| Chapter
8
Covering
Criminal Courts
By Maurice
Possley
The Evidence
The presentation of evidence—both direct and circumstantial—is what
determines the outcome of the case (absent a runaway jury). It begins with the
prosecution presenting its case-in-chief, followed by the defense evidence, if
any is presented. If the defense chooses to put on evidence, the prosecution
may present a rebuttal case that is limited to addressing only the defense evidence.
In rare occasions, a defense lawyer will proffer a surrebuttal case—evidence
that is limited to addressing the prosecution’s rebuttal evidence.
This back and forth format is followed in the questioning of witnesses.
The prosecution presents its evidence first because it is the charging
body and has the duty to prove its case. A defendant is under no
burden to present a defense and jurors are instructed that they
are not to take into account in any way a defendant’s decision
not to present evidence or to testify.
Evidence comes into court in two forms—direct and circumstantial.
Direct evidence includes eyewitness testimony and physical evidence,
such as a weapon, crime laboratory test results, or a confession
by the defendant. Circumstantial evidence is indirect proof or
proof by logical inference. Attorneys often explain the concept
to jurors by asking them to imagine looking out of their window
at home and seeing a bare front yard and waking up the following
morning to see it covered with snow. They have not seen the snow
actually fall, but circumstantially they can infer that during
the night, snow did fall. (A good recent example is the Scott Peterson
case in California. There was no direct evidence that he dumped
his wife’s body in the San Francisco Bay, but the jurors
assumed he did because her body was found less than two miles from
the spot where he was fishing in the Bay, which is 90 miles from
his home.)
Cross-Examination
Witnesses are first subjected to direct questioning—whether by prosecution
or defense lawyers. They are then cross-examined. Generally, the cross-examination
is limited to the testimony given on direct examination, but this rule is interpreted
very broadly most of the time. During the cross-examination, an attorney will
attempt to undermine or shake the accuracy of the testimony or perhaps take
a different approach designed to impeach the credibility of the witness and
attempt to show the witness is not reliable. In the prosecution of O.J. Simpson,
for example, defense lawyers, as a way of suggesting that Simpson was framed,
attempted to portray detective Mark Furman as a Nazi-sympathizing rogue cop
who was enraged by interracial couples. After the cross-examination, the initial
questioner is allowed to conduct a re-direct examination that is limited to
the ground covered by cross-examination. This may be followed by re-cross-examination.
This back and forth goes beyond this stage only infrequently and continues
to winnow until there may be a comical moment when a prosecutor and defense
lawyer are both standing and asking single questions of a witness one right
after the other until a judge intervenes.
There may be a temptation to pay little attention to cross-examination
of witnesses because it often is laborious and does not lend itself
to interesting quotes from the witness stand. A good cross-examiner
controls the witness and asks questions designed to elicit specific
answers, typically yes or no. But if a defendant does not intend
to put on any evidence, this is where the defense makes its case
and a reporter must pay attention because the case will ultimately
rise or fall during this portion of the trial.
After the prosecution completes the presentation of its evidence, the defense
may present a motion for a directed verdict of acquittal—a request that
the judge make a finding that the prosecution evidence is so lacking that a
defendant need not present a defense. This motion is granted only rarely because
the judge is required by law to consider the prosecution’s evidence in
the light most favorable to the prosecution—that is, if viewed as true,
is the evidence sufficient that a fact-finder, whether a judge or jury, can
reach a verdict of guilty beyond a reasonable doubt. If such a motion is granted,
a defendant is acquitted and cannot be retried for the charge again. In 1995,
in Wheaton, Il., a judge acquitted Rolando Cruz of murder charges at the end
of the prosecution’s case. It was Cruz’s third trial—the
first two ended in conviction and a sentence of death, but both were set aside
and new trials ordered. In a moment of great drama, a police lieutenant admitted
that in previous testimony he had lied, though perhaps unintentionally, about
a statement Cruz allegedly made in which he described a dream about the murder
and gave details that allegedly only the killer would. The admission suggested
to the judge that two of the lieutenant’s colleagues--the detectives
who said Cruz gave the dream statement--had lied as well.
If that motion is denied, the defense portion of the case begins.
There is no requirement under the law that a defense case be presented.
Closing Arguments
At the conclusion of the evidence, prosecutors and defense attorneys give closing
arguments or final summations. As opening statements are given to provide
a preview of the evidence, closing arguments are given to present the prosecution
and defense views of just what the evidence turned out to be and how it should
be interpreted. Because the prosecution has the burden of proof, it is given
the opportunity to give two arguments—before and after the defense
closing argument. The final argument is called the rebuttal argument and
must be confined to whatever was covered by the defense closing argument.
After the final arguments are completed in a jury trial, jurors
are instructed on the law. Reporters may be tempted to leave the
courtroom during this process because it is often dry and repetitive.
The courtrooms are often locked during this process because it
is considered so vital that judges do not want jurors to be distracted
by the comings and goings of spectators. Oftentimes, these instructions—which
have been hammered out by the defense and prosecution under the
supervision of the trial judge—may provide a window into
a potential verdict. For instance, the instructions may be such
that a jury could find a defendant guilty of a lesser charge. Or
the instructions may reveal that a defendant has chosen to refuse
an instruction on a lesser charge, a strategic move suggesting
that the defense is gambling on an all-or-nothing approach to the
evidence. Reporters may request a copy of the jury instructions.
If the case has been heard as a bench trial, the judge will usually
render a verdict almost immediately or following a recess. On occasion,
a judge may set a date for a decision, but typically only if the
defendant is free on bond.
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