Step 11 – Trial – What Happens At A Criminal Trial?
If no plea bargain is reached following the pretrial conference, the case may go before a jury or the judge for trial. Even here, the option to plea remains open until the jury convicts. If a case is particularly favorable to a defendant, experienced counsel may suggest going to trial to force the district attorney to carry her heavy burden of proving the case. There are several stages of trial.
The trial process begins with voir dire ( “vwa-deer” or “vor die-er”). Here, a large group of panelists—potential jurors—will be narrowed to the twelve jury members and any necessary alternates. (six members in a misdemeanor case) This process can take anywhere for several hours to several days. The goal of each side will be to ensure the jury consists of members that will be capable of seeing the case from their perspective. The attorneys and judge will ask questions of the jurors, aimed to determine impartiality, bias, and knowledge of the case. Panelists will answer these questions and often an ongoing dialogue will form. If a panelist reveals that he or she cannot be impartial, has some incurable bias against the state or defendant, or has outside knowledge of the case, that panelist will be excused “for cause.” A panelist may also be removed via a preemptory strike by either attorney. These strikes are limited in number and may be exercised for almost any reason. Strategic use of these strikes allows the attorney to remove fair and impartial yet unfavorable panelists from being placed on the jury.
Preemptory strikes are widely available, but one exception does exist. When the non-striking attorney believes a preemptory strike was motivated by race, gender, or religion, he may bring forward a Batson challenge to that strike. These challenges originate for the United States Supreme Court case of Batson v. Kentucky, and can particularly important in criminal trials. The challenging party will have to demonstrate that the protected characteristic was the true motivation for striking the panelist, rather than the non-discriminatory reason offered. It can be extremely difficult to prove this with the very limited information available, but if a party succeeds the panelist will not be excused and can serve on the jury. As an important note, though: there is no guarantee of a racially (or gender) diverse jury. A Batson challenge cannot be issue in a general attack on the jury, but only on specific preemptory strikes.
Following voir dire, the jury is sworn in. Each attorney will then be allowed to make an opening statement. The district attorney will begin, as the state bears the burden of proving its case. After the state’s opening the defendant presents his opening. The goal of the opening statement is to set the stage for the trial: establish who the defendant is, what crime he is being accused of, and what evidence will be presented to prove that. A concern of opening statements is always credibility. A district attorney must ensure they don’t come off as an out-of-touch lawyer bent on convicting everyone, guilty or innocent. Likewise, defense counsel must assume the role of defending an innocent person rather than “gaming the system” to let a dangerous person go free. These ideas are in most jurors’ minds, so the opening is an excellent opportunity to establish credibility and sweep away these ideas. The opening will also operate as a preview of the trial, letting the jury know what to watch out far as far as important evidence.
The district attorney will begin putting on evidence to prove its case. This is generally done by calling witnesses to testify and admitting exhibits of physical evidence. These exhibits may be documents or other items relevant to the charged crime. This process will account for the vast majority of the trial. It may last only a few days or several weeks, depending on the charges and nature of the crime.
During the state’s case, the district attorney will conduct the direct examinations of witnesses. This means the district attorney gets to decide which witnesses to call and in which order. He will also be allowed to question the witness first, using short, non-suggestive questions. The goal is to have the witness recount to the jury what he or she knows. After this initial questioning, the defense counsel will question the witness. This process is known as cross examination and is vitally important in criminal cases. The Sixth Amendment guarantees criminal defendants the right to confront their accusers. This is accomplished by cross examining them. The attorney will generally ask very pointed questions and give the witness little time to explain answers. The goal of this line of questioning in two-fold: to diminish the credibility of the witness by showing bias, faulty perception, or untruthfulness and to point out weaknesses in the witness’ story. Following cross, the district attorney will have a chance to ask a few more questions on redirect. Finally, the defense will have the last opportunity to ask questions on re-cross.
Another important aspect of these examinations is the presentation of exhibits. Generally, exhibits aren’t admitted into evidence unless a witness can testify as to what the item is. A witness can provide the necessary testimony on direct or cross, allowing the admission of the exhibit. Once an exhibit is admitted, it is generally shown to the jury. The witness may explain the exhibit in further testimony. For example, in a case for forged checks, a handwriting expert may testify regarding how she can tell the signatures were forged. Exhibits are extremely important because, unlike testimony of witnesses, the exhibits may be reexamined by the jury as they deliberate.
A final key aspect of witness examinations is objections. While the district attorney questions a witness, defense counsel may object to testimony or evidence that violates the rules of evidence or other law. This is likely a familiar practice, as it is depicted in countless television shows and movies. Once an objection made, the attorneys will come to the bench to discuss the offered testimony or evidence. Each side will argue the applicable law, determining if the evidence is admissible or not. After hearing both sides, the judge will make a ruling as to whether the object can be presented to the jury or withheld.
Following the state’s last witness, the district attorney will rest her case. At this point, the defendant is allowed to make a motion for judgment of acquittal under Section 22-3419. The motion argues that the state failed to carry its burden by proving each element of the crime beyond a reasonable doubt. As noted in State v. Zamora, if the evidence presented might reasonably permit a jury to find the defendant guilty beyond a reasonable doubt, the motion should be denied to let the jury decide the case. It is generally uncommon for this motion to be granted unless a mistake has been made by the district attorney in presenting the state’s case.
If the motion is denied or not made, the defense will then have the opportunity to put on his own evidence. This evidence may go to prove a defense, such as self-defense, or simply attempt to show defendant did not commit the crime. The process will follow that of the state’s case, only with the roles reversed. Defense counsel will call the witnesses and conduct direct examinations, while the district attorney cross examines and objects. Generally, the defense has significantly less evidence to present than the state. Thus, the defendant’s evidence will generally take much less time.
Following defendant’s evidence, each side will present closing arguments. The state is allowed to present first, and may reserve some time to rebut the defense’s closing. Each party will discuss the evidence the jury has been presented and may recommend how each piece of evidence should be used. The attorneys will also comment on how much weight pieces of evidence should be given. Closing arguments are important because they are the only real guidance the jury receives as to why and how the evidence presented matters.
The district attorney will focus her closing on establishing that each element has been sufficiently met. This will generally include walking the jury through the jury instructions outlining all the elements of the charged crime. The biggest enemy of the prosecution on closing is the clock: the district attorney has to not only ensure every element is addressed, but also that every element is proven by sufficient evidence to meet the law’s highest burden of proof—beyond a reasonable doubt. The district attorney must also be careful with her words. For example, a defendant may not testify at trial as to his innocence or guilt. The district attorney cannot point to the defendant’s silence as a lack of proving innocence—the defendant has no burden to prove innocence and does have a right to not testify against himself. When these sorts of comments are made, the case may have to be declared a mistrial. This could result in retrying the case with a new jury or simply finding in favor of the defendant.
The defendant’s goals are very similar on closing. The defendant does not need to convince the jury of anything other than that the district attorney didn’t prove the required elements. Defense closings will often focus on showing inconsistencies or missing pieces in the state’s case. Defense counsel will also remind the jury of the huge burden assigned to the state. If the defense has presented a competing theory of the occurrence or put forth a defense, the closing will reflect how the evidence presented proves these things.
Following defendant’s closing, the state may make a rebuttal argument. This is generally limited to addressing the most damning arguments made by the defense. The main goal is to leave the jury with a sense that conviction is the right outcome. This is a powerful tool for the state, as it is the final word in the trial before jury deliberations begin.
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