PRETRIAL PLANNING FOR THE "WELL-TRIED CASE
ORGANIZING THE CASE FILE
GATHERING INFORMATION ABOUT THE CASE
WHAT WILL BE INVESTIGATED WHAT INFORMATION WILL BE GATHERED WHAT IS THE THEORY OF YOUR CASE WHAT STORY ADDS "FLESH AND BONES" TO YOUR THEORY OF THE CASE
PROSECUTORS PUBLIC DEFENDERS IN METROPOLITAN AREAS PRIVATE DEFENDERS AND SMALL OFFICE PUBLIC DEFENDERS
INFORMATION YOU NEED AND WHY
TYPES OF INFORMATION WHY YOU NEED CREDIBLE INFORMATION
TWO WAYS OF OBTAINING INFORMATION
DISCOVERY INFORMAL FORMAL READING POLICE REPORTS AND OTHER DOCUMENTS INVESTIGATION CONDUCTING YOUR OWN INVESTIGATION CLIENT CONTACT GATHERING INFORMATION ABOUT THE COMPLAINANT INTERVIEWING WITNESSES LOCATING AND ENGAGING AN EXPERT VISITING THE RELEVANT SCENE(S) ASSEMBLING A PRETRIAL INVESTIGATION KIT USING THE INTERNET TO LOCATE AND GATHER INFORMATION KNOWING THE OPPOSITION, JUDGE, COURTROOM & LOCAL RULES INVESTIGATIVE RESOURCES AVAILABLE ON-LINE TIPS FROM EXPERIENCED PRIVATE INVESTIGATORS MILITARY RECORDS WHAT MAKES THINGS TICK FREEDOM OF INFORMATION (FOIA) USEFUL SITES Translators (Interpreters) Sex Offender Registration CHECK OUT THE PROSECUTOR'S PRACTICE GUIDE TRACKING NEWS
ANALYSIS OF INFORMATION - GENERATING A SUPPORTABLE STORY
BRAINSTORMING AND THINKING COLLABORATIVELY OUTSIDE THE BOX
DEVELOPING YOUR CASE THEORY
FINDING A UNIFYING THEME
INTEGRATING STORYTELLING TECHNIQUES INTO YOUR TRIAL PREPARATION
GROWING AN ATTTUDE OF PRETRIAL READINESS
FEE BASED RESOURCES FREE RESOURCES
OPENINGS AND ARGUMENTS
LITGATION STRATEGIES AND TACTICS
CREATING A TRIAL JOURNAL SCOUTING OUT THE JUDGE SCOUTING OUT THE OPPONENT SCOUTING OUT THE OPPOSITION EXPERT COORDINATE WITH CO-DEFENDANT'S COUNSEL IN MULTI-DEFENDANT CASE STRATEGIZE TRIAL TIPS
PREPARING EXHIBITS, VISUALS, AND A TRIAL KIT
PLANNING THE VISUAL ASPECT OF YOUR CASE LEARNING HOW TO USE TECHNOLOGY FOR THE COURTRROOM PREPARING A TRIAL KIT FOR COURTROOM SUPPORT
CSI US ATTORNEY'S MANUAL FBI MANUAL ON INVESTIGATION GUIDE TO EXPLOSIONS AND BOMB SCENES ATF HANDBOOKS DEA AGENTS' MANUAL US CUSTOMS HANDBOOK INVESTIGATION SITES DO-IT-YOURSELF MOCK TRIAL
To be successful in meeting the challenges of the courtroom, the would be criminal trial advocate must spend time in pretrial planning and preparation. It would be nice if we could learn how to defend a criminal case by reading a two-page article (1), but such is not the case. Success as a criminal law practitioner requires an enormous commitment of time and effort. It's nice to be blessed with cleverness, but it's better to be prepared than clever. In the courtroom, information is so integral to effectiveness that without it a clever lawyer can't get started. With abundant relevant information and advanced planning, a less clever lawyer can make more headway. When a criminal charge is filed by complaint, information, or indictment, only three things can happen: (1) the charge will be dismissed; (2) the case will be tried to a verdict; or (3) the defense will waive the right to trial and the accused will plead guilty or nolo contendere (no contest) either with or without a plea bargain involving sentencing concessions. Reality teaches us that most cases are disposed of without resort to trial. That's a euphemistic way of saying that most filed cases wind up in the third category - pleas of guilty. So, why spend time getting your case ready for trial if it is going to result in a guilty plea? The answer is that you don't prepare every case for trial. Some cases by their nature will be pled. However, you can't be sure which cases fall into that category until you have conducted formal and informal discovery, done a factual investigation, researched the penal and procedural law (1 - state codes), (2 - federal crimes code), (3 - federal rules of evidence), (4 & 5 links to criminal law sites), counseled with your client , and negotiated with the opposition. You'll also need to brainstorm the case and engage in critical thinking about how to ethically steer it through the criminal justice system. Plain fact: you will spend most of your life as a lawyer dealing with pretrial matters than trying cases in the courtroom. [Here are thoughts on the philosophy of criminal trial advocacy. ] The material in this brief discussion about management of a solo criminal law practice will focus on the complexities of pretrial planning, investigation, discovery, analysis of the police offense report, and development and implementation of case theories, themes, stories, and strategies. At trial, you are the ringmaster. Yet, mastery of your case begins long before trial. It begins at what we call this interval known as the pretrial stage of the criminal justice process. When you truly utilize the pretrial stage to prepare, at the end of all your investigation, planning, and preparing, you arrive back where you started but, for the first time, with full appreciation of the case. [Note: I have added a slew of useful hyperlinks to the textual advice on this page, but, for a myriad of other great sources in readying yourself to prepare and try criminal cases, check out the CCJA Links page.]
The more experienced advocate obviously has a leg up over the nascent, wet-behind-the-ears rookie in the pretrial process. But competent pretrial practice is not so much about how much you know going in as it is how much you know when the pretrial process is completed. A big part of pretrial practice is: (1) determining what you need to know, (2) figuring out what you already know and what you don't know, (3) conducting investigation, discovery, and legal research to obtain the necessary information that you didn't know, and (4) preparing to present the useful information at trial in a manner that will provide the meat for convincing arguments in favor of your position. You don't have to know much at the start of the pretrial process, but you do have to learn how to gather, obtain, and learn things so you will know a lot by the end.
Pretrial Planning for the "Well-Tried Case"
What factors influence the outcome of a trial? You can look at it from a lot of perspectives. Perhaps the two biggest questions you should ask yourself are: What conclusion do I want the jurors to draw from the evidence? and What evidence do they need to do it? Here's an expanded list of some issues that you'll need to answer as you begin to plan your case:
- Why did it happen, i.e., now that I know what happened, what happened before this to make this happen?
- What else would necessarily or probably happen after this happened?
- Who did what? To whom or what was it done?
- How do I use the evidence to prove what I need to prove?
- How do I get the evidence I want in front of the jury?
- How do I persuade the jury that the evidence proves what I want it to prove?
- What evidence will my opponent present to the jury?
- What will my opponent argue based on the evidence?
- How do I counter my opponent's arguments?
- How do I convince the jury to rule in my favor?
They say, "A good plan today is better than a perfect plan tomorrow." But, given the constraints of time, you must aim for the best plan possible. And for that, you must ferret out answers to all the above questions. Your mindset should be - I will work on preparing my case to the very last opportunity, as if there were a subsantial chance to lose it if I don't keep preparing.
Organizing the Case File
The goal is to have a file that contains what you need but that is not cluttered with useless information. The devil is in the details - the overall project of getting ready for trial depends on the success of the tiniest components, but the details must be relevant details in he overall architecture of your case.
Gathering Information About the Case
It is a capital mistake to theorize before one has data.
Sir Arthur Conan Doyle
You can't make whipped cream from skim milk. It's impossible to make an effective case or mount an effective defense from poor facts.
"Defense counsel should conduct a prompt investigation of the circumstances of the case and explore all avenues leading to facts relevant to the merits of the case and the penalty in the event of conviction."
Standard 4-4.1(a) - Duty to Investigate
+ Gathering Information as an Integral Part of Pretrial Preparation: Remember the old proverb that admonishes us not to cross our bridges before we come to them. In criminal cases, this is a disastrous philosophy. Trial lawyers spend considerable pretrial effort identifying the bridges they will need to cross in the courtroom and planning exactly how to cross them. That is what this page is about.
+ Learning how to plan and conduct a factual investigation to uncover and discover potential evidence: Recent graduates from law school find it a bit difficult to investigate their client's case. This is understandable because most law schools don't teach this skill. Also, in law school you're typically provided with a given fact situation in an appellate case and asked to apply your analytical skills in predicting and arguing a legal result. In the real world of the courtroom, you learn that there is no a priori given set of facts. You have choices as to what information will be presented to the jury. That choice is informed by the information you gather during the investigation phase of your case. It is also influenced by your choices in selecting, discarding, and ordering information for presentation in court. In order to plan, direct, and, where applicable, participate in factual investigation of your case, every criminal defense lawyer needs to be familiar with the following processes, skills, and concepts:
- Determining the need for factual investigation.
- Planning and prioritizing the factual investigation.
- Implementing the investigative strategy into gathering of factual information..
- Memorializing, sorting, and organizing factual information in accessible form.
- Deciding whether to continue or conclude the information gathering process.
- Reviewing and evaluating the information that has been gathered.
- Reconstructing relevant events.
- Litigating the case at the trial court level.
What Will Be Investigated? First, there must be a person, place, or event that needs investigation. In other words, we must know what it is that we need information about. In criminal cases, we typically need information about people, places, and events that are reflective either of commission of crime or existence of defense to crime. To prepare for trial, you must be able to visualize the way the case will unfold at trial, i.e., what you and the opposing lawyer will do. Before the process of visualization of the trial can take place, information must be gathered.
What Information Will Be Gathered? There is a mountain of information surrounding every event. Theoretically, with enough time, you could gather all conceivable information surrounding an event and sift through it for data that might be legally relevant as potential evidence. In practice, the investigation of people, places, and events is guided by: (1) your understanding of what needs to be investigated, (2) available resources, (3) laws and procedural rules, e.g., the substantive law of crimes, criminal procedure, and the rules of evidence, that define crimes and defenses and limit what information can be introduced in court, and (4) a good measure of common sense. (1 - a brief discussion of developing a defense strategy)
What Is Your "Theory of the Case"? The information that is gathered about the people, places, and events will yield a tentative theory of the case (Scientist call it a "working hypothesis."). In the early phases of pretrial investigation, your theory of the case is tentative. You never develop your theory of the case in a vacuum. You never try to shoehorn an impossible factual story into your theory of the case. Sherlock Holmes taught us that "it is a capital mistake to theorize before one has data; insensibly, one begins to twist facts to suit theories, instead of theories to suit facts." If credible new information surfaces that is inconsistent with your theory of the case and it cannot be satisfactorily explained away, you must be willing to regroup, rethink, and form a new theory. In other words, if your theory of the case doesn't hold water in light of the potential evidence, form a new theory, and test it. As your tentative theory is weighed against the developing facts and passes, it ceases to be tentative and becomes the operative theory. The operative theory of the case leads logically and emotionally to a conclusion.of why the accused is either guilty or not guilty. It is this operative theory of the case that constitutes the taproot of your pretrial investigation, planning, and preparation. At trial, your operative theory of the case is the one paragraph explanation of why you should win.
What Story Adds Flesh and Bones to Your "Theory of the Case"? People, places, and events tell a story. But trials are not always about the same story. Some events tell one story. Other events tell another story. For example, the prosecution's story may focus on D intentionally or knowingly engaging in certain prohibited conduct, e.g., taking money from a bank teller at gunpoint, or causing a particular proscribed result, e.g., shooting a person to death. The defense's story may focus on events antecedent to or during the alleged crime that may excuse or justify D's otherwise criminal behavior, e.g., an accused bank robber might show that he was forced to commit the robbery or have his wife and children killed by the real robber who was holding a gun to their heads or an accused murderer might show that based upon previous threats by the deceased coupled with an apparent deadly attack, he responded reasonably by using deadly force for self-protection. It's your analysis of provable events and how you will reconstruct them in court that provides your story of the case and your theory of prosecution or defense. To come up with a viable theory of the case, you must know the law and the facts.
Public Prosecutors: The prosecution has an army of investigative agents. Although prosecutors are ultimately responsible for selecting, preparing, presenting, and probing the trial evidence, they rely on government investigators, e.g., state and local police, sheriffs, d.a. investigators, FBI agents, treasury agents, IRS agents, ATF agents, DEA agents, etc., to eliminate possible suspects, focus on proper suspects, and gather information that can make its way into evidence. Aside from grand jury investigations where the power of subpoena is an ally, most prosecutors don't do much individual investigation. [Note: One reason for the prosecutor not playing a participatory role in on-site investigation is that immunity from civil liability may be lost. The prosecutor has absolute immunity for action that is deemed integral to the adjudicative process. See Imbler v. Pachtman, 424 U.S. 409 (1976). However, when a prosecutor assumes a participatory role in the investigation of a case, s/he has at most a form of qualified immunity from civil suit. See Burns v. Reed, 500 U.S. 478 (1991) and Buckley v. Fitzsimmons, 509 U.S. 259 (1993). See also Kalina v. Fletcher, 522 U.S. 118 (1977), Gomez v. Toledo, 446 U.S. 635 (1980), Mitchell v. Forsyth, 472 U.S. 511 (1985), ] However, every prosecutor (and every defender, for that matter) needs to know how the government's investigators conduct an investigation. (1 -police investigation of violent crime), (2 - the law enforcement view of the pretrial process), (3 - homicide investigation), (4 - domestic violence, stalking - 117 pages), (5- DNA). For example, prosecutors must acquaint themselves with how a crime scene is secured and access controlled. Once the scene is secured, they need to know what processes are used to search for, identify, photograph, label, and gather evidence. Prosecutors must know how crime scene investigators (CSI) and/or criminalists (1 -criminalist ), (2 - reconstruction of crime scenes) prevent contamination or loss of evidence. Prosecutors must know who is present at a crime scene, e.g., first cops making the call, detectives, medical examiner investigators, emergency medical (EMT) personnel, criminalists, top brass, onlookers, etc. To be effective in presenting evidence, prosecutors must learn how a chain of custody of tangible items, particularly those of a fungible (interchangeable, e.g. cocaine) nature, is maintained. To support admissibility and credibility of evidence, the presenter must know how the evidence is transported from the crime scene to the station house or lab? With respect to scientific (forensic) evidence, one must know how the sample is handled in the lab? These are just a few of the things that must be within the working knowledge of every prosecutor. How do get this information? Every rookie prosecutor should take the time to visit some crime scenes, not as an active investigator, but as an observer seeking to understand the investigative process that is antecedent to every trial of significance. For more on the role of the prosecutor, see Ethics. Public defenders (1), (2 -check the on-line library of this top-notch federal public defender trial practice resource, e.g., defending meth cases - 3) In metropolitan areas, public defenders are in a position somewhat different to prosecutors. To be effective in testing the prosecution's case, public defenders have to know how the law enforcement investigators gather evidence. Yet, unlike prosecutors, public defenders won't be welcomed by the police to observe the investigation of fresh crime scenes. Law enforcement agents are an information gathering arm of the prosecution. So, unless the public defender has prior experience as a prosecutor, the process of learning how the other side investigates its case takes place during discovery by viewing the contents of the prosecutor's file, e.g., offense reports, witness statements, photos, lab reports, and other documentation gathered or prepared by the prosecution's investigators. Unlike their rural counterparts, big city public defender offices do have trained investigators working on their staffs. These investigators work under the direction of the public defender gathering information for the defense. So, to provide direction to the defense investigators, the public defender must understand how to conduct an independent defense investigation of a case. Private defenders and small public defender offices: These defenders must do their own investigation or hire a trained investigator. When you can afford it, a competent private investigator can be a valuable addition to your pretrial team. See Investigation below. When you do your own investigation, not only do you have to know how to conduct an investigation, you must physically conduct it. Most law schools and CLE programs don't train you for this task. You learn it by doing it. The defense information gathering process is normally preceded by an analysis that considers how potential facts and other information might factor into an evidentiary presentation at trial. This analysis involves the use of your knowledge of legal rules and principles to identify the range of defensive case theories and available information. Of course, a great deal of information may not be admissible as evidence. This integral calculus of "how will this information play out in court" continues throughout the case as you make moment to moment decisions in planning a coherent and effective investigation. Your theory of the case ultimately dictates what information you will pursue, i.e., what direction your investigation will take. Because you can't be sure what information may surface during the investigation, you must always be alert to the possibility that your initial theory of the case (or working hypothesis) may need to be revised or abandoned.
Information You Need & Why
Types of Information: What types of credible information may be relevant to your case? Possibilities include: (1) information surrounding the event(s) in issue; (2) information that explains why the event(s) occurred, e.g., evidence of motive, prior relationship between the parties, etc.; (3) information relevant to previous events that may form the basis of a defense, e.g., prior threats of the complainant in a self-defense case, prior law enforcement inducement in an entrapment defense case;etc., (4) evidence that impeaches or bolsters the credibility of the witnesses, the victim, and/or the accused. You also want information about your adversary. Who is your opponent? Remember the wartime advice: To fight an enemy, it's important to know his numbers, but it is more important to know his philosophy.
Why You Need Credible Information: You need believable information for purposes of offense and defense. On offense, information is the meat of your story of the case. On defense, forewarned is forearmed. That is, if you know what information is coming from the other side at trial, you will be better prepared to employ your lawyerly skills to confront and neutralize it than the advocate who does not know what is coming around the corner.
Two Ways to Obtain Information - Discovery and Investigation
Methods of Gathering Information Useful to Your Defense: As the old saying goes, "Forewarned is forearmed." If you know what is coming from the other side, you will be better prepared to deal with it. Defenders and prosecutors must be familiar with the basic methods of gathering and developing useful information and the cost/benefits of each method. The two methods are discovery and investigation.
Discovering Information Gathered or Generated by the Other Side: [See Motion Practice for titles of numerous sample discovery motions. On this site, you'll find a useful article on discovery management and some basic federal discovery case law (1 - 19 pages, 2 - 58 pages, 3 - PowerPoint Slides on discovery organization issues, 4 - Tab 4). The prosecution gathers information by dispatching paid government agents who are trained to investigate possible crimes, gather potential evidence, and be prepared to testify to their efforts at trial. The government also builds laboratory facilities and employs forensic analysts to examine and test tangible material that has been gathered and testify as expert witnesses at trial. We can generally be sure that if the government charges a defendant with a crime, the government will have information that it has gathered in support of the allegation. So, one way the defense can gather information to prepare for trial is by obtaining formal (by the book) and/or informal (discretionary) discovery of the information upon which the prosecution bases the accusation. Informal Defense Discovery: Informal defense discovery requires cooperative communication with the opposition. Sometimes, sleeping with the enemy is the best way of picking its mind. Prosecutors may be loathe to reveal anything more about their case than is required by law. Yet, to take a hardball, do-it-by-the-book attitude in every case would be to discourage guilty pleas, something that the prosecution cannot afford. As a matter of practicality, many prosecutors will informally provide defenders with information about the prosecution's case with an eye to encouraging a guilty plea. Prosecutors also like to avoid the extra work involved with responding to formal discovery requests. It's generally proper practice to resolve a case by good faith mutual agreement of the parties. So, don't turn up your nose to the prosecution's "open file" policy that shows you all of it's cards. Make a good faith effort to resolve your discovery demands by agreement before presenting them to the court. On the other hand, if a prosecutor knows that a case is going to trial, the game may be hardball from the outset. In such event, your remedy is formal discovery. Formal Defense Discovery: Formal defense discovery in a criminal case occurs when the defense seeks and obtains a formal court order instructing the prosecution to reveal investigative information to the defense. Informal discovery occurs when the prosecution voluntarily reveals investigative information to the defense without formal court order. Every jurisdiction will have its own statutes and rules governing the pretrial and trial discovery process in criminal cases. In some jurisdictions, e.g., federal court, there are rules of counter-discovery that allow prosecutors to have discovery of defense information as a condition to statutory discovery by the defense of information in possession of the prosecution. Defenders and prosecutors must develop a working knowledge of formal pretrial discovery motion practice in their jurisdictions. It is not uncommon in this digital age to receive your discovery from the opposition on a RW-CD/DVD (read/write compact disc/DVD). In the near future, most of us will have to have some understanding of e-filing, the process of electronically filing documents related to the case, most commonly using Adobe Acrobat portable document format (PDF) and a scanner, and e-discovery (1), (2 - a blawg) the process of gathering electronic data from your records and from the other side, and understanding the work of forensic computer experts in finding information on computers, e.g., deleted files in financial fraud and pornography cases. The federal courts are already geared up with an Electronic Case Files system allowing e-filing, and there are now e-discovery provisions in the Fed. R. Civ. P. imposing duties on parties in civil cases to locate, preserve, and produce electronically stored information (ESI). See Rule 26 Fed. R. Civ. P., (1), (2), (3), (4), (5). [.Note: Look at your own state web site to see if and how it is handling electronic filing in civil and/or criminal cases. Here are links to few states: CT -civil, MO, NY , PA. In my home state,Texas, there is a new Texas Online eFiling System for Courts in a number of participating counties; there are now Texas Rules Governing Electronic Filing in Criminal Cases (1 - Ct. Crim. App. Order requiring; 2 - Sup. Ct. Order) Discovery from the defense perspective has a Constitutional dimension. The United States Supreme Court has generated case law that provides some threshold rights for defense discovery of information in possession of the prosecution and/or its agents when such information is favorable to the accused. Your research regarding the USSC due process requirements should begin with the "Brady Rule" derived from Brady v.Maryland, 373 U.S. 87 (1963) (1 - Brady analyzed) (2) (3 - a rare TX opinion relying on Brady, see also 4) holding that, irrespective of the good or bad faith of the prosecution, it violates constitutional due process for the prosecution to suppress evidence favorable to the accused and material to guilt or punishment when there has been a defense request for such information; your reading should also include subsequent cases such as: Giglio v. United States, 405 U.S. 150 (1972) making clear that the Brady Rule applies to information that relates to credibility of a witness as well as substantive evidence; United States v. Agurs, 427 U.S. 97 (1976) which indicates that the prosecution's duty to disclose under Brady does not require a request by the defense: United States v. Bagley, 437 U.S. 667 (1985) indicating that evidence that could be used to impeach a witness at trial falls within the scope of the Brady Rule; Kyles v. Whitley, 514 U.S. 419 (1995) making clear that the Brady Rule is not limited to evidence known only to the prosecutor but applies to evidence known to other agents on the prosecution team, e.g., the police; Strickler v. Greene, 527 U.S. 263 (1999); United States v. Ruiz, 536 U.S. 622 (2002); Cone v. Bell, 556 U.S. 449 (2009). These last two cases raise an interesting question in light of current reports (1), (2) that the FBI has a policy of vetting information that will go into the case file without disclosing discarded information to prosecutors; supervisors decide if information makes it into case file. This practice could have powerful discovery-suppression overtones. Is it possible that your local police agencies are following the FBI practice? Here's some information (1) regarding the issue of prosecutorial suppression of exculpatory evidence. On the issue of what obligation the defender has to explore all avenues leading to facts relevant to the case, ABA Criminal Justice Standard 4-4.1 says that defense counsel should make an effort to secure information in the possession of the prosecution. See the language of Justice Souter in Rompilla v. Beard, 545 U.S. 374 (2005) reversing a death penalty verdict for ineffective assistance of counsel under Strickland v. Washington, 466 U.S. 668 (1984) because the defender was bound to make reasonable efforts to obtain and review material that the defender knew the prosecutor would probably rely on as evidence of aggravation at the punishment phase of the capital trial. Souter quoted from 1 ABA Standards for Criminal Justice 4-4.1:
"It is the duty of the lawyer to conduct a prompt investigation of the circumstances of the case and to explore all avenues leading to facts relevant to the merits of the case and the penalty in the event of conviction. The investigation should always include efforts to secure information in the possession of the prosecution and law enforcement authorities.The duty to investigate exists regardless of the accused's admissions or statements to the lawyer of facts constituting guilt or the accused's stated desire to plead guilty."
Reading Police Reports and Other Documents: Effective discovery requires that the recipient of discovered information be able to understand it. For example, defense lawyers must know how to read a police offense report and recognize and analyze documents, e.g., medical records, that are relevant to the case. What do you look for when reading police reports? Here are a few suggestions: Look for the report of the first officers on the crime scene. What descriptions did the arriving officers give of the conditions of the scene - this includes the position of moveable objects and alleged victims. What did the first officers on the scene do upon their arrival, e.g., where did they go, what did they do to secure the scene? If there was a victim, did the first officers have contact with the victim? Were EMT (emergency medical technician) personnel involved with the scene? If so, who called for the EMT's? How many EMT's arrived? What were the movements of the EMT personnel at the scene? What observations did the EMT's make concerning the victim and the victim's surroundings? What was the condition of the victim? If deceased, who pronounced the victim dead? If alive, what efforts were made to deliver first aid to the victim? Did the EMT personnel move the body? When? Where? Was the victim conscious? Was any effort made to communicate with the victim? Was the victim transported to a hospital (morgue)? Did detectives arrive at the scene? Did they conduct a further investigation? What did they observe? What did they look for? Did the detectives take measurements and or make diagrams of the scene? How many diagrams or sketches? Of what? Did the detectives talk with witnesses? Who? When? Where? Were the witness statements recorded, e.g., written, tape-recorded, paraphrased into the report? What did the witnesses say? Were photographs taken? Who? When? Of what? How many? Did CSI (crime scene investigation) personnel report to the scene? Who? When? Where? What did CSI do? Were samples, e.g., fingerprints, trace evidence, collected? Who collected what and from where? How was the collected evidence transported to the crime lab or other repository? What reports did CSI make? Is there a log reflecting each item collected? Did a criminalist or other expert subsequently examine the items collected at the scene? Were there laboratory reports? What do those reports say? What were the results of tests run by the lab? Does any portion of a sample collected for testing remain for analysis by a defense expert? Obtaining Medical Records: Is the alleged crime one of violence where medical records exist? If so, obtain them from the opposition or the medical facility that generated them.. What treatment was afforded to the patient? Was the patient transfused? (This can be important in cases involving subsequent DNA analysis.) Speak with the attending physician(s). If this is an alleged criminal homicide, obtain the medical examiner's official report (autopsy protocol). Also, obtain the report of the medical examiner's investigator who attended the crime scene. (Medical examiners typically do not personally visit crime scenes. Instead, they send trained ME investigators to observe the body at the scene and gather scene information.) Also, obtain (subpoena, if necessary) copies of the autopsy surgeon's notes and tape recordings dictated by the surgeon while the autopsy was taking place. Read the medical records, including supplementary reports, e.g., toxicological reports. What was done? Was it done properly? What was not done? What conclusions were made?
Conducting Your Own Investigation: Rather than limiting yourself to trying the case solely on information discovered from the prosecutors file, defenders should conduct their own independent factual investigation of the case. If you can afford the services of a top-notch investigator, consider the advantages of doing so. See the discussion of private investigators in the Developing Available Resources section below. If you can't afford outside help, read up on what private investigators do and how they gather information (1). Every defender and prosecutor should print and read the 84-page Scene Investigators Guidelines prepared by the New Mexico State Medical Examiner's Office and the F.B.I.'s 71-page 2003 version of the Handbook of Forensic Sciences. Both of these have splendid information about how a crime scene investigation should be conducted. Client Contact: Some of the information about what happened or didn't happen will come from the client. You will need to interview your client on more than one occasion and communicate regularly. Gathering Information About the Complainant: What can you learn about the complainant / complaining witness / alleged victim? Quite a bit, if you have the time, the need and the financial resources to make the investigative effort. Aside from basic personal facts such as sex, race, age, marital status, personal appearance, education, socioeconomic level, residence, vehicle, prior criminal record, etc, you may be able to develop a reasonably accurate profile of a complainant's childhood history, lifestyle, intelligence, and personality. See How to Do a Background Check. In many jurisdictions, there is a Victim's Advocate Office associated with the local prosecutor; don't forget to use your discovery rules to get a copy of this statement for use in cross-examination. Subpoenaing 911 Phone Calls and Police Call Slips: Become familiar with the procedure for subpoenaing records of 911 phone calls. You may have a narrow window of opportunity to issue and serve a subpoena duces tecum, e.g., in my county, Harris County, Texas, records of 911 calls are obliterated thirty days after the call is received. Many law enforcement agencies also keep a record of outside calls made to the agency; these memos of calls may be on paper "call slips." Determine the policy of your local law enforcement agencies and make it part of your case investigation to subpoena call slips. Interviewing Witnesses as Part of Case Investigation: In trial work, what you don't know can hurt you. Ignorance is not bliss when it comes to information that witnesses may possess. It is folly for a defense lawyer not to identify and locate witnesses and see to it that they are fully interviewed. Witnesses come in three flavors: friendly, neutral, and hostile. (Adverse witnesses, either the opposing party or witnesses identifying themselves with the opposing party, are almost always hostile.) Witnesses come in different brands: a fact witness knows something relevant about what happened or didn't happen, a character witness knows something about a relevant and admissible character trait of the accused, another witness, or the alleged victim, and an expert witness has knowledge about relevant matters that will be helpful to the jury in understanding the evidence. It is usually foolhardy for the defense to dash out to interview witnesses willy-nilly in the absence of some knowledge of the prosecution's theory of the case, i.e.,. what the government claims happened and knowledge of the possible defense available in the jurisdiction. If you are doing your own investigation you will have an investigation plan before you contact witnesses. If you are using a private investigator, you must brief the investigator on the sort of information you need. Otherwise, your investigator won't know what questions to ask and which answers to pursue. You can't depend on lay witnesses (and sometimes even experts) to know what information is relevant. So, prior to interviewing witnesses, you'll have to develop skill in rapidly discovering the basics of the prosecution claims and forming an investigative plan. You want to obtain all the relevant information possible, but you don't want the relevant information to be buried in a mountain of irrelevant detritus. See this article for a useful discussion of the law surrounding the issues of clients and witnesses taking the Fifth.
Locating and Engaging an Expert Witness: In some cases, as part of the pretrial preparation process, you will need to locate and engage an expert. Please consult the CCJA Expert page for a discussion of expert testimony and guidance on locating experts. Engaging (hiring) an expert can be a problem if your client has limited funds. You make seek help from the court. See Ake v. Oklahoma, 470 U.S. 68 (1985) (1)(2)(3). The defense may find it useful to have its expert analyze evidence seized by the prosecution agents. If the defense is successful in gaining access to evidence for testing, the prosecution typically will ask that the defense pay for transport costs incurred in maintaining the chain of custody. In some instances, where the quantity of a sample is limited and may be consumed in prosecution testing, the defense will want to request a court order permitting the defense expert to observe and record the scientific testing conducted by the prosecution's expert. The defense may also want to have its expert present to observe and record when prosecution agents, e.g., criminalists, police, etc., conduct a search of seized or impounded property. See Motion Practice. [Tip: If your expert does conduct a scientific examination or analysis of evidence in the prosecution's possession, be aware that the prosecution's chain of custody representative, e.g., the detective with case responsibility for the evidence, will probably try to get your expert to talk. Also, if your expert observes and records examinations or analysis done by a prosecution expert, the opposition's expert will try to get your expert to talk. Whatever your expert says to these folks may come back to haunt you in court. So, be sure to warn your expert not to say anything revealing, e.g., information or opinion that s/he wouldn't want aired in cross at the trial. On the other side of the discovery and impeachment coin, you may want to advise your expert to get the other side's witnesses talking in these encounters.] Visiting the Relevant Scene(s) and Gathering Useful Information: To comprehend and understand a scene and what may have happened there, you must visit it. When you visit a scene, take a supporting (prover) witness who can gather potential evidence and testify as an authenticating witness, should the need arise. Become personally familiar with the environment of the scene. Walk it. Gather tangible objects that could be potential evidence. Do not contaminate the object. Use gloves, and document the retrieval and storage of the object. Make detailed notes. Make a diagram. Include relevant measurements. Record the scene by photographing and, if useful, videotaping it. To record scenes properly, read tips about taking better photos, how a camera works, photography, how to buy equipment and take photos, and crime scene photography, e.g., angles, panning, lighting, etc., in your spare time before you embark on a crime scene visit. If you use a digital camera, you can afford to take a lot of pictures. Professional photographers get one good shot for every 36 they take. Before investing in a new camera, digital, digital SLR, analog, or other, check out the reviews in PC magazine. [Tip: If you are a defender, when you visit a crime scene and make photographs of potentially relevant aspects of it, take a supporting (prover) witness. Take three photos of every relevant scene, one with yourself in the scene, one with your supporting witness in the scene, and one of the scene by itself. When you or the supporting witness appear in the scene photograph, do something relevant to the photo such as holding a pointer or a ruler or a tape measure. At trial, you may want to introduce the photo that includes you. The reason would be not only to subtly show that you have personal knowledge about the scene in question but also because the photo is graphic proof that you care enough about your case to do you own investigation. If the authenticity of the photo is questioned or you need the supporting witness to qualify it, you may choose to introduce the photo that includes the supporting witness. If the prosecution successfully objects to a photo that includes you, you will have the plain scene photo as backup evidence. ] Assembling a Pretrial Investigation Kit: If circumstances dictate that you conduct your own investigation, you will need to assemble some hardware. These material should be gathered together and kept in an accessible place. Your pretrial investigation kit should include the following: - carrying case - 50 ' retractable coiled measuring tap - portable high quality tape recorder, & extra tapes [Consider buying a digital recorder.] - Polaroid camera and extra Polaroid film - digital SLR camera (1 - Consumer Reports 2008), (2), (3), (4), (5), (6 - great info re buying and using digital cameras and other electronics, as well as software, components, systems, peripherals, etc.; 6 megapixels resolution should be the absolute minimum for your camera, 10 is great, e.g., the Fuji FinePix Z200fd at $300; buy a digital camera that accepts a secure digital memory card that will store photos; phone cameras currently don't provide sufficient quality.) - hand-held digital camcorder (records video and takes photos) [Note: If you have the $, consider the NikonD90 combo of single-lens-reflex and video camera; at $1300, it's the best. the Flip Mino is a new low-cost ($180) one-button 3.3-oz. video recorder with 60 min. of VGA quality video.] - extra batteries for battery operated gear - disposable rubber gloves to prevent contamination of tangible objects - expandable pointer - roll of masking tape - glue stick - bottle of glue - large binder clips - extra pens, pencils, - magic markers (black, red, blue, yellow, hot pink, etc.) - letter and legal sized tablets - post-it note tablets - scissors - flashlights - big and little - business cards - PDA - e.g., Blackberry - stopwatch Using the Internet to Locate and Gather Information: You can gather relevant information from sources on the Internet. There's a world of useful information out there in cyberspace. Here's an example; there's a terrific 84-page guide to homicide investigation compiled by the New Mexico State Medical Examiner's Office that every prosecutor and defender should read before trying a criminal homicide case, and it's also good for rookies who are trying misdemeanor assaults. The federal government has it's own investigator's guide to sources of federal information. These resources are yours without charge for the taking. When faced with developing criminal records of witnesses, etc, you should read the material contained in Information Sources in the Criminal Justice System. There are several excellent web sites without substantive content but with an exhaustive number of to investigative criminal law resources that do contain substantive discussion and explanations. Two decent non-substantive sources are CrimeLynx and Flax's Links, the latter not current. If you are in a rush, check the CCJA Links Page for some terrific investigative resources that are not repeated in this discussion of investigation of criminal cases and CCJA Crimes and Defenses Links. One overlooked resource is WayBack Machine, a site that allows you to browse an archive of 30 billion web pages. Knowing the Opposition, the Judge, the Courtroom Layout, and the Local Rules: Check out the opposition, e,g, defense lawyers may be listed in Martindale or Findlaw, and may have their own web sites, federal prosecution offices and state prosecutor's offices have web sites. You can find out about particular judges by consulting a local bench book. For example, look up your federal judge in the Federal Judges Biographical Database; for a fee, you can buy the Almanac of Federal Judiciary; the local bar association (1) in my own county, Harris County, Texas, sells a bench book covering all of the local counties and providing information straight from all the judges on motion and order procedures, pretrial and trial procedures, use of demonstrative evidence, trial settings, court appointments, continuances, contact information, pet peeves, etc. Check with your local bar association to see if there is a local bench book for your venue. Look in your local law library. Here's a helpful directory of courts. Familiarize yourself with unfamiliar courtrooms, and find out about the particular court and the published rules of that court. Local rules are a matter that demand your attention. For example, you maybe required to seek consent on certain matters before seeking a court order by motion. If you are a defender, determine whether the local prosecutor has published written standards for the prosecution of cases. See, for example, the 34 page set of standards published by the local prosecutor in Port Orchard, WA. [This office's "cards on the table" approach merits emulation by prosecutors and admiration by defenders across the nation.] Such standards provide a frame of reference for pretrial negotiations between the parties. Investigative Resources On the Internet: You'll find numerous investigative resources on the Internet. The feds publish Crime Scene Investigation: A Guide for Law Enforcement. Here are several good resource pages, Virtual Gumshoe , Public Records Sources, and Search Systems that will provide you with a guide to a world of different information, e.g., alumni associations, cemeteries, criminal histories, UCC listings, departments of corrections, area and zip codes, government records, hunting and fishing licenses, maps, locators, military records, medical databases, motor vehicle records, property records, state licensing records, parole records, bureaus of vital statistics, locators, etc. Here's another site with good investigative links. This one conducts low-cost information searches on the web. Here's another fee-based outfit that may be of use in uncovering background (1) and historical information, relatives, associates, corporate affiliations, bankruptcies, and criminal and civil court records. These guys tell you something about how investigators do their jobs, plus they'll sell you stuff for your detective kit and provide you with their list of "forensic experts." This PBS site discusses various investigative techniques, e.g., ballistics, DNA, document examination, forensic anthropology, geological examination, property search, timber dating, weapon dating, etc. This site discusses crime scene investigation. Here's a descriptive list of the electronic databases available to investigators. Defenders searching for relevant information should review the public information web resources favored or used by law enforcement investigators in the locale, e.g., (1), (2), (3), (4), (5), (6), (7), (8), (9). Tips from Experienced Private Investigators: If you are a private defender (Public defenders and prosecutors have paid investigators on their staffs.) trying to investigate your own cases on a shoestring budget, go to some of the private investigators' web sites (1), (2) for some basic tips about how to conduct an investigation and how to conduct free searches for information.. Of course, for clients with a fat wallet, there are a number of private investigators whose services are for hire, e.g., (1), (2), (3), (4), (5), (6), (7), (8), (9), (10), (11), (12), (13). Check their web sites out for how-to-do-it information, even if you can't afford to hire a P.I. [Tip: Find out if there is an association of private investigators in your state. If so, contact it, find out whether it has a listserve that you can join, and join. You can often obtain useful investigative advice from the PI listserve.] Military Records: Do you need your client's military records? When you need to obtain servicemen's records, you don't do it through the V.A. (which doesn't retain such records). Go to the National Personnel Records Center. The NPRC is part of the National Archives and Records Administration. You will need to complete Form 180 and send it to the NPRC by U.S. mail. Help in completing the required form is available at this site for military veterans and the next of kin, i.e., father, mother, son, daughter, sister,brother, or unremarried spouse, of deceased former members of the military. [Note: Obtaining such records is a lengthy process that may involve several months from the date of your request.] Such information may be useful in demonstrating mental problems, military decorations, etc., and may be a source of names of potential character witnesses. If you want to search the database of 20 million files of military personnel, this site bears investigation; it requires registration (free) but does not require that registrants be military. What Makes Things Tick?: Sometimes, to understand your case and tell the story you need to learn how a thing or process works. When your case involves a factual issue about the way something works or what it is or how it influences other things, etc, you can start your inquiry with How Stuff Works. Occasionally, you may need to know How Things Are Made. (This site is a good example of show-and-tell.) When faced with the necessity of understanding scientific phenomena such as weather, fire, smoke, the human body, energy, etc., try the New Scientist. Use the Google search box to get answers by typing in a declarative statement in quotes without a ? mark. Google looks for pages with the exact phrase. Freedom of Information: Make use of the federal Freedom of Information Act (FOIA). When you think you might need to make a request for information under the federal Freedom of Information Act, you may go to the journalist/reporter's site that contains the letter forms you need along with all of the federal government agencies that you may wish to petition for the information. Here are other useful FOIA sites (1), (2 Guide -2), (3), (4), (5), (6), (7 - DC public defender's analysis of the FOIA and DC law). This law firm has a terrific set of FOIA links. [This independent site run out of Syracuse University is great for keeping track of what federal law enforcement agencies are up to.] [Texas Lawyers: The Texas Public Information Act is located in Chapter 552 of the Texas Govt. Code; Section 552.108 deals with requests for "Certain Law Enforcement and Prosecutorial Information." Your request must be made to the governmental body having custody of the desired record. The determination of whether a governmental body is required to provide the requested information made by the Office of Texas Attorney General] Useful Sites for Information: Here are a handful of subjects that can crop up during the investigation of a criminal case along with some relevant Internet web sites that can provide specific information on the subjects to help you flesh out your inquiry: Also, check CCJA Links and CCJA Criminal Law Websites.
- Climatology: If you need historical information about climate on some past date, this climatology and meteorology site is useful. The U.S. Naval Observatory has information about sun and moon rise.(1 - single day sunrise/sunset), (2)
- Weather: This site has hour-by-hour free information regarding weather conditions in an area. For certified weather condition history contact the National Climatic Data Center. Meteorologists (1).
- Maps and Distances: If you need maps, try these sites (1), (2), (3). Many other map sites are listed on these links (1), (2). Get maps and driving directions by punching in any street address to the Google search box. Distances between cities (1), (2)
- Aerial Photos: (1 - Google's terrific map/aerial site), (2 - Microsoft's equally good map/aerial site), (3), (4)
- Measurements: Information regarding measurements is available at this site (1).
- Conversion: This site (1) helps you convert weight, mass, volume, speed, temperature, length, distance; try this site (1) for common equivalent weights and measures and this one (1) for math.
- Broadcast News Footage: If you need footage of news broadcasts concerning your case, try these sites (1), (2).
- Translators (Interpreters): If you need the services of a translator (interpreter), these sites (1), (2) may be helpful. Some of the translator sites also provide free online translation of a +- 150 words (1), (2), (3), (4), (5 -Google). Here are a few online foreign language dictionaries (1), (2), (3 - Spanish), (4 - Spanish).
- Public Records: (1), (2), (3 - Public Data; $25 a year allows you 250 queries, e.g., name and address from license plate, etc.)
- Sex Offender Registries: Try these sites (1), (2), (3).
- Criminal Records: Investigate them at these sites (1), (2), (3), (4).
- People: Here are several sites that are helpful in locating people (1), (2), (3), (4), (5), (6), (8), (9), (10), (11), (12), (13), (14), (15), (16 - Biographies). You'll find more on the Links page.
- Neighborhood Demographics: (1)
- Where Jurors and/or Witnesses Live & Scene Info - Estimated Value, Aerial Satellite Shot, Square Footage, Number of Baths and Bedrooms in Single-Family Residences: (1 - You'll need the address and zip code; estimated values are supposed to have a 7-8% median error; this web site tracks +48 million of the total 85 million single-family residences.)
- Reverse Phone Look-Up: (1), (2) (Links). [Note: For traditional numbers enter the name and address of the person or business into Google's search box.]
- Addresses & ZIP Code: (1), (2 - lots more local info than just ZIPS).
- Medical Expert Witnesses: As to medical experts, check out doctor witnesses at these sites (1), (2), (3 fee). For step-by-step suggestions to check up on a medical expert click here.
- Licensed Occupations: Here is a site (1) providing information about licensed occupations in the various states.
- World Facts: (1), (2), (3).
- Encyclopedia: (1), (2), (3).
Checking out the Prosecution's (Federal) Practice Guide: If you are defending a federal case, always check the United States Attorney's Manual. This +2000 page set is the DOJ's guide for its prosecutors. The NACDL sells it for $400 or you can download it for free. I suggest that every lawyer handling a federal criminal case download the relevant section of the Title 9, known as the the Criminal Resource Manual. See Resources below. Be sure to also review the U.S. Attorneys Bulletins in the FOIA Reading Room. Local prosecutors in major metropolitan districts often have written rules governing the exercise of prosecutorial discretion. This declaration of uniform policy is typically considered public information subject to disclosure. Familiarize yourself with it. Tracking the News: Track the news about your case of matters of interest by using the new Google Advanced News Search to retrieve news articles from more than 4500 news outlets publishing on the Web. You can use several parameters, e.g., date. locations, exact phrases, or publication, to scour the Web for relevant news articles. Altavista and NewsNow also provide news search ability. If you are looking for news about a case, you may find it at Find Articles. You can also customize your news by picking your topics on some rich news sites (1). It is possible with the Rich Site Summary (RSS) XML format to get headline news, summaries, and source links on specific topics, e.g. your high profile case, by connecting to a news feed (1); you need to download an RSS newsreader (aggregator) such as NewzCrawler (PC), Headline Viewer (PC), Radio Userland (PC or Mac), Net News Wire (Mac) or AmphetaDesk (PC or Mac). FeedDemon (fee) is said to be good. Two law oriented aggregators are My Detod and Daily Whirl. Once you have the reader, you simply click on the link on the news feed site that says "XML" to get news on your requested topic. Here are better explanations (1), (2) of news tracking (This feature is very popular in the blogging community.). If you are interested in tracking changes to a particular web site, that can also be done (1), (2).
Ceasing Investigation: When do you stop investigating? If inconsistencies or ambiguities in the gathered information develop, further investigation may be warranted. But at some point, active investigation must cease. You will decide, often using a cost benefit calculus, when to stop investigating. When you do stop investigating, you will be proceeding to trial with the information you have collected. The next step will be to organize, interpret, strategize, plan, and prepare, using the information gathered through informal and formal discovery and investigation.
Analyzing and Interpreting Information - Generating a Supportable Story of the Case
Somewhere in the gathered information are the building blocks that will form the story of your case and support your theory of the case (See below for case theory). As the architect of your case, you build that story from what information reveals and what it doesn't reveal. Your story must have a strong factual base founded on provable facts. A workable story must also have a strong rational foundation. In sum, it's got to hold water, i.e., it must make sense.
How do you analyze and evaluate the information that you have gathered? You will have to identify information that is inconsistent with other information. You will determine the facts that are truly in dispute. You will also have to develop the skill of recognizing factual information that that is beyond dispute and learn to visualizing the differing conclusions that can be drawn from facts that are beyond dispute. One can put different spins on the same facts, depending on the premise. For example, if the facts show that the perpetrator of a robbery threatened the victim with a handgun, the prosecutor's premise may be that the victim's fear heightened her awareness and ,thus, made the subsequent eyewitness identification more reliable. The defense premise from the same facts may be that the victim's fear for her safety blocked or dulled her perception and made the subsequent eyewitness identification less reliable. The point is that we must explore the various logical inferences that can be drawn from facts that are beyond dispute.
Brainstorming and Thinking Outside the Box with a Team Approach
What is brainstorming? Maybe it's best described as free thinking. They say that there's always a better way to do things, if only we can find it. But new ideas are always delicate things. They can die in the draft of a doubtful sigh or an off-hand comment. The theory underpinning brainstorming is that we may find an easier way to solve a seemingly difficult problem if we uncritically open our minds and think about the situation in different and imaginative ways. We brainstorm because we accept the possibility that if we've always done it that way, "that way" may be wrong. To brainstorm effectively one must be willing to raise new possibilities and look at old problems from new and untraditional angles. For example, with opening statement and argument, the brainstormer might ask, "What could I conceivably say?" Concerning substantive proof, one might ask, "What evidence could I conceivably introduce?" In each instance and before making any judgment, the brainstormer would list all the possibilities, good and bad.
Brainstorming is also based on the theory that, when examining a problem. two heads are usually better than one. A team approach to planning, investigating, and preparing a case is usually better than the solo method. If you have to brainstorm by yourself, so be it. But there is synergy in brainstorming your case with colleagues. The old saying "Too many cooks spoil the broth" doesn't apply when you are brainstorming. No single person in your circle of advocate friends is as smart as the group as a whole. The whole point is that you get a superior result with combined input and suggestion. We have only to look at the pretrial process to see this principle in practice. Teamwork is indigenous to the investigative and litigative process. Detectives and crime scene investigators typically work with a partner. Prosecutors and public defenders assigned to a particular court or division, e.g., organized crime, family violence, usually office together. They constantly talk about their cases and engage in "skull sessions" with their office mates, planning and preparing their cases. Prosecutors and P.D.s typically try important cases in teams, with one lawyer sitting "first chair" and the other "riding shotgun." When a trial judge appoints defense lawyers to represent an indigent in a very serious case, two or more lawyers may be appointed.
If you are a private defender working with a partner or associates, you can bounce your case off of them. Solo criminal defense practitioners should try to develop a trusting relationship with a colleague(s) or a mentor who can be used as a sounding board for ideas. If you are a solo practitioner and can find someone, particularly a more experienced defender, with whom to talk about your case, you may be able to avoid some major mistakes. [Never discount experience.You may not be able to teach an old dog new tricks, but an old dog can often teach you some old tricks.]
If you have to brainstorm on your own, one of the best places to do it is while commuting to work. In this day, many city defenders have at least a 30 minute commute. Use the travel time to think about how you are going to try your case. Use voice to text software package to covert a copy of your written investigation into voice form on a CD and listen to it on an MP3 player during the commute. You can do the same with other written material, such as your planned voir dire ,opening statement, cross, argument, etc.
So, what is the procedure for a brainstorming session? First, you gather your brainstorming group. It is best if everyone is familiar with the case. Second, put a time limit on the session. Third, you, as the prompter-facilitator, open the session by asking the group, "What is this case about?" Start a written list of the responses. Put every response on a separate piece of paper, preferably a Post-It note. Keep the notes to the side, and don't try to organize them or make them consistent. The Post-It notes are good because they allow you to organize the responses at the very end of the session. When you have gathered all the answers to your first question, pose other questions seeking reactions, facts, ideas, relevant examples and stories, etc. When the session is complete, take the stack of notes and organize them into broad categories. Then, prune the contents of each category for the thoughts that make sense in terms of consistency, continuity, clarity, and credibility.
Note that CaseSoft has several brief articles on trial preparation, one of which discusses brainstorming your case. See also Creating Minds.
Developing Your Case Theory
The theory (thesis) of your case is the answer you would give to someone in an elevator who asks you, "Do you have a good case?" Your answer should be no more than a short paragraph explaining what your case is about and why you should win it. If your oral elevator speech is less than a minute and has consistency, continuity, clarity, and credibility, you've got your case theory. If you can explain it in 25 words or less it's probably a splendid theory. [Note: Theory of the case differs from theme of the case. See below. (1)]
Sound simple? Your nutshell version of what you claim happened needs to be simple, but distilling the case to this level will cost you some sweat, shoe leather, and skull sessions.
For the defender thinking about a defensive theory the cardinal rule is: Bad excuses are worse than none at all. When you rely on a lame excuse or justification for your client's crime, you make the crime seem even worse in the eyes of jurors. Most of us had a survey criminal law course in our first year of law school where we learned a bit about the various common law defenses to crime. The training is always superficial. Once in practice, we must revisit the law and study our state's crimes and defense with much greater intensity.
Finding a Unifying Theme That Summarizes Your Defensive Theory
Your case theme is the catchy headline, phrase, or short sentence that connects your various proofs to each other and to the jury (1), (2). It's You can look for themes in a lot of places, e.g., advertising slogans (1), proverbs, quotations (1), (2), (3) common phrases (1), poetry (1), (2), (3) stories (1), speeches (1), sermons (1), etc. See the Opening Statement and Delivery of Jury Argument pages for extended discussions of resources for developing case themes that you can present in opening, interweave into the facts and emphasize in closing. See also the syllabus for my law school course "Opening and Closing" for a couple of hundred useful hyperlinks to developing and selling your case theme. In choosing a gripping case theme, consider the theme the other side may come up with. How will the other side complete this sentence: "This case is about (The opposition's theme goes here.)" For example, prosecutors in a case of alleged child abuse by a neighbor case might denote their case: "The sex offender next door." In a white-collar fraud case, the governments theme might be: "The slippery slope from ambition to greed to dishonesty." One of the themes of the defense in the O.J. Simpson murder trial was that once the prosecution's scientific evidence reached the "black hole" of the LAPD crime lab it was forevermore "contaminated, compromised, and corrupted."
Integrating Storytelling Techniques Into the Roadmap of Your Case
The old pond -
A frog jumps in.
The frog does not drink up the pond in which he lives.
In the courtroom, the lawyer who presents the best story usually rules. See Deciders Perceive Whole Stories. A story is a recounting of past events. To be an effective trial lawyer, you must learn to be a storyteller. The oral tradition of American trials where witnesses recreate true life events with testimony keeps the value of old-fashioned storytelling alive. Trials are primarily narrative stories, that are presented by lawyers seeking to evoke in he jurors both a belief and the will to act on that belief. The trial story is the principal vehicle by which the courtroom lawyer seeks to influence the juror's mind. Other things , e.g., the lawyer's appearance, the witness' character, may sway the ultimate decision , but the presentation of case story is the key to success. The degree to which a juror's mind is influenced depends on the scope and content of the trial story and how it is told. A good trial story must be a shared experience between the storyteller and the listening jurors. If the trial story is not about the jurors, if it doesn't involve them and make them part of the moment, they won't listen. They'll tune it out and sit in the jury box making up their own stories, i.e., daydreaming. Gripping trial stories are about facts and inferences, but they are also about matters close to the heart. Lawyers don't win jury trials simply by cold analytical logic. The jurors minds must be won over by your facts but their hearts are captivated by the impact of emotion that flow from the story.
Before you can become an accomplished storyteller, you must become a proficient story organizer? Criminal trials typically involve at least two stories of the case, one consistent with proof of guilt, e.g., "convenience store hijacker binds, gags, and shoots two bound witnesses execution-style," and the other inconsistent with proof of guilt, e.g., "wife shoots drunken, abusive, knife-wielding husband in self-defense." When the defense is unable to find an affirmative story, circumstances may limit the defense to muddling the middle of the prosecution's story in an effort to create reasonable doubt of its verity.
In a single trial, there are often multiple, interlocking mini-stories each focusing on different time, place and space, but comprising the "big picture." The way you organize and tell the story of your case may not always determine the verdict. It will always have an influence on the outcome. Every story has plot, place, and characters. Not only must the story of your case be well told with a plot, setting, background, conflict between a protagonist (hero) and an antagonist (villain), a victim, interesting characters, obstacles, goals, mood, and a proposed final resolution - it must be told in a manner that moves the jurors. If you can learn to tell a good story, you will turn the jurors' ears into eyes.
So, how do you convince the jurors that to accept your story is better than the opposition's. How do you put yourself in the position to remind the jury in final argument: "Here's why our story of the case - our evidence and our witnesses are better than theirs"? Start developing the story of your case by determining the premise upon which it will be based. You'll need to understand the cast of characters. You'll need to identify and develop the drama of your story. The dramatic parts of the story are the parts that aren't dull, the parts that have action and in their way are entertaining. Your trial story also has to be about human relationships. Where is the conflict? How is the conflict resolved? You will need to visualize and construct in storybook form each of the key scenes or mental images that will be presented by evidence. The key scenes are the ones you want the jurors to accept as gospel fact and carry with them into the deliberation room.
There is a methodology to storytelling. Stories need order. If you tell you story in snippets, the snippets must be connected to the whole. Generally you tell your story in a linear manner, from start to finish. Think about a tray-based slide show in which the slides and accompanying narrative are arranged haphazardly. The story doesn't appear. A linear story flows better because its the way things happen in real life. A story may be linear and yet somewhat confusing to the ear when there are digressions and disruptions of the storyline, e.g., where the storyteller editorializes with asides or flashbacks. [Here's an example of a linear audio-visual story with lots of disruptions ands digressions that loop back into the narrative. It's interesting, but would be hard to follow if it were entirely aural, i.e. sans photos.] Non-linear storytelling in a courtroom is risky - the facts tend to meander and unfold in chaotic order. Sometimes a story on the big screen, e.g., Memento, will begin at the end and move backwards or will begin in the middle and move sideways, e.g. Pulp Fiction, Cold Mountain, Kill Bill, The Usual Suspects, and 21 Grams. [The strategy of beginning your story in the middle is called in medias res (1)] Some movies, e.g., the classic Lawrence of Arabia, even begin and end at the end, e.g., Lawrence's death in a motorcycle accident. On the other hand, a movie may not only be linear but presented in real time, e.g., In the Nick of Time where the protagonist must kill the Governor or his daughter will be killed and the German Run Lola Run where a young woman named Lola must replace her boyfriend's lost drug money or he'll he killed. Non-linear storytelling can be effective on the big screen, but it won't work well in court, even with electronics. Flashbacks are also easier in film because they can combine sound, picture, and written notice, e.g., "Four years earlier." Authors may get away with flashbacks in novels, though some experts, e.g., Stephen King in his On Writing, think they are corny. As a courtroom storyteller, you don't want your jurors to labor to understand what is going on. Why? Because you risk losing their attention during the important parts. The fact that things may finally become clear at the end is no solution if your jurors tuned out in the middle of what appeared to be an incomprehensible story. The story of the particular case on trial is not the only story that will emerge in the courtroom. Every competent prosecutor and defender will have a bundle of good demonstrative stories. These are oral accounts of a real or fictitious occurrence that help make a point. Often they are told in jury argument. The anecdotal stories are separate and apart from the factual story of the particular case. Anecdotal stories help the advocate substantiate key points and/or endorse certain human values. As your trial lawyering skills grow, you'll learn, for example, how to turn personal experiences into stories that make a point; you'll also learn how to adopt and adapt parables, legends, literature, metaphors, current events, etc., into brief stories that illustrate your point. Start yourself a "story bank" of concise stories, no more than a minute or two in length, that can be used to illustrate and illuminate key points that recur in criminal cases. Chose the words carefully. Practice telling them over and over. Keep the stories that fit comfortably in your repertoire.
A properly prepared and presented trial story will involve characters who are animated by emotion. The story will also seek to generate crucial emotional feelings in the jurors. There are many emotions that can flow from your story and its characters. These include: anger, admiration, annoyance, anxiety, apathy, concern, confusion, contentment, curiosity, desire, despair, excitement, fear, forgiveness, fury, gratitude, grief, guilt, happiness, hate, hope, hostility, jealousy, love, passion, pleasure, thrill, revenge, sadness, shame, surprise, suspicion, sympathy, worry, etc. To plumb and evoke an emotion or feeling, you must develop its specific fact based aspects. Don't just ask the witness if a particular character entertained a particular emotional feeling, e.g., "Did the defendant hate the alleged victim?" Present specific facts showing the jurors that the character entertained the emotion. Some times you may want to use direct and cross to explore the facts that reflect the emotion without asking the witness to label the emotion. Let the jurors rely on the facts to draw the conclusion that a character had a particular emotion. Don't ask the jurors to admire or dislike a character in the story. Give them specific factual reasons for the desired feeling. As you might imagine, prosecution stories are often about the accused's wickedness and the victim's loss. Such stories may engender emotions such as anger, empathy, grief, hate, sorrow, vengeance, etc.
Aside from factual proof, other influences that affect the palatability of your case story emerge during a trial. These influences include the courtroom behavior of all the witnesses, the accused, and the lawyers, and, very importantly, the fundamental attitudinal mindsets of the jurors themselves.
The same story may influence people differently. Why? Because society is a mixed salad. As a result of informal and formal acquisition of knowledge in a multi-cultural world, every adult among us has developed fundamental individual views about how the world works. These personal beliefs are relatively fixed, moreso as we age and to the extent that we feel emotionally attached to them. From time to time, we may revisit our beliefs and readjust them. But the process of changing the way we we think is a slow one, hardly likely to change during a trial. So, for any trial lawyer to believe that s/he can change entrenched beliefs of a heterogeneous group of jurors during a brief three or four day trial is ludicrous.
On the other hand, some stories evoke similar logical and emotional responses in most of us. We may all laugh at the same juncture during a comedy, just as we all may simultaneously fight back tears or dab at our eyes during a "tear jerker." There are some shared values and common motivators that unify and move almost all of us. For example, most of us don't cotton to betrayal, cowardice, dishonesty, treachery, etc. On the other hand, we may value charity, dignity, fairness, faith, friendship, forgiveness, humility, etc. If you want to rely on emotion, you typically find it in the story not in the jurors. Jurors react to the story, the story doesn't react to the jurors. The message for lawyers is this - form, tell, and argue your trial story around one or more values shared by the jurors and that story will influence and persuade them to action.
Here are some web-based storytelling resources: (1) You can learn a lot about telling a story by reading a bunch of them. Unfortunately, most criminal defense lawyers don't have time to delve deeply into literature. If you are time-pressed , here's an idea for you. Read the modern day equivalent of Cliff Notes on the Internet. You'll find some dandy summaries of great stories on web sites (1), (2), (3), (4), (5), (6), (7) designed for college students who are too busy having fun to study. You will also find sites devoted to summary, breakdown, and analysis of drama (theater) (1) and poetry (1), (2).These sites are written by very smart people who are experts in story analysis for an audience of slovenly undergrad students who want to be fed from the breast and are willing to pay for it. The great thing about the sites is that the story analysis is there for free as a teaser for the students. The constituent parts of some of the best stories of all time are sorted out into plot, characters, setting, theme(s), conflict, mood, and background; then the story is summarized (as lawyers might do in opening and closing) and analyzed (as lawyers might do in closing). If you are an aural learner and want to understand what makes a gripping story, try listening to old-time radio programs (1). If you want to work on shaping up your storytelling voice, try reading the poetry script along with Garrison Keillor from the archives from PBS's daily Writer's Almanac. Always remeber that in every instance where a good story is presented, the audience, jurors in your case, must be able to see the forest despite all the trees, i.e., there is a unifying theory that makes sense of all the constituent elements. Some trial stories are difficult to tell. Some are difficult to hear. Yet, they must be told. TV, movies, and videos have conditioned jurors to expect a visual element in stories. Trial lawyers meet that expectancy by supporting their trial stories with rich visuals. Electronic technology allows us to make visuals even more stirring and appealing to modern day jurors.
Pretrial Readiness to Be A Trial Advocate
It almost goes without saying that you must have a handle on the substantive law of crimes, criminal procedure, and the rules of evidence when you enter the trial court to litigate a criminal case, whether from the prosecution or defense table. You must be able to perform the tasks of the trial advocate, e.g., engage in motion practice, participate in jury voir dire, open your case, conduct a direct examination of your witnesses, establish necessary foundations (predicates) for introduction of your evidence, make and respond to objections and offers of proof, cross-examine opposition witnesses, deal with expert testimony, and argue your case. In short, your trial advocacy skills must be up to snuff when you enter the courtroom. How do you hone your courtroom skills without being in the courtroom? After all, you learn it by doing it, practicing on your clients, making lots of mistakes in your early days and, hopefully, learning from them, as you go along. Can you get ready to be a trial advocate before the trial begins?
- Keep up with developments in the field of trial tactics, jury deselection, opening, direct, cross, expert testimony , objections, courtroom technology, exhibits, identification, motions, and criminal evidence (1 - links) and criminal procedure (1).
- Your demeanor is vital to courtroom success. What you do and say and how you do it can turn jurors and judges off or on. Try to get it right.
- Plan your mode of dress for each day of trial. Give thought to your wardrobe and its influence on the way the the jury will perceive you and your case story.
- Think about how you will present the story in opening and closing, e.g., gestures, nuances, accents. This requires practice as well as planning (1), (2).
Legal Research - Law on the Internet (1) To do your job in the courtroom, you must be prepared. To be prepared you must know how to identify relevant legal issues, analyze them, and posit answers to them. Boiled down, you must know how to perform legal research and legal writing (1), (2), (3), (4). To perform these two skills, you must have access to legal materials. The following material is designed to help the new criminal lawyer without substantial financial resources traverse the minefield of accessing information on the Internet. Tip: If you do legal and factual research on the Internet, be sure to obtain high speed Internet access connections, e.g., DSL. Dial-ups are way too slow for web-based research work. Sites Where You Have to Pay for Research Access: Eventually trial lawyers have to read statutes and cases. You can buy the books and/or access the material by computer. Because they are free to law students, we are taught in law school to depend on the fee-based legal research giants like Westlaw (my personal favorite - 1800WESTLAW) and Lexis (180045LEXIS). There is also fee-based Loislaw and the new, much less expensive Versuslaw. To its credit, Lexisone does offer a legal guide giving you free access to state resources for research ; it also provides limited free access to USSC cases from 1790 and to state cases from 1998. Also, the Lexis Daily Opinion Service provides a free cite list and summary of recent cases (full text for a fee). When you've accumulated some big bucks after several years of practicing on a shoestring, you can think about signing up for service with one of the big research giants. But in the nascent years,the new defender should look for freebies. Free On-line Research Sources: For the new solo criminal defense practitioner, the tab for monthly access to one of the big research giants may be financially prohibitive. Don't fret. There's already an enormous amount of free research access and useful information out there (1), (2). See the CCJA Links page. I predict that more and more not-for-profit organizations with altruistic motives are going to make their work product available to struggling young lawyers without extracting a hefty membership fee. For a start, here's a site with 1400 sources for state and federal court rules, forms, and dockets. I like the Washburn University Web SIte for its comprehensive links to a variety of subjects, including legal research. Here are a couple of federal research guides (1), (2). The Library of Congress provides you with a free Guide to Online Research. Substantive criminal law , procedure, and evidence law will have a major impact on on the result you will achieve at trial. There are numerous on-line legal research sources (1), (2), (3). You can make a free copy of relevant local rules FedCt, statutes (1), (2), (3), (4), Federal Register, CFR, USC, ruling case law, USSC, USSC Briefs, USSC Research Resources, Cases Pending on Docket of USSC, Fed. Cir Ct., Fed. Dist Ct., states, codes, Texas Register, Texas Legislative Research Library, key rules of evidence, and relevant procedure for each phase of the pretrial and trial process. Scan or place them in a notebook titled " Statutes and Cases." The rules of evidence are the coin of the realm in the courtroom.. Study the cases and rules and learn how to apply them in structuring your case, limiting the opposition's case, and making and meeting objections. Here's a partial list of links to state court legal opinions: Alabama, Alaska: (AK Supreme Court) (AK Lower Courts), Arkansas, California (1), Colorado, Connecticut, Delaware, Florida, Georgia, Idaho, Illinois, Indiana, Iowa, Hawaii, Kansas: (KS Lower Courts1) (KS Supreme Court), Kentucky, Louisiana, Maine, Maryland, Massachusetts, Michigan, Minnesota, Mississippi, Missouri, Montana (closed to public), Nebraska (Alt.), Nevada, New Hampshire, New Jersey, New Mexico, New York (Alt.), North Carolina, North Dakota, Ohio, Oklahoma: Supreme Court; Court Criminal Appeals; Oregon, Pennsylvania, Rhode Island, South Carolina, South Dakota (See "Opinions"), Tennessee, Texas: (Supreme Court), (Court of Criminal Appeals), (Court of Appeals), Utah, Vermont, Virginia (Alt.), Washington, West Virginia, Wisconsin, Wyoming. Reference Desk is a delightful site for a home page, and it contains an incredible number of at-your-fingertips links to useful factual sources. Search the web for law reviews and journals and check the CCJA Criminal Law Scholarship page for recent articles on crimes and defenses. For the closest thing the The Bluebook for citation guidelines, check Cornell's citation page. If you try drug cases, try this. If you try death penalty cases, subscribe to the Capital Defense Weekly, an email newsletter with the cutting-edge information. [Texas Note: Texas criminal lawyers can obtain free Case Mail email notification regarding criminal cases they have chosen to follow, as well as Opinion Tracking service that notifies them when any appellate court releases an opinion in a specified case of interest, simply by going to this Texas Court of Criminal Appeals site, scrolling to the bottom of the page and signing up as a new user.] For useful reading, here's an excellent free pdf downloadable 191 page manual written by a judge and dealing with many of the recurrent evidentiary problems in criminal cases. If your case involves drug control or money laundering, you may find this collection of the foreign criminal laws of 153 countries helpful. Even Google has a search for scholarly papers page. Here is the Bill of Rights with other historical documents. Use these sites as guides to legal research on the Internet (1), (2), (3). When you start writing legal briefs and memoranda, check this style source for some excellent guidance with your legal writing (1). These are good sources for guidance re citation (1), (2). The federal and state courts [The URL for state court systems is: http://:www.courts.state. __.us (Add the small case two-letter abbreviation of the state,e.g., tx , in the blank space), e.g., http://www.courts.state.tx.us] are available on line. Regarding written legal communications of all sorts, there are a slough of web sites guiding you to the use of proper grammar, punctuation, style, and citation on the CCJA Law Office Management page. [Personal Prediction: There are thousands of brilliant law professors living comfortable lives studying the intricacies of the law in the stress-free tenured environs of university law schools. Many write casebooks and treatises for royalty money provided by the big legal publishing houses. Sooner or later, some of these very knowledgeable folks are going to provide a service to the Bar by dispensing free practice-useful information to practitioners. How will they do it? Not through the traditional student-edited law reviews and journals. They'll do it on the blogs (weblogs search) that most now use mainly for telling us how interesting they are and for personal discourse on current events with a legal flavor. Blogs, as you may know, are low cost personal web sites built with a special type of software that displays content as postings in reverse chronological order. People who don't want to take the time to go to a blog can subscribe and, through a "newsreader," can receive new contents of the blog as it is added. Notice the trend toward law-oriented blogs, often called "blawgs" for "legal weblogs," written by some of the nation's outstanding law professors, e.g., (1), (2), (3), (4), (5), (6), (7), (8), (9), (10), (11). I trust that many of the blawgs will begin to eschew the "all attitude - all opinion - no information" approach. Already, you'll find some that provide links to practical information, e.g., sentencing, paternity testing, infirmities of the polygraph, etc., on a few of these sites. I believe more will come. A few brave judges have even cited blawgs as secondary authority. A terrific example is this site which is a compendium of numerous web blawgs covering activity in the various federal districts. In addition, a substantial number of established practicing lawyers are committing time and effort to establishing useful blawgs, e.g., (1), (2), (3), (4). To get a taste of blawgs try this site which gathers headlines from a number of prominent blawg.]
Trial judges are taught early on not to be creative in drafting jury instructions. Instead, they rely on what are called uniform (pattern, model) jury instructions. The pattern instructions are often prepared by the state bar association or a statewide committee of judges. See for example the 2571 pages of California Jury Instructions in Criminal Cases published by the Judicial Council of California. Jurors are not required to know anything about the written law when they are empanelled. They receive the law from the court at the end of the case and apply that law to the facts as they find them to be. Consequently, the operative instructions are of great significance. Creating an Instruction Folder: Early on in your preparation, create a section in your pretrial notebook and title it "Jury Instructions." Gather together the jury instructions that you anticipate will be given in the case. This includes the definitions of the substantive and inchoate crimes and the defenses you may be relied upon. Include the customary admonitions that are given concerning the failure to testify, the burden of proof, reasonable doubt, the presumption of innocence, etc. Put a copy of these instructions in your pretrial and trial notebooks. Because they include all the applicable elements of the alleged crime(s) and potential defenses, you can use them as a guide in investigating, planning, and presenting your case. Every jurisdiction will have a set of pattern jury charges for use in criminal cases. Make yourself a copy from the local law library or buy the books or CDS. If you have a CD, copy it to the hard drive of your computer and keep the CD as a backup. Most courts have a database of standard instructions. Often the court reporter or court coordinator will be in charge of assembling the court's charge. You can sometimes obtain copies of standard instructions from those court personnel. Some jurisdictions have standard instructions online. e.g., the First , Fifth, Seventh, Eighth, Ninth (You can download the current version of this outstanding Circuit's Model Criminal Law Instructions in pdf format or WordPerfect.), and EleventhFederal Circuit Courts of Appeal. There are also some commercial sites that will sell you instructions (1), together with some other resources that are free. A number of statewide organizations make free pattern instructions available on line, e.g., (NY), (TX), (NJ). Check your jurisdiction (1). Tip: If you are writing instructions for the court or reviewing the court's instructions, be sure to read the instructions out loud. That's the best way to catch errors. (Aside: Judges who shoot from the lip should also do an out loud rehearsal, particularly if the case is on CourtTV. It's amazing how many judges have to stop and correct their instructions during the jury read.)
Bringing the Instructions Home to the Jurors: If you want the jury to understand certain portions of the instructions, you'll need to make it happen. If the practice of the court is to provide the jury with a set of written instructions, ask the trial judge's permission to give each juror an individual copy of the instructions. This makes each juror independent of the foreperson in determining what the instructions say. Also, if each juror has a copy of the instructions during argument, you can refer the jurors to specific portions of interest as you discuss those paragraphs in argument. Use PowerPoint slides to put call-outs of selected portions of the instructions on a screen or monitor. If you are going to discuss whether certain facts fall within the scope of the instruction, you may want to coordinate those facts into the visual of the instruction.
Learning How to Speak Directly to the Jurors: In presenting jury speeches, what do you say (intention), what order do you say it in (sequence), how do you remember what to say (memory), how do you say it well (delivery style), and how do you you use non-verbal communicators to enhance your verbals (kinesics)? Your linguistic practices play a big role in how persuasive you are when you are given the opportunity to speak directly to the jurors. You'll need to know how to use figures of speech, e.g., analogies and rhetorical questions that won't backfire. You'll need to know how to construct a hook or grabber to gain the attention of the jurors at the outset of your openings and arguments. You'll need to know how to dovetail facts into the instructions of law and how to argue logical inferences, rather than unsupported conclusions. Rather than spouting law school legalisms like an arrogant popinjay, you'll need to use expressive language that underscores the strongest points of your case and reduces the issues to the level common sense. You'll need to learn to sort out and focus your argument on the issues that are in controversy rather than those that are undisputed and indisputable. You'll need to learn how to tell important parts of your story in the present tense, rather than the past. You'll need to learn how to smoothly make the transition or "change gears" from one topic to another. You'll need to learn how to present and argue credibility issues when they are pertinent.You'll need to know how to repair the weaknesses in your case and confront and neutralize the strengths or your opponent's arguments.
If you want to master the art of getting jurors to do something you want done because the jurors want to do it, constantly try to make yourself a better communicator. Words are the coin of the realm in courtrooms Start a file of impact openings and arguments that you might be able to use in your case. Check this book of over 5000 sample jury arguments in criminal cases. Keep a tape recorder or post-it notepad nearby and jot down your argument brainstorms when they occur. Otherwise, you'll forget 90% of them. Check these sites for lots of ideas about how to prepare openings and arguments, plus some samples, tips, and transcripts. Those who take my law school course - Opening Statements and Jury Argument - will find a plethora of additional information about persuasion through eloquence on my password protected class web site.
Litigation Strategies & Tactics
Creating a Journal Filled with Thoughts to Jolt Your Introspectivity and Furnish Strength to Go Forward into Trial: Much like the 12-step program members who read an inspirational passage at the beginning of the day to bolster their efforts to live a clean and sober life, you may find it useful to collect and read inspirational thoughts as a way of getting yourself properly psyched to carry the torch at trial. It's simple. Just begin a little collection of thoughts that inspire you: I have a whole journal filled with brief insights that I find inspirational, e.g., You are the hammer, not the anvil. / Boldness augments courage, hesitation augments fear. / A confrontational approach is not always best. There is more than one way to skin a cat. / As Napoleon said in discussing war," We often get in quicker by the back door than the front." / Divide the fire and you can put it out easier. Within the bounds of ethics, create numerous barriers for your opponent and few for yourself. Stretch the opposition thin.
Scouting Out the Trial Judge: As mentioned previously, know the judge's practices and habits. In many jurisdictions you will find published benchbooks that provide information, e.g., motion and order practices, pretrial and trial procedures, use of demonstrative evidence, trial settings, court appointments, continuances, contact information, etc, and detail describe the likes and dislikes of the local judges. It's always good to know the "pet peeves" of the person who will be refereeing your trial. For dope on federal judges look at the Federal Judges Biographical Database. You can also visit your local law library and consult Aspen's Almanac of Federal Judiciary. As previously mentioned, there may be a local bench book describing the practices of the state court judges in your jurisdiction. If you practice in federal court, take time to download the 254 page free Judge's Benchbook for United States District Judges. It's a toolkit used by many federal judges because it informs them, in a step-by-step manner, how to handle various problems that arise in contested cases. Another helpful source for free downloading is the 191 page Manual on Recurring Problems in Criminal Trials, written by a federal judge. Beware: Some web sites will try to sell you this information, even though its free for the taking. Scouting Out the Opponent: Know the opponent's practices and habits. In many metropolitan jurisdictions, the local prosecutor's office will publish a manual of policy and operations that details how the elected prosecutor wants the deputy prosecutors to exercise their prosecutorial discretion. If you practice in federal courts you will want to access and perhaps download the free United States Attorney's Manual. See Additional Pretrial Resources below. Scouting Out the Opposing Experts: Know the opposition's experts. Many crime labs have protocols of standard procedure for testing. Secure and read them. If you practice in federal court and have a case involving expert testimony, you will want to refer to the free FBI Lab Handbook. It's free, current (2003), and packed with valuable information about many forms of scientific evidence. Coordinate with Co-Defendant's Counsel in Multi-Defendant Case: (1 - 27 pages re representing a client in a multi-defendant conspiracy case), (2, 3 , 4 - joint defense agreements) Strategize: Read as much as you can about trial strategy. There are numerous basic rules, e.g., don't call the defendant as a witness in his own behalf if you are ahead when the prosecution rests, and lots of sophisticated musings in the voluminous advocacy literature available to you. A lot of trial practice is played in a six-inch courtroom, the forum between your ears. If you want some suggestions for free readings in your local law library, look at the CCJA Bibliography. Sometimes you will find good strategies in unlikely places. For example, the thirteen chapters of The Art of War (1) (2), (3), (4) by the great general Sun Tzu contain numerous stratagems for both conquering an enemy and remaining unconquerable in time of war. The general felt that "all warfare is based on deception." Although your courtroom foe is an adversary not an enemy, you may find some of Sun Tsu's suggestions applicable to courtroom battles, e.g., if the opposition is rested, force them to exert themselves; whoever occupies the battleground first and awaits the enemy will be at ease, and whoever must race to the conflict will be fatigued; if they are angry, perturb them; if they are united, cause them to be separated; be deferential to foster their arrogance; determine the enemy's disposition of force and concentrate where they are fragmented; attack where they are unprepared; don't let the enemy know where you will attack him because if your point of attack is not known, the enemy must prepare to defend all his positions; go forth where they will not expect it; although you are capable, display incapability to them; when employing your forces, feign inactivity; when you objective is at hand, make it appear distant; if your enemy is fording a river, let half of it pass to the other side before attacking it; when engaging the enemy on foreign ground, one who does not employ local guides cannot gain advantage of terrain; before engagement, determine whether the majority of factors are in your favor; if you cannot be victorious, assume a defensive posture; know yourself and your enemy - if you know yourself and know your enemy, you will be victorious; if you know yourself and do not know your enemy, you will sometimes be victorious; if you know neither yourself nor your enemy, you will be defeated.
Human memory is fallible. It's not possible to remember everything that you need to do in preparing your case. One solution is to develop and use checklists. Many defense trial practice books contain checklists. You may even find checklists on the Internet. ( 1 - checklist for handling capital cases). Checklists come in handy in a variety of situations, e.g., motions, proof, predicates. Like a pilot before takeoff, you can use your checklists to ensure that you don't overlook important matters. It's not particularly difficult to develop checklists if you are a skilled and seasoned practitioner. If you are a new criminal defense lawyer, you may have to sweat bullets to develop your own first series of checklists. The value of creating case checklists is that if forces you to step back and take a hard look at the way you want to approach your cases. Once you have a checklist ,you can save it, improve it, and use it over and over. Just document the general and specific steps that lead up and into trial, e.g., investigation completed, formal and informal discovery completed, lay and expert witnesses interview and prepared, pretrial motions prepared and presented, trial motions readied, notices filed, voir dire-opening-cross-summation prepared and practiced, file (pretrial and trial notebooks) organized, exhibits prepared and reviewed, exhibit list completed, demonstrative visuals prepared and reviewed, subpoenas issued, witnesses alerted, etc. Within each segment of the trial, e.g., voir dire, opening, direct, cross, experts, exhibits, summation etc., you can prepare standard checklists that can be modified for the particular case. For example, your standard voir dire checklist might include some of the following: introduce parties, reason for voir dire, length of trial, explain defense, acquainted with parties or witnesses, knowledge of case, burden of proof, presumption of innocence, reasonable doubt, personal data of juror (occupation, length, duties, marital status, spouse's occupation, children, civic organizations, previous involvement in criminal cases,etc.) and so on.
Notebooks to Help Manage the Architecture of Your Case - Pretrial and Trial
Using Case Specific Pretrial and Trial Notebooks and a General Trial Workbook: Your plan of attack and defense should appear in black-and-white in your pretrial and trial notebooks. The notebook can be paper or electronic. Most new lawyers should go with the electronic trial notebook. You should also construct a single trial workbook that contains useful documents, e.g., the rules of evidence, a list of common objections, a ZIP code map of the locale, etc, that you can use in every case.
Managing Your Case with an Electronic Trial Notebook:There are a number of support software packages that can help with litigation and investigation management of your case. Two of these information management systems that have received some positive plaudits are Casemap/Time Map (two separate software packages from CaseSoft, the first being litigation support and the second being a time-line developer) and WinForce (designed for criminal cases by a former federal prosecutor and billing itself as storing and organizing needed data and continually updating itself with notes, interviews, and testimony). The functions of Casemap/Time software in handling massive discovery in complex litigation are the subject of this nine page article (1). There are imaging and online database service providers that can help with the management and security of documents. When you are preparing to provide the opposition with discovery or counter-discovery and want to number the pages you are delivering or scanning, it may be useful to try a software program that numbers each page as you run them through an ink-jet printer. Using Topic Dividers for the Paper/Electronic Notebook : Your pretrial notebook should contain separate tabbed dividers. The subjects may vary, but a common approach is to have dividers with such subjects as: Things To Do , Client Information, Fee Agreement, Police Reports, Witness Statements, Preliminary Hearing, Grand Jury, Pretrial Brainstorms, Discovery, Pretrial Motions, Research, Exhibits/Visuals, and Game Plan. If you have a separate trial notebook for trial, it should contain dividers covering such basic subjects as: Jury Selection, Opening Statement, Experts, Prosecution Witnesses, Defense Witnesses, Jury Instructions, Argument, Punishment, Errors for Motion for New Trial. Here are a couple of lawyer generated articles describing how to prepare and utilize a trial notebook: (1), (2).
Getting Ready for Each Witness : Use a pocket divider in your three-ring binder paper notebook to store your planned questioning of each witness.Have a section for each witness in your electronic notebook.
Preparing Exhibits, Visuals and a Trial Kit for Courtroom Presentation
Planning the Visual Aspect of Your Case Story : Some things are beyond the realm of words. Some things can only be understood by being seen. Like it or not, defenders and prosecutors alike must present something more than a case of words. Visuals are a necessity. This is good because visuals can make a good case theory more understandable and palatable. You'll need to plan and prepare your visuals well before trial.
Learning How to Use Technology to Assist Your Presentation : Check the technology page for help in preparing electronic visuals. PowerPoint seems to be the linear software of choice for those who first put their toes in the water by plugging their computers into the electronic courtroom, though there are other linear software packages that do an equally good job, e.g., Corel Presentations. For those who like the flexibility of moving electronically at will from one item to another, rather than progressing in a linear fashion, the most popular choice from anecdotal reports appears to the Sanctions II case presentation software from Verdict Systems in Tempe, Arizona. Prosecutors rave about the most recent version of Sanctions II; it seems to run around $600, plus an additional fee for annual support. Defenders with presentation savvy should definitely check it out.
Preparing a Trial Kit for Courtroom Support: You will need a trial kit that contains some hardware. Most of the items will fit in a large briefcase. Depending on the accessories provided by the court, you may need a portable easel, flip chart, dry erase board, overhead projector, video document camera, etc. But you will probably always need the following:
pens (red, black) pencils and portable pencil sharpener tabletop pencil/pen holder legal pads colored magic markers colored dry erase pens and an eraser laser pointer (preferably green rather than red) & batteries post-it notes colored flags colored dots glue stick coiled measuring tape (50' or more) scissors a cheap plastic tarp (Wal-Mart or Sears/K-Mart variety)* paper clips stapler & staples roll of masking tape roll of clear tape blank overhead transparencies artist's portfolio carrying case for charts portable tape recorder & extra batteries [Note: Some time ago, the FBI and DEA switched to digital recorders for undercover work; police undercover agencies are also doing so; you should definitely consider buying digital rather than analog.] Polaroid camera & film extension cord bottle of water chap stick throat lozenges trial workbook with documents that you need for every case
Additional Pretrial Resources
+ Blawgs: (1 - the persuasive litigator) (2 - the jury room) + Crime Scene Investigation: This is the earlier January 2000 free download of the 58 page FBI publication describing appropriate procedure in CSI. This is another source for the same 2000 manual. This college criminal justice professor's site has some information about crime scene investigation from the police viewpoint, plus some many links. The Wisconsin Defender with all of its back issues on file, provides some good practical advice regarding defense preparation and performance. + United States Attorneys Manual: As mentioned above, this one is a "must have" and the "best buy" for anyone actively engaged in criminal defense practice even though they don't have much federal practice; the manual is also worth the price for state prosecutors who are trying to improve their craft. The set totals more than 2000 pages and covers the waterfront of federal criminal prosecution from the government prosecutor's standpoint. It's a free download from the Department of Justice. This prosecutor's notebook can be particularly useful in cases where you need to know the proscribed conduct that must be followed, e.g., dealing with informants. Also, be sure to access the FOIA Reading Room for the U.S. Attorneys Bulletin. + FBI Manual on Investigative Operations and Guidelines (MIOG): This one can be obtained on CD for approximately $100 from the NACDL. This one is useful to defenders in preparing to meet FBI investigations, e.g., cross-examination re practice concerning confidential informants.
+ Guide for Explosion and Bombing Scene Investigation, National Institute of Justice: Explores the development of procedures for identification, collection and preservation of evidence connected to explosion and bomb scenes. The Guide is available from the National Technical Information Service at 703 605-6000. You'll have to pay a total of about $30 for this publication.
+ ATF (Bureau of Alcohol, Tobacco and Firearms) Manuals: You can order a number of free handbooks, plans, and policy statements that relate to the ATF (the folks who raided the Waco Davidian complex in the 90's); these include: Criminal Enforcement Investigative Reports: Electronic Surveillance; Surveillance of Premises, Vehicles and Persons; Investigative Priorities, Procedures and Techniques; Regulatory Enforcement Inspector Handbook; ATF Firearms Policy; National Response Plan. Order these from the ATF in writing. The ATF also has a CD entitled ATF Law Enforcement Guide to Explosives Incident Reporting that may be obtainable. For information, the ATF can be reached at 202-927-8480. NDAA-APRI also publishes a 28 page prosecutor's guide to the workings of the ATF. + DEA Agent's Manual: You can obtain this publication in a CD-ROM from the DEA by written request. Further information can be obtained by calling the DEA at 202-872-8600. The cost is approximately $60. Unfortunately, the publication you receive from the DEA doesn't include the chapter on dealing with confidential informants. You should be able to purchase the entire publication from NACDL. + United States Customs - Personal Search Handbook, Dept. of Treasury, United States Customs Service: This one is free. You'll have to obtain it via a Freedom of Information request. See the discussion above and Links for the procedures for obtaining information under the FOIA. The U.S. Customs Service may be reached at 202-927-0227. + Investigation: - Here are two very good CSI criminal law links, particularly in the various fields of forensic science, (1), (2). This is a good bibliography of books written on the subject of investigation of criminal cases including CSI and forensic evidence. Finally, here's a good bibliography of useful and informative criminology and criminal law texts. + Do-It-Yourself Mock Trial - If you are working on a shoestring budget, you can try staging your own mock trial, sans jury consultant. For guidance, take a look at the ABA's "Putting On Mock Trials." This 52 page publication is designed for schools, but you can adapt it.
Keep pulling the plow. Keep turning the crank.
Run the risk of wearing out rather than rusting out.