The vast majority of criminal cases are resolved without the need for a trial. However, every person accused of a crime in the United States has the right to a trial by jury which is guaranteed by the U.S. Constitution. If you are currently facing criminal charges and have decided to take your case to trial, or are even contemplating a trial, you probably want to know more about how your criminal defense attorney will prepare your case for trial. Although every criminal case involves a unique set of facts and circumstances, there are a number of common steps most defense attorneys will take when preparing a case for trial.
At Petersen Criminal Defense Law, we understand how frustrating it can be to feel as though you lack sufficient information to make important decisions which may impact your freedom and your future. For this reason we created a guide illustrating what steps a defense attorney will likely take when readying your case for trial. Some of these steps are taken in every criminal case, without regard to how the case is resolved while other steps are only taken after making the decision to proceed to trial. If you have specific questions or concerns about preparing your case for trial, please feel free to contact Petersen Criminal Defense Law directly to discuss the particulars of your case.
Initial Steps in Defending a Criminal Case
The following steps are taken in any criminal case, without regard for how the case is ultimately resolved:
- Filing official appearance. The first step your defense attorney will take is to file an official appearance with the court. This alerts both the court and the prosecuting attorney that you are represented by counsel. From that point forward, no one may speak to you about the case without your attorney present.
- Advising defendant about rights. This is much more important than it may sound. Most people have a vague knowledge that they have rights, but the average person does not always know what those rights are nor how and when to exercise them.
- Reviewing probable case affidavit and other preliminary documents. When you were arrested, the arresting officer prepared a probable cause affidavit, or police report, which lays out the details allegedly providing the legal basis for your arrest. This is the starting point for your defense.
Steps in the Discovery Process
Many of the following steps will be taken in every criminal case. However, some will only be taken if the defendant decides to go to trial. These steps include:
- Filing a motion for discovery, if necessary. The term “discovery” refers to the process by which information is exchanged in a criminal prosecution. The prosecuting attorney, for example, must provide your attorney with a list of all State witnesses, all evidentiary reports, and other critical pieces of the case against you. Many jurisdictions have a standing discovery order which requires the prosecuting attorney to turn over this material automatically while others require the defense attorney to officially request it.
- Scheduling and conducting depositions. A deposition occurs outside of the courtroom but in the presence of a court reporter and while the person being deposed is under oath, meaning the penalties of perjury apply. Your attorney can depose any of the State’s witnesses. During a deposition, your attorney can ask the witness questions which will likely be asked at trial to find out what the witness will say at trial. Those answers can be used to impeach the witness if the witness says anything different at trial.
- Arranging for defense experts to analyze evidence. The State may have had certain evidence, such as ammunition, electronic records, or injuries, analyzed by experts for the State. The defense has the right to have their own experts analyze the same evidence.
- Filing preliminary motions. This includes things such as a motion to exclude evidence if your attorney believes there is a legal basis by which the evidence should be kept out, such as in the case of an illegal search and seizure. Typically, a hearing is held to argue these motions in front of the judge.
Final Steps for Trial
These steps will only be taken if a case is going to be resolved at trial:
- Preparing jury instructions and final witness lists. Your attorney must file a final witness list letting the State know every person who might be called as a witness for the defense. Each side may also file proposed jury instructions which may be used to explain important concepts to the jury.
- Preparing opening and closing statements. Each side is allowed to make both an opening and closing statement in front of the jury (or judge, if a jury trial was waived). These statements explain what the attorney plans to prove to the jury and what the attorney believes has been proven.
- Contemplating jury selection. Jury selection is often the most important part of a trial because the jury will decide the defendant’s fate. Many factors go into deciding who you ideally want on your jury. Your attorney will likely spend a considerable amount of time considering this issue.
- Preparing the defendant to testify if applicable. The defendant is never required to testify because the State has the burden of proving the defendant’s guilt. However, sometimes the decision is made to allow the defendant to testify anyway. Because the prosecutor will also get to question you, your attorney will need to prepare you for both direct and cross-examination to ensure you are prepared for your testimony.
If you have been charged with a criminal offense in the State of Nebraska, it is certainly in your best interest to consult with an experienced criminal defense attorney right away to discuss what defenses might be available to you. In Nebraska contact Petersen Criminal Defense Law 24 hours a day at 402-509-8070.