The Trial Process
What is a trial?
Search for the truth?
 To bring the competing sides to a peaceful
conclusion and do justice?
 Society's last ditch effort against the violent
chaos that would result if individuals tried to
settle disputes themselves?
Regardless of which definition of purpose is
used, the American justice system is set up as
an adversarial system.

A trial means winning!
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Both sides are fighting
to win.
Winning means
convincing the jury or
a judge to believe one
side's evidence rather
than the other side's.
Criminal vs. Civil Trials
A World Apart?

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Although there are vast differences between
criminal and civil trials, there is very little
difference between the rules of evidence
applicable in a criminal case and those in a civil
matter.
Perhaps the most marked difference is the amount
of proof necessary.
In a criminal case, the prosecution must present
enough evidence to convince the jury of the guilt
of the defendant beyond a reasonable doubt.
Burdens of Proof:
Civil vs. Criminal
In a criminal case, the prosecution must
present enough evidence to convince the
jury of the guilt of the defendant beyond a
reasonable doubt.
 In a civil trial, only a preponderance of the
evidence must be presented on the part of
one side or the other to receive a favorable
judgment.

What are the actual differences?

Proof beyond a reasonable doubt is not proof
beyond all doubt, but it is the highest level, or
quantity, of proof that American law demands in
any case.

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Proof beyond a reasonable doubt is far more than 50
percent.
On the other hand, proof by a preponderance of
the evidence—the quantity required to win in a
civil trial—is 50 percent plus a feather.
Officer’s Duty to Satisfy the
Criminal Burden of Proof

The law enforcement
officer must help to gather
and prepare the evidence
for trial to ensure that the
prosecutor can present
enough evidence to fill in
the gap between the
police officer's standard of
probable cause and the
prosecutor’s standard of
proof beyond a reasonable
doubt.
Jury Trial vs. Bench Trial
A criminal trial may be conducted in one of
two ways. It may be what is known as a
"jury trial" or it may be a "court trial,"
which is a trial by a judge without a jury
(also known as a "bench trial").
 A trial before a judge alone is conducted in
much the same manner as a trial before a
jury.
 The structure of the trial is the same and the
same rules of evidence apply.

A Constitutional Guarantee!
The Sixth Amendment to the Constitution of
the United States, as well as provisions in
the constitutions of the fifty states,
guarantees to a defendant in a criminal trial
the right to be tried by an impartial jury.
 For many years those provisions were
interpreted to mean that the defendant must
have a jury trial.

The Jury:
A Historical Perspective
The common law rule and the rule in most
states in the United States calls for a jury in a
criminal case consisting of 12 persons.
 In the early history of Europe, many of the
inquisitory councils, also referred to as
"juries," often consisted of a number ranging
from four to 66 persons. By the thirteenth
century, 12 was the usual number of an
inquisitory council.

The Jury:
A Historical Perspective: Part II
By the fourteenth century, the requirement
of 12 persons had become more or less
fixed.
 Thereafter this number seemed to develop a
somewhat superstitious reverence.

Juries in the New World

When the colonists
came to America,
juries in England were
composed of 12
persons. It was only
natural that juries in
this country should
also consist of 12
persons.
Juries and the Bill of Rights

The Sixth Amendment to the United States
Constitution prescribes no set number for a
jury. All the Amendment states is: "In all
criminal prosecutions, the accused shall
enjoy the right of a speedy and public trial,
by an impartial jury."
Qualifications of Jurors

A person is qualified to act as a juror if the person
is—
 (1) a citizen of the United States;
 (2) a resident of the state;
 (3) at least 18 years of age;
 (4) of sound mind;
 (5) in possession of the person's natural
faculties; and
 (6) able to read or speak the English language.
The Judge:
In Charge of the Courtroom

The judge's principal
responsibility is to see
that the defendant in a
criminal case gets a
fair trial.
Duties of the Judge

Deciding what law applies to the case.

Interpreting the law of the case for the jury.
Deciding what evidence is admissible and what is not.
Ruling on objections made by the attorneys.
Determining the qualification of witnesses.
Protecting witnesses from overzealous crossexaminations.
Ensuring that the trial proceeds efficiently and
effectively.
In most states in most instances, imposing sentence
upon the defendant in a criminal case.
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Contempt of Court: “Holding the
Keys to Your Jail Cell”

Contempt is the power of the
court to punish persons for
failure to obey court orders or
to coerce them into obeying
court orders.
 A person held in civil
contempt is said to "hold
the keys to the jail cell in
his or her pocket." If the
person complies with the
court order, he or she will
be released from custody.
The Prosecuting
Attorney’s Responsibility

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Prosecutors must decide which
criminal charges should be
prosecuted and which should be
dismissed in the interests of
justice.
The prosecutor has broad power
to decide whether or not to
pursue any given case. The
public has a right to demand that
the prosecutor use that power
wisely and impartially.
Some Specific
Prosecutorial Considerations

In deciding what evidence to use, the prosecutor
will consider . . .
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past experience with the particular charge involved;
knowledge of the personality of the judge who will be
hearing the case;
the potential dramatics of the situation as the trial
progresses;
an obligation to disclose, to the defense attorney, any
evidence that could be used to aid the defense.
The Prosecutor’s
Burden of Proof
The United States Supreme Court has held
that the Constitution makes it the
responsibility of the prosecutor to prove
every element of a charged offense beyond
a "reasonable doubt."
 The Court has also held that the
"Constitution does not require any particular
form of words be used" in instructing the
jury on the definition of reasonable doubt.

What Is Reasonable Doubt?

In practical terms, the
Court has approved a
definition that indicates
that reasonable doubt is a
doubt based upon reason;
that which would make a
reasonable person hesitate
to act in connection with
important affairs of life.
A Case Law Definition
of Reasonable Doubt

It is not a mere possible doubt; because
everything relating to human affairs is open to
some possible or imaginary doubt. It is that
state of the case which, after the entire
comparison and consideration of all the
evidence, leaves the minds of the jurors in that
condition that they cannot say they feel an
abiding conviction of the truth of the charge.

Victor v. Nebraska, 511 U.S. 1 (1994)
The Role of the Defense Attorney

Defense counsel's
primary function is to
make certain that all
the rights of the
accused are properly
protected.
Specific Duties of the
Defense Counsel
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Conduct pre-trial investigation and discovery and
otherwise prepare for trial.
Advise the accused concerning statements that he
or she may or may not make.
Cross-examine the prosecution witnesses and
present any defense necessary under the
circumstances.
Assure that the defendant receives a fair trial.
Zealously represent the accused.
Step-by-Step: The Trial Process
Opening Statement
 Case-in-Chief
 Direct Examination
 Cross Examination
 Judgment for Motion of Acquittal
 Closing Statements
 Prosecution’s Rebuttal Statement

The Opening Statement

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After the charge has been read to the jury, the trial
proper begins with the prosecution's opening
statement.
The opening statement is a summary of how the
prosecution expects its evidence to prove the
defendant guilty beyond a reasonable doubt.
 An opening statement is often given in the form
of a story, but it is a story in which the attorney
promises to support the narrative with positive
proof.
The Case-in-Chief

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The case-in-chief is that portion of the case consisting of
the main evidence of either the prosecution or defense. The
prosecution has the burden of going forward with its casein-chief, presenting witnesses and exhibits.
The prosecution proceeds by direct examination with these
witnesses and the witnesses are subject to crossexamination by the defense.
After the prosecution has concluded its case, the defense
will present its case-in-chief, with the prosecution crossexamining defense witnesses.
The Defense’s Opening Statement
After the prosecution rests, the defense will
give an opening statement, if the attorney
did not do so after the prosecution's
opening statement.
 Then the defense will present its side of the
case in an effort to raise a reasonable
doubt.

What Is the Defense’s Burden?

Because of the presumption of innocence,
the defendant does not have to present any
evidence at all, for the burden of proving the
defendant guilty rests entirely on the
shoulders of the prosecution, without any
help from the accused.
Defense Strategies and Concerns
In many cases, the defendant will present
some evidence—either alibi, character,
justification, or excuse evidence.
 The defendant may testify and deny guilt or
support some affirmative defense, such as
alibi, self-defense, or insanity.

 An
affirmative defense is a reason under the
law that allows a defendant to claim to be
exonerated, one that the defendant must
affirmatively claim and prove.
Prosecution’s Rebuttal

Upon completion of the presentation of all
the evidence on behalf of the defendant,
the prosecution has the right to call
additional witnesses or to present new
evidence only to overcome new matters
brought out during the defendant's case.
Defense’s Prima Facie Case
The prosecution must establish:
 The jurisdiction of the court.
 The corpus delicti of the specific offense
charged
 The facts that could lead a reasonable juror
to believe that the accused is the responsible
person.
After the conclusion of the prosecution's casein-chief, the prosecution rests its case.

Motion for Judgment of Acquittal

The defense attorney, at this time, will ask
the trial judge for a judgment of acquittal—
a judicial decision on whether the
prosecution has satisfied its burden during
the presentation of its case-in-chief. If the
motion for judgment of acquittal is granted,
the case is over.
Witness Requirements
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Before the witness takes the seat to testify, an oath is
administered to the witness by the judge, bailiff, or some
other officer of the court.
The oath consists of words to this effect:
 "I do solemnly swear (or affirm) to tell the truth and
nothing but the truth, so help me God" (the reference to
God being deleted in the case of a person wishing to
affirm, rather than swear).
To Qualify as a Witness
 In order to qualify as a witness, a person must—
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be able to understand what it means to tell the truth so
that they can take the oath (or affirm) that they will do
so;
possess personal knowledge of some perceived relevant
facts about the case;
be able to remember those facts; and
be able to communicate them.
All other matters relating to being a witness, under
modern law, go to the weight of the witness's testimony,
not the witness's qualification.
Direct Examination
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The questioning of a witness by the side who calls
the witness is known as direct examination.
Direct examination usually begins by asking the
witness his or her name, address, and occupation.
Even though this information may be well known
to all in the courtroom, it is necessary for the court
record of the case.
After these preliminary background questions are
completed, the general questioning of the witness
concerning the specific facts of the case begins.
The Scope of Direct Examination

During the direct examination,
whether it be by the
prosecution or the defense, the
attorney must form the
question in such a manner that
the desired answer is not
indicated.
 An example of a leading
question is: "The defendant
had a gun in his hand,
didn't he?"
Cross-Examination

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After the direct
examination is
completed, the
opposing side has the
right to cross-examine
the witness.
The right of crossexamination is
considered essential
for the discovery of
truth during a trial.
Dicta on Cross Examination

As one highly regarded
evidence scholar has put it:
Cross examination "is the
greatest legal engine ever
invented for the discovery of
the truth."

5 J. Wigmore, Evidence § 1367
(3d ed. 1940), as cited in
California v. Green, 399 U.S.
149, 157 (1970).
The Attorney’s Task
on Cross-Examination
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First, the cross-examiner may hope to shake the
witness's story and thereby cause the jury to give
the testimony less weight.
Second, the cross-examiner may try to show that
the witness is prejudiced and consequently may
have testified incorrectly or untruthfully.
Third, the cross-examiner may try to show that the
witness has made prior, inconsistent statements
and thus should not be believed by the jury. In any
event, cross-examination is frequently a trying
experience for the witness involved.
Redirect Examination
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Upon conclusion of cross-examination by the
opposing attorney, the direct examiner may further
question the witness in order to rebut or clarify
matters raised during cross-examination.
This further questioning is known as redirect
examination and is only for the limited purpose of
rebuttal or clarification of information brought out
during cross-examination.
New matters are not allowed to be brought out for
the first time on redirect examination.
Re-Cross- and
Subsequent Examinations

After a redirect examination has been conducted, the judge
may give permission to the opposing attorney to ask
questions limited to further clarification of statements
made by the witness during the redirect examination.
This questioning is referred to as re-cross-examination.
Likewise, after re-cross examination, and thereafter, in
rotation, the opposing attorneys may, at the court's
discretion, be permitted further questioning.
 None of these further steps is necessarily required and
any questioning past redirect examination is purely
within the discretion of the trial judge.
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Objections
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During the questioning of any witness, including
the direct examination of the prosecution's
witnesses, the opposing attorney will interject
evidentiary objections.
These objections may be based on any one of a
number of grounds, according to the law. Some
common grounds are:
 leading, irrelevant, hearsay, calls for opinion, or
speculation. Objections may be well-founded
or they may be made principally for effect.
Rulings on Objections

The judge will either sustain the objection
or overrule it. If the objection is sustained,
or upheld, the witness must not answer the
question. If the judge overrules, or denies,
the objection, the witness may answer the
question asked.
Interesting Facts About the
Record
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Historically, the usual method of recording was
through a court reporter, a person specially trained
and equipped to take down verbatim the official
record of the proceedings in a court.
Today, of course, recording may be done
mechanically, utilizing sophisticated audio and
video equipment.
Regardless of the way in which the proceedings
are preserved, the fact that a record is made affects
the manner in which people act in the courtroom..
Closing Arguments
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After both sides have presented their cases, the
prosecutor and defense attorney may make
closing, or final, arguments to the jury.
These arguments, unlike opening statements
(where the attorneys present a roadmap of the
case), are the opportunity for the lawyers to
summarize the case in an overt attempt to
persuade the jury to their view of the evidence.
Attorneys are allowed to appeal to the jury
based on any inferences that may rationally be
drawn from the evidence.
Trials of Record

All felony trials and most
other criminal trials today
are trials of record. This
means that the proceedings
are recorded verbatim to
preserve a record for
appeal, in order to preserve
the rights of the accused in
the event of a conviction.
Recording Specifics & Concerns
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Bearing in mind the need to make the record, all
communication in court must be audible.
Gestures, ambiguous sounds, or inaudible responses
cannot be recorded effectively by a court reporter and
may be misleading even if mechanically recorded.
Only one person may speak at a time, and people
cannot speak so rapidly as to make it difficult to be
understood.
In short, the participants in a trial must remain
consciously aware that what they are saying and doing
must satisfy the requirements for making the record.
The Judge’s Instructions or
Charges to the Jury

When the attorneys for both
sides have finished their
closing arguments, the
judge will read the
instructions to the jury.
Sometimes, the judge
instructs the jury before
closing arguments. In rarer
instances, the judge may
even instruct the jury at the
beginning of the trial.
What Are Instructions or
Charges?
Jury instructions consist of an
interpretation of the substantive and
procedural law that applies to the case.
 The purpose of these instructions is to assist
and guide the jury in its review of the
evidence in order that it may arrive at a
verdict.

The Jury Begins Its Job!
After the judge has instructed the jury, the
jury will retire to the jury room. There the
jury will weigh the evidence presented
during trial in light of the judge's
instructions and attempt to arrive at a
verdict.
 This review of the evidence is referred to
as jury deliberation.

Sequestering of the Jury

To prevent the possibility of any outside
influence affecting the jury's verdict, the
jury's deliberative process is secret and
remains so.
 In
some extremely sensitive cases, the trial
court may decide to sequester a jury, or keep it
together and away from the public for the entire
trial. One of the most famous such instances is
the trial of O.J. Simpson.
Outcomes From the Deliberation

Hung Jury
 If
the jurisdiction requires a unanimous verdict
and the jury cannot reach one, the result is known
as a hung jury.
 When a jury is hung, the judge must declare a
mistrial and discharge the jury.
 If there is to be a retrial, it must be before an
entirely new jury.
Jury Outcomes

Guilty
 If
the jury's verdict is guilty, the defendant must
be sentenced.

Acquittal
 If
the defendant is acquitted, he or she is
immediately released from custody and may not
be tried again on the same charge, because of
the Double Jeopardy Clause of the Fifth
Amendment to the Constitution of the United
States.
Sentencing: The Next Step
for the Convicted Defendant
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Sentencing procedure varies widely among the
states and between the states and the federal
government.
In most states and the federal system, the judge
imposes sentence and the judge's sentencing
options are dictated by sentencing guidelines for
particular crimes.
If prescribed sentencing guidelines do not exist,
the judge has some discretion as to the sentence
within statutory limits and alternatives.
In some states, the jury imposes sentence.