TRIAL 101 Lois Wright Program Attorney TMCEC

Adversarial Judicial Process The neutral and detached fact finder (judge or jury) determines the truth through the opposing defense and prosecution presenting their best arguments and showing weaknesses in the other’s case.

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Basic Principles „

All persons are presumed to be innocent until proven guilty

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In criminal trials, this means “guilty beyond a reasonable doubt.”

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5th Amendment Protections United States Constitution „

No double jeopardy

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Not required to testify

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Due Process protections

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6th Amendment Protections United States Constitution In all criminal prosecutions: „ Right to a speedy and public trial „ By an impartial jury of the district in which the offense was committed „ Right to be informed of the nature and cause of the accusation „ Right to be confronted by witnesses and bring his/her own witnesses to the stand „ Right to assistance of counsel

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Judge’s Trial Duties (1)

(2)

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Preside over the trial and protect the rights of those involved. Ensure that attorneys and pro se defendants follow the rules of evidence and procedure. Instruct the jury as to the law involved in the case through a jury charge.

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(4)

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Assess punishment if the accused does not elect to have jury do so. Maintain fairness to everyone – the State, the accused, the jurors, and the witnesses.

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Clerk’s Role in Trial Process (1)

(2)

(3) (4) (5)

Provide information to the defendant about the trial process and preparation. Manage court participants on the day of trial. Schedule cases for trial. Issue subpoenas. Summon the jury. 8

Prosecutor’s Role (1) (2) (3) (4) (5)

Makes ultimate decisions about who to charge. Decides what cases to dismiss. Gathers witnesses for the State. Has discretion over the exact wording, number, and nature of complaints. Works for the people of the State of Texas, not the court. 9

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Ex Parte Communication Canon 6C(2): A justice of the peace or municipal court judge, except as authorized by law, shall not directly or indirectly initiate, permit, nor consider ex parte or other communications concerning the merits of a pending judicial proceeding.

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Communications NOT Prohibited (a) (b) (c) (d) (e)

uncontested administrative matters, uncontested procedural matters, magistrate duties and functions, determining jurisdiction of claim or dispute, determining a more appropriate judicial or non-judicial forum for the claim or dispute, (f) mitigating evidence following a plea of nolo contendere or guilty, or (g) any other matters where ex parte communications are contemplated or authorized by law. 11

Judge Shall Not Investigate „

Note that an ex parte communication can be either oral or written.

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A judge is prohibited from personally investigating the facts of a case such as driving by the scene of the offense/accident; talking with a defendant on the telephone; reading letters from a defendant telling his side of the story; and reading the officer’s notes on the back of a citation. 12

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Pretrial Hearings: Art. 28.01, CCP „

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Prosecutor must be present (unless it is simply to inform defendant of rights and procedures) Resolve contested issues Defense should have 10 days notice before trials or pretrials in which to file motions.

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Preparing for Jury Trial „ „

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6 qualified persons from the venire shall be selected to serve as jurors, Art. 45.027, CCP Courts are prohibited from summoning prospective jurors to appear for jury service on an election day for state or county officers, Sec. 62.0125, GC Jurors may be selected from tax rolls, utility rolls, voter registration rolls, or any other nondiscriminatory manner Municipal courts are not required to pay jurors 14

Summoning a Jury „ „ „ „

Summon potential jurors 3 weeks prior to trial Summon only residents of your city to serve as potential jurors, Sec. 62.501, GC All prospective jurors must remain in attendance until discharged by the court, Art. 45.027(b), CCP Failing to appear for jury service is punishable by a fine of up to $100, Art. 45.028, CCP

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Establishing an Exemption „

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File a signed statement stating the ground of the exemption with the clerk any time before trial, Art. 35.04, CCP Request postponement by contacting clerk before trial, Sec. 62.0142, GC „

Clerk SHALL grant postponement if (1) the person hasn’t been granted a postponement in the county in the prior year and (2) the person and clerk determine a substitute date not later than 6 months away

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Providing False Information „

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If the prospective juror knowingly provides false information, he/she is subject to a contempt action punishable by a fine of $100-$1000 dollars, Sec. 62.0141, GC Lack of residence exemptions might cause the person to be ineligible to vote in the city or county, Sec. 62.0142

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“Pick-up” Jury After the challenges, strikes, and legal exemptions, if you need more jurors, the judge SHALL order the proper officer to summon a sufficient number of qualified persons to form a new jury panel, Art. 45.028, CCP To avoid this, summons at least 30 jurors for each jury trial. 18

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AG Opinion GA-0336: June 28, 2005 Selecting a jury from a pool of volunteers would be incompatible with the jury wheel method in Chapter 62 of the Gov’t. Code, which requires that the names of prospective jurors and supplemental jurors be drawn from the jury wheel. If the county uses electronic or mechanical means of jury selection under §62.011 of the Gov’t. Code, selection of the venire must comply with the plan adopted by the Commissioner’s Court.

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Trial Preparation 1 Day Before „ Prepare jury charge „ Prepare Election of Punishment Form „ Review Bench book Day of Trial „ Bring Municipal Judges’ Quick Reference Trial Handbook to the bench 20

Day of Trial „ „ „

Arrive in chambers with sufficient time to review the court docket Give the prosecutor any necessary case files Meet with defendant/defense attorney as soon as he/she arrives: (1) Give the defense a copy of the complaint even if he/she received a copy prior to trial date, (2) Provide a brief overview of trial procedure (3) Inform him/her of the fine range plus court costs

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(4) Election of punishment form – have defendant sign it and inform prosecutor of defendant’s decision (5) Give a copy of the jury charge to both the defense and State (6) If an attorney represents the defendant, remember Art. 45.020(b): “not more than one counsel shall conduct either the prosecution or defense.” 22

Objection to the Complaint A defendant waives and forfeits the right to object to a defect, error, irregularity of form, or substance in the complaint if the defendant does not object on the merits before the commencement of trial. (May be required earlier at the court’s discretion).

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Before Jury Trial… „ „ „

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Keep a list of the summoned jurors who appear Allow them time to read a copy of the Uniform Juror Handbook from the State Bar of Texas Provide jury lists and juror information sheets for the judge, prosecutor, and defendant, but pick them up after trial Bailiff seats the potential jurors in random order Either side may request a jury shuffle to change the seating order of the jurors 24

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Challenge to the Array „

Must be in writing, stating the grounds for believing the group of jurors to be lacking „

Ex. Officer summoned the jury and willfully summoned jurors attempting to secure a conviction or acquittal, Art. 35.07, CCP

Challenges must be supported by a sworn affidavit. Judge should hear the evidence and decide whether to sustain the challenge prior to questioning jurors, Art. 35.06, CCP

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Juror Excuses NOTE: CAN NOW BE HEARD BY COURT DESIGNEES: LAW CHANGE Effective 9/1/05. A court or the court’s designee may hear and determine an excuse offered for not serving as a juror, including any claim for an exemption or a lack of qualification. The prospective juror may claim an exemption without appearing in person by filing a signed statement giving the ground for his/her exemption with the clerk of the court at any time before the date that he/she is summoned to appear to serve as a potential juror. The designee may discharge the prospective juror or postpone the prospective juror’s serve to a later date.

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Voir Dire „ „

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Screening potential jurors to gather your best, most neutral jury possible Place jurors under oath (Art. 35.02, CCP) and ask questions from the judge, prosecutor, and defense Uncover prejudices and preconceived opinions about the case

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Challenge for Cause An objection to a particular juror by alleging some fact which renders the juror incapable or unfit to serve on the jury. Commonly because (Art. 35.16 CCP): „ The potential juror is a witness „ The potential juror cannot be impartial „ The person has already formed an opinion as to defendant’s guilt „ The person cannot read or write English „ The person cannot follow the law, or „ The person is related to a party or attorney in the case

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Peremptory Challenge After voir dire and any challenges for cause, each side may exercise their peremptory challenges. A peremptory challenge is made without any reason stated. However, a peremptory challenge based on race, gender, or other constitutionally protected class is prohibited. In Class C misdemeanor cases, each side gets 3 peremptory strikes. Each side may use all, none, or some, BUT no more than 3 strikes.

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The Jury „

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The court clerk collects the juror lists and writes or prints the names of first six remaining jurors Selected jurors will not be placed back into the jury pool for subsequent trials that day You may conduct voir dire for all cases at one time, before starting any trials Seat the jury and swear them in, Art. 35.22, CCP 30

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Judicial Disqualification Disqualification: 1. Judge is the injured party 2. Judge has been counsel for the state or the accused 3. Judge is connected to the accused or injured party by consanguinity or affinity to the third degree Alternate judge or judge from adjacent municipality sits for the disqualified/recused judge Sec. 29.012, GC 31

Order of Trial: Beginning 1) Opening Announcement 2) Explain the defendants’ rights, options, and general court procedures Jury trials Bench trials 3) Bailiff or clerk 3) Explain procedures and give oaths to potential jurors calls the docket 4) Call the case and have both sides announce ready 5) Judge reviews qualifications and exemptions 6) Jury selection 32

“THE RULE” Texas Rules of Evidence 614: all

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witnesses (except the defendant and the victim) are excluded from the courtroom while other witnesses are testifying. Can be invoked by prosecution or defense Witnesses wait outside the courtroom and may not discuss the case

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Order of Trial: Testimony „ „ „ „ „ „

Prosecutor reads the complaint to the defendant Judge calls defendant to the bench to identify the defendant and obtain the plea Opening statements by State, (defense optional) State’s case (direct witness testimony, crossexamination by defendant, and re-direct, if any) Defense’s case (direct, cross-examiniation by State, and re-direct, if any) Rebuttal evidence presented, if any 34

Objections When one party opposes something that has occurred or is about to occur at trial and seeks the judge’s immediate ruling on the point, she objects. The judge rules by either stating “sustained” or “overruled.” The objecting party must state the reason for the objection. Sustained means that you are ruling in favor of the objection and overruled means that you are ruling against it. 35

Hearsay Testimony relating not what a witness knows personally, but what others have told him/her. In the Texas Rules of Evidence it is defined as “a statement, other than one made by the declarant while testifying at the trial or hearing, offered in evidence to prove the truth of the matter asserted.” For exceptions to the Hearsay Rule, look at the TRE, Rules 801-805. 36

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Few Traffic Offenses Require Culpable Mental State Most traffic offenses are “strict liability” offenses, and do not require the State to prove the defendant’s mental state while committing the crime. When a person operates a motor vehicle, a strict standard of care applies, holding him or her accountable for breaking the law, in spite of his or her intent to do so. „

HOWEVER, a few traffic offenses require a culpable mental state, like Sec. 521.458, permitting unauthorized person to drive and Sec. 542.302, offense by person owning or controlling vehicle.

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Culpable Mental States and City Ordinances Beginning 9/1/05: proof of culpable mental state required for certain city ordinances §6.02 PC: Prohibits a municipality from dispensing with the culpable mental state if the maximum fine is over $500.00. Either lower the max fine to $500.00 OR require a culpable mental state

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Order of Trial: Conclusion „ „

Charge read to jury Closing arguments, State begins and ends

Bench trial: the judge hears the evidence and determines guilt or innocence based on that evidence. The judge assesses punishment according to the allowable penalty range. Jury trial: the jury is given a copy of the jury charge, retires to the deliberation room, and then returns to the courtroom to announce their verdict. The judge assesses punishment unless the defendant elected that the jury do so. 39

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Jury Charge „ „

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Directs the jury concerning the law that applies to the case. Judges prepare it in advance and give copies to each side before trial. If changes need to be made to the charge after the presentation of evidence, do so before reading it to the jury. Include a summary of the charges, state how the defendant pled, present all applicable law, remind the jury of the presumption of innocence, and of the State’s burden of proof Direct the jury that if they find that the State met the burden of proof, they must find the defendant guilty, but if the State has not met burden of proof, then they must find defendant not guilty Instruct the jury on how to select a foreman and that their verdict must be unanimous 40

Verdict After conviction the defendant may pay their fine and court costs or request a new trial or appeal the case. Judge: must credit the defendant for any time served in jail, Art. 42.03, 45.041(c), CCP. Clerk: an additional $3 fee is required after a conviction by a jury, and another $5 fee is required if the jurors were summoned by a peace officer. 41

Right to Appeal & Motion for New Trial If the defendant is found guilty, inform defendant of his/her right to appeal to county court, and the deadline to post an appeal bond. The appeal bond must be at least two times the amount of the fine and court costs made payable to the State of Texas. This must occur within 10 days of the conviction date, Art. 45.0426, CCP „ Please note that the defendant does NOT need to give notice of appeal in open court A motion for new trial MUST be filed with the Municipal Court within 10 calendar days of the date of the trial for a record court, and 1 calendar day for a non-record court, Art. 45.03745.040, CCP

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