Preliminary Motions
Jury Selection
Opening Statements
Prosecution Case
Defense Case
Summation
Jury Charge
Jury Deliberations
Verdict
Introduction
Trials are what one of the first things
people think about when they think about criminal law. Trials are
what we see on TV shows. Trials are what we read about in the
news. The occasional drama of trials continues to capture the
public's imagination.
But the trial
process is a
mystery to most people.
What follows is a step-by-step
description of each of the major sections of a criminal trial and the
major issues at stake at each step.
Preliminary
Motions
Before a trial commences, there will
usually be some preliminary matters that require the judge's attention
even before they bring potential jurors into the courtroom. Sometimes,
these preliminary issues can be among the most critical issues of a
case, because they usually relate to issues of evidence that the judge
must decide. In some cases the attorneys will attempt to prevent
the other side from discussing a particularly damaging issue in front of
the jury.
One of the most common preliminary
issues is usually referred to as the "Sandoval" hearing. The
word Sandoval refers to a particular New York Court of Appeals case (People
v. Sandoval). The Sandoval hearing involves a review of the
defendant's criminal history (if any). The issue is how much (if any) of
the defendant's criminal history will the Prosecutor be allowed to ask
the defendant about in front of the jury, if the defendant testifies.
The potential rulings from the judge
can be anything from complete preclusion of discussion of the
defendant's prior criminal history all the way to complete discussion of
the facts, the conviction, and the amount of jail time served.
Not surprisingly, the Prosecutor
usually seeks to be able to use as much information as he can about the
defendant's prior criminal history. Also not surprisingly, the Defense
Attorney usually seeks to limit the Prosecutor as much as possible.
Many people, especially defendants,
believe it is unfair to permit evidence of prior criminal history before
the jury at an unrelated trial. The judge is required to instruct the
jury that evidence of prior criminal conduct is not to be used to
conclude that the defendant is somehow more likely to commit crime, but
instead to be used to help decide whether or not the defendant is the
kind of person who would likely tell the truth. The theory is that
there is some relationship between the commission of crime in general
and the ability to tell the truth.
Theory aside, the battle over use of
prior convictions is thought to be a critical one because nobody really
believes that juries pay any attention to the legal instructions on the
particular use of prior conviction evidence. Instead, most people
believe that evidence of prior criminal convictions is almost always
devastating to a defendant's case. One can usually even observe the body
language of jurors change upon hearing the news that the defendant has a
prior conviction. Most defense attorneys are extremely wary of
recommending that a defendant testify if evidence of any prior
criminal conduct will be permitted.
As a practical matter, judges usually
find a middle ground between the desire of the Prosecutor to have
unlimited freedom to cross-examine a defendant about prior criminal
history and the Defense Attorney's desire to have the defendant testify
without reference to his prior criminal history (if any).
A typical ruling might be that the
Prosecutor is allowed to ask whether or not the defendant had been
convicted of a felony in 1996. And assuming the defendant answers
truthfully, no further inquiry is permitted. Although apparently a
victory for the defense, the fact of the matter is that simply
mentioning a prior felony is believed by many to be enough of a bad
thing to keep most defendants off the stand.
Although there are
many reasons
defendants choose not to testify, being afraid of a jury's unfair
reaction to evidence of prior criminal history is certainly one of them.
Always keep in mind that no matter the
ruling of the judge, the defendant is never permitted to exaggerate or
imply that he has no record if in fact he does. If a defendant hedges
even slightly or affirmatively states that he has no record, all bets
are off and the Prosecutor has almost free reign.
Oddly enough, at least one group of
Queens jurors thought that defendants were permitted to lie
about their criminal history. In speaking with jurors after a case they
told a local lawyer that they thought any defendant could say he had no
record, regardless of the truth.
Sometime around the Sandoval hearing,
the defense attorney might actually be provided all of the police
reports in the case. The law does not require this until just before
opening statements, believe it or not, but as a matter of practice
judges usually ask that such discovery be turned over at this time.
It is not unheard of for defense
attorneys to be provided with a stack of the most critical police
documents in the case immediately before opening statements.
How can you adequately prepare a
defense without the police documents you ask? Good question. In New York
State, if you sue someone for $1000 you will have every pretrial
discovery device in the world available to you. But if your freedom is
at stake, you are entitled to NOTHING in New York until it is absurdly
too late to adequately do anything with it.
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Jury
Selection
After all preliminary issues are
decided the Judge will send for a "panel" of potential jurors.
In a felony case they will usually call for about 60 people selected at
random from the jury pool for that day. The Judge will send two Court
Officers over to Central Jury to round up the potential jurors and bring
them back to Court. Once all the jurors are assembled outside the
courtroom the Judge will ask that they be brought in all at once to the
Courtroom.
The moment when the jury arrives is
always a tense one for nearly everyone involved. It is the moment when
you realize that the trial is really going to happen. Many defendants
find this moment one of the most frightening moments (aside from the
verdict itself) of the trial. More than a few defendants change their
minds about going to trial at this moment.
After the potential jurors settle down
in the audience, the Judge usually introduces everyone (including the
defendant) by name, reads a list of potential witnesses, and reads at
least a summary of the charges if not the indictment itself. Any jurors
with any knowledge of the people involved or the case itself are
expected to speak up.
Judges often read a brief list of
"preliminary remarks" to jurors.
Then the Judge will ask the Clerk to select around 16 or so people to
sit in the actual jury box for questioning. Juror questioning is called
"voir dire"(pronounced vwar deer (or vore dire if you are from
the South)).
The Judge goes first, asking mostly
basic questions about marital status, children, occupation, and whether
or not the juror has ever been a victim of a crime.
After the Judge, the Prosecutor gets to
ask questions. Finally, the Defense Attorney gets his opportunity.
The questioning permitted is vastly
different from judge to judge. Some judges simply supply a time period
(say 15 minutes) and pretty much let you do what you want, while other
judges seem to find every type of question impermissible. Questions that
one judge may permit without a thought might draw abusive ridicule
directed at the attorney from another judge. Judges are permitted
extremely wide discretion when presiding over jury selection.
Once the attorneys are finished with a
"round" of questioning, they will usually approach with the
judge and make selections. The selection process is supposed to be
conducted in such a way that the jurors are unaware of who is
challenging who and why.
Each attorney gets a set number of
challenges for no reason called "peremptory challenges". The
number of these "no reason" challenges depends on the
seriousness of the case. A "B" Felony (like say, the sale of a
vial of crack) has 15 "no reason" challenges.
Each attorney has an unlimited number
of "for cause" challenges. A "for cause" challenge
is a challenge based on something the juror said or did that would make
that juror unfair as a matter of law. For example, if a juror said,
"If the defendant doesn't testify that means he is guilty as far as
I am concerned no matter what the law is." that would be a
"for cause" challenge because the juror is saying in essence
that he can't follow the law that says you can't hold choosing not to
testify against a defendant. The Judge must rule on challenges "for
cause."
After the first "round", the
jurors who were not selected are returned to Central Jury and the
process starts all over again until there are 12 jurors and however many
alternates the judge feels comfortable keeping.
The process of jury selection is often
grueling and boring for jurors. It usually takes at least two days to
pick a felony jury. Sometimes, depending on the judge and the case, it
can take longer. Almost everyone involved hates jury selection down to
Court Reporters who absolutely hate taking it down.
Nevertheless, it is obviously extremely
important. Any opportunity to speak to the people who are going to
decide the case is important, and the ability to help decide who is on
the jury is a wonderful thing.
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Opening
Statements
After the jury is selected the case
more formally begins. Each lawyer has the chance to make an opening
statement to the jury. An opening statement is a way to tell the jury
what you think the case is all about. The Prosecutor must make an
opening statement. The Defense Attorney is not required to make an
opening statement.
Years ago, oddly enough, it was common
for defense attorneys not to make opening statements. The theory was in
part that it wasn't a good idea to "commit" to a particular
defense before you are absolutely sure what the Government witnesses are
going to say.
The more modern approach, however, is
to take advantage of the incredible opportunity opening statements
offers to speak to the jurors, develop a relationship with the jurors,
and to tell the story that the jurors are longing to hear. Psychological
studies of juries have demonstrated that, despite all the legal
instructions they hear, jurors will often make up their minds based on
opening statements. Even if only one juror in twelve makes up his mind
on the opening, it would seem foolish to give up the opportunity to
convince that one juror.
Up until the openings, the jurors have
heard nothing but bad things about the defendant. They have had the
indictment read to them sometimes as many as three times. And here the
Prosecutor is talking for twenty minutes about how bad the defendant is
and how guilty he is. And then, at the dramatic moment when the defense
attorney is offered the chance finally to fight back, he stands and says
something pathetically weak like "defense waives opening." It
is a sickening prospect.
It is difficult to imagine how it could
have been commonplace not to take advantage of such a powerful
opportunity to communicate with the people who will decide the case. To
be sure every case is different, and every case must be handled slightly
differently. Perhaps there are circumstances when openings for the
defense ought to be waived. Nevertheless, those circumstances would seem
to be few and far between.
In theory, opening statements are
supposed to be confined to "what the evidence will show."
Argument is not permitted. The line between the two is sometimes
difficult to draw. Typically attorneys will attempt to push the limits
of permissible comments. You may hear judges complain to attorneys that
"This isn't a closing statement counselor."
The wonderful thing about opening
statements (and closing statements for that matter) is that it is the
attorney who gets to tell the story. Witnesses are not usually
accomplished public speakers or storytellers. Witnesses also tell only
bits and pieces of the whole story. Opening and closing statements
provide opportunities to demonstrate your skill as a storyteller. Very
rarely will anyone be able to tell the story as well as the attorney.
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Prosecution
Case
After opening statements, the
Prosecutor presents his case to the jury. The Prosecution must go
first because the Prosecution has the burden of proof.
A "Case" usually is made by
live witnesses who are called and personally testify in Court in front
of the jury. But a case also is made up of other kinds of
evidence. For example, the Prosecutor might attempt to introduce
the actual drugs sold in a drug sale case. What the Prosecutor
makes part of his case depends on what he must prove according to the
crime charged.
When the Prosecutor calls a witness, he
asks questions of the witness designed to get information before the
jury. This is called "direct examination". Direct
examination questions usually begin with "Who",
"What", "Where", or "When".
On direct examination, a lawyer is not
allowed to suggest an answer to the witness, because it is the witness
who is supposed to be testifying. Suggesting an answer to a
witness is called "leading the witness". For example, a
leading question would be, "Isn't it true you were in Miami on June
3?" A "direct" question would be "Where
were you on June 3?"
During a trial, you may hear a defense
attorney say something like "Objection! Leading." That
means that the defense attorney is asking the judge to tell the
Prosecutor to stop asking leading questions.
After the Prosecutor is finished asking
questions, the defense attorney is permitted a chance to cross-examine
the witness.
Cross-examination is an opportunity for
the defense attorney to challenge the testimony of the witness.
Because it is assumed that an opposing witness is "hostile",
attorneys are allowed to ask extremely focussed questions that suggest
an answer. "Isn't it true you were in Miami on June 3?"
is a classic cross-examination type question. Sometimes, in good
cross-examination, you may even hear what appear to be a series of
statements. For example, you may hear the same question without
the "Isn't it true" lead in. ("You were in Miami on June
3.") The witness then either answers yes or no.
During the questioning of witnesses you
may hear many objections by the lawyers. If the judge
"sustains" the objection, that means that the judge agrees
with the attorney who made the objection. If the judge
"overrules" the objection, that means the judge disagrees with
the attorney who made the objection.
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Defense
Case
After the Prosecution
"rests", the defense has the option of putting on its own
case. In some cases, the defense will choose not to call any
witnesses. The decision to call witnesses or introduce evidence
depends on the individual case. In the defense case, the defense
attorneys calls the witnesses and the Prosecutor gets to cross-examine
them.
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Closing
Arguments
After both sides have
"rested", each attorney has a chance to make a closing
argument. The defense goes first. The prosecution goes last.
In the closing argument an attorney is allowed a chance to suggest to
the jury what the case was all about and what the evidence proves (or
doesn't prove). Television and Movies would have you believe that
you can say just about anything in a closing argument. In times
past, that may have been closer to the truth than it is today.
These days, however, judges are more likely to limit an attorney's
closing argument. Nevertheless, closing argument offers an
opportunity for an attorney to be creative. Good closing arguments
can be quite dramatic and effective.
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Jury
Charge
After both sides have made their
closing arguments, the judge then explains the law to the jury,
reading what is called the "charge". The judge
"charges" the jury about general principles of law (like for
example, the beyond a reasonable doubt burden of proof) and the specific
law about the charges against the defendant.
Interested in reading some standard
jury charges in criminal cases for New York? Click on this link
to visit the Office of Court
Administration's list of standard jury charges.
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Jury Deliberations
Once the judge finishes reading the
jury instructions, the case is "given" to the jury who then
retire to deliberate.
Usually, any alternate jurors will now
be released. Some attorneys like to seek out the alternates and
ask their opinions of the case. The jurors are not required to
speak to anyone, but some will. Without having the benefit of
speaking with the other jurors, however, the alternates' views are not
always the same as the views of the actual jury. Nearly every
trial lawyer, it seems, has a few stories of alternates predicting one
verdict when the actual result was the opposite.
In New York State, jury verdicts must
be unanimous. In other words, all twelve people must agree to the
same verdict. If they don't agree, the case is "hung"
and must be retried in front of another jury. Different judges will
permit a jury to deliberate for different lengths of time.
Jurors in New York are no longer
sequestered (held together in a hotel overnight) in all cases if they
don't reach a verdict by the end of the day. Jurors are
sequestered in New York only in serious violent felony cases.
In many cases, the jury will send notes
to the judge requesting certain portions of the trial be read back by
the Court Reporter, or requesting that the judge reread portions of the
jury instructions.
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Verdict
This is the moment of truth. Once
the jury reaches its result, the foreperson sends a note to the judge
indicating that the jury reached a verdict. The jury is escorted
back into the Courtroom for the verdict. The tension of these
moments is indescribable.
Everyone is asked to rise and the Clerk
asks the foreperson whether there is a verdict. The foreperson
says "Yes" and the Clerk then proceeds down the indictment
asking for the verdict on each count. The foreperson says
"Guilty" or "Not Guilty" as the case may be.
If the verdict on any or all of the
counts is "guilty" the defense attorney will usually request
that the jury be "polled". "Polling" a jury
means that the clerk asks each individual juror to state affirmatively
that he or she agrees with each verdict. In theory it is a means
to make sure that the verdict is actually unanimous. Polling a
jury is something of a last-ditch effort. But rarely,
a juror may not be so sure about the verdict and say "NO".
After the verdict a judge will usually
thank the jury for service and have the Court personnel hand out
certificates of jury service to each.
If the defendant is found Not Guilty,
he walks out of the Courthouse. If the defendant is found Guilty,
the case is adjourned for sentence. In some cases, if there is
mandatory jail time, the defendant will be placed in jail immediately.
In less serious cases where the defendant has no other criminal history,
the defendant may be permitted to be out at least until sentence.
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