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May 2, 2021 Criminal Law


By:  Michael Saul, Attorney

          Jury trials are exciting.  The key to success is preparation.  The attorney needs to know the facts, and he/she needs to be prepared for the testimony of each witness.  However, knowing the facts is only part of the preparation.  The attorney also needs to know how the facts relate to the law, and what persuasive arguments to present for a juror’s consideration. The attorney should think about the case driving to work, or anytime when he/she is relaxed. Ideas will pop to mind, however since they are easily forgotten they should be written down.    

          A jury trial is divided into parts. It starts with the Judge introducing the parties.  The order usually goes as follows, but it might be slightly different depending on the judge or jurisdiction:  voir dire, opening statements, the prosecutor’s witnesses, the defense witnesses if the defense chooses to use witnesses, jury charge conference, closing argument, jury instructions to jury and then verdict.  Here is a brief discussion of each part. 

  1. Introduction by Judge: Usually the attorneys and the parties are sitting at their tables in the courtroom.  The prosecution normally sits closest to the jury box but not always.  The Judge then introduces the parties and their attorneys or some Judges have the attorneys introduce their clients.  Again, every Judge does it a little differently.
  2. Voir Dire: This is jury selection.  The attorneys and/or the Judge may ask questions of a potential juror individually or to the group of potential jurors.  The purpose of voir dire is to determine if a juror has a bias in favor or against one of the parties.  The attorneys after evaluating the potential jurors “strike” the ones that they do not want.  The attorneys do not pick the jurors they want.  They get rid of the jurors they do not want.    The jurors that remain are the ones that become the jury to determine the verdict.  In a criminal case, the defense usually is allowed more “strikes” of potential jurors than the prosecution.  The law limits the number of strikes.
  3. Opening statements: The prosecution makes their opening statement first, and then the defense makes their opening.  Neither side is required to make an opening statement but it is an opportunity for the attorneys to speak to the jury and outline the facts.  It is very rare for an attorney not to make an opening statement.  An opening statement is not argument or opinion.  Argument to the jury is at the end of the trial.  An opening statement tells the jury the facts of the case.  It is best to make it a story so that the jury can follow along easily.
  4. Witnesses: The prosecution goes first and calls witnesses to testify.  They go first because they have the burden of proof and the prosecution must prove their case beyond a reasonable doubt.  When a party calls a witness to testify the attorney that called the witness asks direct questions to that witness.  Direct questions normally are more open ended.  That is because, presumably, a witness that is called by one side or the other knows what that side is looking for.  The side that did not ask the witness to testify can cross-examine the witness.  In cross-examination the attorney can ask leading questions.  A leading question is one that suggests the answer.  A direct question in a traffic accident case could be “what color was the light”?  A question on cross-examination might be “the light was red?”.    
  5. Directed Verdict: Once the prosecution “rests” or completes its case the defense normally will ask for a directed verdict.  This is a request for the Judge to rule that the prosecution failed to prove its case to such an extent that the Judge should direct a judgment of acquittal.  Sometimes the defense asks for the directed verdict because failing to do so makes an appeal on certain issues more difficult.  If the Judge decides that a jury should determine an issue or fact then the directed verdict request will be denied. 
  6. Jury charge conference: This is when the attorneys and the Judge discuss the law and what instructions and law are appropriate for the Judge to read to the jury.
  7. Closing argument: In closing argument normally the prosecution speaks first, then the defense and then the prosecution can have rebuttal. When the prosecution speaks first they usually just hit the highlights on the law and the facts and then after they hear the defense’s argument they attack it during rebuttal.
  8. Judge reads law/instructions to the jury.
  9. Jury verdict: The defense and the prosecution wait for the verdict.  The Judge wants the attorneys and the parties to stay easily available in the event the jury has a question or they return a verdict. If the verdict is guilty the Judge can “poll” the jury and ask each juror if the verdict rendered was their verdict.
  10. Trial’s end: If the defendant is acquitted everyone is excused.  If the defendant is found guilty the defendant will be sentenced immediately or at a later date.

The above is a basic outline of a jury trial.  Remember that every judge and jurisdiction will probably do things a little different.