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Trial Procedure Part 1: (Voir Dire and the State's Case-In-Chief)

Posted by Alex K. Kriksciun | Jun 22, 2017 | 0 Comments

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I must first state that I love this guy that I found attempting to invoke trial by combat.  The way that trial by combat works is that two persons on opposite sides of a legal dispute engage in single combat, and whoever "wins" is adjudged to be right.  A trial by combat has not been conducted in England in some 500 years, but my understanding is that while it may still be technically possible under American law, no jurisdiction would ever allow it to happen. The only place I've ever seen an actual trial by combat is on Game Of Thrones.

Anyhow, back to the real world.  If plea negotiations have been unsuccessful (or never began in the first place), pretrial motions have been disposed of, and both the state and the prosecution are fully prepared, it's time to get the trial started.

The first critical step in a jury trial is to actually pick a jury.  In a judge trial, of course, this step gets skipped.  The process of picking a jury is known by the archaic Law French term “voir dire,” (pronounced VWAH-deer).  As with general trial procedure and advocacy, there have been hundreds if not thousands of volumes written about voir dire.  But we will stick to the basics.  Potential jurors are brought into the courtroom and asked a series of questions by the prosecutor and defense lawyers (or the judge in federal cases).  The group of potential jurors being questioned is called a “venire.”

The prosecutor and the defense lawyer then have the right to strike (i.e. prevent) potential jurors from serving on the jury.  Both can do this in one of two ways.  The first is known as a “challenge for cause.”  A challenge for cause occurs when the potential juror lacks a required qualification required by law (such as not being competent to hear the matter), when the juror cannot be impartial for whatever reason, or when the juror will not accept the law as given to him by the trial judge.  The second is a “peremptory challenge,” which is a challenge of a potential juror for any other reason. The number of challenges for cause is not limited by law, but the use of peremptory challenges is. 

Both the state and the defense can excuse a juror on a peremptory challenge for virtually any reason.  Maybe one side does not like the way the person looks.  Maybe the potential juror's occupation is perceived to be pro-or-anti law enforcement.  Maybe the potential juror has five children and the lawyer is worried that the juror would be more interested in returning home than deliberating on the case.  I always ask the venire this question: “which is worse, seeing an innocent man go to prison or seeing a guilty man go free?”  If that person gives the incorrect answer (that it is worse to see a guilty man go free), they are subject to an automatic strike by yours truly.  The one true limit on peremptory challenges is that they cannot be used solely to exclude jurors based solely on their race.

Once a prosecutor or defense lawyer runs out of peremptories, that lawyer must accept a juror unless the juror can be challenged for cause or the opposing side uses a peremptory.  Practically speaking, the defense usually runs out of peremptories before the state.  Here, if the penalty for the offense is necessarily confinement at hard labor, the jury is composed of twelve people.  For felonies in which punishment may be confinement at hard labor, the jury is composed of six people (there is no right to a jury misdemeanor trial in LA).  After you have an appropriate number of jurors, those jurors are sworn in and the defendant is placed in jeopardy (for double jeopardy purposes).

The next step in the process is opening statements.  The prosecution must give an opening statement.  LSA-C.Cr.P. art. 766 states “[t]he opening statement of the state shall explain the nature of the charge, and set forth, in general terms, the nature of the evidence by which the state expects to prove the charge.”  Some prosecutors give a sort of canned, non-creative opening statement by saying something like “the evidence will show X, the evidence will show Y, the evidence will show Z” and so on.  Many do not, but I've seen this kind of opening statement quite a bit.  The defense does not have to give an opening statement, but almost always does (and should).  Unfortunately, I think that many defense lawyers give an opening statement like the one I mentioned above.  This is a mistake.  Opening statement is not supposed to be about argument.  If you make legal or factual arguments during opening statement, the prosecution may object (despite a longstanding tradition not to object during opening or closing statements).  A good defense lawyer will figure out how to get some argument in his opening statement without raising the prosecutor's ire.

After opening statements, the state presents its case-in-chief.  They do this by calling witnesses to the stand, eliciting testimony from those witnesses, and introducing evidence.  The state has wide latitude on deciding how to present its case in its effort to convince the jury to return a guilty verdict.  If the state calls no witnesses or produces no evidence, it has not maintained its burden of proof, and the judge should render a judgment of acquittal.  This rarely, if ever, happens outside of Orleans Parish Municipal Court and similar parish courts and city courts.  The state will typically conduct a direct examination of its witnesses by using what are referred to as “open-ended questions.”  Most of these questions start with Who, What, When, Where, Why, or How, but in essence, any question that does not suggest a particular answer could be considered open ended. 

After the state has concluded with the witness, the defense has the opportunity to cross-examine the state's witness.  There is no requirement that the defense lawyer conduct a cross-examination, but it would be unusual to ask no questions whatsoever.  Cross-examination has been referred to as many things; an art form, a science, an exercise in mental control, etc.  It has immortalized by countless depictions in film and TV.  Two of the most famous (relatively) recent examples include Joe Pesci's “magic grits” cross from My Cousin Vinny and Tom Cruise's cross of Jack Nicholson in A Few Good Men. 

Many trial lawyers think that the drama and relative importance of cross-examination have been exaggerated by these cultural depictions.  Perhaps in Perry Mason, a witness may crack during a withering cross-examination and exclaim “IT WASN'T YOUR CLIENT!!  I DID IT!!!”  This doesn't happen in real life.  It should suffice to say that during cross, the defense lawyer is permitted to (and should) ask leading questions, which are questions that suggest a particular answer.  When I was a student at the National Criminal Defense College, I was taught that ALL of the defense's questions should be leading.  I don't subscribe to that theory and I have a suspicion that the practitioners that taught that maxim to us do not practice it completely.  Cross does not necessarily have to be confined to the subjects covered in direct, though if you stray too far, you are likely to meet an objection.  As far as I am concerned, the two most important things about cross (I also learned this from NCDC) are the need to elicit facts favorable to your theory of defense and to discredit damaging facts.

When the defense lawyer completes his cross, the state can conduct a “redirect examination,” which offers it the opportunity to explain or otherwise qualify any problematic testimony that came out during cross.  Redirect happens more often than occasionally but less often than frequently, if that makes any sense.  When it does occur, it is usually short.  The defense lawyer may have an opportunity to conduct a “recross examination,” which is exactly what it sounds like: a chance to cross-examine the witness on his redirect testimony.  There is no explicit right to recross in the Louisiana Code of Criminal Procedure, and the permission to do so must be given by a judge.  It does not happen very often.

The examination of the first witness is now complete.  The state then calls its next witness and the process of direct/cross/possible re-direct/possible re-cross repeats itself until the state has called all of its witnesses.  In some situations, the state may introduce evidence after it has called its witnesses.  In others, it introduces evidence during witness testimony.  After the state has completed eliciting testimony from its witnesses and putting on its case it (usually) states to the judge: “Your Honor, the state rests.”

Next week we will examine how the defense puts on its case.  As always, if you or a loved one are under investigation or have been arrested, contact the Law Office of Alex Kriksciun today!

About the Author

Alex K. Kriksciun

Attorney at Law/Notary Public Alex K. Kriksciun has devoted most of his legal career to defending the rights of people accused of crimes and the rights of people harmed by the negligence of others.  Whether the case involves a municipal citation, a life imprisonment without parole case, a wrongf...

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