Format of a Criminal Trial*

Summary Table (read from left to right):

READING OF CHARGES	PROSECUTION'S OPENING STATEMENTS
DEFENSE'S OPENING STATEMENTS	BRIEF RECESS
PROSECUTION CASE IN CHIEF	(A) DIRECT EXAM
(B) CROSS EXAM	(C) REDIRECT
(D) RECROSS	THE STATE RESTS
MOTION FOR JUDGMENT	DEFENSE CASE IN CHIEF
THE DEFENSE RESTS	PROSECUTION REBUTTAL
DEFENSE REJOINDER	CLOSING ARGUMENTS
(A) PROSECUTORIAL SUMMATION	(B) DEFENSE SUMMATION
(C) PROSECUTION REBUTTAL	JURY INSTRUCTIONS
JURY DELIBERATION AND VERDICT	DISMISSAL OF JURY

(1) READING OF CHARGES
The reading of charges is a formality that is usually nothing more than reading the case from the docket. It becomes more than a formality in two situations: there has been some last-minute plea bargain on the charges; or the defendant has chosen a pro se defense (acting as their own attorney).
In the case of State v. Hypothetical Defendant, the following words actually start the trial:

Judge: Are counsel ready to proceed?
Prosecutor: Ready, Your Honor.
Defense: Ready, Your Honor.

(2) PROSECUTION'S OPENING STATEMENT
No arguments, evidence, or objections can be made at this stage. The purpose of opening remarks is to lay out the prosecution's case with enough of the hand showing so as to give the jury confidence that the People have an air-tight case, but without revealing any wild cards that the prosecutor might be holding. The prosecutor must appear confident without sounding pushy. Some typical remarks include:

Prosecutor: Good morning, ladies and gentlemen. Let me introduce myself. I'm ________, representing the People of _______ in this important case. My purpose this morning is to help you anticipate what you will hear over the next few days or weeks as you listen to the evidence. I simply want to give you an overview of the People's case against _______ and to thank you in advance for your patience and undivided attention. Your willingness to serve is a true reflection of your sense of civic duty and commitment to justice. Let me say right up front that the People are well aware of the burden of proof we bear in this case, and we are confident that by the end of the trial you will be able to see that we have more than met that burden. That is our promise to you. You will see from the reliable testimony and hard evidence presented that the defendant had the motive, the opportunity, and the means to commit the crime. In addition, we have firmly established the identity of the criminal offender to be that of the defendant in this case through circumstantial evidence. Now, you will repeatedly hear the defense say that the State's case rests on circumstantial evidence, implying that the absence of an eyewitness merits an acquittal. Please don't be taken in by this tactic. Eyewitnesses are not required by law, and in fact, the case would not have gotten this far if there was an eyewitness. If there was an eyewitness, this would be such a slam-dunk case that the defendant would probably enter a guilty plea and get on with serving his time. Guilty verdicts can and should be reached on circumstantial evidence, and I trust you, the Jury, will do your job as many other juries have done before you with exactly this kind of evidence and see that there is no other choice but to find the defendant guilty on all counts.

(3) DEFENSE'S OPENING STATEMENT
Again, no arguments, evidence, or objections can be made at this point. In fact, the defense has the option of waiving an opening statement altogether (almost never a good idea). The purpose of defense remarks should be limited to taking the sting out of the charges, sharing the grief and pain of the victims (to take the sympathy vote away from the prosecution), and presenting a defense theory of the incident. Some typical remarks go like this:

Defense: Ladies and gentlemen, we have been brought together today because a tragedy has occurred. An innocent, unsuspecting individual was the victim of a senseless act that was undeserved. You or I could just as easily have been involved in the situation leading up to the events that brought us here today. But there is a second tragedy in this case. My client, an outstanding member of this community, who has attended our school system, contributed to our economy, raised a family, attended church...stands here today before you wrongfully accused of these crimes. Try to imagine, if you will, what it feels like to be falsely accused of the kinds of things the prosecution wants us to consider. How would you react? What the prosecution has failed to tell you is that there is no real evidence linking my client to the scene of the crime. Certainly, there were ill feelings between my client and the unfortunate victim in this case, but that is and should not be convincing to you or any other group of reasonable people. Ladies and gentlemen, we cannot bring the poor, unfortunate victim back to tell you what happened. My client would, if he only could, to have the truth exposed. Nor should we depend on the kinds of unreliable testimony and shoddy police work you will see exposed in the State's case. Please keep asking yourself the hard questions, and remember there's always another side to every story. As you listen to the prosecution's case, remind yourself that they will not tell you the whole story. It's not their job to do that. They have invested too much of the State's resources already in the misdirected investigation and charging of my client, and it's too late for them to admit they're wrong. My client will be the first to admit he's far from being a perfect person, but haven't every one of us gotten mad at someone sometime. Ladies and gentlemen, promise me you'll listen to the whole story, and prevent another tragedy from occuring--the wrongful conviction of an innocent person.

#4 BRIEF RECESS
At the end of opening statements, you can expect to see a brief recess. These will occur throughout the trial just when things seem to be heating up a bit. The break here is for counsel to catch their breaths, line up their witnesses, and get ready for the fight.

Judge: Ladies and gentlemen, we'll take a brief recess.

#5 PROSECUTION CASE-IN-CHIEF
(A) DIRECT EXAM
(B) CROSS EXAM
(C) REDIRECT
(D( RECROSS
The case-in-chief represents the State's main case against the defendant. The witness box becomes the center of attention as it's time to hear the evidence. Once the court reconvenes, the process goes like this:
Judge: Are the People ready to proceed?
Prosecutor: We are, Your Honor.
Judge: Very well. You may call your first witness.
In direct examination (Part A), the prosecutor is not allowed to ask any leading questions, that is, anything which might suggest an answer (unless, the witness is called as a "hostile" witness). The purpose of direct exam is to ask simple background questions to help introduce each witness, and to allow each witness to testify what he or she knows, seen, heard, tasted, touched, or came to from one of their senses. What witnesses are expected to say has, of course, been determined beforehand by depositions, and although no one has "coached" the witnesses on how to say something, it is often the case that witnesses and the prosecution have rehearsed the form of questions and answers that will take place. The script, or sequence, of witnesses is more important, and usually consists of the following order:
#1 - Witnesses who can testify to events leading up to the crime.
#2 - Witnesses who can tell how and when the crime was discovered.
#3 - Witnesses who can testify as to the defendant's whereabouts.
#4 - Police officers and investigators who collected physical evidence.
#5 - Criminalists, Medical Examiners, and Lab experts.
#6 - Background witnesses on the defendant.
#7 - Witnesses who can speak to the motive and possible means.
#8 - Witnesses who can speak to defendant's behavior during arrest.

In cross examination (Part B), leading questions are allowed for the reason that a prosecution witness might not be inclined to respond favorably to a lawyer from the other side. Although objections could have been raised during the direct examination, it is entirely possible that the first objections in the trial will come from the prosecution who objects to the way the other side is handling one of their witnesses. Defense attorneys will usually try to impeach, or discredit, the prosecution's witnesses in one way or another through close observation of the witness during direct exam. These observations will consist of looking for the following things to probe for:
a - the witness' demeanor--nervousness, defensiveness.
b - the character of the testimony--is it something they would know.
c - the extent of their ability to perceive or recollect.
d - the opportunity they had to perceive and register the event.
e - their character for honesty.
f - the existence of any bias, interest, or other motive.
g - previous inconsistency--with other cases, in their deposition.
h - accuracy--if they would contradict themselves given other facts.
i - attitude toward the case--if they want the defendant found guilty.

In redirect, the prosecution will try to rehabilitate the credibility of their witness or restore the weight of the testimony given. It is important to understand that with redirect (as with recross which follows) that both sides cannot keep going over old territory. They must confine the purpose of redirect and recross to new or surprising issues that came out in cross exam. Likewise, recross must be confined to new issues that came out during redirect. This follow-up process of direct-cross-redirect-recross is repeated with the defense's case-in-chief.

#6 THE PROSECUTION RESTS
At this stage, the prosecution returns to its desk, and before sitting down, says:
Prosecutor: Your Honor, the People rest.

#7 MOTION FOR JUDGMENT
It is just standard practice for the defense to move for an immediate dismissal at this point. Whether it's called motion for summary judgment or some other name, it is just to give the impression that the State lacks sufficient evidence. The defense knows full well it will be denied, but it also reinforces the idea that the defense did some damage during cross examination.

#8 DEFENSE CASE-IN-CHIEF
In direct examination (part A), the defense must decide (after a brief recess) if they are going to stick to their alibi defense (usually the best bet) or consider another theory (perhaps a mitigated, lesser offense). The biggest gamble of all is to begin with the defendant testifying on their own behalf. Constitutionally, the defendant doesn't have to, but the reality often is the defendant talked to police or investigators during arrest or interrogation. Putting your client on the stand right away would probably only be a good strategy if there was no communication with police, and previous cross-examination made a shambles out of the State's witnesses. Instead, the usual strategy is to line-up your defense witnesses as follows:
#1 - Witnesses who can attack police handling of the evidence.
#2 - Expert witnesses who can counter the prosecution's evidence.
#3 - Witnesses who can make the defendant look good.
#4 - Witnesses who can shed light on alternative theories.

One can expect lots of vigorous objections by the prosecution to this line-up of witnesses. It is, after all, solely intended to raise reasonable doubt. First, the defense shifts the spotlight from the defendant to the shoddy police work involved. Former police officers from out-of-state are usually brought in to walk the jury through how the police should have done things. Experts in criminalistics (crime scene reconstruction) are then allowed to razzle-dazzle the jury with computer animations of how it could have happened. At this point, the trial has become a battle of the experts: scientific experts, medical experts, almost every kind imaginable are called in to shatter the prosecution's experts. Finally, you call in buddies of the defendant, friends who can give good character evidence. The defense has also probably done its own investigation, and is able to produce average citizens from around town who can testify as to unknown, suspicious figures they saw lurking in the shadows (but not resembling the defendant) at the time of the crime. All the above casts serious doubt.

#9 THE DEFENSE RESTS
The defense attorney approaches their desk, and says:
Defense: Your Honor, the Defense rests.

#10 PROSECUTORIAL REBUTTAL
This stage is reserved for any last-minute witnesses, or surprise witnesses who came forward during the course of the trial. If the prosecution is lucky, maybe an eyewitness will turn up. Sometimes, the prosecution will be holding back, and use this stage for scientific evidence, like DNA or something novel, like a new scientific technique. Generally, something new will not be brought in unless a foundation was laid for it, or at least the suggestion of it, earlier in the trial. Of course, previous witnesses can be recalled at this stage simply for the reason that the prosecution wants the jury to hear the good stuff again. These would be witnesses that the defense never subjected to vigorous cross-exam because their testimony was very influential.

#11 DEFENSE REJOINDER
This stage is likewise reserved for last-minute, or surprise, witnesses. Additional experts, or a meta-expert, may be called to make sense of all the expert testimony. Generally, someone prestigious is withheld until last. Of course, previous witnesses may be called to reinforce something in the jury's mind. A trend is to try and get "hypotheticals" admitted, not the kind that involve questioning, but what is done in European courts where a distant expert testifies on the record by mail, fax, or other form of electronic communication.

#12 CLOSING ARGUMENTS
(A) PROSECUTORIAL SUMMATION
(B) DEFENSE SUMMATION
(C) PROSECUTORIAL REBUTTAL
These stages are not speeches, but high-level argumentations. The purpose is to come up with sound bites that stick in the jury's mind when they go out to deliberate. Courtroom dramatics are also not out of order at this stage. Attorneys will play back sound recordings, or ask that certain segments of the court transcript be read outloud. Emotional appeals will be made about the victims and their crying out for justice. All the circumstantial evidence will be made to look like it points to the defendant and no one else. All the expert testimony will be characterized as the kind of evidence any reasonable person would be able to understand. Alternatives theories will be discredited as simply strategies and tactics that unscrupulous lawyers on the other side are using to win their case at all costs. Closing arguments can get pretty vicious. Some samples are as follows:

Prosecutor: Ladies and gentlemen. From the words out of the mouths of our witnesses to the trail of blood pointing straight to the defendant, the evidence is overwhelming. Beyond any reasonable doubt, the defendant is absolutely 100% guilty as charged. In the interest of justice, in the interests of the poor, innocent victims of this terrible madness, the People of this State ask you to find the defendant guilty on all counts.
Defense: Ladies and gentlemen. The State has proved nothing. Absolutely nothing. Their handling of this case has been a miscarriage of justice. No doubt, the judge will remind you of the burden of reasonable doubt. This is not a civil trial. We require extremely higher levels of proof. Surely, you must have doubts. Is our client capable of these despicable crimes? You have heard the testimony of many who regard ______ as an outstanding citizen and friend. What possible motive could our client have had? Secondly, the State's case is built around physical evidence which has been shown by the experts to be inconclusive. If the experts can't agree, what chance have you or I got? The circumstantial evidence is susceptible to two different interpretations, one pointing to guilt, and another pointing to innocence. By law, if reasonable, you must adopt that interpretation which points to innocence, and reject any misguided interpretations which point to guilt. You must vote your conscience, even if this means failing to reach a verdict. Ladies and gentlemen, it would take all day to list the holes we poked in the State's case, but we don't want your vote simply because the State fouled up in their handling of this case. Nor do we want your vote because you feel sorry for our client who has been wrongfully accused. We want your vote because he/she is absolutely 100% innocent. The time has come for you to decide, and the choice may not be a difficult as you might think. If you are not 100% sure that he/she did it, you must return a verdict of not guilty.
Prosecutor: Ladies and gentlemen. Don't fall for the oldest trick in the book. The only miscarriage of justice going on here is the defense's convoluted tactics to get you fantasizing about innocence in this case. The facts clearly and consistently point the finger of guilt at the defendant. The time has come for you to honor your commitments to civic duty and justice. We appreciate your patience in this case, and I'm sure it gives us no great pleasure to render a verdict of guilty, but you have no other choice when you look at the facts. And that, ladies and gentlemen, is what you must do. I submit to you that we kept our promise. You have more than enough evidence to convict. If any part of it, a small scientific tidbit, for example, is not to your liking, then feel free to disregard it. There is plenty of other uncontested evidence which would lead reasonable people to a conclusion that the one and only possible verdict in this case is guilty.

#13 JURY INSTRUCTIONS
These can be complicated, but the jury is allowed to take a copy into the jury room. Juries are instructed to listen closely, however, because they must follow the law as outlined by the judge, who reads the tailor-made instructions for each case to the jury. Juries must follow the law, even if they don't agree with it (sometimes called jury nullification). In some situations, the judge may also read the shotgun, or Allen, charge which happens when the jury is deadlocked, and the judge orders the holdouts to go with the majority or that another jury is not going to be any more skilled. Other types of instructions are designed for special instances. Here's a sample instruction for a case with a variety of evidence:
Judge: Ladies and gentlemen of the jury. You must base your decision on the facts and the law. A fact is something provided directly or circumstantially by the evidence or by stipulation. A stipulation is an agreement between attorneys regarding the facts. Second, you must apply the law as I state it to you. If anything concerning the law said by the attorneys during the trial conflicts with my instructions, you must follow my instructions. You must not be influenced by pity, prejudice, bias, sentiment, conjecture, passion, or public opinion. Both the People and the defendant have a right to expect that you will conscientiously consider and weigh the evidence, apply the law, and reach a just verdict regardless of the consequences. Do not consider for any purpose any evidence that was rejected or stricken by the court; treat it as though you never heard it. Both direct and circumstantial evidence must be given the same weight. Neither is entitled to greater weight than the other. Intent may be shown by the act which was done. Motive is not necessary to prove in this case. Discrepancies in a witness' testimony or between their's and other's does not necessarily mean that the witness should be discredited. You are bound to weigh conflicting testimony as you see fit. Likewise with expert testimony, which is only opinion based on knowledge beyond that of the average layman. Problems in the chain of custody also go to the weight of the evidence as you see fit. Any conflict in the character evidence is for you, the jury, to resolve, however, you may infer good character where there has been no offer of bad character. Behavior at the time of arrest, such as attempting to flee, may be taken into consideration by you as presumptive of guilt. And finally, you must in no way draw any inference from the fact that the defendant did not testify on his/her own behalf. Here are the statutory definitions in our penal code ________.

#14 JURY DELIBERATION AND VERDICT
The first thing usually done is to elect a foreperson, or someone with natural leadership ability will come to the forefront. If the foreperson is wise, there will not be an early vote. Instead, there will be discussion on how to deliberate. Chances are that the jury will polarize along two sides: guilty and innocent, with spokespersons for each side trying to convice the others. The jury will rehash facts and issues from the trial, and there will be inevitable problems with how to fill our the verdict forms. A compromise verdict will usually be reached representing the group's consensus which merges the facts in the case with options available on the verdict form.

Dr. Connor's Criminal Justice Megalinks