The third day of trial had five interesting procedural qualities.
- The taking of a deposition.
- A reading of a deposition where the witness was not available.
- Utilization of an expert witness.
- A discussion between counsel regarding the jury instructions.
- A motion for acquittal.
Most of the entertainment came from the witnesses. There were some very important witnesses as the defense finished presenting their case.
Deposition Taking
Usually, depositions are taken before trial during discovery. They are opportunities for counsel to learn the story, prepare witnesses, and utilize their arguments. This case presented what I believe is a fairly unusual procedure, a deposition in the courtroom outside the presence of the jury.
There are three parts to a deposition. First, the initial questioning counsel is “taking” the deposition. Second, the opposing counsel is “defending” the deposition. Finally, the taking party has the opportunity to redirect.
The times of this deposition is as follows:
Taking: 00:05:18
Defending: 00:01:20
Redirect: 00:04:52
Following the deposition, the judge confirmed a few questions, which took only a minute and sixteen seconds.
Witnesses
Witness 3
Direct: 00:23:00
There was no cross or redirect for this witness.
Witness 4
Direct: 00:24:54
Cross: 00:09:10
There was no redirect.
This witness was an expert witness. He had specialized knowledge in self-defense techniques. An interesting part of his testimony was a demonstration before the jury. He had the opportunity to leave the stand, and demonstrate some of the self-defense techniques against the questioning counsel, an entertaining performance.
Witness 5
Direct: 00:12:56
Cross: 00:02:58
Redirect: 00:01:08
Witness 6
Direct: 00:17:27
Cross: 00:05:22
There was no redirect
Witness 7
Direct: 00:19:49
Cross: 00:07:00
Redirect: 00:00:16
Witnesses 6 and 7 were quite engaging. These witnesses were the defendant’s friend and spouse. The spouse became quite emotional. One interesting tactic the state utilized was to diminish the credibility of each witness by associating their relationship with the defendant. They would ask, “you are aware that you are testifying on behalf of the defendant? You would do anything in their best interest right?” Obviously, the purpose is designed to show that the witnesses are biased, a questioning which is appropriate for the courtroom.
Deposition Reading
One could argue that the reading of these depositions accounted for witnesses 8 and 9. These were depositions taken of bar security employees and permitted to be introduced to the court because there were reasonable efforts made to subpoena the individuals which were unsuccessful. Because these attempts were unsuccessful, the court allowed their previous deposition to be provided.
Before the deposition was read, counsel discussed and agreed to which parts of the deposition were relevant. One time during the reading, an objection was made because the reading did not align with what the parties had previously agreed.
This deposition reading was quite interesting because it simulated the actual conversation. A drake law student volunteered to do the reading. The student took the stand (was not sworn in like normal witnesses), the attorney who took the deposition read the questions and the student read the responses.
The first deposition reading took 00:19:51, while the second reading took 00:18:40.
Witness 10: The Defendant
Direct: 00:41:34
Cross: 00:15:48
Redirect: 00:04:04
This testimony was quite interesting. For the first time, the jury and the students had the opportunity to hear the defendant’s side of the story. Interestingly, the defendant is often the last person to testify (if they do testify) in the trial. There are two main reasons for this practice.
First, the defendant is constitutionally entitled to hear their trial. They have the opportunity to sit through each witness and hear the story. Thus, if needs be, they can emphasize parts of their story that aligns with positive aspects of testimony.
Second, once you testify, you are unable to take the stand again if you remain in the courtroom. For instance, the state had previously called the bar owner to the stand. Later, the bar owner returned to the courtroom to hear the defendant’s testimony. Because of this decision, the state would not be allowed to call the owner again if they desired to (as a rebuttal witness). Therefore, the defense typically save the defendant as their final witness.
Defense Rests
There were no rebuttal witnesses.
Motion for Acquittal
In civil procedure (note that this is a criminal case), a party may make a motion for judgment as a matter of law (JMOL). This motion asks the court to resolve the issue without the jury because the opposing party failed to meet their burden of proof. This motion must be made to preserve the right to bring another motion later (known as JNOV).
In a criminal case, the equivalent is a motion for acquittal. Essentially, the motion the same as a JMOL. The defendant is asking the court to acquit the defendant of the charges because they believe the state failed to meet their burden of proof (beyond a reasonable doubt).
Although these motions were presented on the third day of trial, the court’s decision was provided on the fourth and final day of trial. Originally, there were three charges. One of those charges resulted in an acquittal.
Debate about Jury Instructions
At the end of the trial, the court dismisses the jury and the parties discuss the jury instructions. Usually, this is a private discussion between counsel and the judge. This process is usually not public and is not on the court record. However, Drake students were blessed to watch the attorneys work, discuss, and debate changes that should be made.
The instructions for the jury inform the jury how to resolve the issue. They provide the law for the jury to follow in reaching their verdict. Both parties are expected to propose jury instructions. At that point, the judge will review, revise, and propose a final draft to counsel. After discussions are made and revisions are finalized, the jury instructions are ready to print.
