TLI Textbook Part 1

TLI Textbook TLI Program
TLI Textbook
Critical Thinking and Advocacy as a Foundation of a Free Society
Section A: Introduction to Adversarial Procedure
Courtroom Layout Illustrations

Trial Basics
Before you prepare your case, there are basic legal concepts you must grasp in order to fulfill your role as
an attorney in a mock trial. You should have a basic understanding of how our legal system operates,
you must understand the order of a mock trial and be able to visualize the setup of a courtroom, and you
must be familiar with the contents of a mock trial case file.
I. UNDERSTANDING THE LAW

There are two kinds of cases: “civil” and “criminal.” Both types of cases involve laws, also referred to as
“ordinances” and “statutes,” enacted by the legislative bodies of the local, state, and federal
governments.
When an individual, business, or government agency is charged with violating a law, a civil or criminal
case may be brought, depending on the law involved. Many times, cases are settled or dropped soon
after being filed. a small number of cases, however, result in trials.
At trial, the parties on each side of a case argue the law and the facts. The judge decides all issues or
questions of law; it is the judge’s job to determine which laws apply to the case and how they should be
applied. In jury trials, the members of the jury decide the issues of fact that are contested by the parties.
In bench trials, the presiding judge performs this function, listening to the evidence and deciding what to
believe. When serving in this capacity, the judge or jury is referred to as the “finder of fact”, “fact-finder,”
or “trier of fact” of the case. While deliberating, the fact-finder must rely upon the testimony of witnesses
and the evidence presented; the lawyers’ arguments are considered only to the extent they explain the
witnesses’ testimony and the evidence.
Many court decisions are recorded and collected for future reference by the public. When a judge
interprets and applies a law, her decision is referred to as “case law.” …
B. Criminal Cases
Criminal cases are brought by the government against individuals or businesses accused of violating
local, state, or federal criminal laws. The parties in criminal cases are the “prosecution” and the
“defense.” The prosecution is the local, state, or federal government (depending on the law violated),
which is represented by a local, state, or federal prosecutor. The defendant is the accused individual or
business, who is represented by private counsel or by a government defense attorney (typically called
a “public defender”) if he lacks the financial resources to pay for his own attorney.
Laws defining crimes list the criminal elements the government must prove to convict the defendant.
These elements usually include a physical act and a mental state. Most statutes also set forth the range
of sentences available if the defendant is convicted.
1. The burden of proof

Our criminal justice system is based on the premise that allowing a guilty person to go free is better than
putting an innocent person behind bars. For this reason, the defendant is presumed innocent and the
prosecution carries a heavy burden of proof during criminal trials. (Note: there is no finding of “innocent”
in criminal trials; only “guilty” or “not guilty.”)
To prevail in a criminal case, the prosecution must prove each element of the crime “beyond
a reasonable doubt.” Despite its frequent use, reasonable doubt remains difficult to define. As the U.S.
Supreme Court explained, reasonable doubt is “doubt based on reason which arises from evidence or
lack of evidence.” Johnson v. Louisiana, 406 U.S. 356, 360 (1972). Thus, a defendant can be found guilty
even if a possible (but unreasonable) doubt remains in the minds of the jurors. Conversely, the defendant
can be found not guilty even if the jurors believe that the defendant probably committed the crime but
they are not convinced beyond a reasonable doubt. If a defendant is found guilty in a criminal case he
may be sentenced by the presiding judge to serve time in jail, fulfill conditions of supervised release, or
even perform community service.
Be aware that under some criminal statutes, the burden of proving particular elements of the crime or
a defense to the crime shifts between the parties. …
C. Case Law
In addition to understanding the statutes in your case, you should also look to the case law to determine
how those laws have been interpreted and applied by courts. In mock trials, relevant case law is
provided to the participants along with the case materials. Just like a legislative enactment, case law is
binding on the parties insofar as it is used to determine the meaning of a law. When basing an argument
on case law, however, it is important that you argue how the facts of your case are more easily
compared to, than distinguished from, the original case.
THE BASICS
CIVIL CASES CRIMINAL CASES

Examples: Personal Injury, Civil Rights Burglary. Murder
Title of Parties: Plaintiff and Defendant Prosecution and Defense
Burden of Proof: Preponderance of the Evidence Beyond a Reasonable Doubt
Possible Verdicts: Liable or Not Liable Guilty or Not Guilty
Common Remedy: Payment of Damages Prison Sentence
II. THE ORDER OF A TRIAL

The different stages of a mock trial proceed as follows:
A. Opening Statements
1. Plaintiff/Prosecution
2. Defendant/Defense
B. Witness Testimony (the number of witnesses may vary)

1. Plaintifl/Prosecution Case in Chief
a. Direct examination of Witness 1 by Plaintiff/Prosecution
b. Cross examination of Witness 1 by Defendant/Defense
c. Redirect and recross of Witness 1
d. Direct examination of Witness 2 by Plaintiff/Prosecution
e. Cross examination of Witness 2 by Defendant/Defense
1
f. Redirect and recross of Witness 2*
g. Direct examination of Witness 3 by Plaintiff/Prosecution
h. Cross examination of Witness 3 by Defendant/Defense
i. Redirect and recross of Witness 3*
2. Defendant/Defense Case in Chief
a. Direct examination of Witness 4 by Defendant/Defense
b. Cross examination of Witness 4 by Plaintiff/Prosecution
c. Redirect and recross of Witness 4*
d. Direct examination of Witness 5 by Defendant/Defense
e. Cross examination of Witness 5 by Plaintiff/Prosecution
f. Redirect and recross of Witness 5*
g. Direct examination of Witness 6 by Defendant/Defense
h. Cross examination of Witness 6 by PlaintiflTProsecution
i. Redirect and recross of Witness 6*
1
At the judge’s discretion, if requested.
C. Closing Arguments
1. Plaintifl/Prosecution (some portion or all)
2. Defendant/Defense
3. Rebuttal by Plaintifl/Prosecution (if time remains)
D. Jury Deliberations (if a jury is the fact-finder)
E. Verdict Announcement
III. THE FORMAT OF A COURTROOM

Mock trials attempt to mirror actual trials in every way possible, including the setup of the courtroom. At
the front of each courtroom there are places set aside for the presiding judge, the clerk, and the
witnesses. Likewise, the jury is separated from those observing the trial. Jurors sit along one side of the
courtroom with the plaintiff/prosecution seated closer to the jury and the defendant/defense seated
further away. The diagram at the bottom of this page illustrates the setup of a courtroom.
IV. THE ANATOMY OF A CASE FILE

For the most part, mock trial case files include the same basic components.
Case Summary. Most mock trial case files begin with a short summary of the case. The case summary will
help you determine the arguments the drafter of the case anticipates each side making during the trial. If
available, read the case summary carefully and often as you prepare for trial.
Stipulations. Some mock trial case files also include a list of “stipulations”. A stipulation is an agreement
between the parties. Stipulations may set forth important facts not included elsewhere in the case file or
they may set forth testimony or exhibits to be automatically admitted into evidence. You are bound by
the stipulations listed in your case file; you cannot ignore or contest them, no matter how damaging they
are to your case. Thus, you should be constantly aware of stipulations as you prepare for trial.
Witness Statements. In mock trials, witness statements compose the bulk of the case; they include the
facts, favorable and unfavorable, that each witness may testify to during trial. In most instances, witness
statements represent the summarized prior sworn testimony of the witnesses and are referred to as
“affidavits.” Witness statements may also be in the form of a “deposition” transcript. a deposition is
a formal meeting that includes the counsel for both parties and a testifying witness. During a deposition,
the witness is asked questions under oath by each side and the testimony is recorded by a court reporter.
Whatever their form, witness statements include (or sometimes notably fail to include) the facts that the
parties for both sides will attempt to establish at trial.
Exhibits. Mock trial exhibits are usually documents, though they can also reference tangible items that
you can bring to your trial to enter as evidence. For instance, your case might include a picture of the
alleged murder weapon or it could simply list the weapon as an exhibit and indicate that a facsimile of
the weapon is an acceptable exhibit at trial.
Statutes and Case Law. Your case file should also contain the statutes and case law that are applicable
to your case. As discussed above, the statutes and case law in your case file provide an outline of the
legal arguments both sides may make at trial. Although you are only likely to discuss the law during your
opening statement and closing argument at trial (and, even then, sparingly), they are an integral part of
your trial preparation.
Jury Instructions and Verdict Forms. Jury instructions, which provide summaries of the relevant statutes
and case law (among other things), may also be included in your case file. When provided, you should
use the jury instructions as a guide to understanding the provided statutes and case law. The same goes
for jury verdict forms, when included.
Rules of Evidence, Procedure, and Ethics. The final additions to your case file are the rules of evidence to
be used in your trial and, in some cases, rules of procedure and ethics you must also follow. As with the
statutes and case law, these rules will guide your trial preparation.
Section B: The Structure of the Criminal Justice System
PRESIDENT’S COMMISSION ON LAW ENFORCEMENT

AND THE ADMINISTRATION OF JUSTICE,
THE CHALLENGE OF CRIME IN A FREE SOCIETY
7-12, 91-107, 127-137, 141-150 (1967)
Any criminal justice system is an apparatus society uses to enforce the standards of conduct necessary to
protect individuals and the community. It operates by apprehending, prosecuting, convicting, and
sentencing those members of the community who violate the basic rules of group existence. The action
taken against lawbreakers is designed to serve three purposes beyond the immediately punitive one. It
removes dangerous people from the community; it deters others from criminal behavior; and it gives
society an opportunity to attempt to transform lawbreakers into law-abiding citizens. What most
significantly distinguishes the system of one country from that of another is the extent and the form of the
protections it offers individuals in the process of determining guilt and imposing punishment. Our system of
justice deliberately sacrifices much in efficiency and even in effectiveness in order to preserve local
autonomy and to protect the individual…
The criminal justice system has three separately organized parts – the police, the courts, and corrections –
and each has distinct tasks. However, these parts are by no means independent of each other. What
each one does and how it does it has a direct effect on the work of the others. The courts must deal, and
can only deal, with those whom the police arrest: the business of corrections is with those delivered to it
by the courts. How successfully corrections reforms convicts determines whether they will once again
become police business and influences the sentences the judges pass: police activities are subject to
court scrutiny and are often determined by court decisions. And so reforming or reorganizing any part or
procedure of the system changes other parts or procedures. a study of the system must being by
examining it as a whole…
I. Agencies and Officials of the Criminal Justice System

A. THE POLICE
At the very beginning of the process – or, more properly, before the process begins at all – something
happens that is… seldom recognized by the public law enforcement policy is made by the policeman.
For policemen cannot and do not arrest all the offenders they encounter. It is doubtful that they arrest
most of them. A criminal code, in practice, is not a set of specific instructions to police men but a more or
less rough map of the territory in which policemen work. How an individual policeman moves around that
territory depends largely on his personal discretion.
That a policeman’s duties compel him to exercise personal discretion many times every day is evident.
Crime does not look the same on the street as it does in a legislative chamber. How much noise or
profanity makes conduct “disorderly” within the meaning of the law? When must a quarrel be treated as
a criminal assault at the first threat or at the first shove or at the first blow, or after blood is drawn, or when
a serious injury is inflicted? How suspicious must conduct be before there is “probable cause” the
constitutional basis for an arrest? Every policeman, however complete or sketchy his education, is an
interpreter of the law.
Every policeman, too, is an arbiter of social values, for he meets situation after situation in which invoking
criminal sanctions is a questionable line of action It is obvious that a boy throwing rocks at a school’s
windows is committing the statutory offense of vandalism, but it is often not at all obvious whether
a policeman will better serve the interests of the community and of the boy by taking the boy home to
his parents or by arresting him. Who are the boy’s parents? Can they control him? Is he a frequent
offender who has responded badly to leniency? Is vandalism so epidemic in the neighborhood that he
should be made a cautionary example? With juveniles especially, the police exercise great discretion.
Finally, the manner in which a policeman works is influenced by practical matters: the legal strength of
the available evidence, the willingness of victims to press charges and of witnesses to testify, the temper
of the community, the time and information at the policeman’s disposal. Much is at stake in how the
policeman exercises this discretion If he judges conduct not suspicious enough to justify intervention, the
chance to prevent a robbery, rape, or murder may be lost If he overestimates the seriousness of
a situation or his actions are controlled by panic or prejudice, he may hurt or kill someone unnecessarily.
…
B. PROSECUTORS
The key administrative officer in the processing of cases is the prosecutor. Theoretically the examination
of the evidence against a defendant by a judge at a preliminary hearing, and its reexamination by
a grand jury, are important parts of the process. Practically they seldom are because a prosecutor
seldom has any difficulty in making a prima facie case against a defendant. [M]uch more often than not
grand juries indict precisely as prosecutors ask them to. The prosecutor wields almost undisputed sway
over the pretrial progress of most cases. He decides whether to press a case or drop it. He determines the
specific charge against a defendant. When the charge is reduced, as it is in as many as two-thirds of all
cases in some cities, the prosecutor is usually the official who reduces it…
The prosecutor’s discretion to decide what charge to bring against, and what disposition to recommend
for, an offender is indicative of his crucial position in the law enforcement system… Except for the judge
he is the most influential court official.
Yet many prosecutors in this country are part-time officers. They generally arc elected or selected on
a partisan political basis and serve for relatively short terms. In many places the office traditionally has
been a stepping-stone to higher political office or the bench. Prosecutors in most places are so poorly
paid that they must, and are expected to, engage in private law practice. This creates inevitable
conflicts between the demands of the office and of private practice. It can lead to undesirable potential
conflicts of interest in dealings with other attorneys, judges, and members of the community. As the
participation of defense counsel in criminal cases grows, the need to improve the quality of the
prosecution becomes increasingly urgent…
C. THE JUDICIARY
The Magistrate
In direct contrast to the policeman, the magistrate before whom a suspect is first brought usually
exercises less discretion than the law allows him. He is entitled to inquire into the facts of the case, into
whether there are grounds for holding the accused. He seldom does. He seldom can. The more promptly
an arrested suspect is brought into magistrate’s court, the less likelihood there is that much information
about the arrest other than the arresting officer’s statement will be available to the magistrate Moreover
many magistrates, especially in big cities, have such congested calendars that it is almost impossible for
them to subject any case but an extraordinary one to prolonged scrutiny. …
Judges
The quality of the judiciary in large measure determines the quality of justice. It is the judge who tries
disputed cases and who supervises and reviews negotiated dispositions. Through sentencing the judge
determines the treatment given to an offender. Through the exercise of his administrative power over his
court he determines its efficiency, fairness, and effectiveness. No procedural or administrative reforms will
help the courts, and no reorganizational plan will avail unless judges have the highest qualifications, are
fully trained and competent, and have high standards of performance.
Selection of Judges. Methods for the selection of judges vary from jurisdiction to jurisdiction, and some
States use different methods of selection for upper court judges than for lower court judges In [28] States
judges are appointed either by the Governor or the legislature; in some of these States they are first
appointed and then must run for election on their records; in [14] States they are elected without party
labels, and in [8] States they are elected on a partisan basis. In a number of States there is a professional
or nonpartisan screening process that develops an identified group of professionally qualified persons
from which all nominations or appointments are made, or that reviews proposed nominations or
appointments for professional competence. Sometimes this process is required by State constitution or
statute, sometimes it is informal. Sometimes it is employed for all judges, sometimes only for certain kinds
of judges. It is employed least often in the States in which judges are elected in partisan contests. …
The Lower Courts

In many big cities the congestion that produces both undue delay and unseemly haste is vividly
exemplified in the lower courts – the courts that dispose of cases that are typically called
“misdemeanors” or “petty offenses,” and that process the first stages of felony cases. The importance of
these courts in the prevention or deterrence of crime is incalculably great, for these are the courts that
process the overwhelming majority of offenders.
The nation’s court system was designed originally for small, rural communities. The basic unit of court
organization in most States remains the county, and about two-thirds of the counties in this country still
arc predominantly rural in nature. But most Americans live in an urban environment, in large communities
with highly mobile populations that are being subjected to particular stress. It is the urban courts that
particularly need reform.
[U]ntil legislation [in 1906] increased the number of judges, the District of Columbia Court of General
Sessions had four judges to process the preliminary stages of more than 1,500 felony eases, 7,500 serious
misdemeanor cases, and 38,000 petty offenses and an equal number of traffic offenses per year. An in
evitable consequence of volume that large is the almost total preoccupation in such a court with the
movement of cases. The calendar is long, speed often is substituted for care, and casually arranged out-
of-court compromise too often is substituted for adjudication Inadequate attention tends to be given to
the individual defendant, whether in protecting his rights, sifting the facts at trial, deciding the social risk
he presents, or determining how to deal with him alter conviction… [This problem remains equally serious
or even more serious today. In 1998, there were an average of 3,766 criminal case dispositions per judge.
In a single year (1995) the average number of felony case filings per judge was 487 in Los Angeles, 516 in
San Francisco, and 776 in Denver.]
II. Criminal Justice Procedures

A. OVERVIEW OF THE STEPS IN THE CRIMINAL JUSTICE PROCESS
… The popular, or even the lawbook, theory of everyday criminal process oversimplifies in some respects
and overcomplicates in others what usually happens. That theory is that when an infraction of the law
occurs, a policeman finds, if he can, the probable offender, arrests him and brings him promptly before
a magistrate. If the offense is minor, the magistrate disposes of it forthwith; if it is serious, he holds the
defendant for further action and admits him to bail. The case then is turned over to a prosecuting
attorney who charges the defendant with a specific statutory crime. This charge is subject to review by
a judge at a preliminary hearing of the evidence and in many places if the offense charged is a felony,
by a grand jury that can dismiss the charge, or affirm it by delivering it to a judge in the form of an
indictment. If the defendant pleads “not guilty” to the charge he comes to trial, the facts of his case are
marshaled by prosecuting and defense attorneys and presented, under the supervision of a judge,
through witnesses, to a jury. If the jury finds the defendant guilty, he is sentenced by the judge to a term in
prison, where a systematic attempt to convert him into a law-abiding citizen is made or to a term of
probation, under which lie is permitted to live in the community as long as he behaves himself.
Some cases do proceed much like that, especially those involving offenses that are generally considered
“major”: serious acts of violence or thefts of large amounts of property. However, not all major cases
follow this course, and in any event, the bulk of the daily business of the criminal justice system consists of
offenses that axe not major – of breaches of the peace, crimes of vice, petty thefts, assaults arising from
domestic or street-comer or barroom disputes. These and most other cases are disposed of in much less
formal and much less deliberate ways…
B. THE INITIAL STAGES OF A CRIMINAL CASE

Investigation
When patrol fails to prevent a crime or apprehend the criminal while he is committing it, the police must
rely upon investigation. Every sizable department has a corps of investigative specialists – detectives –
whose job is to solve crimes by questioning victims, suspects, and witnesses, by accumulating physical
evidence at the scene of the crime, and by tracing stolen property or vehicles associated with the crime.
In practically every department the caseloads carried by detectives are too heavy to allow them to
follow up thoroughly more than a small percentage of the cases assigned them. In other words, a great
many cases are unsolved by default – or, at least, time will not permit a determination of whether or not
they are solvable.
In the present state of police knowledge and organization many crimes are, in fact, not solvable. In the
great majority of cases, personal identification by a victim or witness is the only clue to the identity of the
criminal. …
The Diversion of Cases Before Charge

The limited statistics available indicate that approximately one half of those arrested are dismissed by the
police, a prosecutor, or a magistrate at an early stage of the case. Some of these persons are released
because they did not commit the acts they were originally suspected of having committed, or cannot
be proved to have committed them, or committed them on legally defensible grounds. The police can
arrest on “probable cause,” while conviction requires proof “beyond a reasonable doubt.” Therefore,
some justified arrests cannot lead to prosecution and conviction.
However, others who are released probably did commit the offenses for which they were arrested. In
some instances offenders who could and should be convicted are released simply because of an
overload of work, or inadequate investigation in the prosecutor’s office. In other cases the police, or
more often prosecutors, have exercised [discretion] to decline to prosecute offenders… who present
clear medical, mental, or social problems that can be better dealt with outside the criminal process…
First offenders are often dealt with in das way. So are persons whose offenses arise from drinking or
mental problems, if the offenses are minor. So are many cases of assault or theft within families or among
friends, of passing checks with insufficient funds, of shoplifting when restitution is made, of statutory rape
when both boy and girl are young, of automobile theft be teenagers for the purpose of joyriding…
C. THE GUILTY PLEA

Most defendants who are convicted – as many as 90 percent in some jurisdictions – are not tried. They
plead guilty, often as the result of negotiations about the charge or the sentence… a plea negotiation
can be, and often is in a minor case, a hurried conversation in a courthouse hallway. In grave cases it
can be a series of elaborate conferences over the course of weeks in which facts are thoroughly
discussed and alternatives carefully explored. Most often the negotiations are between a prosecutor and
defense counsel, but sometimes a magistrate or a police officer or the defendant himself is involved. In
some courts there are no plea negotiations at all. There almost never are negotiations in the cases of
petty offenders. And, of course, many guilty pleasure not the result of negotiation…
D. THE TRIAL
…The cases decided at trial are only a small fraction of the total of cases, but they are most important to
the process because they set standards for the conduct of all cases. The trial decides the hard legal
issues, and reviews and rules on claims of official abuse…
E. SENTENCING
Although the criminal trial on the issue of guilt is a strictly formal procedure, the determination of what is
to be done with a convicted offender is often a rather informal one. a judge, when he sentences needs
facts about the offender and his offense. Both will be absent in those many instances when conviction
has resulted from a plea of guilty and the court lacks, or has inadequate facilities for preparing,
presentence reports. The judge then must rely on the necessarily incomplete and biased oral statements
of the prosecutor, defense counsel, and defendant.
III. The Flow of Cases through the System
GEOFFREY C. HAZARD, JR., CRIMINAL JUSTICE SYSTEM: OVERVIEW

(In 2 Encyclopedia of Crime and Justice 450, 454-456 (S. H. Kadish cd. 1083): [In this essay, the author
identifies four significant characteristics of the criminal justice system.] First, [the system] is required to deal
with a large and never-ending flow of cases. Even though the system attempts to individualize its
response to each offender, and in theory is supposed to treat each case as though it stood alone under
the law, the process is in fact one of mass production. This is not to say that the system was planned as
a mass-production system. Quite the contrary, many difficulties with it arise from the discrepancy
between the fact of mass production and the ideal that each ease can be considered on its own merit.
A second general observation is that the system is pervaded by exercise of loosely controlled discretion,
which is both systemic and particular. Systemically, discretion is exercised to mediate between the high
incidence of crime and the modest resources available to respond to it. Decisions must be made as to
the allocation of the system’s resources These decisions … often … are not based upon open
deliberation. Thus, for example, no legislative act or mayoral directive says that the police shall devote
intensive effort to investigating crimes against police officers, or that they shall deal with rape only where
the victim is willing to carry the prosecution all the way through, but such policies in fact exist in most
communities…
Exercise of discretion is particular in that subsystems and individual officials within the system have a high
degree of autonomy in performing their functions. a policeman is assigned a beat hut the patrol of the
beat is usually under minimal supervision from superior police officers; the patrolman’s allocation of tune
and effort is not subject to anything like the direction given an ordinary office or production-line worker,
for example In prosecutor’s offices, individual deputy prosecutors generally have considerable discretion
in deciding on the types and quality of cases that, should be fully prosecuted… [J]udges … have broad
professional discretion in the exercise of their functions, particularly in sentencing…
Taken as a whole, the system is subject to pervasive formal legal controls, but it is also characterized by
the pervasive exercise of unsupervised discretion. There are dynamic relationships between these two
phenomena because legal rules so thoroughly govern official action it is assumed that the official actions
are under control and that higher administrative controls are unnecessary; and the rigidity of legal
controls creates incentives to seek waivers, a fact that in turn entails exercise of discretion.
[A third point concerns balkanization.] The administrative structure of the criminal justice system is
extremely decentralized. There are about forty thousand different public police forces in the United
States, one for almost every city and for many villages, and usually a separate one in every county. In
some large cities there are several different police agencies, such as transit police or housing police, in
addition to the municipal police as such. In virtually all states, the prosecutorial function is centered at the
county level in the office of the district attorney. Many large cities have a further division of prosecutorial
authority in that municipal legal departments prosecute misdemeanors. The judiciary is usually organized
along county lines. In any case, the work load of judges and supporting court staff is unbalanced and
poorly managed in many jurisdictions.
The correctional system is sharply divided in almost all states between local authorities and state
authorities…
The foregoing description if anything understates the lack of administrative coordination in criminal
justice. A complete account would require describing the separation between various federal criminal
justice agencies and their state counterparts, and between state-level criminal justice agencies, such as
the state police and the state attorney general’s office, and their local counterparts. It would also
describe how these separations impede vital routines, such as controlling the flow of cases from one
subsystem to another, coordinating allocation of resources, and using common terminology and
comparable statistics…
[A fourth] generalization is that the degree of professionalism and competence in the broadest sense
varies considerably throughout the country. The variance is probably much less than it was around 1960,
and certainly less than it was in 1930. The day of the bumpkin sheriff or of the judge who is law unto
himself has virtually passed. Modern communication and interaction disseminate techniques and
standards of performance despite administrative boundaries. Nevertheless, variance remains and has
important consequences "Professionalism” implies certain values, particularly impersonality, neutrality,
and formal rationality in goals and techniques. The fact that professionalism is unevenly distributed
among various elements in the system indicates, among other things, that there are corresponding
differences of public opinion on the underlying issues of value.
Section C: Criminal Procedure Overview
HOW A CRIMINAL CASE BEGINS

There are four common ways to begin a criminal case: (1) the filing of a complaint by a private citizen;
(2) the return of an indictment by a grand jury; (3) in certain cases, a proper arrest without a warrant,
followed by the filing of a complaint; and (4) the issuance of a summons or citation.
Complaint
A criminal case can begin when a person goes to court and files a complaint that another person has
committed an offense. The complaint is followed by an arrest warrant or a summons which is served on
the defendant by a peace officer. The arrest or service of summons constitutes service of process which,
as in civil cases, gives the accused notice of the case against him.
The complaint in a criminal case is a statement of the essential facts constituting the crime charged. It
must designate the statute or ordinance which the accused is alleged to have violated. A warrant is
executed by arresting the defendant and taking him into custody. An officer can issue a summons in lieu
of arrest if it appears the defendant will come to court without being arrested. A summons tells the
defendant when and where he must appear in court, and is merely delivered to the defendant without
placing him under arrest.
Indictment
A criminal case can begin with an indictment. Like a complaint, an indictment is an accusation. In
general, indictments are accusations of felonious conduct against persons who have already been
arrested and referred to the grand jury by a municipal or county court through a process called
"preliminary hearing." Grand juries, however, do not have to wait for cases to be referred, but can make
direct indictments. When this is done, the indictment begins the case. As in cases begun by filing a
complaint, the indictment must be served upon the defendant through a warrant and arrest, or a
summons and delivery of the summons.
The grand jury consists of up to 14 citizens (nine jurors and up to five alternates), who have the power to
inquire into any offense committed in the county. A grand jury is convened in each county at least every
three months. In some larger counties, one or more grand juries may be in continuous session.
An "information" is a substitute for an indictment by a grand jury. It is a formal accusation made by the
county prosecutor. Because a person has a constitutional right to indictment by grand jury in serious
cases, he can be tried on an information only with his consent. Consequently, informations are used less
often than indictments.
Arrest
A criminal case can begin with an arrest. Under certain circumstances, a person can be arrested without
a warrant.
If any person-whether peace officer or private citizen-has probable cause to believe a felony (a serious
crime punishable by death or a penitentiary term) has been committed and that a particular suspect
committed it, that person may place the suspect under arrest and then file a complaint. This is known as
a citizen’s arrest.
In cases other than a felony, only law enforcement officers can make an arrest. They can arrest without a
warrant for any misdemeanor committed in their presence. They can also arrest without a warrant for
misdemeanors if they have reasonable cause to believe a theft offense or offense of violence has been
committed and that the suspect committed it.
The law permits arrests without warrants under the foregoing circumstances because in many cases the
suspect would flee before a complaint could be filed and a warrant issued.
In any case in which an arrest without a warrant is proper, an officer can issue a summons in lieu of arrest.
In traffic cases, or minor misdemeanor cases, the officer can issue a citation in lieu of arrest. (A minor
misdemeanor is an offense punishable only by a fine not exceeding $100.) A citation (a traffic ticket is an
example) is a form of combined complaint and summons. As a practical matter, a summons or citation in
lieu of arrest is usually issued where the offense is relatively minor, the suspect is not disorderly, the suspect
does not appear dangerous to himself or others, and it is reasonable to assume that the suspect will
come to court when required.
When a person is arrested, or served a summons or citation in lieu of arrest, the arresting officer must file a
complaint without delay. Similarly, where a person makes a citizen’s arrest, that person must file a
complaint without delay. In citation cases, the citation itself is filed because it includes the complaint.
Filing the complaint after the arrest (or service of the summons) is necessary because it formally begins
the criminal case in the court.
Bail
When a person 18 or older is arrested, he is entitled to be free pending trial provided he can satisfy the
court that he will come to all court hearings. (In Ohio, a person charged with an offense punishable by
death is not entitled to bail in certain limited circumstances. Further, minors are not entitled to bail. See
Part X at "Constitutional Rights of Minors.") An arrested person must be given the opportunity to be free on
bail as soon as possible. Different guarantees of appearance in court may be required. "Personal
recognizance" is the defendant’s written promise to appear. An "unsecured appearance bond" is
defendant’s promise to appear, coupled with his personal, unsecured promise to pay a certain amount
of money if he does not appear. A "ten percent bond" is the deposit of ten percent of the face amount
of the required bond plus a written promise to forfeit the deposit and the remainder of the bond if
defendant fails to appear. For example, if the bond is $2,000, defendant would deposit $200 and promise
to forfeit the entire $2,000 if he fails to appear. If defendant appeared throughout the case, 90 percent
of the $200 he deposited, or $180 would be returned to him.
Bail may be money or property deposited as security for defendant’s appearance in court. Bail can also
be in the form of a kind of insurance policy, called a "bail bond." The amount of the appearance bond or
bail for any given misdemeanor is usually fixed by the court through a published bail schedule. In such
cases, bail can be arranged at the police station without a hearing before a judge. In felony cases, the
accused is usually held until the initial appearance, at which time the conditions of his release pending
trial are set by the judge. These conditions may include personal recognizance, unsecured appearance
bond, or bail plus any other conditions the judge believes are required to insure defendant’s
appearance in court.
It is important to remember that bail is not a substitute for trial. It was formerly true that some courts,
particularly in traffic cases, allowed bail forfeitures and treated them the same as a plea of guilty, waiver
of trial, and payment of fine. The Supreme Court of Ohio’s Rules of Superintendence prohibit this
practice.
If a person does not appear as required by his personal recognizance, bond, or bail, he forfeits any
deposit, is liable on any promise to pay bail, and is subject to re-arrest and detention until trial.
Failure to appear on a personal recognizance not only subjects the accused to re-arrest and detention,
but is a separate offense in itself.
Preliminary Hearing in Felony Cases

When a person is arrested for a felony, he must be given a preliminary hearing without delay. This hearing
is held before a municipal court or county court judge. It is not a trial. Its purpose is to look at the
evidence against the accused, and determine if it is sufficient to warrant further proceedings. If there is
no probable cause to believe any offense was committed, or no probable cause to believe the accused
committed the offense (even though an offense was committed by someone), then the case against the
accused will be dismissed. If the judge finds probable cause to believe both that a felony was committed
and that the accused committed it, she must "bind over the accused" (transfer the accused’s case) to
the grand jury for further action. If the judge finds the evidence supports only a misdemeanor charge, she
will retain the case for trial in her court. If the judge finds there is insufficient evidence of any offense, she
will dismiss the charge. The accused can waive preliminary hearing, in which case he is automatically
bound over to the grand jury.
Grand Jury Action on Bindovers

When an accused felon is bound over to the grand jury, the evidence against him is examined by the
grand jury. If the grand jury finds no probable cause to believe a crime was committed or, if one was
committed, that the accused is not the guilty party, then it will return a "no bill." The case is then dismissed.
If at least 12 of the grand jury members find probable cause to believe that a crime was committed and
that the accused committed it, then the grand jury will return a "true bill." That is, it will return a formal
accusation or indictment against the accused. The grand jury may indict for any offense the evidence
warrants, regardless of the offense for which the accused was bound over. Even though he was bound
over for a felony, the grand jury may indict for a misdemeanor if the evidence supports only a
misdemeanor offense. If an indictment is returned, the accused will be held for trial before the common
pleas court. If the indictment is for a misdemeanor, the common pleas court may send the case back to
the appropriate municipal or county court for trial.
In essence, both the preliminary hearing and the grand jury are screening devices. Their chief purpose is
to help insure that no one is made to go through the agony of a trial for his life or liberty except on a
reasonably well-grounded accusation. Indictment by grand jury in serious offenses is a right guaranteed
by both the United States and the Ohio Constitutions. Preliminary hearing is a right conferred by state
statute.
Arraignment
After an accused is indicted, he is brought into court and arraigned. "Arraignment" consists of reading the
indictment to him or telling him the nature of the charge, making sure he has a copy of the indictment,
and asking him to enter or make a plea to the indictment. If the accused has no attorney, the court must
inform him that he has a right to an attorney, and a right to have an attorney provided at state expense
if he cannot afford one. He must also be informed of his right to bail, and his right to remain silent. This
"reading the rights" must also be done at other stages of the proceedings against the accused, including
at the time of his arrest and at the time of the preliminary hearing.
There are several pleas an accused can make. He can plead "not guilty," which means that he denies
the charge against him. He can plead "not guilty by reason of insanity." This means that while he may
have done the criminal act, he is not subject to criminal liability because of a mental disease or mental
defect. He can plead "no contest," which means that he does not admit guilt but does admit the truth of
the facts in the accusation (the no contest plea is sometimes used where the accused realizes that a
guilty plea could be used against him in a civil suit). Finally, he can plead "guilty," which is an admission
that he committed the crime, and has the same effect as a conviction following a trial.
In felony cases, the court will not accept pleas of guilty or no contest unless it is satisfied that the plea is
voluntary, that the accused is aware of his rights, and that he fully understands the possible
consequences of his plea. In many cases, the accused may plead guilty to a lesser offense than the one
with which he is charged as part of a process called "plea bargaining." Plea bargaining is often used in
cases where the accused is doubtful about his chances of winning at trial, and hopes to secure better
treatment in return for saving the state the time and expense of a trial. If a guilty plea is the result of a
plea bargain, the agreement on which the plea is based must be filed with the court or read into the
transcript of the proceeding.
Arraignment is usually a separate proceeding in felony cases. In misdemeanor cases, arraignment usually
takes place at the beginning of the trial itself, rather than as a separate proceeding before trial.
Pleadings and Motions in Criminal Cases

Unlike civil cases, the defendant in a criminal does not file a written pleading (an answer) in response to
the charge; the accused’s oral plea to the charge serves the same function. However, when the
defendant intends to rely on the defense of "alibi," the defendant must file written notice with the court.
In essence, the defense of alibi states, "I wasn’t there, so I couldn’t have committed the crime."
There are several requests, challenges, and objections which the accused can make by motion. He can
ask for a bill of particulars (a more detailed statement of the facts of the alleged offense). He can object
that the accusation against him does not properly charge an offense or is otherwise defective. He can
ask that the evidence against him be suppressed on the ground that it was obtained in violation of his
constitutional rights. Many other defenses, objections, or requests can be made by motion.
Discovery in Criminal Cases

The Ohio Rules of Criminal Procedure allow discovery. Criminal discovery is more limited than the
discovery in civil cases. Criminal discovery involves various disclosures, including: statements made by the
defendant or a codefendant to the police; the defendant’s prior criminal record, if any; documents and
other tangible evidence; reports of examinations and tests; the names of witnesses; and other matters.
The defense must initiate discovery by asking for one or more of the disclosures allowed. When the
defense makes such a request, the prosecution acquires a right to ask for corresponding disclosure from
the defense. Under certain circumstances the deposition of a witness may be taken. The defendant’s
deposition cannot be taken because defendants cannot be forced to give testimony. Defendants, and
witnesses, have the constitutional right to avoid compulsory self-incrimination.
Pretrial Conference
Pretrial conferences are used in criminal cases for plea negotiations and for basically the same purposes
as civil pretrial conferences.
TRIAL
The main steps in a trial include: selection of a jury; opening statements by the attorneys; presentation of
witnesses and evidence (the complaining party always goes first, and the defense next); closing
arguments by the attorneys; instructions by the judge to the jury; and deliberation and decision by the
jury. Civil and criminal trials use essentially the same process.
The Trial as an Adversary Proceeding

A trial is an adversary proceeding, that is, a contest between opponents. The judge’s function is to
control the contest as a neutral referee and to rule on questions of law. The jury’s function is to decide
questions of fact. Each party presents evidence and argument. See "The Jury and Non-jury Cases" below.
Burden and Degree of Proof

The fact that a trial is a contest dictates the order in which its events proceed. The initial burden falls on
the complaining party-the plaintiff in a civil case, or the state in a criminal case. The complaining party
must first establish that party’s case. If the complaining party fails to establish a case, there is nothing for
the defendant to refute. The case ends there. On the other hand, if the complaining party produces
evidence which shows that he or she is entitled to the kind of relief or judgment requested, the burden
shifts to the defendant. The defendant must refute the complaining party’s evidence, explain it, place it
in its proper light, or produce his or her own evidence.
Different kinds of cases require different degrees of proof. In most civil cases, the winner is the party
whose position is supported by the preponderance of the evidence. This means that the decision must
be awarded to the party whose favorable evidence carries greater weight and believability, even if the
evidence is only a fraction more weighty and believable than the evidence favoring the other party.
Plaintiffs who are seeking an injunction or other extraordinary remedy have a heavier burden of proof.
They must establish their case by clear and convincing evidence. This means that the decision must go
against them even if their position is established by a preponderance of the evidence.
In a criminal case, the state must prove the defendant’s guilt beyond a reasonable doubt. This means
that even if a preponderance of the evidence favors the state, and even if the state’s evidence is clear
and convincing, the decision must be awarded to the defendant if a reasonable doubt of the
defendant’s guilt remains.
Jury and Non-Jury Cases

While the right to trial by jury applies in many situations, the right does not apply in all situations. Further,
even where there is a right to jury trial, a jury must be requested in most cases. (The jury which actually
hears cases is a "petit" (or "petty") jury. The grand jury does not hear cases; it determines probable cause
and issues indictments.)
Persons accused of "minor offenses" (offenses where the maximum penalty is a fine not exceeding $100)
are not entitled to a jury trial. Otherwise, juries may be used, but are not automatically provided except in
criminal cases involving serious offenses. "Serious offenses" include all felonies and those misdemeanors
punishable by more than six months’ imprisonment. Even in serious offense cases, the right to a jury can
be waived by the defendant. In all other criminal cases the defendant is given a jury trial only if he
requests it in writing in advance of the trial. Similarly, juries are not provided in civil cases unless one of the
parties makes a written request for a jury in advance of the trial.
When a civil or criminal case is tried without a jury, it is tried to the judge alone. In capital cases-criminal
cases in which death is a potential penalty-a three-judge panel tries the case if a jury is waived. When a
criminal case is tried to a jury, it consists of 12 jurors in felony cases and eight jurors in misdemeanor cases.
In most civil cases the jury usually consists of eight members, although the parties can agree to a lesser
number. In Ohio, when a person’s property is appropriated for a public purpose (under the government’s
right of eminent domain), he is entitled to have his compensation determined by a jury of 12, but he can
agree to a lesser number of jurors.
The Start of the Trial

Court is opened by the bailiff, a court official who acts as an aid to the judge. Everyone will be asked to
stand when the judge enters, and to be seated after the judge is seated. The judge then calls the case
by name (Brown v. Green; State v. Blue; etc.) and asks the attorneys for each side if they are ready to
proceed. In jury trials, the first step is the selection of the jurors.
Choosing the Jury

The process of choosing jurors is called "voir dire." Potential jurors are interviewed in open court by each
of the attorneys. There are two ways of rejecting potential jurors: "challenge for cause" and "peremptory
challenge."
Prospective jurors may be challenged for cause for any of a number of specific reasons. Some of the
more obvious reasons include that a juror: (1) is a party or witness in the case; (2) is related to a party; (3)
has some close personal or business relationship to a party; (4) has already served on a jury in a case
involving one or more of the parties; (5) has already formed an opinion or is otherwise biased; (6) is an
alcoholic, drug addict, mental incompetent, or convicted felon; (7) does not speak or understand English
well enough to follow the proceeding and participate in jury deliberations. There is no limit to the number
of prospective jurors who may be challenged for cause. Each time a prospective juror is excused,
another will be interviewed.
When each side has run out of challenges for cause, each side may exercise its peremptory challenges.
No reason need be given for peremptorily excusing a juror, but each party has only a limited number of
peremptory challenges. In criminal cases the number of peremptory challenges allowed each party is six
in capital cases, four in all other felony cases, and three in misdemeanor cases. Each party is allowed
three peremptory challenges in civil cases. Beginning with the complaining party, each side takes turns
exercising its peremptory challenges one at a time. A peremptory challenge is lost when the turn comes
to use it and it is not used. When all challenges are used or passed, the jury is complete. The jury then
takes an oath to do its duty.
Opening Statements
After the jury is impaneled and takes its oath, the attorneys for each party make their opening
statements, beginning with the plaintiff’s attorney or, in a criminal case, the prosecutor. The opening
statement is an outline of the facts of the case, what the party intends to prove, and the evidence by
which the party expects to prove it.
Order of Presenting Evidence

Following the opening statements, the plaintiff’s attorney, or the prosecutor, presents his evidence. When
he is finished, or rests his case, the attorney for the defense then presents her evidence. In general, the
presentation of evidence is the most important phase of the trial.
How Evidence is Presented

Evidence is almost always presented through witnesses. In fact, witnesses are so important that they can
be compelled to attend the trial. A "subpoena" is a court order commanding a witness to appear in court
and give testimony. A person who disobeys a subpoena is in contempt of court, and may be fined or
jailed, or both.
Witnesses may tell about events they saw or heard, report on tests or investigations which they
conducted, give expert opinions, or testify about other matters. Even tangible evidence, such as a
murder weapon or a document, must normally be introduced or "qualified" through the testimony of a
witness.
Evidence may be direct or circumstantial. Contrary to popular opinion, circumstantial evidence is often
reliable evidence. Even criminal convictions can be based on circumstantial evidence. An example of
circumstantial evidence is the testimony of a witness that he had come outside a building and noted
that everything (the outside of the building, the cars, and the street) were wet and that water was
running down the street in the gutters. The testimony offers circumstantial evidence that it recently
rained, even though the witness did not see or feel the actual rain. The other side could introduce
evidence to overcome this circumstantial evidence. For example, the other side could call a city street
maintenance supervisor who testifies that the operator of a city water tanker had over-enthusiastically
watered the entire area while preparing the street for a street cleaning machine. The jury can use the
circumstantial evidence and other evidence to determine the facts.
The parties are not free to present any evidence, in any way they please, but must abide by the rules of
evidence. The main purpose of the rules of evidence is to prevent a jury from being influenced by
unreliable evidence. The rules of evidence require that evidence must be competent, relevant, and
material to the case being tried. The term "rules of evidence" includes the common law and statutory
guidelines for the admission of evidence, and the Ohio Rules of Evidence promulgated by the Supreme
Court of Ohio.
There are certain kinds of evidence which cannot be presented. Some evidence is said to be
incompetent, and cannot be allowed or admitted into the case. For example, evidence of a
defendant’s prior criminal record is normally inadmissible in a criminal case. Evidence of his past crimes is
not proof that he committed the crime which is the basis of the current case, and serves only to bias the
jury against him. Similarly, a witness cannot testify third-hand to what another person said or saw. This kind
of testimony is hearsay. A witness cannot testify, "Joe said he saw Sam in the house." The proper way to
establish Sam’s whereabouts is to put Joe on the stand so he (Joe) can testify, "I saw Sam in the house."
(There are a number of exceptions to the hearsay rule. For example, the witness could testify that "Joe
said he saw Sam in the house" if Joe made this statement while he [Joe] was on his deathbed.)
Evidence may be competent, but have nothing to do with the case at hand. Such evidence is irrelevant,
and inadmissible. For example, in a suit to collect a dentist’s bill, a plaintiff’s attempt to show that the
defendant is a month behind in the mortgage payments on her house is not relevant.
Finally, evidence may be both competent and relevant to the case being tried, but adds nothing of real
importance. Such evidence is immaterial and inadmissible. For example, in a trial for murder committed
in the course of a robbery, it would be immaterial that the victim had terminal cancer and probably
would have lived no more than one month longer even if he had not been shot and killed during the
robbery.
One of the judge’s most important functions in a trial is to rule on the admissibility of evidence. Evidence
may be so blatantly improper that even the attempt to introduce it at trial requires a mistrial. (When a
mistrial is declared, the trial is stopped immediately and the case is retried at a later date before a new
jury.) In such a situation, the judge might exclude such evidence on her own motion (without the request
of the attorney of another party), rather than immediately declare a mistrial.
Generally, the judge will not exclude evidence without the request (objection) of the attorney for
another party. If the judge sustains the objection, the evidence is excluded. If she overrules the objection,
the evidence is admitted. The improper admission or exclusion of evidence may be the basis of an
appeal.
Examining Witnesses
A witness is first questioned by the attorney for the party who called her to testify. This questioning is called
"direct examination." When the direct examination is complete, the other party has the right to question
the witness. This questioning is called "cross-examination." During direct examination, the attorney is not
permitted to ask leading questions (unless the witness is obviously hostile). That is, the attorney cannot ask
the witness a question which suggests the answer. Leading questions are permitted on cross-examination.
For example, on direct examination the attorney must ask, "Where were you on the evening of July 4th?"
On cross-examination the attorney could phrase the question, "You were at the corner tavern on the
evening of July 4th, weren’t you?"
The chief purposes of cross-examination are to place a witness’ testimony in perspective, to test its
accuracy, and to bring out information not mentioned during direct examination. For example, the
testimony of a credible witness in a murder case that she saw the defendant shoot the victim would,
standing alone, be very damaging to the defense. The testimony takes on a different light when, upon
cross-examination, the witness testifies: she was a city block away when she saw the shooting; it was
11:00 P.M.; she regularly wears glasses for night and distance vision, but was not wearing them when she
saw the shooting because the glasses were broken.
It is obvious that cross-examination is very important to the fairness of the judicial process and the justice
of its results. The right of cross-examination is considered so important that it is guaranteed in both the
United States and Ohio Constitutions.
How Witnesses Should Act

Everyone can expect to be a witness in a trial. Testifying under oath at a real trial can be a difficult
experience. Television and movie trials do not prepare witnesses for real trials. The following "rules" are
really common sense suggestions which may benefit or assist witnesses and help the trial to be fair and
efficient. The list is not exhaustive. Additional rules or suggestions could be added, some could be
deleted. Many could be restated.
First, tell the truth. A witness who lies under oath faces conviction for the serious offense of perjury. If you
do not know the answer to a question, say so. Do not make up answers.
Second, be fair and objective. Even though you have strong feelings about the case, you cannot
overemphasize a particular part of your testimony. Your feelings should not affect your testimony.
Third, pay attention when you are testifying. You do not want to be viewed as indifferent or
unconcerned. You do not want to repeatedly ask the examining attorney what he said.
Fourth, if you did not hear the question or do not understand what a question (or anything else) means,
say so. The judge and jury are interested in what you know about the case. Do not be shy about saying
that you did not hear the question or that you do not understand.
Fifth, be courteous to everyone. Proper behavior develops mutual respect.
Sixth, take a little time before you respond to a question. This practice will allow you to think about the
question and develop an appropriate and thoughtful answer. If you do make a mistake in your
testimony, say so as soon as you realize you made the mistake.
Seventh, answer the question which was asked. If the question can be answered "yes" or "no," answer it
that way. Do not volunteer additional explanations, or your opinions or philosophy. The attorneys and the
judge will ask for additional information if they want it. However, if you feel that an answer must be
explained or that the examining attorney is bullying you, you can ask the judge for assistance and
direction.
Eighth, do not lose your temper. If you lose your temper you give the examining attorney a tremendous
advantage. Further, even though your testimony may be absolutely true, it may be discounted or even
totally disregarded because it may appear that the testimony was emotionally biased.
Ninth, speak clearly so you can be heard.
Tenth, dress appropriately. Dress and appearance depend on individual style and resources. If you want
advice on how to dress, ask the attorney or party who requested you to testify.
Eleventh, be yourself. Do not become an entertainer or comedian because you have an audience in
court. A trial is not entertainment; humor is generally out of place.
Final Arguments
When all the evidence is in, the attorneys make their closing arguments to the jury. The attorney for the
plaintiff or, in a criminal case, the prosecutor, goes first. When he is finished, it is the defense attorney’s
turn. In general, each attorney uses the closing argument to summarize the evidence and comment on it
in the most favorable light. The attorney may talk about the facts and all the inferences which can
properly be drawn from them. The attorney cannot talk about evidence which was not presented, or
argue about points which do not apply to the case. If an attorney uses improper material in final
argument, the opposing attorney may object and the judge may instruct the jury to disregard what was
said. If the offending material is seriously prejudicial, the judge may declare a mistrial.
Instructions to the Jury

When the attorneys have completed their closing arguments, the judge "instructs" or "charges" the jury
(the judge explains the duties of a jury and also explains the law applicable to the case to the jury).
Before the closing arguments, the attorneys may request the judge to give certain instructions on the law
as it applies to the evidence. If these instructions are proper and would not have been covered by her
charge, the judge will include them as part of her charge to the jury. The charge to the jury may take a
few minutes, or it may take hours, or even days, in complicated cases.
Verdict
After the judge has given her charge, the jury goes to the jury room to make its decision or verdict. The
bailiff sits outside the jury room and allows no one to enter or leave the room. Sometimes the jury’s
deliberations go on for several days. In such cases, the jurors may be allowed to go home for the night or
they may be "sequestered," that is, housed at a local hotel under guard. In either event, the jury is told
not to discuss the case.
Usually, the court will give the jury written forms for every one of the possible verdicts in the case. In a civil
case in Ohio, at least three-fourths of the jurors must agree on a verdict. In a criminal case, the verdict
must be unanimous. Occasionally, the jury becomes hopelessly deadlocked and the necessary number
of jurors cannot agree on a decision. This is called a hung jury, and the case may have to be retried with
a new jury.
If the required number of jurors agree on a decision, they sign the appropriate verdict form and return to
the courtroom. The court session begins and the verdict is announced either by the jury foreman (whom
the jurors select from among their number) or by the clerk of the court. Either party may ask that the jury
be polled (each juror asked if he agrees with the verdict). After the verdict is announced, or the jury
polled, the jury is dismissed. The trial is over.
Judgment
The jury’s verdict is its finding of fact. An appropriate court order, called a "judgment," is required to
implement the verdict. In civil cases the judgment (judgment entry) is often made immediately after the
trial. In complicated civil cases, the judgment is delayed to allow the preparation of the judgment entry.
In criminal cases, the sentence is part of the judgment. In serious criminal cases, judgment may be
delayed pending a pre-sentence investigation. In minor cases judgment is usually made immediately.
PROCEEDINGS AFTER THE TRIAL

A number of legal proceedings may be conducted after the trial is over. In civil cases, it may be
necessary to take steps to enforce the judgment. In criminal cases, particularly serious cases, sentencing
is often a separate proceeding. The losing party may appeal in either a civil or criminal case. In some
criminal cases, there may be a probation revocation hearing, or the offender may, at a later date, ask
for post-conviction relief on the ground that his constitutional rights were not adequately protected.
Enforcing Civil Judgments

An entry of judgment in a civil case does not automatically insure that the winner will receive the relief he
has won. When money damages have been awarded and the loser does not voluntarily pay the
judgment, the loser must be compelled to pay. When an injunction has been granted, the order is not
always obeyed and must be enforced. The party who wishes to have a civil judgment enforced must
institute the necessary procedures. Generally, a court will not enforce a judgment unless the winning
party requests enforcement and pays all pending court costs.
There are a number of methods to enforce money judgments. The three most common methods are
"garnishment," "attachment," and "foreclosure." In garnishment, the court allows the judgment creditor to
impose a charge upon property of the judgment debtor which is held by a third party. Usually the
property involved is either unpaid wages or money in a bank account. When a garnishment order is
issued to the judgment debtor’s employer, or bank, a portion of the debtor’s wages or bank account
must be paid into court to satisfy the judgment. Wages can be garnished only once per month and only
25 percent of the wages due can be taken at any one time. (A law effective in April 1993 has a special
provision regarding judgments based on money owed for health care service or health care supplies.
Under this law, an employer cannot pay more than 12 percent of the judgment debtor’s net earnings.)
In attachment proceedings, personal property of the judgment debtor (such as the debtor’s car,
television, or stereo) is seized and sold to pay the judgment.
When a money judgment is filed with the clerk of the common pleas court of the county where the
judgment debtor owns real property, the judgment becomes a lien on the debtor’s real estate within the
county. Foreclosure of a judgment lien is a proceeding in which the real estate is sold to satisfy the
judgment. (The proceeding is virtually the same as a mortgage foreclosure.) A judgment creditor may
institute a proceeding in aid of execution to determine the nature, extent, and location of the judgment
debtor’s property. During this proceeding, the judgment debtor is examined under oath.
In many cases, a court may grant a type of judgment in which the defendant is personally ordered to do,
or refrain from doing, a certain thing. This order is usually called an "injunction." If the order is disobeyed,
the defendant is in contempt of court and may be fined or jailed, or both. For example, an injunction
would be used to prevent a person from polluting a stream, or to compel her to move a fence which
encroaches on another’s property. Continued pollution or failure to move the fence is contempt of court.
The orders or decrees a court grants in domestic relations cases are often similar to injunctions in that the
orders require the parties to personally do, or refrain from doing, specific things. The most common use of
contempt proceedings to enforce court orders is in domestic relations cases. Contempt proceedings are
used to compel the parties to observe the court’s decrees as to spousal support (alimony), division of
property, child custody, child support, and visitation rights.
Sentencing in Criminal Cases

In minor criminal cases, sentencing usually takes place immediately after a verdict of guilty or the judge’s
finding that the offender is guilty. In serious criminal cases, sentencing is often deferred pending a pre-
sentence investigation to gather information on the case and on the offender’s background. The judge
can then determine the proper sentence to be imposed.
Appeal
Any party may file an appeal in civil cases. Because of the double jeopardy provisions in the United
States and Ohio Constitutions, the right to appeal in criminal cases is more limited. In criminal cases, a
person who is convicted may appeal, but the state’s (prosecution’s) right of appeal is narrowed by
"double jeopardy." In general, double jeopardy means a person cannot be tried or punished more than
once for the same offense. See Part IV at "Double Jeopardy."
Appeals are generally on questions of law rather than questions of fact. The trial process, not the appeal
process, is best equipped to determine facts. Appellate courts will usually accept the factual
determinations of trial courts. The questions for the appellate court are whether the trial court made an
incorrect interpretation or application of the law.
In addition, not every decision of a trial court can be appealed. In general, only final judgments or final
orders may be appealed. Limiting appeals to final judgments or orders prevents the continual interruption
of the trial process by the appeal of each interim order or ruling of the lower court.
Generally, a party has 30 days after a final judgment or order to file an appeal. Appeals after that time
are allowed only with the appeals court’s permission (called "leave of court"). Permission to file a late
appeal is granted only when the appellant can show a good reason why he or she failed to meet the
regular deadline. The right to appeal is lost if an appeal is not filed within the time allowed, or leave to file
a late appeal is not granted. In Ohio, leave to file a late appeal is limited to criminal cases. It must be
noted that in many kinds of proceedings the time in which to file an appeal is much less than 30 days.
The parties to any proceeding should determine if the proceeding may be appealed. Specifically, they
should know when and how to make an appeal.
Other Post-Trial Proceedings

In criminal cases, there are a number of other proceedings which may be held following trial-often many
months or years later. If an offender is placed on probation, but then violates one of the conditions of his
probation, the court may hold a hearing to determine if the probation should be revoked and the
offender sent to jail or prison. Similarly, when a person is released on parole from prison, and violates the
conditions of his or her parole, a hearing may be held to determine if he or she should be returned to
prison. Also, the trial court may hold a post-conviction relief proceeding to determine the validity of later
claims that the offender’s constitutional rights were violated.
Section D: Jury Trial
American Bar Association Criminal Justice Standards

Trial by Jury
PART I. THE RIGHT TO TRIAL BY JURY

Standard 15-1.1 Right to jury trial
Standard 15-1.2 Waiver of trial by jury
Standard 15-1.3 Waiver of full jury or of unanimous verdict
Standard 15-1.4 Change of venue or continuance
PART II. JURY SELECTION

Standard 15-2.1 Selection of prospective jurors
Standard15-2.2 Juror questionnaires
Standard 15-2.3 Challenge to the array
Standard 15-2.4 Conduct of voir dire examination
Standard 15-2.5 Challenges for cause
Standard 15-2.6 Peremptory challenges
Standard 15-2.7 Procedure for exercise of challenges; swearing the jury
Standard 15-2.8 Impermissible peremptory challenges Standard 15-2.9 Alternate jurors
PART III. CONDUCT OF THE TRIAL

Standard 15-3.1 Defendant’s presence at proceedings
Standard 15-3.2 Control, restraint or removal of defendants and witnesses
Standard 15-3.3 Substitution of judge
Standard 15-3.4 Opening statement and closing argument
Standard 15-3.5 Note taking by jurors
Standard 15-3.6 Method of making and ruling on motions and objections
Standard 15-3.7 Evidence of prior convictions
Standard 15-3.8 Motion for judgment of acquittal
PART IV. JUDICIAL RELATIONS WITH JURY; JURY INSTRUCTIONS

Standard 15-4.1 Control over and relations with the jury
Standard 15-4.2 Right of judge to give assistance to the jury during trial
Standard 15-4.3 Judicial communication with jurors
Standard 15-4.4 Jury instructions
PART V. JURY DELIBERATIONS; RETURN OF VERDICT

Standard 15-5.1. Materials to jury room
Standard 15-5.2. Jury request to review testimony
Standard 15-5.3. Additional instructions
Standard 15-5.4. Length of deliberations; deadlocked jury
Standard 15-5.5. Entry of plea during deliberations
Standard 15-5.6. Polling the jury
Standard 15-5.7. Impeachment of the verdict
PART I. Trial by Jury

THE RIGHT TO TRIAL BY JURY
Standard 15-1.1. Right to jury trial
(a) Jury trial should be available to a party, including the state, in criminal prosecutions in
which confinement in jail or prison may be imposed.
(b) The jury should consist of twelve persons, except that a jury of less than twelve (but not less
than six) may be provided when the penalty that may be imposed is confinement for six months
or less.
(c) The verdict of the jury should be unanimous.
(d) This chapter does not apply to procedures of military justice tribunals
Standard 15-1.2. Waiver of trial by jury

(a) Cases required to be tried by jury should be so tried, unless jury trial is waived with the
consent of the prosecutor.
(b) The court should not accept a waiver unless the defendant, after being advised by the
court of his or her right to trial by jury and the consequences of waiver of jury trial, personally
waives the right to trial by jury in writing or in open court on the record.
(c) A defendant may not withdraw a voluntary and knowing waiver as a matter of right, but
the court, in its discretion, may permit withdrawal prior to the commencement of the trial.
(d) A defendant may withdraw a waiver of jury trial as a matter of right, and a prosecutor
may withdraw consent to a waiver as a matter of right if there is a change in the trial judge.
Standard 15-1.3. Waiver of full jury or of unanimous verdict

(a) At any time before verdict, the parties, with the approval of the court, may stipulate that
the jury shall consist of any number less than that required for a full jury.
(b) At any time before verdict, the parties, with the approval of the court, may stipulate that
the verdict may be less than unanimous. The stipulation should be clear as to the number of
concurring jurors required for the verdict to be valid.
(c) The court should not accept such a stipulation unless the defendant, after being advised
by the court of his or her right to trial by a full jury, personally waives the right to trial by a full jury,
or the right to a unanimous verdict, in open court on the record.
Standard 15-1.4. Change of venue or continuance

The following standards govern the consideration and disposition of a motion in a criminal case for
change of venue or continuance based on a claim of threatened interference with the right to a fair
trial.
(a) Except as federal or state constitutional or statutory provisions otherwise require, a change
of venue or continuance may be granted on motion of either the prosecution or the defense.
(b) A motion for change of venue or continuance should be granted whenever there is a
substantial likelihood that, in the absence of such relief, a fair trial by an impartial jury cannot be
had. A showing of actual prejudice should not be required.
(c) If a motion for change of venue or continuance is made prior to the impaneling of the
jury, the court may defer ruling until the completion of voir dire. The fact that a jury satisfying
prevailing standards of acceptability has been selected should not be controlling if the record
shows that the criterion for the granting of relief set forth in paragraph (b) has been met.
(d) It should not be a ground for denial of a change of venue that one such change has
already been granted. The claim that the venue should have been changed or a continuance
granted should not be considered to have been waived by the waiver of the right to trial by jury
or by the failure to exercise all available peremptory challenges.
(e) After the court has determined, on the criteria set forth above, that a change of venue
should be granted, the appropriate authority should designate the geographical location to
which venue will be changed. In determining the location to which venue should be changed,
the appropriate authority should consider the following factors:
(1) The nature and extent of pretrial publicity, if any, in the proposed venue;
(2) The relative burdens on the respective courts in changing to the proposed venue;
(3) The relative hardships imposed on the parties, witnesses, and other interested persons with
regard to the proposed venue;
(4) The racial, ethnic, religious and other relevant demographic characteristics of the
proposed venue, insofar as they may affect the likelihood of a fair trial by an impartial jury;
(5) Any other factor which may be required by the interests of justice.
PART II. JURY SELECTION

Standard 15-2.1 Selection of prospective jurors
The selection of prospective jurors should be governed by the following general principles:
(a) The names of those persons who may be called for jury service should be selected at
random from sources which will furnish a representative cross-section of the community.
(b) Jury officials should determine the qualifications for prospective jurors by questionnaire or
interview, and disqualify those who fail to meet specified minimum requirements.
(c) All persons should be eligible for jury service who are eighteen years of age, are United
Sates citizens whose civil rights have not been lost by reason of criminal conviction or whose civil
rights have been restored, are residents of the geographical district in which they are summoned,
and are able to communicate in English.
(d) A person should be excused from jury service only for mental or physical disability which,
despite reasonable accommodation for the disability, substantially impairs the capacity to serve
or prior jury service within the previous year. Temporary deferral of service should be permitted in
cases of public necessity, undue hardship, temporary disability, or extreme inconvenience.
Requests for excuse from service should be determined under the direct supervision of a judge.
Standard 15-2.2. Juror questionnaires

(a) Basic questionnaire. Before voir dire examination begins, the court and counsel should be
provided with data pertinent to the qualifications of the prospective jurors and to matters
ordinarily raised in voir dire examination.
(1) The questionnaire should include information about the juror’s name, sex, age, residence,
marital status, education level, occupational industry, employment address previous service as a
juror, and present or past involvement as a party to civil or criminal litigation.
(2) Such data should be obtained from prospective jurors by means of a questionnaire
furnished to the prospective jurors with the jury summons, and to be returned by the prospective
jurors before the time of jury selection.
(b) Specialized questionnaire
In appropriate cases, the court, with the assistance of counsel, should prepare a specialized
questionnaire addressing particular issues that may arise.
(1) The questionnaire should be specific enough to provide appropriate information for
utilization by counsel, but not be unnecessarily embarrassing or overly intrusive.
(2) If questionnaires are made available to counsel prior to the day of the voir dire, the
identity of the jurors may be protected by removing identifying information from the
questionnaires.
(c) All questionnaires should be prepared and supervised by the court.
(1) The jurors should be advised of the purpose of the questionnaire, how it will be used and
who will have access to the information.
(2) All questionnaires should be provided to counsel in sufficient time before the start of voir
dire to enable counsel to adequately review them before the start of voir dire.
Standard 15-2.3. Challenge to the array

The prosecuting attorney or the defendant or defendant’s attorney may challenge the array on the
ground that there has been a material departure from the requirements of the law governing selection of
jurors.
Standard 15-2.4. Conduct of voir dire examination

(a) Questioning of jurors should be conducted initially by the court, and should be sufficient,
at a minimum, to determine the jurors’ legal qualifications to serve.
(b) Following initial questioning by the court, counsel for each side should have the
opportunity, under the supervision of the court and subject to reasonable time limits, to question
jurors directly, both individually and as a panel.
(c) Voir dire examination should be sufficient to disclose grounds for challenges for cause and
to facilitate intelligent exercise of peremptory challenges.
(d) Where there is reason to believe the prospective jurors have been previously exposed to
information about the case, or for other reason are likely to have preconceptions concerning it,
counsel should be given liberal opportunity to question jurors individually about the existence and
extent of their knowledge and preconceptions.
(e) Jurors should be examined outside the presence of other jurors on sensitive matters or prior
exposure to potentially prejudicial material.
(1) Sensitive matters are those matters which might be potentially embarrassing or intrusive
into the juror’s private life, feelings or beliefs, or those matters which if discussed in the presence of
the jury panel, might prejudice or influence the panel by exposing other potential jurors to
improper information.
(2) Examination of the prospective juror with respect to that juror’s exposure to potentially
prejudicial material should be conducted in accordance with ABA Standards for Criminal Justice
relating to Fair Trial and Free Press.
(f) It is the responsibility of the court to prevent abuse of voir dire examinations.
Standard 15-2.5. Challenges for cause

(a) Each jurisdiction should develop a list of grounds, establishment of which will sustain a
challenge to a particular juror for cause. The list of enumerated grounds should permit a
challenge for cause on the ground that the juror has an interest in the outcome of the case, may
be biased or prejudiced for or against one of the parties, is serving a criminal sentence, is on
parole or supervised probation, has been charged with a criminal offense, or is unable or unwilling
to hear the case at issue fairly and impartially.
(b) If, after the voir dire examination of a juror, the court is of the opinion that grounds for
challenge for cause have been established, the court, upon either party’s challenge of the juror
for cause or upon the court’s own motion after consultation with counsel, should excuse that juror
from the trial of the case.
Standard 15-2.6. Peremptory challenges

(a) Peremptory challenges should be allowed in all cases, but in a number no larger than
ordinarily necessary to provide reasonable assurance of obtaining an unbiased jury, but the court
should be authorized to allow additional peremptory challenges when special circumstances
justify doing so.
(b) The procedure for exercise of peremptory challenges should permit challenge to any of
the persons who have been passed for cause.
(c) The number of peremptory challenges should be governed by rule or statute.
(d) In cases involving a single defendant, both the defendant and the prosecution should
have the same number of peremptory challenges.
Standard 15-2.7. Procedure for exercise of challenges; swearing the jury

(a) All challenges, whether for cause or peremptory, should be addressed to the court outside
of the presence of the jury, in a manner so that the jury panel is not aware of the nature of the
challenge, the party making the challenge, or the basis of the court’s ruling on the challenge.
(b) After completion of the voir dire examination and the hearing and determination of all
challenges for cause, counsel should be permitted to exercise their peremptory challenges by
alternately striking names from the list of panel members until each side has exhausted or waived
the permitted number of challenges. A party should be permitted to exercise a peremptory strike
against a member of the panel who has been passed for cause.
(c) The court should not require the attorney for the defendant to exercise any challenges
until the attorney has had sufficient time to consult with the defendant, and in cases involving
multiple defendants, with counsel for the codefendants, regarding the exercise of the challenges.
(d) No juror should be sworn to try the case until all challenges have been exercised, at which
point all jurors should be sworn as a group.
Standard 15-2.8. Impermissible peremptory challenges

Neither party should be permitted to use peremptory challenges to dismiss a prospective juror for
constitutionally impermissible reasons.
(a) It should be presumed that each party is utilizing peremptory challenges validly, without
basing those challenges on constitutionally impermissible reasons.
(b) A party objecting to the challenge of a prospective juror on the grounds that the
challenge has been exercised on a constitutionally impermissible basis, establishes a prima facie
case of purposeful discrimination:
(1) by showing that the challenge was exercised against a member of a constitutionally
cognizable group, and
(2) by demonstrating that this fact, and any other relevant circumstances, raise an inference
that the party challenged the prospective juror because of the juror’s membership in that group.
(c) When a prima facie case of discrimination is established, the burden shifts to the party
making the challenge to show a nondiscriminatory basis for the challenge.
(d) The court should evaluate the credibility of the proffered reasons. If the court finds that the
reasons stated are constitutionally permissible and are supported by the record, the court should
permit the challenge. If the court finds that the reasons for the challenge are constitutionally
impermissible, the court should deny the challenge and, after consultation with counsel,
determine whether further remedy is appropriate. The court should state the reasons, including
whatever factual findings are appropriate, for sustaining or overruling the objection on the
record.
Standard 15-2.9. Alternate jurors

The court may impanel one or more alternate jurors whenever, in the court’s discretion, the court believes
it advisable to have such jurors available to replace jurors who, prior to the time the jury retires to consider
its verdict, become or are found to be unable or disqualified to perform their duties.
(a) Alternate jurors should be selected in the same manner, have the same qualifications, be
subject to the same examination and challenges, and take the same oath as the regular jurors.
Jurors should not be informed of their status as regular jurors or as alternates until time for jury
deliberation.
(b) A juror who becomes incapacitated during trial, in the discretion of the court, may be
replaced by an alternate juror, who shall then have the same functions, powers, facilities and
privileges as a regular juror.
PART III. CONDUCT OF THE TRIAL

Standard 15-3.1. Defendant’s presence at proceedings
The defendant should have the right to be present at every stage of the trial proceedings, including
selection and impaneling of the jury, all proceedings at which the jury is present, and return of verdict.
(a) If a defendant, with knowledge that the trial is going on, voluntarily absents him or herself
from the court, the proceedings may continue to verdict without the defendant’s physical
presence, and the defendant should be deemed to have waived the right to be physically
present at the trial.
(b) No trial or proceeding on the merits of the case should commence without the physical
presence of the defendant, unless the defendant has personally waived physical presence in the
courtroom.
Standard 15-3.2. Control, restraint or removal of defendants and witnesses

(a) During trial the defendant should be seated where he or she can effectively consult with
counsel and can see and hear the proceedings.
(b) The court should not permit a defendant or witness to appear at trial in the distinctive
attire of a prisoner, unless waived by the defendant.
(c) No defendant should be removed from the courtroom, nor should defendants and
witnesses be subjected to physical restraint while in court unless the court has found such restraint
necessary to maintain order. Removing a defendant from the courtroom or subjecting an
individual to physical restraint in the courtroom should be done only after all other reasonable
steps have been taken to insure order. In ordering remedial measures, the court must take all
reasonable steps to preserve the defendant’s right to confrontation of witnesses and consultation
with counsel.
(d) If the court orders physical restraint or removal of a defendant from the courtroom, the
court should enter into the record of the case the reasons therefor. Whenever physical restraint or
removal of a defendant or witness occurs in the presence of jurors trying the case, the court
should instruct those jurors that such restraint or removal is not to be considered in assessing the
proof and determining guilt.
Standard 15-3.3. Substitution of judge

If, by reason of death, sickness, or other disability, the judge before whom a jury trial has commenced is
unable to proceed with the trial, another judge, upon certifying that he or she has familiarized himself or
herself with the record of the trial, may proceed with and finish the trial.
Standard 15-3.4. Opening statement and closing argument

(a) Opening statement
(1) Each party should be afforded the opportunity to make an opening statement for the
purpose of explaining the issues and the evidence to be adduced at trial. The defense should
have the option to present its opening statement either at the outset of the trial or at the
beginning of the defense case in chief.
(2) In the opening statement, counsel should not allude to evidence to be presented unless,
in good faith, there is a reasonable basis for believing that such evidence will be tendered and
admitted in evidence.
(b) Closing argument
(1) Each party should be afforded the opportunity to make a closing argument before the
jurors retire to consider the case.
(2) Procedures should be adopted relating to the timing and the order of the closing
arguments.
Standard 15-3.5. Note taking by jurors

During the trial of the case, the jurors should be permitted to make notes and keep these notes with them
when they retire for their deliberations.
(a) The notes should be used by the juror solely for the juror’s purposes during the jury
deliberations, and should be made available to other jurors solely at the discretion of the juror
taking the notes. No person, other than the juror taking the notes, should have the right to view
the notes.
(b) The jurors should be informed at the beginning of the trial that, at the close of the
deliberations, all jurors’ notes will be collected by the court and destroyed.
Standard 15-3.6. Method of making and ruling on motions and objections

(a) During trial, when in the presence of the jury, counsel should raise any motion, or any
objection to the introduction of evidence, testimony of witnesses, or orders of the court, by stating
only that counsel has a "motion" or an "objection," and by then stating the legal grounds for the
motion or the objection.
(b) Any further argument or discussion that may be required or permitted by the court should
be conducted outside the hearing of the jury.
(c) Rulings on motions and objections should be made by the court in the presence and
hearing of the jury, but the reasons therefor should be stated outside the hearing of the jury.
(d) Objections, motions, statements of grounds, argument and discussion, the ruling of the
court, and the reasons given by the court for its ruling, should all be made a part of the record.
Standard 15-3.7. Evidence of prior convictions

When the defendant’s prior convictions are admissible solely for the purpose of determining an
enhancement of an offense or the sentence to be imposed, the jury should not be informed of them,
either through allegations in the charge or by the introduction of evidence, until it has found the
defendant guilty of the offense.
Standard 15-3.8. Motion for judgment of acquittal

(a) After the evidence on either side is closed, the court on motion of a defendant or on its
own motion should order the entry of a judgment of acquittal of one or more offenses charged if
the evidence is legally insufficient to sustain a conviction of such offense or offenses. Such a
motion by the defendant, if not granted, should not be deemed to withdraw the case from the
jury or to bar the defendant from offering evidence.
(b) If the defendant’s motion is made at the close of the evidence offered by the
prosecution, the court may not reserve decision on the motion. If the defendant’s motion is made
at the close of all the evidence, the court may reserve decision on the motion, submit the case to
the jury, and decide the motion either before the jury returns a verdict or after it returns a verdict
of guilty or is discharged without having returned a verdict.
(c) If the jury returns a verdict of guilty or is discharged without having returned a verdict, the
defendant’s motion may be made or renewed within a certain time, set by statute or rule, after
discharge of the jury or within such further time as the court may fix. Such a motion is not barred
by defendant’s failure to make a similar motion prior to the submission of the case to the jury.
PART IV. JUDICIAL RELATIONS WITH JURY; JURY INSTRUCTIONS

Standard 15-4.1. Control over and relations with the jury
(a) The court should take appropriate steps ranging from admonishing the jurors to
sequestration of them during trial, to ensure that the jurors will not be exposed to sources of
information or opinion, or subject to influences, which might tend to affect their ability to render
an impartial verdict on the evidence presented in court.
(b) The court should require a record to be kept of all communications received from a juror
or the jury after the jury has been sworn, and he or she should not communicate with a juror or the
jury on any aspect of the case itself (as distinguished from matters relating to physical comforts
and the like), except after notice to all parties and reasonable opportunity for them to be
present.
(c) At the outset of the case, the court should instruct the jury on the relationship between the
court, the lawyers and the jury, ensuring that the jury understands that counsel are permitted to
communicate with jurors only in open court with the opposing party present.
(d) When scheduling recesses and time for adjournment, the court should keep in mind that it
is equally offensive to jurors to subject them to too stringent or too lenient a schedule, and should
take all reasonable steps to avoid wasting the jurors’ time.
Standard 15-4.2. Right of judge to give assistance to the jury during trial
(a) The court should not express or otherwise indicate to the jury his or her personal opinion
whether the defendant is guilty or express an opinion that certain testimony is worthy or unworthy
of belief.
(b) When necessary to the jurors’ proper understanding of the proceedings, the court may
intervene during the taking of evidence to instruct on a principle of law or the applicability of the
evidence to the issues. This should be done only when the jurors cannot be effectively advised by
postponing the explanation to the time of giving final instructions.
(c) The development of innovative mechanisms to improve juror comprehension of the issues
of the case and the evidence presented should be encouraged consistent with the rules of
evidence and the rights of the parties.
Standard 15-4.3. Judicial communication with jurors

While it is appropriate for the court to thank jurors at the conclusion of a trial for their public service, such
comments should not include praise or criticism of their verdict.
(a) All communications between the judge and members of the jury panel, from the time of
reporting to the courtroom for voir dire until dismissal, should be in writing or on the record in open
court. Counsel for each party should be informed of such communication and given the
opportunity to be heard.
(b) After the conclusion of the trial and the completion of the jurors’ service , the court may
engage in discussions with the jurors. Such discussions should occur only on the record and in
open court with counsel having the opportunity to be present. This standard does not prohibit
incidental contact between the court and jurors after the conclusion of the trial.
(c) At the conclusion of the juror’s service, with the concurrence of all the parties and the
court, the judge may conduct a discussion with the jurors who agree to participate for the
purpose of educating the court and counsel.
(d) Under no circumstances should the court state or imply an opinion on the merits of the
case, or make any other statements that might prejudice a juror in future jury service.
(e) At the conclusion of the trial, the court should instruct the jurors that they have the right
either to discuss or to refuse to discuss the case with anyone, including counsel or members of the
press.
Standard 15-4.4. Jury instructions

(a) Instructions to the jury should be not only technically correct but also expressed as simply
as possible and delivered in such a way that they can be clearly understood by the jury. The
instructions should not contain comments by the court reflecting the court’s personal belief
regarding credibility of certain witnesses, evidentiary value of specific items of evidence, or the
guilt or innocence of the defendant. A written copy or audio version of the instructions should be
given to the jury when it retires to deliberate.
(b) At the beginning of the trial, the court should give preliminary instructions to the jury
deemed appropriate for their guidance in hearing the case, which may include instructions on
the law of the case. Instructions on the law of the case should be given only after consultation
with counsel.
(c) A collection of accurate, impartial, and understandable pattern jury instructions should be
available for use in criminal cases in each jurisdiction. Whenever necessary, the pattern
instructions should be modified or supplemented.
(d) At the close of the evidence or at such earlier time as the court reasonably directs, the
courts should allow any party to tender written instructions and may direct counsel to prepare
designated instructions in writing. Copies of tendered instructions and instructions prepared at the
direction of the court should be furnished the other parties.
(e) At a conference on instructions, which should be held out of the hearing of the jury, and,
on request of any party, out of the presence of the jury, the court should advise counsel what
instructions will be given by providing the instructions in writing prior to their delivery and before
the arguments to the jury. Counsel should be afforded an opportunity to object to any instruction.
The grounds of any objection should be stated on the record. No party should be permitted to
raise on appeal the failure to give an instruction unless such party shall have tendered it or made
timely objection to its omission. No party should be permitted to raise on appeal the giving of an
instruction unless such party objected thereto. In either instance, the party should state distinctly
the matter to which the party objects and the grounds of the objection. However, if the interests
of justice so require, substantial defects or omissions should not be deemed waived by failure to
object to or tender an instruction.
(f) At the conclusion of the evidence, and before closing arguments in the case, the court
may instruct the jury on the law of the case. At the conclusion of the closing arguments of
counsel, the court should give the jury its final instructions on the law of the case, if not given
earlier, and other appropriate closing instructions.
(g) All instructions, whether given or refused, should become a part of the record. All
objections made to instructions and the rulings thereon should be included in the record.
PART V. JURY DELIBERATIONS; RETURN OF VERDICT

Standard 15-5.1. Materials to jury room
(a) The court in its discretion may permit the jury, upon retiring for deliberation, to take to the
jury room a copy of the charges against the defendant; the court should permit the jury to take
exhibits and writings that have been received in evidence, except depositions, and copies of
instructions previously given.
(b) The court may refrain from sending certain material to the jury room if the court
determines:
(1) that the material may be subjected to improper use by the jury; or
(2) that the material might be dangerous to jurors or to others.
(c) In sending any exhibits to the jury, the court should ensure that the evidentiary integrity of
the exhibit is preserved.
Standard 15-5.2. Jury request to review testimony

(a) If the jury, after retiring for deliberation, requests a review of certain testimony the court
should notify the prosecutor and counsel for the defense, and allow all parties to be heard on the
jury’s request. Unless the court decides that a review of requested testimony is inappropriate, the
court should have the requested parts of the testimony submitted to the jury in the courtroom. The
court may permit testimony to be reread outside the presence of counsel, with the personal
waiver of the defendant and the stipulation of the parties.
(b) The court need not submit testimony to the jury for review beyond that specifically
requested by the jury, but in its discretion the court may also have the jury review other testimony
relating to the same factual issue so as not to give undue prominence to the testimony requested.
Standard 15-5.3. Additional instructions

(a) After the jury has retired to deliberate, the court should have no communication of any
kind with the jurors, until counsel have been notified of the proposed communication, and have
had an opportunity to be heard on any issues arising.
(b) If the jury, after retiring for deliberation, desires to be informed of any point of law, the
court should give appropriate additional instructions in response to the jury’s request unless:
(1) the jurors may be adequately informed by directing their attention to some portion of the
original instructions;
(2) the request concerns matters not in evidence or questions which do not pertain to the law
of the case; or
(3) the request would call upon the court to express an opinion upon factual matters that the
jury should determine.
(c) The court should give additional instructions to the jurors, or re-read instructions initially
given, only when the jury has been returned to the courtroom, with the defendant and counsel
for the parties present, after notice to counsel and opportunity to be heard.
(d) The court need not give additional instructions beyond those specifically requested by the
jury, but in its discretion the court may also give or repeat other instructions to avoid giving undue
prominence to the requested instructions.
(e) The court may recall the jury after it has retired and give additional instructions in order:
(1) to correct or withdraw an erroneous instruction;
(2) to clarify an ambiguous instruction; or
(3) to inform the jury on a point of law which should have been covered in the original
instructions.
(f) The provisions of standard 15-4.4(e) and (g) also apply to the giving of all additional
instructions, except that the court in its discretion should decide whether additional argument will
be permitted.
Standard 15-5.4. Length of deliberations; deadlocked jury

(a) Before the jury retires for deliberation, the court may give an instruction which informs the
jury:
(1) that in order to return a verdict, each juror must agree thereto;
(2) that jurors have a duty to consult with one another and to deliberate with a view to
reaching an agreement, if it can be done without violence to individual judgment;
(3) that each juror must decide the case for himself or herself but only after an impartial
consideration of the evidence with the other jurors;
(4) that in the course of deliberations, a juror should not hesitate to reexamine his or her own
views and change an opinion if the juror is convinced it is erroneous; and
(5) that no juror should surrender his or her honest belief as to the weight or effect of the
evidence solely because of the opinion of the other jurors, or for the mere purpose of returning a
verdict.
(b) If it appears to the court that the jury has been unable to agree, the court may require the
jury to continue their deliberations and may give or repeat an instruction as provided in section
(a) The court should not require or threaten to require the jury to deliberate for an
unreasonable length of time or for unreasonable intervals.
(c) The jury may be discharged without having agreed upon a verdict if it appears that there
is no reasonable probability of agreement.
Standard 15-5.5. Entry of plea during deliberations

If the defendant should elect to enter a plea at any time after the jury has been sworn but before the jury
has returned a verdict, the jury should be dismissed immediately upon acceptance of the plea by the
court and should not be permitted to return a verdict.
Standard 15-5.6. Polling the jury

When a verdict has been returned and before the jury has dispersed, the jury should be polled at the
request of any party or upon the court’s own motion. The poll should be conducted by the court or clerk
of court asking each juror individually whether the verdict announced is his or her verdict. If upon the poll
there is not unanimous concurrence, the jury may be directed to retire for further deliberations or may be
discharged.
Standard 15-5.7. Impeachment of the verdict

(a) Upon an inquiry into the validity of a verdict, no evidence should be received to show the
effect of any statement, conduct, event, or condition upon the mind of a juror or concerning the
mental processes by which the verdict was determined.
(b) The limitations in section
(a) should not bar evidence concerning whether the verdict was reached by lot.
(c) Subject to the limitations in section
(a), a juror’s testimony or affidavit should be received when it concerns:
(1) whether matters not in evidence came to the attention of one or more jurors, under
circumstances which would violate the defendant’s constitutional right to be confronted with the
witnesses against him or her; or
(2) any other misconduct for which the jurisdiction permits jurors to impeach their verdict.
Section C: The Role of Judges in a Democratic Society
Judicial Gatekeeping in the United States: A Historical Perspective

Ketan Jhaveri - Harvard Law School ‘99
Introduction: Judicial Gatekeeping as a Means to Maintain the Legitimacy and Accuracy of the Trial
Process
There has been a mg of war between judges and juries throughout American history. A survey of
jury/judge relations reveals a swing from very powerful judges in the colonial period to a jury that
developed a controlling role shortly after the Revolution. Since the Revolution, the balance of power
between judge and jury has repeatedly readjusted itself. Generally, the jury has maintained its authority
to make inferences from the evidence, but the judge has provided a framework that requires the jury’s
inferences to be credible and legitimate.
Legal commentators have noted that in response to the evolving nature of legal disputes, power to
make certain determinations has been transferred from juries to judges. An example of this is in a
comment by Professor John Langbein while discussing the history of the law of evidence in Anglo-
American law. he says "the law of evidence has changed mightily since the Middle Ages, along with the
jury itself, but the primary mission of our law of evidence – to guard against the inherent weaknesses of
jury trial – has remained constant." Of course, the perceived weaknesses of a jury at a particular time are
a function of the disputes a jury has to face and the prevalent perception of the jury’s capabilities and
biases. Professor Lawrence Friedman observes that "the law has distrusted the jury almost as much as it
has distrusted the judge. The law responds by balancing the powers of both institutions to best achieve
the results it deems desirable and fair. Many others have argued that the increased complexity of the law
has led to the need for judges to serve as gatekeepers of what goes to the jury. The primary concern that
drives changes in the judge/jury relationship is a desire to increase the accuracy of judgments and to
maintain the legitimacy of the trial process.
Pre-Revolutionary Period: Unchecked Judicial Power and its Problems

During the Colonial period, judges were not neutral arbiters. Before the adversary system was firmly in place in the
colonies, judges served as fact-finders. In contrast to then role in modern American trials, colonial judges did not find
facts to help determine a defendant’s guilt or liability. Instead, it was the judge’s task to find facts that would support a
predetermined verdict.
The Salem witch trials are a noteworthy example of this type of jurisprudence. Neither party in the Salem trials had
attorneys and the fact-finding role of the judiciary was supreme and unchecked. The judges used dubious techniques
including leading questions to obtain evidence such as confessions from the legally inexperienced accused. The goal of
the judges was to produce evidence that would support a guilty verdict. In addition, die jury had very little independence
from the judges, who used techniques such as extensive comment on the evidence to render the jury little more than a
rubber stamp of the judges’ views.
Several aspects of these trials were questionable. First, the judge controlled the production and presentation of evidence
with no challenge from counsel. Second, any dubious evidence presented, such as testimony of supernatural occurrences,
could be used at trial if the judges in their unlimited discretion so desired. There was no one to challenge the strength,
relevance, or veracity of the evidence presented. The Colonial period was characterized by unrivaled power of the judge
and his dominance over both the parties and the jury.
Distrust of Unchecked Judicial Power, the Rise of the Adversary System, and the Right to Trial by Jury
Colonists grew to distrust the judges because the judiciary was appointed by the British monarchy. The
monarchy, in turn, distrusted colonial juries During the 1760s and 1770s, the British enacted several laws
that limited the right to trial by jury, especially in the admiralty and vice-admiralty courts. The Stamp Act
Congress of 1765 and the Continental Congresses of the 1770s were convened to address the various
Intolerable Acts. At each of these Congresses the colonists proclaimed the virtues of the light to trial by
jury. In fact, the loss of the right to trial by jury was one of the grievances that led to the Revolution.
By the time of the Revolution, an adversary system had begun to develop. Some of the colonies,
including Pennsylvania. Rhode Island. South Carolina, Delaware and Virginia, created a tight to counsel
for the defendant in many criminal trials. The adversary system limited the power of judges by allowing
lawyers to present and develop the evidence Giving the accused an opportunity to defend himself
challenged judges’ previously unchecked control over evidence.
The Antifederalist View of Judge-Jury Relations: Unfettered Juries and Limited State Power
Beginning in the Colonial period, people viewed juries as an important check to state power. During
English rule, juries sometimes served to negate the power of unjust English laws. In the famous trial of John
Peter Zenger, a jury acquitted Zenger on the charge of seditious libel for attacking British officials in his
newspaper. The Zenger jury rejected the judge’s instructions, thereby implying that there should be a free
press and that truth should be a defense to libel. The verdict further illustrated that the judge did not have
absolute control over the law. The Zenger trial’s affirmation of the importance and power of the jury was
contradicted by the British government’s limitation of the right to a jury trial. This limitation provoked the
drafters of the Declaration of Independence to list the denial of this benefit as one of the grievances
against the Crown. After the Revolution, most of the newly formed states included the right to jury trial in
their state constitutions. A view of essentially unchecked jury power prevailed in the early Republic, but
the power of the jury raised questions for some Founders.
Some drafters of the Constitution worried about the possibility of unchecked democracy and therefore
wanted to create a stronger national government. The Antifederalists resented the Constitution’s
exclusion of the right to jury trial, and this omission was a central issue in their campaign against
ratification of the Constitution. Antifederalists asserted that the biases of judges and juries were different.
They believed that without a right to a jury trial, judgments would be systematically in favor of the
government and individuals with political and economic power. Eventually, the efforts of the
Antifederalists led to the ratification of the 7th Amendment, codifying the right to a jury trial. Reducing
the power of judges was seen as consistent with underlying constitutional
Victory of the Antifederalists: Jury Domination in the Early Republic

In the new nation, juries had the power to decide both issues of fact and of law. Their newly enhanced
role mandated that that jurors should decide a particular dispute based on their own judgment and
sense of morality rather than on legal doctrine. Legal disputes were seen as within the basic
understanding of the normal people who served on juries Limits appeared on the power of judges to
comment on evidence and influence the views of jurors. Fear of tyranny and faith in the ability of lay
jurors placed juries at an unprecedented level of power during the period of the New Republic.
Emergence of the Judicial Gatekeeping Role: The Need for Predictable Law
As the country developed, the fears of those who had to make use of the courts became much more
sophisticated and complex. Americans, particularly business interests, needed the law to be more
predictable and certain. Consequently, the balance of power between judge and jury began to shift.
Judges developed techniques to filter evidence the jury could see and issues they could rule on. Through
these gatekeeping powers, judges regained some, but not all, of their previous control over fact
producing and fact-finding. Following English tradition, rules of evidence developed enabling judges to
keep misleading and
The Hearsay Rule and the Need for Credibility of Evidence

The hearsay rule is the best example of such a rule of evidence. With the institution of the adversary
system, defense lawyers demanded the power to be able to cross-examine witnesses. The emerging view
of cross-examination as the engine of truth led to the exclusion of secondhand statements made by
those not available to testify at trial. Hearsay evidence was seen as weak and flawed, and the legal
system was concerned that jurors would be misled by this kind of evidence. Jurors were not trusted to be
able to properly weigh and evaluate the flaws of this evidence for them-selves. Instead, the hearsay rule
expresses the view that judges should preemptively avoid the problem of flawed verdicts by
The Law/Fact Distinction: American Commerce, the Need for Predictability and Behavior Modification
Other devices also emerged which gave the judge more power to constrain what the jury viewed and
decided. Professor Morton Horwitz argues that these changes were triggered and driven by the
changing nature of economic life in the United States. As America industrialized, law adjusted and took
on an instrumental character. The legal profession began to recognize that law had an effect on the
course of social change.
Leaving both matters of law and fact to the jury compromised certainty in the legal system. Regardless of
what happened in a previous case, a jury could decide ail issue in any way because they were not
bound by any fixed view of the law. A person engaged nr commercial enterprise thus could not predict
what standard of behavior would leave him free from legal liability. A person did not know what law the
jury would apply until he appeared in court Furthermore, the jury’s decision did not provide any
guidance or precedent for decisions by future juries.
This uncertainty was detrimental to the growth of industry because it left businesspeople vulnerable to
unknown liability. In the 19th century, as a result of pressure from industry for a more unitary law, the law
fact distinction emerged. According to this allocation of decision-making power, judges, as members of
the legal profession who were aware of the body of law relevant to a case, decided questions of law.
While retaining the power to decide questions of fact, jurors were to obey the judge’s determinations of
the law. Through this exercise of judicial power, the courts provided a degree of certainty and
predictability that was previously lacking.
Gatekeeping Limits: Protection of the Jury’s Role in Making Evidentiary Inferences

Not all methods of judicial gatekeeping have been privileged. For example, extensive judicial comment
expressing a judge’s view of evidence is not favored. By 1913, at least 41 states prohibited judicial
comment. Other old methods of bullying the jury such as constantly sending the jury back to redeliberate
are prohibited. These limitations point to the jury’s protected role in making inferences from evidence.
While juries ultimately draw inferences from the evidence, judges’ make sure that a jury’s inference from
available evidence is legitimate. Historically acceptable gatekeeping practices exclude evidence that
does not allow the jury to make a reasoned inference. When evidence such as hearsay is deemed
flawed and incapable of sustaining an acceptable conclusion, judicial gatekeeping keeps that
evidence from consideration by the jury. Evidence has also been kept from jurors because it is deemed
too complex for them to make the required inferences This is reflected in the codification of certain
determinations (e.g. marine and tire insurance cases mentioned above) as matters of law which the
judge rather than the jury should decide. Changing social and economic conditions like the
industrialization of the United States have resulted in a give and take between the roles of the jury and
judiciary.
The history of judicial gatekeeping in the United States indicates a respect for the role of the jury as well
as a mandate for judges to control what evidence will reach the jury. The interplay between judge and
jury continues to impact the nature of decision-making in American courts.
Section E: Jury Selection
Excerpts from Trial Techniques, Chapter III – Jury Selection (Thomas A. Mauet)
I. Introduction
Within the field of trial work, perhaps no area is the subject of more theory and speculation than jury
selection. Every trial lawyer develops his own theories. Every trial lawyer has a favorite story that can
disprove any theory. Some believe that jury selection is so unpredictable that any twelve jurors will, in a
given case, reach the same general conclusion. Others feel that a case is largely won or lost by the time
the jury has been selected. Nevertheless, anyone aspiring to be a complete trial lawyer must become
familiar with the methods by which juries are selected and the various theories on which their selection
can be based.
This chapter will discuss the initial decision to request a jury trial; various methods under which jurors are
examined, empaneled, and challenged; basic approaches and theories employed for the selection
process; and the ways prospective jurors should be questioned.
II. Do you want a jury?

In most jurisdictions, both parties to a lawsuit, whether civil or criminal, have a right to a jury trial. That right,
of course, can be waived. Parties in both civil and criminal cases must therefore make a threshold
determination: should you demand a jury trial or take a trial before the court? This decision is based on
the following two principal considerations.
1. Who is the judge?

Some jurisdictions, usually in larger cities, use an assignment system for their trial call. Consequently, you
will not know who your judge is until shortly before trial. In many jurisdictions, however, your case will be
assigned to a specific judge well in advance of the trial date. Regardless of the assignment method
used, you can and should make every effort to determine your judge’s track record at the earliest
possible time. Is he plaintiff- or defense-oriented in personal injury cases? What kind of judgments has he
entered in similar civil cases? Do his trial rulings have any particular bent? In criminal cases, is he
prosecution- or defense- minded? Does he have known attitudes in certain types of cases? What
sentencing disparity does he have between bench and jury trials? Ask attorneys familiar with the judge
and other knowledgeable sources what your reasonable expectations can be in your upcoming trial.
2. Does your case have jury appeal?

Plaintiff’s attorneys in personal injury cases usually demand jury trials on the theory that most of their cases
have emotional appeal, and a jury in such a case is more likely to find liability and award substantial
damages, while a judge who has heard it all before will have a more detached view of the evidence
and take a harder look at the issues of liability and general damages.
Defense attorneys in criminal cases will usually demand a jury trial if the client is presentable, the
prosecution’s case appears strong, the facts will not shock a jury, and the case has no substantial
defense to be raised. On the other hand, where the prosecution case appears weak or a substantial
defense, either legal or factual, can be developed, the defense will often prefer a bench trial,
particularly where a heinous crime or aggravating facts would be shocking to the jury.
Commercial litigation cases usually involve complex issues of law and fact revolving around substantial
quantities of documentary proof. The suits themselves often involve multiple parties, usually corporations
or other artificial entities. In these types of cases the parties, particularly the plaintiffs, usually prefer a
bench trial, since the facts can be both boring and confusing to a jury.
This determination, however, can only be intelligently made if done on a case-by-case basis, considering
the facts, witnesses, parties, and law-, yers involved. While generalizations are useful guides, they should
not override your evaluation of each individual case.
The final decision to take a bench or jury must also be discussed with the client, who should be advised of
the competing considerations in the case. This is particularly so in criminal cases, where the defendant’s
constitutional right to a jury trial can be waived only if the defendant makes a knowing and intelligent
waiver of his right.
III. Jury examination and selection methods

If you have decided on a jury trial, there are several questions that you must know the answers to before
the jury selection process begins:
– What kinds of questions will be permitted?

– What jury selection method will be used?
– Will alternate jurors be selected?
– How many peremptory challenges does each party have?
– How will the lawyers exercise peremptory challenges?
The answers to these questions are discussed in this section.
1. Voir dire examinations

There are several methods by which courts conduct the jury voir dire examination. These vary, depending
on the jurisdiction, the judge, or even the type of case involved. The only safe procedure, when your
case is assigned, is to ask the judge or his court personnel how he intends to conduct the voir dire in this
particular case.
There are, nevertheless, three principal methods by which prospective jurors are examined.
a. The traditional method was for the lawyers to conduct the entire voir dire examination. The judge,
following his preliminary remarks to the jury, merely turned the jury over to the lawyers and limited his
participation to ruling on objections made during the examination of jurors.
b. In recent years, the trend has been for the judge to conduct the entire voir dire examination. The
lawyer’s role in this system is simply restricted to exercising peremptory challenges. Although most trial
lawyers have objected to this trend, claiming that their right to examine jurors personally is an inherent
right as well as necessary to the intelligent exercise of challenges, many judges favor it, since it keeps the
lawyers from “trying their case” during the voir dire examinations, and is more efficient.
If your judge will conduct the examination himself, determine what questions he will ask in your type of
case. If there are additional questions you feel should be asked to enable you to exercise challenges
intelligently, prepare your proposed supplemental voir dire questions in writing, submit them to the judge,
and obtain a ruling. Make sure that your proposed questions and the judge’s rulings are made part of the
record.
c. The third method is a hybrid of the first two. The judge asks all preliminary questions of law and
determines if any jurors have preconceived attitudes about the case that would result in challenges for
cause. Each lawyer is then permitted to ask additional questions. Here, too, you must determine in
advance the latitude the judge will give you in questioning the prospective jurors. Many judges, for
example, will only permit the lawyers to inquire into jurors’ backgrounds and experiences. They will not
permit questions of law or questions that test jurors’ attitudes on issues and facts related to the case.
Where this is the case, you again must submit to the judge in advance questions of law you would like
him to ask the jurors.
2. Jury selection methods

How jury panels are examined and selected is controlled by statute, court rules, local practices, and the
judge’s preferences. Your first step must always be to determine how a jury is selected in your judge’s
courtroom. When in doubt, ask the judge or his court personnel.
There are many variations in jury selection methods, but most are based on the two principal systems
used today. The first is generally known as the “strike system.” Under this system every juror in the venire is
questioned under one of the methods described earlier. As each juror is questioned, the lawyers simply fill
out a sheet, often a printed form, that lists each juror in succession. When the last juror has been
questioned, the lawyers for each party designate those jurors against whom they wish to exercise
peremptory challenges. The lawyers then give their lists to the judge, who compares them and then
simply calls the first 12 names – assuming a 12 person jury – that have not been challenged by any party.
These 12 become the jury. Alternate jurors, if necessary, arc simply the next unchallenged names on the
lists.
The strike system has advantages and disadvantages. Its disadvantage is that it requires questioning
every prospective juror in the venire. Its advantages, which probably account for its growing popularity,
are that it avoids most of the gamesmanship of the selection process and keeps jurors from knowing
which party used a peremptory challenge against them.
The traditional jury selection method, still common today, simply fills the jury box with the necessary
number of jurors. Only the prospective jurors in the box arc questioned under one of the methods
described above. When each has been questioned, plaintiff s lawyer will exercise the peremptory
challenges he wishes to use at that time. The challenged jurors are excused and they are replaced by
new jurors from the venire, who usually sit in the back of the courtroom. The new jurors in the box are then
questioned, and plaintiff’s lawyer again can exercise peremptory challenges against them. This process
continues until plaintiff’s attorney accepts the panel and “tenders the panel” to the defense. The
defense lawyer then goes through the same steps, exercising his peremptory challenges, replacing the
challenged jurors with new jurors from the venire, and continuing with this process until the defendant’s
lawyer is satisfied with the panel. He then accepts the panel and tenders it back to the plaintiff. The
plaintiff’s lawyer can then exercise peremptory challenges against jurors he had not previously
accepted. This process goes back and forth until both sides accept the same panel of jurors. Alternate
jurors, if necessary, are picked through the same process.
The traditional method also has advantages and disadvantages. Its advantage is that only those jurors in
the jury box need to be questioned. Its disadvantages are that it permits a great deal of gamesmanship
during the selection process.
Keep in mind that the two selection methods described above are not the only methods employed.
There are numerous variations of these methods. The safest course is always to learn in advance how the
jury for your particular case and in front of the particular judge will be selected.
3. Exercising challenges
There are two kinds of challenges that may be exercised against prospective jurors: peremptory and
cause. Peremptory challenges are given by statute or court rules, and usually can be exercised for any
reason. Cause challenges, usually also enumerated by statute or rules, are granted whenever a juror
meets a disqualification basis – most commonly that the juror cannot be fair and impartial in this
particular type of case on trial. While the number of cause challenges is always unlimited, each party has
a predetermined and limited number of peremptory challenges that can be used during the selection
process. Where the strike system is used, challenges are communicated to the judge, so the principal
consideration is knowing the number of challenges each party has. Where a traditional method of jury
selection is used, however, there are several points that must always be remembered.
First, never run out of challenges. Always keep the remaining jurors in mind when you exercise challenges.
A great deal can be learned just by watching the remaining jurors as they sit in the back of the
courtroom waiting to be selected. What those jurors look like will have a substantial effect on the rate
with which you use your challenges. Always save at least one peremptory challenge. The cases are
legion in which one lawyer used all his challenges before the complete jury was picked only to discover
that the last juror seated was disastrous for him. Save your last challenge for such an emergency.
Second, make sure you know the number of peremptory challenges you and every other party have. The
number of peremptory challenges usually varies according to the kind of case on trial and the number of
parties to the lawsuit. Make sure that the numbers are clear to everyone before jury selection begins. In
addition, some statutes permit additional peremptory challenges to be allowed in the discretion of the
court. Find out if your judge will permit additional challenges in your case. You must also determine, in
multiple-plaintiff or multiple-defendant situations, how peremptory challenges will be exercised. Some
judges permit all plaintiffs or defendants to pool their challenges and exercise them as a group. Other
judges require that challenges be exercised by individual parties. Kind out in advance what procedure
will be used in your case.
Third, determine if you will be allowed to “reinvade the jury.” The right to reinvade refers to your right to
challenge jurors you previously accepted when the jury panel is tendered back to you. Some judges
allow you to challenge jurors you initially accepted and tendered to the other side. Others do not. Find
out in advance what procedure you will be required to follow.
Fourth, find out how peremptory and cause challenges will be exercised in your case. Practices vary
greatly. In many courtrooms peremptory challenges are made in open court by the lawyers. In others,
however, the judge will call side-bar conferences at the appropriate times to determine which jurors will
be challenged. The judge will then excuse the challenged jurors himself. Challenges for cause can also
be handled both ways. Where a juror, because of an obvious disqualification, will be excused for cause,
the judge will usually excuse the juror himself and let the parties know that he was excused for a cause.
Where, however, the questions have elicited a response that you feel entitles you to have the juror
excused for cause, but the judge has not excused him, the procedure is somewhat more delicate.
Perhaps the safest approach is to ask the judge for a side-bar conference, then argue that the witness’
responses justify a challenge for cause.
a. How do you exercise peremptory challenges? Here a bit of psychology is crucial. Jurors hate to
be excused. Waiting in the jury room to be called for another case is tedious. Jurors want to sit on and
hear cases. If possible, therefore, have the court exercise challenges for you, particularly if you anticipate
using more challenges than your opponent. If you must exercise your challenges in open court, do it as
politely and softly as possible.
Examples:
Plaintiff Counsel: Your Honor, at this time we would ask that Mr. Smith be excused.
or
Plaintiff Counsel: Your Honor, plaintiff would thank but excuse Mr. Smith.
Court: Mr. Smith, thank you, you are excused.
If your decision to excuse a juror is based on unfavorable responses that juror gave you, wait a while and
ask questions of other jurors before exercising your challenges, if you wish to disguise the reason you
excused him.
b. How do you exercise challenges for cause? As mentioned above, ask for a side-bar conference
and ask the judge to excuse the juror for cause. W’here the judge refuses to hold a side bar, make sure
you have clearly demonstrated why you are asking for and are entitled to a challenge for cause.
Example:
Plaintiff is suing a truck driver for injuries arising out of a highway accident.
Plaintiff Counsel: Mr. Smith, what kind of work do you do?
Juror: I’m a truck driver.
Plaintiff Counsel: For how many years?
Juror: Eighteen years.
Plaintiff Counsel: Over those eighteen years, were you ever involved in collisions with automobiles?
Juror: Yes, three of them.
Plaintiff Counsel: Were you ever involved in lawsuits as a result of those incidents?
Juror: Well, on one of those I got sued.

Plaintiff Counsel: Mr. Smith, because you have the same occupation as the defendant, and like
him, were also the defendant in a lawsuit, do you think you might start off in this case a little on the
defendant’s side?
Juror: It’s possible.
Plaintiff Counsel: Looking at it from the other side, can you promise us that you have a completely
fair and impartial frame of mind and can give my client a fair verdict based solely on the evidence you
hear during the trial?
Juror: I’m not sure.
Plaintiff Counsel: Your honor, to be fair to both sides here, we ask that Mr. Smith be excused, for
cause.
Court: Mr. Smith, you will be excused. Thank you for your candor in this matter.
If the court refuses to excuse the juror for cause, you must of course exercise one of your peremptory
challenges to get this obviously unfavorable and now probably hostile juror off the jury. You have made
your reasons clear to the other jurors, and they should not hold your challenge against you.
c. How do you accept and tender panels? Simply tell the judge in open court that you accept the
panel and, if appropriate, tender it to the other side.
Examples:
Your Honor, plaintiff accepts the panel and tenders it to the defense.
or
Your Honor, the defense accepts the tendered panel.
or
Your Honor, we accept the panel.
IV. Purposes of jury selection

As an advocate your function during the jury selection process is both clear and simple: you want to
select a jury that will be fair, is favorably disposed to you, your client, and your ease, and will ultimately
return a favorable verdict. Your opponent, of course, while also looking for a jury that has an open mind
about the case, is also looking for a jury that will react favorably to him, his client and his case. What
constitutes a good jury depends on which side of the case you represent and determines how you will
exercise your peremptory challenges. When two evenly matched adversaries participate in the jury
selection process, injecting their concepts of a good jury into that process, they will ultimately select a
jury that will fairly and impartially hear the evidence and reach a just verdict.
With these points in mind, what are your specific, aims during the voir dire examination of prospective
jurors? There are three:
1. Present yourself and your client in a favorable light to the jury.

2. Learn about the jurors’ backgrounds and attitudes, so that you can exercise your challenges
intelligently.
3. Familiarize the jury with certain legal and factual concepts, if permitted by the court.
Notice that of these three aims only the second is directly related to voir dire itself. The other two are
more concerned with trial advocacy, which begins when the venire first walks into the courtroom and
continues until the jury returns the verdict. You and your client as well as die facts are all on trial and
affect its final outcome. The successful trial lawyer is the one who recognizes this and conducts himself
accordingly.
V. Theories of jury selection

One of your purposes in conducting voir dire examinations of prospective jurors, as mentioned earlier, is
to learn enough about the jurors’ backgrounds so that you can intelligently exercise your peremptory
challenges. People’s attitudes are inevitably the product of their social background, education, and
experiences in life, furors are no different. Accordingly, regardless of what approaches you prefer to base
your jury selections on, your examinations will necessarily take into consideration the following:
a. age
b. social background
c. marital status
d. family status (children)
e. family history (parents, brothers and sisters, etc.)
f. education (self, wife, children, etc.)
g. occupation (self, wife, children, parents)
h. employment history
i. residence history
j. hobbies and activities
Remember that jurors usually think an act in ways that are consistent with their backgrounds. On the
other hand, they will usually answer questions about their attitudes and understanding of legal concepts
in a way they think the questioner would want them answered. Jurors, in other words, want to be
selected and will often say what they think you want to hear. Inferring their true attitudes from their
backgrounds is usually the lesser risk.
No review of the jury selection process would be complete, however, unless it mentioned some of the
time-honored selection criteria lawyers have used over the years. While every trial lawyer ultimately
develops his own approach, it is useful to know some of the standard schools of thought. These include
the following.
1. Similarity-to-parties method
This method looks at the parties and their principal witnesses and analyzes their characteristics and
backgrounds. Each side then picks jurors who have characteristics and backgrounds similar to their side,
and dissimilar to the opponent’s. This method presumes dial jurors will naturally, although subconsciously,
give greater weight and credibility to witnesses whose backgrounds are similar to theirs. It has
applicability, of course, only where each party and its main witnesses have substantially different
backgrounds from the other side’s. For example, where in a personal injury case the plaintiff and his main
witnesses are blue-collar workers and the defendant is a business executive, plaintiff would probably
prefer workers, not executives, on the jury.
2. Ethnic characteristics method

The ethnic characteristics method was the dominant jury selection approach years ago, when
substantial numbers of jurors, particularly in large cities, were either immigrants or First-generation
Americans. Hence, it was believed that certain ethnic groups had predictable attitudes that they would
carry into the jury room. Whether the method is useful today is, of course, subject to question.
The ethnic characteristics method looks at ethnic backgrounds and assumes that attitudes are deep-
rooted beliefs that are affected by values acquired early in life from family and social peer groups.
Consequently, plaintiff’s personal injury lawyers favor Irish, Jewish, Italian, French, and Spanish jurors,
under the belief that such jurors are more likely to respond to a sympathetic story and an emotional
appeal. Conversely, defendants in such cases look favorably upon English, German, and Scandinavian
jurors, Nordic types who are viewed as more responsive to law-and-order arguments and resent windfall
damages. Criminal lawyers who subscribe to this theory use the same approach, except that they
reverse the conclusions. Prosecutors prefer Nordic types; defense attorneys prefer Mediterraneans.
Closely tied to the ethnic origins approach is the religious beliefs analysis. Catholics and fundamental
Protestant sects are viewed as favoring personal injury defendants and the prosecution in criminal cases.
Liberal Protestant and most Jewish sects favor the personal injury plaintiffs and the defense in criminal
cases.
3. Work and class method

This method presumes that people’s attitudes and values are an inevitable product of their work, family
status, and socioeconomic class and that these persons will as jurors act consistently with those attitudes.
Prosecutors in criminal cases and defense attorneys in personal injury cases look for middle-aged or
retired jurors who have average incomes, stable marriages and family lives, work at white- and blue-
collar jobs, are businessmen, or hold jobs that demonstrate traditional work ethics. Plaintiff’s attorneys in
personal injury and defense counsel in criminal cases generally prefer jurors whose backgrounds suggest
greater subjectivity and receptivity to emotional appeals, such as single and young persons or young
married couples, artists, actors, writers, and other creative individuals, and persons at both extremes of
the income and social scales.
4. Body language method

This method has become increasingly popular, due in part to a growing awareness that voir dire
examinations can be extremely inaccurate in determining jurors’ true attitudes. Since most jurors want to
sit on the jury, they will often hide their true feelings and attempt to answer questions about themselves
the way they think the questioner wants them answered. In addition, trial lawyers are increasingly
realizing that jurors’ attitudes toward, and reactions to, the lawyers are important aspects of trial work
that can have a significant impact on the outcome of a case.
Consequently, this method looks to a juror’s appearance, behavior, and non-verbal responses, since
these are viewed as giving a truer picture than verbal answers. It considers the juror’s dress. Is he dressed
appropriately for his work, age, sex, and class? Are his clothes compensating for a perceived
inadequacy? Does his immaculate dress suggest the juror to be meticulous and analytically oriented? Do
his clothes suggest what he would like to be, but isn’t? The body language method considers physical
responses in conjunction with verbal answers. Hands over mouth, licking lips, sighs, swallowing, blushing,
and restlessness all suggest that the juror is sensitive or anxious about the subject being discussed. It also
considers the juror’s attitude toward the lawyer. Leaning back, turning sideways, suddenly crossing arms
and legs, hands in pocket, coat buttoned, looking at everything but the lawyer all indicate a negative
attitude toward or rejection of the lawyer. It analyzes whether those nonverbal responses are consistent
with the verbal answers. Finally, it considers speech patterns. Do his responses have unusual or abnormal
pauses? Does he hesitate or look elsewhere before answering? Does his pattern of responses change
when certain topics are discussed? Does he hedge his answers?
If, as many trial lawyers believe, a juror’s subjective response to you as a lawyer is important, body
language may be a significant aspect of the selection process.
5. Strong vs. weak jurors

This approach is based on the general proposition that certain personality types are advantageous to
certain parties. Plaintiffs, having the burden of proof and usually requiring a unanimous verdict to prevail,
generally prefer jurors who are followers and compromisers, and will eventually go along with the
majority. Unless you are convinced that a strong juror is favorably disposed toward your case, having
such a juror on the case is dangerous. If such a juror turns out to favor the opposition, he might very well
hang the jury or turn it against you.
Defendants in general prefer jurors with strong personalities, since these are seen as more capable of
assuming independent positions and more likely to resist the majority. Defendants, in other words, prefer
jurors who have strong backgrounds and personalities that label them as “take charge” types, since it
often takes only one of these jurors to create a hung jury or force a compromise on damages as the
price for a unanimous verdict.
As with any theory involving human nature, the validity of these theories and others is difficult, if not
impossible, to confirm or deny, although in recent years numerous studies have analyzed the factors that
can help predict how a particular type of juror will react to different cases, and lawyers in major cases
have begun to use clinical psychologists and communication specialists to determine what their best
and worst jurors will he for the case. The theories simply became part of the ever- increasing folklore
surrounding jury selection. The best that any trial lawyer can do is to be familiar with these approaches,
use his common sense and experience in determining what his best jurors will be for each case to be
tried, and formulate intelligent questions to uncover as much useful information as possible. Jury selection
can never be more scientific than that.
VI. Checklist for examinations

Determine in advance of the voir dire examination what your most and least desirable jurors will likely be
in your case. This is best placed on a checklist chart and kept in the jury selection part of the trial
notebook. Such a chart is also a convenient place to keep track of each party’s exercised challenges,
and to outline the special questions you plan to ask during the voir dire in addition to the usual
background questions.
Example:
You represent plaintiff pedestrian, a 23-year-old cocktail waitress, struck by truck driver.
(good) Juror profile (bad)

Young Truck, bus, cab, etc. drivers
Service occupation employees Owners/managers of delivery businesses
Students Nondrinkers
Fundamentalist religious sects
Particular areas of inquiry:

1. Social habits – restaurants, nightclubs, taverns
2. Attitudes toward social drinking
3. Ever work as a driver – employ drivers in business
4. Accident and injury history
5. Ever involved in similar lawsuit – result
Challenges: PI. Def. Cause

Section F: Individual Rights in Criminal Law
CRIMINAL LAW AND CONSTITUTIONAL RIGHTS

The United States and Ohio Constitutions provide accused persons with various basic rights. These rights
are designed to protect the individual from unreasonable government intrusion and to insure
fundamental fairness. Violation of these rights may result in dismissal of criminal charges, and may also
result in criminal or civil liability for the persons responsible for violating the rights.
Equal Protection of the Law

The 14th Amendment to the United States Constitution states that everyone is entitled to equal protection
under the law. This means that the law must be the same for all. For example, there cannot be one law
for the rich and another for the poor, or one law for blacks and another law for whites.
Due Process of Law

The 14th Amendment of the United States Constitution also states that no one can be deprived of life,
liberty, or property without due process of law. This means that the laws must be enforced only through a
rational procedure which is constructed and used to insure fundamental fairness. An accused person
cannot arbitrarily be fined, jailed, or put to death. Guilt or innocence must be determined fairly and
impartially through an appropriate procedure.
Double Jeopardy
The United States and Ohio Constitutions provide that no one can be placed in jeopardy more than
once for the same crime. In general, this means that in criminal prosecutions, the state has only one
chance. If a person is found not guilty, the state cannot appeal or attempt to try her again. The same is
true if an accused is found guilty. The state cannot accuse her again and attempt to inflict double
punishment for the crime. There are exceptions to the general rule. For example, a second trial can be
held if the accused was found guilty and the guilty finding was overturned on appeal. Similarly, the state
can appeal certain questions of law.
Search and Seizure

Both the United States and Ohio Constitutions prohibit unreasonable searches and seizures. Generally,
law enforcement officers cannot search a person or his property without a search warrant. A search
warrant can only be issued by a judge on probable cause to believe that particular evidence of a crime
will be uncovered at the specific place to be searched. There are a number of situations where law
enforcement officers can conduct searches without a warrant. For example, searches can be
conducted without a warrant in connection with a lawful arrest, when the search is conducted with the
permission of the person whose property is being searched, when the items found were in plain view, etc.
Self-Incrimination
Both the United States and Ohio Constitutions state that no one can be compelled to incriminate himself.
This means that a person cannot be tortured into confessing or making damaging statements, or even
any statement. (Torture is also prohibited by the due process clause.) Further, a person cannot be forced
to confess or make a statement by: attempts to frighten him or wear him down with questioning, trickery,
or promises of leniency. During a trial, the accused cannot be forced to testify (be a witness). Moreover, if
the accused decides to remain silent, the prosecution cannot suggest to the jury that the accused’s
silence indicates guilt.
Right to Counsel
An accused person is constitutionally entitled to the services of an attorney. If she cannot afford an
attorney, the state is bound to provide one for her in any case in which imprisonment is a possible
punishment. In serious cases, the accused must be provided with legal counsel at all significant steps of
the procedure, beginning with the lineup in the police station after her arrest, through questioning by the
police, preliminary hearing, arraignment, trial, and appeal, if any.
Indictment by a Grand Jury

Both the United States and Ohio Constitutions provide that no one can be brought to trial for a felony
except on indictment by a grand jury. Indictment by a grand jury helps ensure that no one is subjected
to trial on false, flimsy, or spiteful accusations.
Notice of the Charge

An accused is entitled to fair notice of the specific charges against her. This notice allows her to prepare
her defense intelligently. An accused cannot prepare a defense if the charge is a vague statement of
some unspecified wrongdoing.
Speedy Trial
Both the United States and Ohio Constitutions state that an accused is entitled to a speedy trial. An
accused cannot be made to wait indefinitely with a criminal charge hanging over her head, but must be
given the opportunity to have the matter resolved quickly.
In Ohio, specific time limits are provided by statute; these time limits can be extended only for good
cause. The times within which an accused must be brought to hearing or trial after an arrest or service of
summons are as follows: 30 days for trial in mayors’ courts, or trials for minor misdemeanors in any court; 45
days for trials of misdemeanors carrying a maximum penalty of 60 days in jail; 90 days for trials of more
serious misdemeanors; 15 days for preliminary hearings in felony cases; and 270 days for trials in felony
cases. The statute provides that in counting time, each day spent in jail awaiting trial must be counted as
three days. Thus, for example, if the accused in a felony case cannot make bail, she must be given a
preliminary hearing within five days (15/3=5) after her arrest, and must be brought to trial within 90 days
(270/3=90) after her arrest.
Public Trial in the Locality

Both the United States and Ohio Constitutions give an accused the right to a public trial. The right to a
public trial ensures that trials are conducted fairly and properly. (There is no way to know whether a
secret trial was conducted fairly and properly. Further, there can be questions whether such a trial was in
fact conducted.) An accused also has the right to be tried in the locality where the alleged offense was
committed. The right to be tried where the alleged offense occurred ensures that the witnesses and
evidence are readily available and that the state cannot transfer the trial to a place where the
atmosphere is hostile to the accused. However, an accused can have the trial transferred (a change of
venue) if she cannot get a fair trial in the locality where the alleged crime occurred.
Confronting Accusers and Securing Witnesses

Generally, the United States and Ohio Constitutions provide that a defendant in a criminal case is entitled
to meet his accusers and the witnesses against him. The Ohio Constitution specifically requires that this
confrontation occur face to face. That is, the state cannot rely on anonymous accusers and witnesses–
the defendant is entitled to know who they are and to have an opportunity to question them in person.
Moreover, an accused is entitled to secure witnesses in his own behalf. Further, the process the state uses
to have–even force–its witnesses to come to court and testify must be available to the accused. The
accused is allowed to have–even force–the witnesses he wants to come and testify.
Trial by Jury
Under the United States Constitution, a defendant is entitled to trial by jury if the potential penalty for the
crime charged exceeds imprisonment for six months. The Ohio Constitution and statutes are even more
stringent. An accused in Ohio is entitled to a jury trial if the potential penalty for the crime charged
exceeds a fine of $100.
Other Constitutional Rights

In addition to the rights mentioned above, there are other constitutional rights which are important in
criminal proceedings. These include constitutional prohibitions against certain kinds of laws, as well as
constitutional rights which limit criminal laws. The following paragraphs explain some of these
constitutional rights.
Neither the Congress nor the states can enact retroactive or "ex post facto" laws. This means that a
person’s criminal liability must be established according to the law in effect at the time the person
committed the alleged offense. If a person’s conduct was innocent when it occurred, she cannot be
subjected to liability under a subsequent law which prohibits the earlier conduct. Further, such a person
cannot be subjected to a greater penalty, or have a defense taken away, by a subsequent law.
Neither the Congress nor the states can pass "bills of attainder." In earlier times, bills of attainder were
used to condemn a person by legislative enactment without benefit of trial. English kings used these bills
to declare their enemies outlaws and to confiscate their enemies’ property.
Both the United States and Ohio Constitutions prohibit cruel and unusual punishment for crimes. These
constitutional provisions prohibit such things as torture, or death by barbaric, painful, or lingering means,
and excessive punishments. (An example of an excessive punishment would be a prison term for a minor
traffic offense.) Additionally, the Ohio Constitution prohibits punishments which include forfeiture of all the
offender’s property or disinheritance of his family.
Another important constitutional requirement is that criminal laws must be specific. Persons are entitled to
fair notice of what the law prohibits them from doing or requires them to do. Criminal laws which are so
vague that they do not provide fair notice are invalid under the United States and Ohio Constitutions.
The United States and Ohio Constitutions also guarantee certain basic rights to everyone, and laws which
prohibit or interfere with the exercise of such rights are invalid. Everyone is entitled to religious freedom.
For example, a person cannot be condemned under a law which compels a person to renounce her
religion, or to proclaim adherence to a particular religion. Everyone is entitled to freely speak and write
her sentiments. Thus, general censorship laws or laws prohibiting criticism of the government are invalid.
(The right to speak freely is not an absolute privilege. A person cannot yell "Fire" in a crowded theater
merely to see the resultant terror. Similarly, a person may be sued for defamation.) Persons are entitled to
assemble for peaceful purposes, thus the police cannot constitutionally break up an orderly, lawful
meeting. Everyone has a right to petition the government to have grievances adjusted, and cannot be
prosecuted for doing so. The federal government cannot prohibit a state from forming a militia. In Ohio,
persons are entitled to keep and bear weapons for their own defense, thus the state cannot make the
mere possession of weapons for defensive purposes a crime. The state and the federal government can
impose specific restrictions on the possession, sale, or use of certain firearms. The government cannot
punish persons for refusing to provide housing for the military. There are many other constitutional
requirements and prohibitions which can be important in criminal cases.
Informing the Accused of Rights

An accused cannot intelligently insist on her constitutional rights if she is not fully aware of them. She must
be informed of her rights in any case if she asks, and in serious cases even if she does not ask. Specifically,
when a person is in custody on a serious charge she must be told of her right to remain silent, of her right
to counsel, and of her right to have counsel provided at state expense if she cannot afford it. She must
be given an explanation of her constitutional rights at each stage in which she appears before a judge.
Waiver of Rights
In general, an accused can waive a constitutional right. For example, she can waive her right against
self-incrimination and confess, or she can waive her right to counsel and represent herself, or she can
waive her right to indictment and consent to be tried on an "information." A waiver must be voluntary,
and must be made with full knowledge of the right being waived and of the consequences of waiver.
Enforcement of Rights
Constitutional rights can be enforced in a variety of ways. Evidence obtained through an unreasonable
search or an involuntary confession can be suppressed. A decision can be reversed and the case
dismissed or remanded for a new trial. Public officials responsible for a violation of constitutional and
other rights could be liable for civil damages. Under Ohio law, certain violations of civil rights can
themselves be crimes.
Review on Appeal
In Ohio, a defendant has the right to appeal to the court of appeals. If the defendant is indigent, the
state must provide her with counsel and a transcript of the trial proceedings. The appeal is limited to
issues that appear on the record, that is, those issues which appear in the trial transcript or in papers filed
in the case. If the court of appeals finds that an error occurred which affected the outcome of the trial, it
will reverse the conviction and remand the case to the trial court for retrial or other proceedings. If no
harmful error occurred, the court of appeals will affirm the conviction.
In Ohio, a defendant has no statutory right to appeal the decision of the court of appeals except where
the court of appeals has affirmed a judgment of a trial court which imposed the death penalty. In non-
death penalty cases, the defendant may petition (request) the Supreme Court of Ohio to review her
case.
In general, the Supreme Court of Ohio is not required to allow an appeal, but may do so depending on
the issues raised in the appeal and the impact of the decision of the court of appeals on Ohio law. If the
Supreme Court of Ohio declines to accept the defendant’s appeal or if it affirms the conviction after
allowing the appeal, the defendant may petition the United States Supreme Court to review the case.
The United States Supreme Court can review only issues involving rights granted or claimed under the
United States Constitution. The United States Supreme Court is not required to allow an appeal, but may
do so depending upon the issues presented in the appeal.
It should be noted that strict time limitations must be met when filing the appeal (a document called a
"notice of appeal" must be filed within the required time) to secure review in any of the above-
mentioned courts. Further, there is no right to counsel when petitioning the Supreme Court of Ohio or the
United States Supreme Court to allow the appeal, although, in rare cases, counsel may be appointed.
Review of Sentence on Appeal

In July, 1996, the Criminal Code was amended to afford new rights to appeal certain felony sentences.
The defendant may appeal: (1) when the maximum prison term is imposed; (2) when there was
guidance against a prison sentence and the judge sentenced the offender to prison; and (3) when the
sentence is otherwise contrary to law. The prosecution may appeal: (1) when a non-prison sentence was
imposed on a first or second degree felon; (2) when judicial release was granted to such a felon; and (3)
when the sentence was otherwise contrary to law. However, if the sentence was based on an
agreement between the defendant and prosecution, and lawfully imposed, neither party has a new
right to appeal. (The defendant also may appeal certain consecutive sentences, but the appellate court
does not have to review this appeal.) These appeals must be consolidated with any other appeal in the
case.
Post-conviction Relief
The appeal procedure outlined above, referred to as "direct appeal," is limited to the review of issues
which appear on the record. Where the defendant claims that errors occurred which violated her
constitutional rights and contributed to her conviction, but which do not appear on the record, the
defendant may file a petition for post-conviction relief. The petition is filed in the trial court in which the
defendant was convicted. The defendant must attach to or include with the petition some evidence
which is not already on the record which supports defendant’s claims. The petition may be denied
without a hearing. There is no time limitation within which a post-conviction petition must be filed. There is
no right to counsel in post-conviction proceedings, although the court may choose to appoint counsel in
rare cases.
After the defendant has sought all relief available in Ohio’s courts, she may file a petition for federal
habeas corpus relief in the United States District Court. Although the court may only consider violations of
the United States Constitution, its review is not limited to matters which appear on the record of the
original trial. Generally, any federal issue which was fairly presented by the defendant to the Supreme
Court of Ohio and which was not otherwise waived, may be reviewed in a federal habeas corpus
proceeding.
Also, a defendant may seek post-conviction relief if the sentencing pattern of an individual judge shows
an impermissible bias based on the race, ethnicity, gender, or religion of defendants.
Section G: Privilege and Individual Rights
Illustrations of Privilege and Constitutional Protections
United States Constitution 5th Amendment
No person … shall be compelled in any criminal case to be a witness against himself… .
Ukrainian Constitution, Chapter II, Article 62 and 63
No one is obliged to prove his or her innocence of committing a crime.
A person shall not bear responsibility for refusing to testify or to explain anything about
himself or herself, members of his or her family or close relatives in the degree
determined by law.
The prosecution may not call a criminal defendant as a witness and may not comment
on the defendant’s choice to not testify. The government may not use statements
obtained involuntarily from the defendant and may not use evidence derived as a
result of those statements.
Application Scenarios
At the scene of a drug arrest, Sandra is handcuffed and placed in the back seat of a police car. As she is
driven to the police station, she is asked who brought the drugs and if she bought any. She was never
advised of her right to remain silent and consult with an attorney. The statements she makes may not be
used in court.
Robert is stopped by a policeman and asked to come to the police station a block away. The policeman
says he is investigating a neighborhood robbery. He is invited into a conference room, where another
officer also appears. He is told that he is free to leave and at one point, goes out to buy a soft drink. The
two officers ask him questions, and Robert mentions that he has bought a television at a very cheap
price from a neighbor. The statements Robert makes may be used in court if Robert is charged with
robbery.
Uniform Rules of Evidence 501-511 (summary)
Attorney – Client Privilege. A client has a privilege to refuse to disclose (and to prevent
any other person from disclosing) a confidential communication made for the purpose
of facilitating legal services by the attorney for the client.
Walter is testifying in a theft case against David. Walter says that he met David in his attorney’s office. The
prosecutor asks Walter why Walter was seeing an attorney.
Walter may decline to answer.
The prosecutor asks what day Walter was in the attorney’s office and met David. There is no privilege.
Mark is hospitalized after a bomb went off in his car. Mark’s attorney visits him in the hospital. A secretary
comes with the attorney to take notes. May the government require the notes to be produced? May the
government call the secretary to testify as Mark’s trial? If a janitor enters the hospital room to clean it and
overhears the conversation between Mark and his attorney, may the government call the janitor as a
witness?
Physician – Patient Privilege. A patient has a privilege to refuse to disclose (and to keep
his physician from disclosing) information acquired while treating the patient, if the
information was necessary for treatment.
Frank is being prosecuted for a shooting that occurred in a gang fight. Frank went to his doctor right after
the fight and received medical treatment. The government calls Frank’s doctor to testify about Frank’s
medical condition. Is there a basis for an objection?
[The scenario continues]
Prosecutor: What day did you treat Frank?
Defense Counsel: Objection. Violates the physician patient privilege.
Should the objection be sustained or overruled?
Spousal Privileges. An individual has a privilege to refuse to testify and to prevent the
individual’s spouse or former spouse from testifying as to any confidential
communication made during their marriage. In addition, one spouse may refuse to
testify against another in a criminal proceeding. However, these privileges do not apply
if one spouse is charged in a crime against the other.
Peter is on trial for forging prescriptions. His wife Carol is called to testify.
Prosecutor: When did Peter first start using painkillers?
Defense Counsel: Objection. Violates the spousal privilege.
Prosecutor: Did Peter ever tell you he was addicted to painkillers?
Defense Counsel: Objection. Violates the spousal privilege.
Religious Privilege. An individual has a privilege to refuse to disclose and to prevent

another from disclosing a confidential communication by the individual to a cleric
(priest) in the cleric’s professional capacity as spiritual adviser.
Spencer is charged with stealing money from his aunt. Spencer told his aunt he knows who did it and that
he went to his priest to discuss what to do. The priest cannot be compelled to testify about his discussions
with Spencer.
Political Vote Privilege. An individual has a privilege to refuse to disclose how the
individual voted at a political election conducted by secret ballot.
Karl is on trial for bribery of a city council member. Karl cannot be asked how he voted in the city
elections.
Trade Secret Privilege. A person has a privilege to refuse to disclose and to prevent
other persons from disclosing a trade secret. The privilege does not apply if allowance
of the privilege will tend to conceal fraud or otherwise work injustice. If disclosure is
directed, the court may take measures to protect against unnecessary further
disclosure.
Hugh and Lena are charged with theft of company customer lists. The court may order that the lists be
under seal and not part of the public record.
State Secrets. The constitution, laws or rules of the United States or a state may create a
privilege not to reveal state secrets.
Ahmed is charged with aiding a terrorist organization. His lawyer wants the court to order the government
to produce documents listing alleged terrorists the government claims are associated with the
organization. The government may object to providing the documents.
Identity of Informer. The government has a privilege not to disclose the identity of an
confidential informer. However, if the informer has first hand knowledge of the crime
held by no one else, the identity must be revealed, at least to defense counsel.
Mario is alleged to have participated in a theft of firearms. All the defendants (and many other people)
were in a hotel room the morning after the theft. The guns were present and there was a general
discussion of the events during the theft. A person who was present in the hotel room has confidentially
informed the government that Mario spoke of details of the theft as if he participated in the theft. If the
government intends to call that person as a witness, the government must reveal his identity in advance
of trial.
Rose is charged with sale of methamphetamine. A confidential informant told the police that people
were buying meth at Rose’s house. An undercover police officer went to Rose’s house and bought meth
from her. Because the testimony of the informant is not necessary evidence, the government will not
have to reveal the informant’s identity.
Comment on Privilege. Privilege objections should be made without calling the claim of
privilege to the attention of the jury. If a privilege is invoked, no party may comment on
it.
In the closing argument, the prosecutor states, “There is one person who knows exactly what happened
that night, and he has not testified today.” This is improper.
Section H: The Sources of Law in Common Law Systems
THE SOURCES OF LAW

The law is a compilation of rules and principles which establish rights and duties. The rules and principles
concern freedom, conduct, and property. The law has many sources. For example, every group of
human beings needs order. The need for order gave rise to customs. Certain customs were accepted by
the group and, over time, became law.
The law which governs Ohio and its citizens can be classified into four main types. These are: (1)
constitutional law, which is the fundamental law; (2) statutory law, which is written law adopted by
legislative bodies; (3) administrative law, which consists of written rules adopted by various government
agencies under limited authority granted by legislative bodies; and (4) the common law, which is a large
set of principles based on the decisions of judges in particular cases. These written decisions are often
referred to as "case law."
THE CONSTITUTIONS
The United States Constitution is the basic law of the nation, and the Ohio Constitution is the basic law of
the State of Ohio. The two are similar in many respects, but where a conflict arises the United States
Constitution takes precedence.
The United States Constitution

Our national or federal government is a union of independent states. The basic purposes of the United
States Constitution is to form an effective national government while preserving a measure of state
sovereignty, to promote the general welfare, and to protect the individual rights of all citizens. To achieve
these ends, the Constitution enumerates the powers to be exercised by the federal government, reserves
all other powers to the states, and spells out the relationships of the states among themselves and with
the federal government. It establishes three branches of the federal government: (1) legislative, which is
the Congress and has the duty to make the laws; (2) executive, which is the President (and the
President’s subordinates) whose duty is to see that the laws made by Congress are carried out; and (3)
judicial, consisting of the national court system headed by the United States Supreme Court, whose
duties are to interpret the laws and to administer justice. One of the most important aspects of the United
States Constitution is a special concern for individual rights. It lists several things the federal government
and the states cannot do, and enumerates a far-reaching series of individual rights and immunities.
As the supreme law of the nation, the United States Constitution sets the standards against which all other
laws and the administration of those laws must be judged.
The Ohio Constitution

Ohio’s Constitution is like the United States Constitution in many respects. It establishes the government of
Ohio and provides for legislative, executive, and judicial branches; enumerates the powers of the state
government; and lists fundamental individual rights. The Ohio Constitution, however, addresses more
issues than its federal counterpart. For example, it establishes the right of "referendum" whereby the
people can adopt and repeal laws by direct vote; contains detailed provisions for financing public works
and various state programs; and establishes the organization and operation of local governments.
The Ohio Constitution is the supreme law of Ohio. It is the standard against which all other laws of the
state and local governments must be judged. Nevertheless, the Ohio Constitution is subordinate to the
United States Constitution. In the event of a conflict between the Ohio and United States Constitutions,
the United States Constitution controls.
STATUTORY LAW
Statutes are written laws adopted by a legislative authority, and may themselves come from several
sources. Statutes affecting the entire state are enacted by the Ohio General Assembly. Federal statutes,
enacted by Congress, also affect all of Ohio. Local laws, called ordinances, are enacted by city or
village councils.
State Statutes
Ohio statutes are enacted by the General Assembly, and affect the whole state. They take precedence
over city ordinances, the regulations of government agencies, and the common law.
Most Ohio statutes are compiled into a set of laws called the "Ohio Revised Code," which is arranged
according to subject matter into titles, chapters, and sections. The Revised Code deals with a wide range
of subjects. Some of the most important of these include: organization and operation of state and local
government; agriculture; financial institutions; commercial transactions; natural resources; business
organizations; courts and procedures; criminal law and procedure; family law; education; elections;
health and safety; insurance; labor and industry; liquor control; motor vehicles and traffic; occupations
and professions; public utilities; public welfare; real estate; roads; taxation; veterans and military affairs;
and water and sanitation.
Federal Statutes
Federal statutes are enacted by Congress and affect the entire country. Most are compiled into the
"United States Code" which, like the Ohio Revised Code, is arranged according to subject matter. Some
subjects, such as the armed forces, bankruptcy, patent law, and interstate commerce, are federal
matters. Under the United States Constitution only Congress may deal with these matters. In other areas,
federal statutes might govern some parts of an activity and state law might govern other parts.
Sometimes both the state and federal governments have similar laws covering the same subject. Usually,
the state law governs a particular activity within the state, and the federal law governs the same activity
in interstate and foreign commerce. Examples of this type of law are controls on firearms, explosives, and
drugs.
Municipal Ordinances
Under the Ohio Constitution, municipal corporations (that is, incorporated cities and villages) may adopt
laws for their own self-government. These local laws are called ordinances, and are adopted by the
village or city council, which is the legislative branch of municipal government. Municipal ordinances are
effective only within the municipality enacting them, and are valid only if they do not conflict with state
law. The concept of "conflict with state law" requires some explanation. Ordinances may duplicate or
overlap state statutes; ordinances cannot permit anything the state law prohibits or prohibit anything the
state law specifically permits.
Like state law, municipal ordinances may deal with a wide range of subjects. For example, they concern:
the organization and operation of police and fire departments, housing, sanitation, licensing and
inspection of various businesses, and many other matters. Municipal codes commonly contain a traffic
code which is similar to, or even a duplicate of, the state traffic code. Further, municipal codes generally
have many provisions similar to those of the state criminal code. This similarity or duplication is permissible
as long as the corresponding state offense is not a serious crime called a felony (which calls for a
penitentiary term or death as a penalty), and provided the municipality does not try to attach felony
penalties to any of its ordinances. The only penalties which can be imposed for violation of a municipal
ordinance are a fine or a term of not more than one year in the local jail or workhouse, or both.
ADMINISTRATIVE LAW
Many activities governed by statutes or ordinances are so technical, or change so often or so fast, that
they cannot effectively be regulated by statute or ordinance alone. In such cases, the government
agency which administers the activity may be authorized to adopt written rules to supplement the
statutes. These written rules are a substantial part of what is known as administrative law. Most of the
regulations issued by the State of Ohio are compiled in the "Ohio Administrative Code."
Adoption and Effect of Rules

The authority to adopt administrative rules is a kind of legislative power. Under the United States and Ohio
Constitutions, an administrative agency can adopt rules only when a statute or ordinance specifically
grants such power. Further, the rules themselves are limited. They can cover only the specific subjects
authorized by the statute or ordinance.
Most rules are adopted under a procedure where: (1) proposed rules are published; (2) a public hearing
or time to respond is provided; (3) the response of the public and those affected is considered; (4) the
proposed rules are amended; (5) the amended rules are published with an opportunity to respond; and
(6) final rules are published. Rules adopted in this way have the force of law and can be enforced by
court action just like statutes. Violation of some rules may be a crime where the basic statute or
ordinance specifically states that a violation is a crime and provides a penalty. The power to adopt
administrative rules does not include the power to create crimes and criminal penalties.
Scope of Administrative Rules

Many activities in Ohio are governed extensively by rules adopted by state or local government
agencies. Some examples include: hunting, fishing, and wildlife management; development of natural
resources; parks and public recreation; pollution control; health and sanitation; liquor control; housing;
building construction and safety; land use and development; industrial safety; and many others. Many
activities are also governed extensively by federal administrative rules. Most of these rules are published
in the "Code of Federal Regulations." Federal income taxation is the best known of these activities.
Federal income tax is subject to a long list of rules adopted by the Internal Revenue Service.
THE COMMON LAW

The common law is a large body of principles, rules, and concepts. The common law was not based on
written (statutory) law, but many of its basic concepts have been interwoven into the written law through
usage and custom. Because it is (and was) created by the courts, common law is a product of judicial
rather than legislative power. It fills in the gaps and helps unify constitutional, statutory, and administrative
law, and is therefore indispensable to an effective system of justice. Because it is based on generations of
experience, it gives continuity and consistency to the law. At the same time, it allows the law to respond
to the changing needs of society.
Case Law as Common Law

The common law originated in England and was brought to this country by the colonists. It owes its
present vitality to the custom, begun in the 17th century, of recording not only judicial proceedings and
decisions, but the principles and reasoning behind them. When a court decides a case and records its
decision in a written opinion that opinion, or case, becomes a "precedent." That is, the principles on
which the case was decided may be used to decide future cases with similar factual situations.
The common law provides a method called the "synthesis of decisions," whereby the principle of a case
can be applied to different fact patterns. This method involves the careful formulation of principles for
general application, coupled with the extension of those principles through logic to meet new fact
patterns.
The impact of a case as precedent depends mainly on the court in which it is decided. A higher court is
not bound to follow the precedents established by the lower courts in its jurisdiction. Lower courts,
however, are bound to follow the precedents of the higher courts having jurisdiction over them. Courts of
equal rank may use each other’s precedents, just as the courts of one state may borrow from the
precedents of another state or federal court. Courts often use the precedents of equal or lower courts,
the courts of other states, and the federal courts when such precedents are well reasoned or address
new problems. For information on the ranking of courts, see Part II, "The Courts."
Scope of the Common Law in Ohio

Many major divisions of Ohio law are governed almost entirely, or in significant respects, by the common
law. One important subject governed almost entirely by common law is "torts." Torts is the division of the
law which deals with civil remedies for injuries or damage caused by negligence, or other wrongful acts
or omissions. For example, most of the law governing the question of liability for injuries suffered in
automobile accidents is based on the common law of torts. Another important subject governed
extensively by common law principles is property law. Contract law is covered partly by the common law
and partly by statutes. Some parts of the law are based entirely on statute, for example, the conduct
which is considered a crime, and the benefits which are available under workers’ compensation.
However, the common law retains its importance even in the parts or divisions of the law which are
based on statute. For example, common-law principles and concepts are used to decide if, or how, a
statute, ordinance, or regulation applies to a particular situation. Further, when a statute, ordinance, or
regulation is interpreted in a certain way, the interpretation itself becomes part of the common law, and
is thus entwined with the written law.
The Importance of the Common Law

The common law is important not merely because it represents a substantial part of all law, but also
because it provides a process which unifies and stabilizes the law while giving the law the flexibility to
meet new situations. The common law is a reservoir of methods and approaches to legal and social
issues.
The traditions of the common law do not permit established principles to be dismissed capriciously. Yet
those same traditions compel an endless, almost daily process of testing and retesting in light of new
experience, so that outmoded principles must in due time be reshaped or replaced to meet the
changing needs of society.
Section I: Civic Virtue and Democratic Structures
The American Founding

The Failure of Civic Virtue
A sort of beginning assumption held that virtue was more important than structure in thinking about
constitutional governance. There were solid reasons why. The victor)’ over the British was regarded as all
but miraculous. It had to be attributed to God, on the one hand, and to virtue, on the other. Moreover,
Americans’ reading of history had convinced them that virtue must be the foundation of am/ republic.
And their exposure to such contemporary works as Rousseau’s Social Contract convinced many that a
modern equivalent of classical civic virtue was certainly possible.
Those who believed most strongly in American civic virtue, did so for essentially one of three reasons. First,
the religious history of many colonies suggested a high moral caliber in the people. Those who had put
their lives on the line for the sake of their faith could not be other than virtuous. Secondly, during the
Revolution, these observers had witnessed many acts of courage on the battlefield, and much old-
fashioned patriotism on the home front. That Americans were capable of self-sacrifice was an empirical
fact. Perhaps the third reason was the most cogent. Virtue had to work. The ships had been burned as it
were and there was no turning back. Americans had better be as virtuous as they claimed to be – or the
future looked awfully grim.
What did a republic of virtue look like in the modern world? How did it run? What set it apart from other
political entities of the time? Americans weren’t sure. They knew only that it would be a regime of
simplicity and austerity – as far removed from the pomp and circumstance of the English court as they
could make it. It would be a government of "aristocrats," to be sure, but they would represent the natural
aristocracy, that of talent and virtue, not the one that wore periwigs and silk stockings and rode in fine
carriages. Small, simple, austere governments had to reflect virtue, Americans believed, and they had to
respect freedom.
During the Confederation period, there was a considerable erosion of this faith. The war was over and
there was nothing for "patriotism" to focus on any longer. Human nature began to show forth a different
face. There were numerous stories of wartime profiteering and flexible allegiance, but they were often
chalked up to la guerre. Harder to dismiss were equally numerous instances of corruption, jobbery and
other forms of misbehavior in high places. Postwar America was a place of some disillusionment, even
cynicism, as is often the case following a major conflict.
Of particular repugnance, at least to many Revolutionary leaders, was the interest- driven, hardball
politics of state legislatures. James Madison, for one, could never find strong enough terms for
condemning what he observed in the various assemblies. No one mentioned the public good. No one
referred to civic virtue. The discourse was all about power and advantage and spoilsmanship. Legislators
were log-rolling and horse-trading with scant regard for
republican morality, and in terms of their votes they could
never see beyond their constituents’ narrow interests.
Shays’ Rebellion in Massachusetts was the last straw for many.

Political disquiet reached such proportions in the western part
of the state that angry bands began mustering in the townships
and shutting down local courts (Fig. 1). In the winter of 1787, an
“army” of these malcontents, many of them revolutionary
veterans, marched on the federal arsenal at Springfield and
desisted only after cannon fire scattered their numbers and left
four of them dead in the snow. Some Americans began
wondering if the Revolution had been fought in vain.
The Failure of Political Structure

At the same time, there was a growing interest among
Figure 1: Slinys Rebels, 1786, at a courthouse in
Americans in the use of political structure as an antidote to the
Massachusetts. failings of civic virtue. Aristotle, we recall, had taught that virtue
was not a constant, and was affected by a number of social,
psychological, and political factors. People were appreciably more virtuous in some kinds of structure
than in others.
In investigating the influence of structure, the thirteen separate states of America presented something
like thirteen experimental laboratories, for each of them had different structural features in its constitution.
One could observe, among other things, how virtue and structure worked together – or perhaps failed to
work together – and make some informed guesses as to the cause. Many of the state governments had
not been carefully designed. Pressures of the political situation at the outbreak of the war had dictated
haste, and there was an English tendency to stick with established, familiar forms.
Other states, however, had written their republican constitutions from scratch. These cases were even
more interesting. In several of them, owing to the strong faith in civic virtue, the constitution’s framers had
thrown caution to the winds and designed their structure solely to accommodate the will of the people. If
"popular sovereignty" was what a republic was all about, they had concluded, by all means let’s put the
people in charge.
Pennsylvania was the best example. Here the framers, reflecting democratic republicanism more than
anything else, structured the constitution around a strong, popular, unicameral (one house) legislature.
They made the executive office weak, for they feared the power of executives to promote tyranny, and
went so far as to place the courts within the legislature’s control. There ought to be no authority, they
believed, to countermand that of the people.
Structure Undermining Virtue

Shrewd observers began to see that the structural weaknesses of some state governments played
directly into the "failures" of public virtue. The Pennsylvania experience was a case in point. The strong
unicameral legislature certainly did represent "the people" of Pennsylvania – but it also represented the
clash of competing interests among them. Large and vocal interest groups discovered that it was not too
difficult to muster a majority in the assembly. The could then pass laws to further their own interests. The
outcome was democratic in a certain way, but it also undermined civic virtue. For if there were only
winners and losers in the political game, it was difficult to expect either of them – for markedly different
reasons – to think about the "public good" or to behave virtuously toward the other.
In the postwar world, moreover, depression and dislocation added sharp urgency to the assembly’s
actions. Legislators saw themselves as fighting for the very survival of their constituents, and occasionally
they were. An all’s-fair-in-love-and-war mentality gripped the state house. Beyond that, civic virtue
turned out to be far less a restraining influence on organized groups than it might be on individuals, for
the dynamics of group interaction tended to nullify restraint and convince all participants that they were
doing the right thing.
When other branches of the Pennsylvania state government dissented, the assembly demonstrated
another feature of the structural situation. It could often find means, both legal and extralegal, to
undermine competing authority. There was no executive to speak of, and the judiciary could be brought
to heel by simply firing the judges and appointing new ones. Observers like John Adams pointed out that
Pennsylvania was not really being "governed" at all. The strongest faction in the state was simply ruling
according to its will – much in the way that tyrants in the ancient world had done.
Pennsylvania was the worst case, but virtually all of the states experienced similar difficulties, and several
of them were nearly as serious. The tendency was for power to drift toward the legislative assemblies -
bodies far more democratic than they had been before the Revolution – and there to be misused. The
pattern went something like this. Indebted farmers, facing closed markets and postwar dislocations,
pushed hard for paper currency, legal tender laws, stay laws and the like, the practical effect of which
was to cancel the debts they had incurred before the war. The farmers were strong enough as a political
interest to get their way. Indeed, they were so strong that they could steamroll over the constitution, as in
the Pennsylvania case. Those parts of the government that failed to go along found themselves at risk.
Their authority could be redefined. Their power could be emasculated. Their offices could be eliminated.
Constitutional provisions and prohibitions – "parchment barriers" – often proved to be scant protection for
them.
There were troubling implications in all of this, and some Americans began groping to define what they
were. "Majority tyranny," in Madison’s phrase, was certainly one of them but there were others. The
legislation the farmers usually demanded was both special interest and cx post facto in character. The
laws singled out specific groups – such as money lenders – and basically defrauded them of their
property. They could not know in advance that this might happen to them, of course, so they were not
only being punished, they were being punished after the fact.
Similar issues had had much to do with the coming of the Revolution. For example, the security of
property had been a primary bone of contention between the American colonists and the British. In a
strange way they were only beginning to understand, Americans saw that their own legislatures were
doing what the British Parliament had done, and for much the same reason.
Equally troubling was the question of expectations. All business – indeed, all affairs of society – must be
conducted in a climate of some certainty. A banker who places depositors’ savings out on loan must
have some expectation that the money will be coming back with interest – or there will be no banks, no
loans, no business of any kind. Without the stability of settled expectations, the American Republic would
be in dire straits.
Many of those who found this situation most distressing were among the revolutionary leaders themselves.
They had fought a terrible war to secure the Good Society. The specter of property being wrested from
one faction by another, more numerous and rowdy, was not an earmark of the Good Society. It was, in
fact, all too reminiscent of the fall of ancient Athens.
The problem was not precisely that virtue had failed, though in some ways it certainly had. The problem
was that virtue and structure were not working together very well. Americans were not ready to despair,
however, at least not yet. Analysis of the problems convinced many of them that the difficulties were not
beyond resolving. But much constitutional thinking and rethinking was clearly in order.
John Adams and the Rule of Law

Like many of the Founders, John Adams (Fig. 2) was an
acute and prescient observer of these events, and also
like many of the Founders, he was widely read in history
and political thought. Adams had trained as a lawyer
and was a successful practicing attorney- He had the
highest regard for English legal and constitutional
traditions, and few Americans understood better than he
the role the common law had played in the evolution of
English liberty. It was the law,
Adams frequently observed, that was the key to

America’s present difficulties. In order to understand this
point of view, we need to examine the connection
between the common law and English liberty.
In the early days of the common law, tire English king

Figure 2: John Adams, by John Trumbull.
heard and decided cases himself, judging them
according to precepts of Roman law, reasonability, or
whatever. Eventually, when the "case load’’ became too
heavy, the king delegated his judicial responsibilities to legal advisors. These became the original
common law judges. When a case required some new principle or precept for its resolution, the judges
carefully noted what that principle was – so that all future cases involving similar questions could be
resolved the same way. Precedent embodied precept and became binding.
Some common law precepts had political implications. One of these, evolving in the mists of time, was
called habeas corpus. It held that a person ought not be arrested and detained unless there were
grounds for believing that he or she had violated some specific law. If the person in question was merely
a political undesirable who had been arrested in order to be silenced, he could request a writ of habeas
corpus from a judge, and armed with this he could require the arresting authority to show that he had
actually broken the law. If no such evidence wras forthcoming, the accused had to be set free.
The important feature of habeas corpus and other similar instruments was that they applied to everyone
in the realm – the king and his ministers not excepted. That was often a difficult point to make – especially
in the face of overwhelming power – but make it the common law judges eventually did. They
established that for the law to have real meaning, the king himself must be bound by it.
As soon as this point was made, the king became obliged to govern his subjects – not just rule them. He
could no longer order people around arbitrarily and make them submit to his will. The existence of known,
standing laws, and their application to all members of the political society, changed everything. It was a
condition the ancients had often discussed. We will call it the rule of law.
The rule of law brought many benefits. Perhaps the most important of these were stable expectations.
Where the rule of law existed, the laws of society became in a sense like the laws of nature – steady and
reliable. Just as one could count on the law of gravity to propel water through an aqueduct, one could
count on, say, the law of contracts to insure that loans would be duly repaid. And in both cases, the laws
made society work better.
Moreover, when the rule of law was established, freedom became possible. Knowing in advance what
the law would or would not allow, people could rationally calculate their situation to best advantage –
precisely as athletes do when playing a game by the rules. A member of Parliament, say, could stand up
and speak his mind without fear of being locked up in the Tower of London. As long as he didn’t violate
the law of libel (say, falsely accusing the queen of bank robbery) or the law of sedition (urging armed
rebellion against the king) he could even dare to criticize the government. It was the rule of law, more
than anything else, that made Englishmen feel free.
Understandably, then, John Adams, who prized human liberty, strongly believed in the rule of law. To him
it represented the cardinal principle of a Good Society. If the rule of law existed, other things tended to
fall into place. If it did not exist, nothing else seemed to work very well either.
In 1770, some five years before the Revolution, Adams was afforded a dramatic opportunity to
demonstrate the depth of his commitment. After the Boston Massacre, the soldiers accused of
perpetrating it were arrested by the local authorities and charged with murder. What patriot leaders had
in mind was a show trial aimed at discrediting the royal government. They would use the law, in other
words, to "get" a political enemy – precisely as the law might be used to get them.
Adams wanted none of that. He was as patriotic as the next person and certainly no friend of the royal
government, but he knew the law of homicide, and knowing that knew that "murder" had not been
committed in King’s Street by the accused. He agreed to defend the soldiers in court – outraging his
cousin Sam in the process – and see to it that they were given a fair trial. Their lives and liberty could not
be made pawns in a political chess match if the rule of law was to exist.
The more John Adams thought about the rule of law, the more strongly he became convinced that it
was the key to present difficulties. The governments of the American states were "republican" in a
technical sense, perhaps, but many of them had failed to establish the rule of law. The government of
the Confederation had precisely the same failing, albeit for a different reason, hi both cases laws were
passed by appropriate and legitimate lawmaking bodies. In the one case, the laws were perceived as
unjust, and their tendency led toward tyranny. In the other case, the laws were perceived as unforceful,
and their tendency led toward anarchy. In both cases, people’s lives were beset by the same
uncertainty. They never knew what to expect because the law could not be used as a guide.
When Adams spoke of the American Republic, he used the phrase "empire of laws." In time, many of his
colleagues came to see the Founding that same way. The notion that began to take shape was to make
the empire of laws not just a hopeful ideal but a working reality.
Five Principles of the Rule of Law

It might be said that in John Adams’ day the rule of law was more often felt than understood. For many
of Adams’ contemporaries, the concept we are describing as the rule of law often dissolved into puzzling
ambiguity – and even today we understand it imperfectly. But people felt that something was amiss
when the rule of law was being violated. The words "unjust," "unfair," "unreasonable" or "arbitrary" were
used to convey their displeasure. We have all been in situations described by these terms. They usually
occur when we find ourselves confronting authority. If we perceive that a parent is being heartless, a
bureaucrat mindless, or a boss soulless, some violation of the rule of law is generally not far to seek.
The rule of law is not law itself. It is a set of metalegal principles that guide the way we think about law,
make use of it, and apply it to specific cases. It is an abstract ideal. Thus, the rule of law can never be
passed by a legislature or encoded into specific language – it truly must be "felt” in the hearts of the
people. And, like any ideal, it can never be perfectly realized.
In some societies, for a variety of reasons, there is a high regard for the rule of law, and when its principles
are violated, the people instinctively cry out. Colonial America was such a society. When Parliament
passed the Stamp Act or the Townshend Duties, many Americans could not begin to explain why they
found those measures so offensive. They heard all the reasonable arguments about taxation and cost,
about their relative prosperity, about their "virtual" representation in Parliament, and so on, and came
back all the more stridently with "No taxation without representation!" They were voicing a rule of law
objection without knowing it.
Conversely, in other societies, there may be

very little appreciation for the rule of law,
and when its principles are violated,
people are easily mollified with
explanations.
Hitler’s Germany is a case in point. A highly

civilized and technologically advanced
society, it nevertheless failed to grasp
violations of the rule of law that became
more or less systematic with the Nazis. If a
given edict was produced by "the
government," Germans supposed, it must
be legitimate (Fig. 3).
This fact tells us something else about the Figure 3: Hitler addressing outdoor rally.
rule of law. Its existence is quite
independent of the visible machinery of law. Nazi Germany had a legislature, a legal code, a court
system, and many other appliances of the law. All it lacked were those operating principles.
If John Adams made a list of such principles, it would probably look something like this:
1. The laws must be general.

This means that the laws must apply to broad categories of people. They must not single out specific
individuals or groups for special treatment. If there is any singling out, it should be done by people
themselves after the laws are passed. That is, 1 place myself in the category of "drivers" when I climb into
my car and start the engine.
We would feel there was something wrong with a law that addressed itself to the drivers of red
Volkswagens, for such a law could also single out Mormons or Southerners or liberals. Those who make the
laws should never know in advance to whom the laws apply.
In practice, we create many exceptions to this principle. We more or less live with most of them. Some
truly violate the principle of generality and ought to be view’ed with extreme caution if we prize the rule
of law’. Others are a practical necessity. And there is no hard and fast method of telling which is which.
Some categories, however, have become absolutely taboo in democratic societies. These involve
ethnicity, gender, religion, political affiliation, and in some jurisdictions sexual preference. We don’t like
law’s that single out Hispanics, women, Muslims or Socialists, for such have been the very marrow’ of
tyranny.
2. The laws must be prospective.

This means that they must apply to future action, not past. We would feel as uncomfortable with a law
addressed to people who, say, used to drink soda pop as with the singling out of red Volkswagens. For
the existence of the law must create a situation in which the potential violator can freely decide whether
or not to obey.
Tyranny also commonly brushes prospectively aside. The tyrant says, in effect, "I don’t like what you did,"
and punishes accordingly. The last thing he wants is for his victims to evade sanctions by altering their
behavior.
In practice, most violations of generality also violate prospectively and vice versa. Together, in fact, these
two abridgements of the rule of law account for most of the tyranny the w’orld has known.
3. The laws must be known and certain.

This means that the laws must be publicized in advance of their enforcement, and their enforcement
must be reasonably reliable. Laws that are capriciously enforced – or else not enforced at all – do no
favors for the rule of law. On the contrary, they sow contempt for the law’ itself.
Law enforcement is expensive. Some governments occasionally decide to trim back on expenses by
funding a mere token enforcement of the laws, hoping that the possibility of sanctions, no matter how
remote, will suffice. Many people will accept such gambles, however, and will in effect play a game of
roulette with the laws. If government isn’t serious about the laws, people w’on’t be serious either.
Capricious enforcement was an aspect of British policy before the Revolution. It led to widespread
smuggling on the part of colonials and to customs racketeering on the part of the authorities. Later on,
when the British sought to reform the system and enforce the Navigation Acts rigorously, Americans were
outraged.
4. The laws must be equal.

This means that the laws must not recognize different categories of citizenship or different social stations.
There must not be one set of laws for the nobility and one for commoners, as was the case in feudal
England, or one for whites and another for blacks, as once existed in the South. And no one can be
"above" the law, not the lawmakers, not the powerful, not the rich, not the king.
Unequal laws were a feature of the British Empire, as they are of most aristocratic societies. It was this
feature, in fact, that underlay much of the colonial perception of English corruption. For where one
category gets to make the laws that govern another category, and don’t have to abide by those laws
themselves, there is nothing whatever to restrain them. So it was that Parliament didn’t give a second
thought about passing tax laws for the colonies. Why not pass such laws? There was no political cost in it
for them and therefore no accountability.
5. The laws must be impartially administered.

Justice, as the saying goes, must be blind. It must not take anything into account but the question of guilt
or innocence. And there must be an established and known set of procedural guarantees to make sure
that ever}’ accused person has a fair trial, an adequate defense, and, if guilty, an appropriate
punishment.
This accounted for yet and other traditional rights in the interest of tighter enforcement. If Americans
were a bad risk, the argument went, then deprive them of the procedural guarantees.
We have come to take many of these principles for granted; so much so that they appear to be nothing
more than simple common sense. Yet they have been willfully ignored in many supposedly free societies.
For example, in England during the controversy between Parliament and the Stuart monarchs, not only
did the king breach the rule of law, so did Parliament. In the notorious bills of attainder, for example, a
political offender – usually one of the king’s "henchmen” – was named in a parliamentary act and
simultaneously pronounced guilty of some crime. Think how many principles of the rule of law such acts
violated.
It is much easier to miss the subtler violations of the rule of law, which are routinely committed by every
government on earth. Governments with no tyrannical purpose in mind and wishing only to be helpful
often violate the rule of law out of the worthiest of motives. They see a problem somewhere and
immediately take action to solve it. In so doing, they often address legislation to a specific group,
penalize past action, pass laws with scant enforceability, and are none too scrupulous about the rights of
possible violators. This approach brings governments close to "administering" the lives of their citizens the
way they administer garbage collection or highway maintenance.
The same could be said about the controversy leading up to the American Revolution. Americans
viewed Parliament’s violations of the rule of law as darkly conspiratorial, as we have seen. But records
show that the policy makers simply thought they were solving problems.
During the Confederation period, similar violations were common. Either the law was being used for
political purposes – to advance a group’s factional agenda at some other group’s expense – or else the
law was simply incapable of enforcement. There was often no conscious thought of tyranny or anarchy,
but the damage was the same as if there had been.
Virtue and the Rule of Law

While John Adams often exhorted fellow Americans to high standards of personal and public virtue, he
was one of the Founders who privately expressed doubts. "You will be very sensible,” he wrote to James
Warren on the eve of the Constitutional Convention, "that our Countrymen have never merited the
Character of very exalted Virtue. It is not to be expected that they should have grown much better."
Many of the Founders had good reason for such doubts. Their own experience, their reading of history,
and their exposure to theories of Enlightenment psychology had convinced them that virtue, as defined
by the ancients, was unsteady, uncertain, and highly problematic. Unquestionably, some individuals
were capable of the arete described by Plato. They could put public good ahead of private advantage.
They could face stark personal sacrifice. They could find deep meaning and high purpose in deeds of
civic honor. They loved their country with a profound and abiding feeling of patriotism. Many of the
Founders themselves answered this description, and it more broadly characterized the aspirations – if not
always the actions – of the aristocratic world they represented.
But the day-to-day reality of a liberal society was simply otherwise. Most Americans were motivated first
and foremost by self-interest. Accordingly, they didn’t concern themselves overmuch with public
anything, and even when they did do so it was often with an eye to some private interest or advantage.
The psychology of the day – notably that of David Hume – went so far as to question whether the human
mind was even capable of the moral thinking we would associate with virtue. What people commonly
took to be ‘morality,’’ Hume contended, was often just habit or tradition in disguise.
There were other problems with virtue as the basis of a Good Society. Virtue as the ancients had defined
it seemed to be both unstable and situational. Soldiers were capable of amazing feats of sacrifice in time
of war, and some of those on the Patriot side had literally rotted away in British prisons. Yet the same
individuals, as veterans, thought nothing of demanding pork-barrel legislation at the public’s expense. A
Benedict Arnold could be a national hero one minute and an arch-traitor the next.
Virtue had a frightening side as well. Deeds of honor and glory were one thing when the colonies were
fighting for their lives – they were something quite different when the new states began eyeing the
possessions of their neighbors. The splendor of empires, remember, had its origin in "public virtue." So did
the fires of fanaticism. History had laid all manner of religious and political excesses at the door of those
who would enlist in holy crusades – be they Christian knights in quest of the Holy Land or a John Brown out
to abolish slavery. Hitler’s storm troopers were the epitome of virtue according to their own view of things.
In pondering such matters, the Founders were grappling with one of philosophy’s most elusive problems –
the fundamental nature of man. They didn’t profess to have final answers. At the same time, it was
critically important that they get certain things "right’’ and human nature was one of them.
During the Revolution, the Founders, like other Americans, were given to making rhapsodic
pronouncements about the virtue of their countrymen. Later on, however, when things began coming
apart, they revised those estimates downward, as we have seen. The word virtue continued to appear in
their correspondence – but it was increasingly connected to the word wisdom.
Wisdom was also a kind of code word. It represented an array of values, attitudes and specific insights,
which taken together conveyed the understanding that life was not simple. When wisdom was applied
to virtue, the picture that Plato had painted so clearly took on depth and shadow, and began to look
something like this. A modern republic, even in America, could probably not be based on the civic virtue
of the ancients, for liberal individualism simply couldn’t deliver such intense and single-minded public-
spiritedness. All the same, Americans did have their own forms of virtue, if not necessarily those of Sparta
or the Roman Republic. And clearly some forms were essential to am/ republic.
The questions posed by wisdom, then, were these. What kind of virtue could human nature deliver? What
kind could liberal individualism deliver? What kind was necessary for a modern republic? And finally, how
much virtue was "enough?"
We might think of the rule of law as representing a new approach to such questions. Probably none of
the Founders, including John Adams, worked out the relationship between law and virtue in so many
words, but Adams seemed to grasp the main idea. The rule of law offered a different way of focusing
moral energy. Instead of asking people to put the interests of society ahead of their own personal interest
or to perform great and lofty deeds, one instead asks them to do essentially three things.
First, they must venerate the law and commit themselves to observe it with an almost religious devotion.
Indeed, the law’ in a sense takes the place of the king as a transcendent symbol of nationhood and
acquires its own sense of mysterium. Obeying the law is not about fear of "getting caught" – it is about
desiring to live virtuously.
Secondly, they must venerate the rule of law as an ideal. This is a bit more tricky, for it implies a
sophisticated understanding of what law is, how it works, and how it underlies the Good Society. To
revere the rule of law, rather than just law itself, one must know something of politics, something of life,
something of philosophy perhaps, and assuredly something of wisdom.
Finally, the people must adopt what might loosely be called a rule of law politics. This would mean such
things as electing to office those who understand the rule of law and the significance of the legal
process. It would also mean withstanding the political temptations that undermine the rule of law. Most
governments don’t violate the rule of law out of a desire to perpetrate tyranny, as we have seen, but out
of a desire to solve pressing problems. They cash in the rule of law piecemeal, as the British did before the
American Revolution.
The rule of law required its own kind of virtue, to be sure, but it was a virtue within human reach. Indeed,
the rule of law required the kind of virtue that a liberal society might be able to deliver – the so-called
bourgeois virtues of orderliness, accountability, and self-restraint. In a word, the rule of law depended on
an attenuated form of classical civic virtue that Alexis de Tocqueville called "enlightened self-interest."
It also bore a relationship to that other elusive commodity, wisdom. The rule of law required both a wise
leadership and a wise electorate. Shrewdness, cunning, the Machiavellian attributes so often associated
with politics, did not work well in a rule of law society, nor did the bold activism that often captures the
popular imagination. With the rule of law, the immediate and visible goal was not always the right one,
and the manipulated goal was almost certainly the wrong one. What the rule of law really called for was
statesmanship.
The greatest single advantage of the rule of law was that it didn’t require people to rise abov e human
nature. They had to be virtuous in many ways and they had to be wise, but they didn’t have to be
superhuman – they could be mortal. It was this, in the final analysis, that made the American Republic
possible.
The Rule of Law and Constitutional Design

Virtue could not establish the rule of law by itself; it was also a matter of constitutional design. But what
were the specific design principles involved? Why did some constitutions do a much better job of it than
others?
Section J: Prosecutorial Discretion and Plea Bargaining

The Sieve Effect – Disposition of 1,000 Felony Arrests

PLEA BARGANING
Practices and Controversies
Newman, Reshape the Deal

9 Trial 11 (1973).2
The Negotiated Plea. Throwing oneself on the mercy of the court is one thing; arranging for charge and
sentencing concession ahead of time is, or may be, a more complex and even more controversial issue.
When the term “plea bargaining” is used, it rarely refers to simple mercy-of-the-court situations. What is
generally meant is a prearraignment “deal” between the prosecution and the defense in which charges
are dropped (in spite of sufficient evidence) or where specific sentence promises are made in exchange
for the defendant’s willingness to plead guilty. There is ample research today to indicate that plea
negotiations are common, even routine, in many – perhaps all – jurisdictions in the country.
***
Plea Negotiation Practices. While research has shown plea bargaining to be common in courts across
the land, there are variations in types of plea-agreements and in the actual procedures followed by
prosecutors and defense in different jurisdictions. Part of this variation is the result of differences in criminal
codes, especially sentencing provisions, from one place to another. In states with statutorily mandated
sentences for certain crimes (20 to-life for armed robbery, for example), the only way a defendant can
achieve sentence leniency is to have the charges lowered. In other places, where indeterminate
sentences are common and the judge has wide discretion to choose among types and lengths of
sentences regardless of charge, reduction is less important than a pre-plea promise from the prosecutor
to “recommend” probation or some other lenient penalty.
The way a typical bargaining session works is as follows: A defendant is apprehended and initially
charged with armed robbery, an offense carrying a mandatory minimum prison term of 20 years. Either
on his own or through counsel he indicates to the prosecutor a willingness to plead guilty to a lesser crime
in order to avoid the mandatory sentence of the higher charge.
In some cases, though actually a settlement process, negotiation can be quite adversary in its own right.
The defense counsel may indicate to the prosecutor that he thinks the state has no evidence against his
client except possibly a charge of disorderly conduct. The prosecutor in turn may state that he is not only
going to push the armed robbery charge but plans to level a special count of being a habitual offender
unless the defendant cooperates. Defense counsel then offers to have his client plead guilty to petty
larceny with the prosecutor countering by offering to reduce the charge to second degree robbery.
So it goes. Eventually an agreed upon lesser charge – burglary or grand larceny, for example – may result
and the defendant will plead guilty, facing at most a substantially reduced prison sentence and at best
perhaps probation.
If the defendant wishes to be placed on probation, he may push in negotiation for more than charge
reduction. He may also ask the prosecuting attorney to promise that at sentencing the state will
“recommend” probation if and when asked by the court. This is a customary (though not universal)
practice.
A prosecutor’s recommendation of probation is a strong factor in the defendant’s favor although a

weaker, and also a vigorously sought after promise, is for the prosecutor to make no recommendation at
the time of sentencing or to agree “not to oppose” probation if requested by the defendant. After all,
2 Reprinted from Trial Magazine, 20 Garden St., Cambridge, Mass (May/June 1973)
the offender knows that should the prosecutor arise at sentencing and recommend a long prison term
(perhaps reading prior convictions into the record) it is highly likely that incarceration will result.
Therefore, in most jurisdictions, a pre-plea sentence promise by the prosecutor is a major concession,
even though the district attorney has no official authority to actually impose sentence.
There are other considerations that occasionally arise in plea negotiation depending upon the particular
defendant, the crime or crimes charged and the sentencing structure and practices of the jurisdiction in
question.
For example, often a person arrested for one crime is subsequently charged with others. It is rare that a
burglar is apprehended on his first attempt and, once nabbed, the police may “solve” 20 or 30 separate
burglaries, all potential charges against the defendant. Theoretically he could be tried on each count
and could receive consecutive sentences. If, for example, he were accused of ten burglaries, tried
separately on each and convicted on only half – yet got one to three on each (to be served
consecutively) he would in effect face a five to fifteen-year sentence. Therefore he may seek to have
charges joined into a single accusation, or have some of the counts dismissed if he is willing to plead to
one or perhaps two.
Additionally, some offenders may be facing a habitual offender rap, which is normally filed as a separate
indictment or information. In exchange for pleading to the crime as charged he may avoid such
“supercharging” by the state. Then, too, some defendants are on parole or probation for prior
convictions and may negotiate for revocation of the old sentence if the new charge is dismissed or
sufficiently reduced.
There is even some “lateral” bargaining, primarily to modify the conviction label without affecting
sentence at all. Some defendants are willing to plead guilty to serious crimes such as robbery to avoid
conviction of certain sex crimes like rape or sodomy because, while the potential sentence may he
longer, the label and its attendant consequences throughout the life of the defendant are considered to
be a better deal.
Permutations and combinations of plea agreements are almost endless especially where multiple
charges are involved, but the end result is always the same: The defendant is allowed to plead guilty to
lesser offenses or receives a preadjudication sentence promise in exchange for his willingness to give up
his right to trial.
Why Plea Bargain? Motivations of the guilty defendant in plea bargaining are readily discernible. He
wishes to minimize both the sentence which follows conviction and the label which attaches to it. He also
usually hopes to avoid publicity, not only for himself, but perhaps to protect his family and friends from
likely notoriety if he demands trial. Occasionally he may wish to protect accomplices or confederates by
taking the rap himself.
The bargaining motivations of the state are somewhat less readily discernible, though in every instance
the bargained plea is much more efficient, cheaper and more certain than a contested case.
There are, however, other more subtle but no less important motivations on the part of the prosecutor
and other state officials for engaging in plea negotiation and in fact encouraging it. Some of these are
self-seeking, but others rest on a sincere attempt to individualize justice, to build equity into a system that
otherwise would be too harsh in certain types of cases.
One of the self-seeking motivations on the part of the state is to avoid challenge not only of the amount
of evidence but the ways it was obtained. In spite of all the current controversy about illegal searches,
wiretaps, failure to give Miranda warnings and the like, such issues are really paramount only in cases
where pretrial motions are denied and which go to trial.
A plea of guilty waives almost all defects in the state’s case. The way evidence was obtained is never
tested. Whether the Miranda warning was given or not is irrelevant in the case of the defendant who
pleads guilty. The insanity defense, or entrapment, and other important procedural and substantive issues
are mooted by the guilty plea.
In short, the guilty plea doesn’t refine and hone the law, rather it avoids sticky questions of police
practices, prosecutorial trial skills and even the adequacy of legislative sentencing provisions.
Furthermore, in most cases the plea satisfies all interested parties. The defendant has his deal; the
prosecutor has an assured conviction (for a trial, no matter how carefully prepared, is always an
uncertainty given the vagaries of juries), the victim is theoretically satisfied by conviction of the
perpetrator and correctional agencies receive an offender who has admitted his guilt. It is always a
difficult task for correctional authorities who receive an offender who, though sentenced after a full jury
trial, still protests his innocence. How does rehabilitation begin?
At any rate, given the absence of challenge to police methods at one end, and a confessed criminal
received in prison at the other, there is more than simple overcrowding behind the state’s willingness, to
accept the plea. It is not only a quick and efficient way of processing defendants, it is a sale way, for
pleading defendants do not rock the boat.
There are, however, a number of other state considerations underlying plea negotiation that are less self-
seeking, and perhaps more consistent with a general desire to build equity into our criminal justice
system, particularly in regard to sentencing.
It is common practice in many state legislatures (and in Congress as well) for very severe laws to be
passed in the heat of anger or at the height of public indignation over what appears to be a serious
crime wave. A few years ago about half the states adopted very harsh “sex psychopath” laws. In recent
years a number of states have adopted severe sale-of-narcotic laws, mandating life imprisonment or
even death to "pushers.”
In passing such laws the drafters typically have in mind the worst offenders – the organized criminal or the
professional dopefiend who sells heroin to school children or is otherwise the most vicious or professional
violator. However, in the day-to-day operation of courts the types of sale-of- narcotics defendants who
appear are rarely professional heroin pushers but are more likely to be young men or women who have
sold a couple of pills or marijuana cigarettes to friends.
Technically they are guilty of sale of narcotics and in most cases there is little doubt that the evidence
held by the state is sufficient to prove the charge. Yet confronted with these cases it is a rare prosecutor
or trial judge who wishes to give a mandatory life sentence (sometimes nonparoleable) to an 18-year-old
offender whose crime is selling a few reefers to a buddy. On the other hand the district attorney may be
unwilling or reluctant to dismiss the case entirely so that the lesser charge of “possession” or some related
crime may be offered as a desirable solution.
This motivation pattern for bargaining is an extension of traditional prosecutor’s discretion but here
instead of dismissing the case the prosecutor in effect sentences the defendant. The reason for this is the
nature of criminal law itself. Legislation defining crimes and fixing penalties is necessarily general and
broad and if the prosecutor and other court officials are confronted with individual cases which, while
they technically fit the same statutory category, are readily distinguishable in terms of the actual harm
they have done to victims or to the social order in general they can only achieve individualization of
sentences by reducing charges. There are a number of such situations where charge reduction is used to
individualize justice without really violating the legislative intent of proceeding against, very serious
criminals.
In addition to the avoidance of inappropriately excessive mandatory sentences, other motivations which
have been identified are:
• reduction to avoid a criminal label which would imply in the public mind that the
defendant was guilty of conduct which is really not consistent with the actions that form his
criminal violation.
***
• where there is a crime involving codefendants of unequal culpability. This is simply a

recognition of the prosecutor’s discretion to distinguish what the legislatures cannot do; that is, to
determine the degree of involvement in a single offense on the pail of multiple persons involved in
a crime.
An older, sophisticated armed robber who has as a look-out a young, inexperienced, clean-record
accomplice may be convicted “on the nose” but his accomplice offered a lesser charge (perhaps
attempted robbery or burglary) to balance culpability and consequences. The same thing occurs when
there are other mitigating circumstances in the crime, such as the participation of the victim in the
criminal activity itself as, for example, in certain forms of confidence games.
• where the therapeutic benefits of alternative sentences can best be achieved by charge
reduction or by awarding probation when normally such would not be the case. This is indeed a
mercy-of-the-court situation but, one which ignores the other administrative advantages of
negotiation.
This is an extension of sentencing discretion, with primary concern to place the defendant in the best
correctional setting possible which might be precluded if he’s convicted on the nose. A mandatory
prison term for a good-risk young violator may be more damaging to the community in the long run than
if he is given a break on his first sentence.
• reduction to support law enforcement efforts by rewarding informants, state witnesses and
the like with lesser charges and sentences. This is sometimes called “trading the little ones for the
big ones,” but the fact remains that unless differential court leniency is shown major cases cannot
be developed.
***
The prevailing attitude toward the process (until recently at least) on the part of many, including some
appellate courts, is that there is something dirty about plea bargaining, something corruptive or
potentially corruptive in negotiating with criminals for punishment less than could be levied if the full force
of the law were used. While it is true that from one perspective plea negotiation does act to avoid
legislative mandate, and, like the exercise of all administrative discretion, has the potential for
corruption, another side of the coin is presented by equity decisions, by a conscientious attempt to
introduce “justice” into individual cases.
Potential Costs of Plea Bargaining

National Advisory Commission on Criminal Justice Standards and Goals
Courts 47-48 (1973).
The Commission ... totally condemns plea bargaining as an institution… [I]t has concluded that [plea
bargaining] exacts unacceptable costs from all concerned. Perhaps the major cost is that of reduced
rationality in the processing of criminal defendants. Whether a defendant is convicted should depend
upon the evidence available to convict him, and what disposition is made of a convicted offender
should depend upon what action best serves rehabilitative and deterrent needs. The likelihood that these
factors will control conviction and disposition is minimized in the inevitable “horsetrading” atmosphere of
plea negotiation. Some defendants suffer from the resulting irrationality.
But the public’s interest in disposition of cases to serve its interest in protection also suffers…
Another major cost involved in plea negotiation is the burden it inevitably places upon the exercise of the
rights involved in trial – the rights to jury trial, to confront and cross-examine witnesses, to have the judge
or jury convinced of guilt beyond a reasonable doubt, and similar matters. It is inherent in plea
negotiation that leniency will be given in return for nonassertion of these rights.
***
[l]t is wholly unacceptable to add to [the inevitable costs of trial] the necessity of forfeiting a discount
that could otherwise have been obtained. Probably the major individual victim of today’s plea
bargaining system is the defendant who exercises his right to trial and suffers a substantially more severe
sentence than he would have received had he pleaded guilty.
By imposing a penalty upon the exercise of procedural rights in those cases in which there is a
reasonable likelihood that the rights will be vindicated, the plea negotiation system creates a significant
danger to the innocent. Many of the rights it discourages are rights designed to prevent the conviction of
innocent defendants. To the extent these rights are rendered nonoperative by the plea negotiation
system, innocent defendants are endangered…
NOTES
1. Impact of defense counsel on plea bargaining. Some studies have developed evidence that a
lawyer’s success in the plea bargaining process may depend not only upon the prosecutor’s perception
of the lawyer’s skill and vigor but also upon the existence or nonexistence of a personal relationship
between defense counsel and prosecutor. See Dear, Adversary Review: An Experiment in Performance
Evaluation, 57 Den.L.J. 401, 416-17 (1980); White, A Proposal for Reform of the Plea Bargaining Process,
119 U.Pa.L.Rev. 439, 448 (1971). A defendant, then, may suffer by comparison with other defendants
because of defense counsel’s inability or unwillingness to develop such relationships. But does this
distinguish plea bargaining from the trial process? Is a lawyer's personality likely to have no effect upon
the judge or jury in a contested case?
2. Pressures on defense counsel to plea bargain. Alschuler, The Defense Attorney's Role in Plea
Bargaining, 84 Yale L.J. 1179 (1975), explores the factors that may render lawyers susceptible to the
pressures of the plea bargaining process. Privately-retained lawyers, he notes, often set a single fee at the
outset of the case to cover the lawyer’s work however the case may proceed. Once the lawyer has
collected this fee, the lawyer has a strong financial interest in earning that fee as efficiently as possible.
This can often be accomplished by pleading the client guilty. “[T]he guilty-plea system,” Alschuler
concludes, “subjects even honest and conscientious lawyers to temptations that have no place in a
rational system of administering justice.” Id., at 1199.
Section K: Evidence, Foundations, and Exhibits
I. EVIDENTIARY FOUNDATIONS GENERALLY

A. The Requirement of Foundation
Before any evidence can be considered at trial there must be some basis for believing it to be relevant
and admissible. This basis is called the foundation for the evidence. Depending upon the nature of the
evidence, the foundation may be painfully complex or strikingly simple. The rules of evidence used in your
mock trial determine exactly which facts form the basis for the admission of all testimony and exhibits. In
any event, the question of foundation is directed to the presiding judge, who must make a preliminary
determination as to whether the evidence will be received.
With many kinds of testimony, foundation is obvious. For example, the basic foundation for eyewitness
testimony is that the witness observed the relevant events and is able to recall them. This foundation is
typically established in the introduction of the witness. For example:
QUESTION: Where were you on the afternoon of December 29?
ANSWER: I was at the corner of Alta Vista and Craycroft.
QUESTION: What did you see?
ANSWER: I saw an automobile collision.
It has now been shown that the witness has personal knowledge of the collision in our fire truck case. On
the basis of this foundation, and in the absence of some objection that is not apparent from the
example, the witness should be allowed to describe the collision. Of course, not all foundations are so
straightforward. Many require proof of other foundational facts, as discussed below.
B. Components of Foundation
There are three universal aspects to virtually all evidentiary foundations. To be received, evidence must
be shown to be relevant, authentic, and otherwise admissible under the rules of evidence in your mock
trial.
1. Relevance
Relevance defines the relationship between the proffered evidence and some fact that is at issue in the
case. Evidence will not be admitted simply because it is interesting or imaginative; it must make a
disputed fact in the case either more or less likely to be true. The relevance of most evidence is generally
apparent from the context of the case, but occasionally it must be demonstrated by the establishment
of foundational facts.
In the example above, the relevance of the testimony is made clear by the recitation of the date and
place of the witness’s observation. The witness is about to testify concerning the collision in the fire truck
case, not just any accident. Note, however, that this basic foundation might not always be adequate.
Had there been more than one accident on December 29 at the corner of Craycroft and Alta Vista, the
witness would have to provide additional identifying facts before testifying to the events. What time was
the witness there? What colors were the automobiles involved?
2. Authenticity
The concept of authenticity refers to the requirement of proof that the evidence actually is what the
proponent (the attorney offering the evidence) claims it to be. In other words, evidence is not to be
admitted until there has been a threshold showing that it is “the real thing.” The judge decides whether
an item of evidence has been sufficiently authenticated, and the criteria vary according to the nature of
the evidence involved.
We generally think of authentication as it applies to tangible evidence such as documents, physical

objects, or photographs. Is that really the contract that the parties executed? Is this actually the machine
part that caused the injury? Does the photograph fairly and accurately depict the scene of the
accident? Before any exhibit can be received, a foundation must be established that adequately
supports the proponent’s claim of authenticity.
The requirement of authenticity is not, however, limited to tangible objects. It also applies to certain
testimonial evidence. For example, a witness generally may not testify to a telephone conversation
without first establishing her basis for recognizing the voice of the person on the other end of the line. That
is, the identity of the other speaker must be authenticated.
It is fairly common for mock trial case files to contain stipulations as to the authenticity of certain
evidence. If there is no stipulation for a particular exhibit or piece of testimony, you must establish
authenticity.
3. Specific admissibility
While evidence will generally be received if it is relevant and authentic, the rules of evidence in your
mock trial govern its further admissibility. In many cases evidence can be admitted only following the
establishment of foundational facts. Thus, you must be aware of the rules of evidence governing each
fact you intend to offer at trial. As is discussed in detail below, a foundation can then be tailored to meet
the rule’s requirements.
THE BASICS
THE COMPONENTS OF FOUNDATION
Relevance: All testimony and exhibits must be shown to make some fact at
issue in the case more or less likely.
Authenticity: All testimony and exhibits must be shown to be what the
proponent claims them to be
Specific Admissibility: All testimony and facts must be shown to be otherwise admissible
under the specifically applicable rules of evidence.
C. Establishing Foundations
There are multiple combinations available to litigators with which to establish the foundation for testimony
or exhibits. A lawyer may establish foundation using one witness or several witnesses, even those called
by opposing counsel.
1. Using a single witness

The most common approach to the establishment of a foundation is simply to ask questions of a witness
who can provide the necessary facts, and then to offer the evidence after that testimony has been
elicited. Consider this example from the direct examination of the plaintiff in our fire truck case:
QUESTION: Do you recognize the object that I am showing you, which has been marked as Plaintiffs
Exhibit 12?
ANSWER: Yes, it is the neck brace that I got from my doctor.
QUESTION: When did you get it from your doctor?
ANSWER: When I was discharged from the hospital following the accident.
QUESTION: What is it made of?
ANSWER: Stiff plastic.
QUESTION: Do you still wear it?
ANSWER: Yes, I have to wear it at least eight hours a day.

Counsel may now offer the neck brace into evidence. Its relevance to the issue of damages is apparent
from the context of the case, its authenticity as the actual neck brace has been established by the
witness, and there are no special evidentiary considerations that govern the admission of this evidence.
2. Using multiple witnesses

Some foundations cannot be laid by a single witness. In such cases counsel must establish separate parts
of the foundation from each of several witnesses before offering the evidence. In a purse-snatching
case, for example, it may be necessary to ask questions of two witnesses in order to lay the foundation for
the admission of the stolen purse. First, the arresting officer:
QUESTION: Officer, do you recognize Prosecution Exhibit 1?
ANSWER: Yes. It is a lady’s purse that was in the possession of the defendant when I arrested him.
The officer has laid some of the foundation, but not all of it. The defendant’s possession of a purse is not
relevant until it is shown to have been stolen. It is therefore necessary to then ask the victim:
QUESTION: Ma’am, do you recognize Prosecution Exhibit 1?
ANSWER: Yes. It is my purse.
QUESTION: Before today, when was the last time that you saw it?
ANSWER: The last time I saw it was when it was ripped off of my shoulder by a purse snatcher.
Now the purse is admissible. The victim provided the missing aspect of relevance, and she also
authenticated the purse as the object that was stolen.
Note that it is possible to use direct and cross examination to lay a single foundation. Thus, defense
counsel can begin to lay a foundation during the cross examination of a plaintiffs witness and can
conclude the foundation during the defendant’s case in chief. Assume, for example, that the defendant
wants to introduce a letter from the plaintiff. To be admissible it must be shown both that the plaintiff
wrote the letter and that the defendant received it. Defense counsel can begin the foundation during
the plaintiffs case by having the plaintiff authenticate his own signature on cross examination. The
foundation can later be completed by having the defendant testify during her own case that the letter
was actually received.
3. Cross examination
Foundation requirements apply equally during cross and direct examinations. Testimonial foundations
must be laid on cross examination for personal knowledge, voice identification, hearsay exceptions, and
in every other circumstance where a foundation would be necessary on direct examination. In addition,
there are special foundations for impeachment by omission or prior inconsistent statement. We discuss
impeachment in-depth in Chapter 7 (“Impeachment”). It is also often necessary to use cross examination
to lay the foundation for the admission of exhibits.
4. Conditional admissibility
As illustrated above, it is not always possible to complete a foundation during the testimony of a single
witness. However, a witness who is responsible for part of the foundation will in many cases have other
important information to offer concerning the exhibit. In the absence of a special rule, this witness could
not testily about the exhibit until the foundation was complete. Fortunately, the doctrine of conditional
admissibility allows the temporary or conditional admission of the evidence based upon counsel’s
representation that the foundation will be completed through the testimony of a subsequent witness.
In the above purse-snatching case the prosecution might want to elicit further testimony about the purse
from the arresting officer:
PROSECUTOR: Officer, do you recognize Prosecution Exhibit 1?
ANSWER: Yes. It is the lady’s purse that the defendant was concealing under his jacket when I
arrested him.
PROSECUTOR: Officer, please show us how the defendant was concealing the purse when you arrested
him.
DEFENSE: Objection. The foundation for this exhibit is incomplete.
PROSECUTOR: Your Honor, we will complete the foundation when we call the victim, who will testify that
Exhibit 1 is the same purse that was stolen from her.
COURT: On the basis of counsel’s representation, the objection is overruled.
The further testimony of the officer has been conditionally allowed, subject to the perfection of the
foundation for the purse. In the event that the victim does not identify the purse, all of the conditionally
accepted testimony may be stricken from the record at the request of opposing counsel.
II. FOUNDATIONS FOR TESTIMONIAL EVIDENCE

A. Personal Knowledge
Witnesses are expected to testify from personal knowledge. The most common sort of personal
knowledge is direct sensory perception; information gained through sight, hearing, touch, taste, and
smell. Witnesses may also have personal knowledge of more subjective information such as their own
intentions or emotions or the reputation of another person.
Whatever the content of the witness’s testimony, it is necessary to lay a foundation showing that the
witness is testifying either from personal knowledge or on the basis of an acceptable substitute, as in the
case of expert testimony.
In the case of sensory perception, the basic foundation is simply that the witness was in a position to
observe or otherwise experience the relevant facts, as explained above in the example of eyewitness
testimony in the fire truck case. Note that witnesses are assumed to have all of their senses in order, so, for
example, counsel is not required to show that the witness’s eyesight is unimpaired.
In some situations, however, additional foundation may be called for to establish fully the basis of the
witness’s testimony:
QUESTION: What happened when you were standing in the workshop?
ANSWER: I heard a high-pitched, mechanical, whining sound in the next room.
QUESTION: Could you tell what it was?
ANSWER: Yes.
QUESTION: How could you tell?
ANSWER: I have worked in the workshop before, and I heard that sound when I saw the machines
operating.
QUESTION: What was the sound?
B. Conversations
In addition to establishing the personal knowledge of the witness, conversations between two or more
parties require further foundation, depending on whether the conversation is taking place in person or
over the telephone.
1. Conversations that occur in person

Before a witness can testify to an in-person conversation he had with another person, foundation must be
given to establish the date, time, and place of the conversation, as well as the persons present at the
time. For example:
QUESTION: Did you complain to anyone about the quality of the printing job?
ANSWER: Yes, I spoke to the store manager, Vincent Fry.
QUESTION: When did you speak to the manager?
ANSWER: On April 18, the same day that I refused to accept the product.
QUESTION: About what time was that?
ANSWER: I believe that it was just before noon, but it may have been somewhat later.
QUESTION: Where were you when you spoke?
ANSWER: We were at the service counter.
QUESTION: Was anybody else present?
ANSWER: There was a clerk nearby, but she wasn’t involved in the conversation.
QUESTION: Please tell us what was said during that conversation.
The witness’s ability to relate the time, date, place, and participants provides sufficient evidence that the
conversation happened as she says it did. It is not necessary to lay the foundation with minute precision.
In the above scenario the witness would not be required to provide the clerk’s name or the exact time of
the conversation. The foundation is sufficient so long as it fulfills its purpose of providing opposing counsel
with reasonably sufficient information with which to challenge or contest the witness’s testimony.
Note, however, that the foundation for the conversation does not resolve any hearsay or other
evidentiary problems that may be raised by its content. Those issues must be addressed separately, often
necessitating the development of additional foundation, as we discuss below.
2. Conversations that occur over the telephone

The foundation for a telephone conversation includes the additional element of voice identification or of
a reasonable circumstantial substitute. For instance, a witness can testify that he recognized the voice of
the person he spoke to because he had spoken to that person before or since the incident (either in
person or on the phone):
ANSWER: Yes, I telephoned the store manager, Vincent Fry, as soon as I opened the first package.
QUESTION: How do you know that you were speaking to Mr. Fry?
ANSWER: I recognized his voice. I have been going to that print shop for years, and I have spoken to
Vince many times in person.
In the absence of a basis for voice identification, circumstantial evidence can be used as the foundation
for a telephone conversation:
ANSWER: Yes, 1 telephoned the store as soon as I opened the first package.
QUESTION: How did you obtain the number?
ANSWER: I looked it up in the telephone book.
QUESTION: Did you dial the number that was listed in the book?
ANSWER: Yes.
QUESTION: What did you say when the telephone was answered?
ANSWER: I said that I wanted to complain about the quality of the printing job that I had just picked
up.
C. Prior Identification
A witness may testify to his or her previous out-of-court identification of an individual. While such
evidence is most commonly offered in criminal cases to bolster the in-court identification of the
defendant made at trial, it also has its uses in civil matters. The foundation for this testimony is that the out-
of-court identification was made by the witness after perceiving the person identified:
QUESTION: Were you able to see the person who stole your car?
ANSWER: Yes. He was driving away in it just as I got home from work. I saw him from the shoulders
up.
QUESTION: How far away were you when you first saw him?
ANSWER: I was about thirty feet away.
QUESTION: Did you ever see him again?
ANSWER: Yes, I picked him out of a lineup.
QUESTION: When was that?
ANSWER: About four days later at the police station.
QUESTION: Please describe the circumstances of the lineup.
ANSWER: There were five men standing in a row. They were all about the same height and they
were all wearing blue jeans and flannel shirts. I identified the man who was second from the left.
QUESTION: Was that the same man whom you identified here in court today?
ANSWER: Yes.
D. Habit and Routine

Testimonial evidence of habit or routine practice may be admitted as circumstantial evidence that a
person or organization acted in a similar fashion on a particular occasion. The subject matter of such
testimony can range from an individual’s clothing preferences to a business’s routine for mailing letters. In
each case, the evidence of a regular custom or practice is offered to prove that the individual or
business acted in the same way at a time relevant to the issues at trial.
To lay the foundation for evidence of habit or routine practice it is necessary to call a witness with
personal knowledge of the regular conduct of the person or organization involved. Furthermore, counsel
must establish that the asserted conduct was, in fact, of a consistently repeated nature. This can be
accomplished through proof of either extended observation or of the existence of a formal policy or
procedure.
In the following example, assume that the defendant is charged with stabbing a man to death. Pleading
self-defense, the defendant claims that it was the victim who attacked him with a knife, which he took
away and used to defend himself. Habit evidence will be offered by the prosecution to show that the
defendant always carried a knife:
QUESTION: How long have you known the defendant?
ANSWER: About five years.
QUESTION: In what context do you know him?

ANSWER: We are neighbors. He lives next door to me.
QUESTION: During the last five years, how often have you seen the defendant?
ANSWER: On average, I would say that I have seen him at least twice a week.
QUESTION: On those occasions, did you ever see the defendant carry a knife?
ANSWER: Yes. He always carried a hunting knife strapped to his belt.
QUESTION: How often did you see the defendant with a hunting knife?
ANSWER: Whenever he went out of the house, he always had that knife on his belt.
QUESTION: Did you ever see him go out of the house without a knife on his belt?
ANSWER: Only once.
QUESTION: What was that occasion?
ANSWER: He was going to a wedding in a tuxedo.
The evidence of the defendant’s constant habit over an extended period of time is admissible to prove
that he was carrying a knife on the date in question. Likewise, a routine practice of a business or
organization may be established either through direct observation or through evidence of an existing
policy or practice. Once the routine business practice is established, it may be used to show that the
company adhered to that custom during the time period in question.
E. Character and Reputation

Evidence of a person’s character generally is not admissible to prove that he acted in conformity
therewith on a particular occasion. For example, counsel may not offer proof of a person’s dislike of
children as evidence that he committed a kidnapping. There are, however, a number of exceptions that
allow the admission of character evidence for various purposes. Each exception requires the
establishment of its own foundation.
1. Other crimes or past misconduct

Following the general rule, evidence of past crimes or other wrongful conduct is not admissible to prove
the occurrence of a specific subsequent event. Three previous burglaries cannot be offered to show that
a defendant is a burglar and therefore committed the burglary in a current case. Past misconduct,
including uncharged crimes, may, however, be admitted for other purposes such as proof of motive,
opportunity, intent, preparation, plan, knowledge, identity, or absence of mistake or accident.
The foundation for such evidence must include the specifics of the past act as well as the circumstances
that make it usable for a permissible purpose in the case at trial. Assume that the defendant in the
following example is an employer who is being prosecuted for intentionally failing to pay last year’s
employee withholding taxes to the government. The defendant admits the conduct but claims that it
was an unintentional oversight. The prosecution has called a tax examiner to the stand:
QUESTION: What is your occupation?
ANSWER: I am an auditor for the Internal Revenue Service.
QOESTION: Have you audited the records of the defendant’s business?
ANSWER: Yes, I audited the records for the last seven years.
QUESTION: Exactly what records did you review?
ANSWER: I looked at all of the payroll records, including the time sheets and check stubs for every
employee.
QUESTION: Were you able to determine anything with regard to withholding taxes?
ANSWER: Yes. In each of the last seven years the amount of money withheld from employees’
paychecks was more than the amount paid over to the government.
QUESTION: What was the difference last year?
ANSWER: Last year the defendant withheld $55,000 more from employees than was paid to the
government for their withholding taxes.
QUESTION: And in the preceding six years?
ANSWER: The amounts for the previous six years were $40,000; $32,000; $51,000; $39,000; $46,000;
and $42,000.
QUESTION: Did the defendant submit withholding tax returns in each of the last seven years?
ANSWER: Yes. They were submitted and signed by the defendant in each of the last seven years,
but they never accurately reflected the amount of money deducted from employees’ paychecks.
The defendant has not been charged with failing to pay withholding taxes other than in the most recent
year. The government may not offer the other tax records to show that the defendant was a habitual tax
cheat. Nonetheless, evidence of the past misconduct is admissible to show either intent or absence of
mistake in filing last year’s return.
Note that the foundation included the basis of the witness’s knowledge, the precise records that were
reviewed, the relationship of the records to the withholding return, the years in which underpayments
were made, and the defendant’s personal involvement in signing the returns.
2. Reputation for untruthfulness

Evidence of a person’s reputation for untruthfulness must be offered by someone who has knowledge of
that person’s reputation in the community. This evidence can be offered only to reflect on the credibility
of the other person’s testimony as a witness in the trial; that is, to give the jurors a reason to doubt that the
other witness’s testimony is truthful.
The foundation for such reputation evidence includes identification of the relevant community, the basis
of the witness’s knowledge, and the nature of the other witness’s reputation during a relevant time
period. Note that the “community” involved may be residential, professional, social, or the like. Returning
to our fire truck case, a witness for the defendant may testify as follows:
QUESTION: Do you know the plaintiff?
ANSWER: Yes, I have known her for four years.
QUESTION: In what context do you know her?
ANSWER: We belong to the same hiking club. It’s called the Campside Walkers.
QUESTION: Are you familiar with the plaintiffs reputation for truth and veracity among the Campside
Walkers?
ANSWER: Yes. Her reputation is very bad. She is regarded within the club as an untruthful person.
A witness may also testify as to her opinion of a witness’s untruthfulness. The foundation is similar to that for
reputation testimony:
QUESTION: Do you know the plaintiff?
ANSWER: Yes, I have known her for four years.
QUESTION: In what context do you know her?
ANSWER: We belong to the same hiking club, the Campside Walkers.
QUESTION: How often have you spoken to the plaintiff during those four years?
ANSWER: Well, the club meets once a month and both of us usually attend the meetings. In
addition, we have gone on many long hikes together, and on at least three occasions we went on
weekend camping trips.
QUESTION: Based on your contract with the plaintiff, do you have an opinion concerning her
truthfulness?
ANSWER: Yes, I do. My opinion is that she is not a truthful person.
Once a witness has given reputation or opinion evidence concerning another’s untruthfulness, the cross
examiner may inquire as to relevant specific instances of conduct.
F. Foundations for Hearsay Statements

The rule against hearsay excludes evidence of out-of-court statements if offered to prove the truth of the
matter asserted. Numerous exceptions to the hearsay rule allow for the admissibility of out-of-court
statements, provided that the necessary foundation is established. The foundations for exceptions that
apply primarily to testimonial evidence are discussed below. Those that typically apply to documentary
evidence are discussed in later sections.2
1. Party admissions
Out-of-court statements made by the opposing party are generally admissible to prove the truth of the
matter asserted. The proponent of such evidence must lay foundation to show that the witness heard the
statement and can identify it as having been made by the party against whom it is being offered. The
content of the statement itself demonstrates its adverse nature. The party admission doctrine applies only
to statements offered against the party-declarant. A defendant cannot elicit her own favorable
statements made to a third-party unless allowed by another hearsay exception such as the state of mind
or excited utterance exceptions.
The party admission exception also applies to statements made by the agent or employee of a party. In
these situations there are two additional elements to the foundation: (1) the declarant was an agent or
employee of the opposing party at the time that the statement was made, and (2) the statement
concerned a matter that was within the scope of the agency or employment. In the following example,
assume that the plaintiff is the Quickset Printing Company, which has sued the defendant for
nonpayment on a large duplicating order. The defendant is testifying on direct examination:
QUESTION: Did you speak to anyone at Quickset after you received the order?
ANSWER: Yes. I went back to the shop and I spoke to the manager, Mr. Vincent Fry.
QUESTION: How do you know that you were speaking to Mr. Fry?
ANSWER: I have been doing business with Quickset for years, and I have spoken to Vince many
times.
QUESTION: What did you say to Mr. Fry?
ANSWER: I said that the order was defective and that I would not pay for it.
QUESTION: Did the manager respond?
ANSWER: Yes. He said that he didn’t expect anyone to pay for defective work and that he would
speak to the owner of the company.
Since agency and scope have been established, the manager’s out-of-court statement is admissible.
Note that the testimony also contained a reference to the defendant’s own out-of-court statement
concerning the defective nature of the order. The defendant cannot offer her own statement as a party
admission. In this case, however, it is not being offered for the truth of the matter asserted, but rather to
provide the context for the manager’s response. Thus, it is not hearsay and is therefore admissible.
2. Present sense impression

The present sense impression exception to the hearsay rule allows the admission of out-of-court
statements describing or explaining an event or condition made while the declarant was perceiving the
event or condition, or immediately thereafter. A witness may testify to her own previous statement of a
present sense impression, as in this example from the fire truck case:
QUESTION: Where were you at about 8:20 a.m. last December 29?
ANSWER: I was at the corner of Craycroft and Alta Vista, walking west on Alta Vista.
QUESTION: Were you with anyone?
ANSWER: Yes, I was with my two children, who are four and six years old. My neighbor was also with
us.
QUESTION: Was your attention drawn to a vehicle at that time?
ANSWER: I saw a fire engine headed west on Alta Vista.
QUESTION: Was the fire engine using its warning signals?
ANSWER: It was flashing its lights.
QUESTION: Did you say anything about the fire engine to anyone?
ANSWER: Yes. I told my children to look at the fire truck. I think that my exact words were something
like, “Look kids, a fire truck with its lights on. There must be a fire somewhere near here.”
QUESTION: When did you say that to your children?
ANSWER: Right as the fire truck was passing.
A witness may also testify to another person’s present sense impression statement. In these instances, it is
generally necessary for the statement to have been made in the witness’s presence in order to satisfy the
foundational requirement of personal knowledge.
3. Excited utterance
The excited utterance exception is similar to the present sense impression rule, allowing for the admission
of a hearsay statement that relates to a startling event or condition and is made while the declarant was
under the stress of excitement caused by the event or condition.
To lay foundation for an excited utterance, you must show that the declarant perceived a startling event
or experienced a stressful condition and that the declarant’s statement was made while he was under
the stress of the event or condition.
As with present sense impressions, a witness may testify to his own excited utterance or to that of another
so long as the proper foundation precedes the testimony.
4. State of mind
The state of mind exception is one of the broadest exceptions to the hearsay rule, as it allows the
admission of statements concerning the declarant’s then existing state of mind, emotion, sensation, or
physical condition (such as intent, plan, motive, design, mental feeling, pain, and bodily health).
Examples include statements such as, “I feel sick,” “I hate Ralph,” or “Let’s play a trick on the professor.”
The foundation for this exception is that the statement must actually tend to prove the declarant’s
mental, emotional, or physical condition. This can best be demonstrated by the content and context of
the statement itself. Apart from the content of the statement, there is no special foundation for the state
of mind exception. However, the witness must still be able to describe when, where, and in front of whom
the statement was made.
5. Dying declaration
The hearsay exception for dying declarations requires two elements: (1) that the declarant made a
statement while believing that her death was imminent and (2) that the statement concerned what she
believed to be the cause of her death. The declarant’s belief that death was imminent can be
established by surrounding circumstances, such as the nature of an illness or injury, or by the declarant’s
own words. The content of the statement will generally be sufficient to show that it related to the
declarant’s belief as to the cause of death.
THE BASICS
FOUNDATIONS FOR TESTIMONIAL EVIDENCE

Testimony by all witnesses (except expert witnesses) must be shown to
Personal Knowledge:
be based on personal knowledge.
Testimony about conversations must include when and where the
conversation took place, a toting of the parties present and (in the
Conversations:
case of telephone conversations) how the other person's voice was
authenticated.
Testimony about a prior identification must include the circumstances
Prior Identification:
under which that Identification was originally made.
Testimony about another’s habit or routine practice must be shown to
Habit and Routine:
be based on personal knowledge of a consistently repeated activity.
Testimony about another's character or reputation must be shown to be
Character and Reputation: used for an admissible purpose and must include the specifics of how
that information was learned dnd why it Is reliable.
Testimony of an out-of-court statement that is used to prove the truth of
Hearsay: the matter asserted must be shown to be nonhearsay or to fit into an
exception to the hearsay rule.
III. EXHIBITS
A. The Role of Exhibits
Exhibits are the tangible objects, documents, photographs, and other items that are offered for the fact-
finder’s consideration. Exhibits are the only form, apart from the testimony of witnesses, in which evidence
can be received. Spoken testimony typically presents the trier of fact with a recitation of the witness’s
memories and perceptions. As effective as testimony might be, it remains a secondhand account that is,
at best, once removed from the fact-finder’s own experiences. Exhibits, on the other hand, allow the
jurors to use their own senses and perceptions. It is one thing to hear somebody describe, for example,
the texture of a piece of cloth; it is far more striking actually to run your hand over the material. Direct
experiences are infinitely more informative than listening to another person’s description. Having touched
the cloth you will remember it better, you will appreciate more of its nuances or details, and you will be
much less likely to change your mind about it in the future.
At trial, exhibits enhance or supplement the testimony of the witnesses. Exhibits can make information
clearer, more concrete, more understandable, and more reliable. The sections immediately following will
discuss the general procedures for the introduction of exhibits.
B. Types of Exhibits
While the categories tend to overlap and the lines cannot be drawn with precision, it is often helpful to
think of exhibits as falling into these three categories: (1) real or tangible evidence, (2) demonstrative
evidence, and (3) documentary evidence.
1. Real evidence
Real evidence generally refers to tangible objects that played an actual role in the events at issue in the
trial. For example, the murder weapon is often introduced in homicide trials. Real evidence is also used in
all categories of civil cases. In personal injury cases it is common for plaintiffs counsel to introduce objects
that allegedly caused or contributed to the injury. Photographs, while obviously different from tangible
objects, are so close to reality that they are also often treated as real evidence.
2. Demonstrative evidence
The term “demonstrative evidence” refers to exhibits that did not play an actual role in the events
underlying the case but that are used to illustrate or clarify a witness’s testimony. Demonstrative evidence
can take the form of models, graphs, diagrams, charts, drawings, or any other objects that can explain or
illustrate issues in the case.
A familiar form of demonstrative evidence is the simple intersection diagram on which a witness can
indicate the locations of the automobiles involved in an accident. The intersection itself, not the diagram,
would constitute real evidence of the configuration of the streets. The diagram, however, may be used
to demonstrate the relative positions of the cars, traffic signals, and witnesses. It is easy to see why
demonstrative evidence can be superior to real evidence—the intersection cannot be transported into
the courtroom.
In mock trials, demonstrative evidence is usually developed by the drafter of the case and included
along with the real and documentary evidence that is available to the parties. Unless prohibited by your
mock trial rules, you should also feel free to create demonstrative evidence.
3. Documentary evidence
Documentary evidence refers to virtually all writings, including letters, statements, contracts, leases,
memoranda, reports, ledgers, printouts, and business records. Written documents, almost by definition,
contain out-of-court statements, and they are typically offered because their contents are relevant to
the case. Thus, most documents face hearsay hurdles that real and demonstrative exhibits do not;
tangible objects are admitted into evidence because of what they are whereas documentary exhibits
are admitted because of what they say.
The value of documentary evidence cannot be overstated. It has the power to document past events,
which is often the best proof possible. Imagine a criminal case in which the defendant has raised an alibi
defense, claiming that on the day of the crime he was visiting relatives in a distant city. The testimony of
the defendant and his family is relevant and admissible to establish the alibi, but it will be subject to
vigorous attack on cross examination. A signed hotel receipt for the date in question stands to be far
more persuasive than any witness as to the defendant’s whereabouts.
C. Offering Exhibits at Trial

Whether they consist of real, demonstrative, or documentary evidence, there is one basic protocol for
offering exhibits at trial. Although the details will vary somewhat depending on the mock trial competition
in which you are participating, the following steps form a nearly universal procedure.
1. Mark the exhibit for identification

Every exhibit should be marked for identification before it is offered into evidence or even referred to in
the course of a trial. Marking the exhibit identifies it for the record so that it will be uniquely and
immediately recognizable to everyone at trial.
Exhibits are generally marked for identification sequentially and further identified according to the
designation of the party who has first offered them. Thus, the exhibits in a two-party trial will be called
Plaintiff s Exhibit 1, Plaintiff s Exhibit 2, Defendant’s Exhibit 1, Defendant’s Exhibit 2, and so forth. It is often
helpful for plaintiffs to use numbers for their exhibits, while defendants use letters. Hence, Plaintiffs Exhibit 1
and Defendant’s Exhibit A. Whatever marking system you use is unimportant so long as it produces a
clear and understandable indication of which exhibit is which.
To mark your exhibits for identification, write the number or letter on one corner of the exhibit. It does not
matter which comer you choose, so long as you are consistent with all of your exhibits. The term “marked
for identification” means that the exhibit has been marked and can be referred to in court but has not
yet been admitted into evidence. Exhibits that have been marked for identification may be shown to
witnesses and may be the subject of limited examinations for the purpose of establishing a foundation,
but they usually may not be shown to the fact-finder.
2. Identify the exhibit for opposing counsel

Exhibits should be identified for opposing counsel before they are shown to a witness or the trier of fact at
trial. This may be done by handing or displaying the exhibit to opposing counsel and announcing the
exhibit number as follows:
COUNSEL: I’m going to show the witness what has been marked as Plaintiffs Exhibit 11 for
identification.
This common courtesy allows opposing counsel to confirm that the exhibit has not been altered in any
way. Opposing counsel is also afforded an opportunity to make an early objection to the use of the
exhibit.
Having identified the exhibit, you may now proceed to lay the foundation for its admission.
3. Show the exhibit to the witness

It is customary to request permission to approach the witness before handing her an exhibit. Once you
obtain the judge’s permission, approach the witness and announce for the record what you are doing,
using a shorthand description of the exhibit as well as its identification number. The process should
proceed as follows:
COUNSEL: Your Honor, may I approach the witness?
JUDGE: Yes, you may.
COUNSEL: Ms. Van Zant, I am handing you Defendant’s Exhibit 11, a one page, one-sided
document.
If yours is a jury trial, you should also give a copy of the exhibit to the presiding judge.
4. Have the witness identify the exhibit

The next step is to have the witness identify the exhibit. The witness should state the basis for her familiarity
with the exhibit and then describe it in some detail. For example:
QUESTION: Have you ever seen Plaintiffs Exhibit 11 before, Ms. Van Zant?
ANSWER: Yes, I have seen it many times.
QUESTION: What is Plaintiffs Exhibit 11?
ANSWER: It is a piece of the stationery I received when my order was delivered from Quickset
Printing.
QUESTION: How is it that you recognize it?
ANSWER: I remember how it looked when I took it out of the box.
Numerous variations are possible once the witness has examined the exhibit: “Are you familiar with the
exhibit? Do you recognize the exhibit? Are you able to identify the exhibit?” While it is technically
necessary to establish initially that the witness has a basis for giving a description, it is often possible to
elicit the description first: “What is it? How do you know?”
5. Complete the foundation for the exhibit

In some situations, particularly those involving real evidence, the identification of the exhibit will provide a
sufficient foundation for admission. In other circumstances the foundation will be much more elaborate,
perhaps calling for the establishment of a chain of custody or an applicable hearsay exception. These
and other foundations for the introduction of real, demonstrative, and documentary evidence are
discussed at length later in this chapter.
6. Offer the exhibit into evidence

Once the foundation has been completed the exhibit can be offered into evidence. There are several
ways in which this may be done, some more formal than others. In the simplest version:
COUNSEL: Your Honor, we offer Exhibit 11 into evidence.
Or, for a more formal presentation:
COUNSEL: Your Honor, we move that the identifying mark be stricken and that Plaintiffs Exhibit 11 be
received in evidence.
In any case, the judge will then ask opposing counsel if there are any objections to its admission. The
process for arguing objections will be discussed in Chapter 10 (“Objections”). At this point it is sufficient to
note that objecting counsel is entitled to request a limited cross examination of the witness (called “voir
dire”), which will be restricted to the subject of the admissibility of the exhibit. Following any objections or
voir dire by opposing counsel, the judge will rule on the admissibility of the exhibit.
7. Publish and use the exhibit

Once an exhibit has been received by the court, it can be published to the fact-finder and also used as
a basis for further testimony.
a. Publication of an exhibit
To “publish” an exhibit is to communicate its contents to the fact-finder. Exhibits may be published in a
variety of ways. Diagrams or models are usually displayed in front of the trier of fact. Smaller objects
typically are handed to the jurors and passed among them. Documents can be enlarged and displayed,
passed among the jurors, or read aloud. The choice of publication method is customarily left to counsel,
although the court may deny leave to use overly dramatic, prejudicial, or dangerous means. Persuasive
uses of exhibits will be discussed in greater detail later, as will effective methods of publication.
If yours is a bench trial, you should simply hand a copy of the exhibit to the judge once it has been
admitted. Injury trials, however, it is necessary to obtain the judge’s permission to publish an exhibit to the
jury:
COUNSEL: Your Honor, permission to publish Defendant’s Exhibit 6 to the jury?
Or,
COUNSEL: May I have leave to publish Plaintiffs Exhibit 3 by passing it among the jurors, Judge?
Or,
COUNSEL: Your Honor, may the witness read Prosecution Exhibit 9 to the jury?
b. Using an exhibit
Once an exhibit has been admitted in evidence it can be used to illustrate or amplify a witness’s
testimony.
Tangible objects can be used in demonstrations. A witness can show how a gun was aimed or how a tool
was used. Maps, diagrams, and photographs can be used to illustrate the movement of persons and
vehicles, the locations of incidents, or the relationship and distances between stationary objects. It is
permissible to have a witness mark directly on the exhibit or to use velcro “stick-ons” to elaborate on her
testimony.
In addition to publishing the exhibit to the finder of fact, a witness can give further testimony that
interprets or otherwise explains the significance of the exhibit:
QUESTION: Why was the color of the stationery, Plaintiffs Exhibit 1, so important to you?
Or,
QUESTION: What did you do once you received Plaintiffs Exhibit 12?
Or,
QUESTION: What was your reaction when you saw Mr. Marshall holding Defendant’s Exhibit 4?
The right to testify about an exhibit is constrained by the applicable rules of evidence.
Finally, be aware that once an exhibit has been admitted it may be used, subject to the rules of
evidence, in the examination of any witness, not only the witness who introduced it.
THE BASICS
OFFERING AN EXHIBIT AT TRIAL

STEP EXAMPLE
Mark the exhibit for
• Prosecution Exhibit 10.
identification:
Identify the exhibit for • (To counsel) I'm going to show the witness what has been marked
opposing counsel: Prosecution Exhibit 10.
• (To judge) Your Honor, may 1 approach the witness?
Show the exhibit to the
• (To witness) Detective Duncan, I'm handing you what has been
witness:
marked as Prosecution Exhibit 10.
• (To witness) Please tell the jury what that is.
Ask the witness to identify • How do you know that is the knife found at the defendant's home?
the exhibit: • Why do you put your initials on items recovered from crime scenes?
• On what day was this knife found?
• Please tell the jury exactly what you did with the knife after you
found It.
Complete the foundation: • Did anyone else have access to the evidence locker at the police
station?
• Who brought the knife to court today?
Offer the exhibit into • (To judge) The People move the admission of Exhibit 10 Into
evidence: evidence
• (To witness) Detective, please describe how this knife looked on the
day you found it.
• Where was the knife within the defendant's home?
Publish the exhibit and use
• Did you ask the defendant about the knife?
it in the witness’s testimony:
• What was his response?
• (To judge) Your Honor, may we have permission to publish the knife
by displaying it to the Jurors?
IV. SPECIFIC FOUNDATIONS FOR EXHIBITS

The remaining portion of this chapter will discuss the specific foundations required for various types of
real, demonstrative and documentary evidence. For the sake of brevity, these examples are limited to
the necessary evidentiary foundations and do not include all of the steps described in the previous
section for offering exhibits. You should assume that, in each example, the sponsoring attorney will follow
the general procedure outlined above for offering exhibits.
A. Real Evidence/Tangible Objects

Real evidence must be shown to be relevant and authentic. Did the object actually play a role in the
facts of the case? Does it tend to prove (or disprove) some issue in contention? Is the object in court
really the one that we are talking about? If these conditions are met, the evidence will usually be
admitted unless it is unduly prejudicial.
The relevance of real evidence is typically established by the context of the case and often requires no
additional attention when it comes to laying foundation. Authenticity, on the other hand, must always be
carefully established, as it is the fact of authenticity that qualifies the exhibit as real evidence.
1. Establishing authenticity
The authenticity of real evidence can be established through the testimony of a witness who is able to
recognize the item in question. Many objects can be identified by virtue of their unique features. Others
may have been given some identifying mark in anticipation of litigation. In either case, the witness must
testify that she was familiar with the object at the time of the underlying events, and that she is able to
recognize the exhibit in court as that very same object.
In the following example, the plaintiff in a property damage case will be asked to lay the foundation for
an item of personal property:
QUESTION: Do you recognize Plaintiffs Exhibit 1?
ANSWER: Yes, it is an oil painting that was left to me by my grandmother.
QUESTION: How is it that you can recognize it?
ANSWER: Until the fire, it hung over our mantle and I used to look at it almost every day.
QUESTION: Was it in your house at the time of the fire?
ANSWER: Yes it was. It was one of the first things that I tried to salvage after we were allowed back
into the house.
QUESTION: Is Plaintiffs Exhibit 1 in substantially the same condition as it was when you removed it from
your house after the fire?
ANSWER: Yes, it is.
This testimony is sufficient to establish the authenticity of the oil painting. The final question regarding the
condition of the exhibit is necessary because the damaged painting is being offered to show the
destruction caused by the fire. While an oil painting is likely to be unique and easily recognizable, other
exhibits are harder to identify specifically. Police officers and others who are familiar with litigation often
solve this problem by placing identifying marks on tangible objects. In the following example a police
officer will lay the foundation for a child’s safety seat that was found at the scene of an automobile
accident:
QUESTION: Officer, I’m handing you what has been marked as Defendant’s Exhibit 6. What is that?
ANSWER: It is the child safety seat I removed from the plaintiffs automobile on the day of the
accident.
QUESTION: How do you know that Defendant’s Exhibit 6 is the same seat?
ANSWER: Because when I removed it from the plaintiffs car I wrote my initials and the date on the
back of the seat.
QUESTION: Do you recognize your initials on that seat now?
ANSWER: Yes, they are right here (pointing).
QUESTION: (To judge) Let the record reflect that the witness is pointing to the back of Defendant’s
Exhibit 6.
The above foundation is sufficient for the admission of the car seat, so long as the exhibit is being offered
only to prove the presence of the child seat in the plaintiff s automobile. If the condition of the car seat
were in issue (as with the damaged oil painting above), it would also he necessary to ask whether the
seat is in “the same or substantially the same condition” as when it was retrieved.
In both the oil painting and the car seat examples it was unnecessary for the witness to account for the
whereabouts of the exhibit between the incident and the trial. This is because the witnesses were able to
supply all of the information necessary to authenticate the exhibits. In other circumstances, however, a
foundation will need to include a “chain of custody” for a particular exhibit.
2. Showing the chain of custody

A chain of custody establishes the location, handling, and care of an object between the time of its
recovery and the time of trial. A chain of custody must be shown whenever an exhibit is not uniquely
recognizable and was not specially marked as in the example above, or when an exhibit’s physical
properties are in issue.
Establishing an object’s chain of custody is necessary when a witness is not likely to recognize the
relevant object with any certainty, or when the exhibit has been subjected to testing or analysis, or when
aspects of its condition or composition are at issue in the case. In each of these instances, the chain of
custody negates the possibility that the object was mishandled, tampered with, or altered.
A chain of custody must, at a minimum, be sufficient to show that the object in the courtroom is the same
one that was involved in the events being considered at trial.
This can usually be accomplished by tracing the possession of the item as it passed from hand to hand. In
some situations it is also necessary to show that the object was stored during the intervening period
(between the event at issue and the trial) in a manner that was secure from tampering. In either case, it
may be necessary to call more than one witness in order to complete the chain.
In the following example an automobile mechanic was injured when a tire exploded as it was being
mounted. The tire manufacturer has been sued, and the defective tire will be offered solely to show that
it was manufactured by the defendant. The first witness is the garage manager:
QUESTION: Where were you when the plaintiff was injured?
ANSWER: I was standing about thirty feet away when I heard the noise of a loud explosion.
QUESTION: What did you do?
ANSWER: I ran over to where the plaintiff was lying on the ground. He was covered with blood, and
there was a ragged tire lying right next to him.
QUESTION: Were there any other tires nearby?
ANSWER: No, that was the only one.
QUESTION: Did you do anything with the tire?
ANSWER: Yes. I picked it up and put it in my office.
QUESTION: Were there any other tires in your office at the time?
ANSWER: No.
QUESTION: Did you ever do anything else with the tire that you found next to the plaintiff?
ANSWER: Yes. About a week later a company superintendent came to investigate the injury. He
asked to take the tire, and I gave it to him.
QUESTION: Had the tire been in your office the entire time between the injury to the plaintiff and the
time that you gave it to the company superintendent?
ANSWER: Yes.
The garage manager has completed the first part of the chain. Note that the tare has not yet been
produced in court. The next witness is the company superintendent:
QUESTION: Did you obtain a tire in the course of your investigation of this injury?
ANSWER: Yes. I went to speak to the garage manager about two weeks after the incident, and he
gave me a tire that he had kept in his office.
QUESTION: What did you do with that tire?
ANSWER: I brought it back to company headquarters and placed it in my office.
QUESTION: Did the tire that you got from the garage manager ever leave your office?
ANSWER: Yes, I brought it with me to court today.
QUESTION: Showing you Plaintiff’s Exhibit 1, is this the tire that you obtained from the garage manager
and that you brought with you to court today?
ANSWER: Yes, it is.
The chain of custody is now sufficient to establish the identity of the tire. Even though the company
superintendent did not witness the accident or initially recover the tire, there is enough evidence to show
the continuity of possession. Since in this example the tire is being offered only to prove who
manufactured it, physical properties are not in issue. It is therefore unnecessary to show that the tire was
kept under lock and key during the intervening period.
B. Photographs
Photographs bridge the gap between real and demonstrative evidence. While a visual recording of any
sort is, strictly speaking, an illustration of a past event, its capacity to portray a scene with accuracy is so
great that many courts treat photographs as real evidence.
The basic foundation for the admission of a still photograph is that it “fairly and accurately” portrays the
scene shown. It is generally possible to introduce a photograph through the testimony of any witness who
is familiar with the scene as it appeared at a relevant time. In the following example the witness is the
owner of a home that was destroyed by fire. A photograph of the house will be offered as evidence of
damages.
QUESTION: Ms. Jensen, are you the owner of the house located at 4604 Desert Drive?
ANSWER: Yes.
QUESTION: How long did you live there?
ANSWER: About eight years, until the fire.
QUESTION: So, of course, you are familiar with the appearance of your home before the fire.
ANSWER: Yes, certainly.
QUESTION: Does Plaintiffs Exhibit 11 fairly and accurately show your home at 4604 Desert Drive as it
appeared on the day before the fire?
ANSWER: Yes, it does.
C. Demonstrative Evidence
Demonstrative evidence is used to illustrate, clarify, or explain other testimony or real evidence.
1. Maps, charts, and diagrams

The foundation for a map, chart, blueprint, or other diagram is essentially the same as that for a
photograph. The witness must be familiar with the scene, location, or structure as it appeared at a
relevant time and must testify that the exhibit constitutes a fair representation of that scene, location, or
structure. Additional foundation is necessary if the exhibit is drawn to scale. If the witness prepared the
exhibit herself she should also testify to the manner in which she prepared it and the steps she took to
insure its accuracy.
2. Illustrative aids
Exhibits that are insufficiently accurate to be allowed into evidence may often still be used for illustrative
purposes. The foundation includes a witness’s testimony that the exhibit will assist in explaining her
testimony, as well as a general explanation or description of the inaccuracy of the exhibit. In the
following example the witness has produced a freehand drawing of an intersection:
QUESTION: What is Defendant’s Exhibit 5?
ANSWER: It is a drawing of the intersection of North and Wells.
QUESTION: Did you make that drawing yourself?
ANSWER: Yes, I did.
QUESTION: Does Defendants Exhibit 5 generally show the configuration of the streets at North and
Wells as they appeared on the date of the accident?
ANSWER: Yes, it shows the location of the streets and traffic signs.
QUESTION: Is Defendant’s Exhibit 5 drawn to scale?
ANSWER: It is the best I could do, but it is not drawn to scale.
QUESTION: Would Defendant’s Exhibit 5 still help you to explain your testimony about the accident?
ANSWER: Yes, it would.
The above foundation is sufficient to allow the witness to use the diagram in the course of her testimony.
D. Documentary Evidence
In addition to the usual issue of relevance, the foundation for a document typically includes two other
elements.
1. Authentication
The authentication of documents typically requires proof of authorship or origin and may also call for
proof of transmission or receipt. The existence of a lease, for example, may not be probative unless it can
be shown to bear the signatures of the contending parties. Thus, unlike tangible objects, the foundation
for documentary evidence may include more than simple recognition.
On the other hand, it is unusual for the physical condition or safekeeping of a document to be in issue.
Chain of custody, therefore, is seldom a component of the foundation for documentary evidence,
although it may be required if the paper has been subjected to testing or if the writing appears to have
been altered or amended.
a. Handwriting and signature

The signature or other handwriting on a document can be authenticated through a variety of means. A
witness may recognize a signature based on past observation or may authenticate it on the basis of
circumstantial evidence. Other possibilities include expert testimony and in-court comparison by the trier
of fact.
A witness may always authenticate her own handwriting or signature. A witness may also authenticate
the handwriting of another if sufficient familiarity can be shown:
QUESTION: Please examine Defendant’s Exhibit 2 and tell me if you recognize the signature at the
bottom of the page.
ANSWER: Yes, I do recognize the signature.

QUESTION: Whose signature is it?
ANSWER: It is Tiffany Weeks’s signature.
QUESTION: How are you able to recognize it?
ANSWER: I have seen Tiffany sign her name many times, and I recognize the handwriting as hers.
It is not necessary, however, for the witness actually to have seen the person sign her name before.
Circumstantial evidence can also support the required degree of familiarity:
QUESTION: How is it that you are able to recognize Tiffany Weeks’s signature?
ANSWER: We have corresponded over the years, and it is the same signature that I have seen on
her letters.
QUESTION: How do you know that those letters came from Ms. Weeks?
ANSWER: Because she would usually answer questions in her letters that I had written to her in my
letters.
Note that extended correspondence is not required. A nonexpert witness can identify a signature on the
basis of a single past event or sample so long as familiarity was not acquired for the purpose of testifying
at trial.
b. Circumstantial evidence of authorship or origin

Many documents are printed or typewritten and do not contain signatures or other handwriting. Unless
such a document is somehow uniquely marked, it will need to be authenticated via circumstantial
evidence. Such evidence can be in the form of a letterhead, seal, or stamp, or it can be provided by the
context of the case:
QUESTION: Do you recognize Defendant’s Exhibit 6?
ANSWER: Yes, it is a price list that I received from Quickset Printing.
QUESTION: How do you know that Defendant’s Exhibit 6 came from Quickset Printing?
ANSWER: Well, it is on stationery that says Quickset Printing at the top of the page.
QUESTION: Is there any other reason that you know that Defendant’s Exhibit 6 came from Quickset
Printing?
ANSWER: Yes. I called the telephone number listed for Quickset in the directory, and I asked the
person who answered the phone to send me a price list. This price list arrived in the mail two days later.
The above foundation is more than sufficient to authenticate the document. Note that, even if the
document is shown to be authentic, the opposing party may still contest its admissibility. Authentication is
a threshold question, and it is not dispositive of admissibility.
c. Mailing or transmission
The admissibility of a document will often depend upon its receipt by, or at least transmission to, another
party. This is an authenticity issue since the document is made admissible only by its status as one that
was actually or constructively received. In other words, proof of mailing authenticates the document as
truly having been sent to the other party.
Mailing can be proven either directly or through evidence of a routine business practice. Direct proof of
mailing can be given in a single sentence: “I placed the document in an envelope, with the correct
address and I deposited it in the United States mail with sufficient postage”
The basic foundation for proof of transmission is the same no matter what mode of communication is
utilized. A witness may provide direct proof of transmission (“I put it in the fax machine, and I dialed the
listed number,” or “I pressed ‘send’ in my internet mail program.”) or may testify as to the organization’s
practice for handling outgoing documents.
2. Hearsay exceptions
The offer of a document inevitably sets the hearsay bell ringing in opposing counsel’s mind. While writings
may be admissible for nonhearsay purposes, such as proof of notice or acceptance, they are frequently
submitted precisely to prove that their contents are true. Various exceptions are available to allow for the
use of such documents, each requiring its own foundation. The more common exceptions are discussed
in the following sections.
a. Business records
Business records can include ledgers, accounts, calendar entries, memoranda, notices, reports,
statements, computer printouts, summaries of records or events, and similar writings of a company. All of
these documents constitute hearsay if they are offered to prove that their contents are true. Thus, the
entries in a loan company’s account book would be hearsay if submitted as proof that a certain loan
was not repaid in time.
The “business records” exception to the hearsay rule allows for the admission of most such records, so
long as they can be shown to meet certain requirements. Under most mock trial competition rules, the
records of any regularly conducted activity are admissible if they were made by a person with
knowledge as part of a regular business practice and they were kept in the course of that regularly
conducted business activity.
It is not uncommon to use the approximate words of the rule in order to lay a foundation for the
exception:
QUESTION: Ms. Strawn, are you employed by the Quickset Printing Company?
ANSWER: Yes, I am the accountant and bookkeeper.
QUESTION: Do you recognize Plaintiffs Exhibit 3?
ANSWER: Yes I do. It is our ledger book.
QUESTION: What is the function of your ledger book?
ANSWER: We use it to record all of our credit sales and all of the payments that we receive.
QUESTION: Are the entries in Plaintiffs Exhibit 3 made at or near the time of the sales or payments?
ANSWER: Yes.
QUESTION: Are the entries made by or transmitted from a person with knowledge of the sales and
payments?
ANSWER: Yes.
QUESTION: Are those entries made as a part of the regular business practice of Quickset Printing?
ANSWER: Yes.
QUESTION: Is the ledger book, Plaintiffs Exhibit 3, kept in the regular course of business?
ANSWER: Yes, it is.
The foundation for the exception is now complete.
The basic foundation for the business records exception can be expanded upon as circumstances
dictate. In dealing with records that are more complex, intricate, questionable, or exotic than ledger
books it is often desirable to have the witness spend more time explaining their use and reliability. It is
worth keeping in mind, however, that judges are accustomed to hearing the foundation’s magic words
and that objections are less likely to be made or sustained when you see them too.
b. Public records
Some mock trial hearsay exceptions also allow for the admissibility of public records, statistics, and
reports. Such records are generally admissible if they were made by a public office or agency and they
set forth the activities of the office or agency; or matters observed pursuant to a duty imposed by law; or
in limited circumstances, certain investigative findings; or officially required records of vital statistics.
Because most government records are “self-authenticating,” it is not usually necessary to call a witness to
testify to their authenticity.
Two limits may be placed on the use of this hearsay exception in criminal cases. First, matters observed by
police officers and other law enforcement personnel do not qualify for the exception, even if contained
in a report made pursuant to a duty imposed by law. Second, investigative findings are admissible in
criminal cases only if offered against the government. Read through your rules carefully to see if either of
these exceptions apply.
c. Party admissions
The party admission exception applies to documents as well as to oral statements. A party admission can
be contained in a letter, report, memorandum, journal, progress chart, or virtually any other form of
writing. Once the exhibit has been authenticated the only remaining foundation is that it was made or
adopted by a party against whom it is being offered or by an agent, servant, or employee of such a
party.
THE BASICS
SPECIFIC FOUNDATIONS FOR REAL, DEMONSTRATIVE. AND DOCUMENTARY EVIDENCE

Tangible objects must be shown to be what the proponent claims them
Tangible Objects:
to be.
Chain of custody must be established when (1) the exhibit is not readily
Chain of Custody: identifiable. (2) the specific condition of the object is at issue, or (3)
there has been a possibility of tampering.
Photographs must be shown to fairly and accurately represent their
Photographs:
subject matter.
Demonstrative evidence must be shown to be helpful In the illustration,
Demonstrative Evidence: clarification, or explanation of the testimony or real evidence offered at
trial.
Documentary evidence must be shown to be what the proponent
Documentary Evidence:
claims it to be and admissible under the hearsay rule and its exceptions.
Section L: Additional Readings
Democratic Republics, Governmental Structure, and “Civic Virtue”

At the time of the adoption of the current U.S. constitution, James Madison and John Adams both
promoted the new constitution as appropriately balancing government structures, which should assume
the worst of human nature, and “civic virtue,” popular opinion in support of liberty, which assumes the
best of human nature. As you read brief quotes from essays written by these two men, consider the
relationship between government structures and civic virtue. Are they too optimistic about human
nature? Too pessimistic? Also consider that these two men viewed the role of government quite
differently, and eventually became bitter political rivals, but were still both committed to the project of
building up the rule of law and democratic rights protection.
James Madison, Federalist 51 (1787):

“If men were angels, no government would be necessary. If angels were to govern men, neither external
nor internal controls on government would be necessary.”
James Madison, Federalist 55 (1787):

“Republican government presupposes the existence of [civic virtue] in a higher degree than any other
form [of government].”
John Adams, Novanglus Essay 7 (1776):

“[Political philosophers Aristotle, Livy, and Harrington] define a republic to be a government of laws, and
not of men.”
John Adams, A Defence of the Constitutions of Government, chapter 18 (1787):

“...[K]illing one tyrant only makes way for worse, unless the people have sense, spirit and honesty enough
to establish and support a constitution guarded at all points against the tyranny of the one, the few, and
the many. Let it be the study, therefore, of lawgivers and philosophers, to enlighten the people's
understandings and improve their morals, by good and general education; to enable them to
comprehend the scheme of government, and to know upon what points their liberties depend; to
dissipate those vulgar prejudices and popular superstitions that oppose themselves to good government;
and to teach them that obedience to the laws is as indispensable in them as in lords and kings.” (Civic
virtue, proper democratic structure, and the rule of law are vital.)
“The Spirit of Liberty” (Judge Learned Hand, 1944)

The following is a short speech delivered by the celebrated American judge and legal thinker, Learned
Hand, during a patriotic celebration held in New York City in the fall of 1944.
As a proponent of “legal realism,” note how Judge Hand emphasizes the mutually dependent
relationship between legal structures and public commitment to liberty. Judge Hand was invited to share
his thoughts concerning the state of liberty in the United States at the time, a particularly poignant
question as the legal system struggled to balance competing impulses toward security in wartime and
the protection of basic liberties.
While the speech contains details specific to his time and place, Judge Hand highlights serious issues for
any democratic country, including the relationship between popular opinion and courts, the importance
of equality, the duties of citizens in defending and promoting fundamental freedoms, and the unfinished
work of democratic development.
Questions for discussion:
• Is Judge Hand correct that a general commitment among the public to freedom is essential to
the protection of individual rights? Does he overstate or understate the role of popular opinion?
Why or why not?
• How can the actions and reputation of the courts play a sustaining role in defending the rule of
law, individual rights, and democratic values among popular opinion? How can the courts
degrade popular opinion of the rule of law, individual rights, and democratic values?
• Judge Hand sets a high goal for his “spirit of liberty,” but recognizes that the legal system of his
time falls far short of that goal. He then argues that it is the role of citizens to transform the system
into something better. Is Judge Hand’s conception of the role of citizen realistic? Why or why not?
• What is the responsibility of lawyers and judges in promoting “the spirit of liberty” among the
general population?
We have gathered here to affirm a faith, a faith in a common purpose, a common conviction, a
common devotion. … What do we mean when we say that first of all we seek liberty? I often wonder
whether we do not rest our hopes too much upon constitutions, upon laws and upon courts. These are
false hopes; believe me, these are false hopes. Liberty lies in the hearts of men and women; when it dies
there, no constitution, no law, no court can even do much to help it. While it lies there it needs no
constitution, no law, no court to save it. And what is this liberty which must lie in the hearts of men and
women? It is not the ruthless, the unbridled will; it is not freedom to do as one likes. That is the denial of
liberty, and leads straight to its overthrow. A society in which men recognize no check upon their
freedom soon becomes a society where freedom is the possession of only a savage few; as we have
learned to our sorrow.
What then is the spirit of liberty? I cannot define it; I can only tell you my own faith. The spirit of liberty is
the spirit which is not too sure that it is right; the spirit of liberty is the spirit which seeks to understand the
mind of other men and women; the spirit of liberty is the spirit which weighs their interests alongside its
own without bias; the spirit of liberty remembers that not even a sparrow falls to earth unheeded; the
spirit of liberty is the spirit of Him who, near two thousand years ago, taught mankind that lesson it has
never learned but never quite forgotten; that there may be a kingdom where the least shall be heard
and considered side by side with the greatest. And now in that spirit, that spirit of an America which has
never been, and which may never be; nay, which never will be except as the conscience and courage
of Americans create it; yet in the spirit of that America which lies hidden in some form in the aspirations of
us all….

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TLI Textbook TLI Program

Section A: Introduction to Adversarial Procedure

Courtroom Layout Illustrations

I. UNDERSTANDING THE LAW

1. The burden of proof

CIVIL CASES CRIMINAL CASES

II. THE ORDER OF A TRIAL

B. Witness Testimony (the number of witnesses may vary)

D. Jury Deliberations (if a jury is the fact-finder)

III. THE FORMAT OF A COURTROOM

IV. THE ANATOMY OF A CASE FILE

Section B: The Structure of the Criminal Justice System

PRESIDENT’S COMMISSION ON LAW ENFORCEMENT

I. Agencies and Officials of the Criminal Justice System

The Lower Courts

II. Criminal Justice Procedures

B. THE INITIAL STAGES OF A CRIMINAL CASE

The Diversion of Cases Before Charge

C. THE GUILTY PLEA

III. The Flow of Cases through the System

GEOFFREY C. HAZARD, JR., CRIMINAL JUSTICE SYSTEM: OVERVIEW

Section C: Criminal Procedure Overview

HOW A CRIMINAL CASE BEGINS

Preliminary Hearing in Felony Cases

Grand Jury Action on Bindovers

Pleadings and Motions in Criminal Cases

Discovery in Criminal Cases

The Trial as an Adversary Proceeding

Burden and Degree of Proof

Jury and Non-Jury Cases

The Start of the Trial

Choosing the Jury

Order of Presenting Evidence

How Evidence is Presented

How Witnesses Should Act

Fifth, be courteous to everyone. Proper behavior develops mutual respect.

Ninth, speak clearly so you can be heard.

Instructions to the Jury

PROCEEDINGS AFTER THE TRIAL

Enforcing Civil Judgments

Sentencing in Criminal Cases

Other Post-Trial Proceedings

Section D: Jury Trial

American Bar Association Criminal Justice Standards

PART I. THE RIGHT TO TRIAL BY JURY

PART II. JURY SELECTION

PART III. CONDUCT OF THE TRIAL

PART IV. JUDICIAL RELATIONS WITH JURY; JURY INSTRUCTIONS

PART V. JURY DELIBERATIONS; RETURN OF VERDICT

PART I. Trial by Jury

Standard 15-1.2. Waiver of trial by jury

Standard 15-1.3. Waiver of full jury or of unanimous verdict

Standard 15-1.4. Change of venue or continuance

PART II. JURY SELECTION

Standard 15-2.2. Juror questionnaires

Standard 15-2.3. Challenge to the array

Standard 15-2.4. Conduct of voir dire examination