The Trial Process

1
The Trial Process
2
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.

3
A trial means winning!

• 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.

4
Criminal vs. Civil TrialsA World Apart?

• 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.

5
Burdens of ProofCivil 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.

6
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.
• Proof beyond a reasonable doubt is far more than
  50 percent.
• On the other hand, proof by a preponderance of
  the evidencethe quantity required to win in a
  civil trialis 50 percent plus a feather.

7
Officers 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 prosecutors
  standard of proof beyond a reasonable doubt.

8
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.

9
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.

10
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.

11
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.

12
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.

13
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."

14
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.

15
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.

16
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
  cross-examinations.
• Ensuring that the trial proceeds efficiently and
  effectively.
• In most states in most instances, imposing
  sentence upon the defendant in a criminal case.

17
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.

18
The ProsecutingAttorneys Responsibility

• 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.

19
Some SpecificProsecutorial Considerations

• In deciding what evidence to use, the prosecutor
  will consider . . .
• 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.

20
The ProsecutorsBurden 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.

21
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.

22
A Case Law Definitionof 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)

23
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.

24
Specific Duties of theDefense Counsel

• 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.

25
Step-by-Step The Trial Process

• Opening Statement
• Case-in-Chief
• Direct Examination
• Cross Examination
• Judgment for Motion of Acquittal
• Closing Statements
• Prosecutions Rebuttal Statement

26
The Opening Statement

• 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.

27
The Case-in-Chief

• 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 case-in-chief,
  presenting witnesses and exhibits.
• The prosecution proceeds by direct examination
  with these witnesses and the witnesses are
  subject to cross-examination by the defense.
• After the prosecution has concluded its case, the
  defense will present its case-in-chief, with the
  prosecution cross-examining defense witnesses.

28
The Defenses 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.

29
What Is the Defenses 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.

30
Defense Strategies and Concerns

• In many cases, the defendant will present some
  evidenceeither 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.

31
Prosecutions 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.

32
Defenses 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
  case-in-chief, the prosecution rests its case.

33
Motion for Judgment of Acquittal

• The defense attorney, at this time, will ask the
  trial judge for a judgment of acquittala
  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.

34
Witness Requirements

• 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).

35
To Qualify as a Witness

• In order to qualify as a witness, a person
  must
• 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.

36
Direct Examination

• 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.

37
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?"

38
Cross-Examination

• After the direct examination is completed, the
  opposing side has the right to cross-examine the
  witness.
• The right of cross-examination is considered
  essential for the discovery of truth during a
  trial.

39
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).

40
The Attorneys Taskon Cross-Examination

• 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.

41
Redirect Examination

• 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.

42
Re-Cross- andSubsequent 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.

43
Objections

• 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.

44
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.

45
Interesting Facts About the Record

• 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..

46
Closing Arguments

• 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.

47
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.

48
Recording Specifics Concerns

• 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.

49
The Judges 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.

50
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.

51
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.

52
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.

53
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.

54
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.

55
Sentencing The Next Stepfor the Convicted
Defendant

• 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.