Trial Preparation for Prosecutors

by Boyd Patterson, Jr.

Attitudes forged in track and field stadiums, baseball practice centers, and gymnastics arenas often facilitate success in other professions. Several years ago, I witnessed such an attitude during a luncheon featuring a speaker who won a gold medal at the Paralympics. I expected the inspiring words regarding overcoming life’s tragedies. The professional advice came as a total surprise. However, after a matter-of-fact description about how a house fire literally burned the appendages off of his torso, the champion spoke of the grueling training regimen that won him the gold medal. He spoke of his observation that every competitor at the highest level possesses the will to win. In that elite pack, the star athletes stand out because of their will to PREPARE to win.

Ninety-five percent of what happens in a jury trial hinges upon the preparations you make before you set foot in the arena. The following suggestions will hopefully help you (and other beginning prosecutors) put together your best case. Not another pre-trial checklist. A higher aim exists here, namely, to elevate your overall game by helping you PREPARE to win.

1)  Success is getting your best case to the jury. If you remember only one thing from this article, it should be that definition of success, which creates the best mindset for pretrial preparation. Do not equate “success” with “a conviction.” Again: Success is getting your best case to the jury. You can succeed at that every time. You can improve every time. Even dog cases provide valuable opportunities to grow and make your job less overwhelming. The risk of burnout drops off. Instead, you struggle only over whether you have put together the best case possible with the evidence you received. What happens later falls outside your sphere of direct influence. If you win, you win. If you lose, you could not have done anything more.

2)  Picking a trial date requires close attention. Do not choose the first trial date that jumps out at you. Do you have a murder trial set the week after the suggested date? What do your colleagues already have set for trial on the suggested day? A detainer case that could bump every other case? Creating a single trial notebook that lists all trials set by all prosecutors in that courtroom can prevent most of these problems. Do not let your lack of foresight create the need for a continuance, thus giving the defense attorney a reason why his aggravated stalker deserves a bond reduction.

3)  Immediately subpoena your essential witnesses. Low to mid-level felony cases often pop back up on your radar dangerously close to the trial date. In such situations, you would much rather play cleanup notifying a few additional witnesses than scrambling madly to notify them all. Again, this article will not serve as your pre-trial checklist. However, this one is too critical, too easy to take care of and too often forgotten not to mention. Identify the core witnesses and subpoena them the day you set the case for trial. Subpoena everyone listed on the indictment. Although you cannot assume all of your witnesses still reside at the address they initially gave, most of them should receive notification. Put your key witnesses on notice and build from there.

4)  Make sure the defense has everything. How many times have you heard from your opponent: “Judge, I can’t be expected to try this case. I don’t even have all the discovery!” A time-honored stall tactic, irksome and easily nullified by just turning everything over. Adopt an open file policy. Offer in writing to schedule a discovery meeting, at which go through everything in your file. Separate the work-product from discoverable materials in front of the defense attorney. After your discovery conference, send a follow up email confirming that the meeting took place.

5)  Actually talk to the defense attorney about reciprocal discovery. Defense attorneys have an ethical obligation to disclose most if not all of the documents they intend to use in their case-in-chief. Sure, they can say the magic words during trial (“Judge, I didn’t intend on using (document) until the prosecution witness said _________”). However, you never know. So ask for it. File your motion for reciprocal discovery. You may actually receive the required response and learn something that makes it crystal clear that you need to settle this dog. Sloppy investigation? Incomplete investigation? Identity issues? Let the defense attorney know of your willingness to reduce the existing offer, if you had a reason.

6)  Review your indictment EARLY. Abundant case law exists regarding how few days before trial the State should (and should not) be allowed to amend a faulty indictment. There is a reason. Do not become another statistic.

7)  Missing deadlines can get embarrassing. This easily preventable mistake also happens frequently. The earlier you file your standard motions, the more time you have to prepare for the defendant’s expert, alibi and/or insanity defense. On the other hand, if you miss the deadline to file your witness list or your notice of the defendant’s prior convictions, the State’s case-in-chief can take a massive hit. Not to mention having to explain to the victims and your boss why the State allowed the defendant to put his trial off for another six months.

8)  You can start pulling your case together by drafting a rough closing argument. Imagine your judge decided to try something different. In an effort to save time, money and judicial aggravation, your trial was going straight to closing arguments. No witness testimony. No annoying chain of custody issues. All lab reports, photos, videos, recorded confessions, articles of clothing, etc., will be admitted into evidence. Your sole task consists of telling the jury about the testimonial evidence that might have otherwise come from actual witnesses, had the economy been better suited to bankroll a two- week trial. What does the jury need to hear? Sketch out a rough idea of everything you want to tell the jury and the basic storyline that encapsulates how you want to deliver that information. Read it aloud, because it always comes across differently when spoken. Then, look at the individual components of the crime story and identify the witnesses who can communicate each component. Look, you have your basic witness list now, too.

9)  A single storyline integrates numerous pieces of evidence. A trial without a story is about as scintillating as last year’s grocery list. “Let’s see…go to aisle one, gently place the victim in the shopping cart for the jury. Stop by aisle two for some crime scene photos. Move to (yawn) aisle four for the weapon. Oops, forgot chain of custody, back to aisle three. Hmmm. Seems there was something else….oh yeah. Stop by the motive department, see what looks fresh.” Then hand off the cart of jumbled items to the jury, so they can reorganize things into a format that everyone can misunderstand, all while ignoring the relative values of what you give them. Every crime has a story, which will help organize the items of evidence for the jury. Without that cohesive story, the 25 pieces of evidence and testimony get turned over and shifted around by 12 different perspectives. Yet, all jurors can assemble a 1000 piece puzzle in no time, if you give them the picture on the puzzle box as a guide. A story pulls together all the disparate threads and weaves them into a single tapestry. The weaknesses of your case make up part of that story. If your case lacks something you know the jurors will want, just let them know why it’s missing. Hard-working officers with hundreds of cases just do not remember every detail of a DUI stop. Contrary to network television, every criminal case does not get a DNA, serology, latents, microanalysis and blood spatter expert assigned to it. Acknowledge legitimate deficits early. Yes, evidence often gets excluded from trial. However, do your best to give the jurors as much of the story behind the crime as you possibly can. Help them to put each piece of the puzzle where it belongs, as it unfolds during trial, long before you have to review with them in closing what they heard.

10) Map out how every piece of physical evidence gets to the jury. Items of physical evidence often require a higher degree of your attention. Identify the witnesses you need to get each item into the jury room. Photo and video exhibits do not necessarily require the person who took them, just someone who was present. A single item of collected evidence that was not sent off to be tested usually requires the person/people who: collected it, checked it into the property room, work in the property room and checked it back out for court. Lab reports require the officer who collected the evidence from the scene/body/defendant, the officer who turned it in to the evidence room, the evidence room custodian, the person who checked it back out and drove it to the lab, the person who received it at the lab and, finally, the forensic scientist who tested it. If you want the tested item itself to go back to the jury room, add the person who drove it back from the lab and turned it back in to the evidence custodian, and the person who checked it out again and carried it into the courtroom. I sometimes make a flow diagram, for my own use, as not to skip a link in the chain of custody.

11) Outline the case file. I know you would never do this, but you may have a colleague (yeah, a colleague) who neglects to read the entire file until the week before trial. Hopefully, you subpoenaed the primary witnesses on the day you set this dog for trial. You will eventually need the other witnesses who can flesh out the rest of the sordid story. You cannot assume that everything important to the case made it into your file. Accordingly, read the entire file, doing two things as you go through the materials. First: write down every name that comes up, with contact info if you have it, and a synopsis of what that person said or did. For example: Lila Jane-123 Mendacious Lane, 654-3210. Vic’s next door neighbor, at work during home invasion. Making even such a one line entry often proves worthwhile, if only to show that law enforcement did a proper investigation. I usually create a few different witness categories, i.e., Law Enforcement, Lab, Medical, for quicker access. Do not create a mere witness list here. This short document comprises a summary of the entire case file, subdivided by the names that surfaced during the investigation. The second thing to do as you read through the case file: keep a separate notepad to write down the questions/issues/ideas that come to mind as you read. Any weak points that seem apparent? Anything missing that leaves a defense argument open? Does a fact that logically supports the defendant’s guilt jump out at you? Does a particular case-theme seem fitting? What additional witnesses might you need? Consider how each extra witness could (1) further establish some element of the charged offense, (2) develop the story of the crime, and/or (3)challenge the defense theory. Expand your case-in-chief as necessary.

12) Reconstruct both the physical and emotional details. When possible, interview witnesses at the actual crime scene, or wherever they saw/heard something relevant. Watch their eyes dart around as they relive the experience. Feel the emotions coursing through the witness and throughout the scene itself until you too get a vivid sense of what it was like to be there. Visualize how it all went down, for your job involves taking the jury to that same place. If not feasible to interview a witness at the scene, be sure to meet with them in person, to get an idea of how they may come across to the jury. Wherever the meeting happens, do your best to cover all the details of that night. Let them review the statement they gave months, if not years, earlier. Let them listen to the 911 call they made. Let them read their prior testimony at the preliminary hearing or juvenile transfer hearing. Go over with them the officer summaries of the initial interviews. Ask them if there is anything that needs to be added, subtracted or further explained. Point out any discrepancies and ask them for an explanation.

13) Use bullet-points for direct examination. Writing out the entire, exact wording of a question helps you in only a few situations. When dealing with expert witnesses, or for your cross examination, or when the judge has made a specific evidentiary ruling that requires a somewhat more precise question, then write out the entire question. Otherwise, writing out the entire question typically disrupts the flow of the witness’s actual courtroom testimony. Using bullet-points for direct examination allows you to more seamlessly integrate a witness’s answer with the next point you want them to make. After meeting with the witnesses, reduce each witness’s expected testimony to a list of separate bullet-points. Once you have bullet-point lists for every witness, you should know if any discrepancies exist between witnesses. If so, check if the witnesses might both be correct as seen from their different perspectives. If you cannot reconcile the discrepancies, you want to be the first to point them out to the jury.

14) Trial expanding folder. Use one of those sturdy, bucket-like jobs that can hold a number of manila folders, documents and exhibits. Each witness should have their own separate manila folder, which contains the list of bullet points you need covered during the witness’s direct examination. As the witness testifies, use the margins of your list to write down the phrases they say in court that you want to use in closing. The witness’s folder also should hold a copy of his prior statement and the exhibits you want to introduce through him (documents, photos, 911 recordings, etc.). Accordingly, you will usually only need to carry a single witness folder to the lectern. On the outside of the folder, write a list of the exhibits you need introduced during direct examination, so you can check them off before you pass the witness. Use the back side of your bullet list to write down the important points, good and bad, that come out during cross- examination. You can then go back before closing arguments and incorporate the bullet- points, specific phrases and significant admissions that came out during each witness. If a witness availability issue forces a sudden change to your witness order, you simply switch the folders around.

15) Order of proof affects the delivery. If possible, your case should start strong and end strong. Legally necessary, but less interesting witnesses (chain of custody, foundational, etc.) go in the middle. If you have only one strong witness, start with that one and let the others corroborate what he provides. The jurors will be able to evaluate his testimony more thoroughly than if you save him for the end. If you have a number of good witnesses, chronological order fits most courtroom storylines. Of course, no trial is official without a curveball of some kind, often a witness availability/scheduling crisis. Hopefully, you told the jurors during voir dire not to expect a Law and Order episode, where the crime gets committed at 9:02 p.m., the witnesses testify perfectly between 9:41 and 9:54 and the verdict comes back at 9:59 p.m. That you may have to call witnesses out of order due to a sudden scheduling issue, or to simply lay a foundation for a subsequent witness. That you wish your trials could unfold as seamlessly as those in TV-land, but that real life rarely does. As a result, the jury will better accept the witness’s testimony in the order they get it.

16) Seek other opinions. No one is smarter than your whole office. Pitching your case to other prosecutors yields prosecution angles and weaknesses, exposes possible defense angles, predicts/reveals key witness topics, yields themes, bits of logic, questions for cross-examination, etc. Also, take time to run the facts by non-lawyers, for this gives you a preview of how “regular folk” see your case. They can help you identify what will, and will not, be important to your jury. Stay humble and listen to all feedback, whether or not you agree with it. You will eventually fly the airplane getting designed here. Make sure that the best ideas, no matter where they originate from, have been incorporated into that design long before the wheels leave the runway.

17) Respect the power of a bogus defense. We hear falsehoods every week. We hear so many defendants state to the police: “I was in another county when the victim was murdered,” until the cell-tower data puts him at the scene. We hear so many defendants’ mothers testify: “My helpless (career offender) baby was ‘co-hersed’ into pleading guilty by that manipulative (rookie) defense attorney.” We hear so many revocation proceedings, in which the defendant testifies: “I failed my drug screen because my cousin clam-baked me by smoking five joints during a car ride to the store.” Jurors know nothing of that greater context. Your trial will constitute the only criminal proceeding most of your jurors will ever experience firsthand, so you cannot count on them to spot obvious lies. You can count on them to think: “Wow, the police just ignored all that evidence pointing to the real killer, some thug named Dude,” unless you help them see the fallacies in the defense position. As bogus as the defense theory sounds to you, a single juror could seize upon it enough to hang the jury. Respect that fact. Respect it enough to know that you need to prepare for it.

18) Scrutinize the defense witnesses. If procedural rules allow for discovery of defense witnesses, try (just try) to get their recorded statements before trial. If they lie to you, they usually have not thought through the small details of their lie, at least not with each other. They may say something inconsistent with an ancillary, but irrefutable, piece of evidence, casting doubt upon the truthfulness of the rest of their testimony. If a defense witness refuses to talk to you before trial, you get to ask them in front of the jury why they refused. You get to point out that they let their loved one sit in jail for a long time, without reporting their knowledge of “The Real Perpetrator” to the authorities, illogically counting on the jury to see the truth of their statement. Do not think that, just because you have heard it all before, you do not have to prepare the cross-examination. Especially, never underestimate a defense expert. Ask on the record for their expert’s report long before trial. Consider challenging both the scientist and the science through a pre-trial McDaniel hearing. You will hopefully obtain the expert’s sworn testimony and, thus, a better idea of the trial defense. You will at least get a read on the expert’s courtroom demeanor. Whatever witness the defense produces, expert or not, get educated about the information they hope to provide. Prepare your cross- examination using credible sources to buttress every point you want to make. Find ways to emphasize helpful points during cross-examination. Draft questions that tell the rest of the story. Always prepare a cross-examination for the defendant, no matter how much you believe that you will not need it.

19) Logic trumps emotion. Home-invasion robbery. Child rape. Murder for hire. Shocking scenarios produce visceral reactions. However, contrary to popular opinion, logic holds more power than emotion. Show the jury how the evidence logically points to the commission of a crime and that the defendant did it. The convenience store clerk who has never met the defendant before has no reason to frame him. There exists no “pro- prosecution” method of performing short-tandem repeat DNA analysis. Science, crime scene video, evidence collection, etc., provide impartial fingers that can all point at the defendant. Find the logical reasons that contradict the defense position. It’s ok to display emotion if it’s authentic, and if logic and the evidence remain the actual substance of your argument.

20) Back off from the case for a few days. Start preparing for trial early enough to have some time to back off for a bit. Acquire an understanding of your evidence and identify the general theme of the case. Then, forget everything for awhile. Work on your other cases for a few days. Eventually, in moments of cognition concerning something else, insights about the trial case will tend to surface. Perhaps a fresh analogy that communicates the importance of a piece of evidence. Perhaps another line of questioning to illustrate the alibi witness’s close relationship to the defendant. A better witness order. The more you struggle with an issue before you step away from it, the more likely a helpful insight will appear. Getting back into the file after taking a break creates a fresh overall perspective of the case. Write down all the new observations, whenever they surface, and work them into your case.

21) Wrap up as many of your other issues as possible. Crucial hearings, needy victims and the pressing responsibilities related to your other 500 cases need your close personal attention. They perpetually clamor for “hands on” involvement, including during your trial, when you least need your attention divided. Take steps to minimize time-draining tasks unrelated to your trial. Schedule a pretrial Saturday or evening to address, wrap up, delegate and/or reschedule your other important matters.

22) Preempt requests for a continuance. If you really want a trial to go, take the extra effort to prevent a continuance. Some attorneys seem to specialize in getting continuances. Get a scheduling order. Send opposing counsel emails discussing/confirming his readiness for trial. Mention it at pretrial conferences in open court. If a continuance is necessary, hopefully, your efforts will result in the request being made sooner than the morning of trial. Therefore, at the very least, you can inform your witnesses earlier and focus sooner on the other cases which need your attention.

Taking the difficult path maximizes your chances of incredibly meaningful victory. For your hard-won successes hold far more value than an Olympic gold medal. Your victory means that a nine year old girl can feel safe in her own home. Your victory means that a neighborhood can breathe a little easier, because a murderous drug dealer got sent away. Your victory means that a little boy can walk to school and worry less about getting beaten up by gang members and more about getting an education. The most desperate, vulnerable members of society need you to prevail in this contest. So summon THE WILL TO PREPARE TO WIN and seek the unsung legal victories most important to your community.

This article was first published in 2011, is the outline for a CLE webinar entitled “Winning Your Case: Trial Preparation Techniques for Prosecutors” available on and the entire article is available in full as a pdf here.

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