K. TrialStandards here address these topics:
See also Compendium Volume II, "Standards on Attorney Performance," pages I1-I44.
Commentary. As the ABA standards imply, important parallels between the criminal justice system and the juvenile justice system have serious implications for the latter's standards. See related standards in Compendium Volume II, "Standards on Attorney Performance," pages I8-I13.
ABA Juvenile Justice Standards Relating to Counsel for Private Parties
7.6 Selection of and relations with jurors
Where the right to jury trial is available and exercised in juvenile court proceedings, the standards set forth in sections 7.2 and 7.3 of the ABA Standards Relating to the Defense Function should generally be followed.
Massachusetts Committee for Public Counsel Services, Assigned Counsel Manual: Policies and Procedures
J 7.4 Voir Dire and Jury Selection
(a) Preparation
(1) Counsel should be familiar with the law governing the selection of the jury venire. Counsel should also be alert to any potential legal challenges to the composition or selection of the venire.
(b) Examining the Prospective Jurors(2) Counsel should be familiar with the local practices and the individual trial judge's procedures for selecting a jury, including Superior Court Rule 6, and should be alert to any potential legal challenges to those procedures.
(3) Prior to jury selection, counsel should seek access to the juror questionnaires that have been completed by potential jurors.
(4) Counsel should develop and file in advance of trial written voir dire questions tailored to the particular case.
(5) Counsel should be familiar with the law concerning voir dire inquiries so as to be able to defend any request for particular questions.
(6) Counsel should consider asking for extra peremptory challenges
(7) Counsel should consider requesting appropriate voir dire questions regarding the prospective jurors' attitude regarding the juvenile's age and credibility, as well as attitudes toward juvenile crime and whether the Juvenile Court is lenient with juvenile cases.
(1) Counsel should be familiar with case law that requires individual voir dire in certain cases, e.g. inter-racial murder or sexual assault cases, sexual assault on children, "insanity" defenses.
(c) Challenges(2) Where appropriate, counsel should consider seeking permission to personally voir dire the panel, or at the very minimum, if the court poses questions, to ask follow-up questions.
(3) When appropriate, counsel should consider requesting individual juror voir dire even when case law does not require it, particularly if the proposed voir dire questions may elicit sensitive information.
(1) Counsel should challenge for cause all persons about whom a legitimate argument can be made for prejudice or bias.
(2) When challenges for cause are not granted, counsel should consider exercising peremptory challenges to eliminate such jurors.
(3) In exercising challenges for cause or peremptory strikes, counsel should consider both the panelists who may replace a person who is removed and the total number of peremptory challenges available.
(4) Counsel should make every effort to consult with the client in exercising challenges.
(5) Counsel should be alert to prosecutorial misuse of peremptory challenges and should seek appropriate remedial measures.
(6) Counsel should be aware that the number of challenges in a juvenile case is governed by [state law].
Commentary. See also the relevant standards in Compendium Volume II, "Standards on Attorney Performance," pages I20-I25.
ABA Juvenile Justice Standards Relating to Counsel for Private Parties
7.8 Examination of witnesses
The lawyer in juvenile court proceedings should be prepared to examine fully any witness whose testimony is damaging to the client's interests. It is unprofessional conduct for counsel knowingly to forego or limit examination of a witness when it is obvious that failure to examine fully will prejudice the client's legitimate interests.
The lawyer's knowledge that a witness is telling the truth does not preclude cross-examination in all circumstances, but may affect the method and scope of cross-examination. Counsel should not misuse the power of cross-examination or impeachment by employing it to discredit the honesty or general character of a witness known to be testifying truthfully.
The examination of all witnesses should be conducted fairly and with due regard for the dignity and, to the extent allowed by the circumstances of the case, the privacy of the witness. In general, and particularly when a youthful witness is testifying, the lawyer should avoid unnecessary intimidation or humiliation of the witness.
A lawyer should not knowingly call as a witness one who will claim a valid privilege not to testify for the sole purpose of impressing that claim on the fact-finder. In some instances, as defined in the ABA Code of Professional Responsibility, doing so will constitute unprofessional conduct.
It is unprofessional conduct to ask a question that implies the existence of a factual predicate which the examiner knows cannot be supported by evidence.
Massachusetts Committee for Public Counsel Services, Assigned Counsel Manual: Policies and Procedures
J 7.6 Confronting the Prosecution's Case
(a) Counsel should research and be fully familiar with all of the elements of each charged offense and should anticipate weaknesses in the prosecution's case.
(b) Counsel should systematically analyze all potential prosecution evidence, including physical evidence, for evidentiary problems.
(c) In preparing for cross-examination, counsel should make an effort to be familiar with the applicable law, procedures and techniques concerning cross-examination and impeachment of witnesses.
(d) In preparing for and carrying out cross-examination, counsel should also:
(1) develop a coherent and sensible theory of the case, along with the framework of the closing argument;
(e) If counsel is surprised by any statement or items which should have been provided in discovery, but were not, counsel should request adequate time to review these before commencing cross-examination and should consider seeking any possible sanctions.(2) anticipate those witnesses the prosecution might call in its case-in-chief or in rebuttal;
(3) integrate cross-examination, the theory of the defense and closing argument;
(4) consider whether cross-examination of each witness is necessary or likely to generate helpful information;
(5) review and organize all prior statements and testimony of each witness;
(6) be alert to inconsistencies and variations within each witness's testimony or contradictions (including material omissions) in prior statements by the witness;
(7) be alert to significant omissions or deficiencies in the testimony of any witness, e.g., investigative steps not taken, persons not interviewed by the police, failure to mention obvious physical characteristics;
(8) consider using certified copies of prior convictions or pending cases of witnesses, keeping in mind that juvenile adjudications may be used in the same manner as adult convictions.
(9) be alert to all issues relating to witness competency or credibility, including bias or motive for testifying.
(f) Counsel should carefully consider the advantages and disadvantages before entering into stipulations concerning the prosecution's case.
(g) Unless it is clearly frivolous, counsel should move at the close of the prosecution's case and out of the presence of any jury for a required finding of not guilty on all charges and/or any aggravating element, where appropriate. Counsel should request, when necessary, that the court immediately rule on the motion, in order that counsel may make an informed decision about whether to present a defense case.
J 7.7 Presenting the Defense Case
(a) Counsel should develop, in consultation with the client, a sensible overall defense strategy. Counsel should consider and advise the client whether the client's interests are best served by not offering testimony or evidence, but by relying on the prosecution's failure to meet its burden of proof instead.
(b) Counsel should discuss with the client all of the considerations relevant to the client's decision whether to testify (including the likely areas of cross-examination and impeachment).
(c) Counsel should understand both the elements and tactical considerations of any affirmative defense, and should know whether the client bears a burden of persuasion or a burden of production.
(d) In preparing for presentation of a defense case, counsel should, where appropriate:
(1) consider all potential evidence which could corroborate the defense case, and the import of any evidence which is missing;
(e) In developing and presenting the defense case, counsel should consider the implications it may have for a rebuttal by the prosecutor.(2) after discussion with the client, make the decision whether to call any witnesses;
(3) develop a plan for direct examination of each potential defense witness;
(4) determine the implications that the order of witnesses may have on the defense case;
(5) consider the possible use and careful preparation of character witnesses, along with the risks of rebuttal and wide-ranging cross-examination;
(6) consider the need for expert witnesses, especially to rebut any expert opinions offered by the prosecution;
(7) consider the use of physical or demonstrative evidence and the witnesses necessary to admit it;
(8) attempt to obtain the prior records of all defense witnesses.
(f) Counsel should prepare all witnesses for all foreseeable direct and cross-examination. Counsel should also advise witnesses on suitable courtroom dress, demeanor and procedures, including sequestration.
(g) Counsel should systematically analyze all potential defense evidence for evidentiary problems. Counsel should research the law and prepare legal arguments in support of the admission of each piece of testimony or other evidence.
(h) Counsel should conduct a direct examination that follows the rules of evidence, effectively presents the defense theory, and anticipates/defuses potential weak points.
(i) If an objection is sustained, counsel should make appropriate efforts to re-phrase the question(s) and/or make an offer of proof.
(j) Counsel should guard against improper cross-examination by the prosecutor.
(k) Counsel should conduct re-direct examination as appropriate.
(l) At the close of the defense case, counsel should renew any previously filed motions for a required finding of not guilty on each charged count and/or aggravating element.
(m) Counsel should keep a record of all exhibits identified or admitted.
Commentary. The Massachusetts standards presented here parallel those for criminal court proceedings. See, generally, Compendium Volume II, "Standards on Attorney Performance," pages I2-I7, I14-19, and I33-I40.
Massachusetts Committee for Public Counsel Services, Assigned Counsel Manual: Policies and Procedures
J 7.1 General Trial Preparation
(a) Counsel should consider all steps necessary to complete investigation, discovery, and research in advance of trial, such that counsel is confident that the most viable defense theory has been fully developed, pursued, and refined. This preparation should include consideration of:
(1) summoning all potentially helpful witnesses, utilizing ex parte procedures if advisable;
(b) Where appropriate, counsel should have the following materials organized and accessible at the time of trial:(2) summonsing all potentially helpful physical or documentary evidence;
(3) arranging for defense experts to consult and/or testify on any evidentiary issues that are potentially helpful, e.g., testing of physical evidence opinion testimony, etc.;
(4) obtaining and reading transcripts and other records of prior proceedings in the case or related proceedings;
(5) obtaining photographs or preparing charts, maps, diagrams or other visual aids of all scenes, persons, objects, or information which may aid the fact finder in understanding the defense case.
(1) copies of all relevant documents in the case;
(c) Counsel should be fully informed of the rules of evidence, and the law relating to all stages of the trial process, and should prepare for all legal and evidentiary issues that can be anticipated in the trial.(2) relevant documents prepared by investigators;
(3) proposed voir dire questions;
(4) outline of opening statement;
(5) cross-examination plans for all possible prosecution witnesses;
(6) outline of argument for required findings of not guilty and authorities supporting it;
(7) direct examination plans for all prospective defense witnesses;
(8) copies of defense subpoenas;
(9) prior statements of all prosecution witnesses (e.g., Grand Jury minutes transcripts, police reports);
(10) prior statements of all defense witnesses;
(11) reports from defense experts;
(12) a list of all defense exhibits, and the witnesses through whom each will be introduced;
(13) proposed jury instructions with supporting case citations;
(14) copies of all relevant statutes and cases, including statutes and cases relating to any potential lesser-included offenses;
(15) outline or draft of closing argument.
(d) If it is beneficial, counsel should seek an advance ruling on issues likely to arise at trial (e.g., use of prior convictions to impeach the defendant, prior bad acts, reputation testimony, prejudicial evidence) and, where appropriate, counsel should prepare motions and memoranda for such advance rulings.
(e) Counsel should be alert to and understand the importance of establishing, for appellate purposes, a complete record of the trial proceedings, and be fully informed of the applicable law and practices regarding:
(1) preservation of each type of objection at every stage of the proceedings;
J 7.2 Sequestration(2) offers of proof regarding evidence ruled inadmissible;
(3) recording of trial proceedings. Counsel should make every attempt to obtain a stenographer, rather than rely only on a tape recording.
Unless tactically inadvisable, counsel shall seek sequestration of all witnesses (including police, if possible) for trial.
J 7.3 Bench Trial or Jury Trial
(a) The decision to proceed to trial with or without a jury rests solely with the client after complete advice of counsel.
(b) Counsel should fully advise the client of the advantages and disadvantages of either a jury or jury-waived trial. Counsel should exercise great caution before advising a jury waiver, especially without thorough discovery, including knowledge of the likely availability of prosecution witnesses, and their likely responses to cross-examination.
J 7.5 Opening Statement
(a) Counsel should consider the strategic advantages and disadvantages of making an opening statement, of disclosing particular information during the opening, and of deferring the opening statement until the beginning of the defense case.
(b) Counsel should be familiar with the law governing opening statements, particularly in a case where counsel does not plan to present any affirmative evidence. In addition, counsel should attempt to be familiar with individual trial judges' practices regarding the permissible content of opening statements.
(c) Counsel's objectives in making an opening statement may include the following:
(1) to provide an overview of the theory of the defense case;
(d) Counsel should consider incorporating in the defense summation the promises of proof the prosecutor makes to the jury during his/her opening statement.(2) to summarize the testimony of witnesses and the role of each in relationship to the entire case;
(3) to describe the exhibits which will be introduced and the role of each in relationship to the entire case;
(4) to identify the weaknesses of the prosecution's case;
(5) to remind the jury of the prosecution's burden of proof;
(6) to clarify the jurors' responsibilities;
(7) to personalize the client and counsel to the jury.
(e) Counsel should be prepared to object the prosecutor's opening statement if it is improper and to seek curative instructions or a mistrial.
J 7.8 Closing Argument
(a) Before argument, counsel must file and should seek to obtain rulings on all requests for instructions in order to tailor or restrict the argument properly in compliance with the Court's rulings.
(b) Counsel should be familiar with the law and the individual judge's practice concerning time limits, objections and substance of closing arguments.
(c) In developing closing argument, counsel should review the proceedings to determine what aspects can be used and persuasively argued in pursuit of the defense theory of the case. Counsel should consider:
(1) highlighting weaknesses in the prosecution's case, including what potential corroborative evidence is missing, especially in light of the prosecution's burden of proof;
(d) Whenever the prosecutor exceeds the scope of permissible argument, counsel should consider objecting (either immediately or at conclusion of argument), requesting a mistrial, or seeking cautionary instruction.(2) favorable inferences to be drawn from the evidence;
(3) incorporating into the argument:
(a) helpful testimony from direct and cross-examination;
(4) the effects of the defense argument on the prosecutor's possible rebuttal argument.(b) verbatim instructions drawn from the expected jury charge;
(c) responses to anticipated prosecution arguments;
J 7.9 Jury Instructions
(a) Counsel must file proposed or requested jury instructions before closing argument.
(b) Counsel should be familiar with the law and the individual judge's practices concerning ruling on proposed instructions, charging the jury, use of standard charges and preserving objections to the instructions.
(c) Counsel should submit both standard and modified jury instructions tailored to the particular circumstances of the case and should provide case law in support of the proposed instructions.
(d) Where appropriate, counsel should object and argue against instructions proposed by the prosecution.
(e) If the court refuses to adopt instructions requested by counsel, or gives instructions over counsel's objection, counsel should take all steps necessary to preserve the record, including, where appropriate, filing a copy of the proposed instructions or reading the proposed instructions into the record.
(f) During delivery of the charge, counsel should be alert to any deviations from the judge's planned instructions. After the charge, counsel should object on a timely basis to deviations and any other instructions unfavorable to the client, and, if necessary, request additional or curative instructions.
(g) If the court proposed giving supplemental instructions to the jury, either upon request of the jurors or upon their failure to reach a verdict, counsel should request that the judge give counsel a meaningful opportunity to be heard (outside the jury's presence) on the supplemental instruction before it is delivered.
J 7.10 Taking Verdicts
Counsel should be alert to any improprieties in the verdict and consider requesting that the jury be polled.