Discovery, Settlement & Trial Procedure

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Discovery, Settlement & Trial Procedure Powered By Docstoc
					          Today’s Lecture:




    Settlement, Discovery and Trial
               Process



Session                       Topic(s)


  9              11, 12 & 13
Lecture Organization:

     Class Announcements

     Criminal Discovery
    Settlement Culture

    Jury Selection
    Trial Procedure
                 Class Announcements


reading
-- Remember you will have a separate reading test along with
you midterm

Midterm
-- moved back to May 6th

2 hard targets
-- by April 30th (email) [explain what this is]
                  Class Announcements


website
-- Behind
                                               Questions?
(looking to be current by Friday)

Today’s lecture
-- Not on the midterm; It starts the portion for finals

 Notes
-- Hand-written notes are due on the day of the midterm.
                  Criminal Discovery


1. criminal and civil discovery are different
.. take a look
 Civil:                    Criminal:

• Deposition
• Interrogatories
• Document Production
• Request for Admissions
• Mental Examination
 Civil:                     Criminal:

• Deposition
1. Criminal discovery
• Interrogatories not discovery
    -- “disclosure”
• Document Production to me what you have
    -- basic idea: turn over
• Request for Admissions package]
      [analogy: Christmas
 • Mental Examination
     Rule
   1.Civil: 16:                    Criminal:
      -- witness list, with addresses, phone numbers and
                                  • Rule 16
   • Depositionhistory report Witness statements
      criminal
   • Interrogatories copies, of all documents you intend to
       -- a list of, and
       introduce into evidence
   • Document Production
        -- list of any experts, their CV, and the basis of their
    • Request for Admissions
        opinions Note the difference
     • Mental Examination
        -- defendant’s statements
                                           Answer:
     Question:
                         You don’t merely want to know what they
  Anything wrong          are USING; you want to know what they
with this approach?                   are NOT USING.
                       This information is already FILTERED.
       Rule
    1.Civil: 16:                        Criminal:
            What witnesses did they discard from their
        -- witness list, with addresses, phone numbers and
            list and why?
                                      • Rule 16
    • Depositionhistory report Witness statements
        criminal
            What statements did they elect NOT to
    • Interrogatories copies, statements are taken] intend to
        -- a list of, and how of all documents you
            take? [explain
                     into evidence
        introduceProduction
    • Documentdid they forget to interview? Etc.
            Who
        -- list of any experts, their CV, and the basis of their
    • Request for Admissions
            [tell them the
        opinions Note story of your robber client. The
                            the difference
     • Mental Examination
            missing eyewitness in the front seat!]
        -- defendant’s statements
                                           Answer:
     Question:
                          You don’t merely want to know what they
  Anything wrong           are USING; you want to know what they
with this approach?                    are NOT USING.
                       This information is already FILTERED.
 Civil:                     Criminal:

• Deposition               • Rule 16
• Interrogatories          • Exculpatory Evidence
• Document Production
• Request for Admissions
• Mental Examination
1. Exculpatory Evidence …..
    Civil:                         Criminal:
    -- there is a duty that the prosecution has to disclose
     Deposition
  • “exculpatory evidence”         • Rule 16
  • Interrogatories is “exculpatory” if it tends to negate
          something                 • Exculpatory Evidence
         or cast doubt upon guilt.
  • Document Production
  • -- this is the way it works in theory. The police
     Request for Admissions
    officers go to a crime scene and collect both
   • Mental Examination
    incriminating and exculpatory evidence, and then
    just hand both over to the defense lawyer through
    the prosecution
                          Mythology
 --In                              Criminal:
 Civil:reality, police look for incriminating evidence and
 discard anything that doesn’t fit that theory
                               Rule 16
• Deposition not even get the•non-discarded stuff that
   -- you may
   is exculpatory:
• Interrogatories            • Exculpatory Evidence
       (Mike Production
• DocumentNyfong in North Carolina)
     (John Doe II for Timothy McVeigh)
• Request for Admissions
  Mental you ask for
• -- whenExamination exculpatory evidence, the usual
  response is “we don’t know of any.”
  -- you are not even entitled to a hearing to determine
  whether or not (a)Mythology evidence exists; or (b)
                     exculpatory
  what they have classified as “non-exculpatory.”
   -- you have to rely upon the scruples of police
  officers and the prosecution
 --In                              Criminal:
 Civil:reality, police look for incriminating evidence and
 discard anything that doesn’t fit that theory
                               Rule 16
• Deposition not even get the•non-discarded stuff that
   -- you may
   is exculpatory:
• Interrogatories            • Exculpatory Evidence
       (Mike Production
• DocumentNyfong in North Carolina)
     (John Doe II for Timothy McVeigh)
• Request for Admissions
  Mental you ask for
• -- whenExamination exculpatory evidence, the usual
  response is “we don’t know of any.”
                             Question:
                      Or do you? a hearing to good
  -- you are not even entitled to How might a determine
  whether or not (a)Mythology get this information (b)
                      exculpatory
                     trial lawyer evidence exists; or
                       and cure “non-exculpatory.”
  what they have classified as all of the problems
                        upon the scruples system?
    -- you have to relywith this disclosure of police
  officers and the prosecution
 Civil:                          Criminal:

• Deposition                    • Rule 16
• Interrogatories               • Exculpatory Evidence
• Document Production
• Request for Admissions
• Mental Examination

                    Aggressive use of pre-trial hearings!
    Civil:                    Criminal:
1. Remember the preliminary hearing?

                                  • Rule get
 • -- subpoena the police officers and16 a free
   Deposition
   deposition!
 • Interrogatories                • Exculpatory Evidence
   -- the only difference is that the judge is there to
   Document Production
 • determine how far you can probe and fish
 • Request for Admissions
    -- it won’t be like a civil deposition, but you will have
     Mental Examination
  • some latitude to fish around

                    Aggressive use of pre-trial hearings!
   Civil:                      Criminal:
1. Motions to Suppress!
• Deposition                   • Rule 16
   [explain how the law of suppression motions work]
• Interrogatories you get a free Exculpatory hearing
   -- in essence,              • evidentiary Evidence
   anytime they confiscate something
• Document Production
   -- there are all sorts of
• Request for Admissions pre-trial hearings that you can
   have where police officers or other people could
 • Mental Examination
   testify
                  Aggressive use of pre-trial hearings!
   -- good criminal defense lawyers make liberal use of
   this as a way to get “discovery” beyond disclosure
                  Settlement Culture


1. Settlement is where both sides agree to compromise the
case
   -- How does it work in each system?
   -- let’s take a look ….
Civil:   Criminal:

         Formal process

           • The Agreement
1. The Agreement:
 Civil:                 Criminal:
  -- client enters what is called a “plea agreement”
   -- he agrees to change his plea of not guilty to
                         Formal process
   “guilty” or “no contest” in exchange for something:
                             • The Agreement
       • promise of lenient punishment
      • dropped counts, etc
       [explain what no contest does. Blocks civil case]
   -- agreement is in writing
   -- two types of agreements:
   (a) Binding – the sentence agreed upon is final. The
   judge cannot change it.      Rare; Judges dislike
   (b) non-binding – the sentence is merely a
   recommendation; the judge can change it.
Civil:   Criminal:

         Formal process

           • The Agreement
           • The Interrogation
  The
1.Civil: Interrogation:   Criminal:
   -- client is interrogated (formally questioned) by the
                          Formal process
   judge on the record in open court
                             • The Agreement
        -- Called a plea hearing. [mention the paper].
                             • The Interrogation
   -- judge asks a bunch of probing questions …
  The How are you          Criminal:
1.Civil: Interrogation:feeling today, is your head
     1.
      client is interrogated any medications or
   --clear, have you taken (formally questioned) by the
                          Formal process
     drugs?
   judge on the record in open court
                             • The Agreement
        Do you know what this agreement is paper].
     2. -- Called a plea hearing. [mention theall
                             • think it says, etc.
     about, tell me what you The Interrogation
   -- judge asks a bunch of probing questions
     3. Are you happy with the agreement? Do
     you think it is what you really want?
    4. How was your lawyer? Did he/she do a
    good job for you?
    5. Are you guilty?
    6. Do you understand the rights you are
    waiving [will go through them one at a time]
  The How are you          Criminal:
1.Civil: Interrogation:feeling today, is your head
     1.
      client is interrogated any medications or
   --clear, have you taken (formally questioned) by the
                           Formal process
     drugs?
   judge on the record in open court
                              • The Agreement
        Do you know what this agreement is paper].
     2. -- Called a plea hearing. [mention theall
                              • think it says, etc.
     about, tell me what you The Interrogation
   -- judge asks a bunch of probing questions
     3. Are you happy with the agreement? Do
     you think it is what you really want?
                                      Question:
     4. How was your lawyer? Did he/she do a
                          Why does the judge do this? Is
     good job for you?
                          it because he or she personally
     5. Are you guilty? cares about the defendant?
    6. Do you understand the rights you are
    waiving [will go through them one at a time]
  The How are you          Criminal:
1.Civil: Interrogation:feeling today, is your head
     1.
      client is interrogated any medications or
   --clear, have you taken (formally questioned) by the
                          Formal process
     drugs?
   judge on the record in open court
                             • The Agreement
        Do you know what this agreement is paper].
     2. -- Called a plea hearing. [mention theall
                             • think it says, etc.
     about, tell me what you The Interrogation
   -- judge asks a bunch of probing questions
     3. Are you happy with the agreement? Do
     you think it is what you really want?
     4. How was your lawyer? Did Answer: a
                                      he/she do
    good job for you? The Judge is making it so that
    5. Are you guilty? the defendant cannot get out of
                        the agreement after he goes to
                            jail. “Sealing are
    6. Do you understand the rights youthe deal.”
    waiving [will go through them one at a time]
  The How are you          Criminal:
1.Civil: Interrogation:feeling today, is your head
     1.
      client is interrogated any medications or
   --clear, have you taken (formally questioned) by the
                          Formal process
     drugs?
   judge on the record in open court
                             • The Agreement
        Do you know what this agreement is paper].
     2. -- Called a plea hearing. [mention theall
                             • think it says, etc.
     about, tell me what you The Interrogation
   -- judge asks a bunch of probing questions
     3. Are you happy with the agreement? Do
                                     want?
     you think it is what you really Answer:
                          [Explain he/she Corpus]
    4. How was your lawyer? Did Habeas do a
    good job for you?
                      If one is filed, pull the transcript,
    5. Are you guilty? read it, and deny the claim.
    6. Do you understand the rights you are
    waiving [will go through them one at a time]
  The
1.Civil: Interrogation:   Criminal:
   -- client is interrogated (formally questioned) by the
                          Formal process
   judge on the record in open court
                             • The Agreement
        -- Called a plea hearing. [mention the paper].
                             • The Interrogation
   -- judge asks a bunch of probing questions
   -- the questions ensure:
       • plea is knowing, intelligent, and voluntary
       • no coercion or hidden punishments (“he said if I
       I don’t do this, they would prosecute my mother”)
       • satisfied with the lawyer (“he sold me down the
       river”)
   -- Note: magistrate court is different! [mention paper]
       Civil:                  Criminal:

                               Formal process

                                  • The Agreement
                                  • The Interrogation
                                  • Factual Basis

-- there must be a factual basis for the plea
-- you can’t plead to something that has no factual basis
   (e.g., plead to a battery instead of a theft)
-- the lawyer will certify in open court what the factual basis for the
crime was
   (remember, it is a basis, not a proof.)
   Civil:               Criminal:

Extremely informal      Formal process

 • Make agreement          • The Agreement
 on the phone              • The Interrogation
 • Mail each other
 some paperwork            • Factual Basis
 • Phone the judge
 and tell him you               Question:
 settled
                     Do you think the civil process is
                     like this? Does the agreement
                       have to be approved by the
                                 judge?
   Civil:                   Criminal:

Extremely informal          Formal process

 • Make agreement               • The Agreement      illustration
   Criminal settlement system: three-party transaction
   Civil phone
 on the settlement system: two-party transaction
                                • The Interrogation
 • Mail each other
 some paperwork                 • Factual Basis
                             Judge
 • Phone the judge
 and tell him you                    Question:
 settled
                         Do you think the civil process is
                                   Defendant
               Prosecutor this? Does the agreement
                          like
               (plaintiff) have to be approved by the
                                       judge?
                     Jury Selection


1. Before you begin a jury trial, you have to select the jury
members
2. Let’s look at how that works … [illustration]
Generated from:
DMV records?
Voter Registration?   Master List


                                    12 of the 24 must now be
                                    “qualified” (selected)
      “Pool”
                               jurors
         Question:
 Randomly selected for        24 or so randomly
 some interval how that
  Anyone know                 selected from the pool
         happens?
 (e.g., term of court?)       Show up in court the
                              morning of the trial
                              (8.00 a.m.).
                      Jury Selection


1. Before you begin a jury trial, you have to select the jury
members
2. Let’s look at how that works … [illustration]
3. Juror Qualification:
   3 stages
    (i) Judge questions the 24 jurors (usually as a group)
               • Have you ever been convicted of a crime?
               • do you know the parties/lawyers in the
               case?
               • can you be fair in this case
                      Jury Selection


1. Before you begin a jury trial, you have to select the jury
members
2. Let’s look at how that works … [illustration]
3. Juror Qualification:
   3 stages
    (i) Judge questions the 24 jurors (usually as a group)
        -- if the answers don’t come out right, either side may
        move to strike the juror [explain how that works]
        -- judge could decide on his/her own to strike
                Jury Selection


(ii) Lawyer Questioning
   -- lawyers make up the questions, called “voir dire.”
   (But judge may ask them, depending upon protocol.)
   [some lawyers like this, some may not – explain]

                          Question:
                What kind of questions
               do you think the lawyers
                    want asked?
                Jury Selection


(ii) Lawyer Questioning
   -- lawyers make up the questions, called “voir dire.”
   (But judge may ask them, depending upon protocol.)
   [some lawyers like this, some may not – explain]
   Type of questions lawyers ask or want asked:
   • in a medical malpractice case, plaintiff’s lawyer will
   want to know if any of the jurors believe that it is wrong
   for the civil justice system to award millions of dollars in
   damages
   • in a criminal case, the defense lawyer may want to
   know whether jurors believe that the system coddles
   criminals or gives them too many rights
                Jury Selection


(ii) Lawyer Questioning
   -- lawyers make up the questions, called “voir dire.”
   (But judge may ask them, depending upon protocol.)
   [some lawyers like this, some may not – explain]
   Type of questions lawyers ask or want asked:
   • in a medical malpractice case, plaintiff’s lawyer will
          • know if of of the jurors the death it is wrong
   want to Are anyany you against believe thatpenalty?
   for the civil justice system to award millions of dollars in
          • Do any of you believe that doctors are
   damages
         abused by the civil justice system?
   • in a criminal case, the defense lawyer may want to
   know whether jurors believe that the system coddles
   criminals or gives them too many rights
             Jury Selection


-- The Point: Lawyers will want to probe for juror
attitudes
-- Note: just because an answer is given to these
questions doesn’t mean that the juror will be stricken.
The Judge will ask follow up questions
   • “Does this prevent you from being a fair juror in
   this case?”
   • Does that mean you could not award a million
   dollar verdict if the facts and law warranted it?
   (Depending upon these answers, the juror may be
   struck for cause)
                 Jury Selection


(iii) Peremptory Challenges
   (Most important thing to learn)
   -- after the jurors have been initially qualified (steps (i)
   (ii)), lawyers still get to strike a few of them for
   STRATEGIC REASONS
   -- lawyers will have jury questionnaires (employment,
   age, residence, family status, etc.)
   -- high powered lawyers may even have utilized focus
   groups
   BASIC IDEA: striking to get a strategic advantage or to
   negate the other side’s advantage
                 Jury Selection


(iii) Peremptory Challenges
             • striking old people in a marijuana case
   (Most important thing to learn)
             • striking married people in a DUI case?
   -- after the jurors have been initially qualified (steps (i)
              • striking anyone in few of them
   (ii)), lawyers still get to strike a the medical for
   STRATEGIC REASONS is a medical malpractice
              profession if it
            case (assuming they are not stricken for
   -- lawyers will have jury questionnaires (employment,
            cause)
   age, residence, family status, etc.)
             • story of O.J. may even have utilized
   -- high powered lawyers [middle aged African focus
   groups American women].
   BASIC IDEA: striking to get a strategic advantage or to
   negate the other side’s advantage
                  Jury Selection


(iii) Peremptory Challenges
              • striking old people in a marijuana case
    (Most important thing to learn)
              • striking married people in a DUI case?
    -- after the jurors have been initially qualified (steps (i)
               • striking anyone in few of them
    (ii)), lawyers still get to strike a the medical for
    STRATEGIC REASONS is a medical malpractice
               profession if it
             case (assuming they are not stricken for
    -- lawyers will have jury questionnaires (employment,
             cause)
    age, residence, family status, etc.)
        Question:
              • story of O.J. may even have utilized
    -- high powered lawyers [middle aged African focus
    groups American women].
What does this have to
 do with getting at the
    BASIC IDEA: striking to get a strategic advantage or to
          truth?
    negate the other side’s advantage
            Jury Selection


CAREFUL: cannot strike for reasons of race and
gender, but you can strike persons of race and gender
for non-discriminatory reasons. [Batson Hearing]
                    Trial Procedure


1. Opening Statement
   -- not allowed to argue.
   -- simply tell the jury what the case is about from your
   vantage point; tell them what they can expect to see.
   -- like giving an orientation to your case, not arguing it.
   … examples:
   [your own examples:]
       • case involving a burglary of a PlayStation
       • case involving a incest of an adopted daughter
                    Trial Procedure


1. Opening Statement
   -- not allowed to argue.
   -- simply tell the jury what the case is about from your
   vantage point; tell them what they can expect to see.
   -- like giving an orientation to your case, not arguing it.
                            Question:
   … examples:
            What do you think the prosecutor said
   [your own examples:]
           in opening statement for the rape case
          we read about in “false a PlayStation
       • case involving a burglary ofcases” earlier in
                        the semester?
       • case involving a incest of an adopted daughter
                    Trial Procedure


1. Opening Statement
   -- not allowed to argue.
   -- simply tell the jury what the case is about from your
   vantage point; tell them what they can expect to see.
   -- like giving an orientation to your case, not arguing it.
                              Question:
   … examples:
             What do you think the defendant’s
   [your own examples:]
               opening statement was like?
       • case involving a burglary of a PlayStation
       • case involving a incest of an adopted daughter
                      Trial Procedure


2. Plaintiff’s Case
    -- call one plaintiff’s witness at a time
    -- witness testifies (direct testimony)
    -- then is subjected to cross examination
    -- then redirect (if needed) and re-cross (if needed)
        (excused unless needed further)
    -- repeat this procedure until you are out of witnesses
                      Trial Procedure


2. Plaintiff’s Case
                                                      illustration
    -- call one plaintiff’s witness at a time
   Assume the plaintiff’s case has 5 witnesses
    -- witness testifies (direct testimony)
             ¶1     direct, then cross
    -- then is subjected to cross examination
             ¶2     direct, then cross
    -- then redirect (if needed) and re-cross (if needed)
             ¶3     direct, then cross
         (excused unless needed further)
             ¶4     direct, then cross
    -- repeat this procedure until you are out of witnesses
             ¶5     direct, then cross

           “Plaintiff rests”
                    Trial Procedure


2. Plaintiff’s Case/ Defendant’s Case
                                                     illustration
   -- call one plaintiff’s witness at a time
  The defense goes next (assume a 3 witnesses)
   -- witness testifies (direct testimony)
            Δ1     direct, then cross
   -- then is subjected to cross examination
            Δ 2 direct, then cross
   -- then redirect (if needed) and re-cross (if needed)
           Δ3      direct, then cross
   -- repeat this procedure until you are out of witnesses
         Defense rests
                    Trial Procedure


2. Plaintiff’s Case/ Defendant’s Case
                                                     illustration
  Plaintiff can elect “rebuttal”
   -- call one plaintiff’s witness at a time
           ¶ 6 direct, then cross
   -- witness testifies (direct testimony) But can only be
           ¶ 7 direct, then cross          for rebuttal
   -- then is subjected to cross examination
                                           purposes; not for
            ¶ 8 direct, then cross
                                           new or forgotten
   -- then redirect (if needed) and re-cross (if needed)
         Plaintiff rests                   evidence
   -- repeat this procedure until you are out of witnesses
                    Trial Procedure


2. Plaintiff’s Case/ Defendant’s Case
                                                       illustration
  The defense then has the right of “surrebuttal”
   -- call one plaintiff’s witness at a time
           Δ 4 direct, then cross
   -- witness testifies (direct testimony)     Again, only for
           Δ 5 direct, then cross              rebuttal purposes
   -- then is subjected to cross examination
         Defense (if needed) and re-cross (if needed)
   -- then redirectrests
   -- repeat this procedure until you are out of witnesses
   -- Defendant takes his/her turn (same process)
                    Trial Procedure


3. Jury Instructions (Jury Indoctrination)
   -- extremely important
   -- judge instructs the jury on what the law says
       [e.g.,]: if the jury doesn’t know that self-defense is a
       defense to the charge of battery, how is it going to be
       able to judge who is innocent or guilty?
       [e.g.:] the jury needs to know that (a) consent is a
       defense to rape; and (b) what both rape and consent
       consist of
   -- jurors are told what the elements of the offense are, what
   the defenses are, what the burden of proof is, and how to
   properly discharge their function.
                    Trial Procedure


3. Jury Instructions (Jury Indoctrination)
                                                  illustration
   -- extremely important
Burden of Proof: the jury on what the law says
   -- judge instructs
       [e.g.,]: if the jury doesn’t know that self-defense is a
 1. criminal = beyond a
       defense to the charge of battery, how is it going to ???
                                                        90% be
 reasonable doubt who is innocent or guilty?
       able to judge
       [e.g.:] the jury needs of
 2. civil = preponderance to know that (a) consent is a
                                                  50%
       defense to rape; and (b) what both rape and consent
 evidence
       consist of
   -- jurors are told what the elements of the offense are, what
   the defenses are, what the burden of proof is, and how to
   properly discharge their function.
                    Trial Procedure


4. Closing Argument
   -- most important part of the trial
   -- studies show it is most central to the jury’s verdict
   -- this is where each side takes turns arguing what it
   believed was proven in the trial
5. Deliberation and Verdict
   -- retire to the jury room, foreperson selected
   -- begin deliberations (secret)
   -- unanimity is generally required (but not in all states)

				
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