10. ORGANIZING THE CASE FOR TRIAL
JURY INSTRUCTIONS
As with all serious trips, a trial begins with a destination in mind. That destination can be found in the jury instructions. The jury instructions will advise the traveler, the trial lawyer, where he or she is headed. Look at the instructions and identify those issues upon which the defense will be based. Review each instruction which will be needed. If you find a prepared instruction which does not conform with the law, and there are many of them which do not, prepare your instruction and supply authority for that instruction. You probably will not get it, but if you have researched the issue and have provided the necessary record, you have put a "land mine" in that record for purposes of appeal. Remember that most approved instructions were drafted by some winning lawyer.
BEFORE YOU LIST YOUR EXHIBITS OR REQUEST SUBPOENAS OR EVEN PREPARE YOUR WITNESSES FOR TRIAL, WRITE YOUR CLOSING ARGUMENT.
Remember the Mayflower moving van rule: "Never pick something up unless you have a place to put it down". Outline it, this will tell you where you are going and how you examine the witnesses . It will tell you what witnesses you will need. Your closing will tell the jury what defense is and how the evidence fits into the defense. You will show them, with evidence of the Commonwealth, that the Commonwealth cannot refute, that there is insufficient evidence to prove guilt beyond a reasonable doubt.
During the trial, argument, direct and cross, if a witness testifies and says nothing inconsistent with your defense, shut your mouth. You have nothing to say. If the witness hurts you a little, cross just enough to get it back to the area of your theory and then shut up.