1. Client
Explanation
Defense counsel should explain to the juvenile, in a
developmentally appropriate manner, what is expected to happen before, during
and after each hearing. The attorney should advise the juvenile as to suitable
courtroom dress and demeanor.
2. Materials Available. Where appropriate,
defense counsel should have the following materials available at the time of
trial:
A. Copies of all relevant documents
filed in the case;
B. Relevant
documents prepared by investigators;
C. Outline or draft of opening
statement;
D. Cross-examination
plans for all possible prosecution witnesses;
E. Direct examination plans for all
prospective defense witnesses;
F.
Copies of defense subpoenas;
G.
Prior statements of all prosecution witnesses (e.g. police reports);
H. Prior statements of all defense
witnesses;
I. Reports from all
experts;
J. A list of all defense
exhibits, and witnesses;
K.
Originals and copies of all documentary exhibits;
L. Copies of all relevant statutes and cases;
and
M. Outline or draft of closing
argument.
3. Motions and
Objections
Defense counsel should make appropriate motions, including
motions in limine and evidentiary and other objections, to advance the
juvenile's position at trial or during other hearings. Defense counsel should
be aware of the burdens of proof, evidentiary principles and court procedures
applying to the motion hearing. Further, during all hearings, defense counsel
should preserve legal issues for appeal, as appropriate.
4. Sequestration of Witnesses
Prior to delivering an opening statement, defense counsel
should ask for the rule of sequestration of witnesses to be invoked, unless a
strategic reason exists for not doing so.
5. Opening Statements
A. Defense Counsel should be familiar with
the law and the individual trial judge's rules regarding the permissible
content of an opening statement. Defense Counsel should consider the strategic
advantages and disadvantages of disclosure of particular information during the
opening statement and of deferring the opening statement until the beginning of
the defense case. The objective in making an opening statement may include the
following:
(1) To provide an overview of the
defense case;
(2) To identify the
weaknesses of the prosecution's case;
(3) To emphasize the prosecution's burden of
proof;
(4) To summarize the
testimony of witnesses, and the role of each in relationship to the entire
case;
(5) To describe the exhibits
which will be introduced and the role of each in relationship to the entire
case; and
(6) To state the ultimate
inferences that defense counsel wishes to draw.
B. Whenever the prosecutor oversteps the
bounds of a proper opening statement, defense counsel should consider objecting
or requesting a mistrial unless tactical considerations weigh against any such
objections or requests.
6. Confronting the Prosecutor's Case
Defense Counsel should attempt to anticipate weaknesses in
the prosecution's proof.
7.
Cross Examination
A. In preparing for
cross-examination, defense counsel should be familiar with the applicable law
and procedures concerning cross-examinations and impeachment of witnesses. In
order to develop material for impeachment or to discover documents subject to
disclosure, defense counsel should be prepared to question witnesses as to the
existence of prior statements which they may have made or adopted.
B. Defense counsel should be aware of the law
of competency of witnesses in general and admission of expert testimony in
particular in order to be able to raise appropriate objections.
8. Conclusion of Prosecution's
Evidence
Upon conclusion of the state's evidence, defense counsel
should motion for a judgment of acquittal, make appropriate argument, and
present appropriate case law. See Maine Rules of Criminal Procedure
29. If the motion of acquittal is denied, defense counsel should be
prepared to renew the motion for judgment of acquittal at the end of all
evidence in the case.
9.
Defense Strategy
Defense counsel should develop, in consultation with the
juvenile, an overall defense strategy. In deciding on a defense strategy, an
attorney should consider whether the juvenile's legal interests are best served
by not putting on a defense case and instead relying on the prosecution's
failure to meet its constitutional burden of proving each element beyond a
reasonable doubt. In developing and presenting the defense case, defense
counsel should consider the implications it may have for a rebuttal by the
prosecutor.
10. Affirmative
Defenses
Defense counsel should be aware of the elements of any
affirmative defense and know whether the juvenile bears the burden of
persuasion or a burden of production.
11. Direct Examination
Defense counsel should prepare all witnesses for direct and
possible cross-examination. Where appropriate, defense counsel should also
advise witnesses of suitable courtroom dress and demeanor.
12. Preservation of Appellate Record
Throughout the trial process defense counsel should endeavor
to establish a proper record for appellate review.
13. Client's Right to Testify
A. It is the juvenile's right to decide
whether to testify. However, it is defense counsel's obligation to advise the
juvenile on the advantages and disadvantages of testifying. This advice should
include consideration of the juvenile's need or desire to testify, any
repercussions of testifying, the necessity of the juvenile's direct testimony,
the availability of other evidence or hearsay exceptions which may substitute
for direct testimony by the juvenile, and the juvenile's developmental ability
to provide direct testimony and withstand possible cross-examination.
B. Defense counsel should be familiar with
his or her ethical responsibilities that may be applicable if the juvenile
insists on testifying untruthfully. Defense counsel should maintain a record of
the advice provided to the juvenile and the juvenile's decision concerning
whether to testify.
14.
Preparation of Juvenile to Testify
Defense counsel should prepare the juvenile to testify. This
should include familiarizing the juvenile with the courtroom, court procedures,
and what to expect during direct and cross-examination. Often the decision
whether to testify may change at trial. Thus, it is beneficial to prepare in
case the juvenile chooses to testify.
15. Questioning the Juvenile
Defense counsel should seek to ensure that questions to the
juvenile are phrased in a developmentally appropriate manner. Defense counsel
should object to any inappropriately phrased questions by the court or an
opposing counsel.
16. Renew
Motion for Judgment of Dismissal
At the close of the defense case, defense counsel should
renew the motion for judgment of acquittal on each charged count, renew all
prior objections and motions and if appropriate submit further argument to the
court.
17. Closing
Arguments
A. Defense counsel should be
familiar with the local rules and the individual judge's practice concerning
time limits and objections during closing argument and provisions for rebuttal
argument by the prosecution.
B. In
developing closing argument, defense counsel should consider:
(1) Highlighting the weaknesses in the
prosecution's case;
(2) Describing
favorable inferences to be drawn from the evidence;
(3) Helpful testimony from direct and
cross-examinations; and
(4)
Responses to anticipated prosecution arguments.
C. Whenever the prosecutor exceeds the scope
of permissible argument, defense counsel should consider objecting and
requesting a mistrial, unless tactical considerations suggest
otherwise.
