Death and court proceedings?

Steve W said:

Hi,

I'm hoping someone can help with a tricky question relating to court proceedings, please?

I have a high-profile court case in my WIP. Since day one of the investigation, the Prosecution has pushed to fast-track the trial. The Defence hasn't objected to this and has in fact waived time. The Judge has advised the Prosecution to take things slower, REPEATEDLY, but been totally ignored. During the first day of the trial, an important Prosecution witness is found dead in the court house building. The Prosecution moves for a continuance...

Forgetting any investigation into the death (it's a big courthouse in a major city), I have two questions, please:

I have the Judge rejecting the continuance on the grounds that the Prosecution ignored repeated advice not to fast-track the case, so after a recess, he demands the case continue with the remaining witnesses. Could this happen?

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In my court the judge usually pushed for trial as soon as possible. If yours is a murder case (you just say "high-profile") then the defendant would likely be in jail and my judge didn't like people being in jail unless they had been convicted. Bottom line, yes, it could easily happen. It would be even more likely if the defense insisted on it as defendants have a Constitutional right to a speedy trial (a right written into many state codes of criminal procedure).

Steve W said:

Would the death of the witness be announced in court? If so, what would be said and by who?

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Probably not. No reason to. Now, if the defendant somehow was involved it's possible the issue might come up (you can't go around killing witnesses and not have people use it against you!) but the issue is more common in the civil context where, for example, a party has shredded important documents. In those cases, sometimes the jury will be told that fact. But I can't think why in a criminal case the jury would find out about the death of a witness. Then again.... thinking cap on.... if an important witness dies, that becomes a hole in the prosecution's case that the defense would try to exploit. ("Ladies and gentlemen of the jury, not one witness presented to you actually saw him with the gun"). Another witness might be able t take the stand and say something like, "Bob was going to testify but he died." Trouble is, you get into a mess of hearsay and personal-knowledge issues, meaning that kind of testimony would likely be excluded. You also have the likelihood that the defense would file what's called a motion in limine to preclude the prosecution from mentioning the witness's name during the trial.
So, I hope I haven't confused you. In sum: yes, the trial would go ahead if the judge said so, and no, the death of the witness would probably not be announced in court.
Good luck!
Mark

And after all that, I just noticed you are in England, not the U.S.! Ah well... good luck anyway.
Mark

I have a high-profile court case in my WIP. Since day one of the investigation, the Prosecution has pushed to fast-track the trial. The Defence hasn't objected to this and has in fact waived time. The Judge has advised the Prosecution to take things slower, REPEATEDLY, but been totally ignored.

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Just a few thoughts (and from other posts, I think you're setting this in the US, right? In which case, what Mark said is good):

First, the judge sets the time-frame. He wouldn't just advise, he'd do it. He schedules the trial, not the prosecution. If he didn't think justice would be served by setting a date, he wouldn't set the date.

Second, "speedy trial" is a bit of a misnomer in many courts. I can only speak to Massachusetts, but a "speedy trial" is one that occurs in the 9 to 15 month range (rather than 2-4 years in slower, civil cases), not the couple of weeks/months that tv/movies portray it.

Finally, the judge might be miffed with an attorney, but he's not going to allow a case to be won/lost because of his feelings toward one of the attorneys (and risk a reversal on appeal). His job is to try to ensure that the case is decided on the merits, not on his own biases. Unless, of course, the judge isn't a very good one, and if you posit that, well, then the judge can do just about anything he wants, subject to reversal on appeal.

Oh, and even more finally, I'm not sure what good a continuance would do if the witness was dead. If it's an eyewitness, and the only one, the prosecution is going to have to rely on other evidence, and whether the trial goes forward the next day or in two weeks, doesn't much change anything. If it's an expert witness that was killed, the prosecuting attorney (or someone in his office) can be working on getting a new one while the trial goes forward. There are also some double-jeopardy issues and how long you can keep a jury sequestered, etc., but those are beyond my expertise, limited as it is in criminal cases.

JD, not giving individual legal advice, just general information.

Don't forget that the prosecution can have the testimony from the preliminary hearing read into the trial. The witness that was killed could still then 'testify'. It's not an ideal situation because it's usually read by a court clerk (and this is already a sworn testimony) without passion or emotion. The defense wouldn't like it because there's no way to cross examine and attack the testimony at this point. It's not ideal any way around but it is possible to have it done under the circumstances.

Rabe...

I'm not sure whether you're aiming for an English or an American court, and there are some significant differences between the two. My advice is based on American courts.

I have a high-profile court case in my WIP. Since day one of the investigation, the Prosecution has pushed to fast-track the trial.

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From the first day of investigation is way before a case is ready for trial. A prosecutor is involved in major cases not to prepare the case for prosecution, but to make sure the cops don't screw it up. Cops sometimes ignore basic issues like searches and chain of custody for evidence. They also provide advice to the police.

At this point, the police are in charge. They'll be setting the pace. During this period, the only involvement of a court will be issuing search and maybe arrest warrants.

At some point, the police will be ready to present it to the prosecutor's office, and at that point, a prosecutor will be assigned to the case for presenting it to the grand jury. After the grand jury indicts the defendant, a court hearing will be set to appraise the defendant of the charges (called an arraignment). At this hearing is the first time a judge is likely to become seriously involved. It is also the first time deadlines and trial dates are set.

The Defence hasn't objected to this and has in fact waived time. The Judge has advised the Prosecution to take things slower, REPEATEDLY, but been totally ignored.

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Court calenders are set months in advance. A case is slotted into the next available slot (depending upon the estimated length of the trial). You get neither earlier or later. Both lead the court to arguments of favoriteism -- not a good thing. Original trial date can be continued by either side, usually with minimum problems. Defendants usually use some version of the "old wine defense," in which no case is tried before its time. The longer you wait, the more people forget, and if you're really lucky, people die.

Person who usually sets the dates is the clerk, but most books ignore this to avoid adding another character to confuse people.

During the first day of the trial, an important Prosecution witness is found dead in the court house building. The Prosecution moves for a continuance...

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Probably going to be granted, even (and especially if) the judge dislikes one of the attorneys. Defendant is going to object, but probably with little expectation of getting anywhere. Might have a speedy trial argument, but speedy trial is measured in months (or years) and probably isn't going to be a problem.

Forgetting any investigation into the death (it's a big courthouse in a major city), I have two questions, please:

I have the Judge rejecting the continuance on the grounds that the Prosecution ignored repeated advice not to fast-track the case, so after a recess, he demands the case continue with the remaining witnesses. Could this happen?

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He wouldn't deny the continuance on those grounds (although it might be what's in his head). Grounds for denying the continuance would be that everybody's there and ready for a trial, the dead isn't going to return, so no matter when tried, the prosecutor still has the same problem. Speedy trial might be presented, especially is the defendant is in jail.

Would the death of the witness be announced in court? If so, what would be said and by who?

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It would be announced with the motion to continue. It would not be announced in the presence of the jury. If it was, it would probably be grounds for a mistrial.

One of the best books I've read that includes a reasonably accurate description of what happens during a trial is A Time to Kill by John Grisham.

Jim Clark-Dawe

Judge's scheduling is NOT out of their control. The prosecutor does not decide the schedule, and a prosecutor should NOT be involved in the investigation until after the cops have evidence.

They have a "calender" with other trials on it already. If a trial is to be fast-tracked, a judge with an open calendar must be found, or the judge has ot "clear his calendar" by delaying other trials (whose participants can object) or getting other judges to take them.

If your witness drops dead, you have no choice but to continue with the remaining ones. If they are asking for a continuance because they need to go find new witnesses, a smart defendant's lawyer would object LOUDLY that they are re-opening the investigation and should have been prepared. BTW, the defendant's lawyer is supposed to be given ALL evidence the prosecution has.

It would be nice to give everybody a day or two recess to recover from the mental shock.

Steve W said:

During the first day of the trial, an important Prosecution witness is found dead in the court house building. The Prosecution moves for a continuance...I have the Judge rejecting the continuance on the grounds that the Prosecution ignored repeated advice not to fast-track the case, so after a recess, he demands the case continue with the remaining witnesses. Could this happen?

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That would surprise me enormously. Even assuming that the judge would have advised the DA to slow down, even assuming the judge found the DA's behavior obnoxious, that is a totally different issue. If the judge wanted to penalize the prosecutor for that, he would penalize him/her in some procedural way, like by taking his sweet time to rule on the prosecutor's motions, etc. The death of an important witness is a MAJOR change to the case, and it's completely and totally irrelevant to the prosecutor's earlier behavior. Even in the wildly, WILDLY unlikely event that the judge tried to make the prosecutor move ahead immediately despite the death of an important witness, the prosecutor would probably have grounds to file an immediate interlocutory appeal to overrule the judge's decision, and I can't see why he/she wouldn't win and get the judge's decision overturned.

JanDarby said:

the judge might be miffed with an attorney, but he's not going to allow a case to be won/lost because of his feelings toward one of the attorneys (and risk a reversal on appeal). His job is to try to ensure that the case is decided on the merits, not on his own biases. Unless, of course, the judge isn't a very good one, and if you posit that, well, then the judge can do just about anything he wants, subject to reversal on appeal.

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Well said. I agree.

JanDarby said:

Oh, and even more finally, I'm not sure what good a continuance would do if the witness was dead. If it's an eyewitness, and the only one, the prosecution is going to have to rely on other evidence, and whether the trial goes forward the next day or in two weeks, doesn't much change anything.

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I would disagree--not universally, I mean there are certainly cases where this wouldn't change much of anything; and maybe I was reading between the lines and assuming things that weren't there (e.g., this witness was VERY important, and the DA may suspect that the witness was murdered precisely so that he/she couldn't testify). But my take on it was that it would matter. Here's why: as a lawyer, you develop a particular strategy for each case--a plan, an outline basically, of how things will unfold: "we'll use witness X to prove fact Y, but right before witness X, we need witness W to give that incredibly emotional testimony of hers so that the jury's really sympathetic to our side when witness X gets on the stand." That sort of thing. You decide what order to call your witnesses in for a reason--it's not random. When you have several witnesses, you're basically putting together a puzzle for the jury: each witness provides a piece of that puzzle.

If one of them dies, you have to rethink your strategy: without that witness, how are you going to get that particular piece of the puzzle to the jury? So you may need a continuance in order to reformulate your approach to the case, just to figure out where you're going to get that puzzle-piece. And you may also need that puzzle-piece to be presented to the jury right after some other specific puzzle piece, instead of tacking it on at the end. So you may need a continuance because you don't want to give the jury puzzle piece B until you've figured out how you're going to give them puzzle piece A now that the witness is dead. And if you have any suspicion that the defendant you're prosecuting is behind the witness's death, you may want a continuance on that basis alone.

jclarkdawe said:

At some point, the police will be ready to present it to the prosecutor's office, and at that point, a prosecutor will be assigned to the case for presenting it to the grand jury. After the grand jury indicts the defendant...

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I agree with everything you said, but I just want to point out that grand juries aren't used that way in every state. Some states don't use them for criminal indictments at all (instead the DA brings charges); some use them for only certain kinds of criminal indictments; etc. Here's some pretty good info:

http://www.ncsconline.org/wc/CourTopics/FAQs.asp?topic=GrdJur

All states use grand juries in some capacity. Some state grand juries merely exist de jure; Wisconsin, for example, has a grand jury statute but has not convened a grand jury in decades.



Most states (all but Connecticut and Pennsylvania, and the District of Columbia) retain the option of a grand jury indictment. Eighteen states (Alabama, Alaska, Delaware, Georgia, Kentucky, Maine, Massachusetts, Mississippi, New Hampshire, New Jersey, New York, North Carolina, Ohio, South Carolina, Tennessee, Texas, Virginia, and West Virginia) require an indictment to begin felony prosecutions; four (Florida, Louisiana, Minnesota, and Rhode Island) require an indictment to begin prosecutions that could result in life imprisonment or a death sentence. The Fifth Amendment of the U.S. Constitution requires that felony defendants in federal courts be indicted by grand jury.
Arizona, Florida, Louisiana, Minnesota, Missouri, Montana, and North Carolina limit the scope of the investigatory grand jury to criminal activity that is brought to their attention by the prosecutor or the court.



Grand juries in Alabama, Alaska, Arkansas, California, Idaho, Indiana, Iowa, Kentucky, Nebraska, Nevada, North Dakota, Ohio, Oklahoma, Oregon, South Dakota, Tennessee, Texas, Virginia, and West Virginia can investigate alleged crimes occurring within their venue (usually the county where the grand jury sits).

Courts in the South

I am not sure if you have received answers to your satisfaction but here are my thoughts. My back ground is, I am the Operations Manger for a County Clerk of Court’s office in South Carolina, and have worked in criminal and civil court rooms.


Q: I have the Judge rejecting the continuance on the grounds that the Prosecution ignored repeated advice not to fast-track the case, so after a recess, he demands the case continue with the remaining witnesses. Could this happen?

A: In South Carolina the Prosecutor, we call them Solicitor’s not DA’s, controls totally when a criminal case is called for trial or plea. Judges are not usually assigned cases, even in very high profile cases except for death penalty cases. That said, I not see a judge telling the prosecutor when to call, or how to try his case. Since a judge can not speak to one party to a case about the case outside the presence of the other side, I am not sure when the judge is repeatedly advising the prosecution to slow down. As far as your grounds for denying the motion for continuance, the reason by the judge, at least as stated on the record, would have to be something along the lines of, “in the best interest of justice the motion is…” As far as your stated grounds, “not to fast-track the case” I would argue that perhaps the prosecutor did not move fast enough! The judges I have seen most always rule so as not to be overturned on appeal. If there is no deposition, which I would say is unusual for a criminal trial, unless the defendant has lots of money, and the case is not winnable without that testimony, what good would a continuance do? Sounds like that case is headed down the road to a plea offer by the State.

Q: Would the death of the witness be announced in court? If so, what would be said and by who?

A: Given the Constitutional right to face your accuser and the fact it that would be very prejudicial and most certainly grounds for an appeal, I would say a big no. The State could not tell the jury that we were going to call Mr. Brown, but suspiciously enough he slipped up a flight of stairs and broke his neck on the way to the courtroom.

For what its worth, I hope it helps.

jclarkdawe said:

I'm not sure whether you're aiming for an English or an American court, and there are some significant differences between the two. My advice is based on American courts.

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This entire post should be taken with a rather large container of salt - not merely a grain or two.

Inflammatory and biased remarks about the ineptitude or civil wrongdoing of police aside (which, btw, is not completely wrong, merely mostly so) there is a lot of information that does *not* happen in all areas.

Grand juries are *rarely* used in Nevada courts for bringing indictments. An arraignment is the *first* time a defendant is seeing the judge based on their criminal charges and that's to give them the opportunity to seek counsel and see a copy of the formal complaint put before them. In Nevada the first time they are appraised of the charges would be when they are booked into the detention facility (unless a warrant of arrest has been issued without an arrest made - in which case they would be booked after their arraignment, which they have been 'summoned' to). Major cases though, they're booked into jail. Then they are formally told their charges and bail by a judge within 72 hours.

At this point *everyone* is seen by a justice court judge. A prelim is then held to determine if there is slight or marginal evidence to bind over for trial, if on felony charges (such as in the original post) they are then bound over to a district court which has jurisdiction over felonies where there is *another* prelim and then it's set for trial.

The court clerk does *NOT* set the trial dates as far as my nine years of experience shows - the judge sets the dates by consulting both the prosecution and defense about their schedules. So if the defense doesn't want to 'fast track' the case, then they have the opportunity to say "Uhm, nope, sorry, I've got another trial in another court that week".

All in all, most of this post is suspect - or at the very least should be taken with all the other discussion related in this topic. Which seems to generally contradict it.

Rabe...

I guess this just goes to show that criminal court procedures vary a great deal from state to state. My experience has been pretty similar to jclarkdawe's, totally different from RobD7's and a mix of Rabe's. For instance, here judges technically set the trial dates, at a pre-trial conference, but really it's the clerk telling the judge when the available date is, and then the judge saying "okay" unless, as Rabe noted, one of the attorneys has a conflict.

That's the problem with asking a really broad legal question -- the details vary hugely from jurisdiction to jurisdiction, even from county to county (or whatever subdivision a particular state uses for its hierarchy). "Could it happen" is a lot like "could a person sue in a given circumstance?" The answer to "can he sue" is pretty much always "yes," but that's different from "can he win?" (Pretty much anyone can file a complaint about pretty much anything -- and I've seen some doozies by clearly mentally deranged folks -- but that doesn't mean the plaintiff will win or will even survive a motion to dismiss for failure to state a claim upon which relief can be granted.) Similarly, lots of things could happen procedurally, but they're often highly unlikely and require incompetence or bad intent on someone's part.

JD

Securities fraud investigations would be done by the SEC, not the FBI.

Ah. Somehow I hadn't caught that this was a securities case, and I thought there might be an element of suspicion that the defendant had something to do with the witness's death. If that's NOT the case, then things could go quite differently.

Securities fraud would, in addition to being investigated by the SEC (tip o' the hat to the poster who just mentioned that), be in federal court, not state court. In federal courts the prosecutor is called a U.S. Attorney or an Assistant U.S. Attorney (those are two different ranks/experience levels of attorneys representing the U.S. federal government), but I think--though am not sure--that there is a *slight* possibility of a prosecuting attorney from the SEC. Note that if this is a big case, there will be more than one lawyer on each side--for the prosecution, a main lawyer and then maybe one or two more junior ones helping/observing the main one; ditto for the defense. Given that it's in federal court, it doesn't matter what state it's in--federal courts all run by the same rules, regardless of where they're located. Federal cases, as compared to state cases, are generally (1) more formal and decorous, and as a result, (2) more boring to watch. So yeah, don't try making a courtroom drama out of this!

As for political pressure influencing the case, that's quite believable; for more details I suggest you read about the recent blowup involving the Bush administration's attempts to pressure/fire/sideline U.S. Attorneys who didn't follow the party line (i.e. who refused pressure from the Bush administration to handle their cases a certain way).

As for the investigation's being ended, keep in mind that in the US you've got essentially two investigation-like phases in any criminal case: (1) the investigation to determine whether there's enough evidence to bring charges, in which case the charges are brought and the judicial machinery starts moving (setting hearing dates etc.); and then (2), during the court phase but before the actual trial, there's the "discovery phase," where the prosecution tries to find every bit of evidence it can to make the charges stick, and the defense tries to come up with everything it can to get out of the charges (e.g. exculpatory witnesses, etc.). A case will be "in discovery" (i.e. in the discovery phase) for a while before the actual trial; that means charges have been filed, the case is on the docket, and some hearings involving only the judge and the lawyers may happen--hearings to determine what evidence can come in, etc.--and this is all before the jury is even chosen.

Generally prosecutors have no reason to speed a trial forward; either they've got all the evidence they need and have no problem handling their other cases until the trial for this one begins, or they don't yet have all the evidence and need more time to look for more evidence. Merely thinking you have a slam-dunk case isn't really a reason to rush ahead. Political pressure IS a reason prosecutors might try to speed things up, so you might want to emphasize that--like, show the prosecutor being pressured or talking about being pressured. Remember that prosecutors in this kind of case are not elected (unlike DA's/district attorneys, or solicitors as some places call them, at the state level), so that kind of political pressure is a non-issue here.

Also, unless this is an unusual kind of securities case, the pressure some district attorneys get from the public (e.g. people flipping out because some rapist still hasn't been caught or some child molester was let out on bail) is unlikely here. The pressure will most likely be some kind of personal or partisan vendetta (whoever's in power trying to ruin the life of the defendant), and pressure will most likely flow as follows: politicos pressure the U.S. attorney for that district; he or she then pressures the assistant U.S. attorney who's actually handling the case.

And also, when a witness dies their deposition testimony will probably be allowed into evidence. That is, the judge will probably let a transcript of what the witness said under oath during a deposition (i.e., during pre-trial questioning that was done in the discovery phase) be read to the jury. There's an exception to the hearsay rule when the witness is dead, though it's not automatic. The judge could perhaps say something to that effect--something like asking the prosecutor, "You've got deposition testimony from this witness, am I right?" (a judge probably wouldn't TELL the prosecutor what to do, i.e. she wouldn't give instructions like "just move to admit the deposition testimony," but she might ask this kind of rhetorical question to make the prosecutor realize that he should, indeed, file a motion [i.e. "move"] to admit the deposition testimony).

Then when the prosecutor answers yes, and says something about filing a motion to admit it, the judge might say something to the effect of, "Right. So, if you need time to prepare your arguments we can adjourn until tomorrow morning and then move forward. We are not going to rearrange this court's entire docket around this unfortunate development." (In other words, the judge refuses to screw up the schedules of every other case that's scheduled to be heard in her court just for this one problem with the prosecutor's case.)

Hi Steve,
You're welcome. If your defendant is eccentric, sure, what the hell, let him have just one lawyer. It's not like a law firm can force a client to pay for two lawyers if he doesn't want to. Usually defendants would prefer to, since the more junior attorneys COST less than the big high-end lawyer, and certainly behind the scenes there are going to be many people working on it (junior lawyers doing really basic legal research, legal secretaries typing things... even private detectives hired by the defendant's law firm to dig up exculpatory evidence, etc.), but if the guy only wants one lawyer in the courtroom and only wants to actually talk to/interact with that one lawyer, sure, why not.

In case this wasn't totally clear, the Dept. of Justice is the federal agency that U.S. Attorneys (the ones I mentioned in my previous post) are part of. For more info, read those articles on the huge scandal involving Gonzales and the US Attorneys that were fired--the pressure that led to their firing was coming from Gonzales, via the Dept of Justice, down to the local US Attorneys Offices, where the firings happened. FYI, most people refer to the US Attorneys' Offices as the "USAO" (pronounce each letter individually, not as a word--i.e. pronounce it the way we pronounce "FBI," not the way we pronounce "NASA").

Investigation is part of the prosecution process, so normally it's going to be the USAO that's investigating, but the SEC may participate too or handle a whole "wing" (for lack of a better word) of the investigation, then pass all that info along to the USAO to prosecute--these are federal agencies, generally they can just share information. So the SEC might send the USAO what it has, like whatever reports the defendant's company filed, or whatever else it may have that the USAO needs in building its case.

And remember that these cases can be incredibly complicated, with dozens of different charges--you might have the USAO prosecuting, but other relevant agencies involved in the investigation if the case is complicated enough: maybe there are criminal charges beyond just the basic securities violations, so maybe you have the FBI involved, investigating that part of it and passing the investigation results on to the USAO to prosecute. It can get incredibly complicated. I would recommend, if you're not familiar with securities law, that you just not go there--keep it simple, with the USAO handling the whole case. You can have them getting documents in from the SEC, but you probably don't want to complicate it any more than that.

Hi Steve,
You can't leave the USAO and the SEC out of a securities case... the educated reader probably won't draw the conclusion you want (i.e. that the SEC and USAO were involved but you just didn't mention it); they're more likely to draw the conclusion that you didn't get your facts right! And as for uneducated readers, most people love learning new things when reading fiction. So throw in some info for them to learn. You don't need to devote much brainpower to writing those parts, but definitely at least MENTION that the SEC is investigating the securities stuff (feel free to focus on the hacking/FBI part), and the USAO is where your prosecutor is (as opposed to the local DA's office).

The USAO is just attorneys--they don't have a police wing. So my guess is, yeah, it would be the FBI who arrests him. I'm not sure who else could even have jurisdiction. So yeah, FBI arrest it is.