By Zack Wavrusa
Assistant County & District Attorney in Rusk County
Achieving justice is not easy. Even the best investigated criminal cases, few and far between as they may sometimes seem, require careful preparation on the prosecutor’s part if success at trial is to be an option. And as a prosecutor, nothing quite beats the feeling when all your hard work and preparation bears fruit in the form of a successful jury trial.
Some of us haven’t been before a jury in a long time, and some of us haven’t been before a jury ever. Yet all of us are tasked with going into our respective courtrooms on home invasions, sexual assaults, and DWIs at the top of our game—we owe it to the victims and the communities we represent. Anything less takes a difficult job and pushes it toward the impossible.
As we return to the courtroom en masse, it’s important to remind ourselves what goes into preparing for our first jury trial (or our first jury trial in a long time).
A note on basic assumptions
The vast majority of criminal cases are resolved by dismissal, pre-trial diversion, or plea bargain. Before we begin to prepare a case for trial in earnest, I assume that at least some attempt at resolving the case via one of these three methods has occurred. An attempt to resolve a case without trial requires at least a cursory understanding of the underlying facts of the case. Everything you read from here on out presumes that you have done at least this much before preparing for trial.
This article also assumes you are complying with your office’s policy on discovery. Brady, Art. 39.14 of the Texas Code of Criminal Procedure, and the Texas Disciplinary Rules of Professional Conduct are not things to take lightly. Every office has their own policies and procedures to ensure that it is complying with the obligations placed upon our profession. If you don’t understand the policies, ask a supervisor for clarification. Triple-check your work in this area.
Plea bargains
Some people come out of law school thinking that the inability to settle a case with a plea bargain is a failing on the attorneys’ part, that selecting a case for trial is evidence of their shortcomings. This is false.
There are plenty of reasons why a trial is a necessary, sometimes inevitable, outcome of a case. Certain cases have underlying facts so egregious that justice requires a punishment more severe than the defendant is willing to accept in a plea agreement. In, say, a continuous sexual abuse of a child case with strong evidence for both guilt-innocence and punishment, it is perfectly reasonable to make a high plea recommendation and stick to it. There is nothing about our duty to see justice done that compels us to reduce a plea recommendation simply for the sake of avoiding a jury trial.
Other times, a defendant may reject a generous plea recommendation because he is confident a jury will acquit or assess a lesser punishment. If you have given the issue of punishment a lot of consideration and are confident that your recommendation is fair, but the defendant still wants to see what a jury will do, let him do it. Every trial is an opportunity to sharpen litigation skills, and letting a jury decide a particular set of facts will inform your future case evaluations and plea negotiations. You may find that your recommendations are too stiff or too lenient when viewed in light of a fresh jury verdict.
Finally, your office may have a policy that restricts your authority to make certain recommendations for certain offenses. For example, the elected district or county attorney may have decided that the office won’t recommend probation in burglary of a habitation cases. There will be times that the policy will keep you from reaching an agreement in a case. When that inevitably happens, tee that case up and give it your best. Don’t be afraid of the defendant “beating the offer” or other similar nonsense. Put forth your best effort and use the experience of trial as an opportunity to test and improve your trial skills.
A lesson from my experience: Rusk County has three state jail facilities. Crimes within them are investigated by the Office of the Inspector General (OIG). At some point in 2016, instances of an offender bribing a guard to smuggle contraband items inside became a regular occurrence. When a particularly egregious instance of bribery was submitted to our office, we sat down with OIG investigators and they really impressed upon us the danger that contraband creates for both correctional officers and offenders.
Based on that conversation, I decided not to recommend probation for correctional officers who accepted money in exchange for bringing prohibited items into the jails. Guards and offenders alike deserved the benefit of a safe and secure facility free from contraband.
For a while, this change in our policy rocked along without issue. I was careful to explain the rationale behind it to the local defense bar and made reasonable plea recommendations within the context of that policy. Eventually, though, a correctional officer was accused of supplying offenders with smokeless tobacco at a substantial markup. The guilt-innocence evidence was very strong, but like most of our bribery cases, the punishment evidence was weak. The defendant was young, had no criminal history, and was unwilling to agree to a prison sentence of any kind. His defense attorney made it very clear, though, that his client would agree to any term of community supervision.
Because recommending probation violated office policy, we tried the case. The jury agreed that the defendant was guilty beyond a reasonable doubt, but it did not put much stock in the argument that the smokeless tobacco created an unsafe environment for correctional officers and inmates. They sentenced the defendant to the minimum two years’ confinement and recommended the sentence be suspended and the defendant placed on community supervision. The verdict was a far cry from what we asked for.
It would have been easy to declare my decision to try the case a mistake and my unwillingness to agree to probation as a failure. Instead, we re-evaluated our “no probation” policy on bribery in light of the clear message the jury delivered with its verdict, and we relaxed the policy. The change resulted in many more such cases resolving via plea bargain. This verdict also allowed us to go back to the OIG investigators with clear justification for the reversal of our policy.
The jury charge
The jury charge is one of the last things a jury will hear before they retire to deliberate, but it is always the first step I take when preparing a case for trial. Why? Beginning with the jury charge gives you clarity on the elements of the offense that you have to prove and, when appropriate, the elements of a defense you have to disprove beyond a reasonable doubt. It also has the added benefit of forcing you to spend time with the charging instrument.
Another good reason to start with the charge is the application paragraph. It authorizes jurors to convict the defendant of the charged offense should they find that each element of the crime has been proven beyond a reasonable doubt. If you really think about it, the application paragraph is the culmination of all our efforts at trial. It makes sense that our entire trial plan would be constructed with this critical moment in mind.
In some instances, the court will prepare the charge. In others, the prosecutor’s office will prepare a draft of the charge and present it to the court. Top-notch defense attorneys may also submit proposed jury charges for the court to consider. Regardless of who prepares it, the jury charge can’t be truly finalized until all the evidence has been submitted to the jury, but trial prosecutors should still figure out what the application paragraphs in their instructions will look like. This information lets them approach the task at hand with clarity and purpose that simply isn’t available without an understanding of the application paragraph.
A lesson from my experience: When I was a newer prosecutor, I was at home working on a case. I had already picked the jury and evidence was to begin the next morning. Here in Rusk County, the trial prosecutors are generally the ones who draw up proposed jury charges, and I was hard at work on a draft because I anticipated a relatively quick trial. I wanted opposing counsel to have an opportunity to review the proposed charge first thing in the morning so that the jury and court staff weren’t stuck waiting around, after the close of evidence, for that first draft to be completed.
I was midway through my work when I realized an egregious error in the assault on a public servant indictment. It completely lacked the required mens rea element—there was nary an “intentionally” or “knowingly” to be found. I was horrified. Luckily, I was saved from what I thought (at the time) was entirely fatal error thanks to some very on-point caselaw.
If I had started trial preparations with the jury charge as I suggest you do, I would have found this error much, much earlier. Errors in the charging instrument are never fun, but the earlier you catch them, the more remedies available.
Marshalling evidence
Once you know the elements to prove at trial, it’s time to figure out how you are going to prove them. You are not doing enough as an advocate if your plan is to blindly call every witness, publish every picture, and play every video. Every witness called, every question asked, and every exhibit admitted into evidence needs to play a clearly defined role in the trial plan. The decision about what to admit and what to leave out needs to be a thoughtful one.
Thoughtful consideration of the evidence requires a thorough understanding about what evidence is available. Read every report and witness statement. Watch body camera and dash-cam videos in their entirety. Trials can take unexpected turns. Speaking with jurors post-trial has taught us that deliberations can often revolve around issues that neither attorney anticipated. You don’t want to gloss over a body cam video or witness statement believing that it isn’t substantive, only to have some obscure fact or comment within it be the deciding factor in the case.
Actually thinking about the evidence is pretty important too. You’d be surprised how often new trial attorneys forget to think critically about the evidence available to them. Here are a few points that I regularly encourage our young prosecutors to consider when developing their trial plans.
The defendant’s statements. Remember, not every recorded statement of a defendant is a confession. Sometimes, criminal defendants just want to put their defense out there in the hope that law enforcement will find it persuasive and end or redirect the investigation. Many of these statements are admissible under the rules of evidence, but that does not mean they help the case. Sometimes, the statement is entirely self-serving and few, if any, helpful admissions are made. If the defendant’s version of events, or at least critical portions of it, cannot be disproved, it is likely not worth offering.
When this type of recorded statement gets into evidence through a law enforcement witness, the defendant is getting the benefit of the jury hearing his side of the story without ever having to take the stand and being subjected to cross-examination. Really listen to what the defendant is saying in his recorded statements. If the benefit of his admissions doesn’t outweigh any harmful, self-serving statements in the same recording, don’t be afraid to leave it out. This is especially true if the defendant’s admissions can be conclusively proved by other witnesses.
Repetitive witnesses. Contacting all witnesses prior to trial and preparing them for the possibility of testifying is an important part of every prosecutor’s preparation. In some rare instances, you may find multiple witnesses who all made similar observations related to your case and, consequently, would all give similar testimony at trial.
This is a great situation to be in. If you try cases long enough, you will inevitably encounter a witness who ignores the subpoena and no-shows a trial setting. If you have contacted all your witnesses and the others comply with their subpoenas by coming to court, you can simply elicit the necessary testimony out of one of the others.
If it seems likely that all these similarly situated witnesses will come to court, consider calling only one or two instead of the whole group. Don’t ask the court to release them from their subpoenas—just hold them back as insurance policies. Jurors are just as prone to short attention spans as the rest of the population, and if they hear a parade of witnesses who all testify to essentially the same facts one after another, they might end up tuning out the evidence and missing something important. You may also run the risk of a skilled defense attorney capitalizing on a relatively minor difference in their testimony and creating a fact issue where there is none.
The idea of not calling each and every witness can be intimidating. Resist the urge to overwhelm jurors with multiple witnesses saying the same thing. Hold your “bonus” witnesses in reserve and call them if a fact issue comes into dispute or if opposing counsel uses her cross-examination to cast doubt on the credibility of another witness’s testimony.
Selecting photos and videos. Be selective with pictures. Pick enough photos to give the jury a good understanding of the crime scene, the victim’s injuries, or whatever else is relevant to the charge at hand. If some of the images are particularly inflammatory and you anticipate a Rule 403 objection, be prepared to offer any unused photos for purposes of the record only. Your appellate attorney will appreciate the ability to counter this type of objection on appeal by showing you introduced only X number of gruesome images when Y total images existed.
It’s just as important to be choosy about what videos include. These days every patrol officer has a camera on his body and on his dashboard. If more than a single officer responds to a given crime scene, hours upon hours of video can quickly pile up. Again, just because it’s there doesn’t mean you have to play it all. Rather, watch it all and then decide which cameras captured the best video and audio.
A lesson from my experience: I was trying a driving while intoxicated (DWI) case early on in my career. The arrest was made before body cameras had been widely adopted. In my preparation, I carefully watched the video of the DPS trooper interviewing the defendant about her alcohol consumption and conducting field sobriety tests. After he arrested the defendant and relocated her to his patrol vehicle, I stopped the video and turned my attention to other matters—I had a written copy of his vehicle inventory, and no alcohol, dangerous drugs, or controlled substances were listed on it, so I didn’t feel the need to continue watching. The defendant declined to provide a sample of her breath and the officer did not seek a warrant for a sample of her blood, so my entire case would revolve around those standardized field sobriety tests.
At trial, my opposing counsel was quite a bit more experienced and an all-around better lawyer than I was at that time. I was worried about stopping the trooper’s dash cam video before the inventory search out of concern that the jury would think I was hiding something. I also worried about defense counsel’s ability to convince them I was hiding something. So I let the video play. Several minutes later, as the trooper diligently performed his inventory search, the defendant groaned loudly and said to herself, “Man, I’m going to be hungover in the morning.” Had I been more diligent in preparing for trial, I would have heard this wonderful res gestae statement and could have made the admission a large part of my opening statement.
Meeting with witnesses
I pity the foolish prosecutor who doesn’t meet with witnesses in a case prior to trial. Reviewing videos and reading offense reports and witness statements is not a substitute for a real-life conversation. Meeting with witnesses, whether that be in person, over the phone, or via Zoom, is crucial. Video conferencing is so easy thanks to Zoom, FaceTime, and Skype that I’m hard pressed to think of an acceptable excuse for not having a “face-to-face” meeting with witnesses at least once prior to trial.
These conversations build trust between you and witnesses. It can build the confidence of victims who are apprehensive about testifying. It gives them a chance to discuss any worries they have about the pending trial. Don’t deny them a chance to increase their comfort level with the criminal proceedings.
Plus, the simple fact is a lot of time passes between the crime and the trial, even more so in this post-COVID backlog. If you are relying on year-old witness statements and offense reports to inform you about what a witness’s testimony will be today, you are setting yourself up for trouble. Meeting with witnesses prior to trial allows you to see and hear first-hand just how well they remember the events in question. If their memories have faltered, allow them to review their statements to refresh their recollection. Only after meeting with witnesses can you truly predict what their testimony at trial will be.
Choosing witness order
There is nothing inherently wrong with calling witnesses in an order that allows you to tell a story chronologically. The narrative will be easy for jurors to follow. It is not, however, the only way.
You can also put the primacy and recency effect to work for you. Put simply, the primacy and recency effect means that people remember the information at the beginning and the end of a learning episode much better than they remember what is presented in the middle.
If a trial has a couple of witnesses whom you expect to stand out above the others, perhaps the crime victim and a key law enforcement officer, consider setting up the witness order so that it begins with one and ends with the other. Is there a necessary witness who could be subjected to tough cross-examination or has credibility concerns of some kind? Consider calling him in the middle of the case in chief.
Voir dire
Ryan Calvert, of Brazos County fame, is The Man when it comes to voir dire. He’s written a series of incredible articles for The Texas Prosecutor journal on the topic.[1] When that wasn’t enough, he literally went out and wrote the book on voir dire.[2] By the time you read this article, Ryan will have finished up his duties as the course director for Baylor Law School’s first “Voir Dire Bootcamp.”
I can’t tell you how to prepare for a voir dire any better than Ryan has, so I’m not going to try. Check the endnotes and read his articles. Have your office order a few copies of his book if you haven’t already. It’s all great stuff.
What I will tell you about voir dire is that it is absolutely worth preparation time. As you work through the evidence in a case in detail, the weaker elements and possible defenses will make themselves apparent. Use your preparation time to devise a strategy for addressing these issues during voir dire. The opportunity for advocacy begins the minute you enter the same room as the prospective jurors. Don’t waste a golden opportunity like voir dire by not preparing properly. Going into a criminal trial of any kind with a “canned” voir dire that you snagged off another prosecutor an hour before court may not lose the case for you, but it definitely will not win it.
I’ve encouraged all the young attorneys I’ve worked with to start voir dire preparations with a clean slate. There isn’t anything wrong with taking some of the big “cornerstone” points from an earlier voir dire and re-working them to fit your current case, and it’s perfectly fine to look to other prosecutors’ work for inspiration. However, you need to get a good outline of the important topics your particular voir dire needs before you begin looking to anyone else’s work. Use voir dire to address the weaknesses in a case and don’t be afraid to question whether a certain topic is worth dedicating time to. Don’t forget that you are as smart as anybody else in that courtroom. There is always room for innovation in our line of work, and there is no reason to be wedded to a particular “script” for voir dire just because other people in your office have done so.
Cross-examinations
It is difficult to prepare for cross-examination, partly because Texas doesn’t require mutual discovery in criminal cases. The only witnesses a defendant is required to notify the State about are experts, and that happens only if we request the notice. Prosecutors will never truly know beforehand whom the defense will call to testify, but that doesn’t mean we can’t make some educated guesses.
As you work through the audio and video recordings in a case, as well as any written statements, make note of witnesses whose statements stand in contrast to the observations of the victim and law enforcement witnesses. These people may not end up being called as witnesses for the defense, but unless you are absolutely certain a suspected defense witness will not be called, develop a rough outline of areas of expected testimony that will be ripe for cross-examination.[3]
Personally, I always prepare an outline for cross-examining the defendant. Most of the time this is wasted effort on my part because the defendant doesn’t testify, but when the rare opportunity to cross-examine a criminal defendant comes along, the preparation always pays off.
Opening statements
The prosecution’s opening statement is the first chance for jurors to learn something about the case. It’s a critical moment in the trial, and you want to put in the effort necessary to make it really shine. Hilary Wright with the Dallas County Criminal District Attorney’s Office wrote a really comprehensive article on the topic for the November–December 2020 issue of The Texas Prosecutor that I highly encourage you to read.[4]
When it comes to preparing your opening statement, I do have a few tips to pass along. First, I encourage you not to mention evidence that you are not 100 percent certain will come in. Opening statements should set up the State for an “under-promise, over-deliver” situation. Tell jurors a simple, concise story that prepares them for the evidence they are about to hear, just like Ms. Wright suggests in her article, but do so without promising any facts that may not make it into evidence. If you create an expectation about what evidence you are going to deliver and then fail to meet that expectation, you will lose credibility with jurors and make a just outcome that much more difficult to reach.
Also, practice delivering your opening statement and seek feedback from other members of your office, especially anyone without a legal education or law enforcement experience. An opening statement should be easily understood by jurors, and it’s very unlikely that any jurors will see the world through the same lens that another attorney or peace officer would. The more you work on delivering your message, the better you will become at distilling that message into a form that the entire jury, with their diverse education and life experiences, can understand.
Repeatedly practicing the opening statement will get you away from standing behind the lectern and reading as if it were some kind of prepared statement at a press conference. Everyone is going to have his or her own style when it comes to opening statements: Some prosecutors take a more reserved tact and deliver a measured, even-keeled statement from behind the lectern. Others go with a more dynamic approach that is full of the energy that so often accompanies a jury trial. Many alternate between these two approaches as the situation calls for it. Whatever your style, execute the opening statement without relying too heavily on notes. A top-notch opening statement will establish a good rapport between you and the jurors—don’t lose their attention by breaking eye contact and reading from your notes as if from a book.
Closing arguments
I really love closing arguments. Of all the exciting and interesting things we prosecutors get to do, nothing gets the adrenaline flowing quite like closing arguments in a hotly contested criminal trial. I can count on one hand the things I enjoy more than nailing the landing on a well-delivered closing argument. Like opening statements, too much goes into closing arguments to talk about it all here,[5] but there are a few points worth getting to, if only briefly.
First and foremost, be a storyteller.[6] A good closing argument should summarize the evidence, but it shouldn’t be a bland recitation of the various witnesses’ testimony. Nothing is going to cause a jury to lose focus quite like 20 minutes of “Witness 1 told you A, B, and C. Witness 2 told you D, E, and F.” Remember primacy and recency? Closing argument is the last thing a jury will hear before retiring for deliberations. They will remember it better than probably anything else. Transform the testimony of your witnesses into a cogent story that holds jurors’ attention as much it persuades them.
Punishment
The punishment phase of a trial deserves its fair share of time and attention. Depending on the case, the amount of time we spend preparing for punishment might rival the time we put in preparing for guilt-innocence. The bulk of punishment evidence is going to fall into two categories: prior convictions and unadjudicated offenses.
Prior convictions. Get your hands on a defendant’s prior criminal convictions as soon as possible. You (or more likely an investigator in your office) will do this by requesting “pen packets” from the Texas Department of Criminal Justice (TDCJ) and certified copies of judgments from any county where the defendant has previously committed an offense.
You want these documents early for two reasons. First, you need to decide whether you can and should file a notice to seek higher punishment under Chapter 12 of the Texas Penal Code. Different counties have different policies when it comes to seeking punishment enhancements, so make sure your actions are in line with those policies. Second, obtaining those judgments gives you a chance to hunt down some of the witnesses to those earlier crimes. At the end of the day, pen packets and judgments are just lifeless documents—there is persuasive value in the words those documents contain, but the degree of persuasiveness dramatically increases when you call a flesh-and-blood witness to give the jury insight into the underlying crime detailed in those documents.
The pen packets and judgments should be self-authenticated, certified public records under Texas Rule of Evidence 903, so you won’t need a sponsoring witness to get them admitted. If the defendant refuses to stipulate that he was convicted of those offenses, you will likely need to request a court order for a latent fingerprint examiner to take a fresh 10-print card from the defendant to compare his prints to those on the judgment.
Unadjudicated offenses. Sometimes a defendant will go to trial on one charge while having other unadjudicated offenses waiting in the wings. During punishment, you can get into those unadjudicated offenses if you have provided proper notice.
It’s important to consider whether getting into additional unadjudicated offenses is to the State’s benefit. If you already plan to introduce a string of prior criminal convictions, adding hours of additional testimony related to the unadjudicated offenses might make the jury think you are piling on. Think about the nature of the unadjudicated offense versus the nature of the charged offense. Does it make sense to put on evidence of an unadjudicated DWI charge when the defendant has just been convicted of continuous sexual abuse of a child? Maybe not. On the other hand, does the jury, after convicting a defendant of domestic violence, need to hear about a string of similar offenses that were allegedly committed while he was on bond and awaiting trial for the current offense? Probably so.
Achieving justice at punishment doesn’t always revolve around the presentation of prior convictions or other unadjudicated offenses. Sometimes, achieving justice in the punishment phase begins long before punishment ever begins.
A lesson from my experience: Several years ago, I tried a sexual assault where a police officer was accused of sexually assaulting on older, intoxicated woman. The officer in question responded to the apartment complex where his victim lived after she had, as a result of her intoxication, become convinced that a friend and neighbor was ill and needed medical attention. Once that situation was resolved, the officer briefly returned to his patrol vehicle. After a few moments, he turned off his body camera, returned to the victim’s apartment, and perpetrated the sexual assault. The next morning the victim had the wherewithal to make a police report and get a SANE exam. DNA was recovered that linked the police officer to the sexual assault.
At trial, I allowed myself to be drawn into the defense attorney’s well-crafted attack on DNA science. The testimony of the forensic scientist who performed the DNA comparison became a focal point of my case in chief and my closing argument. The jury deliberated for a very, very long time before returning a guilty verdict. The defendant was young and had never been in any previous trouble, so we had no additional evidence at punishment. The jury deliberated for a short while before returning a verdict recommending community supervision.
I spent days upon days replaying the trial in my head and trying to understand how the jury could have unanimously decided that community supervision was appropriate in a case where I had argued for the full 20 years’ confinement. Ultimately, I concluded that I began losing the punishment portion of the trial way back in guilt-innocence. I focused on defending DNA science and did nothing to challenge the “troublemaker” and “town drunk” perception that so many witnesses had of the victim. Had I done more during guilt-innocence or at punishment to establish that the victim didn’t share in the responsibility for what happened to her and that she deserved the protection of the law as much as anybody else, I suspect the verdict might have been very different.
Conclusion
Like many professionals, a talented prosecutor can make the execution of a jury trial, from voir dire to punishment, look easy to the outside observer. But the countless hours of planning and practicing are not as easily observed. As our profession charges into the second half of this year, those hours will be more important than ever. There are going to be a lot of eyes on us as we tackle a backlog of serious cases that hold a lot of importance to the communities we serve. Whether you are joining this endeavor for the first time or after a long layoff, I hope you have found this primer helpful as you prepare to see that justice is done.
Endnotes
[1] Find them at these links: www.tdcaa.com/journal/always-be-closing-using-voir-dire-to-argue-misdemeanor-cases, www.tdcaa.com/journal/voir-dire-on-punishment, and www.tdcaa.com/journal/special-issues-in-voir-dire.
[2] www.tdcaa.com/product/jury-selection-2020.
[3] This article from a past issue of the journal is a good starting point: www.tdcaa.com/journal/%ef%bb%bfa-plan-for-cross-examination.
[4] www.tdcaa.com/journal/starting-out-ahead-with-an-opening-statement.
[5] www.tdcaa.com/journal/%ef%bb%bfthe-last-words-a-jury-hears-before-deliberations.
[6] www.tdcaa.com/journal/how-macho-man-randy-savage-made-me-a-better-prosecutor.