Wednesday, November 27, 2013


Here is another student’s report containing courtroom observations. She watched trial work in an attempted murder case. Each semester in my Comprehensive Trial Advocacy course, the law students go to court, observe and write a report about what they saw and learned by watching a day in trial. Students select from federal, state or municipal court, and they can choose either a civil or criminal cases.

These reports are important for at least three reasons. First, no matter how much you stress certain principles of trial practice in a law school class, the lessons don’t stick the way seeing them come live in a courtroom. The observations accomplish this because the experience connects the principles of trial practice with real life. Second, the students’ observations often highlight points that should be emphasized during the course. Third, the reports are delightful to read. Highly recommend that any trial advocacy instructor make courtroom observation a requirement.

The following is a report by Margaret Duncan (other names and places are changed). Her report contains some excellent practice pointers:


You have asked me to observe a day of trial and then write a report on those observations.  I attended part of a criminal trial that Judge Sherbet of the Superior Court is overseeing (State v. Gregory – scheduled to be about twenty days).  The Defendant has been charged with three counts of attempted murder after three individuals were injured as a result of a shooting that took place outside the Lemon Club. 

1.    Initial Thoughts

My first thought as I entered the courtroom was how it did not have many of the technological advances that I have seen in other courtrooms (like the U.S. District Court).  One big screen television was located in front of the State’s table, facing the jury.  When counsel used the television, for instance, to show the scene of the crime taken from one of the police vehicles, the prosecutors had to get up or people from the gallery would have to move around in order to see the television.  The courtroom also seemed cramped.

2.    Opening Statements

After I took in my surroundings, I settled in to listen to opening statements.  The State’s opening statement reminded me of what we had learned in class: telling the jurors a story, going in chronological order, humanizing the victims, etc.  The Defendant’s opening statement was more of an example of what we should not do: start off by telling the jurors that what you are hearing is not evidence, not telling a story that advocate’s for his client, and extremely short.  It felt like the Defendant’s attorney did not appropriately prepare for opening statement.  As I was watching opening statements, I directed my gaze towards the jurors.  One thing that struck me was how there was only one juror of color.  In this case, the Defendant was a young, African-American male.  I wondered about the implications of not having a diverse jury.

3.    Direct and Cross

After opening statements, the State began with its case by calling several police officers to testify as to the crime scene.  The first prosecutor to conduct direct was a younger female.  When she conducted direct, she would stand just in front of the witness.  Her direct seemed effortless in that she appeared confident in her questioning, and she had a strong rapport with those witnesses she questioned.  I also noticed how effortlessly and quickly she introduced and offered into evidence exhibits.  The second prosecutor to do direct was an older male, the same one who did the opening statement.  He was more formal with the witnesses, and he stood on the other side of the jurors in order to make sure that the witness was directing his or her testimony towards the jury.  Cross-examination of these witnesses was fairly short. 

I also saw the State call some expert witnesses to the stand.  One of which conducted the DNA testing from one of the weapons that was recovered.  The State first laid the foundation in showing that she was the proper witness to testify to the DNA results.  Once the State tried to link the Defendant’s DNA to the weapon, the Defendant attempted to break that link through cross-examination.  The Defendant did a good job of showing that one in two people could have been a match for this particular DNA sample and that the witness did not test the DNA from the weapon with DNA of other potential suspects.  The Defendant also got the witness to explain that there was not enough DNA to submit the sample to CODIS, which is a database of DNA profiles.  However, defense counsel seemed unprepared at times, and there were exceedingly long pauses when he was attempting to find a particular statement in the analyst’s report.  The judge looked frustrated, and I could see the jurors starting to look bored.

Another witness that the State called was an ATF agent that worked with a confidential informant in gaining information about the shooting.  During this testimony, I noticed that the State often pointed out its weaknesses with particular testimony, instead of leaving it for the Defendant to point out.  With the ATF agent, the State conceded that a majority of confidential informants, including the one at issue here, become confidential informants in order to get leniency in criminal charges pending against them.  Thus, the confidential informant may not be the most credible witness.  The State also conceded that one of the pieces of valuable information the ATF agent gained was not the most reliable in that it was a recording of a conversation that took place at a noisy bar.  The Defendant on cross successfully re-pointed out to the jury that this recording was not reliable because of the background noise.


            Counsel for the State and the Defendant made what we are learning in class look effortless:  they seemed at ease during opening statements, they offered and published exhibits smoothly, and they never asked the judge for guidance.  I was also impressed at how counsel for the State and the Defendant got along so well and how all of the players in the courtroom treated each other with respect.  Finally, I left the courthouse with a greater amount of respect for the attorneys on both sides than before I entered.  I am now truly beginning to see how much time and preparation goes into presenting a case.  I look forward to the challenge, and I am eager to represent a party in trial someday.

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