The Effective Use of Stipulations in Criminal Trials

What Are Stipulations in Criminal Litigation?

A stipulation in the context of criminal litigation is an agreement between the parties: the defense and the prosecution. Stipulations may be in writing or presented to the court orally. Once the parties enter into a stipulation, and it is accepted by the court, the terms of the stipulation become reliable facts that need not be proven by either party by any form of evidence.

Enhancing Trial Advocacy and Strategy with Stipulations

The effective use of stipulations may enhance trial advocacy and strategy. For example, stipulations may be used to simplify or streamline the presentation of evidence. Lawyers who seek to offer documents or physical items at trial must authenticate the evidence before it may be accepted by the court and presented to the factfinder (jury or judge sitting without a jury) as evidence.

To authenticate an item simply means to persuade the court that the proposed document or item is what the proponent purports it to be. Examples include an accurate copy or duplicate of a document, a full set of medical or business records, a contract, a will, items collected from a crime scene (weapon, article of clothing, fingerprint, blood sample, etc.), and much more. Instead of calling witnesses to authenticate the item(s) of evidence, the parties may stipulate to authenticity, thereby enabling the court to accept the items as evidence. The fewer witnesses called, especially for foundational purposes such as authentication, will reduce the duration of a trial and promote the jury’s focus and attention on more important aspects of the case. This is especially true with long trials, where the advocates strive to keep the jury’s attention during critical phases of the evidence presentation.

Using Stipulations Strategically in Criminal Defense

The use of stipulations may also be used strategically, especially by the defense. Because the prosecution has the burden of proof in a criminal trial, it must prove each and every element of the charged offenses. Only the defendant can stipulate to elements of the crime. Counsel should only do so after careful thought and consideration, and as a matter of defense trial strategy.

Example: Drug Possession Case

For example, in a drug possession case, where the defendant was stopped in a vehicle that contained drugs inside the trunk, the prosecution must prove:

1. The defendant knowingly possessed the substance found in the trunk.
2. The substance was a particular illegal drug type.
3. The quantity of the substance.

If the defense trial theory is that the defendant did not know the substance was concealed inside the trunk, it may be a good trial strategy to stipulate to drug type and drug quantity. This will enable the defense lawyer to build rapport and credibility with the jury, such that the defendant is not disputing obvious and easily proven facts, while keeping the trial focused on the real issue to be decided: has the prosecution proven beyond a reasonable doubt that the defendant had knowledge of the drugs?

Example: Unlicensed Possession of a Firearm

For another example, in a case involving the unlicensed possession of a firearm, where a defendant was stopped as a passenger in a vehicle where a firearm was discovered hidden under the driver’s seat, the prosecution must prove:

1. The defendant knowingly possessed an item.
2. The item was a working firearm.
3. At the time of discovery, the defendant did not have a license to possess a firearm.

If the defense theory is that the defendant did not know the firearm was concealed under the seat, it may be a good strategy to stipulate to the second and third elements. Proving the second element requires the prosecution to call a witness who test-fired the seized weapon to attest that it expelled a projectile, rendering it a functioning firearm. The third element requires a police witness to testify that upon checking a statewide database, there is no indication that the defendant ever received a license to carry a firearm.

These readily proven facts take up time and resources and detract from the focus of the trial. Stipulating to them can promote a defense lawyer’s ability to build trust and credibility with the jury, which will prove to be invaluable during closing arguments when the same lawyer argues that his or her client did not have knowledge of the gun.

Conclusion: How Stipulations May Benefit Your Defense

If you are charged with a crime and intend to exercise your right to trial, the use of stipulations may be beneficial to your defense. Contact Criminal Defense Lawyer, John L. Calcagni III, for a free consultation at 401-351-5100.