What A Colorado Criminal Defense Attorney Does – Part II – Trial and Post Trial
What A Colorado Criminal Defense Attorney Does – Trial and Post Trial – The purpose of this outline is to make clear the standards for the proper and minimally competent performance of a Colorado or any criminal defense lawyer.
Those who are charged with Colorado crimes and who have the resources to retain private counsel should have a solid and complete understanding of the kinds of responsibilities and performance standards that are expected from their lawyers.
This article assists in that understanding:
What A Colorado Criminal Defense Attorney Does- General Trial Preparation
(a) The decision to proceed to trial with or without a jury rests solely with the client. Criminal defense lawyers should discuss the relevant strategic considerations of this decision with the client.
(b) Where appropriate, criminal defense lawyers should have the following materials available at the time of trial:
(1) copies of all relevant documents filed in the case;
(2) relevant documents prepared by investigators;
(3) voir dire questions;
(4) outline or draft of opening statement;
(5) cross-examination plans for all possible prosecution witnesses;
(6) direct examination plans for all prospective defense witnesses;
(7) copies of defense subpoenas;
(8) prior statements of all prosecution witnesses (e.g., transcripts, police reports);
(9) prior statements of all defense witnesses;
(10) reports from defense experts;
(11) a list of all defense exhibits, and the witnesses through whom they will be introduced;
(12) originals and copies of all documentary exhibits;
(13) proposed jury instructions with supporting case citations;
(14) copies of all relevant statutes and cases;
(15) outline or draft of closing argument.
(c) Criminal defense lawyers should be fully informed as to the rules of evidence, and the law relating to all stages of the trial process, and should be familiar with legal and evidentiary issues that can reasonably be anticipated to arise in the trial.
(d) Criminal defense lawyers should decide if it is beneficial to secure an advance ruling on issues likely to arise at trial (e.g., use of prior convictions to impeach the defendant) and, where appropriate, defense lawyers should prepare motions and memoranda for such advance rulings.
(e) Throughout the trial process criminal defense lawyers should endeavor to establish a proper record for appellate review. As part of this effort, criminal defense lawyers should request, whenever necessary, that all trial proceedings be recorded.
(f) Where appropriate criminal defense lawyers should advise the client as to suitable courtroom dress and demeanor. If the client is incarcerated, criminal defense lawyers should be alert to the possible prejudicial effects of the client appearing before the jury in jail or other inappropriate clothing.
(g) Criminal defense lawyers should plan with the client the most convenient system for conferring throughout the trial. Where necessary, defense lawyers should seek a court order to have the client available for conferences.
(h) Throughout preparation and trial, defense lawyers should consider the potential effects that particular actions may have upon sentencing if there is a finding of guilt.
What A Colorado Criminal Defense Attorney Does – Voir Dire and Jury Selection
(1) Criminal defense lawyers should be familiar with the procedures by which a jury venire is selected in the particular jurisdiction and should be alert to any potential legal challenges to the composition or selection of the venire.
(2) Criminal defense lawyers should be familiar with the local practices and the individual trial judge’s procedures for selecting a jury from a panel of the venire, and should be alert to any potential legal challenges to these procedures.
(3) Prior to jury selection, criminal defense lawyers should seek to obtain a prospective juror list.
(4) Where appropriate, defense lawyers should develop voir dire questions in advance of trial. Criminal defense lawyers should tailor voir dire questions to the specific case. Among the purposes voir dire questions should be designed to serve are the following:
(A) to elicit information about the attitudes of individual jurors, which will inform about peremptory strikes and challenges for cause;
(B) to convey to the panel certain legal principles which are critical to the defense case;
(C) to preview the case for the jurors so as to lessen the impact of damaging information which is likely to come to their attention during the trial;
(D) to present the client and the defense case in a favorable light, without prematurely disclosing information about the defense case to the prosecutor.
(E) to establish a relationship with the jury, when the voir dire is conducted by an attorney.
(5) Criminal defense lawyers should be familiar with the law concerning mandatory and discretionary voir dire inquiries so as to be able to defend any request to ask particular questions of prospective jurors.
(6) Criminal defense lawyers should be familiar with the law concerning challenges for cause and peremptory strikes. Defense lawyers should also be aware of any local rules concerning whether peremptory challenges need to be exhausted in order to preserve for appeal any challenges for cause which have been denied.
(7) Where appropriate, criminal defense lawyers should consider whether to seek expert assistance in the jury selection process.
(b) Examining the Prospective Jurors
(1) Criminal defense lawyers should consider seeking permission to personally voir dire the panel. If the court conducts voir dire, defense lawyers should consider submitting proposed questions to be incorporated into the court’s voir dire.
(2) Criminal defense lawyers should take all steps necessary to protect the voir dire record for appeal, including, where appropriate, filing a copy of the proposed voir dire questions or reading proposed questions into the record.
(3) If the voir dire questions may elicit sensitive answers, defense lawyers should consider requesting that questioning be conducted outside the presence of the remaining jurors and that the court, rather than defense lawyers, conduct the voir dire as to those sensitive questions.
(4) In a group voir dire, defense lawyers should avoid asking questions which may elicit responses which are likely to prejudice other prospective jurors.
(1) Criminal defense lawyers should consider challenging for cause all persons about whom a legitimate argument can be made for actual prejudice or bias relevant to the case when it is likely to benefit the client.
What A Colorado Criminal Defense Attorney Does – Opening Statement
(a) Prior to delivering an opening statement, Criminal defense lawyers should ask for sequestration of witnesses, unless a strategic reason exists for not doing so.
(b) Criminal defense lawyers should be familiar with the law of the jurisdiction and the individual trial judge’s rules regarding the permissible content of an opening statement.
(c) Criminal defense lawyers should consider the strategic advantages and disadvantages of disclosure of particular information during opening statement and of deferring the opening statement until the beginning of the defense case.
(d) Criminal defense lawyers’s 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;
(6) to clarify the jurors’ responsibilities;
(7) to state the ultimate inferences which Criminal defense lawyers wishes the jury to draw.
(e) Criminal defense lawyers should consider incorporating the promises of proof the prosecutor makes to the jury during opening statement in the defense summation.
(f) Whenever the prosecutor oversteps the bounds of a proper opening statement, defense lawyers should consider objecting, requesting a mistrial, or seeking cautionary instructions, unless tactical considerations weigh against any such objections or requests. Such tactical considerations may include, but are not limited to:
(1) the significance of the prosecutor’s error;
(2) the possibility that an objection might enhance the significance of the information in the jury’s mind;
(3) whether there are any rules made by the judge against objecting during the other attorney’s opening argument.
What A Colorado Criminal Defense Attorney Does – Confronting the Prosecution’s Case
(a) Criminal defense lawyers should attempt to anticipate weaknesses in the prosecution’s proof and consider researching and preparing corresponding motions for judgment of acquittal.
(b) Criminal defense lawyers should consider the advantages and disadvantages of entering into stipulations concerning the prosecution’s case.
(c) In preparing for cross-examination, criminal defense lawyers 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, criminal defense lawyers should be prepared to question witnesses as to the existence of prior statements which they may have made or adopted.
(d) In preparing for cross-examination, criminal defense lawyers should:
(1) consider the need to integrate cross-examination, the theory of the defense and closing argument;
(2) consider whether cross-examination of each individual witness is likely to generate helpful information;
(3) anticipate those witnesses the prosecutor might call in its case-in-chief or in rebuttal;
(4) consider a cross-examination plan for each of the anticipated witnesses;
(5) be alert to inconsistencies in a witness’ testimony;
(6) be alert to possible variations in witnesses’ testimony;
(7) review all prior statements of the witnesses and any prior relevant testimony of the prospective witnesses;
(8) where appropriate, review relevant statutes and local police regulations for possible use in cross-examining police witnesses;
(9) be alert to issues relating to witness credibility, including bias and motive for testifying.
(e) Criminal defense lawyers should consider conducting a voir dire examination of potential prosecution witnesses who may not be competent to give particular testimony, including expert witnesses whom the prosecutor may call. Defense lawyers should be aware of the applicable law of the jurisdiction concerning competency of witnesses in general and admission of expert testimony in particular in order to be able to raise appropriate objections.
(f) Before beginning cross-examination, criminal defense lawyers should ascertain whether the prosecutor has provided copies of all prior statements of the witnesses as required by applicable law. If Criminal defense lawyers does not receive prior statements of prosecution witnesses until they have completed direct examination, Criminal defense lawyers should request adequate time to review these documents before commencing cross-examination.
(g) Where appropriate, at the close of the prosecution’s case and out of the presence of the jury, Criminal defense lawyers should move for a judgment of acquittal on each count charged.
Criminal defense lawyers should request, when necessary, that the court immediately rule on the motion, in order that THET may make an informed decision about whether to present a defense case.
What A Colorado Criminal Defense Attorney Does – Presenting the Defense Case
(a) Criminal defense lawyers should develop, in consultation with the client, an overall defense strategy. In deciding on defense strategy, defense lawyers should consider whether the client’s 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.
(b) Criminal defense lawyers should discuss with the client all of the considerations relevant to the client’s decision to testify.
(c) Criminal defense lawyers should be aware of the elements of any affirmative defense and know whether, under the applicable law of the jurisdiction, the client bears a burden of persuasion or a burden of production.
(d) In preparing for presentation of a defense case, defense lawyers should, where appropriate:
(1) develop a plan for direct examination of each potential defense witness;
(2) determine the implications that the order of witnesses may have on the defense case;
(3) consider the possible use of character witnesses;
(4) consider the need for expert witnesses.
(e) In developing and presenting the defense case, defense lawyers should consider the implications it may have for a rebuttal by the prosecutor.
(f) Criminal defense lawyers should prepare all witnesses for direct and possible cross-examination. Where appropriate, defense lawyers should also advise witnesses of suitable courtroom dress and demeanor.
(g) Criminal defense lawyers should conduct redirect examination as appropriate.
(h) At the close of the defense case, criminal defense lawyers should renew the motion for judgment of acquittal on each charged count.
What A Colorado Criminal Defense Attorney Does – Closing Argument
(a) Criminal defense lawyers should be familiar with the substantive limits on both prosecution and defense summation.
(b) Criminal defense lawyers 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.
(c) In developing closing argument, criminal defense lawyers should review the proceedings to determine what aspects can be used in support of defense summation and, where appropriate, should consider:
(1) highlighting weaknesses in the prosecution’s case;
(2) describing favorable inferences to be drawn from the evidence;
(3) incorporating into the argument:
(A) helpful testimony from direct and cross-examinations;
(B) verbatim instructions drawn from the jury charge;
(C) responses to anticipated prosecution arguments;
(4) the effects of the defense argument on the prosecutor’s rebuttal argument.
(d) Whenever the prosecutor exceeds the scope of permissible argument, criminal defense lawyers should consider objecting, requesting a mistrial, or seeking cautionary instructions unless tactical considerations suggest otherwise. Such tactical considerations may include, but are not limited to:
(1) whether defense lawyers believes that the case will result in a favorable verdict for the client;
(2) the need to preserve the objection for a double jeopardy motion;
(3) the possibility that an objection might enhance the significance of the information in the jury’s mind.
What A Colorado Criminal Defense Attorney Does – Jury Instructions
(a) Criminal defense lawyers should be familiar with the local rules and the individual judges’s practices concerning ruling on proposed instructions, charging the jury, use of standard charges and preserving objections to the instructions.
(b) Where appropriate, criminal defense lawyers should submit modifications of the standard jury instructions in light of the particular circumstances of the case, including the desirability of seeking a verdict on a lesser included offense. Where possible, defense lawyers should provide caselaw in support of the proposed instructions.
(c) Where appropriate, criminal defense lawyers should object to and argue against improper instructions proposed by the prosecution.
(d) If the court refuses to adopt instructions requested by criminal defense lawyers, or gives instructions over the defense lawyers’s objection, – defense lawyers should take all steps necessary to preserve the record, including, where appropriate, filing a copy of proposed instructions or reading proposed instructions into the record.
(e) During delivery of the charge, criminal defense lawyers should be alert to any deviations from the judge’s planned instructions, object to deviations unfavorable to the client, and, if necessary, request additional or curative instructions.
(f) If the court proposes giving supplemental instructions to the jury, either upon request of the jurors or upon their failure to reach a verdict, criminal defense lawyers should request that the judge state the proposed charge to defense lawyers before it is delivered to the jury.
What A Colorado Criminal Defense Attorney Does – Obligations of Criminal defense lawyers in Sentencing
(a) Among criminal defense lawyers’s obligations in the sentencing process are:
(1) where a defendant chooses not to proceed to trial, to ensure that a plea agreement is negotiated with consideration of the sentencing, correctional, and financial implications;
(2) to ensure the client is not harmed by inaccurate information or information that is not properly before the court in determining the sentence to be imposed;
(3) to ensure all reasonably available mitigating and favorable information, which is likely to benefit the client, is presented to the court;
(4) to develop a plan which seeks to achieve the least restrictive and burdensome sentencing alternative that is most acceptable to the client, and which can reasonably be obtained based on the facts and circumstances of the offense, the defendant’s background, the applicable sentencing provisions, and other information pertinent to the sentencing decision;
(5) to ensure all information presented to the court which may harm the client and which is not shown to be accurate and truthful or is otherwise improper is stricken from the text of the pre-sentence investigation report before distribution of the report.
(6) to consider the need for and availability of sentencing specialists, and to seek the assistance of such specialists whenever possible and warranted.
What A Colorado Criminal Defense Attorney Does – Sentencing Options, Consequences and Procedures
(a) Criminal defense lawyers should be familiar with the sentencing provisions and options applicable to the case, including:
(1) any sentencing structure;
(2) deferred sentence, judgment without a finding, and diversionary programs;
(3) expungement and sealing of records;
(4) probation or suspension of sentence and permissible conditions of probation;
(7) court costs;
(8) imprisonment including any mandatory minimum requirements;
(9) confinement in mental institution;
(b) Criminal defense lawyers should be familiar with direct and collateral consequences of the sentence and judgment, including:
(1) credit for pre-trial detention;
(2) parole eligibility and applicable parole release ranges;
(3) effect of good-time credits on the client’s release date and how those credits are earned and calculated;
(4) place of confinement and level of security and classification;
(5) self-surrender to place of custody;
(6) eligibility for correctional programs and furloughs;
(7) available drug rehabilitation programs, psychiatric treatment, and health care;
(9) use of the conviction for sentence enhancement in future proceedings;
(10) loss of civil rights;
(11) impact of a fine or restitution and any resulting civil liability;
(12) restrictions on or loss of license.
(c) Criminal defense lawyers should be familiar with the sentencing procedures, including:
(1) the effect that plea negotiations may have upon the sentencing discretion of the court;
(2) the procedural operation of any sentencing system;
(3) the effect of a judicial recommendation against deportation;
(4) the practices of the officials who prepare the presentence report and the defendant’s rights in that process;
(5) the access to the presentence report by criminal defense lawyers and the defendant;
(6) the prosecution’s practice in preparing a memorandum on punishment;
(7) the use of a sentencing memorandum by the defense;
(8) the opportunity to challenge information presented to the court for sentencing purposes;
(9) the availability of an evidentiary hearing to challenge information and the applicable rules of evidence and burdens of proof at such a hearing;
(10) the participation that victims and prosecution or defense witnesses may have in the sentencing proceedings.
What A Colorado Criminal Defense Attorney Does – Preparation for Sentencing
(a) In preparing for sentencing, criminal defense lawyers should consider the need to:
(1) inform the client of the applicable sentencing requirements, options, and alternatives, and the likely and possible consequences of the sentencing alternatives;
(2) maintain regular contact with the client prior to the sentencing hearing, and inform the client of the steps being taken in preparation for sentencing;
(3) obtain from the client relevant information concerning such subjects as his or her background and personal history, prior criminal record, employment history and skills, education, medical history and condition, and financial status, and obtain from the client sources through which the information provided can be corroborated;
(4) ensure the client has adequate time to examine the presentence report;
(5) inform the client of his or her right to speak at the sentencing proceeding and assist the client in preparing the statement, if any, to be made to the court, considering the possible consequences that any admission of guilt may have upon an appeal, subsequent retrial or trial on other offenses;
(6) prepare the client to be interviewed by the official preparing the presentence report;
(7) inform the client of the effects that admissions and other statements may have upon an appeal, retrial, parole proceedings, or other judicial proceedings, such as forfeiture or restitution proceedings;
(8) inform the client of the sentence or range of sentences criminal defense lawyers will ask the court to consider; if the client and defense lawyers disagree as to the sentence or sentences to be urged upon the court, defense lawyers shall inform the client of his or her right to speak personally for a particular sentence or sentences;
(9) collect documents and affidavits to support the defense position and, where relevant, prepare witnesses to testify at the sentencing hearing; where necessary, criminal defense lawyers should specifically request the opportunity to present tangible and testimonial evidence.
What A Colorado Criminal Defense Attorney Does- The Official Presentence Report
(a) Criminal defense lawyers should be familiar with the procedures concerning the preparation, submission, and verification of the presentence investigation report or similar document. In addition, defense lawyers should:
(1) determine whether a presentence report will be prepared and submitted to the court prior to sentencing; where preparation of the report is optional, criminal defense lawyers should consider the strategic implications of requesting that a report be prepared;
(2) provide to the official preparing the report relevant information favorable to the client, including, where appropriate, the defendant’s version of the offense;
(3) review the completed report;
(4) take appropriate steps to ensure that erroneous or misleading information which may harm the client is deleted from the report;
(5) take appropriate steps to preserve and protect the client’s interests where the defense challenges information in the presentence report as being erroneous or misleading and:
(A) the court refuses to hold a hearing on a disputed allegation adverse to the defendant;
(B) the prosecution fails to prove an allegation;
(C) the court finds an allegation not proved.
Such steps include requesting that a new report be prepared with the challenged or unproved information deleted before the report or memorandum is distributed to correctional and/or parole officials.
(6) Where appropriate criminal defense lawyers should request permission to see copies of the report to be distributed to be sure that the information challenged has actually been removed from the report or memorandum.
What A Colorado Criminal Defense Attorney Does – The Prosecution’s Sentencing Position
(a) Criminal defense lawyers should attempt to determine, unless there is a sound tactical reason for not doing so, whether the prosecution will advocate that a particular type or length of sentence be imposed.
(b) If a written sentencing memorandum is submitted by the prosecution, criminal defense lawyers should request to see the memorandum and verify that the information presented is accurate; if the memorandum contains erroneous or misleading information, criminal defense lawyers should take appropriate steps to correct the information unless there is a sound strategic reason for not doing so.
(c) If the defense request to see the prosecution memorandum is denied, an application to examine the document should be made to the court or a motion made to exclude consideration of the report by the court and to prevent distribution of the memorandum to parole and correctional officials.
What A Colorado Criminal Defense Attorney Does – The Defense Sentencing Memorandum
(a) Criminal defense lawyers should prepare and present to the court a defense sentencing memorandum where there is a strategic reason for doing so. Among the topics Criminal defense lawyers may wish to include in the memorandum are:
(1) challenges to incorrect or incomplete information in the official presentence report and any prosecution sentencing memorandum;
(2) challenges to improperly drawn inferences and inappropriate characterizations in the official presentence report and any prosecution sentencing memorandum;
(3) information contrary to that before the court which is supported by affidavits, letters, and public records;
(4) information favorable to the defendant concerning such matters as the offense, mitigating factors and relative culpability, prior offenses, personal background, employment record and opportunities, education background, and family and financial status;
(5) information which would support a sentencing disposition other than incarceration, such as the potential for rehabilitation or the nonviolent nature of the crime;
(6) information concerning the availability of treatment programs, community treatment facilities, and community service work opportunities;
(7) presentation of a sentencing proposal.
What A Colorado Criminal Defense Attorney Does – The Sentencing Process
(a) Criminal defense lawyers should be prepared at the sentencing proceeding to take the steps necessary to advocate fully for the requested sentence and to protect the client’s interest.
(b) Criminal defense lawyers should be familiar with the procedures available for obtaining an evidentiary hearing before the court in connection with the imposition of sentence.
(c) In the event there will be disputed facts before the court at sentencing, criminal defense lawyers should consider requesting an evidentiary hearing. Where a sentencing hearing will be held, defense lawyers should ascertain who has the burden of proving a fact unfavorable to the defendant, be prepared to object if the burden is placed on the defense, and be prepared to present evidence, including testimony of witnesses, to contradict erroneous or misleading information unfavorable to the defendant.
(d) Where information favorable to the defendant will be disputed or challenged, criminal defense lawyers should be prepared to present supporting evidence, including testimony of witnesses, to establish the facts favorable to the defendant.
(e) Where the court has the authority to do so, criminal defense lawyers should request specific orders or recommendations from the court concerning the place of confinement, parole eligibility, psychiatric treatment or drug rehabilitation, permission for the client to surrender directly to the place of confinement and against deportation of the defendant.
(f) Where appropriate, criminal defense lawyers should prepare the client to personally address the court.
What A Colorado Criminal Defense Attorney Does – Motion for a New Trial
(a) Criminal defense lawyers should be familiar with the procedures available to request a new trial including the time period for filing such a motion, the effect it has upon the time to file a notice of appeal, and the grounds that can be raised.
(b) When a judgment of guilty has been entered against the defendant after trial, criminal defense lawyers should consider whether it is appropriate to file a motion for a new trial with the trial court. In deciding whether to file such a motion, the factors defense lawyers should consider include:
(1) The likelihood of success of the motion, given the nature of the error or errors that can be raised;
(2) the effect that such a motion might have upon the defendant’s appellate rights, including whether the filing of such a motion is necessary to, or will assist in, preserving the defendant’s right to raise on appeal the issues that might be raised in the new trial motion.
What A Colorado Criminal Defense Attorney Does – Right to Appeal
(a) Criminal defense lawyers should inform the defendant of his or her right to appeal the judgment of the court and the action that must be taken to perfect an appeal. In circumstances where the defendant wants to file an appeal but is unable to do so without the assistance of defense lawyers, the attorney should file the notice in accordance with the rules of the court and take such other steps as are necessary to preserve the defendant’s right to appeal, such as ordering transcripts of the trial proceedings.
(b) Criminal defense lawyers’s advice to the defendant should include an explanation of the right to appeal the judgment of guilty and, in those jurisdictions where it is permitted, the right to appeal the sentence imposed by the court.
(c) Where the defendant takes an appeal, trial criminal defense lawyers should cooperate in providing information to appellate defense lawyers concerning the proceedings in the trial court.
What A Colorado Criminal Defense Attorney Does – Bail Pending Appeal
(a) Where a client indicates a desire to appeal the judgment and/or sentence of the court, criminal defense lawyers should inform the client of any right that may exist to be released on bail pending the disposition of the appeal.
(b) Where an appeal is taken and the client requests bail pending appeal, trial criminal defense lawyers should cooperate with appellate defense lawyers in providing information to pursue the request for bail.
Where a custodial sentence has been imposed, criminal defense lawyers should consider requesting a stay of execution of the judgment to permit the client to report directly to the place of confinement.
Criminal defense lawyers should inform the client of procedures available for requesting a discretionary review of, or reduction in, the sentence imposed by the trial court, including any time limitations that apply to such a request.