Stephen G. Cobb - Florida Criminal Defense Lawyer

Opening Statement Direct Examination Cross And Motion For Judgment Of Acquittal

Disclaimer: This article is in response to questions frequently asked of Mr. Cobb and is an unedited dictation transcript. Just like talk to text on your smartphone, there may be misspelled words or sentence fragments.

Okay. At this point, we have already gone through jury selection and both sides have had an opportunity to give an opening statement. An opening statement is not an argument; it merely is where the lawyers say what they believe the evidence is going to show. And, of course, the prosecutor is going to say the evidence is going to show that the jury should return a verdict of guilty and the defense lawyer is going to say that the jury should return a verdict of not guilty. Immediately after opening statement, the state will always go first and they are going to start calling witnesses. Now, witnesses will be called to the stand; sometimes they are sworn before the juries in the courtroom if the jury goes out for some reason. Juries go in and out during trials quite frequently when objections are made, we will come to that later. But some judges, as a practice, only swear witnesses when the jury is in the courtroom. But either way, each witness is going to swear or affirm that they will tell the truth, the prosecutor will begin and the prosecutor will ask what are known as direct examination questions. A direct examination question is something like what is your name? There is no answer contained in the question.

Cross-examination, which will be by the defense team, if the prosecution is calling witnesses first and they always do at the beginning of a trial, is where you can ask leading questions. And an example of a leading question or cross-examination question would be, “Your name is Stephen G. Cobb, isn’t it? You are an attorney, aren’t you?” Those are examples of leading cross-examination questions.

At the conclusion of cross-examination, then the calling party, the party that called the witness, has an opportunity to do redirect examination. So, you have direct examination followed by cross-examination followed by potentially redirect examination and occasionally but almost never, re-cross-examination if a new matter somehow pops up during that second direct examination.

Once that is concluded, the judge will ask both parties, “Is this witness excused?” And the answers are, “Yes, the witness is excused and can leave”, “No, we would like the witness to remain”, and, “Yes, your Honor. The witness can leave but we would ask that they remain subject to recall”. The prosecution does this more frequently because they have law enforcement officers with other duties. And if they are going to be pushing paper in the office because they have had trial that day, the prosecutor may want to call them but is not really sure and the defense has not presented their case yet so they may ask that that be done.

So, each witness will be examined in this order and during the way, witnesses may authenticate documents or provide testimony sufficient to allow photographs to be entered in the evidence and these are known as exhibits and they will be marked as “State’s Exhibit 1” or “State’s Exhibit A”, and then, it just goes through the alphabet or numbers depending upon the number of witnesses and the number of items of evidence that are entered as exhibits. Once the state concludes, what is going to happen is normally the defense is going to make a motion for judgment of acquittal. And you can think of that as based upon the evidence that has been presented, Judge, you should dismiss the charge. So, we have gone from the beginning of selecting a jury all the way through to the close of the prosecutor’s case. And in the next video, we are going to talk about what the defense does.

Disclaimer: This article is in response to questions frequently asked of Mr. Cobb and is an unedited dictation transcript. Just like talk to text on your smartphone, there may be misspelled words or sentence fragments.

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Stephen G. Cobb, Esq.

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