6 Participatory Defense Steps for Effective Trial Monitoring

Do More Than Hope for a “Not Guilty”
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The following participatory defense activities are for families, organizations, and communities who’s loved ones are going to trial, and they want to do more than simply wait and hope for a not guilty verdict. While participatory defense is most effective if the model is used as early as possible in a case, even if first initiating engagement at the trial level, families and communities can have an impact on the outcome. The tactics described below is not an exhaustive list, but are just a few ways to ensure the best trial outcome for your loved one. For example, there is plenty of work to do previous to the actual start of trial, as well as ways to impact a sentencing if the trial results in a conviction.

So while these steps can be employed at the start of the trial, it is best if the family or support community has been already working with the defense attorney in a participatory defense framework. As such:

— The person facing trial should make sure they communicate their consent to the attorney that he or she can speak to the family regarding the case.

— The family and community should already have a collaborative working relationship with the attorney.

— The person facing trial and their supporters should have reviewed all the relevant materials and discovery in the case.

— The person facing trial and their supporters knows as much as possible about what the defense lawyer is planning to do to win the case.

(If these prerequisites have not been met, they would be the “homework” for the family and community before trial begins.)

Step #1: Find Out the Trial Schedule // Plan Group Attendance

One of the important aspects of community support for someone facing trial is just showing up in court to ensure that the jury, judge, and prosecutor knows that the person facing trial is part of a community that cares about their well-being and future. But often times people can not stay for the entire duration of the trial. So it is important to know the trial schedule. Your community may know the start date of trial, but that does not necessarily mean trial will move continuously. The trial schedule may take certain days or hours off due to time conflicts with the judge, jury, or attorneys. So ask the attorney for the trial schedule and have someone be in charge of communicating that calendar to the rest of the group as changes may occur throughout the duration of trial. At the end of each day of trial, have the person in charge of the calendar communicate who is testifying, or what is scheduled to happen in trial, next.

Once you have a sense of the trial schedule, see who in the group can attend and cover the various court dates. Ask the attorney if there are particular days they think it is most important to have the most support present. For example, the support group may want to make a point of being present for the defense attorney’s opening statement. It is also important for community members not to have any conversations with the jurors in the hallways or bathrooms are outside of court. Along the same lines, if they happen to overhear jurors speaking to each other or anyone about the facts of the case they need to report that to the attorney immediately. 

(Also, some of the important aspects of a trial happens before a jury is even empaneled. Make sure to show up to pre-trial motions, where the court decides issues like what evidence or testimony should be shared with the jury. Also, court monitors can be very helpful to defense attorney’s during jury selection. See which potential jury members you think would be fair and balanced, which ones you feel may be biased against the person facing trial, and communicate that to the attorney.)

Step #2: Attending Trial with Intention

Just being present as a community can give the jury a different impression of the person facing trial, letting them know they are a person who is cared for, rather then just a case file. So once you know the trial schedule, as well as knowing which parts of the trial supporters can attend, make sure your presence is felt. Supporters are an extension of the defendant and their attorney, and that should be made evident. For that reason, it is important that supporters sit on the side of the defendant, so there is no clear who you are there for. Act in accordance to the demeanor of the court, meaning if the defendant and attorney are rising when the jury leaves or the judge walks in, stand with them. If you are from an organization, or church, or group, and feel it has strategic value, you may want to wear your organization’s shirt.

Step #3: Observing Trial to Have Real-Time Impact

Supporters should attend court with a pen and notepad. The task is for supporters to take notes as to what they are observing, and reflections that have about the case. Supporters can be an important second pair of eyes for the attorney. Since supporters are not lawyers, they are processing a trial more similarly to the jury. So supporters may have important thoughts on how the jury is understanding the case, particularly since the defense attorneys are also busy actually working the trial. Also observing the judge, the prosecutor, the bailiff could be valuable to comprehensively understand the case in a way that doesn’t come across on the record, and can even preserve useful information if the person on trial ends up going to appeal.

It is especially important to make sure you are taking notes on how the jury is responding (through things like body language, smiles, rolling of eyes) to the styles and approaches of the attorneys, witnesses, decisions by the judge, and arguments. For reflections of testimony, organize your notes by the name of the person testifying, and whether it is the prosecutor or defense attorney asking the questions. Note what points you thought had impact to you and the jury, what points you thought were missing, and if they were called up again on the stand, what questions you would want asked by the defense attorney.

At the end of the day, everyone should submit their notes to someone in the group. That person’s role is to collate the notes, make sure they are easy to read, and to submit them to the attorney every night. If it helps, notes can be shared in a de-briefing session first. The attorney can use the observations to change approaches or styles with particular witnesses, or to pursue a line of questioning, and so on. Since they are usually focused on their questions to witnesses or experts, getting a read by others on how the jury is responding can greatly inform how they proceed in trial.

Step #4: Find Out if The Person Facing Trial is Testifying, and if so, Make Sure They Are Prepared

The person facing trial should know whether or not they are testifying, and can make that determination. If they are, make sure they are prepared and are ready for the cross examination by the prosecutor. Before trial, your group can go through mock cross-examination scenarios based on what they you anticipate the prosecutor will ask them.

Step #5: Outline the Closing Argument You Think Would be Effective

Supporters who have attended trial have a unique and important perspective. In some ways, they are hearing the case from a similar perspective as the jury since both groups share something in common — both groups are not lawyers. So how a case is being understood and processed by non-lawyer observers can be very useful in crafting an effective closing argument for the defense attorney.

Supporters should review the totality of the trial with each other. Talk about what evidence stood out, what testimony, what moments in the trial. Ask each other what the “good” facts were to prove reasonable doubt, and what the evidence was that needs to be addressed. Did certain witnesses seem not credible? Was certain expert testimony confusing? Is there one piece of evidence that you think needs to be emphasized?

Send the key points to the attorney so they have your perspectives to draw from when they are putting together their closing arguments.

Step #6:

Some of the important action happens when the jury is not in court. Make sure you attend the court discussions where attorneys are discussing issues in the trial, like whether a particular piece of evidence should be allowed in court or not. If the person facing charges ends up needing to file an appeal, these issues may be important to note.

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