Trial

The phases of a trial in a Texas Criminal Case are usually:

  • Jury selection (“voir dire” in legalese) is the most important phase of a criminal trial. It involves getting potential jurors talking about things that might affect how they will decide a case. If a juror has not accepted your defense (self defense, alibi, SODDI, whatever) as a possibility by the end of jury selection, you are going to have a really hard time getting that juror to vote “not guilty” at the end of trial.

    If you sit in the criminal courthouse listening to a lawyer conducting jury selection, it’s easy to tell whether it’s being done properly: in a proper jury selection, the lawyer will be talking 10% of the time and the prospective jurors will be talking 90% of the time; in a badly-conducted jury selection, the percentages will be reversed. It is almost always done badly by the prosecution, and often done badly by the defense as well.

    One important object of voir dire is to build rapport with the people who will wind up being on the jury. We don’t build rapport with people by lecturing them or talking down to them. To the contrary, we build rapport with people by listening to them, understanding their stories, and acknowledging their feelings even if we don’t agree with them.

    Another object of voir dire is to find the people whose life experiences will make them unfavorable jurors to our client’s case. Again, we don’t get people talking about the things that might affect how they see our clients by lecturing them; we do it by listening to them and acknowledging their feelings even if we don’t agree. If a potential juror says something that seems bad for our client (for example, “I think a person charged with a crime is probably guilty.”) we thank them, and our gratitude is sincere because we would rather find out about such attitudes early, when we can do something about them (by keeping the person off our jury) than either late or not at all.

    Mark teaches jury selection to criminal-defense lawyers statewide and beyond. The American Society of Trial Consultants published his Sixteen Simple Rules for Better Jury Selection in its magazine, The Jury Expert.

    Here is a video of Mark teaching jury selection at the State Bar of Texas Advanced Criminal Law Seminar a few years ago.

  • After jury selection, opening statement is the next phase — and the next most important phase — of the trial.

    Opening statement may be the parties’ first opportunity to tell the story of their case to the jury (in Harris County, an unwritten local rule, followed by some judges, prevents the lawyers from talking about the facts of the case in jury selection).

    Opening statement is technically supposed to be a statement of what the evidence will show, not including argument. For example, if one witness will testify that the defendant was in the next county fifteen minutes before the murder and another will testify that it takes 30 minutes to drive from where the defendant was to the scene of the murder, those two facts would be proper to describe to the jury in opening statement. But the conclusion to be drawn from these facts — that the defendant couldn’t have committed the murder — is argument and, technically, improper opening statement.

    The great challenge of opening statement is to tell the client’s story (which the jury has been primed in jury selection to accept as a possibility) in a compelling way while staying close enough to what is technically proper that the other side’s objections are overruled. That is, we want to tell the story in an innovative enough way that the jury pays attention and remembers it, without departing so far from what the judge is used to that she sustains the government’s objections.

    The defense should almost always make an opening statement, but sometimes the government will give up its own opening statement. When it does so, the defense may not be able to make an opening statement until after the government has rested its case.

  • After opening statements, the Government begins presenting its case through its witnesses. During a government witness’s testimony we play a defensive game, making objections as needed to keep the witness from testifying about matters that are improper (for example, a witness’s testimony about what someone else told him is generally “hearsay,” and inadmissible).

    After each witness has testified, we have an opportunity to cross-examine him and tell part of our story through him. That might mean getting him to agree to facts that he didn’t testify about, and it might mean casting doubt on the things that he did testify about. Cross-examination is both an art and a science. It requires extensive preparation, encyclopedic knowledge of the facts of the case, a deep understanding of human nature, and a sharpened instinct for what the witness may be induced to say.

    After the government has presented its case and rested, we ordinarily ask the judge, out of the presence of the jury, for a judgment of acquittal, arguing that the government has not proven everything it has to prove (the “elements” of the offense) beyond a reasonable doubt to any jury. Judgments of acquittal are rarely granted — even if the judge agrees that the evidence is marginal, she will usually let the jury decide — but there is rarely a downside to asking for it.

  • If, as ordinarily happens, the judge denies the motion for judgment of acquittal, we proceed to put on our case. If we really believe that the government has failed to prove its case, we may not put on any witnesses — presenting witnesses is inherently unpredictable, and gives the government an opportunity to shore up its case.

    When we present a witness we conduct “direct examination” of the witness — asking non-leading questions to get the witness to tell his part of our story. (Leading questions are questions that suggest their own answer. For example, “isn’t it true that . . .” is a classic beginning for a leading question.) The challenge of direct examination is to help the witness tell the story in a compelling way that the members of the jury can relate to. We work with our witnesses to put the story in everyday language (talk in the courtroom like you’d talk in your living room) and bring out the details that will make the jury connect — the five senses, and the emotion behind the story. As you might imagine, helping witnesses tell the story in a compelling way requires us to understand the story deeply, which — again — requires active listening.

    After our direct examination of a witness is complete, the government gets an opportunity to cross-examine him. We try to protect the witness from being pushed around too much by the prosecutor. If a witness knows what to expect from the prosecutor on cross-examination (because we have prepared him for the process before trial), and if he told the truth on direct examination, the prosecutor will not be able to do much damage to our case through him.

  • Once we have presented our witnesses and rested, each side gets a chance to argue to the jury what the evidence means. The government may argue first and last.

    The first portion of its argument is usually minimal; the government will save its big guns for the last argument. Because we don’t get a chance to respond to the government’s argument, our argument has to cover everything that we think the government might say. Our argument is not a response to what we expect the government to say; instead it is a final telling of our story, putting all of the parts in order and wrapping them up convincingly so that no matter what the government argues the jury wants to find for us.

    Sometimes cases are won in closing argument. More often they are won earlier in trial, when the story is told to the jury so persuasively that the jurors have made up their minds before either side gets up to argue.

    Argument is an opportunity to shore up the favorable jurors’ decisions, so that the jurors who want to acquit the defendant don’t lose their nerve when they get in the jury room, and they return with the thing we have been trying to get since before taking the case: a two-word (“not guilty”) verdict.

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