Though many people choose to plead guilty or settle before trial, anyone is within their right to take their disagreement to trial.  After voir dire, the trial begins.  Each step of the trial process is part of a rigorous system driven by a single purpose – to protect the rights of citizens by resolving disputes fairly.

(c) Sam Fentress, Courtesy of HOK

The Trial

• 1. Opening Statements

  Every trial proceeds in basically the same way.   Both parties are seated in the courtroom.  In a criminal trial, this includes the prosecuting attorney for the government, as well as the defendant and their defense attorney.  In civil cases, both the plaintiff and defendant, and their respective attorneys, if any, need to be present.

  The attorneys will begin by making their opening statements.  The attorneys use this time to give the jury an overview of the case they intend to present.  They are just statements, however, and cannot be considered as evidence by the jury.  The side bringing the case is the side that bears the burden of proof, and thus always goes first.  This is the prosecuting attorney in a criminal case, or the plaintiff in a civil case.  The defense then follows with their opening statement.

  As the trial moves forward, the prosecutor or plaintiff presents their case, but the defense has an opportunity to respond.  This process of two sides going back and forth, is the heart of our trial procedure, and is based on an adversarial system.

• 2. Presenting the Prosecution/Plaintiff’s Evidence

  Opening statements are followed by the case-in-chief.  The prosecutor or plaintiff’s attorney again goes first.  They present evidence in the form of physical evidence or documents and also the testimony of witnesses.  A witness is someone who has personal knowledge of a situation that may be helpful to the jury in deciding the outcome of the case.  This personal knowledge is shared with the judge and jury through a series of questions between the witness and the plaintiff’s attorney or prosecutor.  This is called direct examination.

  Once the direct examination is finished, the defendant’s attorney gets an opportunity to question the witness.  This is called cross examination.  When the cross examination is complete, the judge may allow the plaintiff to ask more questions in response to things mentioned during cross examination.  This is called re-direct examination.

  Once the prosecutor or plaintiff has presented all their evidence and witness testimony, and the defendant has had a chance to cross examine, the prosecution or plaintiff then rests their case.

• 3. Presenting the Defense’s Evidence

  The defendant then presents their evidence and witnesses in the same fashion; by direct examination.  The plaintiff or prosecution is allowed to cross-examine, and the defendant gets to ask further questions on re-direct.

  In a federal criminal case, because the burden of proof is always on the prosecution, the defendant never has the burden of doing anything.  This means that the defendant does not have to present any evidence whatsoever.  Additionally, the defendant has a constitutional right to remain silent in order to prevent self-incrimination when testifying.  If the defendant doesn’t think the prosecution has proven the case, they may chose not to take the witness stand or to present any further evidence.

  On the other hand, in civil cases, it is almost always in the defendant’s best interest to disprove the claims of the plaintiff.  Therefore, the defendant will usually testify in a civil trial.  Sometimes, the plaintiff calls the defendant as a witness.  When this happens, the defendant is called a hostile witness.

• Evidence
• Objections

• Evidence is used by the parties to prove or disprove unresolved issues in the case.  There are rules in place to govern how evidence is collected, what evidence can be admitted in the case, and how the judge and jury may consider evidence to render a decision.

  If you watch television programs that depict the legal process, you may incorrectly think that physical evidence is the most common type.  Actually, the most common type of evidence is provided by witness testimony.  Often witness testimony may be the only evidence presented.  It’s up to the jury, or the judge in a bench trial, to decide the true facts from what is said by each party and each witness.

  • Eyewitness testimony – The testimony of someone who observed the actual event taking place.
  • Witness testimony – Testimony of a person who has personal knowledge of relevant information.  Because this witness is not an eyewitness, inferences will need to be made by the jury or judge based on the testimony.
  • Expert witness testimony – Testimony of a person who is qualified to help the jury or judge understand specialized details of the case.  Expert witnesses are asked to express their professional opinion during the trial.
  • Physical evidence – Physical objects and documents can be used by either side to prove or disprove issues.  An example would be DNA, fingerprints, or a photograph.

  All witnesses must swear or affirm that their testimony will be truthful.  If a witness makes false claims while under oath, they can be charged with perjury, which is itself a crime.

• If you’ve watched a fictional trial on television, you’ve probably heard a character scream “I object!”  Objections do happen in the courtroom, though they are usually less dramatic.  During testimony, the opposing party can formally object if the questioning is not following the rules of evidence.  Unlike on television, the attorney making the objection has to state a legal reason for interrupting the testimony.  There are many kinds of standard objections.   The following are examples:

  • Hearsay – Even if a witness didn’t directly observe the event in question, they still may only testify from their own personal knowledge.  Discussing something that was said by another person is called hearsay, and is prohibited.
  • Irrelevant – Witness testimony must be related to the issue or event in question.  Off-topic testimony is not allowed.

  Ruling on objections.  Because it’s the job of judges to interpret and apply the law, they rule on each objection.  If the objection is sustained, the attorney must stop that line of questioning and move on to the next question.  If the objection is overruled, the attorney can continue with the question.  All objections and rulings are recorded in the official record of the trial by the court reporter.

• 4. Closing Arguments

  Once the attorneys for both sides have presented their evidence, they each will give closing arguments.  This is their opportunity to summarize for the jury, and draw attention to the facts that support their side.  The closing arguments are not evidence. The plaintiff or prosecutor goes first, followed by the defendant.

• 5. The Jury’s Verdict

  After closing arguments, the judge will give final jury instructions to the jury

  The judge will instruct the jury to select a foreperson who will act as their organizer and spokesperson.  The judge will give them a verdict form to complete, and they will then retire to the deliberation room to decide upon their verdict.  All deliberations of the jury are private and confidential, and do not become part of the official court record.

  Once the jury has reached a verdict, the foreperson alerts the court it has done so.  This may take one hour, one day, or one week; there is no time limit or deadline.  In federal court, all jury verdicts must be unanimous.  All parties are called back to the courtroom and the foreperson or the clerk officially announces the verdict in open court.  A criminal verdict can only be guilty or not guilty on each of the charges.   When defendants are found not guilty, they are free to go and can’t be tried again for the same crime.  This is called protection from Double Jeopardy, found in the 5^th Amendment.  If the defendant is found guilty, the punishment is to be decided by the judge, at a later date.

  A civil verdict can be much more complicated, and may include whether or not the defendant’s actions or lack of actions caused injury to the plaintiff, and, if so, then the amount of compensation or penalty the plaintiff has to pay.