Basic courtroom questions - the devil's in the detail!

Your Honor, with a capital H is the typical way to do it.

In New York, I think it is usually "the people call," but this is more a matter of custom than of strict procedural law.

Someone is prosecuted when they have committed a crime, covered by state or federal law. If it is a state law, it is normally "The state calls" so-and-so. The defense is usually "the defense calls"

In civil trials, it is typically "the plaintiff calls" and "the defense calls"

A witness is called by the side that has sought to bring them to the trial. Let me give you an example.

K is accused of murdering victim V. He is being charged under a state statute against murder. Witness W thinks she saw K stabbing V in the eye with a pencil. Because this would be helpful to the prosecution's case, they will most likely bring W in as a witness

"The State would like to call W to the stand."

After W is sworn in, at this point the prosecutor (the lawyer for the state) does what is called a direct examination. The point of Direct is to let the witness tell their story. Therefore the lawyer asks short open-ended questions. The focus is on the witness.

Prosecutor: Can you tell me what you saw behind Charley's Tavern on the night of April 3rd, 2003?
W: Yes, I was minding my own business, dealing crack like I do every saturday... (and the story goes on)

Then the other side (in this case the defense) comes up and cross-examines the witness. Since the witness is probably hostile to the defense, the defense lawyer wants to be the one telling the story. Therefore they will ask longer yes/no questions, trying to talk the witness into a corner. Every question will contain one fact, one face which must have a yes/no answer. the focus is on the attorney, not on the witness. Often, it doesnt even matter what the witness's answer is, the point is for the cross-examining attorney to get their story out there.

Defense Lawyer: You knew K, correct?
W: Yes.
DL: You used to work at Target?
W: Yes
DL: You were fired from Target because of a complaint K made to the manager?
W: Well, I guess...but...
DL: You didn't like K?
W: I didn't even KNOW him that well...
DL: You were angry with K?
W: Well, yeah, but..
DL: You thought it would be a good way to get back at him to tell the court today you saw him with a number 2 pencil, stabbing V in the eye?
W: No!
Prosecutor: Objection!
Judge: Sustained
dL: No more questions.

And then the side whose witness it is gets to do a redirect where they try and clarify any issues the cross-examination may have muddied.

This may just be confusing. Tell me where it helped, where it hindered, come back with specifics, and I'll try and be more specific. It would be really helpful if we knew what crime the accused was being charged with, so we could determine who would be doing the prosecuting, what the procedure would be, etc.

I think Writer's Digest (the book publisher, rather than the magazine) has a book on legal basics for writers.

For a free resource, try findlaw.com, where there are a number of articles on basic fields of law, often broken down by state. Criminal procedure, while having similarities from state to state, varies hugely in the details, like whether it's "the people" or "the state" or "the prosecution" or "the Commonwealth," and whether grand juries or clerk-magistrates or some other entity decides whether to file charges.

You could also try googling something like "New York Court," or "New York trial court" or "New York Criminal Court" to find the official court site, which is likely to have FAQs for laypersons, as well as information only a lawyer can really digest. The FAQs might have what you need.

But, really, for anyone who's going to write a courtroom-based scene, it's a good idea to do some basic reading about legal procedure first and to visit a courtroom. These days, there's heightened security at courthouses, but the courtrooms (at least for adult cases) are open to the public. Check with one of the security guards at the entrance to see if there's a trial happening, and if it would be okay to sit in the back and watch it. Just introduce yourself and explain that you're a writer and would like to see what really goes on in court.

JD

I've served on juries, but not in NY, so I'll won't try to answer your original question. Others can probably help you better than I can.

One thing I would caution you about is not doing the courtroom scene like it is quite often done on TV (Perry Mason comes to mind), where all the witnesses are sitting out in the courtroom. Here at least, all witnesses are kept in a separate room until they are called. They can't hear the testimony of other witnesses before they give their own. After they testify, they are allowed to sit in the courtroom but even then are sometimes warned by the judge not to nod, signal, or do anything else to try to influence the testimony of another witness.

Steve W said:

The jury box 'balustrade' - just a balustrade, or does it have a special name?​

Usually just jury box. We're not smart enough here to call it a balustrade.

If the judge asks for something to be fetched from another room within the courthouse, who does he ask, a clerk?​

He'll ask either his clerk or the bailiff.

The main aisle than runs down the centre of the court from the main door to the bench - just an aisle, or a special name? (I imagine it's just an aisle, but you never know.)​

Just an aisle.

In NY, how is the evidence catalogued? I currently have it numbered. Is that right or should I use letters?​

Doesn't matter. Whatever you can get cheaper at Officemax.

If one of the lawyers accuses the other of playing to the court, is the term 'showboating', or 'grandstanding'? Or something else totally?​

No, there is no real objection to "showboating" unless there is an actual breach of the rules of evidence. What the attorney can do is call for a sidebar (a meeting with the judge and the hsowboating attorney that is not heard by the jury) or ask to approach the bench (same thing as a sidebar really) and tell him that the other attorney's activities are in violation of the ethics rules. The judge may give a warning but probably not anything because there is no legal objection.

Again, is this the correct terminology - '... move for a continuance...'? (The phrase a lawyer would use if he suddenly realised he could be better prepared in some way so wanted to postpone the trial.)​

You would move to adjourn and give the judge your reasons. Requests to a Court are done through "Motions". You could move for a continuance, I suppose or ask for one, if there is a real reason, but you ought to look up the rules of procedure for New York. The New York State Bar ought to have a link on its sight or can point you in the right direction with just a phone call.​

The person who records a transcript of the proceedings - the court stenographer?


Court reporter.

If it's 'your Honor', is it also the Defense, the Prosecution (or the People), etc? Are they all proper nouns, so capitalized? [But surely it isn't the Judge?]​

It depends. When the judge speaks in a formal speech, often times he will simply say the Defense, the Prosecution. When he doesn't know the attorney's name, he will say the Defense or the Prosecution. If he's a golfing buddy or well known, he'll probably use the attorney's name unless it's a formal hearing in front of a jury. Then it's more likely he will use the Defense or the Prosecution. When the attorneys refer to themselves the refer to themselves as the Defense or the Prosecution. When they refer to the other, it's usually the same. SOmetimes they just say "dickhead", but that's a matter of personal choice. These aren't hard and fast rules, more like general practice things.​

Yes, capitalize. You're using it as a proper noun.​

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Hope this helps.

Steve W said:

I don't get the Officemax reference. Sorry. (Like I said, I'm a Brit.)
Officemax is an office supplies store, you buy your paper, your pagination tabs, your staples, that kind of thing.

I'm having the lawyers handle exhibits 16 through 29, etc -- I meant, should that be exhibits C through M, or are numbers okay?
It doesn't really matter, I used to go to court and forget if I was doing numbers or letters, but use what ever seems clearer to you.


So would a lawyer say to the court, "I'd like to table a motion for..." as opposed to 'I'd like to move for a continuance...', etc. (I originally had 'table' but somehow it didn't look right.)

If it were me, I would say "Your Honor, I move for an adjournment (or continuence)" The only time in practice I heard someone say they wanted to "Table a Motion" was a relatively young female lawyer who watched it on t.v. and thought it sounded cool so she repeated. Keep in mind there is a lot of ego in lawyers and they say things that they think make them sound more impressive.

Does the First Degree Grand Larceny and 25 years sound right?

No idea. Check the statutes. It's usually set forth pretty clear what the maximum and minimum penalties would be, if there are aggravating or mitigating factors the judge will take that into account.

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Again, good luck

"To table" is to set aside for the time being, so a lawyer would be more likely to "move" for a continuance. Although that sort of stuff is usually long since addressed before you get to the actual trial date, through pre-trial discussions.

Also, I don't have criminal law expertise, but I always thought securities violations were almost exclusively within the jurisdiction of federal law, not state law, so you might want to check that. Well, there's some state involvement in certain cases, but the vast majority of it is federal, and if it involves the NYSE, it's big-time, not some minor, local stock exchange where the state might be involved. I don't know what the definition of the crime is, exactly, but it would be a specific violation of securities statutes, not larceny, which is more general and applies to things that don't have a specific criminal prohibition like insider trading. You might google "Securities Exchange Commission," and there may be links to the U.S. Code (available on-line) that describe the relevant crimes and reference the sentencing range. There may be applicable sentencing guidelines somewhere too, if it's a federal case, which would give you a range of sentences.

JD

I've never looked for one, but you could probably find an actual court transcript online somewhere.

Steve W said:

So would a lawyer say to the court, "I'd like to table a motion for..." as opposed to 'I'd like to move for a continuance...', etc. (I originally had 'table' but somehow it didn't look right.)

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I repeat what Parkinson said. And here's why: "to table" means the opposite in Britain to what it means in the US. You guys say something is "tabled" when it's presented for discussion. We say it's tabled when it's withdrawn, shelved, put aside for possible discussion at some unspecified future date. See Dictionary.com, definition 20, for proof: http://dictionary.reference.com/browse/table

Steve W said:

I did look at Securities Fraud, but I'd already found First Degree Grand Larceny, 25 years, in the online U.S. code. I went back to look for securities, but just couldn't see it for some reason (maybe I simply glanced over it), so figured the larceny would have to do. I suppose if it's Federal, then it's definitely the People or the Prosecution as opposed to the State. Don't suppose there's any harm in simply going with the Prosecution.

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If it's federal, then it would be in federal court. This could be in New York state--there are federal district courts in every state--but I'm just pointing this out because courtroom procedure and decorum in federal courts is more formal than in state courts. Any TV show or movie you've ever seen with a courtroom scene is in state court--maybe there are one or two exceptions, but what's being (inaccurately) depicted in movie and TV courtroom scenes is state court.

Here's something that may be of use to you, if you decide to go with federal charges and a federal court: http://www.uscourts.gov/understand03/content_9_0.html
And make CERTAIN, if you choose federal, that the crime the person's accused of is something that could have landed them in federal court. The federal courts CANNOT try a case where the defendant broke only state laws; he has to have broken federal laws. Since you've been looking at the US Code, you can certainly find federal laws for him to be accused of violating; you may want to take the names of those crimes and do a google search on them with the word "federal" (sample search: "grand larceny" federal felony). That would bring up newspaper articles about people charged with such crimes, so you could get more real-life details for your story.

Steve W said:

It's a unique form of insider trading, for want of a better term, on the NY Stock Exchange, which I believe is First Degree Grand Larceny, punishable with up to 25 years. (Please tell me if I'm wrong there.)

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You're probably wrong, though I can't be certain without the details. If it's insider trading in any way, shape or form, it's probably a securities violation. So I would suggest you go back to the securities violation you originally had in mind. This would definitely put you in federal court, since it's a securities violation on a national stock exchange. New York is in the Second Circuit (the federal circuit, i.e. system of federal courts, is divvied up into... I actually forget how many, but about 12 circuits, each containing several states). If you have trouble finding it in the U.S. code, look in Title 15.

A few handy links: http://criminal-law.freeadvice.com/criminal-law/insider-trading.htm
http://federalsentencing.typepad.com/developments_in_federal_s/2006/05/the_end_of_an_i.html
The latter link is interesting because it's a blog about the second circuit, with all sorts of real-life trivia and developments. And maybe you could email some questions to the blogger?

The lawyer across the hall--who answers the occasional shout-out--says he thinks there's an actual charge called Insider Trading and that while the courtroom might well be located in New York, it would be a federal court case.

Maryn, just confirming what others have said

this is the only criminal statute in the criminal code with that name.

18 USCS Appx § 2B1.4

§ 2B1.4. Insider Trading

(a) Base Offense Level: 8

(b) Specific Offense Characteristic
(1) If the gain resulting from the offense exceeded $ 5,000, increase by the number of levels from the table in § 2B1.1 (Theft, Property Destruction, and Fraud) corresponding to that amount.

That probably wont mean much to you...but basically what this does is gives you the base offense level for calculating someone's prison sentence.


More important than the USC, however, are the SEC rules.

10b-5 is what controls all of this.

Again, none of that is very important. For your book, you just need to know that he is most likely being charged in federal court.

Defense Lawyer: You knew K, correct?
W: Yes.
DL: You used to work at Target?
W: Yes
DL: You were fired from Target because of a complaint K made to the manager?
W: Well, I guess...but...
DL: You didn't like K?
W: I didn't even KNOW him that well...
DL: You were angry with K?
W: Well, yeah, but..
DL: You thought it would be a good way to get back at him to tell the court today you saw him with a number 2 pencil, stabbing V in the eye?
W: No!
Prosecutor: Objection!
Judge: Sustained
dL: No more questions.



Wouldn't these questions be considered leading the witness. I think you'd have to word them more neutrally:

Did you know K? or How did you know K?

Have you ever worked at Target?

Were you ever fired from Target?

Why were you fired?

I don't think lawyers can put the answer they want into the question.

Tish Davidson said:

I don't think lawyers can put the answer they want into the question.

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If it's your witness you can't lead, but if it's the opposing party or a hostile witness, you sure as heck can.

No, Trish. You can lead on cross examination. You can't lead on direct examination. If it's your witness, no leading. If it's your opponent's witness, lead away.

ETA: Heh. Cross-posted with Park.

Thanks for the backup Parkinsonsd and Soccer Mom, i was gone for a few hours

Anyway, think of it like this... If it's your witness on the stand, and you're doing a direct examination, you want it to be the witness's story, the focus on the witness. For an opposing witness, you want it to be YOUR (the lawyer's) story with focus on YOU. Best way to do that is very much to lead...one undisputable fact at a time (per question).

BTW, I'm not a licensed attorney (yet) and it sounds like some of these other folks are, or at least have more courtroom experience than me, so I would defer to them.

Tish Davidson said:

Defense Lawyer: You knew K, correct?
W: Yes.
DL: You used to work at Target?
W: Yes
DL: You were fired from Target because of a complaint K made to the manager?
W: Well, I guess...but...
... Wouldn't these questions be considered leading the witness. I think you'd have to word them more neutrally... I don't think lawyers can put the answer they want into the question.

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As some other posters have said, a lawyer can lead a witness on cross-examination (prosecution examining a defense witness, or vice versa). The rule you're thinking of only applies to direct examination of a witness; a lawyer can't lead a witness on direct examination (i.e. they can't ask their own witness leading questions). Some strategists say that ONLY leading questions should be used on cross; here's one such argument: http://www.cccba.org/cclawyer/Dodd.htm

The basic logic of allowing leading questions on cross, but not on direct, is that a lawyer is much more able to influence their own witness than to influence the other side's witness. Your own witness wants the trial to end the same way you want it to end. But the other side's witnesses don't; they're "hostile witnesses," i.e. people who are there on the stand to make the trial go the way that you, the lawyer, do NOT want it to go. So they're not going to cooperate with your leading questions the way your own witnesses might. Therefore, asking them leading questions is much less likely to lead to an injustice. That's the theory, anyway. Here's more on that: http://www.abanet.org/publiced/courts/crossexam.html

I'm afraid this is way too specialized for me. Sorry. I just barely knew it was federal, rather than state law. Lawyers who specialize in this field probably have shorthand terms for the possible violations, but I have no clue what they are.

Did you try findlaw.com? Do they have anything on securities law in the context of criminal violations?

The official citation would be 18 U.S.C. Section [or the squiggle thing] 1348, with the chapter being an unnecessary designation (I believe; not absolutely sure on that one, since I usually deal with state law, rather than federal), and that's what would likely be listed on official documents. In dialogue, it's probably (and this is just a guess) just referred to as "Section 1348" or "securities fraud."

As to whether this is the right crime, I'm not clear on whether the character hacked the stock exchange itself, or if he hacked some company that's listed with the NYSE, and found information at that company that he then used to his advantage in buying and selling stock relating to that company.

I don't suppose you have access to a law library. The problem with looking at the official statutes on-line, rather than the "annotated" versions in a law library, is that you don't get the annotations (summaries of cases interpreting the statute), which would give you examples of the types of cases that fall under the statute.

Sorry I can't be much help. It's just an incredibly specialized field of law, with very technical requirements, unlike something (relatively) simple (from a legal point of view) like murder.

JD, not giving legal advice, of course, just general information, and not much of that, in this case!

Steve,

I seem to recall a recent case in the news about the very thing you're talking about. Hackers getting insider info and trading on it before the news release. Try www.sec.gov (U.S. Securities and Exchange Commission) and click on newsroom or recent cases. They've got a great website and even a contact link. Ask them. You're a taxpayer. That's what their public affairs office is there for.