Judge or Jury Trial
The defense may have the choice to decide whether a case will be tried by a judge or jury, but in some jurisdictions, both the prosecution and the defense have the right to demand a jury trial. Juries consist of 12 persons for serious felony cases, but some states allow for as few as 6-person juries in less serious misdemeanor cases.
If you do not have one already, contact your prosecutor’s office to ask if they have a Victim Advocate, and if so, ask if you may meet with one. Stay in touch with your advocate throughout the process and ask for any resources that may be available.
If the trial will be held before a jury, the defense and prosecution select the jury through a question and answer process called “voir dire.” In federal courts and some state courts, the judge carries out this process using questions suggested by the attorneys as well as questions the judge comes up with on his or her own.
The defense and prosecution request the court, in advance of trial, to admit or exclude certain evidence. They may hold several hearings on these matters.
This phase is to determine the guilt or innocence of the defendant.
The prosecution and then the defense make opening statements to the judge or jury. These statements provide an outline of the case that each side expects to prove. This is called an opening statement because this is not the place for legal arguments, only statement of what the attorneys plan to present as evidence. In some cases, the defense attorney reserves the opening statement until the beginning of the defense case.
The prosecution presents its main case through direct examination of prosecution witnesses by the prosecutor. If you are the victim, the prosecutor will determine at what point your testimony will be most meaningful. It may be in the early or later stages of the case-in-chief, depending on other witness testimony. As a witness you will not be allowed to be in the courtroom until after you have testified and then only if you have been dismissed as a witness. This rarely happens. You, unlike the defendant, are not able to participate in or watch the trial proceed. You will likely only be in the courtroom during your testimony.
The defense may cross-examine the prosecution witnesses.
The prosecution may re-examine its witnesses.
The prosecution finishes presenting its case.
Motions to Dismiss
The defense may move to dismiss the charges if it thinks the prosecution has failed to produce enough evidence to support a guilty verdict.
Denial of Motion to Dismiss
Depending upon the evidence presented, the judge typically denies the defense motion to dismiss.
Possible End of Trial
If the defense chooses not to present any evidence, which happens on occasion, the trial will move to jury instructions.
The defense presents its main case through direct examination of defense witnesses.
The prosecutor cross-examines the defense witnesses.
The defense re-examines the defense witnesses.
The defense finishes presenting its case.
The prosecutor offers evidence to refute the defense case.
Settling on Jury Instructions
The prosecution and defense get together with the judge and craft a final set of instructions the judge will give the jury.
Defense Closing Argument
The defense makes its closing argument, summarizing the evidence as the defense sees it and explaining why the jury should render a not guilty verdict – or a guilty verdict on a lesser charge.
Prosecution Closing Argument
The prosecution makes its closing argument, summarizing the evidence as the prosecution sees it and explaining why the jury should render a guilty verdict.
The prosecution has the last word, if it chooses to do so, and again argues that the jury has credible evidence that supports a finding of guilty.
The judge instructs the jury about what law to apply to the case and how to carry out its duties. (Some judges “pre-instruct” juries, reciting instructions before closing argument or even at the outset of trial. This may help the jury focus on facts presented during the case-in- chief)
The jury deliberates and tries to reach a verdict. When defendants are charged with serious felonies, all jurors must agree on a verdict (the jury must be unanimous). Some states allow for non-unanimous verdicts (for example, if 10 out of 12 jurors agree on a verdict) in less serious misdemeanor cases. If less than the requisite number of jurors agrees on a verdict, a jury is “hung,” and a case may be retried.
There are times the jury will have questions during deliberations that they submit to the judge who may then pull in attorneys for each side. He may have the jury brought back in to the courtroom to ask the questions, and the judge will answer the questions in the presence of the defendant.
This phase is to determine the sentencing of the defendant if he has been found guilty. The prosecution will discuss prior criminal record if the defendant is a persistent felony offender (PFO). Evidence will be presented, and the jury will have to find that he is a PFO. If he is a PFO, meaning he has a certain number of prior felony convictions, then the sentence he is given will automatically be upgraded to the next higher sentence. For example, if he is convicted as a PFO, then a kidnapping charge with 10-20 years will be bumped up to 20-life.
Victim Testimony During Sentencing Phase
This is your moment to look the jury members in the eyes, share your story, and walk them through what life has been like for you. Make it clear that your future in in their hands, and that you desperately want your life back. The focus should not be what they are taking away from the defendant by sentencing him but what they are doing to your future with that sentence. Speak to them from your heart.
Victim Impact Statement
If you are permitted to write a victim impact statement, do so. Look at our section on how to write a meaningful impact statement. In many states, this will be read by the judge prior to sentencing and the parole board prior to any release on parole. This is your opportunity to make the biggest impact on your case and your future. Take advantage of it.
If the jury hands down a guilty verdict, the defense often makes post-trial motions requesting the judge to override the jury and either grant a new trial or acquit the defendant.
Denial of Post-Trial Motions
Almost always, the judge denies the defense post-trial motions.
Assuming a conviction (a verdict of guilty), the judge either sentences the defendant on the spot or sets sentencing for another day.
If the defendant is found guilty, there is almost always an appeal.