STEP 11 – TAKING YOUR CASE TO TRIAL

A case will go before a judge or jury for trial if a plea agreement is not reached after the pretrial conference. However, the option to strike a plea deal is still available until the jury renders a verdict. If no deal can be reached the defendant will proceed to trial. At trial the prosecution is forced to meet their high burden of proving the defendant guilty. Trial has six basic stages, below is a summation of those stages and an example of each from a real trial.

STAGE 1 - INTRODUCTIONS

Trial begins with a few brief statements by the judge on how the trial will be conducted.  Each judge does this stage of the process a little differently.  The introductions will generally explain the process and introduce the court personnel to the prospective jurors.  The judge will give some basic instructions and ask some very basic questions to the prospective jurors.

EXAMPLE OF AN INTRODUCTION IN A REAL CASE

STAGE 2 - VOIR DIRE

Trial begins with voir dire (“vwa-deer” or “vor die-er”). During this process a big group of potential jurors will be reduced to the twelve jury members (only six are needed for a misdemeanor case) and any essential alternates. Voir dire can take anywhere from a few hours up to several days. The reasoning behind this process is so that each side can ensure that the members on the jury will be able to view the case from the respective perspectives. Both attorneys and the judge will question the jurors in order to discover any impartiality, bias, or knowledge of the case. Potential jurors answer these questions and sometimes an open dialogue is created. If a potential juror reveals that they cannot be impartial, has some unchangeable bias against either party, or has outside information regarding the case, that individual will be excused “for cause.” An individual can also be excused via a preemptory strike by either side. The number of these strikes are limited and can usually be exercised for about any reason. An attorney will strategically use these strikes to exclude impartial and fair yet unfavorable individuals from being put on the jury.

One exception does exist for the preemptory strikes. If a non-striking attorney believes a preemptory strike was racially, gender, or religiously based, they can bring forward a Batson challenge to that strike. These challenges originated from the United States Supreme Court case Batson v. Kentucky and can be crucial in criminal cases. The party challenging the strike will have to show that the shielded characteristic was the true reasoning behind striking the potential juror, instead of the non-discriminatory reason initially given. This can be very hard to do due to the limited information at hand, but if a party wins, the potential juror will not be stricken, but rather will be allowed to serve on the jury. Please note that it is not guaranteed that a jury will be gender (or racially) diverse. A Batson challenge is not a general attack on the jury’s makeup, but rather just the specific preemptory strike.

EXAMPLE OF A VOIR DIRE IN A REAL CASE

STAGE 3 - OPENING STATEMENTS

The jury is sworn in after voir dire and then each attorney is allowed to give an opening statement. The prosecuting attorney will go first as it is the state’s burden to prove its case. Defendant’s counsel will follow the state’s opening statement. The opening statements will layout who the defendant is, the crime they are accused of, and what evidence will be introduced to prove it. Credibility is a big concern during opening statements. The district attorney wants to make it seem like they are not completely focused on convicting every single person regardless of guilt. Likewise, defendant’s attorney wants to ensure they come off as defending an innocent person rather than attempting to “game the system” by letting a dangerous individual go free. Opening statements are a great opportunity to remove these common stigmas from the jurors’ minds. Essentially the opening statements provide the jury a preview of what the case is about and what they should focus on before rendering a verdict.

EXAMPLE OF AN OPENING STATEMENT IN A REAL CASE

STAGE 4 - STATE’S EVIDENCE

The lead prosecutor will start introducing evidence to demonstrate the State’s case. For the most part this is done by calling witnesses to testify and submitting physical evidence. Physical evidence might be records or different things significant to the charged wrongdoing. This procedure will represent by far most of the trial. This part of the trail varies in length it might last just a couple of days or several weeks, contingent upon the charges and kind of wrongdoing.

To present their case, the prosecuting attorney will administer the direct examination of their witnesses. This means they get to choose which witnesses to call and when to call them. They will only be able to ask the witnesses short, non-leading questions as these will help the witness convey what they personally know about the event. Defense counsel will be allowed to question the state’s witness once they have finished questioning them. This is called cross examination and is crucial in criminal cases. Defendants have a right to confront their accusers under the Sixth Amendment and cross examination satisfies this right. Counsel will usually ask very direct questions with limited scope in order to prohibit the witness from over explaining their answers. There are two reasons behind this type of questioning. First, it can challenge the witness’ credibility by showing faulty perception, bias, or untruthfulness. Second, it can showcase variations or weaknesses in the witness’ testimony. After cross examination is completed, the district attorney will be able to question the witness on redirect. After redirect, defense counsel will again be able to question the witness on re-cross.

Submitting exhibits is also an important part of these examinations. Usually, an exhibit isn’t admissible unless a witness can testify as to what the object is. This required testimony can come on either direct or cross. If an exhibit is admitted, it is usually shown to the jury. Witnesses are allowed to further explain an exhibit as well. For instance, in a case of forgery, an expert in handwriting could testify concerning how he can determine the signatures were forged. Exhibits are very significant as the jury can reevaluate these when they deliberate, they cannot do that with witness testimony.

Objections are the final part of witness examinations. An opposing party can object to testimony or evidence presented by the other party if they believe it violates law or the rules of evidence. Upon an objection being made, the lawyers will go up to the judge and discuss the offered testimony or exhibit. After hearing each side’s argument on why the evidence should or should not be admitted, the judge will rule on the admissibility of the evidence. If it is admitted, it will be submitted to the jury.

EXAMPLE OF A STATE'S EVIDENCE IN A REAL CASE

STAGE 5- DEFENDANT’S EVIDENCE

The district attorney will rest their case after their last witness. Under Section 22-3419, the defendant is now allowed to make a motion of judgement of acquittal. The premise behind this motion is that the state has failed to meet its burden of beyond a reasonable doubt on each element of the crime. As held in State v. Zamara, this motion should be denied in order to let the jury decide the case if the evidence permitted might reasonably permit a jury to render a guilty verdict against the defendant. This motion is rarely granted unless the prosecuting attorney has made a mistake while presenting their case.

If the defendant’s motion is denied or not made, they will then be able to present their own evidence. This process will be exactly like the state’s case (direct, cross, redirect, re-cross), just a reversal of the roles. The premise behind the defendant’s case is to prove a defense (i.e., self-defense) or just to present evidence that the accused didn’t commit the charged crime. Usually the defense has considerably less evidence to present and thus will take less time than the state’s case.  It is quite common for the defense to not present any evidence in a case.

EXAMPLES OF DEFENDANT'S EVIDENCE IN A REAL CASE

STAGE 6 - CLOSING ARGUMENTS

After the defense has rested their case, each side will give a closing argument. The state will go first and can allot some of their time to rebut the defendant’s closing argument. Each side will discuss the admitted evidence and portray it to the jury on how they should use the evidence as well as how much weight each piece of evidence carries. Closing arguments are vital as it gives the jury guidance on how to apply the presented evidence to the matters at hand.

The state will concentrate their closing on showing each element of the crime has been adequately met. This can include explaining jury instructions which outline the crime’s elements, to the jury. The state is time pressured during their closing as they have to sufficiently argue that each element has been addressed as well as proven beyond a reasonable doubt. Further, they cannot mention the defendant did not testify if the defendant didn’t testify. The state cannot argue that the accused’s silence proves their guilt, as a defendant doesn’t have to prove their innocence and they have the right to not testify against themselves. A mistrial is usually declared if the prosecution makes these types of comments. Results of a mistrial are either retrying the case in front of a new jury or perhaps ruling in favor of the defendant.

Defense counsel has very similar goals during their closing. The defense only has to convince the jury that the state didn’t meet their burden of proof on the required elements. Often these closing will concentrate on missing pieces of evidence or inconsistencies in the state’s case. Defense counsel should constantly remind the jury of just how high the state’s burden of proof actually is. And if the defense has showcased an alternate theory of the incident and/or submitted a defense, their closing will express how the evidence proves these ideals.

The state is allowed to make a rebuttal argument after the defendant’s closing argument. The main goal of this rebuttal is to address the defense’s strongest argument as well as convey that a conviction should be the rightful outcome of the case. This is a persuasive mechanism as it is the last argument the jury will hear before they begin to deliberate.

EXAMPLES OF CLOSING ARGUMENT IN A REAL CASE

Going to trial in a criminal case is nerve racking and can be scary, having an experienced criminal defense lawyer by your side is vital to having a successful trial outcome. Always remember that you generally get one shot at going to trial, it is an unforgiving and difficult task that it rife with landmines. Being prepared for the task and devoting the time to play out all contingencies is vital.

The next step in a criminal case is "Receiving the Verdict." Click the link to find out more.