Elmer McDuffy: Criminal Defense Lawyer Heber City Utah

Motions for a change of venue are made when the defense believes that a fair trial cannot be obtained in the community in which the crime took place due to pretrial publicity. The defense can request that the trial be moved to a different location. If the judge agrees, then the trial is moved to a different venue.

Motions for discovery are made to help the defense in preparation for trial. The discovery process helps trials to move along more quickly by heading off surprises that might lead to legal disputes and cause delays at trial. Discovery allows the defense to examine the evidence gathered by the prosecutor. This may include a list of the witnesses that the prosecution plans to call. Discovery may also require the prosecution to give the defense access to all material evidence and the opportunity to subject it to independent testing. Normally, if the defense takes advantage of discovery, the prosecutor may also examine the defense evidence. If the defense case rests on the defendant’s mental capacity to support the mens rea, then any mental examinations done on the defendant may also be subject to discovery.

A motion to suppress is filed when the defense believes that evidence was gathered illegally. If the judge agrees that there was indeed a violation of the law in the evidence-gathering process, then, normally, the evidence will be excluded from trial. Most cases do not involve motions to suppress evidence and they are successful in even fewer cases.

Plea Bargains

Plea bargains can be made at any stage of the process, but most often they are struck shortly before trial after both sides have a full understanding of what evidence will and will not be admissible at trial. The prevalence of plea bargaining may be explained by the benefits that all the sides derive from the practice. Plea bargains are attractive because they give each player involved, including the defendant, an acceptable resolution of the case. For defendants, plea bargains almost always guarantee a less severe penalty than they would receive if they were convicted at trial. For prosecutors, plea bargains ensure that even when their evidence may have been weak, punishment will follow with no chance of an appeal. One additional advantage that all the attorneys and the judge receive from plea bargains is the quick disposition of cases. Before you enter into a plea bargain, speak to an experienced Heber City Utah criminal defense lawyer.

Burden of Proof

In criminal cases, the State, which prosecutes, has to meet the burden of proof. The standard of proof that must be met for a guilty verdict in a criminal case is a finding of guilty beyond a reasonable doubt. While this standard eludes precise definition, there is agreement that defendants do not have to prove their innocence to be found not guilty. It is enough for defendants to raise doubts about their guilt. For the fact finder, this burden of proof does not require a 100 percent belief that the defendant committed the crime before a guilty verdict can be returned; if there are any reasonable doubts, however, the fact finder should not return a guilty verdict.

Trial Strategy

Because the burden of proof rests on the State, the State faces a different set of expectations in criminal trials than defense attorneys do. It is incumbent on the prosecutor to present a set of facts that establishes that a crime did indeed happen and that the defendant was responsible for that crime. Defense attorneys, on the other hand, can draw on several strategies to attempt to win the case. One of these is to claim that the prosecution has not met its burden of proof. Using this strategy, the defense attorney does not have to present any evidence or witnesses. The defense may be able to win the case by picking apart the evidence presented by the prosecutor or by challenging the credibility of the State’s witnesses. If the prosecution successfully shows that a crime was indeed committed, the defense can also deny that the defendant was involved in the crime. While asserting that the defendant is innocent, the defense does not have to offer any alternative theories about who committed the crime. Defendants don’t even have to take the stand to assert their innocence.

Because of the importance of bringing out all the facts that may help win a case, attorneys normally put considerable time and effort into planning the presentation of their case. Getting ready for trial includes identifying and interviewing witnesses. To avoid surprises, an experienced Heber City Utah criminal defense lawyer will also explore the possibility that potential witnesses may be biased or prejudiced against one of the parties to the case. If attorneys don’t want to present all possible witnesses, they must determine which witnesses will seem most credible and subpoena those who will present the strongest case for their side. Attorneys also have to decide in what order to present the evidence to build the strongest possible case.

An experienced Heber City Utah criminal defense lawyer will assist prepare witnesses to testify. This begins with an explanation of the role of the witnesses at trial and an overview of trial procedures. The preparation of witnesses has two separate goals. The first is to help witnesses to testify in as much detail as possible. This does not mean that attorneys tell witnesses what to say, but they need to know what the answers will be to the questions they ask of their own witnesses. To that end, witnesses should be told what questions they will be asked at trial so that there are no surprises. It may also be beneficial to explain to witnesses the theory of the case and the purpose of their testimony.

Witnesses should be told that as the case evolves there may be a need to change the precise questions they are asked to bring out any information that is important to the trial strategy. When witnesses are going to be testifying about exhibits that will be entered into the record, they need to have access to them prior to trial so they will be comfortable using them. Attorneys may also prepare their witnesses by role-playing a mock cross-examination by the opposing attorney. Attorneys should explain their role in protecting the witness from the opposing attorney. All this preparatory work should be done prior to the trial, so that if a witness needs to alter his testimony, he will have adequate time to incorporate the attorney’s suggestions.

A second goal in witness preparation is to help the witness to appear credible. This can be accomplished in a number of ways. One of the simplest is telling the witness what clothes to wear while testifying. It may also be beneficial to tell witnesses the importance of making eye contact with the judge, jury, and attorney during the examination. Witnesses should also be forewarned about the need to appear honest and sincere, not to stretch the truth, not to speculate in their testimony, not to answer questions if they don’t know the answer, and not to lose control of their temper.
The Trial Process

The actual process of a trial will vary, depending on the jurisdiction in which it takes place, but the general steps are as follows:

• The defendant must choose between a judge or a jury trial.

• If a jury trial is selected, the jury must be picked.

• The prosecutor gives the State’s opening statement.

• The defense counsel gives an opening statement.

• The prosecutor presents the State’s case.

• The defense counsel presents the defense’s case.

• Both sides are allowed to present rebuttal evidence.

• The prosecutor makes a closing statement.

• The defense counsel makes a closing statement.

• The prosecution makes a final closing statement in response to the defense counsel’s closing statement.

• If a jury was selected, the judge must give it instructions.

• Deliberations are conducted by either the judge or jury.

• The verdict is announced.

Jury Selection

The determination of whether the verdict will be decided by a judge or a jury is left up to the defendant.

The jury’s role is to determine the guilt or innocence of the defendant. In reaching its decision, the jury is supposed to be guided by two primary considerations: (1) the facts of the case as developed in testimony and evidence and (2) the law of the case as explained by the judge. In making their decision, jurors have a lot of leeway in deciding the subjective facts. They are also given considerable freedom in interpreting the legal instructions given to them by the judge. This freedom is enhanced because when they reach a verdict neither the jury as a whole nor individual jurors have to explain their actions. There will be no report issued explaining which witnesses were considered unbelievable, which evidence seemed credible, or how strictly they applied the law to the facts of the case.
Because the jury is free to interpret the subjective facts and substantive law, both the prosecutor and the defense attorney will try to select jurors who may be disposed to accepting their version of the facts and law. Many attorneys believe that trials can be won or lost based on the jury that is selected. While attorneys for each side try to select a jury that will be favorable to the result they seek, the trial court works to seat a “fair” jury. This entails several steps, including compiling a master list of jurors, the venire, and the voir dire.

The pool of prospective jurors is established by developing a master list of possible jurors. In Utah jurors are picked from the voters list and driving license list. The second stage in jury selection is the venire. The venire is made up of individuals whose names are drawn from the master list. Each member of the venire receives a summons to appear for possible jury service. Those who appear at the courthouse are divided into a number of different panels for different prospective trials. Each panel generally has three or four times as many people as needed for the actual jury. The selection process then moves on to the next stage, the voir dire.

Voir dire is a method of trying to determine if prospective jurors have biases or prejudices that would limit their ability to objectively consider the evidence. Voir dire is usually translated as “to speak the truth.” During the voir dire, prospective jurors are subjected to a series of questions. Usually the questions are presented by the attorneys in state courts and the judge in federal courts. Prospective jurors are urged to answer honestly to help the judge and the attorneys determine whether they will show any bias in the trial based on preconceived views. Any prospective juror who shows an inability to examine the evidence with impartiality may be challenged by either of the attorneys with cause. If the judge agrees that there is cause to believe that the prospective juror will not be able to objectively examine the evidence, the individual will be dismissed. It is not uncommon for potential jurors to be removed for specific bias, such as knowing someone involved in the trial, or nonspecific bias, such as a general bias like racism that limits their ability to remain open-minded. There is no limit to how many individuals may be challenged and excused for cause.

At the end of the voir dire process, each attorney is also given a number of peremptory challenges. The number of these challenges varies from case to case, depending on the seriousness of the charges. In exercising a peremptory challenge, attorneys do not need a reason to dismiss a prospective juror. Peremptory challenges allow both attorneys to exercise any hunches they have about individuals within the panel whom they believe may be showing leanings toward the other side.

If you have been charged with a crime, you require an experienced Heber City Utah criminal defense lawyer who will fight and get the charges dismissed. Your entire future is at stake. Act now to avoid being convicted. Don’t waste any more time call Ascent Law LLC today.