A criminal trial is the ultimate test in the criminal justice system. It’s a battle between two sides. The government, with all its might, is represented by the District Attorney’s office. You, the defendant, are represented by your attorney. The trial is full of drama and anxiety. Your freedom is at stake. The government has the burden to prove each and every element of the charge against you beyond a reasonable doubt. A juror must be convinced to a “moral certainty” that you committed the crime. It’s a complicated process with many important steps. Let’s look at them.
Stages of a Criminal Trial
- Judge or Jury
The first decision you must make when taking your case to trial is whether to have a judge or a jury decide your fate. You have the right to have your case tried to a jury. In Massachusetts, seven people are chosen for the jury, with one person being an alternate. Ultimately, six people will decide your case. The members of the jury pool are chosen randomly from the community where the trial is held. We and an Assistant District Attorney help choose the seven people that will be seated as jurors.
Each person in the jury pool completes a one-page questionnaire. The information on the questionnaire includes biographical information such as his or her name; address; place of employment; and the same for his or her spouse, if any. This information is important because we want to see if that person knows anyone involved in the case. Also, you want to see if the person works for any type of law enforcement agency. This type of job may be an indication that they are bias in favor of the police or prosecution.
When I am trying a case, the most important information I look for is if that person has had any dealing with the law. Potential jurors are asked if they have ever been the victim of a crime; been arrested; or been a witness. These questions are critical in discovering if the person has any bias against a criminal defendant. For instance, if the person has been the victim of a crime, it is likely they will look at you in a negative light. If a person has been arrested, they may understand more fully that an arrest is not the same thing as being guilty. We would want to get more information on these and many more issues when choosing jurors.
We and the prosecution may challenge potential jurors as to their competency to sit on the jury. Each side has two peremptory challenges. That means that they can exclude two people without having to state a reason. Each side also has unlimited challenges “for cause”. That is to say, there is some basis for excluding the person. In that case, we would make an argument to the judge that the person cannot be fair and impartial in your case. If the judge agrees, that person is excused.
Although you have a right to a jury trial, you may waive that right and have a trial with a judge sitting alone as the fact finder. These are called bench trials. There are certain cases where this is preferable. Cases that involve highly emotional testimony are sometimes better presented to a judge rather than a member of the community. Cases where the outcome hinges on the interpretation of the law are often better presented to a judge rather than a jury.
We will have a good idea as to what the proposed evidence will be at your trial. Typically, there are things that may be presented as evidence that will help you and other things that will hurt you. We will request that the Court rule on which potential pieces of evidence will be admissible and which ones won’t. This is done by using Motions in Limine. The Judge will listen to each side and decide whether to allow that piece of evidence to come in.
Anything that puts you in a negative light should try to be excluded at trial. Common reasons for excluding such evidence is that its probative value (its ability to help a factfinder decide your guilt or innocence) is substantially outweighed by its prejudicial value (placing you in a negative light). For example, if you’re being tried with Operating a Motor Vehicle Under the Influence of Liquor, the fact that you’re behind on child support should not be admissible. That fact has no probative value (whether you drove drunk). But it is highly prejudicial (makes you look bad) and may cause a juror or judge to dislike you.
- Opening Statements
Opening statements are the first opportunity to formally address the jury. The Government goes first. Opening statements are often compared to a roadmap. Lawyers will use them to illustrate to the jury or judge what the case is about, and what the expected evidence is. We have have the option of delivering an opening statement immediately after the prosecution; at the beginning of the defense case; or, may waive opening statements altogether.
A persuasive opening statement goes beyond the roadmap analogy. An effective opening statement tells a story. It should not be limited to just what the facts will show. It should touch the fact finder in an emotional way, especially if tried before a jury. We want the jury to get to know you as a person, not a defendant. It’s our first time to present our side of the facts. It is absolutely critical.
- Prosecution’s Case in Chief
Now is the time for the prosecution to present its evidence. They will call their first witness. The Assistant District Attorney will ask questions of this witness. This is called direct examination. The questions cannot be leading questions. In other words, the words in the question cannot suggest the answer. For example, the ADA cannot ask his or her own witness, “you saw this defendant slap the victim, didn’t you?” We would object because the question as leading and therefore, improper.
When the prosecutor has asked all of his or her questions, we will have the chance to cross-examine the witness. Whether or not we choose to cross-examine the witness is a question of strategy. Not all witnesses should be cross-examined. Sometimes it’s better for you if no further questions are asked of a particular witness. Mistakes can be made by asking too many questions. Sometimes it gives the witness a chance to repeat the original testimony making it more memorable to the fact finder. A poorly worded question on cross can give the witness a chance to explain or expound on earlier testimony.
If we cross-examine a witness, we will only use leading questions. This helps limit the ability of the witness to add unwanted details. One fact per question is the rule of thumb. Each question on cross should elicit one fact that is helpful to us. Generally, cross-examination should take less time than direct examination.
After cross-examination, the Government has the opportunity for re-direct examination. Re-direct examination is generally limited to clarify testimony given on cross-examination or to address issues raised on cross-examination not previously discussed on direct. After re-direct examination we have the chance for re-cross examination with the same sort of limitations regarding issues raised on re-direct.
- Prosecution Rests
When the prosecution has called all their witnesses and entered all their evidence, they rest. That just means they are finished presenting their case, at least for now.
- Required Finding of Not Guilty
After the Commonwealth rests their case, we will file a Motion for a Required Finding of Not Guilty. We are saying to the Court that the Commonwealth has not met its burden of proof beyond a reasonable doubt. Or in the words of the Rule, “the evidence is insufficient as a matter of law to sustain a conviction on the charge”. We’re asking the judge to take the decision away from the jury and find you not guilty.
Generally, we don’t win Motions for a Required Finding of Not Guilty. But sometimes we do at least in part. For instance, I recently had a trial where the client was charged with assault and battery with a dangerous weapon, the dangerous weapon being a shoe. No evidence was presented that my client was wearing a shoe when he allegedly kicked the victim. After arguing the Motion, the judge agreed, and the charge was dropped from a felony to a simple Assault and Battery, a misdemeanor. (We eventually got a not guilty on all counts)
- Defense’s Case in Chief
After the prosecution rests, it’s our chance to put on a case, if we choose to do so. Keep in mind, the defense is never required to present evidence. It’s the prosecution’s burden to prove their case beyond a reasonable doubt. That burden of proof never shifts to us.
If we are going to put on a case, we must do so in the same manner as the prosecution. We’ll ask questions of the witnesses on direct examination. We cannot use leading questions, as we did on cross. The prosecution will then have the chance to cross-examine our witness if they so choose. Re-direct and re-cross examination is also allowed. We may also put items into evidence such as photographs, documents, etc.
- Defense Rests
Once we are done presenting evidence, the defense rests.
- Required Finding of Not Guilty II
We once again file a Motion for a Required Finding of Not Guilty. This is the same process as we did after the prosecution rests. Even if our Motions are unsuccessful, we have preserved our right to appeal if you are found guilty.
- Closing Argument
Now it’s time to wrap up our case. The defense gives its closing argument first. Since the prosecution has the burden of proof, they are given the advantage of addressing the jury first and last. During closing arguments each side gets the chance to highlight facts that are favorable to its position. It is one last chance to sway the jury to our side.
- Jury Instructions
After closing arguments, we and the Commonwealth confer with the judge to decide what the instructions to the jury will be. In Massachusetts, there are standard jury instructions. But each case is unique. Deciding which instructions will be given is crucial. The judge will read these instructions to the jury just before releasing them to deliberate.
Prior to deliberation in a criminal trial, one of the seven jurors is chosen as an alternate. He or she will not participate in the final verdict with the other six. A foreperson is also chosen at that time. The foreperson does not have any more authority than the other five jurors. But it is his or her job to complete the verdict slip when a decision has been made and to communicate with the court officer. The jury now has the case and they will deliberate. That simply means that they will discuss the evidence and decide if you are guilty or not guilty. There is nothing more for us to do but wait.
There is no time limit on how long the jury can deliberate. Sometimes the jury will have a question. If so, the foreperson will write the question down on a piece of paper and have the court officer bring it to the judge. The judge will call both sides into the courtroom and discuss what the question is and how best to answer it.
A verdict is when the jury announces its decision, guilty or not guilty. Oftentimes, criminal cases have more than one count. That means that you have been charged with more than one criminal offense. The jury must decide your guilt or innocence on each of the crimes charged. It is not unusual for a defendant to be found guilty on some charges and not guilty on other charges.
If the verdict is not guilty, the trial is over. You are free to go. If you are found guilty, there is one more step.
If you are found guilty, the next question is how you will be punished. The judge is the one who will sentence you. A sentence can be anything from probation to actual jail time. We and the prosecution will argue to the judge as to what the sentence should be. The judge will consider many things when making this decision. Major factors to be considered are your criminal record; your standing in the community; and, victim input.
A criminal trial is a complex undertaking. It is stressful and downright scary for you. Your very freedom hangs on the outcome. Whether it’s a judge or a jury trial, the government has to prove each and every element against you beyond a reasonable doubt. You have the right to confront your accusers. That means we can cross examine anyone who testifies against you. You can testify in your own defense, but you can’t be forced to do so. That’s your Fifth Amendment right against self-incrimination. Most cases don’t go to trial. Those that do, are because a reasonable agreement couldn’t be reached with the Commonwealth. You should know your rights and find an experienced criminal trial attorney.