etc. It is an art form to be a thorough researcher and seek to modify pattern or standard jury instructions to fit the unique facts of a case and to add additional instructions to appropriately address the rights of the accused.

Closing arguments are simply what everyone knows them to be, i.e. fair argument by the lawyers as to what facts the jury should conclude are true and those it should regard as false, as well as the elements of the offenses to which the facts are to be applied. Lawyers will also argue about other instructions the Court has just previously determined to give to the jury and the ultimate conclusions about what the verdict should be. Again, even though closing argument may be familiar to almost everyone, it does not mean that it isn't outrageously complicated compared to what is observed. The choices of arguments, instructions, facts to emphasize and persuasive techniques (in which some lawyers have even taken extensive acting classes to help perfect the craft) are virtually infinite. It takes a very trained, experienced and disciplined individual to maximize his or her effectiveness in closing arguments (as well as the other stages of trial).

After closing arguments, the jury is charged. This is the long reading to the jury of canned instructions set forth usually by the Supreme Court of the state or committees approved by the various federal circuit courts of appeals (11 of them, by the way). These are the instructions specific to the offenses charged and defenses raised as modified by the parties and the court and any additional instructions permitted.

After the jury is charged, it is sent to the jury room to deliberate. Jurors begin by choosing/voting upon a foreperson. A foreperson speaks for the jury as a whole and signs the verdict form. As soon as the jury foreperson is chosen, the jury deliberates. This is a fancy word that means that the jurors will discuss their various positions, vote and try to come to a unanimous verdict (which it must be) one way or another. It the jury has a unanimous verdict, the foreperson will inform the bailiff. The bailiff will inform the court, who will then inform the lawyers or pro per parties. When everyone has gathered, the verdict will be read and the defendant either discharged upon not guilty verdicts as to all charges or will most often be held in custody pending sentencing, at some future date, on any charges in which he or she is found guilty. Eventually, the court will inquire as to whether the jury has come to a verdict when it fails, after a reasonable time, to come back to the court with a verdict. If so, the court, with argument from lawyers and pro per parties, will often let the jury continue to deliberate, until finally, it will determine whether to declare a mistrial or provide some form of an Allen charge. An Allen charge is an instruction sanctioned by the United States Supreme Court that asks the jury to go back to deliberate and discuss both the strengths and weaknesses of each juror's position to see if it will convince jurors to change positions to end up with a unanimous decision. If the jury still cannot come to a verdict, the court will declare a mistrial and the defendant can constitutionally be re-tried from the beginning of the process, at some time in the future.

All of us at Taub & Taub, P.C. hope that you found this 3-part series of articles useful or, at least, of some informational or entertainment value. Thank you.


Richard F. Taub

*The information provided herein is a general guideline, does not constitute legal advice and should not be followed without first consulting a lawyer. The reason simply is that the approach to a criminal case necessarily must vary depending upon the facts of a specific case. For instance, there could be emergency action that must be taken in lieu of or before other steps outlined here that would be beyond the scope of this article and, again, vary from case-to-case.