the presentation of evidence occurs at the trial court level

•   Home

Welcome to the   Yale Law School Legal Scholarship Repository. This repository provides open, global access to the scholarship of Yale Law School faculty and jornals, as well as a selection of unique collections. 

Communities in Yale Law School Open Scholarship Repository

Select a community to browse its collections.

Recently Added

Local Legislatures and Delegation

THE DUTY OF CLIMATE CARE

The Constitutionality of Medicare Drug-Price Negotiation under the Takings Clause

The Synergy of Legal and Medical Palliative Care: Challenges and Opportunities in Palliative MLP and the Yale Experience

Targeting Health-Related Social Risks in the Clinical Setting: New Policy Momentum and Practice Considerations

Export search results.

The export option will allow you to export the current search results of the entered query to a file. Different formats are available for download. To export the items, click on the button corresponding with the preferred download format.

By default, clicking on the export buttons will result in a download of the allowed maximum amount of items.

To select a subset of the search results, click "Selective Export" button and make a selection of the items you want to export. The amount of items that can be exported at once is similarly restricted as the full export.

After making a selection, click one of the export format buttons. The amount of items that will be exported is indicated in the bubble next to export format.

Evidence presentation at trial — know when and how to wow ‘em

The perks and pitfalls of using too much or too little technology at trial, with a do-it-yourself guide.

You’ve made it to trial and you are (hopefully) excited about your case. You want to find the most effective way to communicate with the jury: to show them how your plaintiff has suffered and why the defendant is responsible. You can’t wait to present your client’s story to the jury, and are thinking about the best ways to do so. In making these crucial decisions, it is imperative to consider how using (or not using) the vast array of technology available to trial lawyers plays a role in molding your case for success or failure.

Jurors’ expectations: Know your audience

It is 2014 – many California jurors will hope for more than just hearing your voice drone on for days, maybe weeks, in presenting your client’s case. Jurors are not living under a rock – they know technology is available, and many want to see you utilize it.

When deciding how high to pump up the technology volume, do not underestimate the importance of jury composition, venue, and how the use of technology will reflect on you and your client. For example, if you are trying a case in a rural area where there are mainly dirt roads, only a few stoplights, and/or your jury is composed of mainly senior citizens – it may be appropriate to scale down the use of iPads, tablets and other fancy electronics. Along the same lines it may also be a great idea to temporarily remove your Rolex watch, $2,500 Armani suit, and/or large diamond ring. As plaintiffs’ attorneys, we must be mindful of appearing too “rich” to the jury (whether or not we actually are rich) because this can negatively impact the probability of them awarding a large verdict to our client. We want to appear successful, competent and confident, but not braggadocious or flossy with respect to our wealth.

This can also play into our use of technology at trial. If the defense attorney is alone with just a yellow legal pad and a few pens, and the plaintiff’s side has three attorneys, a jury consultant, and a “technology assistant”− all armed with tablets, laptops, mobile printers, scanners, and other gadgets – it might not seem like an even match, wherein certain jurors could be inclined to sympathize with the defendant in a tacit exercise of “rooting for the underdog.”

On the other hand, if you are trying a multi-million-dollar quadriplegia case in downtown Los Angeles with a jury that is more youthful and you are facing a team of defense attorneys, it may be a perfect opportunity to pull out all the stops where the use of technology is concerned.

Correlate technology with caliber of the case

Speaking of multi-million-dollar quadriplegia cases, it should be noted that there is a difference between these and a $25,000 minor-impact automobile collision case with soft tissue injuries (also known as MIST cases). It should go without saying that the amount of technology, expense, and “glitter” you throw onto your case should be commensurate with the probability of return on that investment. The potential recovery of courtroom technology costs is discussed later, herein. However, for the sake of the current discussion, the assumption is that the costs you are spending on technology use for evidence presentation will not be recoverable.

In 2008, I had the unique and awesome experience of being able to serve on a jury trial downtown as a practicing plaintiff’s attorney. When we finally got into the jury deliberation room, it was like looking behind the curtain and

discovering the Wizard of Oz. It was amazing what the jurors didn’t “get” even after the attorneys verbally repeated it over and over and over. In this particular trial (an employment case involving the City of Los Angeles), the attorneys on either side did not use any technology whatsoever to present their evidence. Not so much as putting a Special Verdict Form or Jury Instruction on an ELMO during closing arguments and walking the jury through it. The trial consisted of abundant and pure oral testimony over a period of ten days. In speaking to my fellow jurors, they were bored, lost, and really needed something to break up the monotony during the trial. Not one of them really understood the key jury instructions that were discussed in Plaintiff’s counsel’s closing argument. They thought a critical issue in the case was something totally different than it really was.

Since certain individuals are scientifically proven to be visual learners, sometimes seeing the text of a key jury instruction in writing (displayed on an ELMO or in a PowerPoint presentation) simultaneously as the lawyer is discussing it and how it applies to the case can make a huge difference. Studies have shown that individuals retain approximately 50 percent more information if the information is presented in both a visual and auditory manner. (http://www.cisco.com/web/strategy/docs/education/Multimodal-Learning-Through-Media.pdf).

What do you need to bring?

Every courtroom is equipped with different technology that is available for use. Most of the newer courthouses have free Wi-Fi connections throughout. You will want to check with your particular courtroom to see if they have the following available for use during your trial:

• ELMO• Projector

• Screen (consider best placement so that jury and judge can see)

• Wi-Fi connection

• HDMI, USB and other needed cables

You will need to provide your own:

• Laptop/tablet• Laser pointer• Remote control to control PowerPoint slides

• Computer programs such as: PowerPoint, Sanction, iJuror, etc.

• Power cords/extension cords

• Transparencies/print-outs

Getting evidence approved by the court

Admissibility of evidence is usually accomplished by stipulation between counsel and/or laying an adequate foundation to admit the evidence.

You should check with the Court regarding any local (or departmental) rules regarding pre-approval for the use of technology. Some departments may require the stipulation of counsel or the giving of adequate notice of your intention to use the Court’s technology equipment.

Making friends with courtroom staff

You’ve probably heard it before – but when engaged in trial, you should be a model citizen within at least a five-mile radius of the courthouse. The list of who you should be particularly kind to includes the security guard who checks you in each morning at the metal detector (be early and wait your turn in line – don’t cut to the front); the parking lot attendant; the bailiff, the courtroom clerk, the courtroom attendant; the guy in the snack bar who sells you your morning cup of coffee; and the people you share an elevator with on the way to and from your department. Why? The main reason is that the jury is always watching. Even when you don’t think they are watching – they are watching. They are looking for something that humanizes you – something to make you more believable (or less). But an underlying reason for the purposes of this topic is that these people could end up playing a key role in determining whether your use of technology to present the evidence in your client’s case will be a major perk or major pitfall.

So how does this topic translate to using technology for the presentation of evidence at trial, you ask? Very directly. Assuming you’ve followed the recommendation to establish a good relationship with the courtroom staff by simply saying good morning daily with a smile on your face, following the rules they have set for the department, speaking to them with respect, and possibly even engaging in a few jokes, the following will magically occur:

• When you need someone to turn the lights on and off for your PowerPoint presentation, the clerk or bailiff will automatically do it without missing a beat;• When you need to stay five minutes after court is dismissed to check a wire or make sure the connection from your laptop to the projector is working – it will be no problem;• When you need to come to the department a few minutes before lunch hour ends to set up the projector for the presentation of your closing argument, the door will be open for you;• When you need something to prop up the projector so it hits the screen properly, you will receive help with this;• When the ELMO in your department is broken, the clerk will check with the neighboring departments about borrowing theirs for a few hours;• When you’re in the middle of testing out your equipment, the courtroom attendant will hold the jury outside as necessary and check with you to see if you are ready.

Technology in voir dire

Although they are instructed not to…it is inevitable that one or more prospective jurors (or ultimate jurors) may use the Internet to search for your client (or you!) on Facebook, Twitter, LinkedIn or any of the other numerous social networking sites. The offending juror who does so, may never admit to it and may never discuss his or her findings with the other members or the jury. But what he or she discovered about your client jet skiing last weekend when he says he can barely walk due to chronic pain will be engraved into that juror’s brain. It has been held unethical for an attorney to tell his/her client to remove an “incriminating” picture or comment off of a social media site. However, it’s not unethical to tell them from the very beginning not to post these things in the first place. If they are agreeable, it’s probably best to advise a client in the beginning of a major injury case to suspend his or her Facebook, Twitter, Instagram etc. until the conclusion of the case.

Jury selection is a trial attorney’s first and perhaps best opportunity to connect with the jury. It is the only time during the span of the trial that you will be able to ask a juror a question and receive a verbal response. You do not want to waste these precious moments being so fixated on fiddling with your technological devices that you don’t engage each juror and look in his or her eyes.

With that being said, jury selection programs such as iJuror (available for $9.99 on iTunes), JuryTracker and Jury Duty can be extremely helpful tools if you are using a jury consultant or another lawyer/member of your office staff to help you select the jury – the opportunities for utilizing technology expand tremendously. The reason being is you can have the person assisting you control all of the technology so you can just jot down a few key notes while focusing most of your attention on engaging the jurors, reading their body language and connecting with them as much as possible. iJuror is focused more on the jury selection process, while JuryTracker is designed for use during the trial.

There are several programs (including those mentioned above) that can be used for jury selection that replace the traditional and trusty “post-it” method we are all so familiar with. Some of the best programs can be loaded right onto your iPad/tablet and you can walk around the courtroom while using the device vs. being confined to your seat or the podium (Note: your tablet and these programs will likely require an active Wi-Fi internet connection in order to function properly – most of the courthouses, including Stanley Mosk, have Wi-Fi connections that are decently reliably, but please check ahead to ensure the courthouse you will be trying your case in has the technology that you will need available. If the Wi-Fi in your courtroom is not reliable, you should consider purchasing an alternative means of Internet access).

On the flip side, you can also use Facebook, Instagram, Pinterest, etc. to research your potential jurors. Again, if someone is assisting you during jury selection, he or she should take the opportunity to pull up prospective jurors’ Facebook and Twitter accounts (to the extent the information is public) and see what can be learned about the person. Prospective jurors may be hesitant to disclose details that are responsive to your questions and very important. It goes without saying, but you should ensure that the person who is searching social media sites regarding prospective jurors be physically positioned in such a way that no potential jurors (or anyone really) can see what is being pulled up on their laptop/tablet screens.

Technology in opening statements & closing arguments

Using a PowerPoint presentation during your Opening Statement and Closing Argument may be one of the best ways to stay organized and ensure you cover all of your key points. The average adult’s attention span is only about 15 minutes – so you can enhance and maximize that time period by spicing up your presentation with the use of different technology mediums.

It’s often a good idea to have a slide or two with your key points that you can leave up for the jury to consider long after the spoken words have left your mouth. Jurors are also more likely to write down and thus remember something that is displayed for them in a clear, concise manner − and also verbally stressed and repeated.

Using technology for impeachment

What could be more powerful in impeaching a witness than asking him or her a question on the stand and then immediately playing back a videotape of his deposition wherein he testified otherwise? Not much. This could be as close to a “Perry Mason” moment as you’re probably going to get.

In order to do this, clearly you must have videotaped the deposition. Then you can utilize software, such as Sanction, for videotaped deposition synchronizing. This process, if successfully executed, can be most impressive to a jury.

If you are presenting deposition testimony by video, judges will often want objections handled in advance. You should talk to your judge at the Final Status Conference (or before) to find out the Court’s rules regarding use of videotaped depositions at trial.

Reverting to Plan B

Even the most sophisticated and foolproof technology presentation can fail. Frankly, while you are clearly hoping it will not fail, you should expect it to do just that and have a Plan B on deck to which you can seamlessly transition.

If you were planning to show the jury a PowerPoint presentation in connection with your closing argument, but cannot do so because your laptop inexplicably refuses to turn on…here are a few tips that can help you transition to Plan B.

• Have a color printout of each slide of your PowerPoint presentation on hand – that way you can use the slides to refresh your memory if there is no way to publish them to the jury;• If possible, you can publish the color slide printouts to the jury by putting them on the ELMO and then continue discussing them just as you would have during your originally planned PowerPoint presentation.

Is the price of courtroom technology recoverable?

The cost of using technology at trial can be high. Sometimes even as high as your key expert witness. Expert witness fees, under the correct circumstances, are recoverable on the prevailing party’s cost bill. But what about the cost of technology used at trial to present evidence?

Traditionally, such costs have not been recoverable. However, in the recent excessive-force case Bender v. County of Los Angeles (2013) 217 Cal.App.4th 968, the plaintiff’s trial technology costs were deemed fully recoverable. In the trial court, the jury awarded the plaintiff a six-figure verdict. The court then awarded $989,258 in attorney fees, and refused to tax costs of $26,953.72 for expert witness fees and $24,103.75 for courtroom technology. Defendants filed an appeal. The Court of Appeal affirmed the lower court’s ruling and plaintiff was allowed to recover $24,103.75 for his use of courtroom technology to present evidence at trial. Plaintiff was even able to recover the cost of his “trial technician” for nine days of trial. If the costs are wholly recoverable, this is clearly a huge perk to using technology to present your evidence.

The Bender opinion explains what these costs consisted of, and shows how the plaintiff used technology at trial: “These costs consisted of ‘Trial Video Computer, PowerPoint Presentation and Videotaped Deposition Synchronizing and the cost of a trial technician for nine days of trial.’ Plaintiff used a PowerPoint presentation in closing argument that consisted of a detailed summary of trial testimony, documents and other evidence as well as a ‘comprehensive evaluation of such evidence vis a vis jury instructions.’ The costs included charges for creating designated excerpts from deposition transcripts and video, converting exhibits to computer formats (TIFF’s & JPEG’s), and design and production of electronic presentations.” (Id., 217 Cal.App.4th at p. 990.)

The test established in Bender concerning whether trial-technology costs were recoverable is this:

(1) Did the use of courtroom technology enhance counsel’s advocacy?

(2) Was the use of courtroom technology reasonably necessary to the conduct of the litigation?

If you can answer yes to both questions, there is a strong possibility that you may be able to recover courtroom technology costs on your cost bill. If that’s the case, all the more reason to use it to increase your effectiveness in reaching the jury.

Britany M. Engelman

Britany M. Engelman is the owner of Engelman Law, APC – a boutique law firm in Beverly Hills, CA, specializing in personal injury and employment law. She received her undergraduate degree from USC and her law degree from Southwestern Law School. Ms. Engelman is in her ninth year of practice and has been an integral part of several jury trials. She lives in Los Angeles, CA with her fiancé Jamon Hicks (civil and criminal defense litigator) and their son Jayden, age 3. Ms. Engelman enjoys sports, fine dining, rollerblading and practicing law.

Copyright © 2024 by the author. For reprint permission, contact the publisher: Advocate Magazine

• Featured Articles
• Recent Issues
• Advertising
• Contributors Writer's Guidelines
• Search Advanced Search

What is a Trial Presentation? Everything You Need to Know

by Carolina Barbalace | Jul 31, 2023 | Present in Court | 0 comments

Attorneys go to court ready with a trial presentation. So should you. 

You may be asking yourself, what is a trial presentation?

A trial presentation is a visual and legal aid designed to present your evidence, argument, and legal analysis in a way that is easy for the judge to follow and understand. 

Why is it important to use a Trial Presentation?

Make your case stronger: .

You want to be as persuasive as possible when you’re in court. A trial presentation helps you present your evidence in a way that’s easy for the judge to understand and see the strength of your case.

Preparing a Trial Presentation not only helps you present your evidence effectively but also assists you in organizing your thoughts and arguments. With a well-structured outline and identified key points, you can ensure that you cover all the important information in a logical and easy-to-follow way.

Show the Judge You’re Credible:  

When you’re in court, it’s important to come across as credible and prepared. With a trial presentation, you can showcase your evidence professionally and organized. The judge will see that you’ve made the effort to build a strong case and deserve their serious attention. It also demonstrates that you value the judge’s time and are conscientious.

Also, a trial presentation can make the judge more engaged and focused. By using visual aids, such as graphs, charts, and photographs, you can capture the judge’s attention and help them to better understand your argument. These visuals bring your case to life and make it easier for the judge to follow along.

What should be included in a Trial Presentation?

Opening statement:.

The beginning of your trial presentation is crucial. It all starts with an opening statement that sets the stage for your case. This statement introduces the judge to the important facts, aligning them with the specific legal elements involved. It’s your chance to clearly state what you seek from the judge.

When crafting your opening statement, remember that it shapes the impression of your entire case. You want to convey confidence, organization, and preparedness. Keep it concise, focusing on the key facts that support your argument. Avoid overwhelming the judge with unnecessary details.

Include a chronological timeline of the events and evidence in your case. This timeline is a valuable asset that helps the judge follow the events leading up to your case. By visually organizing your evidence on a timeline, you can demonstrate when crucial facts occurred and how they connect. Doing this gives the judge a deeper understanding of your case’s context and empowers them to make an informed decision.

To make the most of your timeline, ensure that each piece of evidence on the timeline is assigned a page number corresponding to its location in your trial presentation. This way, the judge can easily navigate to the relevant evidence, facilitating a smooth and efficient review of your case.

Damages Table:

A damages table is a vital component that showcases all the damages you claim in a neat and structured format, complete with accurate calculations. This table plays a crucial role when presenting your case to the judge, allowing you to show the exact amount of money you deserve

Think of the damages table as a handy list that outlines the money you seek. By having a damaged table, you can ensure that you cover all the different types of money you need to ask for, leaving no important details behind. This organized approach presents a compelling case and helps the judge understand your arguments easily, making a favorable decision more likely.

Finally, include copies of all the evidence supporting your case in your trial presentation. From documents and text messages to emails, photographs, and videos, leave no stone unturned in presenting the full picture.

Also, ensure that each piece of evidence is clearly labeled. Moreover, organize your evidence logically and chronologically so the judge can easily navigate each piece.  

In conclusion, a trial presentation can help strengthen your case and be more persuasive. It allows you to organize your thoughts, gain the judge’s trust, and keep everyone engaged in the courtroom. By following the steps and including these important sections in your presentation, you can clearly present your case and increase your chances of winning. Take advantage of this opportunity to confidently share your side of the story, leave a lasting impression, and achieve a favorable outcome in your legal journey.

Learn more about different legal topics

4 Legal Elements of a Breach of Contract Case

Common Law Terms

How to Write a Demand Letter in 10 Steps

Security Deposit Facts You Should Know

Find the Legal Name of a Defendant

Need help with your justice journey.

The quest for justice is never easy, particularly when it comes to getting your money back. However, thanks to advances in technology, it has become easier. Quest for Justice’s first app, JusticeDirect , is the only app of its kind designed to support people without lawyers to resolve their disputes and get their money back, both in and out of court. The first step to getting money back is through a letter demanding payment from the other party JusticeDirect offers customizable demand letters for free. If the letter demanding payment does not work, then the next step is taking them to court. JusticeDirect * will guide users every step of the way through the small claims court process by helping them:

• Understand the legal process;
• Evaluate the pros and cons that come with taking someone to court;
• Generate small claims court forms; and,
• Avoid common mistakes when filing your forms and serving notice on the other side.

Check out some of our videos

Discover more from JusticeDirect

Subscribe now to keep reading and get access to the full archive.

Type your email…

Continue reading

• Location, Hours & Parking
• Transportation Grants

• Our Mission
• Board and Officers
• Teacher Advisory Council
• The Courthouse
• The Federal Courts
• Photo Gallery Tour
• Schedule a Tour
• Student Art Competition 2024
• The Supreme Court and My Hometown
• Citizenship in the Nation for Scouts
• Girl Scout Day at the Courthouse
• Tinker v. Des Moines Exhibit
• Program Photos
• Bill of Rights Day 2023 Contest
• Constitution Day, September 17
• Summer Teacher Institute
• Democracy Badge for Girl Scouts
• Inside Government Badge for Girl Scouts
• Judicial Learning Center Tenth Anniversary
• Stories of the First Amendment Teacher Event
• Alexander Hamilton Exhibit
• Homeschool Educator Institute
• Law Day 2014 Lecture: Freedom Summer
• Freedom Summer Traveling Exhibition
• Student Center Landing Page
• The Role of the Federal Courts
• Organization of the Federal Courts
• How Courts Work
• Landmark Cases
• Educator Center Main Page
• Online Learning Resources
• Comparing State and Federal Courts
• Law Day Lessons and Activities
• Getting Ready For Trial

Most of the progress of a federal case happens in what is called the pretrial phase, and will include actions that must occur before the start of the trial.  Strict rules and policies dictate what happens at the pretrial stage of both types of cases.  This is to be sure both sides are treated fairly and are afforded their rights equally.   At the federal level, all filings, including briefs , are made electronically online.  All hearings and trials happen in a courtroom that is open to the public, except in rare cases such as when a juvenile is involved.

• Civil Pretrial
• Criminal Pretrial
• A person or entity (the plaintiff ) files a civil complaint against another person or entity (the defendant ).
• The plaintiff must serve the defendant with the complaint by officially delivering it to them in person or electronically.
• The defendant files and serves an answer , which is their response to the complaint.
• If the defendant fails to respond, the plaintiff can request default judgment , meaning the case would be decided in favor of the plaintiff.
• After the complaint and answer, the judge meets with the lawyers to work out a schedule.  The judge issues a case management order , setting all dates and deadlines needed to manage the case.
• The judge may refer the parties to alternative dispute resolution / mediation , where the parties may reach a settlement without the need for a trial.
• If settlement cannot be reached, the case moves toward trial.
• To prepare for trial, both sides will conduct discovery .  During discovery, both parties gather all the information and evidence they will present in court.  Both sides can take depositions of witnesses.  Either side can request documents and statements from the other side when building their case.
• Both parties are required to disclose everything they’ve collected about the case to each other, during the pretrial phase.  It’s common for a settlement to be reached after discovery, but before trial.
• For example, either party can file a motion to compel the other party to give up certain evidence needed for discovery.
• A motion in limine asks the judge to exclude certain evidence from being used by the other side.
• Another common motion filed is for summary judgment , which requests the judge to rule for the party filing the motion. The party filing the motion for summary judgment will argue that no facts are in dispute, so there is no need for a trial.
• The attorneys for both parties are required to attend a final pretrial status conference to inform the court how they are proceeding in preparation for trial.
• Suspicious activity occurs and is investigated.  An arrest may happen at this stage.
• The U.S. Attorney in that federal district seeks an indictment from the Grand Jury .  The grand jury sees evidence and hears testimony.  Only the prosecution presents evidence to the grand jury.  The accused person does not have any right to present evidence to the grand jury.
• The grand jury decides if there is enough evidence to proceed with prosecution or not. If not, the case is dismissed.
• If an indictment is issued, the prosecuting attorney for the government seeks an  arrest warrant  from a judge.  The  defendant  can surrender, or may be arrested by the U.S. Marshals Service.
• The defendant meets with a Pretrial Services Officer , who prepares a report recommending whether or not the person should be released on bail.
• The defendant appears before a  Magistrate Judge  to hear charges – called an initial appearance .   At this hearing, the defendant is asked if they have an attorney, or if they need an attorney appointed for them because they can’t afford it.
• If the government’s attorney seeks to have the defendant detained until trial, a detention hearing is held.  The defendant is present, and is represented by a lawyer, at this and all future hearings.  The judge will use the report from the pretrial services officer, among other things, to make the decision.
• The defendant is either released on bail or kept in custody until the next court date.  If released, the defendant usually must follow conditions like submitting to drug testing and reporting to a pretrial services officer while awaiting trial.
• The defendant appears before a magistrate judge to be formally advised of the charges, and to enter  not guilty plea  – this is called an  arraignment .
• If plea is later changed to guilty, a hearing is scheduled before the  District Judge for the defendant to enter the  guilty plea .  After entering a guilty plea, the defendant will then meet with a  Probation Officer , who prepares a pre-sentence report.  The defendant will appear before a district judge at a separate hearing, to be  sentenced .
• If the plea is not guilty, then the attorneys will begin preparing for trial.  During pretrial  discovery , the defense attorney and the prosecuting attorney conduct an investigation to gather all the information and evidence they will present in court.
• The government must  disclose  the information and evidence they have against the defendant, so that the defendant and their attorney can prepare the defense.
• Both sides can file  pretrial motions  seeking information from the opposing side or  rulings  from the judge.  The defendant can seek to  suppress   evidence, statements, or identification that were obtained in violation of his/her constitutional rights, or otherwise challenge the charges.

Let’s Make a Deal

Realistically, only a small percentage of federal cases, criminal or civil, actually go through the entire trial process.  Because trials are risky, many parties look to settle their differences during the “pretrial” phase of the process.

In criminal cases, the defendant will likely get a shorter sentence or less harsh punishment by accepting responsibility by pleading guilty.  The prosecutor may agree to drop some of the charges if the defendant admits guilt.  The defendant’s attorney works with the prosecutor to come to terms both sides can agree with.  These pretrial negotiations, sometimes called a plea bargain , do not involve the judge until the defendant formally changes their plea from not guilty to guilty.  At that time, the judge will put the defendant under oath, and ask a series of questions to determine not only that the defendant is competent to enter the plea, but also that he is doing so truthfully and willingly.  Once the judge accepts the guilty plea on the record, a sentencing hearing is scheduled for a future date. Visit the Student Center page about Your Day in Court to learn more.

In federal civil cases, the judge often recommends or requires the parties to attempt to reach a settlement in the pretrial phase.  This often takes the form of Alternative Dispute Resolution(ADR) or mediation .  This provides a cheaper and faster way for parties in a civil law suit to settle their disagreement without a full trial.  This process is non-binding until an actual settlement is reached, so the parties can request an actual trial at any time.  An impartial person, sometimes called a neutral or a mediator , facilitates discussions between the two sides, to assist them in coming to an agreement.  Many civil disputes must first go through the mediation process, by order of the judge.  All mediation proceedings are confidential, and never become part of the court record.  If the parties don’t reach a settlement this way, the case will continue to proceed through the court system.

Next Page →

Fifth Amendment :

No person shall be held to answer for a capital, or otherwise infamous crime, unless on a presentment or indictment of a Grand Jury, except in cases arising in the land or naval forces, or in the Militia, when in actual service in time of War or public danger; nor shall any person be subject for the same offence to be twice put in jeopardy of life or limb; nor shall be compelled in any criminal case to be a witness against himself, nor be deprived of life, liberty, or property, without due process of law; nor shall private property be taken for public use, without just compensation.

The combination of otherwise acceptable rules of criminal trials may in some instances deny a defendant due process. Thus, based on the particular circumstance of a case, two rules that (1) denied a defendant the right to cross-examine his own witness in order to elicit evidence exculpatory to the defendant 1 Footnote The defendant called the witness because the prosecution would not. and (2) denied a defendant the right to introduce the testimony of witnesses about matters told them out of court on the ground the testimony would be hearsay, denied the defendant his constitutional right to present his own defense in a meaningful way. 2 Footnote Chambers v. Mississippi, 410 U.S. 284 (1973) . See also Davis v. Alaska, 415 U.S. 308 (1974) (refusal to permit defendant to examine prosecution witness about his adjudication as juvenile delinquent and status on probation at time, in order to show possible bias, was due process violation, although general principle of protecting anonymity of juvenile offenders was valid); Crane v. Kentucky, 476 U.S. 683 (1986) (exclusion of testimony as to circumstances of a confession can deprive a defendant of a fair trial when the circumstances bear on the credibility as well as the voluntariness of the confession); Holmes v. South Carolina, 547 U.S. 319 (2006) (overturning rule that evidence of third-party guilt can be excluded if there is strong forensic evidence establishing defendant’s culpability). But see Montana v. Egelhoff, 518 U.S. 37 (1996) (state may bar defendant from introducing evidence of intoxication to prove lack of mens rea). Similarly, a questionable procedure may be saved by its combination with another. Thus, it does not deny a defendant due process to subject him initially to trial before a non-lawyer police court judge when there is a later trial de novo available under the state’s court system. 3 Footnote North v. Russell, 427 U.S. 328 (1976) .

When a conviction is obtained by the presentation of testimony known to the prosecuting authorities to have been perjured, due process is violated. The clause “cannot be deemed to be satisfied by mere notice and hearing if a State has contrived a conviction through the pretense of a trial which in truth is but used as a means of depriving a defendant of liberty through a deliberate deception of court and jury by the presentation of testimony known to be perjured. Such a contrivance . . . is as inconsistent with the rudimentary demands of justice as is the obtaining of a like result by intimidation.” 4 Footnote Mooney v. Holohan, 294 U.S. 103, 112 (1935) .

The above-quoted language was dictum, 5 Footnote The Court dismissed the petitioner’s suit on the ground that adequate process existed in the state courts to correct any wrong and that petitioner had not availed himself of it. A state court subsequently appraised the evidence and ruled that the allegations had not been proved in Ex parte Mooney , 10 Cal. 2d 1, 73 P.2d 554 (1937) , cert. denied , 305 U.S. 598 (1938) . but the principle it enunciated has required state officials to controvert allegations that knowingly false testimony had been used to convict 6 Footnote Pyle v. Kansas, 317 U.S. 213 (1942) ; White v. Ragen, 324 U.S. 760 (1945) . See also New York ex rel. Whitman v. Wilson, 318 U.S. 688 (1943) ; Ex parte Hawk, 321 U.S. 114 (1914) . But see Hysler v. Florida, 315 U.S. 411 (1942) ; Lisenba v. California, 314 U.S. 219 (1941) . and has upset convictions found to have been so procured. 7 Footnote Napue v. Illinois, 360 U.S. 264 (1959) ; Alcorta v. Texas, 355 U.S. 28 (1957) . In the former case, the principal prosecution witness was defendant’s accomplice, and he testified that he had received no promise of consideration in return for his testimony. In fact, the prosecutor had promised him consideration, but did nothing to correct the false testimony. See also Giglio v. United States, 405 U.S. 150 (1972) (same). In the latter case, involving a husband’s killing of his wife because of her infidelity, a prosecution witness testified at the habeas corpus hearing that he told the prosecutor that he had been intimate with the woman but that the prosecutor had told him to volunteer nothing of it, so that at trial he had testified his relationship with the woman was wholly casual. In both cases, the Court deemed it irrelevant that the false testimony had gone only to the credibility of the witness rather than to the defendant’s guilt. What if the prosecution should become aware of the perjury of a prosecution witness following the trial? Cf. Durley v. Mayo, 351 U.S. 277 (1956) . But see Smith v. Phillips, 455 U.S. 209, 218–21 (1982) (prosecutor’s failure to disclose that one of the jurors has a job application pending before him, thus rendering him possibly partial, does not go to fairness of the trial and due process is not violated). Extending the principle, the Court in Miller v. Pate 8 Footnote 386 U.S. 1 (1967) . overturned a conviction obtained after the prosecution had represented to the jury that a pair of men’s shorts found near the scene of a sex attack belonged to the defendant and that they were stained with blood; the defendant showed in a habeas corpus proceeding that no evidence connected him with the shorts and furthermore that the shorts were not in fact bloodstained, and that the prosecution had known these facts.

This line of reasoning has even resulted in the disclosure to the defense of information not relied upon by the prosecution during trial. 9 Footnote The Constitution does not require the government, prior to entering into a binding plea agreement with a criminal defendant, to disclose impeachment information relating to any informants or other witnesses against the defendant. United States v. Ruiz, 536 U.S. 622 (2002) . Nor has it been settled whether inconsistent prosecutorial theories in separate cases can be the basis for a due process challenge. Bradshaw v. Stumpf, 545 U.S. 175 (2005) (Court remanded case to determine whether death sentence was based on defendant’s role as shooter because subsequent prosecution against an accomplice proceeded on the theory that, based on new evidence, the accomplice had done the shooting). In Brady v. Maryland , 10 Footnote 373 U.S. 83, 87 (1963) . In Jencks v. United States, 353 U.S. 657 (1957) , in the exercise of its supervisory power over the federal courts, the Court held that the defense was entitled to obtain, for impeachment purposes, statements which had been made to government agents by government witnesses during the investigatory stage. Cf. Scales v. United States, 367 U.S. 203, 257–58 (1961) . A subsequent statute modified but largely codified the decision and was upheld by the Court. Palermo v. United States, 360 U.S. 343 (1959) , sustaining 18 U.S.C. § 3500. the Court held “that the suppression by the prosecution of evidence favorable to an accused upon request violates due process where the evidence is material either to guilt or to punishment, irrespective of the good faith or bad faith of the prosecution.” In that case, the prosecution had suppressed an extrajudicial confession of defendant’s accomplice that he had actually committed the murder. 11 Footnote Although the state court in Brady had allowed a partial retrial so that the accomplice’s confession could be considered in the jury’s determination of whether to impose capital punishment, it had declined to order a retrial of the guilt phase of the trial. The defendant’s appeal of this latter decision was rejected, as the issue, as the Court saw it, was whether the state court could have excluded the defendant’s confessed participation in the crime on evidentiary grounds, as the defendant had confessed to facts sufficient to establish grounds for the crime charged. “The heart of the holding in Brady is the prosecution’s suppression of evidence, in the face of a defense production request, where the evidence is favorable to the accused and is material either to guilt or to punishment. Important, then, are (a) suppression by the prosecution after a request by the defense, (b) the evidence’s favorable character for the defense, and (c) the materiality of the evidence.” 12 Footnote Moore v. Illinois, 408 U.S. 786, 794–95 (1972) (finding Brady inapplicable because the evidence withheld was not material and not exculpatory). See also Wood v. Bartholomew, 516 U.S. 1 (1995) (per curiam) (holding no due process violation where prosecutor’s failure to disclose the result of a witness’ polygraph test would not have affected the outcome of the case). The beginning in Brady toward a general requirement of criminal discovery was not carried forward. See the division of opinion in Giles v. Maryland, 386 U.S. 66 (1967) .In Cone v. Bell , 556 U.S. 449 , 472, 476 (2009) , the Court emphasized the distinction between the materiality of the evidence with respect to guilt and the materiality of the evidence with respect to punishment, and concluded that, although the evidence that had been suppressed was not material to the defendant’s conviction, the lower courts had erred in failing to assess its effect with respect to the defendant’s capital sentence.

In United States v. Agurs , 13 Footnote 427 U.S. 97 (1976) . the Court summarized and somewhat expanded the prosecutor’s obligation to disclose to the defense exculpatory evidence in his possession, even in the absence of a request, or upon a general request, by defendant. First, as noted, if the prosecutor knew or should have known that testimony given to the trial was perjured, the conviction must be set aside if there is any reasonable likelihood that the false testimony could have affected the judgment of the jury. 14 Footnote 427 U.S. at 103–04 . This situation is the Mooney v. Holohan -type of case. Second, as established in Brady , if the defense specifically requested certain evidence and the prosecutor withheld it, 15 Footnote A statement by the prosecution that it will “open its files” to the defendant appears to relieve the defendant of his obligation to request such materials. See Strickler v. Greene, 527 U.S. 263, 283–84 (1999) ; Banks v. Dretke, 540 U.S. 668, 693 (2004) . the conviction must be set aside if the suppressed evidence might have affected the outcome of the trial. 16 Footnote 427 U.S. at 104–06 . This the Brady situation. Third (the new law created in Agurs ), if the defense did not make a request at all, or simply asked for “all Brady material” or for “anything exculpatory,” a duty resides in the prosecution to reveal to the defense obviously exculpatory evidence. Under this third prong, if the prosecutor did not reveal the relevant information, reversal of a conviction may be required, but only if the undisclosed evidence creates a reasonable doubt as to the defendant’s guilt. 17 Footnote 427 U.S. at 106–14 . This was the Agurs fact situation. Similarly, there is no obligation that law enforcement officials preserve breath samples that have been used in a breath-analysis test; to meet the Agurs materiality standard, “evidence must both possess an exculpatory value that was apparent before the evidence was destroyed, and be of such a nature that the defendant would be unable to obtain comparable evidence by other reasonably available means.” California v. Trombetta, 467 U.S. 479, 489 (1984) . See also Arizona v. Youngblood, 488 U.S. 51 (1988) (negligent failure to refrigerate and otherwise preserve potentially exculpatory physical evidence from sexual assault kit does not violate a defendant’s due process rights absent bad faith on the part of the police); Illinois v. Fisher, 540 U.S. 544 (2004) (per curiam) (the routine destruction of a bag of cocaine 11 years after an arrest, the defendant having fled prosecution during the intervening years, does not violate due process).

This tripartite formulation, however, suffered from two apparent defects. First, it added a new level of complexity to a Brady inquiry by requiring a reviewing court to establish the appropriate level of materiality by classifying the situation under which the exculpating information was withheld. Second, it was not clear, if the fairness of the trial was at issue, why the circumstances of the failure to disclose should affect the evaluation of the impact that such information would have had on the trial. Ultimately, the Court addressed these issues in United States v. Bagley 18 Footnote 473 U.S. 667 (1985) . .

In Bagley , the Court established a uniform test for materiality, choosing the most stringent requirement that evidence is material if there is a reasonable probability that, had the evidence been disclosed to the defense, the outcome of the proceeding would have been different. 19 Footnote 473 U.S. at 682 . Or, to phrase it differently, a Brady violation is established by showing that the favorable evidence could reasonably be taken to put the whole case in such a different light as to undermine confidence in the verdict. Kyles v. Whitley, 514 U.S. 419, 435 (1995) . Accord Smith v. Cain , 565 U.S. 73 (2012) (prior inconsistent statements of sole eyewitness withheld from defendant; state lacked other evidence sufficient to sustain confidence in the verdict independently). This materiality standard, found in contexts outside of Brady inquiries, 20 Footnote See United States v. Malenzuela-Bernal, 458 U.S. 858 (1982) (testimony made unavailable by Government deportation of witnesses); Strickland v. Washington, 466 U.S. 668 (1984) (incompetence of counsel). is applied not only to exculpatory material, but also to material that would be relevant to the impeachment of witnesses. 21 Footnote 473 U.S. at 676–77 . See also Wearry v. Cain , 136 S. Ct. 1002, 1007 (2016) (per curiam) (finding that a state post-conviction court had improperly (1) evaluated the materiality of each piece of evidence in isolation, rather than cumulatively; (2) emphasized reasons jurors might disregard the new evidence, while ignoring reasons why they might not; and (3) failed to consider the statements of two impeaching witnesses). Thus, where inconsistent earlier statements by a witness to an abduction were not disclosed, the Court weighed the specific effect that impeachment of the witness would have had on establishing the required elements of the crime and of the punishment, finally concluding that there was no reasonable probability that the jury would have reached a different result. 22 Footnote Strickler v. Greene, 527 U.S. 263, 296 (1999) ; see also Turner v. United States , 137 S. Ct. 1885, 1894 (2017) (holding that, when considering the withheld evidence in the context of the entire record, the evidence was “too little, too weak, or too distant” from the central evidentiary issues in the case to meet Brady 's standards for materiality.)

The Supreme Court has also held that “ Brady suppression occurs when the government fails to turn over even evidence that is ‘known only to police investigators and not to the prosecutor.’ . . . '[T]he individual prosecutor has a duty to learn of any favorable evidence known to others acting on the government’s behalf in the case, including the police.’” 23 Footnote Youngblood v. West Virginia, 547 U.S. 867, 869–70 (2006) (per curiam), quoting Kyles v. Whitley, 514 U.S. 419, 438, 437 (1995) .

In Cone v. Bell , 556 U.S. 449 , 472, 476 (2009) , the Court emphasized the distinction between the materiality of the evidence with respect to guilt and the materiality of the evidence with respect to punishment, and concluded that, although the evidence that had been suppressed was not material to the defendant’s conviction, the lower courts had erred in failing to assess its effect with respect to the defendant’s capital sentence.

Pointers for Trial Preparation And Evidence Presentation

Most civil cases, especially those involving pro se litigants, don’t make it to trial. The fact that your case has says a lot about you. First, kudos on jumping over multiple hurdles to stay in the game. It’s showtime. You have spent months, maybe even years, working towards this moment. What do you do now?

The good news is that by the time you get to trial, you have attended a number of hearings. So you’re familiar with court protocol. Evidentiary hearings , in fact, are mini previews for the trial. Though a trial is a step up from hearings, there are many similarities. Court rules and protocols you’ve used up to this point still apply. In the olden days, say 2019, you might have been able to attend live trials to get the lay of the land to gather more intelligence. Now, due to COVID-19, you have to get what you can online. Below, we’ll present pointers to help you with that.

Review and Make Notes

In litigation, success is often determined by the work you do outside the courtroom. Here’s what to do before trial.

• Prepare for one or more days of witness testimony and evidence presentation that will end in a final judgment.
• Just as you reviewed all necessary documents before hearings, do the same now. If you have a trial notebook, you’re ahead of the game. Use it and keep it updated.
• Review your case strategy to determine key talking points, facts you must prove, the evidence you need to present at trial, and when you need to present that evidence.
• Write talking points on notes.

Get a Fair Hearing in Court

No one expects a fair outcome when one side has a lawyer but the other side doesn’t. Level the playing field with Courtroom5.

Ready Evidence for Trial

Evidence can be documents, photographs, email, transcripts, and other things. Below are pointers for getting your evidence ready.

• Make notes about each piece of evidence that you plan to use during the trial. These are your exhibits.
• Your note for each exhibit should explain why it is relevant, in case the judge asks.
• Place exhibits in the order you wish to present them.
• During trial, place exhibits where they are easy for you to grab.
• For a real-time trial, make 3 copies of all of the documents you wish to present at trial–one for you, one for the judge, and one for your opponent.
• Online, follow your court’s process for distributing copies of documents.
• If the clerk does not process exhibits, you should label and number them with “Exhibit A”, “Exhibit B”, etc.

Understand Jury Selection (Voir Dire)

• In a jury trial, questioning potential jurors comes first. Here’s what should happen during voir dire.The judge will introduce the parties to prospective jurors and make a brief statement.
• The parties and judge will then ask a series of questions that were agreed on in the pre-trial process. The questions are designed to see if jurors are ready to render a fair judgment.
• Your goals are to keep the jurors that may be beneficial or fair to you and strike those that may be biased.

Make an Opening Statement

Now, it’s time for opening statements. Here’s what should happen.

• The plaintiff goes first.
• The opening statement can be as simple as stating your name and why you’re in court, or it could present the facts of the case in a concise and compelling way.
• The statement should provide an overview of the case.
• After the plaintiff is done, the defendant will make an opening statement and assert relevant defenses.
• If you’re the defendant, don’t repeat the facts the plaintiff stated. Rather, highlight differences or points of disagreement you have with the plaintiff’s facts.
• This back-and-forth dialogue is at the heart of the adversarial legal system. It continues through the trial as the parties present their evidence and examine the witnesses.

Present Trial Evidence

After the opening statements, both sides will call witnesses and present evidence. Below is an overview.

• The plaintiff goes first. This is called the case-in-chief.
• When you’re ready to call a witness, you can say, “Your Honor, I call my first witness”…
• The court will swear each witness in and record their testimony.
• This is followed by the direct examination by the plaintiff and cross-examination by the defendant. If you need to approach the bench or the witness during the trial, ask for the judge’s permission first.
• Evidence must be admissible (relevant and trustworthy). So the person wanting the evidence admitted, may be required to lay a factual foundation for it by using a witness to establish its authenticity.
• If the opposing party challenges a piece of evidence, defend it by repeating why it’s vital to your case.
• If you object to evidence entered by the opposing party, explain why it is not relevant or violates the rules of evidence.

Once both parties are done with their cases in chief, the parties make closing statements. Here’s how it goes.

• The plaintiff will make his or her closing argument.
• The defendant will then make a closing argument.
• Since the plaintiff has the burden of proof, he will have a chance for a rebuttal of the defendant’s closing argument.
• If there is no jury, a judge will render a verdict and judgment.
• If the case was tried by a jury, the jury renders the verdict, and the judge delivers a judgment.

It’s over. While trials can certainly reach a boiling point, most don’t. The parties are there to present their side of the case in a controlled setting. There are rules, processes, and procedures. Make your best attempt to get your evidence heard within these guidelines. Then rest your case. No need to boil.

Get the justice you deserve

Don’t Go To Court Without Courtroom5

When you’re in court without a lawyer, you may not even have the right questions, much less the best answers. Let us help you prove your case.