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  • 9.

    To state the ultimate inferences that counsel wishes the jury to draw.

    • D.

      Counsel should record, and consider incorporating in the defense summation, promises of proof

the prosecution makes to the jury during its opening statement.

E. Whenever the prosecution oversteps the bounds of a proper opening statement, counsel should consider objecting, requesting a mistrial, or seeking a cautionary instruction, unless tactical considerations weigh against any such objections or requests. Such tactical considerations may include, but are not limited to:

  • 1.

    The significance of the prosecution’s error;

  • 2.

    The possibility that an objection might enhance the significance of the information in the

jury's mind; and

3. Whether there are any rules made by the judge against objecting during the other attorney's opening argument.

  • A.

    Counsel should research and be fully familiar with all of the elements of each charged offense and should attempt to anticipate weaknesses in the prosecution’s case.

  • B.

    Counsel should attempt to anticipate weaknesses in the prosecution's proof and consider researching and preparing corresponding motions for a directed verdict.

  • C.

    Counsel should consider the advantages and disadvantages of entering into stipulations concerning the prosecution's case.

  • D.

    In preparing for cross-examination, counsel should be familiar with the applicable law and procedures concerning cross-examination and impeachment of witnesses. In order to develop material for impeachment or to discover documents subject to disclosure, counsel should be prepared to question witnesses as to the existence of prior statements that they may have made or adopted, and should consider doing so outside the presence of the jury.

  • E.

    In preparing for cross-examination, counsel should:

    • 1.

      Consider the need to integrate cross-examination, the theory of the defense, and closing argument;

  • 2.

    Consider whether cross-examination of each individual witness is likely to generate helpful information, and avoid asking unnecessary questions or questions that may hurt the defense case;

  • 3.

    File a motion requesting the names and addresses of witnesses the prosecution might call in its case-in-chief or in rebuttal;

4. Consider a cross-examination plan for each of the anticipated witnesses;


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