Transcript of Episode 027 “Ask a Lawyer with Joey Franks” – Do You Make an Opening Statement?

In the trial, do you make an opening statement like I see on TV?

Attorney Franks: As a formal procedure under most circumstances, you should have an opening statement. However, municipal courts and justice courts almost always forego those. You usually see a closing statement, but not very often do you see the opening statement that is the “shot heard around the courtroom”. Normally they ask everybody if they’re ready for trial and they’ll tell the prosecution to call the first witness.

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Speaking of witnesses, do you cross examine?

Attorney Franks: Absolutely, every time. There’s nothing better than picking a law enforcement officer apart on the stand when they can’t prove the case. I also cross examine any witnesses the state wants to call and I don’t hold back. That’s your chance to tear them apart, and the time for being nice passed the second they said let’s go to trial. They didn’t offer you a fair deal or dismiss it. So, at that point we’re at war, even though I’m an affordable DUI lawyer in Jackson MS

Do you ever make a motion to dismiss?

Attorney Franks: Absolutely. Sometimes depending on the jurisdiction, I might have a relationship with the prosecution. I send them some case law and say pull this or that file. Look at the facts. Tell me what you think, and quite often the prosecutor will call me back and say, “Joey, I think you’re right. We don’t have standing”, and they dismiss it voluntarily. Sometimes I file a motion to dismiss beforehand. Sometimes I make my motion the second I walk in the courtroom, and sometimes something comes out in trial, in which case I will move to dismiss once the prosecution rests as I don’t feel they’ve met their burden of proof. There are multiple places to make the motion to dismiss.

 

Does the prosecution ever make rebuttals?

Attorney Franks: They have a right to do what’s called redirect. By way of explanation, there’s direct examination where the officer is called and the prosecutor will directly examine him. Then I cross examine and when I step down, they have the opportunity to redirect on anything that was discussed in the cross examination. So, they have the opportunity to try and clean up anything I poked holes in. I’m poking holes into that witness’s testimony and credibility and of course the prosecution is going to come back and try cleaning it up. I don’t blame them. But, my job is to poke a big enough hole that they can’t fill it in. I’m trying to get you off the hot seat.

Are you allowed to speak with the prosecutor outside the courtroom?

Attorney Franks: Absolutely. Quite often I’ve talked to them before we ever walk into the courtroom. We’ve talked about the evidence and we generally have an idea whether or not it’s going to go to trial. In the event I haven’t had the opportunity to speak to someone beforehand, I will usually meet them in the courtroom. We’ll step away for a moment and discuss the facts and situations and see if there’s anything to be negotiated. If there’s nothing to be negotiated, then it’s got to be tried.

Can you make a pre-trial offer?

Attorney Franks: Certainly we can. We talk with the prosecutor and sometimes they defer to the police officers. That’s why I say it’s always best to be polite. We can assert your rights in a firm manner, and still be polite to the officer. That goes a long way because if they remember that I’m a decent fellow and was just doing my job, then maybe we can work something out. You see, the officer’s opinion carries weight with the prosecutor as the prosecutor works with them day in and day out. He’s going to see those officers more regularly than any attorney in the state of Mississippi. He’s always going to put some weight to their opinion and what they would like to do. But yes, you can go and discuss pre-trial offers, and quite often things work out before trial. Sometimes they don’t, and sometimes it has to go on to trial.