Although trials don’t always proceed as expected, and the lawyer must often think on his or her feet, there are many steps that a lawyer can take to become prepared for trial in order to give his or her client the best chance to prevail. Preparedness breeds confidence. Confidence increases the chances of achieving a favorable result. The preparedness of the lawyer can sometimes turn a losing trial into a winning case.
First, be familiar with the Judge, his or her Courtroom procedures, and how he or she tends to rule on issues. If the attorney seems unprepared for the Judge, the jury may have a false impression that the lawyer does not have confidence in his or her case which can spell doom for the Defendant. Sometimes a juror’s impression of who the better or more prepared lawyer is matters to how he or she weighs the evidence. In many cases the Prosecutor is very familiar with a particular Judge because the Prosecutor is assigned to the Judge. A Prosecutor that appears regularly before a certain Judge may form a friendship or rapport with the Judge, which may translate on the record.
There are Judges that have a disposition to lean towards the Prosecution even before the trial starts, which is based upon the Judge’s judicial philosophy, conservatism, worry as to public perception that the Judge is not tough on crime, belief that it is easier to rule for the Prosecution and the Prosecution’s position is less likely to be reversed, being jaded by what they see inside and outside the Courtroom, etc., etc. There are a few (not many) Judges that are pro Defense. There are, fortunately, many Judges who try to reach the right decision – regardless if the decision is for the Prosecution or Defense. The Judge assigned to a particular case is randomly assigned when the Court has more than one presiding Judge, and the likelihood of having the case reassigned to a different Judge is very low. Depending upon the circumstances a Defendant who draws a particular Judge is either lucky or unlucky. An individual who hires an experienced criminal defense lawyer can overcome a bad Judge draw.
Even though a standard jury instruction in Michigan is for the jury to disregard any impression they have as to the Judge’s opinion as to the case, the perceived opinion of the Judge makes a difference because the Judge is viewed as an authority figure and a leader to the jury.
One of the best ways to know if you are unfamiliar with the Judge is to ask his or her clerk or the secretary, or ask other defense lawyers or Prosecutors who regularly appear in front of the Judge what to expect. A lawyer that seems prepared for how the Court conducts its business may make a favorable impression with the Judge. This may ultimately lead to a favorable impression with the jury, or at least a more level playing field.
If the Judge or Prosecution is unreasonable with the defense, the jury will often be sympathetic towards the defense. A jury may be sympathetic if it appears that the Court, through its actions, deny the Defendant his or her day in Court.
The worst thing that a lawyer can do is to try and be someone that they are not for the sake of appeasing the Judge. No one likes a phony person. And if the lawyer appears phony to the jury, maybe the defense appears phony to the jury as well.
Second, be familiar with the standard jury instructions. The standard jury instructions are the law that is read to the jury. The jury is often impressed if the lawyer can argue facets of the case within the jury instructions that they will later hear from the Judge. Furthermore, certain jury instructions (such as self defense, parental discipline, etc.) may only apply if sufficient facts are introduced during the trial that will allow for the instruction to be read. The cliché that ignorance of the law is no excuse is especially true for a lawyer. Some Courts even mandate that the trial lawyer submit standard jury instructions before the trial. If there is a nonstandard jury instruction that would be appropriate for the trial, have the instruction prepared and be ready to argue the merits of the nonstandard jury instruction to the Judge.
Third, if necessary, hire a private investigator to talk to potential witnesses and develop the evidence well in advance of trial. Many private investigators are retired police officers and detectives who are trained in gathering information. A private investigator can be called as a witness to testify as to any inconsistent statements made by a witness during their questioning prior to the trial. A criminal defense lawyer who questioned a witness and gets inconsistent answers from a witness that he or she previously questioned is in a difficult situation because a lawyer cannot also be a witness in the trial that he or she is defending. A Prosecutor usually does not face this issue because the detective assigned to the case is essentially the Prosecutor’s investigator.
A private investigator may be able to give the lawyer another perspective that may prove invaluable to how the case is defended, such as weaknesses to attack or flaws to explore.
Fourth, be aware as to the likely testimony of each witness. The likely testimony of each witness is found many different potential places. Possible places include: police reports, the witness’s written and oral statements to the police, the preliminary examination testimony, a report from a private investigator, personal protection orders, medical reports, facebook, etc. Have any prior statements readily available for impeachment when inconsistencies exist. Know where to find the prior statement immediately in order to confront the witness. Have exhibits ready that relate to a particular witness.
Be aware of any biases or motivations that the witness may have for the testimony that is being offered.
Do not reinforce or rehash consistencies that favor the Prosecution. Repetition of consistencies may make a lie, misconception, or faulty observation to appear valid.
Do not ask questions for the sake of asking questions. There may be instances where you don’t ask a witness a single question. Don’t put the jury to sleep. A focused defense generates better results.
As a general rule, the lawyer should not ask questions of a witness if he or she has no idea how the question will be answered. The lawyer wants to make an impression that he or she is in control of the defense, and opening the door to harmful testimony is the opposite of staying in control. However, there are circumstances during a trial where such risks are sometimes necessary.
Anticipate objections, and be prepared to respond. If the objection is that the question is leading or argumentative, know how to rephrase the question. If the objection is hearsay, be prepared to argue for any exceptions to the hearsay rule. If the objection relates to foundation, know what needs to be done to lay the proper foundation. If the objection is relevance, be prepared to explain the relevance in a manner that will hopefully not tip the witness off to what you are trying to accomplish in terms of the testimony if the witness is not favorable.
Anticipate any possible rebuttal. If a witness that you call can be impeached, you may chose to reveal the weakness to take the sting out of the impeachment when the Prosecutor questions the witness.
In short, have a sound strategy as to how to handle each witness.
Sixth, file relevant motions prior to the motion cutoff date and/or trial date. Issues that are not raised prior to a trial are often deemed to be waived. Issues such as suppression of evidence, suppression of a confession, quashing the information, entrapment, etc., are often issues that must be addressed prior to a trial in order for the Court to reach a decision. If the Court has a motion cutoff date, the failure to raise the motion timely may be grounds for a Court to deny any consideration of the issue. Any hope of reversal based upon ineffective assistance of counsel must be tempered against the fact that it takes the Michigan Court of Appeals over a year to reach a decision concerning the appeal. A reversal after punishment is a hollow victory, especially if the Defendant served time in jail or prison prior to the reversal. In most cases ineffective assistance of counsel is found by the Court to be a part of a trial strategy or harmless error – which does not result in a reversal of a conviction.
By the same token do not file frivolous motions. For one, filing a frivolous motion is not ethical. More importantly, the Judge may decide not to take you seriously at trial which may lead to a bad impression upon the jury.
Seventh, be timely. File witness lists and evidence lists timely. Certain Judges have pretrial orders that require witness and exhibit lists to be served on the Prosecution by a particular date, with a possible sanction being that the Defense is unable to call witnesses or introduce evidence at trial. There are some defenses (such as, but not limited to, alibi, insanity, etc.) which require that the Defense lawyer inform the Prosecution of the particular defense, potential witnesses, and sometimes even aspects of the defense by a certain date or be excluded from raising the defense. Know whether the witness is helpful or not before you file the witness list. Making the Prosecution aware of an otherwise unknown adverse witness may be a big, costly mistake.
As previously stated, file any necessary motions timely.
Order any transcripts that are necessary well in advance of the trial.
If you plan to hire a private investigator, hire the private investigator early enough so that he or she has time to do their job.
Eighth, have an idea as to your closing argument, and prepare your case with your closing argument in mind. The best way to prepare a trial is to prepare it in reverse. It is easier to reach your destination if you know where you are heading. If your defense is self defense, for example, determine what testimony needs to come out at trial to support the elements of the defense contained in the jury instruction. If you want the jury to feel for your client, know where the sympathies lie and exploit those sympathies(even though the Judge will instruct the jury that sympathy is to play no part in the decision that is reached).
Ninth, have voir dire questions in mind or prepared. Some Courts allow the lawyers to question prospective jurors, others only allow the lawyers to submit questions to the Court to ask the jurors. Be prepared in advance to have the relevant questions asked.
With certain types of trials it is best to know how the jury feels about important issues. For example, in a child abuse trial where the defense is parental discipline find out who was disciplined with a spanking, belt, or switch growing up. Find out who believes that time outs and taking away privileges are the only acceptable means of punishing a child. It is better to ask the question rather than be surprised as to the juror’s thought process later. If you don’t like the juror’s response you can elect to use a peremptory challenge, bearing in mind that you have to be selective based upon the limited number of peremptory challenges available.
Tenth, adequately communicate with the client about the case prior to trial. Provide him or her with a copy of the file. Advise him or her of their Constitutional rights. Find out what witnesses and evidence that your client thinks is important. Find out your client’s side of the story when possible.
Advise the client as to your trial strategy. For example, in many jury trials that I conduct my opening statement is rather brief. My goal in an opening statement is to have the jury keep an open mind while not tipping my hand to the Prosecution as to my defense. In fact, sometimes I may want to lead the Prosecution away from my defense and place the jury in the position through the trial itself to discover the true defense. The feeling that someone has when he or she discovers something on their own through their own smarts and intuition is very powerful and compelling. However, if your client does not have faith in you due to a lack of communication it makes it harder to win. If your client’s belief is that you are not making an honest effort to defend the case, the relationship will only get worse. It is easier to fight a battle on one front, not two. A lawyer will lose effectiveness if he or she loses their focus on the trial. A client that does not feel part of the process may be hostile, negative, and/or disruptive, which may be consciously or subconsciously perceived by jurors as indicative of guilt. A client that feels confident in his or her lawyer’s ability and the case may be perceived as likable and harder to convict.
The client needs to understand that the lawyer has other clients, and his or her time is not limitless. Excessive communication benefits no one. With adequate communication the client is respected and his or her opinion is considered. What is often most important to the client, win or lose, is that the attorney did everything he or she could have done to give them a fair trial and the right outcome.
The client needs to know that the lawyer is on top of his or her game, and is in control of the case. Always be respectful of the opinion of your client, but never let that opinion subvert your ability to provide the best defense.