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Anatomy of a Criminal Trial
Space Coast Community Law School January 26, 2017 Judge David E. Silverman Brian Onek, Esq.
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How does the case get started?
Arrest Probable cause Warrant Capias Notice to Appear Traffic Citation Summons Ordinance Violation
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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
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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
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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
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How does the State charge the crime?
Information Indictment Purpose Contents Time for Filing Challenges to the Information Example from High School Mock Trial
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When will the trial be held?
Statute of limitations Constitutional speedy trial Speedy trial rule Felonies – 180 days Misdemeanors – 90 days
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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
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What is a motion to suppress?
Motions to suppress based on unlawful Detention Search or seizure Acquisition of statements Motions in Limine Relevance Hearsay
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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
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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
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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
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How is a trial conducted?
Jury Selection Preliminary Instructions Opening Statements Witnesses and Exhibits Examination Cross-Examination Closing Arguments Instructions on Law
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What does the State have to prove?
Elements of the Offense Example from High School Mock Trial Manslaughter Death Causation Culpable Negligence
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What is an Opening Statement?
Purpose of Opening Statement Limitations of Opening Statement Example from High School Mock Trial Prosecution Defense
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How is evidence admitted?
Direct and Cross Examination Purpose Limitation Documentary Evidence Tangible Physical Evidence Example from High School Mock Trial
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What mistakes do witnesses make?
Common problems Intimidated witness Run-on witness Advocate witness Opinions or Speculation Adverse facts Hostile or Argumentative witness
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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
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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
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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
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What about an appeal? Motions Judgment of acquittal New trial
Mitigation Appeal Next level Capital appeals Supersedeas bond
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