JURY SELECTION AND TRIAL
A jury trial has many parts, beginning with the selection of the jurors. Below is a description of the phases of the jury trial, followed by common questions and answers regarding the jury trial process.
- STAGES OF A JURY TRIAL
- JURY SELECTION
Jury selection is the first stage of a jury trial. The court will send out notices to people in the community ordering them to appear for jury duty. For trial, they will call in the number of jurors they believe is necessary to seat a jury. In misdemeanor cases, the number of jurors who will ultimately decide the case is six. For felony cases, that number is twelve. The court has to call in significantly more people than that, however, because some jurors will be released based on challenges from the attorneys.
- Timing of Jury Selection. In some courts, the jury selection process happens on the same day as the rest of the trial, or at the beginning of a multi-day trial. In other courts, the jury selection is held for multiple cases on the same day, and then the jurors chosen for each trial are ordered to come back on a different day for the trial. This type of system is more common in misdemeanor cases.
- Instructions. The jury selection process begins with the judge explaining the process to the jurors who have been called in to the court, and giving them some initial instructions. The judge also has the jurors take an oath to tell the truth when they are asked questions by the judge and the lawyers during jury selection.
- Jurors are randomly selected. After some initial instructions, jurors will be randomly selected out of the large group, and placed in a smaller group that will actually sit through the trial. Generally, that smaller group will be the number of jurors required (six for a misdemeanor, twelve for a felony), plus one or two extra jurors who will serve as alternates in case of an emergency or illness of a juror during the trial.
- Voir Dire. Then, the lawyers are given the opportunity to ask questions of the jurors, to learn about who they are, and whether they have any particular life experiences or beliefs that might make it difficult to be fair to one side or another in the case. This questioning is referred to as “voir dire.” The prosecutor begins asking questions first, and then the defense attorney is permitted to ask questions. Occasionally, there are courts that do not allow the attorneys to questions the jurors, and rather the judge asks questions, including some that have been submitted to the judge in writing prior to the start of jury selection. Attorney-conducted voir dire is preferred, if permitted by the judge.
- Juror challenges. After the jurors are questioned by the attorneys and/or the judge, the attorneys may ask that certain jurors be removed from the panel. This may be done in two different ways. First, the attorney can make a challenge for cause. A challenge for cause is used when during the voir dire, one of the jurors made a statement about their history, relationships or beliefs that indicate that they would be unable to be fair to either the defendant or the prosecutor. There is no limit to the number of challenges for cause that can be made. Second, the attorney can make a peremptory challenge. A peremptory challenge requires the judge to excuse the juror without requiring the attorney to give any reason for their request. There are a limited number of peremptory challenges in each case. In misdemeanor cases, the defendant and the prosecutor each get five peremptory challenges. In felony cases that are punishable by less than life in prison, the defendant and prosecutor each get seven peremptory challenges. In felony cases where the punishment is up to life in prison, the defendant and prosecutor each get twelve peremptory challenges. If there are multiple defendants being tried at one time, the number of challenges permitted each defendant is reduced.
- New jurors replace the excused jurors. After one of the jurors has been excused, either for cause or with a peremptory challenge, they will be replaced with another juror from the larger pool. Then, the attorneys and/or the judge will ask questions of the new juror(s). This will continue until there are no more challenges for cause, and both sides are either satisfied with the jury or out of peremptory challenges.
- The jury is selected. When both sides have either decided that they do not want to exercise any more peremptory challenges, have used up all of their peremptory challenges, and there are no more challenges for cause, then the jury will have been selected.
- The judge has the jury take an oath. After the jury is selected, the judge will have the jury take an oath. The judge will also give the jury a few other instructions. Then, the trial will begin.
- OPENING STATEMENT
The opening statement in a criminal case is a verbal statement made by the attorneys to the jury that describes what the attorneys expect the evidence during the trial will show the jury. The prosecutor will give their opening statement first. Then, the defense attorney will give their opening statement. A good opening statement by a defense attorney will do a good job of telling their client’s story to the jurors.
During the instructions to the jurors, the judge will tell the jury that the defense attorney is not required to give the opening statement at this time. They could wait, and give their opening statement after the prosecutor has put on their witnesses and evidence. While this is permitted, it is rarely good strategy. It is important to tell your side of the story as early on in the case as possible.
- THE PROSECUTOR’S CASE
After opening statements have been given by the prosecutor and the defense attorney, the prosecutor will begin their presentation of the evidence by calling witnesses. The prosecutor can choose the order in which they call their witnesses. The first thing the witness will do when called to the stand is take an oath, swearing to tell the truth under penalty of perjury.
- Direct examination
When the prosecutor calls a witness to the stand, the prosecutor will have the first opportunity to ask the witness questions. The prosecutor is required to ask open-ended, non-leading questions, such that the witness will be giving the narrative of the story.
- Cross examination
After the prosecutor has finished questioning the witness, the defense attorney then has the opportunity to ask the witness questions. This is done in the form of cross-examination, which should mostly consist of leading questions. These are generally statements that are made that the witness is asked to agree or disagree with. The narrative of the story during cross examination is coming from the defense attorney, rather than the witness.
- Redirect and Recross
After the defense attorney has completed their cross-examination, the prosecutor will be given the opportunity to ask the witness additional questions based on issues that were addressed on cross-examination by the defense attorney. This is called redirect. Sometimes, after the prosecutor has completed their redirect, the judge will allow the defense attorney to ask questions again, called recross. Some judges only allow one round of redirect, and no recross. Some judges allow several rounds of redirect and recross. It is within the judge’s discretion to allow or disallow additional rounds of questioning.
- MOTION FOR A DIRECTED VERDICT
After the prosecutor has called all of their witnesses, they will rest their case. At this point, the defense attorney, before taking their turn at calling witnesses, may ask for the jury to be excused so that they can ask the judge to consider directing a verdict in the case at this point. This means that the defense attorney is requesting that the judge find the defendant not guilty because the evidence put on by the prosecutor is so lacking that no reasonable jury could use that evidence to find the defendant guilty. The judge can direct a verdict of not guilty, but cannot direct a verdict of guilty.
Motions for a directed verdict are rarely granted. Whether or not to bring a motion for a directed verdict is a matter of strategy, and will be decided by the defense attorney after the prosecutor has finished with all of their witnesses. Sometimes a motion for directed verdict will not be made. If there are multiple crimes charged, the judge can grant a directed verdict on some counts and not others. If a directed verdict is granted on all of the crimes charged, then the trial would end here.
- THE DEFENSE CASE
After the prosecutor has finished presenting their witnesses, and sometimes after the defense attorney makes a motion for a directed verdict, it will be the defense turn to put witnesses on the stand. The defense is not required to put on any witnesses if they don’t want to, or they can put on a number of witnesses, including the defendant.
- Direct examination
When the defense attorney calls the witness to the stand, the defense attorney will have the first opportunity to ask the witness questions. The defense attorney is required to ask open-ended, non-leading questions, such that the witness will be giving the narrative of the story. The exception to this is if the defense attorney decides to call a witness who is generally adverse to the defendant, such as the police officer. In that event, the defense attorney will be able to cross-examine a witness that they call.
- Cross examination
After the defense attorney has finished questioning the witness, the prosecutor then has the opportunity to ask the witness questions. This is done in the form of cross-examination, which should mostly consist of leading questions. These are generally statements that are made that the witness is asked to agree or disagree with. The narrative of the story during cross examination is coming from the prosecutor, rather than the witness. Just as with the prosecutor’s witnesses, the judge has discretion to allow as many rounds of redirect or recross as he or she wants to once the prosecutor has completed their questioning on cross examination.
- Defendant testimony
This is the point in the trial where the defendant must decide if they will testify in front of the jury. The defendant cannot be forced to testify, like all of the other witnesses can be. If you are going to testify, it is important that you extensively prepare for that testimony with your defense attorney.
After the defense has completed their presentation of witnesses and evidence, the prosecutor will have one more turn to present witnesses. These are called rebuttal witnesses. The testimony of rebuttal witnesses must be for the purpose of rebutting, or disputing, some of the testimony presented by a defense witness. The prosecutor can’t simply reassert the testimony of witnesses from their case, or bring up new areas that weren’t addressed by the defense witnesses. Rebuttal witnesses will have a direct examination by the prosecutor, and be cross examined by the defense attorney using the same procedure described for earlier witnesses.
The prosecutor could choose not to present any rebuttal witnesses. There is no requirement that they do so. It is not uncommon for no rebuttal witnesses to be presented.
- CLOSING ARGUMENT
After the prosecutor has presented their rebuttal witnesses, or decided not to present any rebuttal witnesses, the parties will be given the opportunity to give a closing argument. This is a verbal statement to the jury summarizing the evidence, and making arguments to the jury about what the evidence means regarding guilt or innocence.
The prosecutor will be first to give their closing argument to the jury. Then, the defense attorney will give their closing argument. Following the defense attorney’s closing argument, the prosecutor will get the last word in the form of a rebuttal closing argument. This is because the prosecutor has the burden of proof in the case, to prove the case beyond a reasonable doubt.
- JURY INSTRUCTIONS
After closing arguments conclude, the judge will give the jury a long set of instructions that address how the jury will deliberate, the elements of the offense of the crime charged, and any other specific instructions that are applicable in the case.
These jury instructions will have been agreed or ruled upon by the judge ahead of time.
After the instructions are given to the jurors, they are sent back to the jury room for deliberations, or to discuss and think about what verdict they will give in the case. Their first task during deliberations will be to choose a foreperson, or a leader of their group. Then, they will go on to deliberate about what verdict they will find in the case.
Once the jurors have completed deliberations and decided on a verdict, they will let the court’s bailiff know that they are done, and the jurors will be brought back into the courtroom along with the judge, the prosecutor, the defense attorney, and the defendant. At that time, the verdict will be read out loud.
What should I wear to trial?
It is important that you appear professional at trial. For men, you should wear a suit and tie, or at a minimum, dress slacks, collared shirt, and a tie. For women, dress slacks, a skirt, or a dress is appropriate. You should not wear jeans, low-cut shirts, short skirts, shorts, or flip-flops.
Men should also give thought to their facial hair and haircut. You should appear neat and clean. If you have facial hair, you should make sure that it is short and well-groomed. Women should also appear neat and clean, but should be careful not to wear overstated makeup. For everyone, tattoos should be covered to the extent possible.
What is my role during the trial?
You will be sitting at a table with your defense attorney during the trial. You should be prepared to pay attention to what is happening during the trial, but not react to it. You have to be careful to not get excited or make faces when a witness says something that you disagree with. You should avoid shaking your head or nodding. If there is something about what the witness has said that requires you to tell something to your attorney, you should write it down on a notepad, and your attorney will read it when they have an opportunity. It is important that your lawyer is able to hear everything a witness says during the trial, so you should not interrupt them during the testimony to tell them something. When there is a break in the testimony, your lawyer can look at your notes, and ask any questions or for additional input.
It is possible that you may testify at the trial. If this is the case, you need to try to remain as calm as possible, and remember the preparation that you did before trial with your lawyer. It is not your role when testifying to advocate for yourself. It is to tell your story by answering the questions of the lawyers truthfully.
Your lawyer will look to you for input at different times during the trial, and you should give them honest answers and feedback. However, part of your role at this point is to trust the lawyer that you chose to defend you to successfully tell your story to jurors.
How can I best prepare for trial?
Going through a jury trial can be the most difficult time you ever experience in your life. The stress can be overwhelming at times. One of the best things that you can do leading up to the trial to prepare yourself is to take care of yourself physically and mentally. Leading up to the trial, you should focus yourself on eating right, exercising, and doing positive activities that provide you with stress relief. If you are in a bad place mentally when you reach trial, your testimony and your ability to give positive input to your attorney will be significantly impaired.
What happens if the jurors can’t agree on a verdict?
The jury’s verdict must be unanimous. This means that everyone on the jury must agree that you are either guilty or not guilty. If the jurors cannot agree, they will generally send a note to the judge that will indicate that they cannot agree. The judge will then bring the jurors into the courtroom to read them an instruction that essentially tells them to go back to the jury room and try harder to reach a verdict. If the jurors continue their deliberations, and still cannot reach a verdict, they will let the court know. The judge can continue to read the instruction telling the jurors to try harder to reach a verdict, but at some point, if the jury still cannot agree, the judge will declare a mistrial. If a mistrial is declared, a new trial will be scheduled, and the process will start over again with a new jury.
What will happen if I am found not guilty?
If you are found not guilty, you will be free to leave. The judge will enter an order of acquittal, and your bond, if you posted a cash bond, will be returned to you.