Florida Trial Procedure

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 Florida, there are two types of trials that can be held:

  1. Non-Jury Trial (Bench Trial); or
  2. Jury Trial

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.

A non-jury trial can only be conducted with the agreement of the prosecutor, the defendant, and the judge.

Generally, non-jury trials are only conducted for relatively minor cases, where none of the parties want to go through the time consuming process of picking a jury, or for cases where the primary issue to be decided is a legal argument.

Jury Trial

In a jury trial, a judge presides over the courtroom proceedings, and six or more citizens from the community are chosen as jurors to hear the evidence presented against you.

These jurors determine whether a crime has been committed and whether you are criminally responsible for that crime.

Jury Selection (Voir Dire)

This is the process by which the jury is selected.

In jury selection, a panel of between twenty to thirty people is questioned, from which six people will be selected to sit as jurors in your trial.

Each side is allowed to fully question the jury panel to determine bias or prejudice. The state questions the panel first and the defense follows.

Once questioning is complete, both sides are allowed three peremptory strikes in a misdemeanor trial, six peremptory strikes in a felony trial. Peremptory strikes allow a person to be stricken from the jury panel for any reason.

Additionally, a juror may be struck for cause if they indicate that they have a fixed opinion that will not allow them to follow the law. This could be anything from saying that they would require the defendant to testify, to saying they don't believe in innocent until proven guilty.

A juror that the court excuses for cause is not counted against the peremptory strikes that each side is allowed.

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 stay outside of the courtroom until called and are not to discuss the case with any other witness.

Opening Statements

This is where the parties advise the jury what they 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 presents its case first, primarily 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.

At the conclusion of the State's direct examination, the defense attorney cross-examines the state witnesses.

Cross-examination is a defense attorney's opportunity to bring out all counterpoints were omitted by the state; such as 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.


During the presentation of evidence, attorneys 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 outside of the jury's presence. 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 so the jury does not hear the legal argument and draw improper conclusions.

A Defendant's Role During Trial

The Defendant is a valuable resource during the trial, but may not completely understand the technical legal aspects of the case.

A Defendant should listen carefully to all testimony, and be ready to point out inconsistencies or misstatements to the attorney.

Importantly, what a Defendant believes to be important, may not be shared by the defense attorney. It is for this reason that the defense attorney has the final say regarding information that is put before the jury in both cross-examination and through defense witnesses.

So every inconsistency, omission, etc., that the client points out will not necessarily be focused on.

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

The defense is not required to call witnesses, and the Court tells the jury this at several points in the trial.

Many times the defense theory is sufficiently brought out through cross-examination, so there is no need to call witnesses.

However, if defense witnesses are called, the same rules that applied to the State's witness apply to defense witnesses.

A defense attorney may call all or just some defense witnesses, depending on how the testimony is coming out.

The goal is to tell the Defendant's story in a coherent, interesting, streamlined, and credible manner, all the while minimizing the potential for conflict between defense 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 deliberates in a jury room 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 a defendant 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 a new trial at a later date.

Contact Criminal Defense Lawyer Richard Hornsby

If you or a loved one have been arrested or charged with a crime in Central Florida or the greater Orlando area, please contact Criminal Defense Lawyer Richard Hornsby today for the criminal defense you deserve.

The initial consultation is free and I am always available to advise you on the proper course of action that can be taken.