Anatomy of a Criminal Trial Space Coast Community Law School January 26, 2017 Judge David E. Silverman Brian Onek, Esq.

How does the case get started? Arrest Probable cause Warrant Capias Notice to Appear Traffic Citation Summons Ordinance Violation

What Court will the case be in? Circuit Court Felonies More than 1yr prison / 5yr - $5,000 fine Murder, Sexual Battery, Robbery, Burglary, Drugs HTO DWLSR, 3rd Petit Theft, Battery or DUI County Court Misdemeanors 1yr or less jail / $1000 (not traffic infractions) DUI, Battery, Theft, Resisting Arrest

What happens at first appearance? Within 48 Hours Release by schedule bond or PTR Video or Live Judge’s Role: Advise defendants Determine probable cause Appoint counsel Set reasonable bond

How does the judge set bail? Presumption for non-monetary release Exception for violent offenses Criteria for bond Nature of offense Prior criminal history Legal constraint Community ties Health condition

How does the State charge the crime? Information Indictment Purpose Contents Time for Filing Challenges to the Information Example from High School Mock Trial

When will the trial be held? Statute of limitations Constitutional speedy trial Speedy trial rule Felonies – 180 days Misdemeanors – 90 days

What discovery is provided? State’s Obligation for Discovery Witnesses, Statements Documents, Physical Evidence Depositions, Felony/Misdemeanor Exculpatory Evidence Defense Discovery Obligations Witnesses, Documents intent to use Physical evidence

What is a motion to suppress? Motions to suppress based on unlawful Detention Search or seizure Acquisition of statements Motions in Limine Relevance Hearsay

What is a “trial strategy?” Trial or Plea Bargain Jury or Nonjury Trial Defenses Self-Defense, Alibi, Accident, Insanity Theme – Evidence and Argument Testifying or Remaining Silent Jury Selection

How are jurors selected? Random selection Driver’s license and voter registration Legal disqualification Absolute disqualification – Non-citizens, convicted felons Excuse if requested – Pregnant, over 70 Discretionary excusals – hardship or inconvenience

What is voir dire? Preliminary questioning by Court Ability to serve Scheduling problems Questioning by counsel Information and indoctrination Experiences, feelings and opinions Separate questioning Challenges Cause Peremptory

How is a trial conducted? Jury Selection Preliminary Instructions Opening Statements Witnesses and Exhibits Examination Cross-Examination Closing Arguments Instructions on Law

What does the State have to prove? Elements of the Offense Example from High School Mock Trial Manslaughter Death Causation Culpable Negligence

What is an Opening Statement? Purpose of Opening Statement Limitations of Opening Statement Example from High School Mock Trial Prosecution Defense

How is evidence admitted? Direct and Cross Examination Purpose Limitation Documentary Evidence Tangible Physical Evidence Example from High School Mock Trial

What mistakes do witnesses make? Common problems Intimidated witness Run-on witness Advocate witness Opinions or Speculation Adverse facts Hostile or Argumentative witness

What is improper argument? Closing Argument Questions and lawyer’s statements - not evidence Argument – highlight facts and fair inferences Character attacks, facts not in evidence Mischaracterizing the law Comments on silence – burden shifting

How does the judge sentence? Plea Bargain Felony Sentencing guidelines Level of the offense, additional offenses, prior criminal history, legal constraint, victim injury Downward departures Capital cases Sentencing hearing - Advisory verdict Aggravating – mitigating circumstances Overriding the verdict Misdemeanor

What will the sentence be? Incarceration Mandatory terms, enhanced maximums for habitual offender, firearm use, prison releasee, drug trafficking, capital Fine and costs Probation Rehabilitation -- classes and counseling, community service, drug testing Community Control

What about an appeal? Motions Judgment of acquittal New trial Mitigation Appeal Next level Capital appeals Supersedeas bond

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