The juries have returned verdicts in both the trials I was watching the other week, which means that I can actually talk a little bit about them. One trial was a child abuse/murder case; I didn’t see much of the (guilt phase) testimony or arguments, other than the defense’s expert medical doctor’s testimony. (Expert here in the legal sense, not in any sense that he is a particularly good doctor.) The other trial was a possession/distribution of child pornography case. There, I heard a bit more testimony – two expert witnesses (law enforcement officers) for the prosecution, and one expert witness (former law enforcement officer) for the defense. Because that wasn’t a murder case, the jury didn’t do the sentencing, and I didn’t sit in on the hearing (I’m actually not even sure when it was held.)

First, a (long) note on criminal procedure. I think I’ve mentioned pre-trial procedure before, when I was talking about preliminary hearings and arraignments, but I’m too lazy to look through my past posts, so I’ll give a quick rehash here. Basically, what happens when people break the law is one of two things. First, the State may know about someone’s criminal activity, but the person isn’t present (the State is doing an investigation, or they get reports from other citizens about something that happened, or the suspect fled after being identified, or a number of other scenarios where we have probable cause to believe they broke a law, but we don’t have them in custody), and so an arrest warrant is issued, and then the next time that person comes into contact with law enforcement and their name is run through a database, it comes back with a warrant, and they get arrested. Alternatively, and more common in pop culture (see, e.g., Cops), is that law enforcement responds to a call, finds the suspect, has probable cause to arrest them, and arrests them on the spot. After making a warrantless arrest, suspects have a constitutional right to have a judge review the situation to make sure there was probable cause (usually within 48 hours, but that depends on the state).

After that initial appearance and probable cause determination, procedure depends on which jurisdiction you’re in – either federal, or the particular state. Many (most) states have what’s called a ‘preliminary hearing’ for more serious crimes, where the state has to prove probable cause again. It’s sort of a mini-trial. These are what we interns are allowed to do here. After the preliminary hearing, there’s a ton of motions practice – the defense asks the court to suppress evidence, both sides certify expert witnesses, both sides ask what evidence they’re allowed to bring in, discovery issues are brought up (what information are the different sides entitled to receive from each other), the defense asks to be released on either lower bond or on his own recognizance, etc. etc. I’ve been doing a lot of work at this stage in the proceedings as well. (Typically, I’m writing opposition motions – the defense makes a motion, and the State opposes it.)

“Expert” witnesses are really an evidentiary thing. It varies by court and jurisdiction, and the experts do need to have some sort of qualification in their field. But the reason why experts are important is because of evidentiary rules regarding what witnesses are allowed to testify to on the stand. In general, witnesses aren’t allowed to testify to “opinions.” The court only wants to hear the facts, not necessarily what you thought about those facts – after all, it’s the jury’s job to make any inferences, and to decide what version of the facts to accept. Lay (non-expert) witnesses are allowed to testify to some “opinions” in a limited sense. For example, you can (usually) testify that someone seemed drunk; it’s helpful if whoever is asking questions can elicit it by asking questions that bring out that the person in question had slurred speech, trouble standing or walking, and had breath that smelled like alcohol. But sometimes you can get away with cutting to the chase, and just saying “He looked/seemed drunk.” Expert witnesses are different from lay witnesses because expert witnesses are allowed to testify to their professional opinions. Their purpose is to be able to explain something technical and specialized to the jury, and because the jury isn’t typically composed of doctors and computer specialists (and if it were, we’d rather them use the testimony, not their own experience) we have the expert witnesses to explain not just what happened (this x-ray shows 27 rib fractures) but an opinion about it, or inference that can/should be drawn (this is a sign of abuse, and this child was likely abused).

After the pre-trial motions practice is done, trial starts. Because we’re talking about serious crimes (felonies – more than 1 year jail time as a potential punishment) the defendant is entitled to a jury trial. The defendant can waive that right, and sometimes they do. If they decide to have a jury trial, then the trial starts with jury selection. Jurors are sworn in, and asked a bunch of questions, some of which are very personal (Have you or a close family member ever been the victim of abuse?), and others that might not make a ton of sense (Do you watch TV? What shows do you like to watch?). Either the judge asks all the questions, or each attorney gets a chance to ask questions. Jurors are dismissed for particular reason or for no particular reason (a whole other blog post) and eventually, the attorneys agree on 6 – 12 people to serve, plus possible alternates. Then jury instructions are read, and the prosecution gives its opening. The defense can either open now, or wait until after the prosecution is done with its case. Then the prosecution calls witnesses and presents exhibits. The defense cross-examines the witnesses. Then the prosecution rests, and the defense can call its own witnesses, or it can rest without doing anything. Then the prosecution can rebut (if the defense presented its own evidence) and then the prosecution gives a closing argument, the defense gives a closing argument, and the prosecution finishes up with a rebuttal. (The prosecution gets to go first and last because it has the burden of proof.)

Then there are more jury instructions, and then the jurors deliberate, come back with a verdict, and are (usually) done. This is the end of the guilt phase. In some cases (particularly death penalty cases) the jury has to stay to issue a verdict in the penalty (sentencing) phase as well. Usually, though, the judge does this on his own. The penalty phase works much the same way in that both sides present evidence and make arguments. The main difference is that at sentencing the rules of evidence often apply only in a limited fashion. For example, in general, there’s a rule that evidence has to have probative value (it has to prove that some important fact is true or is not true) and that probative value must outweigh its prejudicial value. This rule tends to mean that the defendant’s prior convictions can’t be brought out at the guilt phase of the trial. At sentencing, though, prior criminal history is an important/valid consideration, and so the evidence comes in. Other things like drug use and abuse can also come in, and hearsay is allowed. (There will be another post about hearsay. I’ve been working too much with hearsay to not bore you all with another 1300+ word essay on hearsay.) After sentencing, the defense makes a bunch more motions. First direct appeals, and then collateral ones (typically what are called petitions for writ of habeas corpus.) The prosecution opposes all of these motions, and there are arguments and hearings. Eventually the defendant finishes his sentence or wins on an appeal. Winning on an appeal can mean anything from the state appealing, and winning in the higher court, to “immediate” release, to a new trial being ordered, and then we (possibly) start the whole process all over.

Anyway, the expert testimony was really interesting. I found it interesting that the defense’s doctor in the murder case spoke in language that I couldn’t understand – using medical terms without explaining what those terms meant. Granted, I wasn’t there for the prosecution’s case, so maybe those were all explained, and maybe the jury remembered what all those terms meant. I thought it was an interesting choice, though. The defense attorney would occasionally ask for clarification in plain English, I think as a way of emphasizing “Look how smart our doctor is!” That tactic must not have been particularly effective, because the jury still came back with a guilty verdict on all counts. The experts in the child porn case were basically explaining how the internet works, and how the technology works. All of those experts did a good job (I thought) of using analogies to explain some of the technical and abstract concepts. There were two counts in that case – there was a guilty verdict on one, not guilty on the other.

Sentencing was also fascinating. For one thing, there was one juror who cried almost continuously throughout sentencing. For another, while the defendant chose not to testify at trial, he did decide to make a statement at sentencing. That may not have been the best decision, considering his initial attempt at making a statement included stating that he was innocent, and that his attorneys gave him bad advice. (This is the type of thing that defendants are not allowed to say in their statements.) The jury ended up splitting the difference between the possible sentences. Probably my favorite part of being in court is hearing and watching how the attorneys handle different situations. Hopefully in the not-too-distant future, I’ll be trying some of the argument techniques myself.


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