Criminal Trial Part 1

In today’s episode Chuck goes into detail about Criminal Trails. He explains all of the stages of a criminal trial and why things are this way so that non-lawyers can understand as well.

Criminal Trial Part 1 Transcript

Folks, what I’m going to talk to you today about is what to expect in a Criminal Trial if in fact you end up going that far within the criminal justice system. We’re going to divide this into two parts because there is a lot of stuff going on.

Preparing For a Criminal Trial

Keep in mind everything prior to the trial is your lawyer, myself, working the case up. Trying to discover all of the facts in terms of the evidence the state has, the background of the witnesses, what to expect in trial. You always try to stay a step ahead of them. Part of that pretrial effort is to actually interview the witnesses (which you have a right to do.) However you do not have a right to interview any alleged victims in the crime you have allegedly committed under Arizona State Law and the Arizona Constitution. You cant do that. But all the witnesses (lay witnesses if you will or police officers and things like that) you can interview.

So if somebody is lets say the victim of an aggravated assault or an armed robbery because you supposedly pointed a gun at them and demanded money. You can ask to interview that person and they can respectfully decline, and the prosecutor will always tell them “you don’t  have to do this, so don’t do it.” And that’s what we always – we jump through all these hoops.

Narrowing The Focus of a Criminal Trial

In preparing I go through the police reports, I end up filing some pretrial motions to narrow the issues of the trial. So instead of the trail being long and having a large scope, it is much shorter and more focused. You might move to preclude some physical evidence because it hasn’t met certain standards of testing. Or you may preclude some witnesses for whatever reason.,If they’re biased and you can prove that. If some of your constitutional rights have been violated. You might move to preclude a search as being improper (without a search warrant.) Or that the search warrant that was obtained by police officers, or any kind of law enforcement, was somehow invalid because of an affidavit that contained facts that were untrue, or in other words a lie.

Selecting a Jury for the Criminal Trial

You narrow the issues down and then you walk into court on the morning of trial. You have forty to sixty people in there.  You get a list of the people and you start going over it to see if any of the names ring a bell, let’s assume they don’t. Then you get small pieces of paper and it has some background information. It has the person’s name, the city in which they live in, maybe the crossroads because you don’t have a physical address. Whether they are a male or female. Their college education or how far they have reached in college. Last grade completed I believe is the actual term that is used on most of the slips.  Whether they have any prior felony convictions, because that would actually preclude them from being a juror.

You take these documents and you try to learn as much as you can and then you go through a process called voir dire. This is where both – I shouldn’t say both – all three, the court (the judge), myself, and the prosecutor ask questions of the perspective jurors. There may be some that you have a gut feeling of that you don’t like, so that’s called a strike, and you strike them. You might end up striking them for cause; which means that person has flat out said anyone accused of a DUI or who has been drinking and driving is guilty of a DUI. That is not the law. Then the judge will try to help them a little bit by saying “well if I tell you the law is that it is not illegal to drink and drive, but to drink and be impaired to the slightest degree and drive.” If the person says “Well I don’t care, if you drink and you drive you deserve what you’re going to get” then that person would be excluded or struck for being biased and not listening to the instructions of the judge.

Typically both the State and myself don’t want people like that. We want people who are sitting on the fence, so that you get a fair trial and we don’t have issues down the road. What happens is, the misnomer or the statement that you pick a jury, which is what everyone says. You really don’t pick them. You get rid of who you want. Then depending on what court you are in, whether it is city court or justice court, or superior court, you take the first 6 who are available to you on a list, because everybody has a number, or 8 or 10 or 12 and usually a couple of alternates. They are picked literally  by pulling names out of a hat after the selection. They go home, and they wait for a phone call that may never occur because let’s say the remaining jurors that ended up deliberating or deciding for you, or against you. One of them get’s sick, or get’s into a car accident, or something and they can’t make it to court to continue to deliberate, the alternate gets called back in to start from scratch again.

Anyhow, what happens is you go through this jury process “Jury Selection” it is called. Then whoever is left over after you have struck the people for either cause or no is 6 (in city court.) So in city court you have 6 jurors, and those 6 people are who becomes the jury. So they get sworn in, and then the state – because it is their obligation to prove you guilty beyond a reasonable doubt, and they have the burden. They always have the burden of proving you guilty beyond a reasonable doubt. I mean, conceivably it is said that you and me as your defense attorney don’t even have to be there. Because you don’t have to put out any evidence. There is no requirement that you put on evidence to prove yourself not guilty.

That’s not what you are there for. Really what I am there for is to make sure everybody plays fair. As well as to attack their witnesses as being untruthful, they couldn’t see it where they were standing at, they are potentially biased, or whatever. There are just ways of cross examining those witnesses so that you can discount their testimony as really nothing. An eye witness testimony by the way has been found in multiple studies as being the worst testimony possible. Except of course if it is a police officer testifying, the jury tends to believe police officers more than they do normal citizens.

In any event, you have your jury, they are impaneled. So they are sitting behind the wall, all by themselves, and the State puts on an opening statement.  They give an overview – is the best way to put it – an overview of what the jurors can expect in the trial. Sometimes, just like in a card game, you don’t want to show your hand right away. I typically don’t do that. I’m very brief. I don’t tell them “Gee my witness Joe Blow is going to come in and completely contradict the police officer” or anything else. Unless there is no down side in me telling them that.

Criminal Trial Opening Statements

The prosecutor is listening to this opening statement. So I don’t want to give away what cards I’m holding in my hand yet. The prosecutor had the right and does have the right to interview all of my witnesses prior to trial. It goes both ways and by the way, we have full open disclosure in Arizona. That theoretically means that any of the evidence, and the background information of the police officers (if it is bad.) Or the lay witnesses.

All of the evidence has to be laid out on the table for you and me to look at. It is full disclosure. There is no Parry Mason episodes where some surprise witness walks into the courtroom to save somebody. That doesn’t happen. That was just TV years ago. In any event, the prosecutor does their opening statement and I get my chance. As I said, my regular strategy is make it super brief.

State’s Witnesses in a Criminal Trial

Then the prosecutor calls their first witness. Then the judge – or excuse me – the bailiff swears the person in. The first witness could be a lay witness and let’s assume it was an armed robbery like I said before. Let’s assume this witness happens to be the victim. So I only know what the testimony is going to be based upon the police report that I read prior to that. Because remember, typically I am not allowed to interview the victim and the state, or the government, is telling the victim that they don’t have to do that interview. They make it sound like I’m going to harass them during the pretrial interview, that is not the case. It used to be where I could do that, but not any more.

In any event, that person gets up there and testifies, will I cross examine that person. Let’s assume they have a different story. They give a description of the alleged bad guy if you will, who pointed a gun in their face, and they say on the stand that the person had blonde hair, blue eyes. Then the police report says black hair and brown eyes. There is a point that I can bring up during my cross examination.

Cross Examining A Witness in A Criminal Trial

When the state is done with that witness, I get to cross examine them. It is my turn to ask the questions. I can go all over the place essentially. Cross examination doesn’t have to be as focused as direct examination. Plus I can lead a witness into a little path that I want them to go down. But somebody that I call as as witness when it is defense’s turn, can not be lead. The state can not lead a witness, they have to ask direct questions and then they get direct answers.

Sometimes witnesses will waffle a little bit, not answer. Sometimes you have to ask the judge to direct a witness to respond to you. I mean all sorts of strange things can go on. I have seen it happen. I once had a trial where a witness was a victim in a domestic violence case kept spinning her chair away from me so that she didn’t have to look at me. I finally had to ask the court for an instruction to her to face me and quit swiveling her chair around. It was really bizarre.

The fun thing about trials, at least for me, is that you have to learn to deal with unexpected things. Learn to shoot from the hip. I enjoy doing it, you have to think quickly on your feet.The state is done with their witnesses. They have put their case on.

Now, I could stand up and say we don’t have anything. I’m not bringing in a witness. My client has chosen not to testify. I’m not doing this with the jury present. The jury  is back in their room. But the state is done with their case. Let’s assume that my client (and it is his or her choice) wants to testify. They want to tell their side of the story. “Hey, I was at a movie that night, I couldn’t have been the armed robber.” or “I have brown hair, and brown eyes.” or whatever it happens to be. It is their choice, it isn’t mine. They make their decision with my advice, but I don’t have to bring in other witnesses to defend this case if you will and try to prove them (the state) wrong.

Hopefully my cross examination has fully attacked their testimony to the point where the jury looks at it and says “we don’t believe any of this.” That is the key. They don’t believe it or there is some doubt that is thrown on to the credibility of those witnesses or the physical evidence. Maybe a video, maybe a photograph, things are taken out of context.

Ending A Criminal Trial

In part two I’m going to tell you what the defense does and how the trial ends up ending, and I’m really simplifying this. So you can get a good understanding of how this thing could go in a Criminal Trial. Or what to expect if you end up deciding to go to trial instead of taking a deal that the state has put on the table. Or if the plea agreement is just so bad that you decide to go to trial and roll the dice, or maybe you didn’t do it.

My job is not to get you off, contrary to what people have repeatedly said in comments on my videos. My job as a Criminal Defense Attorney is to make sure that you and everyone else, my family, your family gets treated fairly. And that everyone get’s a fair trial because that is the way that our system works. That is my job, and it will always be my job.

Thank you.