Saving Your Trial with a Simple Checklist

The case was more serious than most.

The defendant was accused of sexually molesting a young child, and the evidence against him was strong.  There was hardly a dry eye in the courtroom as the young girl described what the defendant had done to her.  As the doctor described the girl’s injuries, you could feel the jurors’ horror turn to rage.  By the time the detective testified about the defendant’s remorseless confession, the jurors were ready to convict and execute the sentence themselves.

Once the prosecutor had rested her case, the defense attorney rose and moved for a judgment of acquittal (directed verdict).  That’s when things went awry.

Normally, in a case as strong as this one was, the motion for judgment of acquittal should have been merely a pro forma motion.  But now, the judge was seriously considering granting the motion for acquittal.  Why?

The defense attorney hadn’t attacked the strength of the molestation evidence.  Instead, he said that the prosecutor hadn’t put forward any proof that the offense had occurred within the county lines.  In every criminal case, the state needs to prove that the court has jurisdiction over the subject matter.

The prosecutor’s face turned ashen.  She realized that the defense was right – she hadn’t proven venue.  If she couldn’t quickly think of something, this case was going to be dismissed…

How can you avoid the same problem with your case?

Here’s an incredibly easy technique you can use to ensure you never lose a case because you omitted an essential element of your case: The Checklist!

“A checklist?”

That’s right.  The same thing that helps you navigate your way through the grocery store can help you win your next trial.  But your trial checklist is even more important than your grocery list.   In trial, the stakes are high, emotions are high, and your mind is racing at breakneck speed.  If you were ever going to accidentally overlook something, this would be the perfect opportunity.  You’ve probably heard it said that “the faintest pencil mark is better than the sharpest memory,” right?  That’s especially true during trial.  So rather than risking an oversight, prepare the checklist while your mind is calm.

On your checklist, you should list every element you must prove to win your case.  For example, let’s say you are prosecuting someone for the crime of Battery.  (Don’t worry, defense attorneys, this article isn’t just for prosecutors and plaintiff’s lawyers – I’ll show you how the checklist can help you, too).  Here in Florida, to prove a simple battery, you need to show that the defendant “touched or struck the victim against his will.”  But you also need to prove that the defendant is the person who did it, and that the crime occurred within the court’s jurisdiction.  Here’s how you would organize your checklist:

[ ] Identity
[ ] Venue
[X] Touched or struck victim
[X] Against his will

As your witnesses testify to each element, you check it off the list.  Before you rest your case, re-examine the list to ensure that every element has been proven.  In this example, you wouldn’t want to rest your case yet, because you can quickly see that no one has identified the defendant as the person who committed these acts.

Using a checklist benefits defense attorneys, too.  As the witnesses testify to each element, you check it off.  When your opponent rests their case, if they haven’t put forward anyproof of an element, you can focus your argument for JOA or directed verdict on the missing element.  Defense attorneys can also use the checklist to present affirmative defenses, ensuring that you’ve met every element of the affirmative defense before you rest your case.

Unfortunately, in the sexual molestation case, the prosecutor hadn’t prepared a checklist.  That’s why she found herself frantically asking for the court’s indulgence to re-open her case and prove the missing element.  The judge, perhaps feeling that a case of this magnitude should be decided upon its merits, rather than on a technicality, allowed her to re-open the case, and she quickly showed that the crime had been committed within the county lines,

She was lucky.  Don’t expect that you’ll be that lucky, too.  On less serious cases, I’ve seen judges grant the judgment of acquittal to teach young prosecutors an important lesson.  It’s certainly effective – I’ve never seen any of those attorneys repeat the same mistake.  You, however, don’t need to suffer a judgment of acquittal or a directed verdict to learn the lesson.  Prepare your checklist before trial, keep track of the testimony as witness’s testify, and you’ll never omit an essential element of your case.

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