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Criminal and Civil Court Processes

Trial Procedure

Depending on the type of action, a case may be tried before a judge (bench trial) or before a jury with a judge presiding. Whether the case is civil or criminal, or tried by a judge or jury, the procedure is essentially the same.

  1. Jury Selection: At the trial's beginning, the clerk calls a panel of prospective jurors. The judge or, in some cases, the lawyers, ask the potential jurors questions about their background and general beliefs to determine any biases or prejudices. This process is called "voir dire." If any attorney or judge feels that a juror is not qualified for the case, the juror is excused for cause. There is no limit to a party's challenges for cause. Both sides are also entitled to a certain number of peremptory challenges, which means they may excuse some prospective jurors without stating any reasons (unless the motives appear racially motivated).
  2. Opening Statement: Attorneys for each side make statements to inform the court and jurors of the nature of the case, the evidence they will present, and the facts they expect to prove. The defense may choose to wait to make an opening statement until after the prosecution has rested its case, or may choose not to make one.
  3. Prosecution Evidence/Witnesses: Each side makes its case based on testimony from witnesses and physical evidence. The prosecutor/plaintiffs call their witnesses for direct examination to state what they know about the alleged crime or injury. The defense may ask questions of the same witnesses (cross-examination). Then the prosecutors/plaintiffs may re-examine their witnesses (re-direct). Physical evidence, such as documents, pictures and other exhibits, is also introduced.
  4. Defense Evidence/Witnesses: After the prosecution has rested its case, the defense may call witnesses to give testimony to disprove the prosecutor's/plaintiff's case and to establish the defendant's case. The prosecutor/plaintiff may cross-examine the witnesses. The defense may then re-examine its witnesses.
  5. Rebuttal: When the defense has presented all its witnesses, the prosecutor/plaintiff may again call witnesses to rebut any new information introduced by defense witnesses. The judge may allow surrebuttal (a rebuttal to the rebuttal) by the defense.
  6. Jury Instructions: Before closing arguments, the judge will instruct jurors carefully as to what law they are to follow. In civil cases, the jury must determine that a preponderance of the evidence favors one party. In criminal cases, the defendant must be found guilty beyond a reasonable doubt to be convicted.
  7. Closing Argument: After jury instructions are given, both attorneys summarize the evidence and testimony in an effort to persuade the judge or jury to decide the case in favor of their client. The prosecution makes its closing argument first, then the defense, and then the prosecution responds to the defense's closing argument. Either side may waive closing arguments.
  8. Jury Deliberations: After closing arguments, the court orders the jury to retire to the jury room for deliberations.
  9. Verdict: In criminal cases, a verdict must be unanimous and must be given in open court with the defendant present, unless he chooses not to be.
    1. For criminal cases there are four possible verdicts: guilty, not guilty, not guilty by reason of insanity, or guilty and mentally ill. If the jury cannot agree on a verdict, the judge may declare a "hung" jury, declare a mistrial, and order a new trial.
    2. For civil cases, two types of verdicts are rendered - general and special. The verdict does not have to be unanimous; at least three-fourths of the jurors must agree to the verdict. In general verdicts, the jury has decided the case either in favor of the defendant or the plaintiff. In special verdicts, a general decision is not announced. Rather, the jury has answered certain factual questions, leaving the "total" decision up to the court.
  10. Sentencing/Judgment:
    1. In a criminal case, after a verdict of guilty or a plea of guilty, the defendant has the right to be sentenced in no fewer than two nor any more than 45 days following conviction. If the defendant chooses, he or she may waive that time and may be sentenced on the day of conviction.
    2. In a civil case, after the verdict or after the court has decided the facts in a bench trial, a judgment will be rendered. The court will award money damages or injunctive relief.


Page Last Modified: 12/4/2009
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