Judge Criminal Pretrial Checklist
Brief summation of necessary items to review for judges.
Checklist1. Determine estimated length of trial:
a. Include time for any possible aggravation phase (Blakeley) (AZ.R.Cr.P 19.1(b)).
b. Likelihood of application of Arizona lengthy trial fund, A.R.S. *21-222, additional juror remuneration beginning on the fifth day of trial.
2. Inform counsel of trial schedule:
a. Days of the week on which trial will be held.
b. Time when trial will begin and end each day.
c. Recess timing and duration, etc.
d. Discuss time limits on trial proceedings.
3. Decide jury selection issues:
a. Number of jurors and alternates. (12 jurors in a capital case or case in which sentence of 30 years or more is possible; 8 jurors in all other criminal cases; 6 jurors in non-record cases. Ariz. Const. Art. II *23; A.R.S. *21-102.)
b. Number of peremptory strikes per side. (Ten strikes in a capital case, six in all other cases tried in Superior Court, two in all cases tried in limited jurisdiction courts. AZ.R.Cr.P. 18.4. Peremptory challenges by any party based upon race or gender violate the United States Constitution. See page 6-9 footnote 9 for further discussion on Batson.)
c. Procedure for selecting the jury; how jurors will be seated; how many will be called for questioning. See AZ.R.Cr.P 18.5(b).
d. Alternate jurors will be designated by lot draw. AZ.R.Cr.P. 18.5(h).
4. Review with counsel:
a. Full names of defendant(s) and counsel.
b. Charges at issue in the trial and whether indictment or information should
c. Identify trial witnesses, including experts and any witness* scheduling issues.
d. List of exhibits; procedure for handling disputes.
e. Deadline for submitting instructions and forms of verdict.
f. Order of trial, if multiple defendants.
g. In discretion of the judge, the need for juror notebooks containing basic trial documents and instructions. See AZ.R.Cr.P 18.6(d)
5. Review voir dire procedures.
a. Statement of the nature of the case to be given by the Court; or brief, non-argumentative factual statements provided by counsel. AZ.R.Cr.P 18.5(c). These brief opening statements occur prior to voir dire and are at the discretion of the Court.
b. Preliminary voir dire by the Court.
c. Additional voir dire requested by counsel. AZ.R.Cr.P 18.5(d).
d. Set reasonable limits on counsels' voir dire. Id.
e. Does defense counsel want the panel to be advised during voir dire of defendant's right to not testify? (Section 21 of the Script, Page 6-8.)
f. If defense counsel is a deputy public defender, deputy legal defender, etc., does counsel prefer to be introduced as such, or without mention of office that employs defense counsel?
6. Motions and preliminary instructions:
a. Hear and resolve pending motions.
b. Identify issues which require a hearing pretrial; motions in limine, suppress, voluntariness, Rule. 609.
c. Settle preliminary instructions. (AZ.R.Cr.P. 18.6(c).)
7. Advise counsel of courtroom protocol re:
a. Marking exhibits.
b. Bench conferences.
c. Mid-trial motions to be heard so jury is not inconvenienced whenever possible.
d. Offers of proof.
e. Witness examination (e.g., re-cross examination permitted?).
f. Making objections. (No speaking objections)
Continuedg. Juror questions. AZ.R.Cr.P. 18.6(e).
h. Using easels, blow-ups, etc.
i. Approaching witnesses.
j. Exhibits shall be marked and exchanged prior to trial.
k. Using lectern.
l. Audio/video tapes.
1) Transcript of audio/video tapes to be marked for identification, but shall not be admitted into evidence.
2) Court reporter will not make a record of any audio tape or audio portion of video tape admitted in evidence.
m. Demonstrative exhibits.
8. Any special equipment needs?
Tape recorder, overhead projector, VCR/monitor.
9. Any special problems anticipated?
b. Interpreter issues
c. Media coverage (For Order re: Judge may review possible instructions to the jurors and/or witnesses arising from media coverage of the trial.)
d. Defendant: Dress, restraint, timing, and method of bringing an in-custody Defendant into (and out of) courtroom
10. Is there a victim?
a. Has the State complied with the Victims' Rights Act? (See AZ.R.Cr.P. 39(f), A.R.S. *13-4401)
b. Is the victim likely to be in attendance during trial?
c. Are there any issues pertaining to victims' rights anticipated?
1) Security issues
2) Interpreter issues
3) Presence of support person
4) Exclusion of witness
11. Any ADA accommodations required for defendant, victim or witness (hearing assist equipment, wheelchair access, etc.)?
12. Ask counsel to estimate length of opening statements. Establish reasonable limits if appropriate.
13. Is the Rule of Exclusion of Witnesses invoked? (Does not apply to victims, See AZ.R.Ev. 615, AZ.R.Cr.P. 39. A.R.S. *13-4420.) Have staff post a Notice re: Exclusion of Witnesses. (The judge may discuss additional instructions to prevent witnesses from violating the spirit ofrule 615 through social media, live-streaming video of trial testimony, and/or electronic communication regarding trial testimony. AZ.R. Cr.P 1.2 and AZ.R.EV 102 & 611(a).)
14. Plea Negotiations (State v. Donald, 198 Ariz. 406, 10 P.3d 1193, (App.2000); State ex rel. Thomas v. Rayes, 214 Ariz 411, 153 P.3d 1040 (2007).)
b. 17.4 conference or *Donald Hearing* appropriate?
15. Other Pretrial matters?