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Check Mike

Time

Today’s Lecture:

Settlement, Jury Selection and Trial Procedure

1. Settlement Culture in Civil and Criminal Cases

2. How to Pick a Jury

3. The Procedure of the Trial

Lecture Organization:

• Class Announcements

• Brief Review

• Getting Perspective

• Picking a Jury

Time

• Settlement Culture

• Trial Procedure

Class Announcements

1. Quiz Answers Are Up

2. Next quiz: probably posted next Monday

3. Questions for interview papers are posted on ANGEL

4. They’ll be no discussion of football this week

Questions?

Time

Review

1. Discovery

-- civil discovery mechanisms (depositions, interrogatories, etc)

• fishing

• strategy

• formal process of investigation didn’t really begin until after the case was filed (unlike a criminal case)

-- criminal discovery:

• more like disclosure, rather than discovery

• allegation commenced after formal investigation had started (and reached a strong conclusion)

Review

-- to obtain more complete information, good criminal defense lawyers will make aggressive use of pre-trial hearings

(function as depositions, on the judge is present to police how far you can “dig”)

Time

Let’s Get Some Perspective

1. We are in the process of learning the rules of monopoly …

What Court?

Procedure organized by chronological sequence

Pleadings

Right paperwork

Pretrial practice

Getting information

Settling Cases

Frivolous or deficient cases

TrialWhat For?

Type of Case, Remedy

Court structure, Organization and Culture

Time

Jurisdiction and Strategy

Rules of Evidence

Jury Selection

Trial Procedure

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 hobbits ….

Criminal:

Civil:

Formal process

• The Agreement

1. The Agreement:

-- client enters what is called a “plea agreement”

-- he agrees to change his plea of not guilty to “guilty” or “no contest” in exchange for something:

• 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.

(b) non-binding – the sentence is merely a recommendation; the judge can change it.

Rare; Judges dislike

Criminal:

Civil:

Formal process

• The Agreement• The Interrogation

1. The Interrogation:

-- client is interrogated (formally questioned) by the judge on the record in open court

-- Called a plea hearing. [mention the paper].

-- 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]

1. How are you feeling today, is your head clear, have you taken any medications or drugs?

2. Do you know what this agreement is all about, tell me what you think it says, etc.

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]

Question:

Why does the judge do this? Is it because he or she personally

cares about the defendant?

Answer:

The Judge is making it so that the defendant cannot get out of the agreement

after he goes to jail. “Sealing the deal.”

Answer:

[Explain Habeas Corpus]

If one is filed, pull the transcript, read it, and deny

the claim.

Criminal:

Civil:

Formal process

• The Agreement• The Interrogation• Factual Basis

1. 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.)

Criminal:

Civil:

Formal process

• The Agreement• The Interrogation• Factual Basis

Question:

Do you think the civil process is like this? Does the agreement have to be approved by the

judge?

Extremely informal• Make agreement on the phone• Mail each other some paperwork• Phone the judge and tell him you settled

illustration

Criminal settlement system: three-party transaction

Judge

Prosecutor (plaintiff)

Defendant

Civil settlement system: two-party transaction

Time

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

“Pool”

Randomly selected for some interval

(e.g., term of court?)

jurors

24 or so randomly selected from the pool

Show up in court the morning of the trial (8.00 a.m.).

12 of the 24 must now be “qualified” (selected)

Question:

Anyone know how that happens?

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:

(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

3 stages

• 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

(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

Question:

What kind of questions do you think the lawyers

want asked?

• Are any of you against the death penalty?

• Do any of you believe that doctors are abused by the civil justice system?

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

• striking old people in a marijuana case

• striking married people in a DUI case?

• striking anyone in the medical profession if it is a medical malpractice case (assuming they are not stricken for cause)

• story of O.J. [middle aged African American women].

Question:

What does this have to do with getting at the

truth?

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]

Time

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

Question:

What do you think the prosecutor said in opening statement for the rape case we read about in “false cases” earlier in

the semester?

Question:

What do you think the defendant’s opening statement was like?

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

illustration

¶1 direct, then cross¶2 direct, then cross¶3 direct, then cross¶4 direct, then cross¶5 direct, then cross

Assume the plaintiff’s case has 5 witnesses

“Plaintiff rests”

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)

-- repeat this procedure until you are out of witnesses

illustration

Δ1 direct, then crossΔ 2 direct, then crossΔ 3 direct, then cross

The defense goes next (assume a 3 witnesses)

Defense rests

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)

-- repeat this procedure until you are out of witnesses

illustration

¶ 6

direct, then cross¶ 7 direct, then cross¶ 8 direct, then cross

Plaintiff can elect “rebuttal”

Plaintiff rests

But can only be for rebuttal purposes; not for new or forgotten evidence

Trial Procedure

2. Plaintiff’s Case/ Defense 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)

-- repeat this procedure until you are out of witnesses

-- Defendant takes his/her turn (same process)

illustration

Δ 4 direct, then crossΔ 5 direct, then cross

The defense then has the right of “surrebuttal”

Defense rests

Again, only for rebuttal purposes

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.

illustration

1. criminal = beyond a reasonable doubt

2. civil = preponderance of evidence

Burden of Proof:

50%

90% ???

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) Time