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					    Juries, Trial Procedures,
       and Examinations
               Law, Community Response, and Policing

Written by Karmel Tanner
May 2010
How a Case moves through Court
                Types of Cases
   Settling
   Civil
   Criminal
       In many parts of the world, civil and criminal
        cases are combined. In the US they are not.
                  Settling Cases
   Relatively few lawsuits go to trial
       Most civil cases are settled by mutual
        agreement between parties. Disputes can be
        settled at any point in a trial.
       Criminal cases can be settled if
          The court orders dismissal or if the government
           opts to dismiss the case
          The defendant may decide to plead guilty

          A plea bargain is used
                 Civil Cases
   Conflicts between people or institutions
   Types of civil cases include Divorce, Child
    Support, Custody, Personal Injury (car
    accident), etc
              Criminal Cases
   The Government’s prosecution of
    individuals or institutions to enforce public
    codes of behavior as embodied in law
   An example would be a crime leading to a
    criminal trial of the defendant, with victims
    filing a separate civil suit to recover
    damages caused by the crime
           Jurisdiction and Venue
   Venue refers to the county or district within a
    state or US where the lawsuit is tried
   The have jurisdiction, the court must be able to
    exercise control over the defendant, or the
    property involved must be located in the area
    under the court’s control
       Certain actions are transitory (can be tried where the
        jurisdiction has sufficient contact with either side and
        the incident that gave rise to the suit)
   The first step begins what is known as the pleadings stage of the
    suit. Formal documents are filed with the court that state the
    parties' basic positions.
       Common pre-trial pleadings include:
            Complaint (or petition or bill). Frames the issues of the case. Includes
             various counts - that is, distinct statements of the plaintiff’s cause of action -
             highlighting the factual and legal basis of the suit.
            Answer This statement by the defendant usually explains why the plaintiff
             should not prevail. It may also offer additional facts, or plead an excuse.
            Reply Either party may have to file a reply, (an answer to new allegations
             raised in pleadings)
            Counterclaim The defendant may file a counterclaim, which asserts that
             the plaintiff has injured the defendant in some way, and should pay
             damages. ("You're suing me? Well then, I'm suing you.") It may be filed
             separately or as part of the answer. If filed, the plaintiff must be given the
             opportunity to respond by filing a reply.
   Motions are requests for the judge to make a legal
    ruling. Some of the most common pre-trial motions
       Motion to Discover
            A motion by which one party seeks to gain information from the
             adverse party.
       Motion to Dismiss
            This motion asks the court to dismiss the suit because the suit
             doesn’t have a legally sound basis, even if all the facts alleged are
             proven true.
       Motion for Summary Judgment (motion for summary disposition)
            This motion asks the court for a judgment on the merits of the case
             before the trial. It is properly made where there is no dispute about
             the facts and only a question of law needs to be decided.
   To begin both sides swap information
    about witnesses and evidence they will
    present at trial, this is called discovery
   Methods include:
       Deposition
       Subpoena
       Having the other side submit a physical exam
       Asking for a document to be submitted to
        determine if the document is genuine
              Pre-Trial Conferences
   Held by judges with lawyers present
       Can be used to establish a time frame pre-
        trial activities and set a tentative trial date
       Also used by judges to encourage settling a
       Trial time can be shorten by the judge and
        lawyers meeting without clients to agree on
        undisputed facts or points of law
            These agreements are called stipulations
    Pre-trial Procedures in Criminal
   Pre-trial procedures in criminal cases follow the general pattern of civil
    cases, but with important variations.
   The process is apt to be very different depending on the severity of the
   In general, the more important the offense, the more elaborate the
   The most serious crimes are felonies, crimes such as robbery, assault with
    a deadly weapon, and sexual assault, for which the punishment on
    conviction is imprisonment at least a year, usually in a state or federal
   Misdemeanors are less serious crimes, such as simple assault, driving
    while intoxicated, and trespassing, for which punishment on conviction
    could be a term of incarceration of less than a year, usually in a local jail.
   Traffic infractions and petty misdemeanors include minor moving
    violations, parking violations and littering. They’re usually just punished by
             Bringing the Charge
   Criminal Charges are put against someone
    in one of three ways
       Indictment – voted by a grand jury
       Information – filed by the prosecuting
        attorney alleging a crime was committed
       Citation – given to an individual for a petty
        misdemeanor or other minor crime
              Arrest Procedures
   A person can be arrested without a
    warrant, and may be held a brief time
       Usually no more than 48 hours
       To hold the person beyond that time either an
        initial or first appearance or arraignment
        before a judge or magistrate must be done
   Miranda rights must be read to the person
    being taken into custody in order for any
    question of the person to be used as
    Pre-Trial Court Appearances in a
              Criminal Case
   It’s especially difficult to generalize about
    this subject, since so much depends on a
    particular state’s procedures, whether it
    typically uses a grand jury to bring
    charges, etc. Here’s the procedure used
    with some variations in many states in
    which a prosecutor files charges without a
    grand jury.
   Amount of money defendants must post in order
    to be released from custody until their trial
   The purpose is to ensure defendants for trial
    and all hearings and is returned to after the trial
    is over, some states withhold a processing fee
   Bail is decided by the judge weighting factors
    such as:
       Risk of the defendant fleeing
       Type of crime committed
       “Dangerousness” of defendant
       Safety of the community
               Bail continued…
   The defendant may be released by own
    recognizance (without payment of money)
       This is decided by the judge or magistrate
        usually when the defendant has
        circumstances such as roots in the community
        or a steady job that prevent fleeing
                Plea Bargaining
   When both sides reach an agreement
    outside of court, they are negotiating a
    plea or plea bargaining
       Time and expense can be saved by both the
        prosecutor and defendant
       The severity of sentencing can be reduced
        when the defendant pleas guilty to a lesser
        crime in a plea bargain
                Officers of the Court
   Judge
        Presides over the courtroom and decides verdict if a jury is not used.
   Court Clerk
        Gives oath to jurors and witnesses, responsible for administrative
         aspects, and is in control of physical evidence
   Bailiff
        Keeps order in the courtroom, calls witnesses, has charge over jury (as
         directed by the judge), and makes sure no one influences the jury
   Court Reporter
        Records word for word everything said as part of formal proceedings
   Lawyers
        Represents clients, whether defendant or plaintiff, zealously as possible
         within the formal rules of the Code of Professional Conduct
              Selecting the Jury
   The trial jury for a case is chosen from a
    venire (jury pool compiled by the court)
       In many states this is complied by voter
        registration lists or driver license lists
       Juries of 6 to 12 persons are selected, varying
        from state to state and partly on the case on
    Selecting the Jury continued…
   If a lawyer believes a juror is prejudiced about
    the case, they can ask the judge to dismiss the
    juror for cause, dismissal will be decided by the
   Lawyers can also use peremptory challenges
    to release jurors for any reason except basis of
    race or sex.
       This is determined by the type of lawsuit being tried
   When both sides have agreed on a jury, then
    the jurors are sworn in to try the case
   Types
       Direct
          Eye witness, confession, etc.
          The defense gives evidence in the same manner as
           the plaintiff, the plaintiff then has the right cross-
           examine, re-direct, or re-cross examine
       Circumstantial
            Appearance of a crime scene, testimony linked to
             the crime, or physical evidence suggesting criminal
    Direct and Cross Examination
   Lawyers for the plaintiff or government
    begin direct examination when
    presenting evidence by calling witnesses
    and questioning them
   Cross examination is generally limited
    to questioning only on matters raised
    during direct examination
     Direct and Cross Examination
   Lawyers may call expert witnesses to give
    their opinion and reasoning based on facts
    in evidence
   In cross examination, lawyers may try to
    reduce credibility of the witness,
    impeaching the witness on evidence
                  Motion for Directed
   At the conclusion of the plaintiff's or government's evidence, the
    lawyer will announce that the plaintiff or government rests.
   Then, when the jury leaves the courtroom, the defendant's lawyer
    in a civil case has the option of making a motion for a directed
    verdict, arguing that his or her client's liability has not been proven
    by a preponderance of the evidence.
   In a criminal trial, the defendant's lawyer can ask for a motion to
    dismiss the charges, arguing that the government has failed to
    prove its case.
   In effect, in both kinds of cases, the lawyer asks the judge to direct
    a verdict for the defendant.
   The judge will grant or deny the motion. If granted, the case is over
    and the defendant wins. If the denied, as it usually is, the defense is
    given the opportunity to present its evidence.
    Presentation of Evidence by the
   The defense lawyer may choose not to present evidence, in the
    belief that the plaintiff or government did not prove its case.
    Usually, however, the defense will offer evidence.
   In a criminal case, the witnesses presented by the defense may or
    may not include the defendant.
   Because the Fifth Amendment to the U.S. Constitution protects
    against self-incrimination, the prosecution cannot require the
    defendant to take the stand and explain what happened, nor can it
    comment or speculate on the reasons the defendant has chosen not
    to testify. The jury will be instructed not to take into account the
    fact that the defendant did not testify.
   The defense presents evidence in the same manner as the plaintiff
    or state, and the plaintiff or government in return has the right to
    cross-examine the defense's witnesses. Re-direct and re-cross
    examination also are permitted.
   At the conclusion of the defendant's case, the
    plaintiff or government can present rebuttal
    witnesses or evidence to refute evidence
    presented by the defendant. This may include
    only evidence not presented in the case initially,
    or a new witness who contradicts the
    defendant's witnesses.
                    Final Motions
   After all the evidence has been presented and the jury
    has left the courtroom, either side may move for a
    directed verdict. If the motion is granted the trial is over;
    if not, the presentation of evidence is complete and the
    case is ready to be submitted to the jury.
                  Closing Arguments
   The lawyers’ closing arguments or summations discuss the evidence and properly
    drawn inferences. The lawyers cannot talk about issues outside the case or about
    evidence that was not presented.
   The judge usually indicates to the lawyers before closing arguments begin which
    instructions he or she intends to give the jury.
   In closing arguments the lawyers can comment on jury instructions and relate them
    to the evidence.
   The lawyer for the plaintiff or government usually goes first. The lawyer sums up and
    comments on the evidence in the most favorable light for his or her side, showing
    how it proved what he or she had to prove to prevail in the case.
   The defense then presents its closing arguments. The defense lawyer usually answers
    statements made in the plaintiff's or government’s argument, points out defects in
    their case and sums up the facts favorable to his/her client.
   Because the plaintiff or government has the burden of proof, their lawyer is then
    entitled to make a concluding argument, sometimes called a rebuttal.
   Occasionally the defense may choose not to make a closing statement. If so, the
    plaintiff or government loses the right to make a second argument.
           Instructions to the Jury
   The judge instructs the jury about the relevant
    laws that should guide its deliberations. This
    sometimes occurs before closing arguments
       Commonly referred to as the judge's charge to the
   The judge will point out that his or her
    instructions contain the interpretation of the
    relevant laws that govern the case; jurors
    determine the facts and reach a verdict, within
    the guidelines of the law as determined by the
   Trials not successfully completed
       Reasons for a mistrial include
          death of a juror or attorney
          an impropriety in the drawing of the jury
           discovered during the trial
          a fundamental error prejudicial to the defendant
           that cannot be cured by appropriate instructions to
           the jury
          juror misconduct

          the jury's inability to reach a verdict because of
                      Jury Deliberations
   After receiving the instructions and hearing the final arguments, the jury retires to
    the jury room to begin deliberating. In most states the first order of business is to
    elect one of the jurors as the foreperson or presiding juror
        to preside over discussions and votes of the jurors, and often to deliver the verdict.
   If the jury will have a question about the evidence or the judge's instructions this
    happens, the jury will give a note to the bailiff to take to the judge. The judge may
    respond to the note, or may call the jury back into the courtroom for further
    instructions or to have portions of the transcript read to them.
   Any communication between the judge and jury should be in the presence of lawyers
    for each side or with their knowledge.
   In most cases, the verdict in a criminal case must be unanimous. Federal cases
    require a unanimous decision.
   If the jury cannot come to a decision by the end of the day, the jurors may be
   If the jurors cannot agree on a verdict, a hung jury results, leading to a mistrial.
   The case is not decided, and it may be tried again at a later date before a new jury,
    or the plaintiff or government may decide not to pursue the case further and there
    will be no subsequent trial.
   After reaching a decision, the jury notifies the bailiff, who notifies the judge.
    Participants reconvene in the courtroom and the decision is announced. The
    announcement may be made by either the foreperson or the court clerk.
   Possible verdicts in criminal cases are “guilty” or “not guilty.”
   In a civil suit, the jury will find for the plaintiff or the defendant.
        If the jury finds for the plaintiff, it will also usually set out the amount the
         defendant should pay the plaintiff for damages, often after a separate hearing
         concerning damages.
   The jury will also make a decision on any counterclaims that may be part of
    the case.
   The lawyer for either party may ask that the jury be polled, the request
    usually comes from the losing party. Meaning each juror will be asked if he
    or she agrees with the decision, as announced. This is to make sure that
    the verdict announced is the actual verdict of the jury.
   After the decision is read and accepted by the court, the jury is dismissed,
    and the trial is over.
              Motions after Verdict
   Motions permitted after a verdict is announced differ from state to
   A motion in arrest of judgment questions the sufficiency of the
    indictment or information in a criminal case and asks that the
    judgment not be enforced.
   A motion for judgment notwithstanding the verdict is the equivalent
    in civil cases to the motion in arrest of judgment. It may be made
    after the jury's decision is announced but before a judgment is
    entered. This motion asks the judge to enter a judgment for the
    losing party despite the decision of the jury.
   A motion for a new trial asks for a new trial to be granted, based on
    errors committed by the judge during the trial. In some states, the
    losing party must make a motion for a new trial before filing an
   The decision of the jury doesn’t take effect until the judge enters a
    judgment on the decision - an order that it be filed in public
   In a civil suit, the judge may have the authority to increase or
    decrease the amount of damages awarded by the jury, or make
    some other modifications before entering judgment.
   In criminal cases, the judge generally has no authority to modify the
   If the defendant doesn’t pay the damages awarded to the plaintiff in
    a civil case, the plaintiff may ask for an execution of the judgment.
   The clerk of the court in such a case will deliver the execution to the
    sheriff, commanding him to take and sell the property of the
    defendant and apply that money to the amount of the judgment.
   If the defendant is convicted in a criminal case, the judge will set a
    date for sentencing.
   Before that time, a pre-sentence investigation will take place to help
    the judge determine the appropriate sentence from the range of
    possible sentences set out in the statutes.
   The pre-sentence investigation may consider the defendant's prior
    criminal record, family situation, health, work record, and any other
    relevant factor.
   In most states and in the federal courts, only the judge determines
    the sentence to be imposed. (The main exception is that in most
    states juries impose sentence in cases where the death penalty is a
   The federal courts and some states have sentencing guidelines to
    guide judges in determining appropriate sentences and to
    encourage uniformity.
   A losing party does not have an automatic right of appeal. There generally
    must be a legal basis for the appeal such as an alleged material error in the
   In a civil case, either party may appeal to a higher court.
   In a criminal case, only the defendant has a right to an appeal in most
    states. Appeals by the prosecution after a verdict are not normally allowed
    because of the prohibition in the U. S. Constitution against double
    jeopardy, or being tried twice for the same crime.
   After using all rights of appeal on the state level, criminal defendants
    convicted in state courts may file a right of habeas corpus in the federal
    courts in an attempt to show that their federal constitutional rights were
   An appeal is not a retrial or a new trial of the case.
   The appeals courts do not usually consider new witnesses or new evidence.
    Appeals in either civil or criminal cases are usually based on arguments that
    there were errors in the trial’s procedure or errors in the judge's
    interpretation of the law.
                 Appeals continued…
   The party appealing is called the appellant, or petitioner. The other party
    is the appellee or respondent.
   The appeal is instituted with the filing of a notice of appeal.
   This filing marks the beginning of the time period within which the
    appellant must file a brief, a written argument containing that side's view
    of the facts and the legal arguments in seeking a reversal of the trial court.
   The appellant may then file a second brief answering the appellee's brief.
   Appeals courts may make their decision on the basis of the written briefs.
   Sometimes, they hear oral arguments before deciding a case.
   Often the court will ask that the case be set for oral argument, or one of
    the parties will request oral argument.
   In the U.S. Supreme Court, for example, an hour is set for oral argument of
    most cases, which gives each side's lawyers about half an hour to make
    their oral argument and answer questions.
        In the federal courts of appeals, the attorneys are often allotted less time than
         an hour.
        10- or 15-minute arguments are common.
                 Appeals continued…
   The appellate court determines if errors occurred in applying the law at the lower
    court level.
   It generally will reverse a trial court only for an error of law. Not every error of law is
    cause for a reversal.
   Some are harmless errors that did not prejudice the rights of the parties to a fair
   An error of law, such as admitting improper evidence, may be determined to be
    harmful and therefore known as a reversible error.
   After a case is orally argued or presented for judgment, the appeals court judges will
    meet to discuss the case.
   Appellate courts often issue written decisions.
   At the conference, one judge will be designated to write an opinion.
   The opinion may go through several drafts before a majority of the court agrees.
   Judges disagreeing with majority opinion may issue a dissenting opinion.
   Judges agreeing with the result of a majority decision but disagreeing with the
    majority's reasoning may file a concurring opinion.
   Occasionally the appeals court will simply issue an unsigned opinion, called per
    curiam (by the court).
                Appeals Continued…
   If appeals court affirms the lower court's judgment, the case ends, unless the losing
    party appeals to a higher court.
   The lower court decision also stands if the appeals court simply dismisses the appeal
    (usually for reasons of jurisdiction).
   If the judgment is reversed, the appellate court will usually send the case back to a
    lower court (remand it) and order the trial court to take further action.
   It may order:
        A new trial be held
        The trial court's judgment be modified or corrected
        The trial court reconsider the facts
        Take additional evidence
        Consider the case in light of a recent decision by the appellate court
   In a civil case, an appeal doesn’t ordinarily prevent the enforcement of the trial
    court's judgment.
   The winning party in the trial court may order the judgment executed.
   However, the appealing party can file an appeal or supersedeas bond.
   The filing of this bond will prevent, or stay, further action on the judgment until the
    appeal is over by guaranteeing that the appealing party will pay or perform the
    judgment if it is not reversed on appeal.

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