Fiona - Tina you've visited with us before talking about your job as a paralegal and you mentioned preparing a client for the stand. Let's start with - is it typical for a defendant to want to take the stand? What issues might be part of that decision making process? Tina - Thanks for having me back. When it comes to preparation for trial, most will want to testify. However, should it become apparent that they plan to lie on the stand, the attorney has a duty to not allow this to happen. In fact, an attorney can face disbarment if it comes out that he has encouraged his client to perjure himself on the stand. This could be cause for an attorney to "fire" or withdraw from representing a client. When it comes to deciding if the defendant should testify, usually it comes down to the type of case, and the type of evidence available to substantiate the defendant's alibi. From my experience, when there is corroborating information to assist in the not guilty statement of the defendant, the attorney is more likely to allow the defendant to testify. However, when their story is filled with holes, the alibi witnesses cannot confirm anything, when there is evidence to say otherwise, then it is usually suggested that the defendant not testify. Luckily, here, one is considered innocent until proven guilty, and the defendant is not required to put on evidence to support his innocence. The Commonwealth is required to prove beyond a reasonable doubt that the defendant is indeed guilty though. Fiona - The decision has been made between the client and the lawyer as to whether or not the alleged perpetrator will testify. Now they turn to you, the paralegal. Can you take us step by step through your process? Tina - Yes, you are correct: the client's decision is based on the legal advice of the attorney. Once it has been decided that the defendant will testify, then I am usually called forth to step in to assist with trial preparation. Once a client retains an attorney, one of the motions filed for a criminal matter is called theMotion for Discovery, whereby the defense requests exculpatory information --exculpatory, meaning that the information provided is favorable and and tends to possibly exonerate the defendant of guilt; they are not required to provide inculpatory evidence, which tends to prove guilt.
Make sure I'm aware of the facts of the case -- this requires reading the indictments, warrants, and the initial statements of law enforcement as provided by the Commonwealth (prosecution) in the discovery package.
The stage that the case has come to the office will also dictate what documentation I am able to review. In Virginia, felonies are sent to the General District Court -- a lower court-- for a preliminary hearing. The standard is different, and once the preliminary hearing is held, the matter is certified and sent to the grand jury, who will then send it on to the Circuit Court. The Circuit Court is a court of record, and the General District Court is not -- meaning, if the preliminary hearing has taken place, the defendant's prior attorney would have had to hire a court reporter to transcribe the hearing (not all do this, unfortunately). If a court reporter was present, then the transcription can be ordered. The transcript will also give us insight as to the prosecution's case, and testimony. Part of my job for prepping, would be to review the transcript, comparing it with the other reports-- law enforcement statements etc, to see if the statement has remained the same or not.
If this a murder trial, review the autopsy report, and if questions arise as to what is stated therein, inform the attorney as to what conflicting details so that we can arrange a conference call with the medical examiner to clear up any questions.
After I've gathered all of my notes, and can piece together everything that is stated, as to the charges, what the prosecution's version of events is, I then have to scrutinize the defendant's version of events. Over the course of our representation, he would have provided this information numerous times -- however, the truth never changes. I would then be tasked with interviewing him, playing devil's advocate, and confronting him with some of the information from the prosecution in hopes of making sure that the truth he's been providing us remains the same. This is not always easy, and many defendants have gotten upset over the years, not understanding that my job is to ask those questions. 5. Should the defendant have provided us with names of potential witnesses (be they factual or character, then the process follows the 5ws -- who are they, what do they know, when did this occur, where were they when the crime occurred, and sometimes, how do they know this information). For the defendant, I am also following the basic 5ws, and 1H scheme, to glue all the pieces together.
Fiona - You've had lots of colorful clients - can you tell us a story of how it can all go wrong? Tina - Yes, there have been a variety of people who have walked through that door. They all have one thing in common though: the need for help, and I think as a paralegal, having the desire to help people has always made it worthwhile to do the job. Although I cannot give any specifics, the worse scenario to have is to have the client suddenly decide to change his testimony on the stand. Understand: we've spent by that time months prepping everything; the client has given us the same story over and over. Then, on the day of trial, when the client takes the stand, he then decides to change everything.
Fiona -
So YIPES! someone's up there lying through there teeth - the lawyer isn't required to say, hey judge. . . Tina - This is best answered by the Virginia State Bar: The lawyer must advise the client of the possible consequences of committing perjury, attempt to persuade him to change his mind, and advise the client that if he follows through with his plan, the lawyer is obligated to reveal the perjury and move to withdraw from the case. If the client has already testified and then later acknowledges to the lawyer that his testimony was untruthful, the lawyer should counsel the client to correct the testimony, and advise the client that if he will not correct it himself, the lawyer must do so. Once the lawyer knows that the client has committed or is going to commit perjury, she may not withdraw without taking any additional action, and she may not permit the client to testify in narrative form in order to avoid directly eliciting the false testimony. As a paralegal, if I am made aware that the client plans on committing perjury, this information I must pass on to my attorney so that the proper steps may be taken. Fiona - What kinds of people provide good character witnesses and how do you make sure they're good? On TV shows (and we ThrillWriters no better than looking for reality on a TV show) they say, "That's great Mr. Stevens, but you were convicted of sodomy back in 1984 -- should we rely on your testimony for good character? Tina - A good character witness is educated, gainfully employed, has never committed a crime of moral turpitude, had no convictions, and an all around upstanding member of society. Also, it helps if they are NOT related to the defendant. When related it does not have as much weight, in my opinion.
Character witnesses are like the endorsement of others for our lives; they give credence when they are good people. So, for example if someone commits a robbery, and his defense was he was hungry. Well, you have someone from a soup kitchen testify that they often saw him at the soup kitchen.They then knew he was having a hard time, and they've had meaningful interactions with the client. This has a little more weight because they have less of a reason to lie than family members would. Fiona - Do you also prep the witnesses? What can one legally do with witness preparation? Tina - For witness prep, the only thing we are trying to do is ascertain what they know, how they know it, and anything they may have seen -- this is for factual witnesses. For character witnesses, used greatly at a sentencing hearing, they are used to show the jury and/or judge the person behind the charges, i.e, to humanize the defendant.
Fiona -
What do you see being written incorrectly about this process and how would you have writers fix their plot lines. Tina - I see a lot about attorneys violating the rules of ethics. Attorneys strive so much to not only get their license but to also be good officers of the court. This should be kept in mind when an attorney-like character is considered shady. Fiona - What do you wish I had asked today but didn't know enough to include?
Tina -
"Do you mean Tina, that paralegals serve as in-house private investigators?"
Yes, we are constantly putting the pieces together to solve mysteries, and should something be outside of our scope or expertise, that is when a true private investigator might be retained. Fiona -
You've just changed the cover on your book Deadly Sins. Very nice job. Can you tell us about it?
Amazon Link
Tina - Alexandria "Xandy" Caras was charged with murder--a mass murder. The charges were dropped; the case dismissed.
Or was it?
A serial killer with a "Moses Complex" is out for blood--Xandy's blood--and the blood of those who have sinned against the Ten Commandments. The bodies are piling up, and he's getting closer to his number one target: Xandy. Only her death will make it all stop, silencing the deranged killer who thirsts for far more than just revenge. Fiona - Thanks, Tina, for this great information.