Thursday, September 24, 2009

What is a Criminal Trial in Douglasville like?

Most people have no idea what it is like to experience a trial – either from the perspective of a juror, witness, or defendant. As a witness, the experience seems confusing and boring because you spend most of your time waiting to testify outside the courtroom. As a juror, the experience is probably a mixture of boredom, excitement, and frustration because you will see almost everything but not quite. As a criminal defendant the trial experience is a drag race with no helmet, doors, seatbelt or floorboard. You experience everything with the knowledge that your life hangs in the balance.

The trial experience actually begins days or perhaps even weeks before the actual trial with the “Calendar Call.” The Calendar Call is a show-up and “shut-up, or put-up” event. During the call of the calendar, each attorney has to announce whether the case is going to trial. If the State (prosecution) announces “ready”, the defense must either be ready to go to trial, willing to accept the state’s plea offer, or have some explanation as to why the case is not ready for trial. In Douglas County, it is not unusual for 50-100 cases to be on the trial calendar. If both the State and the Defense announce “ready”, you will have to report back at the start of the trial week.

Start of trial week is still uncertain. Your case may be the first out, or it may be down the list. If it is not first out, you will be put “on-call”. You may be called in later during the trial, but if you are not, you will be put back on the calendar call for the next month and the process repeats. I have several cases that have been on 10 or more calendars without ever being tried. Likewise, I have had cases that were on only one calendar and tried the first week. In general, the District Attorney controls which cases will get tried and which will not. Weak cases will not go to trial unless they have nothing else to try. Cases which the DA thinks are strong will go to trial right away.

The beginning of the trial starts with voir dire. This is the process of selecting jurors who are impartial and fair to both sides. A panel of 12-14 jurors is put into the jury box and the attorney for the State begins questioning the jurors. Next, the attorney for the defendant asks questions. Questions may cover just about any topic so long as they do not ask the jury to prejudge the case. Since most cases that go to trial are very close, I believe voir dire is the most important part of the trial. An experienced attorney will know exactly what kind of juror he is looking for and what questions to ask to determine who is and who is not that kind of juror.

After voir dire, each side makes an opening statement. The opening statement is just a preview of what each side expects the evidence to be. Openings are not supposed to have any legal argument and are therefore rarely dramatized in movies or TV. However, research shows that most jurors actually make up their minds by the end of opening statements and rarely change from their initial judgment. Therefore, a powerful opening statement that clearly communicates the theory of your case is more important than all the fancy one-liners watched in the movies.

After opening statements, the prosecution presents its case. Witnesses will normally include law enforcement officers, the victim, and maybe scientific testimony if the case requires it. After the prosecution finishes the direct examination of each witness for the State, the Defense is allowed to cross-examine the witness.

After the State has presented its case, the Defense is allowed to call any witnesses it wishes. It’s important to note that the Defense does not have to call any witnesses because the “burden of proof” belongs to the prosecution. Additionally, although the Defense may call any witness it wishes, the defendant does not have to testify. The Court may not order the defendant to testify and the State may not call him as a witness.

Following the Defense case, the prosecution may call rebuttal witnesses if they so choose. If they do not, the case will proceed with closing. Closing is the part the lawyers like because we get to be dramatic and persuasive while we try to impress everyone in the Courtroom. However, in my opinion, closings are mostly for show. At best closings are simply icing on the cake. Icing won’t make a dry cake taste good; likewise a powerful closing won’t make a poor case a winner.

Following closing, the Judge will charge the jury on the law. The jury will then retire to the jury room and deliberate. Deliberations can last minutes, hours or days. If the jury has questions, they will send a note to the Judge, who will then consult with the Attorneys and formulate a response. Once the jury reaches a verdict, they will return to the Courtroom and the clerk or the foreperson will read the verdict.

As you can see, a trial is a complicated event. I often see people who have not been trained try to act as their own attorney in Court, which I always consider to a fatal mistake. For example, how does a lay person know when the prosecution is attempting to introduce impermissible hearsay (as opposed to permissible hearsay). What if the prosecution asks a question that puts the Defendant’s character at issue? What if the prosecution objects to a question on the basis of improper foundation? Simply put, if you represent yourself in a criminal trial, you have a fool for a client.

If you need help, call me at 678-383-1690 or visit my website at If for whatever reason I can't help you, I'll point you in the direction of someone who can.

Wednesday, September 16, 2009

Be Careful what you say online

The Internet is making the world smaller, faster and more productive. One hundred years ago, it could take days to get a message from one side of the country to the other. Now, it takes seconds. Whether we are texting, tweeting, or emailing, we are all so wired that we can communicate virtually anywhere with anyone.

Nevertheless, rules of the old world still apply. Before cell phones and the Internet, there were do’s and don’ts. For instance, you couldn’t call your next door neighbor a murdering thief, unless he really was one (in which case you probably wouldn’t want to). If you did falsely accuse your neighbor of being a criminal, your neighbor could sue you for defamation – more commonly referred to as slander (spoken word) or libel (printed word). These rules still apply on the internet. Often, I encounter people who believe anything goes on the “Internet”

However, I am here to tell you that defaming someone online will still cost you money. There are no special statutory exemptions for statements made online. A good example of how this plays out in our local community can be found at this url. A number of posters to the TOPIX forum mistakenly believe that because what they say is online opinion, their speech is somehow protected. IT IS NOT PROTECTED. Therefore, be careful what you say online. It may be tempting to hide behind what you believe is cyber anonymity, but ultimately it may cost you significant sums of money.

Defamation is not the only way your online presence can get you in trouble. Attorneys, doctors, and others who have special restrictions can get in trouble quick when they forget the rules still apply to online speech. Here is a wonderful article about the missteps and mishaps of barristers who mistakenly believed special rules apply in the cyber world.

Bottom line, speech is speech. It doesn’t matter if its spoken online, in a checkout line, or a telegraph line (they do still exist). YOU ARE RESPONSIBLE FOR WHAT YOU SAY.

If you need help, call me at 678-383-1690 or visit my website at If for whatever reason I can't help you, I'll point you in the direction of someone who can.

Tuesday, September 15, 2009

Georgia's Speedy Trial Demand

If you know anyone that has been involved in a criminal proceeding, you also probably know that the process can drag on for what seems like forever. Quite often, it is in a Defendant’s best interest for the case to drag on for what seems like forever. However, in certain situations, the Defendant is better served by having his or her case resolved quickly. The key to making this happen is Georgia’s Demand for Speedy Trial which can be found at O.C.G.A. § 17-7-170.

The speedy trial statute allows a defendant to file a motion that requires the state to try his case within the current “term of court” that the demand is filed or the next term thereafter. If the case is not tried within that period, then the defendant shall be absolutely discharged and acquitted of the offense charged in the indictment or accusation.

Example: Defendant is indicted for shoplifting in Douglas County. The alleged offense occurs in December. She is indicted the following March by the Grand Jury. Douglas County has two terms of court running from April to October and from October to April. Assuming the Defendant files the motion for speedy trial before the end of the current term, the case must be tried before the second Monday in October. If the case is not brought to trial, the defendant is automatically acquitted of all charges.

A defendant that demands a speedy trial must take precaution that he or she does not waive the demand. If the defendant takes affirmative actions that cause the case to be delayed, the demand is effectively waived. Such affirmative actions include a motion for continuance, not appearing for a calendar call, and challenging the jury pool.

In the right case a demand for speedy trial can be an effective tool. However, it should be undertaken only with proper consideration given to all the circumstances of the case. Proper legal counsel is essential.

If you need help, call me at 678-383-1690 or visit my website at If for whatever reason I can't help you, I'll point you in the direction of someone who can.