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The Trial

If you enter a plea of not guilty, you will have a trial unless the charges are dismissed or you change your plea prior to trial. In a jury trial, a judge presides over the courtroom proceedings, and six or more citizens from the community are chosen to hear the evidence presented against you. These citizens determine whether a crime has been committed and whether you are criminally responsible for that crime.

At some point, we must decide whether you want a jury trial or a non-jury trial. The State Attorney must also agree to a non-jury trial. In a non-jury trial, only the judge decides whether a crime has been committed, and whether you are criminally responsible for that crime; in a non-jury trial there is no jury. A jury is used for most trials.

Jury Selection (Voir Dire)

This is the process by which the jury of six people is selected. In jury selection, a panel of between twenty to thirty people is brought into the courtroom. Of this group of people, six people will be selected to sit as jurors in your trial. Each side is allowed to fully question the jury panel, for the purpose of revealing bias or prejudice. The state questions the panel first and the defense follows. Once questioning is complete, both sides are allowed some time to privately review their notes on the juror's answers to questions, and determine who to exercise their strikes on.

Each side is allowed three peremptory strikes in a misdemeanor trial and six preemptory strikes in a felony trial. Preemptory strikes allow you to strike a jury from the jury panel for any reason. Additionally, a juror may be challenged for cause if he or she has answered a question indicating that they have a fixed opinion that will not allow them to follow the law. This may be anything from saying that they would require the defendant to testify in order to decide, to saying they believe you are guilty if arrested. It is up to the attorneys to bring out these prejudices and question the jurors thoroughly. A juror that the court excuses for cause is not counted against the preemptory strikes that each side is allowed. Once both sides have stated they accept six jurors, plus one or two alternates, the panel is sworn and the remaining jurors are excused.

Sequestration of the Witnesses

This is a rule of procedure invoked after jury selection is completed. All witnesses are brought forward to the court, and instructed that they must now leave the courtroom and not discuss the case with any other witness at all. It is proper for a witness to talk to a lawyer about what his or her testimony will be only. No witness should ask or discuss what any other witness said while testifying. This means that anyone named as a witness must leave the courtroom and return only to give their own testimony.

Opening Statements

This is my opportunity to state to the jury what I believe the evidence will show. The opening statement is not supposed to an argument, but rather an uninterrupted story of what the trial will show, through the evidence and testimony. Since the State has the burden of proving the charges, they address the jury first, and the defense follows. An opening statement can be anywhere from 5 minutes to an hour.

Presentation of the Evidence

At the conclusion of opening statements, the State begins to present its evidence. Evidence is primarily introduced through the calling of witnesses to testify. The State may call its witnesses in any order they determine. They may call all or just some of the people they have listed on the witness list.

Once their witness is on the stand, the state conducts a direct examination of the witness, meaning they ask non-leading questions that prompt the witness to tell their individual part of the overall story.

At the conclusion of the State's direct examination, I then cross-examine the witness. Cross-examination is defendant's opportunity to bring out all the counterpoints that the State did not bring out on direct examination, such bias, mistake, lack of knowledge, etc. Depending on the testimony the witness has given, the Defense may ask many questions, or in some cases, no questions. Again, determining what to ask on cross-examination is a strategic decision that is planned long in advance.

Objections

During the presentation of evidence, I may object for a variety of legal reasons, which must be stated at the time the objection is made. Many times the Court will ask the lawyers to approach on a particular objection in order to make legal argument so that the jury cannot hear. If there is lengthy legal argument to be made, the court may ask the courtroom deputies to remove the jury from the courtroom, to allow the lawyers to speak more freely without danger that the jury will hear the legal argument and draw improper conclusions from it.

Your Role During the Presentation of Evidence

You are a valuable resource of information on the facts of your case. Unfortunately, you may not completely understand the technical legal aspects of the case. You should listen very carefully to all testimony, and be ready to point out inconsistencies or misstatements if they occur. Because I must listen very carefully to every word that is testified to by a witness, for both factual and legal issues, it is best for the lawyer and client to communicate by writing notes to each other while testimony is being given. Please bear in mind that I must act as the final filter regarding information that is put before the jury in both cross-examination and presentation of defense witnesses, so every inconsistency, omission, etc., that the client points out will not necessarily be the subject of an immediate question. It is crucial for the client to maintain a dignified, reserved demeanor, regardless of the testimony that is being given. PLEASE do not react to it by shaking your head, rolling your eyes, grabbing my arm, or speaking out. I cannot emphasize enough how important it is to maintain composure at all times.

Close of the State's Case

Once the State has called all the witnesses it believes necessary to prove the legal elements of the crimes charged, they will rest their case. At this time, a recess is taken, and the Court allows the Defense to make a Motion for Judgment of Acquittal (JOA). A JOA asks the Court to find that the State has failed to make a sufficient showing to allow the specific charge to go to the jury. This motion is rarely granted, so the making of it is largely a formality, but it's like the lottery, you can't win if you don't play.

The Defense's Case

We are not required to call witnesses, and the Court tells the jury this at several points in the trial. Many times our theory of the case is sufficiently brought out through cross-examination, so we do not need to call witnesses in our case. However, when we do call witnesses on our behalf, including you, the same rules that applied to the State's witness will apply to our witnesses. We examine our witnesses with non-leading questions, and the State then cross-examines our witnesses in an effort to bring out bias, mistake, lack of knowledge, etc. We may call all or just some of our witnesses, depending on how the testimony is coming out. We do not want to put on redundant witness, because where there is redundancy, there is always conflict of some sort. Our goal is to tell our story fully in a coherent, interesting, streamlined, and credible manner, all the while minimizing the potential for conflict between our witnesses.

You have the absolute right to testify or remain silent and the Court will instruct the jury of this several times during the course of the case. The decision as to how to best defend your case is complex and should be discussed in detail prior to trial. Nevertheless, it is often a strategic decision that is made by the lawyer and client, as the trial unfolds. Some judges find a moment when the jury is out of the room, when it becomes appropriate, and ask the Client on the record what your decision is, and whether you agree with it. Generally, we do not have to make a decision until the close of the State's case.

State's Rebuttal

Once the Defendant has rested, the State is permitted to put on witnesses to rebut a specific point about which the Defendant's witness has testified. The same rules apply to them as all other witnesses. These witnesses must be on the witness list, so there are no surprises.

Defendant's Surrebuttal

On rare occasions, the Defendant may put on rebuttal witnesses to rebut the rebuttal.

Closing Argument

After all the evidence is presented, each side makes its closing arguments to the jury. Each side is allowed equal time for closing argument. Closing argument should pull all the evidence and testimony together, and explain to the jury why the charges are proved or not proved. We can use any evidence or exhibits that were used in the course of the trial, as well as special exhibits designed to highlight our key points. This can take as long as an hour, or as little as 15 minutes in short cases. Again, the Court will allow us as much time as we need, but we must be factual, to the point, and persuasive.

The Jury's Role

At the conclusion of closing arguments, the judge then tells the jury the laws and rules to be applied during the jury's deliberation. The jury then goes into a jury room to talk about the case until they reach a unanimous verdict of either guilty or not guilty. Depending on the severity of the charges you face, a jury can also find you guilty of a lesser crime. If the jury is unable to reach a unanimous verdict, then a mistrial is announced and the case will be reset for trial at a later date.

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