8. Trial Procedure
Depending on the type of action, a case may be tried before a judge (bench trial) or before a jury with a judge presiding. Whether the case is civil or criminal, or tried by a judge or jury, the procedure is essentially the same.
- 1. Jury Selection
- 2. Opening Statement
- 3. Prosecution Evidence/Witnesses
- 4. Defense Evidence/Witnesses
- 5. Rebuttal
- 6. Jury Instructions
- 7. Closing Argument
- 8. Jury Deliberations
- 9. Verdict
- 10. Sentencing/Judgment
At the trial’s beginning, the clerk calls a panel of prospective jurors. The judge or, in some cases, the lawyers, ask the potential jurors questions about their background and general beliefs to determine any biases or prejudices. This process is called “voir dire.”
If any attorney or judge feels that a juror is not qualified for the case, the juror is excused for cause. There is no limit to a party’s challenges for cause. Both sides are entitled to a certain number of peremptory challenges, which means they may excuse some prospective jurors without stating any reasons (unless the motives appear to be motivated by race or gender.)
Attorneys for each side make statements to inform the court and jurors of the nature of the case, the evidence they will present, and the facts they expect to prove. The defense may choose to wait to make an opening statement until after the prosecution has rested its case, or may choose not to make one.
Each side makes its case based on testimony from witnesses and physical evidence. The prosecutor/plaintiffs call their witnesses for direct examination to state what they know about the alleged crime or injury. The defense may ask questions of the same witnesses (cross-examination). Then the prosecutors/plaintiffs may re-examine their witnesses (re-direct). Physical evidence, such as documents, pictures and other exhibits, is also introduced.
A preliminary hearing is like a mini-trial, or “trial before the trial.” This is where the judge decides whether or not there is enough evidence to charge the defendant. The prosecutor will present all of their evidence and witnesses will testify. The defendant’s criminal attorney has a chance to present the case. However, in some cases, the attorney might use this time to cross-examine witnesses testifying against the defendant and see if the prosecutor has inconsistencies in their case against you. If the judge finds the there is insufficient evidence, the charges can be dismissed and if there is sufficient evidence the case will be bound over for trial and your lawyer will begin preparations.
When the defense has presented all its witnesses, the prosecutor/plaintiff may again call witnesses to rebut any new information introduced by defense witnesses. The judge may allow surrebuttal (a rebuttal to the rebuttal) by the defense.
Before closing arguments, the judge will instruct jurors carefully as to what law they are to follow. In civil cases, the jury must determine that a preponderance of the evidence favors one party. In criminal cases, the defendant must be found guilty beyond a reasonable doubt to be convicted.
After jury instructions are given, both attorneys summarize the evidence and testimony in an effort to persuade the judge or jury to decide the case in favor of their client. The prosecution makes its closing argument first, then the defense, and then the prosecution responds to the defense’s closing argument. Either side may waive closing arguments.
After closing arguments, the court orders the jury to retire to the jury room for deliberations.
In criminal cases, a verdict must be unanimous and must be given in open court with the defendant present, unless he chooses not to be.
- For criminal cases there are a limited number of possible verdicts: guilty (of some or all of the charged crimes, or guilty of a lesser crime); not guilty (of some or all of the charged crimes); not guilty by reason of insanity or affirmative defense; guilty and mentally ill.
- For civil cases, two types of verdicts are rendered – general and special. The verdict does not have to be unanimous; at least three-fourths of the jurors must agree to the verdict. In general verdicts, the jury has decided the case either in favor of the defendant or the plaintiff. In special verdicts, a general decision is not announced. Rather, the jury has answered certain factual questions, leaving the “total” decision up to the court.
- In a criminal case, after a verdict of guilty or a plea of guilty, the defendant has the right to be sentenced in no fewer than two nor any more than 45 days following conviction. If the defendant chooses, he or she may waive that time and may be sentenced on the day of conviction or the day of the plea. The defendant may also choose to be sentenced after 45 days if they need more time to prepare for sentencing.
- In a civil case, after the verdict or after the court has decided the facts in a bench trial, a judgment will be rendered. The court will award money damages or injunctive relief.