PROFESSOR ANN MURPHY, DISTINGUISHED CHAIR, FULBRIGHT PROFESSOR OF LAW and Gonzaga University School of Law.

CENTRAL UNIVERSITY OF FINANCE AND ECONOMICS

PROFESSOR ANN MURPHY,DISTINGUISHED CHAIR,

FULBRIGHT PROFESSOR OF LAWand Gonzaga University School of Law

Thank you for inviting me to speak at your University!!

ELEMENTS OF A TRIAL IN THE UNITED STATES

After law school I began working for the Internal Revenue Service

in San Francisco, California

I was a trial attorney and practiced law in the United States Tax Court

After fifteen years as a practicing tax attorney, I decided to teach law

I began teaching at Gonzaga University School of Law in the

year 2000

Gonzaga University is in Washington state - the “other Washington” – it is

not Washington, DC

In the academic year 2007-2008 I was a Fulbright Professor at the

Central University of Finance and Economics in Beijing!

I am incredibly fortunate to have received another Fulbright grant

I teach at Shanghai University of Finance and Economics for the 2014-2015 academic year

The Fulbright Program supports educational exchanges that strengthen understanding and communication between the United States and over 140 countries.

FULBRIGHT PROGRAM

EITHER A DISPUTE BETWEEN TWO PRIVATE PARTIES (OR A DISPUTE WITH THE GOVERNMENT) – A CIVIL CASE

OR

A CRIME HAS OR HAS NOT BEEN COMMITTED BY THIS PERSON OR BY SOMEONE ELSE – A CRIMINAL CASE

AT WHAT POINT DO YOU HAVE A TRIAL?

Not the same as the Civil Law System

Case begins with a “complaint” or a “petition”

For example:◦ Murphy v. Beyoncé Giselle Knowles-Carter- I file a

complaint in the U.S. District Court for the Eastern District of Washington (a federal court) and in my complaint, I allege that Beyonce stole a song that I wrote. She called it “All the Single Ladies” but I called it “Put a Ring on It”

◦ I request a jury trial, and damages in the amount of $23 million.

CIVIL CASE

EITHER THE FEDERAL GOVERNMENT OR A STATE GOVERNMENT ACCUSES A PERSON OF COMMITTING A CRIME

THE PERSON MAY BE CHARGED, INDICTED, OR THE SUBJECT OF AN “INFORMATION”

CRIMINAL CASE

Who is this person?

Trafficviolation

THE RIGHT TO:

◦ KNOW THE CHARGES AGAINST YOU◦ A JURY TRIAL◦ A SPEEDY TRIAL◦ COMPEL A WITNESS OR OTHER PERSON TO APPEAR◦ CONFRONT THOSE WHO ACCUSE YOU◦ REFUSE TO TESTIFY◦ AN INDICTMENT FOR CAPITAL AND “INFAMOUS”

CHARGES◦ A PUBLIC TRIAL◦ BE RESPRESENTED BY AN ATTORNEY◦ BE FREE FROM CRUEL AND UNUSUAL PUNISHMENTS

CONSTITUTIONAL GUARANTEES IN CRIMINAL CASES

No person shall be held to answer for a capital, or otherwise infamous crime, unless on a presentment or indictment of a grand jury

U.S. CONSTITUTION – 5TH AMENDMENT

A CHARGE OR CHARGES BROUGHT BY A GRAND JURY

WHAT IS AN INDICTMENT?

The petit jury listens to the evidence offered by the prosecution and the defense (if it chooses to offer any) during a criminal trial and returns a verdict of guilty or not guilty

NOT A PETIT (TRIAL) JURY

The grand jury, on the other hand, does not determine guilt or innocence, but only whether there is probable cause to believe that a crime was committed and that a specific person or persons committed it. If so, then it will prepare a written statement of the charges (called an “indictment).” They meet in secret.

A GRAND JURY

Only after that willa Defendant be triedin a court

The grand jury normally hears only that evidence presented by an attorney for the government. The grand jury must determine from this evidence whether a person should be tried for a serious federal crime

GENERALLY

Federal law requires that a grand jury be selected at random from a fair cross section of the community

Generally selected from voter registration lists or driver’s license lists

BETWEEN 16 AND 23 MEMBERS

WHO IS ON A GJ?

Chief Judge Wachtler: district attorneys now have so much influence on grand juries that "by and large" they could get them to "indict a ham sandwich."

IS IT EASY TO GET AN INDICTMENT?

CONFLICT OF INTEREST?

THE ERIC GARNER CASE

FOR EXAMPLE: JARED LEE LOUGHNER

THERE MAY BE BOTH FEDERAL AND STATE CHARGES

The Defendant agrees to plead guilty to a lesser charge or to the actual charge in exchange for a promise of the prosecutor (United States Attorney (federal case) or District Attorney (state case))

The Judge does not have to accept the plea bargain, but almost always

does so

◦ In a civil case this is called a settlement

PLEA BARGAIN

97 percent of federal cases and 94 percent of state cases end in plea bargains, with defendants pleading guilty in exchange for a lesser sentence. 

HOW MANY CASES END IN A PLEA BARGAIN OR A SETTLEMENT?

Dallas Maverick Raymond Felton

Felton pleaded guilty to attempted criminal possession of a weapon and criminal possession of a firearm.

SETTLEMENT

IN 2012, LESS THAN 2% OF FEDERAL CIVILCASES WENT TO TRIAL

JURY TRIAL, or

BENCH TRIAL

JURY SELECTION

FEDERAL CIVIL CASE – six to twelve jurors

◦ Standard – Preponderance of the Evidence (51%)

FEDERAL CRIMINAL CASE – twelve jurors- must be unanimous

◦ Standard – Beyond a Reasonable Doubt

OPENING STATEMENTS

“The purpose of opening statements by each side is to tell jurors something about the case they will be hearing. The opening statements must be confined to facts that will be proved by the evidence, and cannot be argumentative.”

Tell the jury what to expect

PLAINTIFF’S CASE PRESENTATION

PARTY WITH BURDEN OF PROOF ALWAYS GOES FIRST

PLAINTIFF CALLS HIS/HER/ITS WITNESSES – DIRECT EXAMINATION

DEFENDANT CROSS-EXAMINES

DEFENDANT PRESENTS ITS CASE

DEFENDANT CALLS ALL OF HIS/HER/ITS WITNESSES

DIRECT EXAMINATION BY THE DEFENSE CROSS-EXAMINATION BY THE PLAINTIFF

PLAINTIFF’S REBUTTAL CASE

PLAINTIFF MAY CALL “REBUTTAL WITNESSES”

PLAINTIFF DIRECT EXAMINATION DEFENSE CROSS EXAMINATION

CLOSING ARGUMENTS

“Only after the jury has seen and heard the factual evidence of the case are the parties allowed to try to persuade them about its overall significance. Closing arguments are the opportunity for each party to remind jurors about key evidence presented and to persuade them to adopt an interpretation favorable to their position”

JUDGE GIVES JURY INSTRUCTIONS

Example: George Zimmerman trial

https://www.youtube.com/watch?v=wPmFPzioniU

JURY DELIBERATIONS

THE VERDICT

Example:

https://www.youtube.com/watch?v=6IIDJshJE3E (it may be dramatic)

JUDGE ISSUES JUDGMENT, OR JUDGMENT NOTWITHSTANDING

THE VERDICT

EXTREMELY RARE

JUDGE SETS ASIDE THE JURY VERDICT AND ENTERS A VERDICT HIMSELF/HERSELF

APPEAL – IF APPLICABLE

ISSUES OF LAW ONLY

DID THE TRIAL COURT ERR?

THE PROGRESSION OF A CRIMINAL CASE

TRIAL IS VERY SIMILAR (UNITED STATES ATTORNEY OR STATE DISTRICT ATTORNEY GOES FIRST – HAS BURDEN OF PROOF)

HOWEVER, STEPS TO GET TO AN ACTUAL TRIAL ARE DIFFERENT

BURDEN OF PROOF – BEYOND A REASONABLE DOUBT

CRIMINAL TRIAL – PROSECUTOR OPENING STATEMENT

Example: State of Florida v. Michael David Dunn

https://www.youtube.com/watch?v=lpEp3UbQcnk (minute 10:20 to 21:30)

Indictment at: https://blackbutterfly7.files.wordpress.com/2014/02/michael_dunn_indictment_r.pdf

CRIMINAL CASE IN THE U.S.

INVESTIGATION ARREST CHARGE ARRAIGNMENT DISCOVERY PLEA BARGAINING PRELIMINARY HEARING PRE-TRIAL MOTIONS TRIAL POST-TRIAL MOTIONS SENTENCING APPEAL (IF APPLICABLE)