Criminal Justice Section
Criminal Justice Magazine
Volume 18 Number 4
Trial Preparation for Prosecutors
Mary V. Murphy
Mary V. Murphy is a senior assistant state’s attorney for Howard County, Maryland.
Trial Preparation for Prosecutors, Second Edition by Michael D. Marcus (Michie 2002); 1 vol.; hardcover; $140; available online at http://bookstore.lexis.com/bookstore/catalog.
Reviewed by Mary V. Murphy
Trial Preparation for Prosecutors by Michael D. Marcus is a resource for prosecutors old and new. Marcus, who is a retired judge of the California State Bar Court, a former deputy district attorney for the Office of District Attorney in Los Angeles, and a former private practitioner, covers it all, from organization of files to strategic decisions a prosecutor must make at each stage of a criminal case. The book is a complete update of the original title, published in 1989. It addresses the practicalities of being a prosecutor, legal theory, and most importantly, ethical considerations faced by prosecutors. The author’s writing style and the organization of the chapters make this a reader-friendly reference source.
Although Trial Preparation provides information and advice helpful to all prosecutors, its primary audience will be the novice. New prosecutors will find the benefit of practical advice as the veteran walks them step-by-step through trial preparation. The book begins and ends with “how to” advice: how to organize a file, how to charge a criminal case, how to prepare for trial, how to conduct pretrial motions, and it culminates with how to conduct opening and closing statements at trial.
As he progresses through each stage of the pretrial preparation process, Marcus comprehensively addresses the different choices available to prosecutors, and lists the benefits and disadvantages of each choice. For example, in the chapter, “Preliminary Hearing Versus Grand Jury,” the author details both methods for initiating criminal charges, pointing out the pros and cons of each. He suggests the prosecutor consider such matters as whether to preserve the testimony of a difficult witness versus preserving the testimony of a witness who may be unavailable by the time of trial. In the first instance, he suggests that a grand jury is the preferred method; in the second, conducting a preliminary hearing for the unavailable witness is a way to use his or her testimony at trial. By the end of the chapter, the author has offered the reader a thoughtful, considered approach that can be applied in individual, real-life cases. Marcus often gives practical scenarios to exemplify his points to aid the novice prosecutor in applying the book’s principles.
Marcus focuses on the concept of “best practices,” recognizing that the reality of large caseloads often precludes prosecutors from implementing all the book’s suggested steps for organizing and preparing a case. He provides guidance on what’s the bare minimum required for pretrial preparation in order to succeed in the courtroom.
More experienced prosecutors will find the book most valuable in the sections that discuss ethical dilemmas and complex strategy decisions. Although the author’s authoritarian tone may offend the veteran prosecutor, he does provide useful information for prosecutors at all practice levels. For example, the chapter on pretrial motions provides prosecutors with a list of 33 motions in limine, some of which attempt to limit age-old defense tactics aimed at getting a jury to sympathize with the defendant. Another chapter that appeals to the more seasoned prosecutors discusses voir dire. This chapter is replete with sample questions to fit particular types of cases or issues.
Marcus incorporates ethical considerations throughout the book, often citing to the American Bar Association Standards for Criminal Justice. Although the author tends to start with that which is familiar to him, California law, he provides a comprehensive list of references from both federal and state courts to support his statements.
All in all, Trial Preparation for Prosecutors is a comprehensive, helpful resource that new prosecutors should be encouraged to read and that the more experienced prosecutor will use as a solid reference guide.