occasionally the defendant decides that he wants to go to trial. This may be
because he/she generally feels that he/she is not guilty or that he is not guilty of the
charge that the District Attorney wants him to plead to. Also, the defendant may
be on probation/parole and is worried that a plea will mean more jail time over that
of the crime he is charged. This note will focus on a jury trial although a defendant
has a right to request that a judge act like a jury and decide the guilt or innocence
of the person charged.
The first thing to occur is to have the defendant and the
District Attorney picktwelve people to decide the case. A panel of approximately
forty people are called into court. Questions are asked of them by the judge,
District Attorney, and the defense counsel. This is called “voir dire”. It is meant
mostly to weed out those people who might not be able to be fair in evaluating the
case. Once this occurs the attorneys can then strike out up to eight other people
each for whatever reason they want (as long as it is not for racial reasons). Once
this occurs twelve people plus two alternates are selected to sit in the jury box and
the rest of the people are sent home.
After the jury is selected the District Attorney makes
an opening statement telling the panel what he intends to prove and why it will
show that the defendant is guilty. The opening statement is not evidence but is
a guide for the jury as to how the case will go forth. The defense attorney may
then, if she wants, also make an opening statement letting the jury know how
the defendant intends to show that the District Attorney is wrong. The defense
attorney is under no obligation to speak but usually does if for no other reason than
to counter what the District Attorney has just said.
The Commonwealth then begins the process of proving
its case (proving it beyond a reasonable doubt). This is done by calling witnesses.
Usually at least one of the witnesses is a police officer involved in the case. After
each witness testifies the defense attorney is allowed to cross examine the witness
in order to weaken the testimony or bring out other facts favorable to the defense.
The District Attorney also may bring in exhibits or documents to help prove the
case. Once the District Attorney is done he rests his case. The judge will then
decide if there is enough evidence that the case should be decided by a jury or
dismissed. Usually the case goes forward.
Under the Constitution the defendant is not obligated to testify
or present any evidence. It is strictly up to the defense. If the defendant wishes to
put on a case and/or testify it follows along the same lines as the state’s case. The
District Attorney can cross examine any witness, including the defendant.
After the defense puts on (or doesn’t put on) the case each
attorney is allowed to argue before the jury as to why it should find the defendant
guilty of some or all of the charges or why it should acquit the defendant. Defense
counsel usually goes first because the Commonwealth has the burden of proof
and gets to go last. (In some states the state goes first but is allowed to offer a
rebuttal argument after the defense counsel has spoken.) Closing arguments are
not evidence. While facts will be argued by each side it is the memory of the jury
that counts in the end.
The last thing to occur is the instructions. The judge tells
the jury what the law is that pertains to the case. For instance, in a DUI case the
judge will tell the jury that the facts must prove beyond a reasonable doubt that the
defendant operated a car, did so on a public highway, and was under the influence
of alcohol or drugs at the time or have an alcohol level in his blood over a certain
limit. The jury then decides if the evidence proves that the defendant did what the
After the instructions the jury goes into a room to deliberate. It
normally does not take evidence or testimony into the room although it may return
to the courtroom to listen to certain testimony again. The jury is also permitted to
ask written questions to be answered by the judge. The jury’s decision must be
unanimous either as to guilt or innocence. If not the judge will declare a mistrial
and, if the District Attorney so chooses, another trial is held. If the jury finds the
defendant not guilty of some charges but can’t decide on the other charges the
defendant may be tried on those charges not decided. If the defendant is acquitted
of all charges he is free to go home. If convicted of some or all of the charges he
may be released on bail or put in jail pending sentencing.
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without seeking the appropriate legal advice from counsel. Lawrence R. Dworkin, Esq. expressly
disclaims all liability in respect to actions taken based on any content of this site. Because every
case is different, any prior results described on this web site do not guarantee or suggest a similar