THE FOURTH COURT PROCEEDING (TRIAL)

If the case is set for trial at the pretrial conference, then the defendant will normally get a trial date from a week to a month past the pretrial date. Most cases do not go to trial. But some do. If the case goes to trial, the defendant must be prepared mentally and physically for the trial.

Preparing for a jury trial takes a lot of time and effort. The defendant should consult closely with the defense lawyer prior to the jury trial, so that there is a good understanding of what to do and not to do, and a good understanding of what happens during a jury trial.

In a jury trial, the prosecutor will try to prove– beyond a reasonable doubt– that the defendant is guilty of the crime charged. The defense attorney will present legal defenses, if there are any. The defense attorney will also try to undermine the state’s case through cross-examination of witnesses and through legal argument. See “How To Behave In Court,” below.

WHO ARE THESE COURT PEOPLE?

There are several significant participants in criminal courts. The judge is like the referee in an adversary contest. The prosecutor works for the government and is the advocate for the police, the complainant, or the state in general. The prosecutor often has several other people assisting him or her, including probation officers, pretrial release officers and various other support personnel. The criminal defense lawyer is the advocate for the defendant. The clerk is the judge’s administrative assistant, helping to process the cases in an orderly fashion. The court reporter is the court’s official stenographer, who records everything said and done in official court proceedings. The bailiff is the court security officer.

A person who is arrested for a crime is a DEFENDANT. Usually, when criminal cases go to court, there will be many other defendants present who have been accused of committing crimes. Defendants are the focal point of criminal courts. Defendants have legal, due process rights, which guarantee a fair and just procedure to resolve the cases against them. The burden of proof is on the state, to prove the case beyond and to the exclusion of every reasonable doubt; the public expects the government to bring defendants to justice for the crimes they have committed.

THE JUDGE

The judge runs the courtroom. The judge has extensive power and control of all other actors in the courtroom. The judge has power and control over the prosecutor, defense lawyer, defendant, probation officer, clerk, bailiff, police officer and virtually every person who comes into the courtroom. The judge makes decisions called “rulings” which affect many issues, including bail, what evidence is admissible, what law applies to a case, and when a case is to be resolved.

The judge may approve or disapprove a plea bargain. The judge presides over jury trials, which means the judge is like an umpire or referee, in a jury trial. In jury trials, the judge rules on the attorneys’ conduct and conduct of others in the courtroom. The judge also rules on evidence questions and governs the orderly questioning of witnesses and the admissibility of evidence. The judge decides what law applies to a case and also instructs the jury on the law that applies to the case. A defendant can waive a jury trial and have the judge play the role of the jury, to find the defendant guilty or not guilty. In such a case the judge becomes the “fact finder,” which is a role normally and carefully reserved for a jury. The right to a jury trial is rarely waived. The defense lawyer helps decide if it is best to have a judge or jury trail in your case.

If there is a finding of guilt or an admission of guilt, or a plea of no contest, then the judge must decide what sentence to impose on the defendant. DUI, and some other criminal offenses, have minimum mandatory penalties that are determined by the legislature which the judge must impose as a minimum sentence. If the defendant is placed on probation, the judge will oversee the probation, and if the probation is violated the judge will consider further punishment against the defendant, including a jail sentence.

THE PROSECUTOR

The prosecutor is a lawyer for the state and is an advocate for the cops, alleged victims and the government, in any given criminal case. The prosecutor directs and controls the case against the defendant, by focusing the power of the local, state and federal police agencies on the defendant and the charges filed against the defendant. Prosecutors are duty-bound to “seek justice,” and not just seek convictions. Unfortunately, some prosecutors loose sight of their sworn duty to seek justice and instead seek convictions, at almost any price. The State has a lot of power and a lot of investigative resources, including local, county, state and federal law enforcement agencies.

Prosecutors are the “top cops,” of any jurisdiction. They are law enforcement officers. In any case, the prosecutor has the discretionary power to reduce the charge, or to drop the case completely. The decision to reduce the charges or to seek the highest penalty is made by the prosecutor. Often, the sentence is negotiated during plea-bargaining. If a case is not resolved by plea bargaining, the case will proceed to a jury trial.

If there are any pretrial matters, such as motions to suppress evidence, the prosecutor will argue the case for the government, in an effort to have as much evidence as possible to convict the defendant. Usually, defense pretrial motions are directed at the manner in which evidence is obtained, secured or preserved. For example, if the defense lawyer files a motion to suppress or throw out the breath test, the prosecutor will argue the case to allow the breath test evidence presented to the jury.

In a jury trial the prosecutor controls the presentation of the case to the jury. The prosecutor will determine the theory of prosecution. The manner in which the crime is proved will be determined by the prosecuting attorney. What witnesses to call and in what order, what physical evidence to introduce, and by which witnesses are all decisions that are made by the prosecutor.

Sentencing is also an important stage of the criminal process for prosecutors. If the case is “plea bargained,” the sentence is usually agreed upon in advance of sentencing. If there is a jury conviction, or if there is no agreement as to the sentencing in regard to a plea bargain, then the prosecutor is more actively involved in the sentencing phase of the case.

THE CRIMINAL DEFENSE LAWYER

The criminal defense lawyer is the defendant’s advocate. The defense lawyer is the prosecutor’s counterpart. The defendant has constitutional rights, including the right to an attorney. The defense attorney’s function, among many others, is to assure that a defendant is treated fairly, according to the rule of law.

The role of a criminal defense attorney is the same as in any criminal matter. The criminal defense lawyer must be a warrior, and a champion of his client’s rights. The attorney must become thoroughly familiar with the facts and circumstances of the alleged crime, including the stop and arrest. The case must be thoroughly investigated. The defendant and other witnesses must be interviewed. The defense lawyer must learn every detail about the case.

The attorney may make court appearances for the defendant, such as first appearance, arraignment, and various other pretrial hearings. The criminal defense attorney must build the strongest possible defense, from the facts and the law that are applicable to the case. The defense attorney may research, prepare, file and argue legal motions, in defense of his client. If the case proceeds to trial, the attorney is solely responsible for the preparation and presentation of the defense, to the jury.

The criminal defense attorney must also be diplomatic, and try to resolve the case in manner that serves the defendant’s best interests. As far as it is in the defendant’s best interests, a criminal defense lawyer should try to resolve cases in a non-combative manner. This means discussing the matter with the cops, prosecutors and sometimes with the judge and prosecutor together, in an effort to reach a resolution that is fair and that all parties can accept. This is plea bargaining, and plea-bargaining is a continuous process, an ongoing process. Plea-bargaining is not something that happens at a certain time and place, like a court proceeding. Plea-bargaining is a process of negotiated resolution that evolves simultaneously with the case. Every step of a case is an opportunity to resolve the case, short of a jury verdict. Plea negotiating is one of the most important functions of a criminal defense attorney.

THE CLERK

The clerk of the court is in charge of the day-to-day, administrative operation of the court. In the courtroom, the clerk is usually in front or to the side of the judge. The clerk is responsible for keeping track of the progress of a case, from start to finish. The clerk will send you notices of any court dates. The notice is usually sent by U.S. mail. The clerk keeps records of who is to be in court, who comes to court, who does not come to court, and whether or not those who do not come to court had proper notice of the court date.

THE COURT REPORTER

The court reporter is charged with recording everything that is said and done in the courtroom. He or she normally sits in front of the judge, and close to the witness stand. Court reporters are sometimes referred to as “stenographers.”  The court reporter may prepare “transcripts,” (a type written record) of court proceedings, at the court’s or any parties’ request. Court reporters may also record witness statements. Usually, witness statements are recorded in a formal setting called “depositions.”

THE BAILIFF

The court bailiff is like a “sergeant-at-arms,” in the courtroom. The bailiff provides security for the court and makes certain that order is maintained in the courtroom. The bailiff is often in charge of making sure that prisoners are moved in and out of court, in an orderly and safe manner.

HOW TO DRESS FOR AND BEHAVE IN COURT

In theory the criminal justice system is unbiased and fair. In reality the system is biased and unfair. To enhance the chances of getting a fair shake in court, defendants must understand that simple truth. One may not be able to “judge a book by its cover,” but how one appears and behaves in court is very important to the case. Defendants should dress like they are going to church or to an important job interview. Like it or not, judges and prosecutors will form important impressions of defendants based upon how they dress and act in court. Shorts and tank tops are not a good choice. Clean pressed slacks and a nice shirt for the men, and slacks and blouse or a dress for the women, is the minimum “unwritten rule.” Defendants should dress nice for court.

It is common for most defendants to be nervous in court. Fear is largely a product of not knowing what is going to happen. Therefore, defendants should learn as much as they can about the possible outcome, before going to court. The more informed defendants are, the less anxious they will be.

Defendants should be nice and polite to all court personnel. Judges, clerks, prosecutors, bailiffs, court reporters, probation officers, and all other court personnel constantly interact. The impression you make on them is very important. Simple things, such as arriving at court on time and saying, “yes sir,” and “no sir,” and “please” and “thank you,” go a long way in making you a “real human being,” instead of a file and a case number, or a nameless “dirt bag.”

Defendants should address the judge as “your honor.” This is to show respect not only to the individual judge, but also to the court system in general. Judges usually have too much work. The sheer volume of cases, in many instances cause judges to make decisions quicker than may be ideal. Consequently, even the most principled judges will be influenced by the small things in a case, such as the way defendants appear and act in court. This may seem petty or unfair to some people, but it is a reality. “Yes your honor,” and “no your honor,” will serve defendants much better than “yup,” “yea,” and “nope,” or “nah.” Little things like being polite to the judge and court personnel go a long way to help defendants get the best possible outcome in court.