After the Court swears in the jury (which is when double jeopardy “attaches”, meaning the defendant cannot be tried again for the same act he sits on trial now for, except by appeal), and gives the jury some preliminary instructions, the parties may give an opening statement to the jury. This is a roadmap of what each side believes the evidence will prove, and not a time to argue guilt or innocence, which is why this process is called opening statements, and not opening arguments. Fort Lauderdale Criminal Attorney Mark Lowry is a former prosecutor and experienced criminal defense attorney who has tried over 60 criminal jury trials. Contact the firm for a free consultation to discuss your case and ask questions today.
After opening statements, and because the State has the entire burden to prove all crimes charged, they present their case first. The prosecutor will call witnesses and through questioning, attempt to paint a picture for the jury of what occurred on the date(s) in question. For each State witness, the defense can cross-examine him or her based on what was said on direct examination with the prosecutor. This is when the defense attorney can discredit the witness by showing, for example, a prior statement that is inconsistent with the testimony at trial, or a bias or prejudice against the defendant.
After the State rests their case, the defense attorney should make a motion to the Court requesting it to enter a “Judgment of Acquittal”, or JOA for the defendant. As the State has the entire burden to prove that the crime occurred and the defendant committed it, they must have proven beyond a reasonable doubt that the defendant is guilty of the crime charged. If the State has not proven an element of an offense (for example, that the victim was in fact touched in a charge of Battery), the Court may acquit the defendant, or lessen the charge, prior to the defense putting on a case. If this motion is denied, the defense may open their case and present evidence. Because the defense does not have the burden of disproving the State’s case, many times the defense will not present evidence and simply rest on the argument that the State hadn’t met their burden, and thus, find the defendant is not guilty. If granted, the case is dismissed. Otherwise the defense may present witnesses and/or the defendant himself to testify. Deciding whether a defendant should testify is based on numerous factors, most importantly if he has a prior criminal record that could be exposed. Florida case law states the decision to testify ultimately must come from the defendant himself, but may be influenced by the advice of his attorney. (See Part II to continue)
If you or someone you love has been cited or arrested for anything, contact criminal attorney Mark Lowry immediately to help understand the criminal process and how to fight your charges. We offer affordable payment plans and 24 hour service 7 days a week.