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CWAG February 2010

The U.S. Legal System & Courtroom Testimony. CWAG February 2010. Mexico’s Legal System In Transition. 2007/2008 constitutional amendments 2008 – new federal Criminal Procedure Code Proderecho

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CWAG February 2010

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  1. The U.S. Legal System & Courtroom Testimony CWAG February 2010

  2. Mexico’s Legal System In Transition • 2007/2008 constitutional amendments • 2008 – new federal Criminal Procedure Code • Proderecho • Oral trials already in Chihuahua, Oaxaca • Soon in Morelos, Baja California, Zacatecas • Also changes in Nuevo Leon, Estado de Mexico • Eventually all

  3. Existing Mexican Criminal Procedure • Preliminary inquiry (Averiguacion previa) • Investigation by Public Prosecutor & police • Presumption of truth / established fact • Written findings to judge to evaluate whether sufficient evidence • Consideration of defense evidence • 72 hour limit if suspect in custody

  4. Existing Mexican Criminal Procedure Preliminary hearing Judge determines whether corpus delecti Order to initiate criminal process Instruction Evidence considered Mostly written reports & statements Parties file “conclusions”

  5. Existing Mexican Criminal Procedure Trial (Juicio) Arguments, may be oral, but no judge present Little meaning Findings already made Sentencing

  6. Reforms in BC, Chihuahua, Morelos, Oaxaca, Zacatecas Three stages: Preliminary, Intermediate, Trial Trial stage Before judge(s) with no knowledge of case Look at evidence piece-by-piece without prosecutor’s dossier All evidence is be considered, tested Public access, cross-examination, all one concentrated and continuous proceeding

  7. Major Theme

  8. U.S. Legal System: General Structure / Overview Context for later discussion of trial process

  9. The Crime / Investigation City, county, or federal police agencies handle the investigation Prosecutors generally not involved Except for interfacing with courts (probable cause determination) on search warrants Arrests made upon probable cause

  10. Only Reasonable Searches & Seizures “The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated, and no Warrants shall issue, but upon probable cause, supported by Oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized.” Fourth Amendment, U.S. Constitution

  11. Forensic Testing Many police departments do crime scene processing, latent print examinations Some cities have own labs for other testing (e.g., DNA, trace, ballistics, toxicology) Some counties have own labs State labs (regional) FBI / DEA labs

  12. DNA Issues Where DNA profile of perpetrator, but no suspect, use of CODIS Statutes of limitation “Doe” Warrants Database match as probable cause for arrest warrant / search warrant New reference sample

  13. The Arrest Probable cause Booking Mug shots Fingerprints DNA (felonies) Other identification In custody Bail Release

  14. Filing Charges When police have concluded investigation, submit reports to county, state, or federal prosecutor Prosecutor can reject, refer back for additional investigation, or file charges May be different charges than recommended by police agency Charging document = “complaint”

  15. What Court? U.S. Supreme Court U.S. Courts of Appeals State Supreme Courts State Appellate Courts U.S. District Courts State Trial Courts

  16. Trial Court Appellate Court State Supreme Court

  17. Arraignment In California, within 48 hours days if defendant in custody Before judge in public courtroom Charges read Plea entered Defendant represented by lawyer Right to counsel whether can pay or not

  18. Discovery Prosecution provides, typically: Names & addresses of witnesses Defendants’ statement(s) All relevant evidence collected in investigation Felony convictions of prosecution witnesses Written or recorded witness statements, including scientific reports Any exculpatory evidence

  19. Prosecution’s Duty to Give Material, Exculpatory Evidence In Their Possession to Defense Ongoing duty – only prosecution Defendant does not have to ask Includes all information favorable to defendant on guilt or punishment Including information possessed by crime lab & police Including material that could be used to impeach witnesses Violation = conviction reversed

  20. Destruction of Evidence Violation of law for prosecution (including lab) to destroy evidence that had apparent exculpatory value Bad faith required Not just sample consumed during testing

  21. Plea Bargains Prosecution and defense counsel negotiate a plea arrangement 85-95% of cases Typically, defendant pleads guilty to a lesser offense with a reduction in sentence

  22. Preliminary Hearing In California, within 10 days of preliminary hearing if defendant in custody Before judge in public courtroom Defendant represented by lawyer Prosecutor must provide sufficient evidence of crime and identity Defendant can cross-examine, present evidence Court reporter, transcript The Information

  23. Right to A Speedy Trial In California, within 60 days of filing of information Unless defendant consents to delay

  24. Sixth Amendment “In all criminal prosecutions, the accused shall enjoy the right to a speedy and public trial, by an impartial jury of the State and district where in the crime shall have been committed, which district shall have been previously ascertained by law, and to be informed of the nature and cause of the accusation; to be confronted with the witnesses against him; to have compulsory process for obtaining witnesses in his favor, and to have the Assistance of Counsel for his defence.”

  25. The Courtroom

  26. Trial By jury or by judge Proof beyond a reasonable doubt Jury must be unanimous to convict

  27. Jury Selection Jury panel: citizens summoned for jury duty Questionnaires Voir dire by judge and attorneys Dismissed for cause or with peremptory challenges Panel of 12 + alternates

  28. Prosecutor’s opening statement to the jury Defense attorney’s opening statement to the jury Prosecutor’s presentation of evidence and direct examination Steps in a Jury Trial

  29. Defense attorney’s cross- examination Defense attorney’s presentation of evidence and direct examination Prosecutor’s cross-examination Steps in a Jury Trial

  30. Closing Arguments to the jury Judge’s instructions to the jury on the rule of law, evidence and standards of proof Steps in a Jury Trial

  31. Jury deliberation and voting Verdict Steps in a Jury Trial Sentencing by court

  32. The Verdict • Guilty • Judge will normally set a date for sentencing and ask for a presentence investigation report • Not guilty • Defendant is free to leave • Hung jury • Case may be retried

  33. Sentencing Judge decides sentence, unless death penalty case Guilt phase, penalty phase Often statues define “range” for sentence Mandatory sentencing laws “Aggravating” and “mitigating” factors

  34. Admissibility of Evidence • Relevancy • Probative value • Prejudicial impact • Judicial efficiency • Confusion • Reliability • Legally obtained

  35. Scientific Evidence - Admissibility • Daubert v. Merrill Dow (1993) • Must demonstrate validity of scientific theory / method • Factors: • Theory subjected to empirical testing • Peer review / publication • Known / potential error rate • Standards and controls • General acceptance in scientific community

  36. Testifying

  37. First, Meet With Prosecutor • Understand what will be asked • Educate DDA – science / results here • Review reports • Make sure prosecutor understands what questions he/she needs to ask you • - Suggest questions • Ask prosecutor what to expect from judge & defense attorney

  38. Before Going To Court • Collect & review materials - Reports, bench notes, discovery - Technical reference material - Lab policies & procedures / QC guidelines • Any updates to materials previously provided? • Review prior testimony in this or similar cases • E.g., preliminary hearing testimony • Make charts / exhibits?

  39. DNA Results Exhibit

  40. Expert Witness • Impartial – not an advocate • Jury must see expert as: - Knowledgeable - Honest - Impartial - Humble - Sincere • Opinion testimony - Be confident with opinion – don’t waffle • Non-opinion expert testimony - E.g., explaining scientific processes

  41. The Law of Expert Witnesses • An expert is someone who . . . “has special knowledge, skill, experience, training, or education sufficient to qualify him as an expert on the subject to which his testimony relates.” • Broad definition, but can be the subject of intense litigation • The formula: • Credentials • Opinion • Basis for opinion

  42. Qualifying An Expert Witness • Know your CV, and keep up-to-date • Lawyer will identify and introduce CV as evidence • Education • Day-to-day duties • Work experience - Years on job(s) - Promotions / progression - Supervisory responsibility • Professional awards / recognition • Membership in professional associations • Publication / teaching • Prior expert testimony • Number times • What courts

  43. CourtroomProtocol • Demeanor - Polite and professional – ALWAYS - Simple, direct answers - Confidence, not arrogance - Be human, be yourself - Speak in lay terms whenever possible - Look at the jury – make a connection with them - If you make a mistake, correct in voluntarily as soon as possible • Why? Here’s why . . . .

  44. Speak Clearly

  45. Courtroom Protocol • Do not volunteer information – answer only, literally, the question asked • “You didn’t bother to fingerprint the steering wheel, did you?” • Objections • Stop speaking – let judge handle it • “Overruled” – keep going • “Sustained” – stop and wait for next question • Refreshing memory

  46. Courtroom Protocol Direct vs. Cross Examination • Always answer truthfully & honestly • Answer only literal question • Do not volunteer information on cross • If you don’t know, say so • “May I explain?” “May I expand on that last answer?” • You provide information – you do not control how it is used • You don’t know all the facts or legal strategies

  47. Courtroom Protocol • Be aware of potential privileges or areas you cannot address • The ultimate obligation of every government witness is to the truth • Once you lose credibility, it is lost for good • Transcripts • Criticism by appellate courts

  48. Direct Examination • Often effective to start with presentation on the ultimate issue / bottom line conclusion • Walk through the steps you took in forming that opinion • Know all the facts • Qualifications– did work – formed opinion – state opinion – basis for opinion

  49. Direct Examination • An expert witness may base an opinion on • Skill, training, experience, education • What he perceived • Whether or not admissible • If it’s the kind of information experts reasonably rely on

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