Episode Transcript
[00:00:00] Foreign.
[00:00:06] It's Lacey. And unfortunately, no Lauren this week. But welcome to another episode of the Llamas podcast.
[00:00:14] I think with the holidays and vacations, me and Lauren both went to Disney World and we both had a lot of work coming back the first of the year.
[00:00:25] Unfortunately, we have just not been able to get together with our schedules to be together.
[00:00:31] It's been really hard. I really love doing this with Lauren. It's a lot better. It's probably because she's one of my best friends and when we do this podcast, we can just catch up on life a little bit. And we do not live near each other, so it's just kind of nice to see each other's faces. But I really hope we are back together next week. Fingers crossed. I actually was out last week and I thought I would be out this week as well because I was prepping for a trial, but the trial fell through. Sometimes trials fall through due to pleas. Sometimes it falls through because of other cases being called. So what I am here to talk about is how we prepare for cases that are going to trial.
[00:01:18] I do think every attorney is different in how they trial prep.
[00:01:22] I do think me and my law partner are very similar in how we prep for trial. I think some people probably do more than us.
[00:01:31] I doubt much more than us, just because we really do put so much into our cases.
[00:01:37] And I think there are some attorneys that, you know, probably don't do as much as us. And honestly, it also very much depends on the type of trial that it is and how you prepare.
[00:01:52] So, for example, one of the hardest cases to actually try, in my opinion, when you're just talking about preparation, right, because there's two things in prepping for a trial. One, it's the emotions.
[00:02:06] Two is the case itself. So what I can say is when I say the hardest case, I mean the case itself, not the emotions. And that would be, in my opinion, a case that involves a DUI or something that involves DNA testing or some type of scientific portion coming in with experts like that. Those are some of the hardest cases to, in my opinion, prepare for because they are so technical and the way our statutes are worded and how they're interpreted, there's a good bit of case law out there. There's grounds to suppress certain tests. There's different opinions if things are going to be suppressed or not. So it's just very complicated.
[00:02:54] Also, unfortunately, with our DUIs, we have a wide range of where judges are and what they believe with certain suppression issues.
[00:03:04] So you also have to kind of know what jurisdiction you're in and how those judges lean with your evidence. So I think DUIs are just really hard and technical when you're preparing for a DUI trial. When I'm preparing for a DUI trial, the first thing that I'm going to look at is what evidence is coming in.
[00:03:26] Do I have any grounds for any evidence to be thrown out?
[00:03:30] So in your standard dui, typically there are field sobriety tests. There are three field sobriety tests approved by nhtsa. That's called the horizontal gaze nystagmus test. That's the first one. And that is when an officer asks you to follow a pen or his finger side to side with your eyes.
[00:03:50] The second is a walk and turn. Walk nine steps, come back nine steps. And the third one is the one leg stand you may see on movies where they ask you to do the Alphabet, ask you to do it backwards, start with one letter, end with another letter. Those tests are not approved by nhtsa. And what that means is, if I'm preparing for a trial and I see those tests, if my client didn't do very well on them, I could move to suppress those tests, which means the jury would not see them.
[00:04:18] When you're looking at the other three tests, they have to follow SLED guidelines, NHTSA guidelines, to make sure they are standardized and done correctly or they do not come in. For example, on the walk and turn, we have a videotaping statue. And what that says is, if I can't see the feet on the walk and turn, which means I can't see how the test is whether it was done correctly or incorrectly. If I can't see those clues, that's grounds for suppression of that test, which would mean that would not come in as well to a jury trial. So with that, you also, like I said, have the one leg stand.
[00:05:01] Of course, the biggest thing is if there is a breath test, if there is a breath test, whether that number is going to be admissible to the jury and how weighted it is.
[00:05:14] So I have been doing a lot more with DUIs lately, learning so much more about. About the data Master Machine, how it operates. And I have been seeing ways that it can be manipulated to elevate the number.
[00:05:31] I can let y' all know that SLED does not care no matter how much I point it out and show that this isn't fair to people.
[00:05:40] SLED will not introduce policies to get it right, in my opinion. I don't think they care whether the number is right. They just want a number, and they Just want to prosecute people whether or not it's the right number and they're prosecuting them accurately or not.
[00:05:54] Some of our judges are suppressing the test. If it is thrown off, they will give us some credibility when we show it to them. Some judges don't are just like, well, if sled doesn't have a policy on it, I'm just going to leave it be.
[00:06:10] But yeah, so that's something that we're currently fighting right now. So DUI is, like I said, just a very technical trial to prepare for because those are the biggest things that juries really do look at. Whether or not a client testifies or not. It's ultimately their decision. But we do advise them on what we think as defense attorneys, whether or not they take the stand. I would tell you some attorneys like to put their client on the stand because if a jury likes them, finds them likable, that may help in a case.
[00:06:47] But sometimes the case is just really rough and you know, they would be subject to cross examination from the prosecutor and that might not be the best thing in your case. So when I'm preparing for, like I said, a dui, those are the things I'm looking at. And my cross examination questions are oftentimes based on what the officer failed to do. Because oftentimes there's a lot of things they don't put in their report that my clients did correctly that would lean towards them not being materially, appreciably impaired. So that is how I prepare for a case like that. In a nutshell, there are many different cases where it's solely based on credibility.
[00:07:27] I can't tell you how many times I get calls from potential clients and they're like, there's no evidence. It's a he said, she said case. There are a lot of cases that are he says, she said cases. And there's evidence because somebody's testimony is evidence.
[00:07:44] If somebody makes an allegation of a crime and the police believe that testimony, even if there's no other evidence to back it up, no other physical proof, if they believe them, that is enough probable cause to make an arrest.
[00:07:59] From there, then it's up to a jury to decide whether or not there's proof beyond reasonable doubt. And that is the burden of proof in criminal court. We actually have. The state actually has the highest burden of proof to convict someone of a crime. It is the type of doubt for which you can give a reason.
[00:08:17] So when I have people call and says, he said, she said case, I always have to remind Them that is evidence. Testimony is evidence. It is.
[00:08:25] When we prepare for a trial, what we're looking at is credibility. How do we show that our client is telling the truth? Incredible.
[00:08:36] And what issues and credibility do we see on the witnesses from the state side?
[00:08:43] So typically when we see stuff like this, you do see it in domestic violence cases, but I will say with domestic violence cases a good bit. You are going to see some type of injury. It may not be something huge. It may be a red mark, a scratch, a bite mark, but you are going to see typically injuries. And so then you have more than he said, she said, because you do also have those, those physical injuries coming in as evidence. When you're gauging it now, if there's injuries on both sides and one party is arrested the other is not, then you're looking at who was the primary aggressor, was one of the, what did one party act in defense of the other. So that's what we look at when preparing for trial.
[00:09:40] So Sean Kent, he is an attorney here in his trial preparation, his theory is always be closing. And what he's looking at is he, from what I've heard, it sounds like he writes his closing argument first.
[00:09:54] So the way that a jury works is first you have jury qualifications, of course, and picking a jury. And once the trial begins, the state gets to have an opening statement and it's basically their summarization of what they believe the trial will show and that that will lead to a verdict of guilty.
[00:10:14] After that, the defense attorney gets to do the same thing and explain their summarization of the facts or what they think that the case is going to be about and then why they believe that the jury will come back with a verdict of guilty.
[00:10:30] From there, the state calls their witnesses first because the burden of proof is on them. So when we're preparing for a case, we draft cross examination questions of those witnesses.
[00:10:42] And there's. I've, I've read a lot of transcripts. There's good cross examination questions and bad.
[00:10:50] There are several attorneys that will cross examine and basically ask the same questions as the state. That's not very effective and that's going to bore a jury and probably would bore anybody listening here.
[00:11:04] So what we try to do is come up with what big things help our case from this witness and then craft questions under those big topics.
[00:11:15] Once the state closes their case, the defense can put on a case, but they don't have to because again, the burden is not on us.
[00:11:23] If we do have witnesses that we are Going to put up or.
[00:11:26] Or client.
[00:11:28] We draft what's called cross examination questions and again we hit big topics of what do we need this witness to show to show that our client is not guilty. And then we draft questions under those topics.
[00:11:41] When we're preparing if we are going to put our client on the stand.
[00:11:46] It's a lot of working with our client while me and my law partner probably we get nervous talking to a jury. I'm not saying that I think anybody gets nervous talking to a jury, but we are used to it. We are used to standing up and talking to a judge, to a jury, to a prosecutor.
[00:12:05] There is, you know, experience there, whereas our clients don't have that. So it's very nerve wracking. So we want to make sure that they're prepared if they are going to take the stand.
[00:12:18] We have done many things to do that. My law partner has actually prepared a client at their house, met with them several times at their house to prepare for that.
[00:12:29] We have other their attorneys if they're willing to cross examine our clients. Just to get them used to that kind of a format.
[00:12:37] We have taken clients to an attorney's. Some attorneys have like built in small courtrooms.
[00:12:45] It's really cool because sometimes we have taken clients there to practice their testimony so that way they can get used to, you know, swearing under oath, getting on the stand and all of that. So we have done those types of things as well in preparing other things you do is you have to serve subpoenas on your witnesses. So you have to have an investigator for that. For us being in private practice, we have to pay every time. We have to subpoena anybody that's coming to our trial.
[00:13:17] We oftentimes get a jury list and we want to go through that jury list to see does our client know anybody? Did they think any of the state witnesses knows anybody on there? That may be bias. We're looking online to see if there's any biases in the jury.
[00:13:33] Me and my law partner will walk through our opening arguments together, closing arguments together.
[00:13:39] It was funny because my law partner was going to be lead on the case this week and one time she got off the phone and she said, all right, I have to go practice my opening while I'm driving and I can't tell you how many times I have done the same there where I will practice my opening argument in the car.
[00:13:56] I'm really curious, if you're an attorney and you're listening to this, please let me know whether or not you are practicing your Openings and closings in the car. Or maybe me and Laura, just weird and just meant to be.
[00:14:09] But yeah, I can tell you that is how we prepare from a professional standpoint. In a nutshell, emotionally, it's a roller coaster. It's really hard. If I'm walking into magistrate court trying a dua, a TV third and AB third, shoplifting, I think I've tried all of those in magistrate court, to be honest, the stakes aren't very high.
[00:14:36] Most of Those cases are 30 days, 90 days.
[00:14:41] Yes, it would be extremely hard for our clients to serve those a lot of times, but it's not going to substantially alter their lives.
[00:14:51] When you get in general sessions court, you get higher felonies and stuff like that, and on up to murder. Those trials are really hard emotionally, especially if you truthfully believe your client didn't do it.
[00:15:04] Oftentimes we get asked like, how could you represent somebody guilty? And I combat that and I said, you don't know how hard it is to represent someone that you truthfully believe is innocent.
[00:15:15] If you. If you believe your client is guilty and they get convicted, you just hope for the best, you know, outcome and sentencing.
[00:15:22] But typically, I think you can live with the outcome.
[00:15:27] Because I feel like a lot of times in those cases, there's probably plea offers and plea negotiations and maybe it's just been difficult to come to a resolution.
[00:15:35] But when you have a client that is innocent and you firmly believe they are innocent, those are the hardest cases to go to trial.
[00:15:44] Because if they do get convicted, there's so many factors that can go into it. But a defense attorney most of the time will blame themselves. What if I did this? What if I asked that question?
[00:15:54] Should I have objected here?
[00:15:57] You know, we're still human and we may think we have the perfect presentation and this is how it's going to go and feel so great. And you never know what a jury's going to see and do.
[00:16:09] I've had a case where afterwards we had jurors regret their decision. I can think of two trials right now afterwards where we talk to them jurors, and they're like, I wish I had not convicted.
[00:16:20] And that really sucks. Right? You look, it's so hard to go back and think about that, but it's very hard emotionally. Up and down.
[00:16:30] Typically, I can say me and my law partner do not sleep a lot when we are in a trial.
[00:16:36] And once it's done, you just kind of crash because everything just kind of stops moving around you when you are in that. I think there May be some people that can. I don't know, but that's just. I know I can't. I. I am barely eating, barely sleeping until I can get to the end because it's so much pressure, especially when I. I believe my client is innocent, or maybe they're just not guilty of the offense for their charge. And it should be something, you know, much lower and you disagree with the prosecutor. But it can be very hard to prepare emotionally. And actually, I don't know how to prepare emotionally. I just get emotional. But that's kind of, in a nutshell, how we prepare for a criminal trial.
[00:17:21] Me, once we get put on a trial docket, me and my law partner are just working.
[00:17:27] It feels like round the clock. We put a lot of preparation into it, and I can't tell you how many times we've prepared for a trial only for it to fall through and plead out or another case, go forward, or we're met with a continuance that was unexpected, maybe by the other party.
[00:17:44] And that is hard as well, because, yeah, like, I've. I've done that. We both have done that so, so many times. But if you have any questions about the criminal process, the criminal trial, and if you're an attorney and have any insight of how you prepare, that may be a little different. I'd be. I would love to hear that, as.
[00:18:07] So everyone has a great weekend, a great week, and I really hope that I'm back with my Lola, that is what I've called her for many years, next week because I miss her greatly. So we will see y' all next week.
