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Trial Procedure Part 2: The Defense's Case-In-Chief (And Setting $2,500 Bonds On Traffic Offenses)

Posted by Alex K. Kriksciun | Jul 29, 2017 | 0 Comments

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Last week we examined voir dire (aka jury selection) and the state's case-in-chief.  Now we examine the defense's case-in-chief.  In a VERY general sense, the procedure of the defense's case is the same of that of the state, but the parties are reversed.

If the defense is so inclined after the state rests its case during a judge trial, it may choose to file an oral motion for judgment of acquittal pursuant to Louisiana Code of Criminal Procedure art. 778, which provides “[i]n a trial by the judge alone the court shall enter a judgment of acquittal on one or more of the offenses charged, on its own motion or on that of defendant, after the close of the state's evidence or of all the evidence, if the evidence is insufficient to sustain a conviction.”  This article does not technically apply to jury trials, but a defense lawyer can request a “directed verdict” at the conclusion of the state's case in a jury trial, which essentially is a request for a “judgment of acquittal.”  It's up for debate whether a judge has the power to enter such a directed verdict in a jury trial, but I am of the opinion that you might as well try everything you can and pull out all the stops.

At this point, it is time for the defense to present its case.  The defense need not call any witnesses to the stand, nor need it introduce any evidence.  The reason for this is because the burden is always on the state to prove that the defendant is guilty of a crime beyond a reasonable doubt. 

Imagine an old-school gas gauge on a car.   I'm talking about the ones that have a needle that moves to “F” when you fill up the tank, and gradually moves back down to “E” as the car consumes the gas in the tank.   Now let's imagine there's another line just barely below the “F,” which we'll call the “RD” (for reasonable doubt) line.  We'll say that when the case starts, the tank is empty, and the needle is at “E.”  As the prosecution presents its case, elicits facts from witnesses, and presents evidence, it begins to fill up the tank.  If the state can fill up the tank to “F,” they will have proven with 100% certainty that the defendant is guilty of the crime charged.  If the state fills the tank completely, it will have moved the needle to the “F” line and necessarily past the “RD” line in doing so.

The state can almost never truly fill the tank to the “F” line.  Sometimes, the state cannot fill the tank beyond the “RD” line.  Sometimes the state can move the needle beyond the “RD” line but not to “F.”  This leads us to the key in the analogy: after the state completes its case, the defense can move the needle closer to “E” OR move the needle closer to “F.”  Sometimes the facts of the case fit in with the defense's theory, the witnesses all testify as expected, and everything goes right.  That would obviously move the needle closer to “E.”  Sometimes a defense blows up in your face and your star witness wilts under cross.  You've then done part of the prosecution's job for them. 

If the state has not moved the needle past the “RD” line, the defense need not (and should not) present a defense.  People are sometimes surprised when I tell them how often the defense presents no witnesses.  There are many reasons why this might be the case.  I could write a whole post about this, but the shortest and best reason is simply that the defense often does not have any witnesses who could help the theory of its case.  If the defense has no witnesses to call or evidence to introduce, it rests.

When the defense does call witnesses, the same order of events as described above for the state take place, but (as stated above) the roles are reversed.  Thus, the defense begins with a direct exam of its own witness, the state begins cross at the conclusion of direct, and the defense begins redirect at the conclusion of cross.  When the defense has finished calling its witnesses and introducing its evidence, it rests in the same manner as if it had called no witnesses.

Next week we finish up trial procedure with closing argument, jury deliberation, and verdicts.

As a teaser, I present this article for your viewing pleasure: "New Orleans Judge Funds His Court By Setting Bonds People Can't Afford, Lawsuit Claims."  I was in this judge's court this very morning and I can personally speak to similar issues as those raised in the lawsuit (even for traffic offenses).  This, of course, will be the subject of a future post.

As always, if you are in need of any legal assistance, please 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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