– Preliminary Motions

– Motion to Separate Witnesses

– Generally requested by defense but can also be requested by State

– If requested, the witnesses can not be in the court room during the testimony of the other witnesses and can not discuss their testimony with each other until after the trial has concluded.

– Motion for Assisting Witness

– Can only be made by the State

– The Prosecutor can ask that one of the State’s witnesses be allowed to remain at the State’s table during the entirety of the trial in order to assist the prosecutor. The assisting witness can hear the testimony of the other witnesses.

– Under statute, this motion must be made before the witnesses are sworn. If the motion is made after the witnesses are sworn, the defense can object to the State using an assisting witness.

– Motion in limine

– Motion in a jury trial requesting that certain information not be discussed in the presence of the jury.

– Swearing of Witnesses

All witnesses are sworn in at once. Assuming a motion to separate witnesses was requested, all witnesses except the defendant and the assisting witness are told to leave the court room until they are called as a witness and are instructed not to discuss the case with anyone except the attorneys.

– Jeopardy attaches after the witnesses are sworn (In a jury trial, Jeopardy attaches once the Jury is sworn).

– Opening Statements

– Almost always waived in a court trial.

– Making an opening statement in a Court Trial will generally only annoy the Judge.

– State presents evidence

– State rests

– Defense moves for Involuntarily dismissal under Trial Rule 41(b)

            § Indiana Trial Rule 41(b) Involuntary dismissal: effect thereof.

After the plaintiff or party with the burden of proof upon an issue, in an action tried by the court without a jury, has completed the presentation of his evidence thereon, the opposing party, without waiving his right to offer evidence in the event the motion is not granted, may move for a dismissal on the ground that upon the weight of the evidence and the law there has been shown no right to relief. The court as trier of the facts may then determine them and render judgment against the plaintiff or may decline to render any judgment until the close of all the evidence. If the court renders judgment on the merits against the plaintiff or party with the burden of proof, the court, when requested at the time of the motion by either party shall make findings if, and as required by Rule 52(A). Unless the court in its order for dismissal otherwise specifies, a dismissal under this subdivision or subdivision (E) of this rule and any dismissal not provided for in this rule, other than a dismissal for lack of jurisdiction, operates as an adjudication upon the merits.

– In a criminal court trial, this is an argument made by the defense that all or some of the charges should be dismissed because the State has not yet proven each element of the charge beyond a reasonable doubt.

– If the defense feels there is any argument that a charge should be dismissed, involuntary dismissal should always be argued after the State rests. The defense should NOT wait until closing argument to make this argument, because the State might be able to get the missing elements in through cross examination of defense witnesses.

– Example: Defendant is charged with Possession of a Cocaine, Operating While Intoxicated, and Public Intoxication. Officer was driving down highway. He observed defendant on the side of the road next to a vehicle that had flipped over. Defendant made no statement. Defendant was intoxicated and was arrested. When the vehicle was towed, an inventory search was conducted and cocaine was found in vehicle. State has rested. Defendant wants to testify that he borrowed the car, and that he did not know about the cocaine in the trunk. However, if he testifies, the state will cross examine him and ask him if he was the driver of the vehicle. The defense should move for involuntary dismissal of the OVWI charge, arguing there is no proof that defendant drove the vehicle.

– In many cases, the argument your client wants to make (the police officer is lying, marijuana shouldn’t be illegal, I did it but the police officer was mean to me after arresting me, etc…) is unlikely to sway a Judge. Try to think of legal technicalities to argue on 41(b). Sometimes these arguments will sound silly. Sometimes, you will get laughed at when you make these arguments, but sometimes you will win cases that you would have otherwise lost. If you are a defense attorney, you will win more cases on 41(b) legal technicalities than you will win on the actual merits of the case. I would estimate that 75% of the court trials that I have won were won on 41(b) motions.

– Examples of purely legal 41(b) arguments:

– Example 1: Refusal to leave an emergency incident area

– I had a client who repeatedly entered a crime scene by going past the yellow crime scene tape. He disputed the allegation that he had been given multiple warnings prior to being arrested. However, there is no legal requirement that multiple warnings be given. One warning is adequate.

– IC 35-44.1-4-5 – A person who is not a firefighter who knowingly or intentionally refuses to leave an emergency incident area immediately after being requested to do so by a firefighter or law enforcement officer commits a Class A misdemeanor.

What do you think the 41(b) argument was on this case?

– Example 2 – Not wearing a seatbelt

– Ind. Code § 9-19-10-2 – Each occupant of a motor vehicle equipped with a safety belt that:

(1)       meets the standards stated in the Federal Motor Vehicle Safety Standard Number 208 (49 CFR 571.208); and

(2)       is standard equipment installed by the manufacturer;

shall have a safety belt properly fastened about the occupant’s body at all times when the vehicle is in forward motion.

What do you think the 41(b) argument was on this case?

– Defense presents evidence (if any)

– Defense rests

– Rebuttal (if any)

– Closing Arguments

– State makes closing first, since they carry the burden of proof, followed by the defense closing, and then the State has an opportunity for rebuttal closing.

– Should generally be kept relatively short and on point

– Long winded emotional closing arguments in a Court Trial will generally only annoy a Judge.

– The defense will be given a little more room to argue because they have a client.


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