suhrelaw | October 31, 2016 | Criminal Law
Many attorneys go through law school, pass the bar, and practice for years without ever stepping foot in a courtroom. The idea of standing in front of a judge and jury is absolutely terrifying for many attorneys. Then, there are attorneys who did not know that they would end up in the criminal field. They never took a trial advocacy class or properly learned how to try a case. Despite what you might believe, in law school there is not a mandatory “trial practice” class that every law student must take. For many young lawyers, they do not ever complete a trial until they complete law school, take the bar, and accept a position as an attorney that forces them to try cases.
Why is this a problem?
Trial skills and courtroom competence is not something that you are just born with. The rules and procedure are specific and and technical. This applies to the manner in which the attorney presents his or her case and the way he or she enters evidence. It is important to hire an attorney who has experience trying cases and excels in the courtroom.
Jurors are a random selection of people from across the community. Many jurors come to court expecting to see an episode of Law and Order or Suits when the trial begins. Unfortunately real trials are not as “sexy” or dramatic as they see on TV. A defense attorney may never in their career have an opportunity to cross a Jack Nicholson-type character to the point they break and admit to ordering the code red. That just is not realistic.
However, if the attorney is experienced in trial techniques, they should know how to keep the jury engaged. If the jury is bored, they are likely not paying attention. If they are not paying attention, they are likely to miss something important. This is problematic.
To use a theatre analogy, a trial is composed of 5 “acts.” Each act provides the attorney the opportunity to connect with the jury. It is important for the defense attorney to connect with the jury during each “act.” That way the defense attorney establishes trust with the jurors and they are more inclined to believe his or her case theory.
Act 1 – Voir Dire (Jury Selection)
Jury selection is the ONLY TIME in the entire trial that the attorney gets to actually engage in conversation with the jury. During voir dire, the defense attorney and the prosecutor are trying to select a “fair and impartial jury.” In reality- the prosecutor is searching for those who are likely to convict, and defense attorneys are searching for the sympathetic juror likely to acquit. A trial can be won or lost in jury selection. If the jury doesn’t trust the attorney during jury selection, they are going to be skeptical of him or her during the trial. This is why it is important to have an attorney that connects with the jury. An attorney that is likable and trustworthy generally does better in jury selection.
Act 2 – Opening Statements
Opening statements are the first time the jury hears details about the case. It’s like a trailer to a movie. It is important for the defense attorney to lay out what the evidence will show throughout the course of the trial. A good opening statement should be short and highlight the important facts that the jury should pay particularly close attention to during the trial. It should also clearly explain the state’s burden of proof. If an opening statement drags on, the jury will lose interest.
Act 3 – The Prosecution’s Case In Chief
As previously mentioned, the State (the prosecutor) bears the burden of proof. That means that throughout their case in chief they must prove all elements of the crime beyond a reasonable doubt. That is the highest burden in our legal system.
The prosecutor will call his or her witnesses and present their evidence at this time. The defense attorney should be making appropriate objections and crossing the state’s witnesses effectively. Cross examination is a critical part of the trial for the defense attorney. It is important to have an attorney who knows how to ask leading questions. Cross examination is the defense attorneys opportunity to attack the credibility of the state’s witnesses and to “poke holes” in the state’s case. Those “holes” are the reasonable doubt that the defense attorney should argue in his or her closing.
Act 4 – Defense Case in Chief
The attorney should explain that there is no burden on the defense. That the defense doesn’t have to prove a thing. A defendant doesn’t have to prove innocence, the state has to prove guilt. It is imperative that the defense attorney makes this clear to the jury.
Accordingly, the defense may choose not to put on any evidence. This is a tactical strategy for the attorney. By not calling any witnesses, the prosecutor is not able to ask any questions in cross examination. The defendant has the right not to testify. If, after speaking the client, the defense attorney feels it would be better if the client did not testify, then he or she does not have to take the stand.
If the defense does introduce evidence, the witnesses should be believable. They should make eye contact with the jury. The direct examination should flow in a way that makes sense so the jury is able to follow along with the story. An experienced trial attorney should know how to do this effectively.
Act 5 – Closings
Closing argument is when the defense attorney gets to connect the dots for the jury. They need to tie all lose ends and explain to the jury why the state was unable to prove their case. It is important to highlight why all of the questions on cross examination were important. Why they asked the questions they did. And how each “act” of the trial furthered their case theory.
This is the “sexiest” part of the trial. A good closing attorney should not be hiding behind a podium or reading a prepared closing. The attorney needs to engage the jury. The jury needs to understand the law, the facts, and the burden that the state has to prove. It is important for the attorney to be confident professional and comfortable in the courtroom.
Jaime Glinka is an experienced trial attorney. She has tried over 12 jury trials in the past 3 years alone. Stay turned for Comfort in the Courtroom parts 2 and 3 for more information regarding her trial experience. If you have a case and want an experienced trial attorney, contact Jaime Glinka at Suhre and Associates.