Common Trial Procedures
United States
Opening Statements
Opening statements may be
made by either or both sides
in a criminal or civil trial.
Neither side has to make an
opening statement, but they
are common.
The purpose of an opening statement is
to present your case and the facts that
you intend to prove during the trial.
They are not meant to be argumentative.
The side with the burden of proof goes first.
This would be the plaintiff in a civil case or the
state in a criminal case. The other side may go
second or wait until a later part of the trial.
Rules of Evidence
American courtrooms are full of rules regarding the
behavior of all people present, especially attorneys. The
following rules include some of the most important
rules of evidence and will give you a sense of how the
rules protect both sides from an unfair trail.
Form of Questions
A leading question is
one that suggests an
answer. They are not
allowed on direct
examination.
Example of a direct question, “Mr. Smith, what were
you doing on the evening of October 31st?”.
Example of a leading question, “Mr. Smith, isn’t it true
that you were dressed up as a ghost on October 31st?
First Hand Evidence
Generally speaking,
witnesses must have
directly seen, heard or
experienced whatever it is
they are testifying about.
Witness Opinions
As a general rule, witnesses may not
give their opinions. They should
confine their testimony to the facts as
they saw, heard, felt, etc.
Expert witnesses are allowed to give their
opinions as they relate to their field of expertise.
Hearsay
Out-of-court statements used to
prove the truth of what a witness is
testifying to are usually not allowed.
An example would be, “I know he had a gun,
because Sharon Tomas told me he did”.
Dying declarations are generally an
exception. For example, “As she was dying
she kept saying the word gun and her
husband’s name.”
Relevance
Only testimony that is relevant to the case is allowed.
Asking a witness to a murder if they like ice cream
would be an obvious example, but sometimes
lawyers may try to ask questions to prejudice the jury
and make the witness look good or bad even though
the question has nothing to do with the case.
Introduction of Physical Evidence
Physical evidence including
things such as documents,
weapons, or photographs, may
be introduced to the court, but
it must be done so in one of
the following ways…
• Ask the judge to mark the item, “Your
honor, I ask that this item be marked
as ‘Defense Exhibit A’.”
• Show the item to the opposing
counsel (which may object)
• Ask a witness to identify an item, “Mr.
Kowalski, I show you what has been
marked as ‘Defense Exhibit A’. Can
you please identify the item?”
Impeachment
An attorney may compare a witness’s
statement to a statement that the same
witness had already made. The attorney
may point out any contradictions.
The attorney does not
prove that one statement
is any more truthful than
the other, but they do put
the witnesses integrity
into question.
Jury Qualifications
and Selection
Qualifications
Juror qualifications vary from county to county, and
from district to district. Here are some common
rules followed in Michigan.
Qualification
To qualify as a juror a person shall:
A. Be a citizen of the United States, 18 years of age or
older, and a resident of the area.
B. Be able to communicate in the English language.
C. Be physically and mentally able to carry out the
functions of a juror.
D. Not have served as a juror in a court of
record during the past 12 months.
E. Not have been convicted of a felony.
F. A person more than 70 years of age may
claim exemption from jury service.
Job and School
A. Your employer must allow you time off to
serve on a jury. If you are harassed or fired,
contact the court or the judge.
B. You cannot be forced to work the second or
third shift if you have spent a full day as a juror.
C. High school students are exempt from service
during the school year.
Juror Fees
A. Michigan allows payment of $12.50 for a half
day and $25.00 for a full day on the first day of
service; and for each subsequent day of service,
$20 for a half day and $40 for a full day.
B. Michigan also allows mileage of 56.5 cents per
mile round trip for your jury service.
C. This payment may be deducted from your job salary if
your job continues to pay you during your service.
D. Many employers will continue to pay you as normal,
but require you to turn your jury check over to them.
Jury Selection
Questionnaires
A. If the judge allows it, and both sides agree, a
questionnaire can be given to prospective jurors either
by mail or in the courtroom. This helps to begin the jury
selection process.
B. Both sides review the juror questionnaires to begin
determining who should be selected for the jury.
Challenges
Both sides can challenge jurors in two ways…
1. Peremptory Challenges:
A. Each side has a limited number of these challenges.
When one is used, a juror is excused and the side
dismissing him or her gives no reason or cause. A judge
will usually approve these challenges.
B. A court may require peremptory challenges to alternate
between sides, or both sides may be required to give the
judge the number of one juror, and the jurors will be
dismissed two-at-a-time.
2. Challenges With Cause:
A. After reviewing questionnaires and asking relevant questions
of potential jurors, a juror may be challenged “with cause”.
B. If the judge agrees, the potential juror is dismissed. Each side
generally has an unlimited number of these challenges.
Discrimination:
Jurors may never be challenged
through discrimination. This
usually applies directly to race and
gender. If a judge believes this may
be occurring, they will not allow
the challenge.
Finalization:
A. The process of jury selection will continue until 12
jurors are chosen.
B. The judge may also exercise their own judgment in
order to come to the necessary number of jurors.
C. Alternate jurors (backups) may also be chosen and
required to hear the case.
D. Once the jury is chosen, it is “seated”.