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Trial Process

Jury Selection Although a trial does not technically begin until after the jury is seated, jury selection, or VOIR DIRE, is commonly referred to as the first stage of a trial. At the beginning of a trial, the jury is chosen from the jury pool, a group of citizens who have been randomly selected from the community for jury duty. The judge and the attorneys representing the parties question each of the prospective jurors. If a prospective juror is for any reason not able to judge the evidence fairly, he will not be allowed to sit on the jury. This is known as a challenge for cause. A prospective juror may be challenged for conviction of a serious crime, a financial interest in the outcome of the controversy, involvement in another proceeding concerning one of the parties, a business, professional, personal, or family relationship with a party, or any other reason that might indicate bias.

In addition to challenges for cause, the parties' attorneys may issue a certain number of peremptory challenges against prospective jurors. An attorney may use a PEREMPTORY CHALLENGE to keep any prospective juror off the jury even if he has no reason to believe that the prospective juror would judge the trial unfairly. A peremptory challenge may not be based on race, however.

Once the jurors and alternate jurors are seated, the judge usually gives the jury preliminary instructions on the law. The purpose of the preliminary instructions is to orient the jurors and explain their duties. Typically, the judge will summarize the jurors' duties, instruct them on how to conduct themselves during recesses, and describe how trials are conducted. The judge may summarize the nature of the CAUSE OF ACTION and the applicable law. The preliminary instructions usually last only a few minutes.

Opening Statements After the judge gives the preliminary instructions, the attorneys for the parties give their opening statements to the jury. During opening statements, the lawyers outline the issues in the case and tell the jury what they expect the evidence will prove during the trial. The purpose of the OPENING STATEMENT is to give a general picture of the facts and issues to help the jury better understand the evidence. The opening statements usually last ten to thirty minutes, although sometimes they are much longer. The judge can limit the time for opening statements.

Usually an attorney will present her opening statement as a story, giving a chronological overview of what happened from the party's viewpoint. Although the attorneys will present the case in the best possible light for their clients, the opening statements should be factual, not argumentative. The opening statements are not evidence, and the attorneys should not offer their opinion of the evidence. Attorneys are not permitted to make statements that cannot be supported by the evidence they expect to present during the trial.

Cases in Chief After the opening statements, the plaintiff, who has the burden of proving his allegations, begins his case in chief, in which he attempts to prove each element of each legal claim alleged in the complaint (civil) or indictment (criminal). After the plaintiff has concluded his case in chief (and assuming the judge does not dismiss the plaintiff's claim for lack of proof), the defendant presents his case in chief. The defendant presents evidence to refute the plaintiff's proof and establish any AFFIRMATIVE DEFENSES. The defendant may also present evidence to support claims he has against the plaintiff (counterclaims) or third parties (cross-claims).

During the case in chief, a party may offer evidence of any type in any order it wishes. Before the evidence may be presented to the jury, however, it must be admitted into evidence by the judge. If a party objects to the admission of any evidence, the judge must rule on the objection. The admission of evidence is governed by the RULES OF EVIDENCE. Each jurisdiction has its own rules of evidence, but the rules in most jurisdictions are patterned after the FEDERAL RULES OF EVIDENCE. The rules of evidence are extensive and require hours of study by trial attorneys. If the judge determines that evidence offered by a party is admissible under the rules, she will admit the evidence.

During their cases in chief, the parties have four possible sources of proof: witnesses, exhibits, stipulations, and JUDICIAL NOTICE. The parties elicit proof from a witness through an examination. The party who calls the witness conducts the initial examination, known as the direct examination. The party's attorney asks the witness questions designed to elicit testimony helpful to his case. After the direct examination is completed, the opposing party may cross-examine the witness. During cross-examination, a party will often attempt to discredit the witness's testimony by questioning the truthfulness of the witness or raising inconsistencies or weaknesses in the witness's testimony. In most jurisdictions a party may only cross-examine the witness about the subjects discussed in the testimony given during the direct examination. The party who originally called the witness may continue to question the witness following the cross-examination. This is known as redirect examination and is usually used to clarify or rebut issues raised during the cross-examination. The other party could then recross-examine the witness concerning the testimony offered during the redirect examination. In some jurisdictions the judge may ask the witness questions, and a few jurisdictions permit the jury to ask the witness questions, usually written questions read by the judge.

Witnesses can offer proof in a variety of ways. Most commonly, a witness will simply describe what she saw, heard, or observed to establish events making up elements of a party's claim. For example, in an ASSAULT AND BATTERY trial, the plaintiff might call a witness to testify that she saw the defendant strike the victim. A witness might be used to establish the foundation for the admission of other evidence, such as business records. Many jurisdictions allow character witnesses. Usually used in criminal cases, character witnesses can offer evidence of specific character traits or evidence of truthfulness or untruthfulness.

Rules of evidence govern the testimony of witnesses. Although the rules are far too extensive to discuss in depth, several rules are important in every trial. Rule 402 states the basic tenet of evidence law: evidence that is relevant to a fact in issue in the trial is admissible, and evidence that is not relevant is not admissible (subject to various exceptions stated in the rules). Virtually any evidence may be excluded from a trial under this rule if the trial judge believes that it will not help prove a fact at issue in the trial. Rule 802 is the Hearsay Rule, which prohibits a witness from testifying about statements made out of court, unless special circumstances apply. Such statements are known as hearsay statements and are thought to be unreliable evidence. Thus, generally, witnesses may only testify about their own knowledge and observations. The Hearsay Rule contains many complicated exceptions, however, and is often criticized as being too rigid and overly complicated.

Although the rules of evidence apply to both criminal and civil trials, certain rules have heightened importance in criminal trials. Rule 609 generally prohibits the admission of evidence that a witness has been previously convicted of a crime when the evidence is used to attack the witness's credibility. Evidence of prior convictions is admissible to attack the credibility of a witness when the prior crime was serious or involved dishonesty or false statement. The judge can still exclude such evidence if a long period of time has passed since the conviction or if the evidence would unduly prejudice the jury. This rule is often important when a criminal defendant with a criminal record is considering whether to testify in his defense. Also, Rule 608 generally prohibits evidence attacking the character of a witness. However, the rule does allow evidence concerning the veracity of the witness. A party may not offer evidence of the truthfulness of a witness, however, unless the other party has questioned the witness's credibility. Finally, although not specifically a rule of evidence, the FIFTH AMENDMENT of the U.S. Constitution provides that a witness cannot be compelled to testify if the testimony could lead to the witness's SELF-INCRIMINATION.

Besides witnesses, exhibits are the other principal form of evidence in a trial. The four principal types of exhibits are real objects (guns, blood, machinery), items used for demonstration (diagrams, models, maps), writings (contracts, promissory notes, checks, letters), and records (private business and public records). Before an exhibit may be admitted as evidence in a trial, a foundation for its admissibility must be laid. To provide foundation, the party offering the exhibit need only establish that the item is what it purports to be. The foundation for the evidence may come from witness testimony or other methods. As with witness testimony, the admissibility of exhibits is governed by rules of evidence and is within the discretion of the trial judge.

The third type of evidence that the parties may offer during their case in chief is the stipulation. A stipulation is an agreement between the parties that certain facts exist and are not in dispute. Stipulations are shown or read to the jury. The purpose of a stipulation is to make the presentation of undisputed evidence more efficient. For example, the parties might stipulate that an expert witness is an expert in her field so that time is not wasted establishing the witness's credentials.

Judicial notice is the fourth method of offering evidence to the jury. If the judge takes judicial notice of a fact, the fact is assumed true and admitted as evidence. Judges take judicial notice of facts that are commonly known in the jurisdiction where the trial is held (the Empire State Building is in Manhattan) and facts that are easily determined and verified from a reliable source (it rained in Manhattan on May 28, 2001). As with stipulations, the primary purpose of judicial notice is to speed the presentation of evidence that is relevant but not in dispute. When a party finishes offering evidence to the jury, he rests his case.

Rebuttals After the defendant rests her case in chief, and any motions are decided, the plaintiff may introduce evidence that rebuts the defendant's evidence. Rebuttal evidence is usually offered to prove a defense to the defendant's counterclaims or to refute specific evidence introduced by the defendant. Finally, the defendant may rebut evidence offered during the plaintiff's rebuttal case. This is known as the defendant's surrebuttal case.

Motions Although motions might be made on a variety of issues at any moment in a trial, certain important motions are made during virtually every trial. After the plaintiff rests his case in chief, the defendant usually moves for a directed verdict. (This motion has different names in different jurisdictions. In criminal cases, this type of motion is often called a motion for judgment of acquittal. The substance of the motion is the same in virtually every jurisdiction.) A motion for directed verdict asserts that the plaintiff failed to establish a critical element of his claim during his case in chief. If the plaintiff has failed to offer any evidence to support an element of his claim, the judge will enter judgment for the defendant. The defendant need not offer any evidence; the trial is over. For purposes of the motion, the judge will consider all of the plaintiff's evidence in the light most favorable to the plaintiff. For example, the judge will consider all of the testimony offered by the plaintiff's witnesses to be true. Although motions for directed verdict are made in virtually every trial, they seldom are granted.

After the defendant's case in chief, the plaintiff may move for a directed verdict on any of the defendant's affirmative defenses and counterclaims. The motion is identical to a defendant's motion for a directed verdict, except that the judge will consider the defendant's evidence in the light most favorable to the defendant. If the defendant has offered evidence to support all of the elements of her AFFIRMATIVE DEFENSE or counterclaim, the plaintiff's motion for directed verdict is denied. Finally, either party may make a motion for directed verdict after the close of all evidence. Again the judge considers the evidence in the light least favorable to the party making the motion and decides whether PROBATIVE evidence supports the nonmoving party's claims.

Closing Arguments After both sides have rested, the attorneys give their closing arguments. During closing arguments, the attorneys attempt to persuade the jury to render a verdict in their clients' favor. Typically, the attorneys tell the jury what the evidence has proved, how it ties into the jury instructions (which the attorneys and judge agreed upon in a conference held before closing arguments), and why the evidence and the law require a verdict in their favor. Because closing arguments provide the attorneys with their last chance to persuade the jury, the closing arguments often provide the most dramatic moments of a trial. Closing arguments typically last 30 to 60 minutes, although they can take much longer.

In most jurisdictions, the plaintiff argues first and last. That is, the plaintiff argues first, then the defendant argues, and then the plaintiff makes a rebuttal argument. Actually, the party with the BURDEN OF PROOF usually argues first and last. This is almost always the plaintiff, but sometimes the only issues remaining for the jury to decide are affirmative defenses or counterclaims raised by the defendant. Also, a few jurisdictions allow only one argument per side, and in a few of these, the defendant argues first, plaintiff last.

Jury Instructions After the attorneys have completed their closing arguments, the judge instructs the jury on the law applicable to the case. In most jurisdictions the judge will both read the instructions and provide written instructions to the jury. A few jurisdictions only read the instructions. The jury will also be given verdict forms. On the verdict form, the jury will indicate how it finds on each of the claims presented during the trial. Sometimes the jury may be given a special verdict form asking how the jury finds on a specific issue of fact or law. The jury instructions normally last ten or 15 minutes, although they may take much longer in complex cases.

Jury Deliberations and Verdict After the judge has finished instructing the jury, the jury retires to the jury room to begin deliberations. At this time the alternate jurors are dismissed, although some jurisdictions allow the alternate jurors to participate in deliberations. The court bailiff brings the exhibits and written instructions to the jury room and safeguards the jury's privacy during deliberations.

It is largely up to the jury to decide how to organize itself and conduct the deliberations. The judge usually only instructs the jurors to select a foreperson to preside over the deliberations and to sign the verdict forms that reflect their decisions. Jurors sometimes have questions during their deliberations. Usually, they write their questions and give them to the bailiff, who takes them to the judge. The judge confers with the attorneys and sends a written response to the jury. A jury might deliberate anywhere from a few minutes to several days.

Usually the jury must reach a unanimous verdict, although majority verdicts are sometimes allowed in civil cases. If the jury tells the judge it cannot reach a verdict, the judge usually gives the jury some further instructions and returns it to the jury room for further deliberations. If the jury still cannot reach a verdict, however, the jury is deadlocked, and a mistrial is declared. The case must then be retried.

Usually, however, the jury reaches a verdict. When the jury reaches a verdict and signs the verdict forms, it notifies the judge that it has reached a decision. The attorneys, if they are not in the courtroom, are called, and everyone returns to the courtroom. The judge asks the foreperson if the jury has reached a verdict. The foreperson responds "yes," and the verdict forms are read aloud, usually by the court clerk. In most jurisdictions the parties may POLL THE JURY by asking each individual juror if he or she agrees with the verdict. Obviously, in a court trial without an advisory jury, there is no jury deliberation or verdict. The judge simply enters a judgment based on the applicable law and his own view of the facts.

Posttrial Motions and Appeal Although a jury trial technically ends when the verdict is read, the attorneys normally file post-trial motions. The losing party often will file a motion for JUDGMENT NOTWITHSTANDING THE VERDICT. This motion asks the judge to set aside the jury's verdict as manifestly against the weight of the evidence presented at the trial and to enter judgment for the moving party instead. This motion is not applicable to a court trial. Also, the losing party will often move for a new trial, claiming that errors made during the trial by the judge require the case to be retried. Usually the judge will conduct a hearing on post-trial motions.

After the judge decides the post-trial motions, she enters judgment in accordance with the jury verdict and the post-trial motions. Once the judge enters the judgment, the court loses jurisdiction, and the case ends in the trial court. If the losing party still believes that errors in the trial caused an incorrect judgment, it may appeal to an appellate court. The appellate court may agree and order a new trial, in which case the trial process begins anew.

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