What actually happens during trial will determine whether or not there is a conviction and a great deal of what happens will actually depend on the accused. It is fair to say that a trial is like a play. The accused is the actor and the jury is the audience. If the accused gives a good performance, the audience applauds and the accused goes home. If the accused gives a bad performance, the audience boos and that could easily result in the jury voting for a conviction.
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Never lose sight of the fact that the prosecutor is well aware of this and, aside from presenting their case, if they can make the jury dislike the accused, that is very beneficial to the State. A jury who dislikes an accused will have no problem convicting them, so a key element is in the demeanor of the accused and how they come across to the jury.
In most instances, the accused has never been to trial and many have never been inside a courtroom aside from being present during various hearings that may have taken place, but the fact is, a courtroom can be a very scary and unnerving experience. The demeanor of the accused will have a great deal to do with the entire case and that includes how the accused dresses, how they act sitting at the defense table, and how they testify.
Normally, every courtroom is basically the same. There are a row of benches in the rear for spectators, two fairly large tables where the defense and prosecution sit, a witness box, chairs for the jury and alternates, and the judge’s bench. When the accused arrives in the courtroom, they will usually sit at the table with their attorney and the prosecutor sits at the other table. Usually, before anything is done, the Court will hear whatever motions will need to be heard. One thing the accused needs to be prepared for are motions by the State to exclude certain evidence and/or testimony that the defense may be planning to use. All of these motions are normally held pretrial and the results can be devastating to the accused.
As a perfect example, say the accused had previously been evaluated for sexual preference with the Abel Assessment for Sexual Interest. The defense would have listed the individual who did that evaluation as one of their experts. The State may file a Motion to Exclude that testimony, stating that it does not meet either the Daubert or Frye Standards. In any state, there are specific laws which govern what expert testimony would be allowed. Most states are Daubert states, but there are still a few that would be considered Frye. Frye was the governing law for years until Daubert vs Merrell Dow Pharmaceuticals Inc., 509 U.S., 113 S Ct 2786 (1993), took its place. Daubert is one of the most important decisions to come along in years. In the most simple terms, Daubert states that all expert testimony must be based on scientific foundation and not simply an opinion.
While that may not seem important, consider that many innocent people have been convicted on charges of a criminal offense simply because of the “expert” opinion of a psychologist; an opinion that was absolutely worthless, but an opinion that was accepted by the jury simply because that psychologist was qualified as an “expert,” and was called “Doctor.” As a perfect example, say the State’s expert psychologist testified that the accusing child matched the characteristics and profile of a molested child, or that the accused matched the characteristics and profile of a child molester. There are no such characteristics and there is no such profile. Those characteristics and profiles simply do not exist in the scientific community, therefore, Daubert would keep that testimony out and, if it was allowed in over the objection of the defense, that would be considered “reversible error” for appeal purposes, should the accused be convicted.
Also consider that, prior to Daubert, when psychologists testified for both the prosecution and the defense, the “winner,” was the one, not necessarily with the facts or the truth, but with the “silver tongue.” In Daubert, the Court stated that when “expert”, “scientific” testimony is offered, the trial judge must determine whether the expert is proposing to testify to scientific knowledge that will assist the trier of fact to understand or determine a fact in issue. This entails a preliminary assessment of whether the reasoning or methodology underlying the testimony is scientifically valid and of whether that reasoning or methodology properly can be applied to the facts in issue. Focus must be solely on principles and methodology. Scientists typically distinguish between “validity,” (does the principle support what it purports to show?) and “reliability” (does application of the principle produce consistent results?). The key factor is to evidentiary reliability; that is, trustworthiness. In a case involving scientific evidence, evidentiary reliability will be based upon scientific validity.
In the above example discussing the Abel Assessment, clearly, the Abel has been accepted in the overall scientific community as a valid tool in the treatment of sex offenders, but not in their identification. One major argument with the Abel Assessment is that, regardless of who administers the testing, it is sent to Dr. Abel’s office in Atlanta, Georgia for the results, so no one has any idea how it is actually graded, nor can they explain the scientific validity behind it, including the error rate. When the defense plans to admit an Abel Assessment, if the prosecutor objects, the defense should request a pretrial Daubert or a Frye Hearing and, without question, in the case of an Abel Assessment, they should use Dr. Abel personally as their expert. No one can explain the assessment to the Court better than Dr. Abel. He invented the test and he will usually testify at those hearings telephonically.
Now, let’s examine other testimony that may or may not be allowed. Let’s say that an allegation of abuse resulted from a heated custody battle, as many do. Let’s say the accused is the father and there is absolutely no doubt in his mind that his wife or ex-wife has coached or used their child and a false allegation of sexual abuse, to gain the upper hand in the custody battle. Let’s further say that, during the custody battle, a custody evaluator has determined that the father would be the more fit parent to have custody and further, that testing has indicated that the mother has a very serious psychological disorder. Obviously, the father will want that evidence and testimony used during his criminal trial, however, do not be surprised at all if the Court denies it. Regardless of how much the father, the accused, may believe that his ex-wife is the person behind the allegation, it is rare that he can actually prove it, so it is not unusual for the Court to rule that any evidence or testimony identifying the ex-wife’s problems or issues will not be allowed since it is the child who is making the allegation.
The next two issues are, how should the accused dress and how should they act? You do not want to dress in any manner that would cause concern for the jury. A “preppie” outfit, such as a sport coat and slacks could easily send the message of, “Look at me.” “I am better than you are.” You also do not want to dress in a manner where you come across to the jury as unkept, such as wearing wrinkled clothing and un-shined shoes.
Aside from dress, the most important discussion will be how the accused should act. When you are sitting at the defense table, sit calmly, with your feet on the floor in front of you and your hands on the table. Yes, you can make notes, but do not lean back in your seat with your legs crossed. That could easily send a message to the jury that you just don’t seem to care. Never lose sight of the fact that most people sitting on a jury will watch the accused carefully, looking for some hint as to whether they are guilty or not, or even whether they like them or not.
When the jury is seated, look at them occasionally, but all of them. Do not pick one and do not simply sit there staring at them. When someone is on the witness stand, look at them and also either the prosecutor or defense attorney, whoever might be questioning them. Do not sit there with a staring gaze at the witness, especially when they are testifying for the State. That can easily give the appearance that you are trying to intimidate them. Show no reaction whatsoever to any evidence or testimony. In other words, if the child accuser is testifying, regardless of what they say or how ridiculous it may sound, do not make facial expressions of disbelief. Any reaction you make can easily be misinterpreted by they jury.
Now, when you are in the courtroom and all motions are complete, the judge will ask that the jury panel be brought in. In some states a jury consists of 12 people and in some states only 6, however, there will be a number of people in the initial jury panel. For the purposes of our discussion we will use 12. That actual jury panel may consist of 30 to 50 people. From those you get your jury of 12 and either 1 or 2 alternates. An alternate is someone who sits through the trial as a possible member of the jury and, in the event someone on the jury gets sick or has to be replaced, an alternate will take their place.
Although the expression used is “picking the jury,” that is not entirely accurate. You do not “pick” a jury, but rather you remove those from the panel that you believe would be detrimental to your case and what you have left is your jury. There are two ways to remove prospective jury members; one is through cause and the other would be that both the defense and the State have the ability to remove a certain number just because they want to. Removing for cause means that there is some reason that person would not be able to serve. Say, for example, a female member of the panel tells the Court that she was molested as a child and could not be fair and impartial in this case. Obviously, she would be removed for cause.
The real key to selecting the proper jury is through a thorough and proper jury voir dire, or pretrial “questioning” of the jury panel by the judge, the prosecutor and the defense attorney. Some states allow the prosecutor and the defense attorney to question the overall jury panel in open court and, in some states, there is “individual” jury voir dire, which, obviously, can take a great deal of time.
It is imperative that the defense attorney ask the proper questions. It provides the defense attorney with an excellent opportunity to educate the jury and to weed out those he does not want. Keep in mind that when the jury panel is brought into the courtroom the Court will read the indictment to them, so at that point, they know what the case is about and what the accused has been charged with. Also at that point, many people on the panel will form an immediate dislike for the accused and will begin watching them like a hawk. There are no characteristics, nor is there an accepted profile of a child molester, but when the indictment is read, many people on that panel will begin trying to figure out in their mind if the accused “looks” like what they would perceive a child molester to look like.
The defense attorney should be well prepared to question the entire panel and those questions need to go a lot further than, “Will you all promise to wait until all the evidence is in before making a decision?” There are questions specific to your issues and they need to be asked. In addition, as they are asked, the accused and anyone else they may have helping them needs to keep a careful eye on everyone in the jury panel. As an example, let’s say the defense attorney asks, “Is there anyone here who does not believe that a mother is capable of coaching a child into making a false allegation of sexual abuse?” As that question is being asked, you need to determine if anyone on the panel reacts in a negative manner. The last person you want seated on your jury was a female who used her own child to get the upper hand in her own custody battle. Point is, you must ask the questions to weed out potential problems and also to educate the entire panel.
Once jury voir dire concludes, the accused will discuss with their attorney various problems they see with members of the panel: IE, people they want to keep and people they want to eliminate. Once the selection is made, the defense attorney, the prosecutor and the judge will discuss the challenges and, after eliminating those requested by the defense and by the prosecution, you are left with 12 in the jury box and either one or two alternates.
At that point, the jury will be sworn in and the judge will instruct them that they are not to discuss the case with each other, nor form an opinion until all the evidence is in. Following that, the prosecutor makes their opening statement, telling the jury what they believe their case will show. The defense attorney can, but does not have to make an opening statement. The State is obligated to “make” their case. The defense is not obligated to do anything. The defense does not have to make any opening statement, they do not have to call any witnesses and they do not have to present evidence at all, but the fact is, usually they do.
Once opening statements are completed, the State begins presenting their case by calling their first witness and normally, that is the child accuser. The prosecutor questions the child and that is what is known as “Direct Examination.” Once that is completed, the defense has the right to “Cross Examine” that witness. When that is complete, the State can “Re-Direct” if they have more questions, and the defense can “Re-Cross” if they desire to do so. It is so important, during this phase, that the defense rely on strategy and strategy can change minute to minute. In one prior case, the prosecutor called the child witness to the stand. The child made absolutely no disclosure whatsoever and, realizing they were getting no where, the prosecutor said, “No further questions.” The prosecutor was hoping that the defense would question the child and that would then open doors and get the child talking, however, the defense attorney simply said, “No questions.” That shut the prosecutor down and the jury was left with a child who made no allegations, not something the State planned for or wanted. Problem is, there are those defense attorneys who would have decided to go ahead and question the child anyway and that could have opened Pandora’s Box, if you will.
The State will call all their witnesses, present all their evidence and then rest. At that point, usually the defense presents a Motion for a Directed Verdict, asking the Court to dismiss the case. Obviously, most are rejected and at that point, the defense can either rest or put on their case.
During Testimony
In the Courtroom
- As the trial begins and progresses, sit at the table with your attorney, feet flat on the floor and hands on the table in front of you.
- Make notes, by all means, but do not sit there, writing furiously as someone is testifying.
- Show no reaction whatsoever to anyone giving testimony, regardless of what that testimony may be. Simply put, the accused may mean one thing, but the jury may take it as something else, so it is far better not to react to anything.
- Do not sit and glare at someone on the witness stand. That can easily be seen as you trying to intimidate them.
- Look at the jury, but do not pick one juror. Look at all of them in a scanning manner.
- Look back and forth at the prosecutor and a witness he has on the stand, as he questions them. Look back and forth at the defense attorney and a witness that he has on the stand, as he questions them. Look at the judge during objections or when he is talking.
- There will normally be two sides of spectators sitting in the courtroom. Those for the prosecution, sitting behind the prosecutor and those for the defense, sitting behind the defense table. Do not glare at the spectators sitting behind the prosecutor and do not sit there and smile or laugh at spectators sitting behind the defense.
- When there is any break, or the jury enters or leaves the courtroom, stand up. That shows respect and do the same when the judge arrives or leaves.
On the Witness Stand, In General
- If a jury trial, talk to the jury and if a bench trial, talk to the judge. It shows respect and they are the ones deciding whether you are credible or not.
- If you are asked a question by either the defense attorney or the prosecutor and there is an objection, do not answer the question until you are told to do so or not to do so by the judge.
On the Witness Stand, Direct Examination by Defense Attorney
- This will be the period where the defense attorney asks questions, including, “You have heard the allegations that have been made against you. Are you guilty of them?”; to which, obviously, you respond “no.”
- When you are asked a question, look at your attorney, but when you answer, look at the jury. No, do not bob your head between the attorney and the jury like a parrot. If the question requires a short yes or no answer, just continue looking at the attorney, but when you explain something, look at the jury and talk to them.
- Keep in mind that the prosecutor cannot question you about issues that your attorney did not raise in his direct examination, but be aware that you yourself can open doors for the prosecutor by making broad statements such as “No, sir. I am a person of good character.” Now, that is a little extreme, but since you said you are of good character, you have now opened the door for the prosecutor to bring witnesses to rebut that testimony or show you are “not” of good character.
On the Witness Stand, Cross Examination by the Prosecutor
- Understand right away that there is nothing more the prosecutor would rather do than get you upset on the witness stand and have you come across to the jury as angry, or even a monster, so the first rule of thumb is, treat the prosecutor with nothing but respect.
- Do not allow the prosecutor to put you into any position where you respond to any question in an angry, smart aleck or snide manner. Regardless of how they may act, you remain calm and answer their questions in a positive manner, short and sweet. In that manner, if the prosecutor attempts to rile you, the jury will see them as the villain and not you. That can actually gain sympathy for the accused.
- Keep your answers and comments to a minimum. The defense attorney will have an opportunity to correct anything during their re-direct.
- Do not allow the prosecutor to trap you by asking rapid fire type questions and you answering accordingly. You can keep the pace slow by stating, “Could you repeat the question?” Make sure you understand the question you are answering and again, do not allow the prosecutor to agitate you or make you lose your temper. Only you have control over that.
- Many times a prosecutor will hit you with something that requires an explanation, but they insist on a yes/no answer, attempting to make you look bad. Again, anything that needs to be explained can be dealt with by your attorney on Re-Direct, so do not be upset over that.
When the defense completes their case, they rest and the State has the ability to call rebuttal witnesses if they so desire. If they do not, the case is over and closing arguments begin. The State begins their closing argument, followed by the defense and then the State has the right to go again, since the entire burden of proof is on them.
Once closing arguments are complete, the judge gives the jury instructions and they begin to deliberate. It takes a unanimous jury, (all members) to convict or acquit. If you have 1 or more who do not and will not agree with the others, you have a hung jury and a mistrial.
If the verdict is not guilty, the judge will usually ask if either the prosecution or defense wants the jury polled, meaning that each juror is asked if they voted as was indicated. If the verdict is guilty, the judge will still ask if the jury needs to be polled. At that point, the defense attorney will normally ask that the defendant be allowed to remain free, pending sentencing and/or appeal. On a rare occasion, the Court agrees, but more often than not the accused is removed by the deputies and taken to jail. Following that, the defense attorney renews his request for bond, files a standard motion for a new trial and someone will file a notice of appeal.
Do not over act, or respond to things in a manner that could be misleading to others. Be yourself, talk from the heart and do not be afraid to show your emotions when you get on the stand. That jury or that judge has the future of the falsely accused in their hands so be yourself and again, speak and act from the heart.
