How A Trial Works

A trial is a court proceeding that occurs in a criminal case where the State is required to prove the guilt of an accused to either a judge or to a jury. A trial before a judge is called a non-jury, or bench, trial. A trial before a jury is called (appropriately enough) a jury trial.

In all misdemeanor and non-capital felonies, there are 6 jurors, with usually 1 or 2 alternates. In a capital felony case (1st degree murder) there are 12 jurors. A trial occurs after extensive discovery has been done. This typically means that the criminal defense attorney has reviewed all reports and exhibits, has taken depositions (if applicable), and performed their own investigation. This process takes time, usually requiring the defense to take a continuance, or voluntary delay, from the pretrial proceedings.

A trial occurs when neither side is willing to negotiate a plea. If the accused is innocent, then a plea should only be accepted if it is in the accused's best interest in light of the evidence. The trial begins when the jury panel is sworn in. Then, the Court, the State, and the defense will have an opportunity to select jurors from the panel. This process is crucial as this selection process determines who will sit in judgment of the facts of the case.

After 6 or 12 jurors are selected (and alternates), each side presents their opening statements. This is not argument but a roadmap, more or less, as to what the case is about and what the evidence will (or will not) show. The State goes first because they carry the burden of proof. Their evidence must prove the accused guilty beyond a reasonable doubt. Evidence comes in the form of exhibits, such as photos, documents, and physical evidence, as well as in the form of testimony. The defense gets an opportunity to cross-examine every State witness. A good cross-examination will expose inconsistencies, weaknesses, and doubts regarding the State's case.

At the close of the State's case, the defense makes a motion (request to the Court) for a judgment of acquittal. This means that if the State failed to prove the most basic elements of the charged offense(s), the Judge can reduce or even dismiss the charge or charges. The case can end here if a judgment of acquittal (JOA) is granted.

After the State has rested, the defense can put on its own evidence if they should choose to do so. The defense never has to prove innocence, but they may put on evidence to help their case or to prove an affirmative defense, such as self-defense. The accused can testify if they wish but they do not have to. An accused person choosing not to testify cannot be used against them as an admission of guilt.

At the close of the defense's case the State may offer rebuttal evidence if they choose. After rebuttal, the defense moves for a second JOA. If a reasonable jury could not convict based on the State's evidence, the Judge must dismiss the case.

If the second JOA is denied (they usually are), each side gives its closing argument. This is when the real bravado of lawyering comes out. This is when the attorneys get to argue their cases to the jury, explaning what the evidence showed or what it did now show. Personally, this is my favorite part. This is the showmanship aspect of criminal defense work. The State gets first close and rebuttal close, which means they speak first and speak last. The defense gets sandwiched in between.

After closings, the Judge instructs the jury on the law and then sends them out to deliberate. A jury can take as long as it needs to reach a verdict, or decide that it cannot reach a verdict (mistrial). A jury can return a verdict of guilty on all or some counts, guilty of lesser-included offenses on some or all counts, or not guilty on some or all counts. If the accused is found not guilty of all charges, the case is over and the accused can never be tried again for the same offense (double jeopardy). If the accused is found guilty of some or all offenses, or found guilty of lesser-included offenses for some or all charges, the accused will be given a sentencing date. They may be taken into custody.