Criminal trial procedures vary from courthouse to courthouse, and even more varied are the legal tactics employed during each phase of a criminal trial, so it's important to have an attorney familiar with the local courts. Defendants with a brief amount of knowledge regarding the criminal trial process can better assist their attorney in making important decisions that may arise before, during, or after the trial.
Defendants are entitled to a trial by jury for all offenses except those deemed “petty”, which typically includes any offense consisting of a potential punishment of less than six months incarceration. Defendants can elect to waive their right to a jury trial and have a judge preside over, hear, and decide the outcome of their case. If either the defense or the prosecution requests a trial by jury, a trial by jury must occur. Some of the commonly noted strategies of using a jury trial are the requirement for juries to return a unanimous verdict usually. Given the probability, defense attorneys will feel that a trial by jury is favorable, as well as the fact that the defense can take part in selecting jurors for a given case.
Voir dire is legal term for the jury selection process. During voir dire, attorneys can dismiss, or challenge, potential jurors, who may prove biased during a trial. Through a series of questions, most jury pools are established to the agreement of both the prosecution and the defense attorneys. Each side may elect to dismiss any potential jury member for cause, while each side typically has a limited number of peremptory challenges they can make, which will dismiss a juror without proving cause. Sometimes, the selection of the jury is a good time for defense attorneys to expose the jury members to certain aspects of a given case, which may be in the favor of their defendant client.
Motion in limine is a request to the judge, which asks for certain pieces of evidence or testimony to be deemed inadmissible before they reach the courtroom and the jurors. This motion does not have to be specifically made before the trial, however, if a defense team waits, there is the potential jurors will be exposed to some or part of the evidence before a defense attorney can make it inadmissible.
The opening statements by both sides attempts to bring the jury members up to speed on a given case, as well as provide a clear roadmap on what evidence and arguments each side is going to make during the course of the trial. Statements made during the opening statement period cannot be used as evidence, but they offer each side the opportunity to build a rapport, establish a plot outline, and potentially, influence jurors before a trial even begins. Neither side can actually argue their case, but it is nevertheless an important and key strategic portion of a criminal trial.
The burden of proving a defendant’s guilt rests on the prosecution. Therefore, the prosecution presents their case first. If the prosecution does not present enough evidence to prove beyond a reasonable doubt that a defendant committed each element of applicable crimes, the defense can request a motion to dismiss without needing to offer a defense, except for the fact that the prosecution failed to provide sufficient evidence of a defendant’s guilt.
Each side may call witnesses during the trial. Witnesses testifying at trial are sworn in under oath, which informs them that failure to provide the truth is chargeable as a crime of perjury. The testimony of witnesses, however, must take the form of questions and answers save for cases of self-representation. Additionally, the defense is allowed to present witnesses in any order they choose, and furthermore, the prosecutor cannot call a defendant to testify as a witness.
Following making a statement under direct examination by either the defense or prosecutor, witnesses will now be cross-examined by the opposing side’s legal counsel. Cross-examinations typically attempt to poke holes, show inconsistency, or outright discredit a witness and their testimony. Following cross-examination, a period known as redirect examination is possible for defense attorneys, as well.
Typically, a defense team will begin presenting their case following the presentation of the prosecutor. In some instances, the defense will simply seek to show the lack of sufficient evidence presented by the prosecution to obtain a conviction. In other cases, an active defense will take place, which will include calling witnesses to the stand in the same manner as the prosecution did. Following this stage, the defense will state they are “at rest”. At this time, the prosecution may offer rebuttal testimony and evidence to contest that presented by the defense’s case, but it must be specifically related to new suggestions noted by the defense not initially covered in the prosecution’s initial case.
Typically, a judge will decide the format of the closing arguments in a criminal trial, which will either entail the prosecution delivering their argument first, followed by the defense, followed by the option for rebuttal by the prosecution, or judges will adhere to one closing argument each, while offering the prosecution the power to choose which slot they wish to fill. If the defense feels they have forgotten to mention certain aspects of their case, the judge may allow the reopening of a case, but during the closing arguments, only evidence that has already been presented can be referenced. Realistically, both sides will appeal to the juror’s logic during the closing argument, but emotional pleas are also common and allowed for the most part.
Before entering into deliberations, judges will offer final instructions to the jury, which tell them what issues they must unanimously agree about before returning a guilty verdict. Both the defense and prosecution can submit preferred jury instructions to a judge, but in the end, a judge will have the final and only word to jurors regarding their jury instructions. The judge is then tasked with explaining the legal principals, policies, and other factors to consider when deciding the issues of a case. In the end, most jury instructions are complicated, complex, and studies have shown that jurors rarely fully comprehend all aspects of their instructions. Aside from gross misinterpretation of jury instructions, a number of actions can be seen as juror misconduct, including:
During the jury deliberation period, no fixed time limit is needed to return a verdict, and the lengths required are greatly varied case by case. If a jury cannot agree on a verdict, a mistrial is called due to a deadlocked jury, which allows prosecutors to file the charges again or let the matter go to rest.