It is the foundation of the American criminal justice system. The jury trial. You have been accused of a crime and believe you are innocent, it is the ultimate determiner of the facts. No one can guarantee an outcome in a jury. If they could, they would be the only attorney ever hired. However, there are a number of different parts of being ready for a jury that help position a case for its highest likelihood for success. The Indianapolis Criminal Defense Attorneys at Banks & Brower take a look at the jury trial and winning at jury.
Preparation and Discovery:
Yes, both prep and discovery occur before the case ever enters the courtroom for trial. However, how well a case is prepared and the process of discovery can have a significant impact on how successful the case is at trial. First, discovery, especially depositions (or perhaps sworn taped statements, depending on the jurisdiction) are crucial. The deposition is where the attorney can poke and prod each and every witness over the facts of the case. A good attorney will pry into the details of each and of every witness in order to discover inconsistencies by the witness and between the different witnesses. Discovering and revealing these inconsistencies can be the difference between a successful and unsuccessful outcome. Depositions is where the truth can be discovered or revealed.
Preparation cannot be understated. From jury selection to closing statement, the attorney must prepare for every phase. In my practice of doing jury trials, I find it helpful to create a jury trial notebook. Each phase of the trial has its own section with an outline. Each witness, whether cross or direct, has an outline and the exhibits are placed in the notebook with each witness they are anticipated to come in through. The points to be made on the cross of each witness must be tied to specific pages and lines of the deposition of that witness. This is necessary so you can be sure the information comes in the way you believe it will, if not, you will be able to swiftly point on the prior inconsistent statement. Good preparation for jury takes hours and hours to complete, which is why a successful attorney will normally charge a premium for doing a jury trial.
Before the day of trial the attorney will want to file paperwork including motions in limine, specific jury instructions and other evidentiary motions. Many legal issues are likely to arise in a jury trial. Any issue that can be identified and dealt with prior to the jury entering the courtroom is important. Motions in limine can be used to limit the prosecutor from admitting inadmissible evidence such as prior conduct, irrelevant facts, overly prejudicial evidence, and/or references to evidence already deemed inadmissible. To raise these issues in front of the jury, allows for the very real possibility that they will hear some or part of the evidence that the judge deems to be inadmissible. Drafting a well thought out and detailed motion in limine is important to protect the client from inadmissible evidence being overheard and then wrongfully considered by the jury.
These are the people that will be deciding guilty or not guilty. Deciding who these people are, is obviously a huge part to succeeding in jury. The attorney must identify the issues in your case that are going to be the turning points of the decision the jury is going to make. After these issues are identified the attorney will come up with creative ways to discuss how the prospective jurors will think about these issues. This step is crucial to determine whether the prospective juror is good or bad. For instance, if your case is self-defense, the attorney will need to inquire into the juror’s ability to understand the concept and ability to apply it appropriately when given a set of facts that it should be applied to.
After identifying the crucial issues, the attorney will begin reviewing the jury questionnaires. These questionnaires provide a limited amount of information. They can help to identify people who are too anxious to serve, are pro-state in their approach, that are critical thinkers, have served on juries before, or that may appear to be mentally unstable. The attorney must make sure that at the very least the jurors are open to upholding the burden of beyond a reasonable doubt and that they do not have any preconceived notions as to the guilt of their client.
In addition to the foregoing, jury selection is the one time where the attorney gets to make a true connection with the jury. Jurors have all types of ideas about what an attorney is. They assume we are hiding things, that we are trying to trick them and that we can’t be trusted. Jury selection is the attorney’s opportunity to humanize themselves. Make the jury understand you are just a person, that you are likeable, and that they can trust what you are saying and what they are about to hear from you over the course of the next few hours or days. Getting the jury to trust you as an attorney is crucial. If they don’t believe they can trust you, you have lost before you have even begun.
Opening statements in a criminal jury from the defense attorney should be purposeful, narrow and to the point. The one thing you must not do is promise something that won’t be delivered. The case is just starting. The jury is listening closely, if you say something is going to happen in the trial, and then it doesn’t, you have just completely undermined your credibility with the jury. Highlight the weaknesses in the state’s case, the strengths of your case, and give a few guideposts of specific pieces of evidence you want the jury to pay attention to, then sit down. Cases are never won in opening statement, but promise something that is not later delivered, and you can lose your case in opening statement.
Presentation of the Case:
As the evidence is being presented, the defense is mostly going to be objecting and cross-examining witnesses. An attorney must be alert and ready to object at any time. One never knows when a prosecutor may try to throw in a piece of crucial evidence. If an objectionable question is answered before and objection is stated, the damage is done. Striking something from the record is a fallacy. Once the jury has heard it, they are human, they aren’t forgetting it. However, a lawyer must not object just because they can. Make sure that the objection is meaningful. If an attorney objects every time that they can, they will annoy the judge and the jury.
Cross examination requires a tremendous skill set. Each witness should be meticulously outlined starting with the goal to be achieved and the leading questions broken down to achieve each individual goal of the witness. This includes knowing exactly where you can find the answers you anticipate receiving in your depositions. If a witness gives you an inconsistent statement, you must be able to grab the deposition and go right to the point of where they gave a different answer. The jury does not have the patience to wait while the attorney fumbles through the deposition looking for a specific answer. An attorney must also understand which witnesses need a “lighter” cross and which require a more “aggressive” cross. How you cross examine a child witness is completely different then how you are likely to cross examine a detective or evidence tech. A good attorney will have done the prep work to make effective points in cross examination and then sit down and tie it all together in closing statement.
If you find it necessary to present evidence in your case, directing a witness is different than cross examining one. The attorney will have gone through the testimony in detail prior to trial. There should be little if any surprises from your own witnesses. Direct examinations should be purposeful, direct and clear as to what point you are making. Just calling a witness to call a witness will not help your case. Make sure they have a purpose, establish their purpose and move on.
In Indiana, the prosecutor gets two bites at the apple in closing, their closing statement and then their rebuttal. Sandwiched between those two, is the defense attorneys one closing statement. A defense attorney should have a good outline of their closing created prior to the trial beginning. As the evidence comes out and changes occur that are different from your original closing outline, the closing statement must be altered. Prior to the closing statement, a good final review should be made to make sure that it is consistent with the case that was presented. If possible, your closing statement should include the use of a visual element like a PowerPoint presentation. Some people are audible listeners, others are visual listeners. For many jurors hearing it and seeing it will make a better impression on them.
In closing arguments, the defense attorney must remind the jury that the burden of proof of beyond a reasonable doubt is a very high burden, that it is the State’s burden, and then must systematically and convincingly explain to the jury why the state has fallen short of meeting its burden. A good attorney will know how and when to invoke emotion, heightened volume, non-verbal cues, sarcasm and sometimes even humor into their closing statement. If the trust has been built with the jury, it is now that the defense attorney must tap into that trust and convince them that what they are saying is what the jury should follow. Persuasion is an art form, the best attorneys have mastered the art of persuading the jury to see and believe that the case is the way they say it is. Jurors are many times uncomfortable coming back with a not guilty verdict. The defense attorney must convince them that it is the right and righteous thing to do.
In closing, being a criminal defense trial attorney is a stressful profession that takes hard work and having comfort with orchestrating a trial that is effective to a jury. Many times the facts will dictate the outcome, however, making sure the jury understands the facts and demonstrating to the jury how those facts reach the desired outcome is the important role of the trial lawyer.
Banks & Brower is an Indianapolis law firm staffed with experienced Criminal Defense Attorneys who have done numerous jury trials. If you are facing a criminal charge call us at 317-870-0019 to discuss your case in detail.