Jury trials are what most people envision when they think about the criminal justice system. Trials are commonly portrayed in TV, books, and movies. However, most criminal cases resolve through plea bargain and very few criminal cases end up in jury trial.
My post on the process of felony criminal cases from beginning to end covered what you can expect, step by step, in a typical felony case in California. Here I will cover what to expect if your felony case does go to trial.
Because trials can be rare, many criminal attorneys do not have a lot of jury trial experience. Of the attorneys with trial experience, many of these trials are for misdemeanor crimes. Felony trials are different because the stakes are higher, the facts are more complex, and it is more difficult to get favorable results for your clients.
If you are charged with a felony or serious crime, it is important to have an attorney with felony trial experience specifically. The issues that come up during these jury trials such as the presentation of forensic evidence (DNA, fingerprints, cell phone triangulation technology), proving up prior convictions and enhancements, and medical evidence, can be complex. When you are interviewing attorneys it is important to ask about their felony trial experience. You don’t want your case to be the first case of its kind that your attorney has litigated in trial.
The length of your trial depends on the charges, the number of witnesses, and the facts of the case. In some cases, trials can be completed in as little as one or two days. However, trials can also be extremely complex and take months to complete. If your felony case goes to jury trial, the sections of the trial are summarized, below.
Before your trial begins, the judge will make decisions about what evidence the jury will hear. Both sides will make motions arguing to exclude evidence that hurts their case, and arguing to admit evidence that is helpful to their case. These are commonly referred to as “motions in limine.” Sometimes these motions are scheduled prior to your trial, and sometimes they are heard on the same day as the trial.
Prior to the beginning of evidence, a jury must be selected. This does not mean that your attorney gets to pick specific jurors from a group. It means that jurors will be called into the jury box, and the lawyers will ask the jurors questions. Based on the answers to these questions, the lawyers will decide which people to challenge or exclude from the jury. Jurors will then slowly be excused by the lawyers until there are 12 people left on the jury. The 12 people left after this elimination process will be your jury.
Opening statement is the lawyers’ first chance to talk to the jury in detail about the facts of the case. The purpose of the opening statement is to provide a “roadmap” to the jury about what evidence they will hear. The attorneys usually discuss which witnesses will be called, what they expect them to say, and what evidence will be introduced. Each side will highlight certain witnesses or facts that they think are helpful to their case.
The prosecution will go first, and then the defense will do their opening statement. If there are co-defendants, each co-defendant’s attorney will make their own opening statement.
The prosecution will then present evidence to try to prove their case.
The prosecution will call witnesses who will testify against you in court. Common witnesses may include alleged victims, eye witnesses, police officers who conducted the investigation, expert witnesses, and witnesses who ran certain forensic tests (such as DNA or fingerprints).
Your attorney will cross examine these witnesses, which means they will ask the witnesses questions on your behalf. Your lawyer will use their questions to get helpful answers that help your defense. For the witnesses that hurt your case, your lawyer may challenge their credibility by highlighting their biases, inconsistent statements, and motives to lie.
Real evidence is sometimes introduced at trial such as photos, firearms, clothing, or other items that the prosecution believes helps prove their case. Sometimes videos or other recordings are also played for the jury. After being admitted into evidence, these items are typically given to the jury to inspect or review in the deliberation room.
After the close of the prosecution’s evidence, the defense will present their case. The defense case can include witnesses, expert testimony, and real evidence. Sometimes the defendant will testify, although the defendant in a criminal case is not required to testify.
Sometimes the defense does not call witnesses or present evidence. This does not necessarily mean that your attorney is not fighting for you. Your attorney may feel that the prosecution did not prove their case against you, or that they got everything they need for their defense out of the prosecution’s witnesses. It is the prosecution’s burden to prove you guilty, and if they did not do this, it may not be necessary for the defense to present a defense to obtain a not guilty verdict.
If there is more than one defendant, each defendant’s attorney will have a chance to present their client’s case.
If the defense calls witnesses or introduces evidence, the prosecution will sometimes call “rebuttal” evidence, which is evidence in response to what was presented by the defense. If the defense does not call witnesses or other evidence, there would be no rebuttal evidence by the prosecution.
Before deliberations the jury will be read and provided “jury instructions,” which explain the law that they must consider in reaching their verdict. After the close of the evidence, the lawyers will argue about what exact language of the instructions should be given to the jury. Although this portion of the trial can seem tedious to most defendants, it is a very important part of the trial. The words the jury reads when deliberating are extremely important, and these instructions can be a critical part of the jury’s decision making process. Once it is decided which instructions will be given, the judge will read the instructions to the jury.
Before the jury goes out for deliberation, both sides will make a closing argument. The prosecution goes first, followed by the defense. If there is more than one defendant, each defendant has a chance to present a closing argument. At the end of the defense closing argument, the prosecution gets to do a “rebuttal” argument. The defense cannot reply to the prosecution’s rebuttal argument.
The purpose of the closing argument is for the lawyers to explain how the evidence supports their case. The prosecution will talk about how they proved their case and ask for a conviction. Your lawyer will highlight flaws in the prosecution’s case, and talk about how their defense supports a not guilty verdict.
After the closing arguments, the bailiff will be sworn and the jury will be brought into the deliberation room. How the decision making process unfolds and how the jurors come to verdict depends on the members of the jury. To reach a verdict in a California criminal case, all twelve jurors must agree.
The length of deliberations varies widely depending on the case and on the people on the jury. Each case is unique, but most juries deliberate for more than an hour, and most juries do not deliberate for more than two weeks. At some point if the process it taking too long, the judge may declare a “hung jury,” which means that the jury cannot agree on a verdict.
The parties will leave the courtroom and usually go back to their offices during deliberation. The court will call the parties back to the courtroom if the jury has questions, if the jury wants the court reporter to “read back” testimony, or if there is a verdict.
After the jury makes their decision, the defendant is brought into the courtroom with the jury. The verdict is read, and the jury is excused. If the defendant is convicted, the case will usually be continued for sentencing. If the defendant is out of custody and the charge is serious, it is not unusual for the defendant to be taken into custody awaiting sentencing. If the defendant is found not guilty, they will be discharged and exonerated.
If you are found guilty after trial, there are no promises from the judge or prosecution about what sentence you will receive. Most judges continue the case after a guilty verdict to get a probation report. Your attorney will often do their own sentencing motion to the judge highlighting positive things about your background and circumstances. In some situations you attorney may also file a motion for a new trial in your case as well.
At the sentencing date the parties will argue what sentence they think is fair, and the judge will decide what sentence to give. The maximum amount that can be given is based on the maximum amount allowable under the law for that charge. This is why lawyers always advise their clients about the maximum time their charge allows, even when they do not believe you will receive the maximum time in your case.
At times criminal procedures can be complex and confusing. If you have any questions about the above legal procedures in your criminal felony case, contact Jessica Agnich for a free legal consultation.