Summary: In the Theater of Justice, the prosecutor is your adversary . Do not expect mercy or kindness where justice
is required. Confrontation victims and witnesses have been hurt and are likely very angry.
You must mentally and emotionally be prepared for the drama of your trial. The author is a seasoned
criminal defense lawyer who has written this article from his vast experience to guide you while you are trying to understand
how to relate to the prosecutor and confrontation witnesses during trial.
Article: In order to mentally and emotionally prepare yourself for your
upcoming jury trial, you need to understand one basic truth: The prosecutor is your adversary in the Theater
of Justice. The trial is a drama of epoch proportion. You cannot understand this until
you are sitting at the Defense table watching the array of potential jurors walk into the courtroom for the jury selection
process. They look over at you. Perhaps for the first time you are hit with the realization
that you may lose your case and your liberty as well. You will then go away to State prison for an extended
period of time. Now you are fully aware that the prosecutor doesn’t like you. He/She
is truly out to get you convicted and sentenced for the crimes that have been charged in your case. If
you win…you walk. If you lose…you are on your way up the river.
The prosecutor is a highly skilled and experienced lawyer
whose role is to win this case on behalf of all of the citizens of the State. In a short time, the prosecutor
will bring in several witnesses who will tell their story about what you did and how it adversely affected their lives.
The Sixth Amendment to the Constitution of the United States gives you (the defendant) the absolute right “to
be confronted by the witnesses against” you. And confront you they will. They
are hurt, they are angry and, more than anything else, they want you to be convicted. They are about to
look you in the eye and testify against you. They are your confrontation witnesses. How
shall you relate to this adversary-prosecutor and these confrontation witnesses as the drama unfolds?
to Relate to the Prosecutor:
At all times, be cordial. Though this is the enemy, the Court is a dignified place
of professional confrontation. It is not a fight in the school yard. You may notice
your lawyer being congenial and even friendly as he talks with the prosecutor outside the presence of the jury. You
must not get into the chatter.
During Opening Statements the prosecutor may point his accusatory finger at you and tell
the jury to convict you for the heinous crimes that you committed. He will tell of the despicable acts
that you did to the helpless victim. He/She will make it personal. Do not react.
Do not show any emotion. The same soliloquy will again be performed during Closing Argument.
The prosecutor will act these accusations out and blame it all on you. Again, do not react and do
not show any emotion.
you thinking that you should testify on the stand? Then answers to these qustions will be the
key: Have you ever been convicted of a felony crime or a misdemeanor or felony crime of perjury
(lying under oath) or one of moral turpitude (a crime of theft or general dishonesty)?
That means a crime of theft or general dishonesty. If you have been convicted of any of
these things, your lawyer will ask: “Have you ever been convicted of a crime that carries a possible
penalty of imprisonment for a year or more in the State penitentiary?” If you answer “yes”
he will ask you, “How many times?” If you give the honest answer the inquiry stops there, except
that he will follow the same pattern as to crimes of perjury or moral turpitude and you must answer these honestly.
The following scenario depicts events that occurred in an actual trial in Repeat Offender Court. The defendant, over
his counsel’s strenuous objection, asserted his Constitutional right to take the stand. He was asked
the proverbial question to which he answered, “Yes.” Counsel asked how many and cringed as
the defendant, almost with a prideful smile, stated in a loud and distinct voice, “17 convictions, Sir.”
Quite assuredly the jury thought, “If we err at all in our verdict, let it be on the side of sending this guy
away for the rest of his life.” Had he heeded his attorney's advice and not taken
the stand, the verdict might have been in his favor.
If you have
ever been treated for mental problems, as a general rule you shuld not take the stand. Ask yourself
this: “Will my taking the stand and testifying have any chance of helping
my case?” If you believe it will, take a pad and write down ten ways your case will be helped.
Review that list with your lawyer before you make the mistake of taking the witness stand. Also
ask yourself how your testimony may hurt your chances of winning.
If you choose to testify
during the Defense’s case, you will have to be very specially trained to handle the prosecutor’s attack.
Here is a brief list of things to do should you decide to testify:
argue or talk back to the prosecutor
Treat the prosecutor just like you treat your
own attorney when he questions you
Take your time in answering and don’t guess
Have your story summarized into one complete paragraph and stick to it
Look the jury in
the eye and tell them you are not guilty
Speak clearly and choose your words carefully
to Relate to the Confrontation Witnesses:
When the witnesses are testifying give them their due time and space to say whatever they desire.
You must not react to what they say. Don’t throw your pen down and exclaim, “LIAR!”
Let the jury reach that conclusion in their deliberations. You must stay neutral.
If you have to, bite your lip or write on your pad. Excise your emotions out of the trial.
Let your lawyer be the emotional actor in the trial drama as you sit calmly and listen.
In the example below of an actual domestic violence trial, the verdict is the direct result of the defendant who was
well trained by his counsel and followed that counsel's advice. He sat calmly as the victim described how
he came after her in the kitchen and stabbed her with a kitchen knife in her left arm. He was calm and
unemotional and permitted her to have her time testifying. Once the State rested their case-in-chief, he
took the stand. He described how she had taken his whole paycheck and refused to cook him dinner night
after night. He was left with her kids as she would go out partying and leave them alone with no food or
companionship. When it came time for him to describe the assault, he did so exquisitely. He
became visibly distressed. He was crying as he described how she was yelling and relentlessly cursing at
him. She ran after him punching him and he never retaliated. She was so angry that she
grabbed two large kitchen knives and began swinging them at him as he tried to talk her down into calmness for the children’s
sake. The defendant rose to his feet in the jury box and portrayed the events as he was emotionally reliving
them in his mind. She ran at him and he grabbed her arms to stop her but she pulled away and cut herself
just before she thrust the other knife into his left side. His hospital records supported his side of the
story as did the officer that made the arrest. The jury found him not guilty.
He had been prepared well for his performance during the drama of his trial.
In summary, always stay cool in the
Theater of Justice. Whether you are relating to the prosecutor or the confrontation witnesses, let calm
and confidence always prevail. Remember two old adages: never fight out
of anger and wait your turn.
For more helpful information on success strategies for a person charged
with a crime, contact Ira Still, Esquire
Ira Still has been a criminal defense trial lawyer in Florida for over
30 years. He has successfully represented clients on all categories of crimes and in all courts.
Ira has had many, many jury trials and is well known in Miami and Ft. Lauderdale as a very successful trial and appellate
lawyer. He has argued death penalty collateral appeals in the Florida Supreme Court and in various District Courts of Appeal.
He has filed briefs in the United States Supreme Court. Ira is also an author, speaker, teacher,
mentor and coach.
The Law Offices of Ira Still