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The Trial

In most jurisdictions, before trial commences you and your attorney will have the opportunity to select a jury. This is commonly called voir dire.

If a defendant is charged with an offense punishable by six or more months of imprisonment, he or she has the right to a public trial by jury. The defendant may choose to waive that right, either by pleading guilty or agreeing to be tried by a judge. A defendant may choose a "bench trial", a proceeding in which the judge performs the fact-finding function of the jury. Circumstances under which a defendant might choose a bench trial rather than a jury trial include:

• Cases involving technical legal issues that a jury might not understand sufficiently or
• Cases in which the defendant fears that a jury may be inflamed by the nature of the charges and be unable to judge the evidence in the case objectively

The jury selection process is part of the trial. Both the defendant and the prosecution have the right to challenge potential jurors "for cause"; meaning that they are unable to be objective in hearing testimony and deciding the case. Factors considered when challenging potential jurors include:

• Pre-existing knowledge about the case
• Whether they have any relationship with the prosecutor or the defendant
• Whether they are capable of hearing and understanding the testimony

Both the defendant and the prosecution also have the right to a certain number of "peremptory challenges", depending upon the nature of the charges and the jurisdiction in which the case is being tried, among other things. A peremptory challenge means that the defendant or the prosecutor can require a juror to be removed for no reason whatsoever. Traditionally, peremptory challenges could be used for any reason, but in recent years the federal courts have held that peremptory challenges cannot be used to affect the racial composition of a jury.

After the jury is seated, your attorney will argue whatever motions are required in order to give you a fair trial. After those motions are heard, the trial will commence. The prosecution will give an opening statement. Your attorney can give an opening statement either at that time or reserve opening statement until after the prosecution's case is over.

After the opening statement, the prosecution will present its evidence in the form of physical and scientific evidence and expert and lay witnesses. Your attorney will have the opportunity to cross examine each of those witnesses.

At the trial, evidence is presented by the prosecutor in the form of witness testimony, documentary evidence, and "demonstrative evidence".

• Documentary evidence includes documents such as books, deeds, wills, letters and the like
• Demonstrative evidence includes all kinds of exhibits such as photographs of the victim in the case of a homicide, or the gun used in committing a robbery

The defendant has the right to present witnesses and other evidence in defense of criminal charges. The defendant also has the right to "confront" or cross-examine the witnesses brought forward by the prosecution.

Once the submission of evidence has concluded, the judge charges the jury. This means that the judge gives jurors instruction on the law applicable to the charges. Both the prosecutor and the defense attorney then sum up their arguments to the jury based on the facts presented and the applicable law. The order in which these presentations are accomplished varies from jurisdiction to jurisdiction.

Once the prosecution rests the case, your attorney will put on your case, calling any helpful witnesses to the stand. These witnesses can include percipient witnesses who watched or viewed the event. After your attorney finishes his or her case, the prosecution has an opportunity to put on rebuttal evidence. Once all the evidence is closed, the prosecutor and your attorney will give a closing argument to the jury. Your attorney will focus on reasonable doubt and the facts of your case.

The jury will then retire to reach its decision. In most states, the jury must reach a unanimous decision. If they are deadlocked and cannot reach a decision, a mistrial will be declared by the judge.

In rare cases, the court may dismiss the charges at the conclusion of the prosecutor’s presentation of evidence. If the court finds that the prosecutor failed to present any evidence to support any of the elements of the offense, or did not present sufficient evidence to support a verdict of guilty, the court may enter a verdict of not guilty without submitting the case to jury deliberations.

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