#1- Outline the evidence that will be presented against you.
When we are preparing for trial, I have noticed that many of my clients focus on the district attorney’s personality or the lawyer’s ability to argue in open court in a strong manner. This is not the most important issue. The most important issue is the presentation of evidence. The state cannot convict you of any crime unless they present sufficient evidence to meet their burden of proof. The burden of proof is guilt beyond a reasonable doubt.
After trying over 100 jury trials, I have seen time and time again that jurors will not convict if the evidence is not sufficient. So when you and your attorney are preparing for trial, you need to discuss the actual evidence that is going to be presented against you, the manner it is going to be introduced, and devise a plan to respond to this evidence if at all possible. When I am trying a jury trial, I look at all possible angles to limit the introduction of the state’s evidence.
#2 Investigate the Chain of Custody.
All physical evidence that is presented at trial must pass the chain of custody test. This is a legal term meaning that if the state intends to produce a piece of evidence – for example the murder weapon found at the scene of the crime – they must present every witness who has had handled the movement of that weapon to any other location.
An example: A gun is found at the murder scene, and then it is taken to the evidence room at the police station. Then it is transferred to the district attorney’s office for examination and testing. Then the gun is transferred back to the police station. Finally, the gun is transferred to the courtroom for presentation to the jury. The state must prove that the actual chain of custody of the weapon in question is sufficiently established. Every person who has handled the transfer of that weapon from one location to another must be called as a witness to testify that that is the gun found at the scene.
This may sound like a technical matter, but sometimes it is very important. Sometimes the DNA lifted from a gun may be erroneous. Or maybe the bullet tested from the firing of the gun is not from the gun found at the crime scene. An experienced criminal trial attorney will recognize when there is an issue with the chain of custody and object to the introduction of the evidence in court. If the chain of custody is not properly established, in many cases the evidence will not be presented to the jury.
#3 Decide whether or not you will testify.
Prior to the trial, I meet with clients to properly prepare a strong defense against the charges. In many cases, the first thing we discuss is whether or not the client is going to testify. The first thing you will need to tell your criminal lawyer is whether you have ever been arrested or convicted of any felony crimes, and/or misdemeanors for that matter.
If, for example, you were previously convicted of two aggravated battery charges and you are now facing a third aggravated battery charge, chances are, if you testify, that evidence will come in. The rule is fairly simple. If you have a prior felony conviction, and you testify in court, the district attorney has the right to ask limited questions about that prior felony conviction.
Unfortunately, in our time, many jurors will convict you based on your past record. So it is important to weigh the value of your testimony against letting the jury know that you have a prior felony conviction. In many cases, if the evidence is not sufficient and I believe I can get my client’s story in front of a jury by cross examination of the police officers, I will not commit my client to testify.
However, as indicated, the most important factor is – do you have a record. If my client does not have a prior felony criminal record, in most cases I will allow them to testify. The only exception to this would be if the client is of limited intelligence or for any other reason may make a poor witness on the stand. But the main thing to consider is what the district attorney will get out of my client’s testimony, if anything. If the damage is limited and the client has no record, I strongly recommend that my client testify.
It is always the client’s right to testify or not in front of jury. If a client is not going to testify, I make sure to inform the jury in the voir dire that the client has the right not to testify. There should be no prejudicial comments, thoughts or actions against a client who has exercised their constitutional right. The best way to enforce this is during the voir dire. I ask each and every perspective juror if they support and understand the constitutional 5th amendment right for a defendant not to testify during a jury trial. Almost all jurors will say yes and they will protect this right.
These are just a few of the matters that you should discuss with your criminal attorney prior to trial. Evaluating the evidence, making sure the chain of custody of evidence is proper, and deciding whether you will testify are all vital elements to preparing a strong criminal defense. We will continue providing information about preparing for criminal jury trials in the next few weeks. An experienced criminal defense attorney should understand these issues and work with you to prepare for your trial.