Tuesday, November 8, 2016

How Does a Criminal Trial Work?

Most criminal cases - "more than 97%" according to the Nat'l Assoc. of Criminal Defense Lawyers - don't make it to trial; they plea bargain, which means the defendant gives up the right to trial in exchange for concessions from the prosecution.  When they do go to trial, it is most often to a jury (six jurors in misdemeanor cases and 12 in felonies).  Trials to a judge, called bench trials, are rare since a conviction requires that all the fact finders agree and as a defendant on trial it is better to require 12 people to decide you are guilty versus one person.

The trial day begins with preliminary matters such as witness and exhibit discussions, evidence questions, and pre-trial motions.  Next comes jury selection, where the prosecution and defense spend time under judge supervision vetting potential jurors.  This usually takes a couple hours, resulting in the jury being empanelled.  In most instances by noon the case is ready to go.

Opening statements follow.  These are non-evidentiary outlines to the jury by each side, telling them what they might expect the evidence - witnesses, exhibits - to show.  Throughout trial the prosecution carries the burden of proving the case and therefore goes first.  Opening statements typically are limited by the judge to 15 or 20 minutes each.

Then come the prosecution witnesses, first for direct examination, then cross examination by the defense lawyer, and followed up as needed with what is called redirect examination.  Exhibits may be introduced into evidence for jury consideration later.  In some cases the jurors themselves may submit written questions through the judge.

When the prosecution is finished, the defense has the chance to make various motions to the judge challenging the sufficiency of the evidence to that point.  These usually are denied. 

Then comes the defendant's turn.  The defense can make its opening statement at that point if it hasn't already.  Because the defendant may remain silent and otherwise is not required to introduce any evidence (and the jury repeatedly is instructed about this by the judge), defense witnesses etc. may or may not follow, subject to the same evidence rules and objections as the prosecution.  The defense then rests.

The prosecution now has the chance to rebut the defense case with additional witnesses or other evidence, as it feels necessary.  Ultimately the prosecution too rests.

Next the parties discuss and argue before the judge over jury instructions - lengthy written instructions from the court about how jurors should deliberate, treat evidence, what they may or need to consider, burdens of proof, etc.  This might take an hour or so.  Once the instructions are finalized (including objections noted for possible appellate review later), the judge reads them to the jury. 

Finally, the lawyers make closing arguments to the jury, again lasting 15-20 minutes each with the prosecution allowed to go first and last with a rebuttal closing.  The jury then goes to a separate room for deliberations, questions and verdict.

Most misdemeanor cases take at least a day and a half to conclude.  Of course they can take days longer.  Felony cases can last a week or more.

Trials are risky business and require a great deal of preparation and strategizing.  Call Sanderson  Law, P.C., 303-444-8846, if you or someone you know needs experienced legal representation.