Criminal Trial Part 2

In today’s episode Chuck continues his discussion on the proceeding of a Criminal Trial. He details the later stages of the Trial.

Criminal Trial Part 2 Trial

Hi folks, this is part two of what to expect in a criminal trial. As you may have recalled, the first part I dealt with the State putting on their case and everything prior to that. Now, it’s my turn.

Defendant’s Case in a Criminal Trial

The Judge asks me “Mr. Franklin?”  At this point in time my client and I have discussed what occurred in the first part of the trial with the State’s case and my client makes a decision as to whether or not they are going to testify. Keep in mind that my client does not have an obligation to testify because of his 5th Amendment Rights. You know you can keep your mouth closed, you don’t have to say anything. If in fact he made admissions, or said some things that could be misconstrued  prior to the trial; maybe it is time for my client to get up there and correct those. Or clean them up a bit, explain what he really meant.

Maybe he wants to talk about an alibi. He was at Aunt Suzy’s house that night so he couldn’t have done that. He’s going to talk about how Aunt Suzy will come in later on and testify that he was there. These are questions that I would ask him.

So it is my turn to  bring my witnesses in, and again, I don’t have to. Hopefully the state has done such a bad job of presenting their case that I don’t have to do that. And that has occurred, plenty of times. But my client makes a decision to testify, he gets up there, I ask him questions that aren’t leading. For example, not “was the sky blue that day?” , that’s a leading question. The question would be “What color is the sky?” then my client says it was blue. So that’s the difference between the two. I’m not allowed by the rules to back him into a corner to get the answer that I am looking for, just to make sure everything goes my way.

State’s Cross Examination

On direct examination both the prosecutor and myself can not do that. On cross examination – now the state get’s to cross examine my client. Let’s assume that my client has prior convictions. Felony convictions or a misdemeanor conviction that possibly goes to truth and veracity. They may be able to bring those up during the cross examination of my client. For example they could say “Isn’t it true, Mr. Smith, that you were convicted 10 years ago in Maricopa County Superior Court ?” and if the client says “no it is not true.” then the door is open  moreso he or she can get specific about what it was. You know, “you were charged with armed robbery and you were found guilty, isn’t it true you have been to the department of corrections?” Things like that. If the client says yes, then they just move on, that’s it.

So now the Jury has a bug in their head that he had been convicted of something. A lot of people believe that no one can be rehabilitated or pay their price to society after being convicted. Which means now these people are wondering if everything you have said is actually accurate or true as opposed to a lie.

Let’s assume you don’t have any priors, you have a clean background. You explain that you were at aunt Suzy’s that night, and mention that she is going to come in and talk to the jury about that. Then I call my second witness, I call in Aunt Suzy. She comes in and says “Your client was at my house that entire night. He got there at 6 o’clock and at dinner and didn’t leave until 6 o’clock the next morning, and the armed robbery was at say 11 o’clock at night. So now my client has a alibi, pretty good evidence to go ahead and disrupt the State’s case.

Keep in mind, as I said before, eye witnesses testimony is terrible, typically. Nowadays everyone has video so that’s a different story. But I have seen cases with videos where the videos were so dark that you couldn’t actually tell who the person was. So they didn’t help or hurt. They hurt the State’s case as far as I am concerned, because the state comes in with a “great video”  but it is so grainy and dark that you can’t tell if it is my client or anybody else. In that situation it work’s in my favor.

Impeachment Evidence in a Criminal Trial

So now I am done putting my case on, and the State can possibly bring in impeachment evidence. In order to impeach or try to take away my case by showing that “Aunt Suzy is a drunk”, or “Aunt Suzy is a convicted felon”.  You can’t listen to what Aunt Suzy says because she has no credibility. That’s the kind of stuff that the State can put on an impeachment. It’s been a long-long time since I’ve seen the State bring in evidence after I put on my case, when I have. Then it is time for what are called our closing arguments.

These aren’t statements, they are arguments. I argue to the Jury after the state is done. They get two shots by the way. The State argues that you’ve seen the evidence. You’ve seen the video tape, the testimony, the admissions, maybe the lapel camera. Sometimes they attack my evidence or my people that I brought in, or my client. Then, usually – and this is what I have a passion for – is getting up there and attacking that closing argument.

Smart prosecutors don’t ever give up their entire argument the first time. Because after I am done then they get up there and they get their shot on me.  So you’re not there – neither of the attorneys are there to make people mad or make anyone mad. We’re there to do our jobs. You point out the weaknesses in the State’s case and the State comes in, and they can answer all of those weaknesses. They are the last one to sit down. They get the last shot to prove you guilty beyond a reasonable doubt, which is their burden. It isn’t my burden to make sure that you are found not guilty, but it is the state’s burden, always to prove your guilt.

The State sits down last.  Then the judge reads a series of Jury instructions to the Jury. They’ve got a copy in front of them and the Judge tells the jury that they need to take the facts and relate them to the law. They have to look at the elements of the crime to see if everything has been met; has the State done all this?  There are also Jury Instructions for all sorts of odds and ends like what is the duty of the Jury in terms of deliberations. The bias, a police officer’s testimony is to be given the same weight. Expert testimony, because this person is schooled or educated in a certain area.

Then the Jury goes back and they start talking about it. And folks, I wish I was able to sit on a Jury once in my life so that I know exactly what happens. I mean, I don’t know if they go back there and eat sandwiches and soda or if they actually go back there and talk about the case. There have been plenty of times that I thought they went back there and did nothing and I have won, because it was so short. There have been plenty of times they I thought they did nothing because I lost over three days. You just don’t know until you get to serve with other people, and hopefully you all sit down and aren’t beating each other up over issues.

Sometimes one juror may hold out. He may hold out and say “That guy is guilty, he was charged an police officers don’t lie.”  Or he may say “your client is innocent, they didn’t do their job.” Then he is trying to convince the other people to go along with him or her. So you don’t really know what the dynamics are. Sometimes, or most of the time, the Jury will talk to you once they have reached their decision. Whether it is Guilty or Not Guilty.

You can sit down with them after the trial and ask them questions. I have done that plenty of times. Sometimes what a Jury focuses on is completely different than what you thought they would in a trial. It is sort of amazing, you’re like “wow, I didn’t think about that.” or “what are these people thinking?” type of thing. I’ve had that happen with good prosecutors. You just don’t know. You don’t know what kind of mood 6 people are going to be in any given day. So you don’t know how they will interact with the other 5 jurors.

There might be one really strong person that convinces everyone to go their way, whether it is good or bad. You just don’t know. A lot of it depends on luck, credibility, and how your client appears in the court room. You want everyone to like your client, and I certainly wouldn’t say or do anything to make the Jury not like me, or not like my client.

Criminal Trial Verdict

What happens then is the Jury renders a verdict. The bailiff or the judge reads the verdict. I can pull the jurors “hey, did you really find him not guilty or guilty?” and the Jurors will go one by one and will tell the Judge and the court room exactly how they voted. Typically if they are found guilty, the case is set off for another 30 days for them to be sentenced. You might actually have a trial on your prior convictions if you do have priors, because the State is obligated to prove those too. Essentially under the same terms as a criminal trial. If they don’t then you go to sentencing 30 days down the road.

Some things are mandatory  sentences in Arizona, and some things are not. In other words, the judge might have a lot of discretion, the judge may have no discretion. That is a problem, that I see with the sentencing statutes in Arizona and probably around the country, as well as the federal guidelines, is that Judge’s hands are tied when they want to give someone some leniency.

So in any event that’s how the second part of a trial goes. I hope that is understood, if not you can email me at Thank you.

Do You Have An Upcoming Criminal Trial?

Call Chuck Franklin today to discuss your case if you’re facing Criminal Charges. Having an experienced attorney on your side is what you need to fight for your rights in a Criminal Trial.