Attorneys, Witnesses, and Rules of Court

AttorneysO A person admitted to practice law in

at least one jurisdiction and authorized to perform criminal and civil legal functions on behalf of clients.

Trial AttorneysO AKA Litigators - Specialize in court appearances.

O Most work takes place outside of the courtroom - research, interviewing witnesses, preparation.

O Civil litigators – act as client’s advocate (their legal voice) in civil trialsO Either for the plaintiff or the defendant

O Criminal litigators – defendant’s attorney has a duty to do everything ethically possible to secure the release and acquittal of their client.O Only for the defendant.O The Prosecutor works for the state/government

When Do You Need an Attorney?

O LitigatorsO Bringing Civil Suits O Defending Criminal Charges

O Lawyer/AttorneyO Family Status Change (Divorce, Adoption, etc)O Personal Injury AccidentO Property Damage AssessmentsO Creating a WillO Buying and Selling a HouseO Creating a Business

Finding an AttorneyO Flat fee or by the hour?

O Is a retainer required?O Retainer –a down payment on the total fee

O Will a contingency fee apply?O Contingency fee – the fee paid to the lawyer only if the case is

won ( usually about 1/3 of the amount awarded)O Contingency is usually used for tort cases involving personal

injury possibility for a lot of $$$ in damagesO The client pays nothing except court expenses if the case is lost.

Working with an AttorneyO Attorney-client privilege – the

discussions between the client and attorney are private and confidential O Facilitates trust through full disclosure with

attorney so they can do their best to represent the client

O Not applicable if the client reveals that they plan to hurt themselves or others

O Attorney gives legal advice – CLIENT makes final decision

Attorney EthicsO Code of Professional Responsibility -

standard of conduct for lawyers/attorneys enforced by the state bar association.O North Carolina State Bar - Rules

Attorney EthicsO If a lawyer violates standards of

conduct, he/she may be reprimanded, suspended, or disbarredO Disbarred – lawyer loses

license to practice law

O If a client feels that they have been misrepresented by their attorney, they can appeal the verdict/judgement and sue the attorney for damages due to legal malpractice.O Legal Malpractice – cases in

which clients sue their attorney for serious errors that resulted in injury or loss.

Attorneys in Criminal CasesProsecution

Defense

Prosecuting AttorneyO The District Attorney (DA) -  elected

public official who represents the state/government in the prosecution of all criminal mattersO has Assistant District Attorneys (ADAs) that

help.NC District Attorneys • 1 per state district• Elected to 4 year terms • Represents NC state in

District and Superior Courts

US District Attorneys • 1 per US district• Apply with DOJ for an

open position• Works for US Attorney

General• Works in Federal District

Courts

Prosecuting AttorneyO Decides…

O Whether to press charges O Which charges to file

O May decide if certain decisions will benefit a person or society from a certain course of action.

O A first time drug offender may be placed in a rehabilitation program instead of being prosecuted in the criminal justice program.

Defense Attorney O Represents the accused and convicted persons

in their dealings with the criminal justice system

O Makes sure the prosecution proves its case in court or has substantial evidence of guilt before a guilty plea is made

O Advises the defendant and protects their constitutional rights.

O Often gives psychological support to the defendant and his/her family.

Public DefendersO Full time government employee (public

sector)O A specialist in criminal law who provides

counsel to indigents - one without sufficient income to afford a lawyer for defense in a criminal case.

O Public defender system is used in the majority of counties in all 50 states.

Wake Co. (District 10) Public Defenders

NC Office of Indigent Defense Services

Public DefendersAdvantages Disadvantages

O Familiarity with judgesO Familiarity with police

officers – know which are good/bad witnesses

O Specialized in certain cases – DWI, domestic violence, drug crimes, etc

O Efficient at evaluating plea bargains

O Low-paidO Overloaded with casesO Little time for each

caseO Lack office equipment

and research accessO Can’t afford to hire

private investigatorsO All these factors could

disservice the defendant

Rules of Evidence in Court

Steps in a Basic Trial

Opening Statements by P then D

Direct Examination of Witnesses by P

Cross-Examination of Witnesses by D

Motions(Judge can dismiss

the case if the P has not established a

case)

Direct Examination of Witnesses by D

Cross-Examination by P

Closing Statements by P

then D

Rebuttal Argument

(P can make more closing statements that respond to D’s closing statement)

If applicable, Judge instructs Jury on the law that applies in this case, and their

task at hand

Verdict(Depending on case,

unanimous jury is required; hung jury

= mistrial)

Direct ExaminationO The primary questioning of a witness during a trial

that is conducted by the side for which that person is acting as a witness.

O No leading questions – a question that suggests or implies its own answer or can only be answered by yes or no.O You were at KC’s bar on the night of July 15, correct?O Were you at KC's bar on the night of July 15?

O Should ask more open-ended questions to build creditability of witness.O Where were you on the night of July 15?

Cross ExaminationO The interrogation of a witness by

the side opposed to the one who called the witness

O May ask leading questions to elicit testimony which the witness might be reluctant to volunteer in an effort to discredit the witness.

Common ObjectionsO A formal attestation or declaration of disapproval concerning a

specific point of law or procedure during the course of a trial

O Irrelevant/Relevance- the attorney’s question is not about the issues in the trial

O Hearsay – the witness does not know the answer personally but heard it from another

O Calls for a conclusion/Opinion - the question asks for an opinion rather than facts

O Leading– during direct examination, the attorney’s question suggests a witness’s answer

O Law and Order Courtroom SceneO Write down 1 non-leading question and who is asking to whom.O Write down 1 leading question and who is asking it to whom.

Witnesses

The “Expert” WitnessO A witness, who by virtue of

education, training, skill, or experience, is believed to have expertise and specialized knowledge in a particular field/subject.O Medical doctorO Medical examinerO Forensic specialistO Psychologist

The “Expert” WitnessO Can be hired by the defense or the

prosecution.O Experts such as medical examiners

typically work for the state and will therefore testify only on behalf of the prosecution.

The “Expert” WitnessO Expert witnesses provide their “expert

opinions,” which are considered more credible than the average witness’s testimony.O Expert opinions are based in education,

training, skill, and experience in the field.

O Expert witnesses can be influential if they can provide their testimony in language that is understandable by the average person/juror.O Don’t use expert “jargon”

PerjuryO the willful act of

swearing a false oath or of falsifying an affirmation to tell the truth, whether oral or written.O lying under oathO FELONY!

Perjury - ExampleO 1998 – Bill Clinton was charged with

perjury before a grand jury during his impeachment proceedingO lying about sexual relations with Monica

LewinskiO Impeachment proceedings are conducted

like a trial, with a Supreme Court Justice presiding as judge. The Prosecution and Defense present arguments.

O The House voted to impeach Clinton, however the Senate must follow through with the conviction.

O The Senate voted to acquit Clinton of all charges (including perjury) and to not approve the impeachment.

Perjury – ExampleO 2001 - rapper Lil' Kim witnessed a gunfight

outside New York radio station over 2 dozen shots fired

O When a federal grand jury called Lil' Kim to testify, she claimed not to have noticed her manager and another member of her entourage at the scene.

O Security camera footage that showed one of the men in question actually holding a door open for Kim.

O 2005 - convicted of 3 counts of perjury and 1 of conspiracy in connection to her fabricated testimony.

O Sentenced to 1year and a day in prison and a $5,000 fine.

O Served 10 months of the sentence at the Federal Detention Center in Philadelphia before being released.

Tips for Being a “Good” WitnessO Tell the TRUTH

O Think before you speakO Just talk about the facts, unless specifically asked for an opinionO If you don’t remember, then say “I don’t remember”O If you don’t know, than say “I don’t know” O Do not volunteer informationO Answer in complete sentencesO When talking about conversation…Be certain that everyone

understands when you are paraphrasing or when you are quoting.

O Never argue or express anger.O Avoid humor and sarcasm – interpreted differently by different

people.O Stop speaking if you hear “objection!”O There is no such thing as “off the record.”

Problems with WitnessesO Traumatic events and strong emotions can

impair memory.O Time can distort memory.O The phrasing of questions in interrogations can

falsely reconstruct memories.O Cross-racial identification is generally unreliable.

O What to look for as a witnessO The Problem with Eyewitnesses