1. Client Explanation Defense counsel should explain to the juvenile, in a developmentally appropriate manner, what is expected to happen before, during and after each hearing. The attorney should advise the juvenile as to suitable courtroom dress and demeanor.
2. Materials Available. Where appropriate, defense counsel should have the following materials available at the time of trial: A. Copies of all relevant documents filed in the case;B. Relevant documents prepared by investigators;C. Outline or draft of opening statement;D. Cross-examination plans for all possible prosecution witnesses;E. Direct examination plans for all prospective defense witnesses;F. Copies of defense subpoenas;G. Prior statements of all prosecution witnesses (e.g. police reports);H. Prior statements of all defense witnesses;I. Reports from all experts;J. A list of all defense exhibits, and witnesses;K. Originals and copies of all documentary exhibits;L. Copies of all relevant statutes and cases; andM. Outline or draft of closing argument.3. Motions and Objections Defense counsel should make appropriate motions, including motions in limine and evidentiary and other objections, to advance the juvenile's position at trial or during other hearings. Defense counsel should be aware of the burdens of proof, evidentiary principles and court procedures applying to the motion hearing. Further, during all hearings, defense counsel should preserve legal issues for appeal, as appropriate.
4. Sequestration of Witnesses Prior to delivering an opening statement, defense counsel should ask for the rule of sequestration of witnesses to be invoked, unless a strategic reason exists for not doing so.
5. Opening Statements A. Defense Counsel should be familiar with the law and the individual trial judge's rules regarding the permissible content of an opening statement. Defense Counsel should consider the strategic advantages and disadvantages of disclosure of particular information during the opening statement and of deferring the opening statement until the beginning of the defense case. The objective in making an opening statement may include the following:(1) To provide an overview of the defense case;(2) To identify the weaknesses of the prosecution's case;(3) To emphasize the prosecution's burden of proof;(4) To summarize the testimony of witnesses, and the role of each in relationship to the entire case;(5) To describe the exhibits which will be introduced and the role of each in relationship to the entire case; and(6) To state the ultimate inferences that defense counsel wishes to draw.B. Whenever the prosecutor oversteps the bounds of a proper opening statement, defense counsel should consider objecting or requesting a mistrial unless tactical considerations weigh against any such objections or requests.6. Confronting the Prosecutor's Case Defense Counsel should attempt to anticipate weaknesses in the prosecution's proof.
7. Cross Examination A. In preparing for cross-examination, defense counsel should be familiar with the applicable law and procedures concerning cross-examinations and impeachment of witnesses. In order to develop material for impeachment or to discover documents subject to disclosure, defense counsel should be prepared to question witnesses as to the existence of prior statements which they may have made or adopted.B. Defense counsel should be aware of the law of competency of witnesses in general and admission of expert testimony in particular in order to be able to raise appropriate objections.8. Conclusion of Prosecution's Evidence Upon conclusion of the state's evidence, defense counsel should motion for a judgment of acquittal, make appropriate argument, and present appropriate case law. See Maine Rules of Criminal Procedure 29. If the motion of acquittal is denied, defense counsel should be prepared to renew the motion for judgment of acquittal at the end of all evidence in the case.
9. Defense Strategy Defense counsel should develop, in consultation with the juvenile, an overall defense strategy. In deciding on a defense strategy, an attorney should consider whether the juvenile's legal interests are best served by not putting on a defense case and instead relying on the prosecution's failure to meet its constitutional burden of proving each element beyond a reasonable doubt. In developing and presenting the defense case, defense counsel should consider the implications it may have for a rebuttal by the prosecutor.
10. Affirmative Defenses Defense counsel should be aware of the elements of any affirmative defense and know whether the juvenile bears the burden of persuasion or a burden of production.
11. Direct Examination Defense counsel should prepare all witnesses for direct and possible cross-examination. Where appropriate, defense counsel should also advise witnesses of suitable courtroom dress and demeanor.
12. Preservation of Appellate Record Throughout the trial process defense counsel should endeavor to establish a proper record for appellate review.
13. Client's Right to Testify A. It is the juvenile's right to decide whether to testify. However, it is defense counsel's obligation to advise the juvenile on the advantages and disadvantages of testifying. This advice should include consideration of the juvenile's need or desire to testify, any repercussions of testifying, the necessity of the juvenile's direct testimony, the availability of other evidence or hearsay exceptions which may substitute for direct testimony by the juvenile, and the juvenile's developmental ability to provide direct testimony and withstand possible cross-examination.B. Defense counsel should be familiar with his or her ethical responsibilities that may be applicable if the juvenile insists on testifying untruthfully. Defense counsel should maintain a record of the advice provided to the juvenile and the juvenile's decision concerning whether to testify.14. Preparation of Juvenile to Testify Defense counsel should prepare the juvenile to testify. This should include familiarizing the juvenile with the courtroom, court procedures, and what to expect during direct and cross-examination. Often the decision whether to testify may change at trial. Thus, it is beneficial to prepare in case the juvenile chooses to testify.
15. Questioning the Juvenile Defense counsel should seek to ensure that questions to the juvenile are phrased in a developmentally appropriate manner. Defense counsel should object to any inappropriately phrased questions by the court or an opposing counsel.
16. Renew Motion for Judgment of Dismissal At the close of the defense case, defense counsel should renew the motion for judgment of acquittal on each charged count, renew all prior objections and motions and if appropriate submit further argument to the court.
17. Closing Arguments A. Defense counsel should be familiar with the local rules and the individual judge's practice concerning time limits and objections during closing argument and provisions for rebuttal argument by the prosecution.B. In developing closing argument, defense counsel should consider: (1) Highlighting the weaknesses in the prosecution's case;(2) Describing favorable inferences to be drawn from the evidence;(3) Helpful testimony from direct and cross-examinations; and(4) Responses to anticipated prosecution arguments.C. Whenever the prosecutor exceeds the scope of permissible argument, defense counsel should consider objecting and requesting a mistrial, unless tactical considerations suggest otherwise.94- 649 C.M.R. ch. 101, § 5