CRIMINAL PRE-TRIAL BEST PRACTICES

Transcription

1 CRIMINAL PRE-TRIAL BEST PRACTICES 20 PRE-TRIAL TOPICS EVERY ATTORNEY SHOULD BE PREPARED TO DISCUSS 48 TH ANNUAL CRIMINAL JUSTICE INSTITUTE August 26, 2013 JUDGE ALAN PENDLETON

2 TRIAL ATTORNEY DEDICATION The credit belongs to the person actually in the arena, whose face is marred by dust and sweat and blood who knows the great enthusiasms, the great devotions, who spends himself at a worthy cause, who at best knows in the end the triumph of high achievement and if he fails, at least fails daring greatly so that his place shall never be with those cold, timid souls who know neither victory nor defeat.

3 PRE-TRIAL CHECKLIST BEFORE TRIAL IN CHAMBERS See Criminal Jury Trial Judge s Manual and Judicial Training Updates; Discuss Checklist in Chambers; Put discussion on record outside presence of jury, but in presence of def

4 PRE-TRIAL CHECKLIST 1. Scheduling and Conflicts: Anticipated length of trial; 2. Witness lists - Court needs master list to read to jury; Need for Interpreter?

5 PRE-TRIAL CHECKLIST 3. SEQUESTRATION (WITNESS & JURY) Make record of parties request; What if sequestration is violated? Case Agent Exception (MRE 615); Sequestration is at courts discretion;

6 PRE-TRIAL CHECKLIST VOIR DIRE OF DELIBERATING JURY: 1. Did anyone try to contact you over the weekend to discuss this case? 2. Did any of you talk to each other over the weekend about this case? 3. Did you speak with anyone else about this case? 4. Did anyone do any research about the case or any issues raised in it? 5. Did anyone drive past or visit any of the locations mentioned in this case? State v. Sanders, 376 N.W.2d 196 ( Minn. 1985)

7 PRE-TRIAL CHECKLIST 4. JURY INSTRUCTIONS - DISCUSSION: CrimJig 1.01 Keep Or Delete Because Defendant May Have Been Arrested ; Anticipated Cautionary Instructions; Instruction on Lesser Included Offense; Accomplice Instruction (CrimJig 3.18)

8 PRE-TRIAL CHECKLIST 5. CHARGES AND ARRAIGNMENT Confirm charges amendments? Confirm defendant previously arraigned and plead not guilty

9 PRE-TRIAL CHECKLIST 6. STIPULATIONS AND/ OR ADMISSIONS: Testimonial; Foundation; Evidentiary.

10 STIPULATION TO ELEMENT OF OFFENSE PROBLEM A COMMON TRIAL MISTAKE IS FAILURE TO OBTAIN A PERSONAL WAIVER OF THE RIGHT TO JURY TRIAL WHEN DEFENDANT STIPULATES TO AN ELEMENT OF THE OFFENSE.

11 STIPULATION TO ELEMENT OF OFFENSE FOR EXAMPLE: Enhanced Gross Misdemeanor Or Felony Prosecutions (DUI, Assault, OFP, Firearm or Drugs); Most Defendants Willing To Stipulate To Prior Conviction.

12 STIPULATION TO ELEMENT OF OFFENSE MANDATORY RULE: TO STIPULATE TO AN ELEMENT DEFENDANT MUST PERSONALLY WAIVE HIS TRIAL RIGHT EITHER ORALLY OR IN WRITING.

13 STIPULATION TO ELEMENT OF OFFENSE JUDICIAL RULE OF THUMB: THINK OF STIPULATION AS DEFENDANT PLEADING GUILTY TO THAT SPECIFIC ELEMENT OF THE OFFENSE.

14 STIPULATION TO ELEMENT OF OFFENSE JURY INSTRUCTION: Make sure jury instruction does not inadvertently mention the prior conviction.

15 PRE-TRIAL CHECKLIST 7. JEOPARDY ATTACHES ONCE JURY IS SWORN: Trial goes forward if defendant is late or fails to appear; BUT FIRST; 3 Step Process to Follow; Mistrial Deadlocked Jury.

16 PRE-TRIAL CHECKLIST 8. DEFENDANT S RIGHT NOT TO TESTIFY CrimJig 3.17, Make A Clear Record Of Defendant s Decision

17 PRE-TRIAL CHECKLIST 9. DISCOVERY ISSUES Both parties in compliance and nothing pending. Mn.R.Crim.Pro and 9.02.

18 PRE-TRIAL CHECKLIST 10. AFFIRMATIVE DEFENSES Is defendant raising any defense other than not guilty; Rule 9.02 Subd 1(5); Make clear record in misdemeanor cases since rule 9.01 & 9.02 does not apply to misdemeanors; Burden of Initial Production v. Burden of Proof.

19 PRE-TRIAL CHECKLIST 11. WITNESS INCRIMINATION ISSUES AND IMMUNITY 5 th amendment advisory? Granting of Immunity: Derivative Use Immunity; Transactional Immunity Promises or inducements

20 Isn t it true you were offered a special deal by the prosecutor, in exchange for your testimony?

21 PRE-TRIAL CHECKLIST 12. SECURITY AND CUSTODY ISSUES HOW QUICKLY A COURTROOM PROCEEDING CAN TURN FROM CALM AND ORDER TO COMPLETE AND DANGEROUS CHOAS.

22 PRE-TRIAL CHECKLIST Defendant MUST NOT be jail clothing; Defendant MUST NOT be in restraints without a hearing and proper findings Cautionary Instruction (visible restraints); Mn.R.Crim.Pro , subd. 2d.

23 PRE-TRIAL CHECKLIST 13. USE OF WEAPONS/HAZARDOUS EXHIBITS DURING TRIAL Review Local Weapons/Hazardous Exhibits In The Courtroom Policy Notify bailiff before bringing weapon/hazardous exhibits into courtroom

24 PRE-TRIAL CHECKLIST 14. OPENING STATEMENT Will Defense give it after the state or reserve it; Use of Demonstrative exhibits or Evidence Display Systems

25 PRE-TRIAL CHECKLIST 15. EXHIBITS a. Premark exhibits; b. Have exhibits been examined? c. Foundation objection be prepared to state where foundation is lacking.

26 PRE-TRIAL CHECKLIST d) Request to voir dire witness to lay foundation for objection; e) Use of technology during trial; (Projectors, Document Cameras, PowerPoint) f) Location of exhibits during trial and after admission (offer, receive, give to court).

27 PRE-TRIAL CHECKLIST 17. PROSECUTORIAL MISCONDUCT Reducing the incidence of prosecutorial misconduct is a shared obligation and trial courts have a duty to intervene and caution the prosecutor, even in the absence of objection. State v. Ramey, 721 N.W.2d 294 (Minn. 2007).

28 Defendant is a would be punk with a pathetic little life!

29 IMPROPER ARGUMENT- DISREGARD THAT LAST STATEMENT!

30 PRE-TRIAL CHECKLIST 18. MOTIONS IN LIMINE USE OF PRIOR CONVICTION FOR IMPEACHMENT. BALANCING TEST; FIVE (5) JONES FACTORS.

31 IMPEACHMENT BALANCING TEST: shall be admitted only if the court determines that the probative value of admitting this evidence outweighs its prejudicial effect. MRE 609 (a) (1)

32 IMPEACHMENT 5 SPECIFIC FINDINGS: The court must address each of the five State v. Jones factors on the record.

33 IMPEACHMENT 1. Impeachment Value Of Prior Crime 2. Date Of Conviction And Subsequent History

34 IMPEACHMENT 3. Similarity Of The Past Crime To The Charged Crime; However-recent new rule: UNSPECIFIED FELONIES

35 IMPEACHMENT 4. Importance of Defendant s Testimony 5. The Centrality Of The Credibility Issue

36 IMPEACHMENT JURY INSTRUCTION (CrimJig 2.02) The evidence concerning a prior conviction of the defendant is admitted only for your consideration in deciding whether the defendant is telling the truth in this case. You must not consider this conviction as evidence of the defendant s character or conduct except as you may think it reflects on believability.

37 PRE-TRIAL CHECKLIST 18. MOTIONS IN LIMINE SPREIGL EVIDENCE 5 Step Process; Rule 404(b); MS ; See Update 12-4; HEARSAY Rule , 807: Crawford Issues, Update 10-8; The Fool-Proof Hearsay Test, Update 13-8.

38 PRE-TRIAL CHECKLIST The Fool-Proof Hearsay Test 1. Ask whether the relevant purpose for offering the out-of-court statement is its truth, if the answer to that question is yes, the statement is hearsay; 2. If the answer to the question is not clearly yes, ask this next question; 3. Must the content of the out-of-court statement be believed in order to be relevant? a. If yes, the statement is hearsay. b. If no, the statement is non-hearsay.

39 PRE-TRIAL CHECKLIST SHUMAKER S RULINGS ON EVIDENCE An Evidentiary Manual for Minnesota Trial Judges and Attorneys By Judge Gordon Shumaker (Ret.) MinnCLE (2012)

40 PRE-TRIAL CHECKLIST AUTHENTICATION ISSUES: RULE ; Update 13-11; (i.e. Electronic Evidence) CHARACTER EVIDENCE: Rule & 608; EXPERTS: Rule 7.02; LAY WITNESS OPINIONS: Rule 7.01; RULE 403: Overly Prejudicial Analysis; OTHER UNUSUAL EVIDENTIARY ISSUES.

41 VOIR DIRE PROCEDURE BATSON CHALLENGE THE BATSON RULE: Neither the state nor defendant may make peremptory challenges that are racially or gender motivated. Discrimination in jury selection violates defendant s and juror s right to equal protection of the laws. Rule subd 7; THREE STEP ANALYSIS: See Training Update 13-2

42 VOIR DIRE PROCEDURE 1. Objecting party must establish a prima facie case of purposeful discrimination; 2. Proponent of the strike has burden of articulating a race or gender neutral reason of the strike; 3. The Court must determine whether the opponent of the strike has proven purposeful discrimination.

43 PRE-TRIAL CHECKLIST 20. VOIR DIRE GUIDELINES 2001 Supreme Court Task Force; Long list of problems and complaints; Judges need to be more proactive to ensure proper voir dire; CREATED JUDICIAL GUIDELINES [including 6 prohibited categories]

44 SIX CATEGORIES 1. EDUCATING JURORS: No questions designed to educate or instruct jurors on the law or facts in the case.

45 2. PREDISPOSING JURORS: No questions designed to predispose jurors in favor of any person or aspect of the case.

46 3. SPECULATIVE QUESTIONS: You should not ask Jurors to speculate on how they might decide the case or react to any aspect of the case.

47 4. SEEKING COMMITMENTS: Jurors should not be asked to commit themselves to vote in a certain way.

48 5. REPETITIVE QUESTIONS: You should not repeat questions to which complete and clear answers have already been given.

49 6. ESTABLISHING RAPPORT: No questions or statements about yourself or your client designed to establish rapport with jurors.

50 JUDICIAL GOLDEN RULE Attorneys Are Entitled To Receive Information From Potential Jurors; Attorneys Are Not Entitled To Give Information About The Facts Or The Law In The Case.

51 BEST PRACTICE DISCUSS WITH JUDGE PRIOR TO TRIAL ANY QUESTIONS THAT APPEAR TO EXCEED THE SCOPE OF THE GUIDELINES.

52 COUNSEL! YOU SHOULD HAVE DISCUSSED THAT WITH ME PRETRIAL!

53 WOW, THIS ATTORNEY IS PREPARED, ORGANIZED, HIGHLY INTELLIGENT, UNQUESTIONED INTEGRITY, I LIKE THIS ATTORNEY! I RESPECT THIS ATTORNEY! I TRUST THIS ATTORNEY!

54 MINNESOTA JUDICIAL TRAINING UPDATES