Chapter 4
Proof Via Evidence

Pretrial Motions

    • Change of Venue
    • Declare the defendant incompetent (§1368)
    • Line-Up (Evans Line Up)
    • Set Aside the Indictment or Holding Order(§995)
    • Recusal Motion
    • Speedy Trial Motion
    • Suppression Motion (§1538.5)
    • Demurrer
    • Pro Per Motion (Farretta Motion)
    • Motion to relieve appointed counsel (Marsden Motion)

Trial Motions
    • Motion in Limine
    • Preliminary Ruling (§402)

Order of Evidence at Trial

    • Trial Motions
    • Jury Selection
    • Opening Statements
    • Prosecution or Plaintiffs Case in Chief
    • Defense Motions (Motion to Dismiss for Failure to Present Sufficient Evidence to Support a Conviction (§1118))    
    • Defense Opening statement if not previously made
    • Defense Case in Chief
    • Prosecution or Plaintiff’s Rebuttal
        • May not “save” witnesses for rebuttal
    • Defense Surrebuttal or Rejoinder
    • Argument and Instructions
    • Deliberations

Role of the Judge
    • Makes legal (as opposed to factual) determinations.
    • Instructs the jury as to the law
    • Insures orderly progress of the trial
    • Insures fairness of the trial
    • Controls the method of examination of the witnesses

Role of the Jury

    • Act as “triers of fact”
    • Apply the facts they determine to the law provided by the judge
    • Follow the law, even if you disagree
    • Not be influenced by pity or prejudice for defendant
    • Not be biased because the defendant was arrested, charged, or went to trial.
    • Be fair and impartial and not influenced by outside factors
    • Not second guess what the punishment will be.
    • Avoid jury misconduct

Role of the Witnesses

    • Tell the truth
    • Comply with a subpoena

Prosecution Responsibility
    • Sole responsibility for making charging decisions
    • Provides full and fair information to defense about evidence and witnesses.
    • Evaluate evidence independently and only use evidence he or she believes is credible.
    • Provide any exculpatory information in law enforcement possession to defense (Brady Material).

Defense Responsibility
    • Provide reasonably “effective assistance of counsel”.
    • Perform independent investigation.
    • Prepare witnesses to testify.
    • Not knowingly participate in a false defense (Nix v. Whiteside)