Many clients are unfamiliar with the terminology used in court and often believe that their next court date is their "trial". This usually is not the case. The vast majority of court appearances are preliminary, pre-trial hearings that serve as "check-points" for the lawyers and court to monitor the progress of the case while it makes its way through the system. These pre-trial hearings can often go on for months while the case is being investigated and negotiated. For most cases, there are two potential eventual outcomes: a resolution is reached after negotiations (e.g., a "plea bargain"), or the case is set for trial to take place at a later date. Trials only occur after negotiations have failed or been abandoned. The system places huge incentives on resolution through negotiations rather than trial, and the result is that fewer than 5% of the cases in court ever go to trial.

In legal circles, "trial" has a very specific meaning and does not apply to the preliminary court appearances made by lawyers and their clients during negotiations. Simply put, the trial is the culminating court proceeding where guilt or innocence is determined by a fact-finder. There are two types of fact-finders: Judges, and Juries. When a defendant chooses to have a judge determine guilt or innocence, the process is called a "bench trial". In a bench trial, there is no jury; a single judge will render the final verdict after hearing the evidence presented by the lawyers. The other, more commonly understood type of trial occurs when a jury of citizens is impaneled and asked to determine guilt or innocence. This is what you commonly see on television and in movies and it's called a "jury trial".

Jury Trial

Jurors are picked at random from public DOL and voter registration records and are summoned to the courthouse for jury service without any indication of what type of case they will be sitting on to decide. They usually gather in a large assembly room and wait for a presiding judge to determine which courtroom needs a jury. When a courtroom begins a jury trial and needs a panel of jurors to begin the jury selection process, a number of potential jurors are sent from the assembly room to the trial courtroom for examination as potential jurors in the particular trial taking place in that courtroom.

There are important differences between a bench and jury trial. In a bench trial, the judge alone makes the decision of guilt or innocence. Some lawyers believe that certain types of trials are better presented to a judge than to a jury, but this is rarely a good idea. In a jury trial, the government cannot convict you unless the jury returns a *unanimous* decision of guilt beyond a reasonable doubt. If any single juror has a reasonable doubt about guilt, that juror is required by law to vote Not Guilty. All it takes, then, is to have one juror accept your defense and you cannot be convicted. What would you rather have, one chance to avoid conviction, or twelve?

The first day of trial is usually occupied by preliminary housekeeping matters taken care of by the court and the lawyers before a jury is selected: what evidence is going to be allowed to be presented to the jury; what exhibits and photos will be offered; what facts are going to kept from the jury; what witnesses will be allowed to testify and on what topics, and so on. These are referred to as "In limine motions" and in complex trials can take days to complete.

Jury Selection

Jury selection is not so much a "selection" process as it is an exclusion process. The court starts by swearing in the panel filling the courtroom, and asking the entire panel questions that are intended to identify their ability to serve as jurors in the trial. Jurors are assigned numbers at random and placed into the jury box and courtroom seats according to their number, with the lowest numbers starting in the jury box and the highest numbers filling from the front to the back row of the courtroom. After the judge has finished asking questions, the lawyers are allotted time to ask anything they want to the panel or to individual jurors.

This is an important opportunity for me to get to know the juror because it will be the only time during the trial that I can have an actual conversation with the juror. The conversation can cover any ground reasonably related to the juror's ability to serve on the type of case. For example, in a sex case I might ask if any of the jurors have ever had any personal experience with a sexual assault. At that point, I might strike up a conversation with a particular juror over her personal experience, and how she felt about it, what feelings it left her with, and so on. This is enormously valuable information that helps me to decide if a particular person has the capacity to be a fair juror in my case. If I can demonstrate to the court that a particular juror is so emotionally affected by her past personal experience that she cannot possibly put it out of her mind during the taking of evidence in my case, the court may excuse that juror from the panel.

After questioning is complete, lawyers have the opportunity to "strike" a certain number of jurors without specifying any reason. I might not like the answers a potential juror gave to my questions, or might worry about someone who is married to a police officer. I don't have to reveal my reasons, but I am limited in number so I have to be careful to use these "peremptory" challenges carefully, because at some point after my limited number of peremptory challenges is used up, I will be stuck with whoever is left in the courtroom to fill in the challenged juror's seat.

Once all challenges are used up, the jurors remaining in the jury box are sworn in as the jury in the case and the trial continues. It's common to pick a couple of alternate jurors who will sit in the jury box with the rest of the jury and hear all the evidence so that, in the event a juror for some reason is unable to continue serving, the alternate can take their place. If no alternates were available, a mistrial would occur and the entire process would have to start over.

Opening Statements

Once the jury is sworn in, the judge will ask the lawyers to present "Opening Statements". The Opening is an opportunity for the government to present an overview of the case and what the prosecutor believes the evidence will show. It's short, usually 15 to 30 minutes, and is generally painful to listen to because it paints the defendant in the most unflattering and guilty light possible.

When the prosecutor is done, the court will ask if defense counsel wishes to do an Opening at that time, or "reserve Opening" for the beginning of the defense case. It is hard to imagine any good reason to wait, and I will always favor delivering my Opening at that time. The prosecutor has just completed a damaging presentation to the jury and I want the opportunity to frame the issues and evidence in a much more favorable light and have the jury know my side of the case as they begin listening to the evidence.

Presentation of Evidence

The prosecutor has the burden of proving their case so they begin by presenting their evidence to the jury. The evidence is presented either as testimony from witnesses on the stand, or through exhibits offered as evidence. In a sex case, the alleged victim will testify to what happened and the police officers will testify to what they learned during their investigation. The prosecutor may offer into evidence photographs taken at the scene, or text messages sent by the defendant.

Once the prosecutor is finished asking a witness questions, the defense has the opportunity to "cross-examine" the witness. During cross, I have the opportunity to challenge the witness' account of what happened, and impeach the credibility of the witness. Cross examination is a fundamental right of every criminal defendant and great latitude is given to defense counsel to test the truth.

After all the evidence has been submitted, the government "rests" its case. At that time, I will usually make a motion to dismiss the case on a number of legal grounds. Although these "half-time" motions are rarely granted, it is important that your lawyer make the motion to preserve your rights on appeal.

After half-time motions, the defense has the opportunity to present its evidence. The defendant has no burden to prove anything, and is not required to put on any evidence. Some lawyers will rely heavily on this theoretical lack of a burden and will simply rest without putting on any evidence, on the theory that the government has failed to prove its case. This is rarely a good idea but may be the best strategy in particular cases where the government's case has obviously failed.

During the defense case, the defendant may take the stand and testify to what happened. This is not required and it is often preferable to not have the defendant take the stand. The lawyer may be even be ethically obligated not to put his client on the stand. For example, if the defendant has revealed to the attorney that he did in fact shoot the victim, the lawyer cannot ethically put the client on the stand and have him deny that he did it. This is a critical tactical issue that must be considered carefully by client and counsel. Few defendants are able to match the cross-examination skills of a seasoned government attorney with decades of experience tearing witnesses apart. That said, most jurors are going to want to hear from a defendant and will wonder why he or she is not taking the stand. What is the defendant hiding? Complicated questions.

Jury Instructions

After the evidence has been presented, the court will then instruct the jury on the law applicable to the case. The judge doesn't just wing it with some general statements of what the law is, this is an entirely scripted speech where every sentence, every punctuation mark, every word, has been agreed to in advance by both lawyers and the judge. The instructions tell the jury what evidence is required to convict the defendant, and how the jurors should proceed to deliberate on their verdict. Jurors will be told that the government has the burden to prove every element of the charge against the defendant, "beyond a reasonable doubt". The reasonable doubt standard is defined as are all the elements of the offense charged. Each juror is given a hardcopy of the entire set of instructions.

Final Argument

After the jury has been instructed on the law, the attorneys are given the opportunity to present "final argument", sometimes also called "closing statements" or "summation". This is the opportunity for the attorneys to argue their theory of the case and what they believe the evidence (or lack of evidence) has shown. It is perhaps the most critical stage of the trial because this is where everything comes together to form a logical story tying together all the evidence (or lack thereof) and leading to the conclusion sought by the lawyer.

Because the government has such a high burden (proof of every element beyond a reasonable doubt), the prosecutor is given the opportunity to have the first word and the last word. The prosecutor begins the process by arguing the government's case and asking the jury to return a verdict of guilty. It is the low point in the trial for the defendant, because it is the time when the most compelling case is made against the defendant and every inference that can be drawn from the evidence is turned against the defendant.

When the prosecutor sits down, the court then asks the jury to give their attention to defense counsel. It is that point that I remind the jury of the obligations and commitments they made to me during the jury selection process. I remind them of their role not as advocates, but as impartial judges of the facts. I then proceed with my argument and conclude by reminding the jury that the prosecutor will have the last word and that I will not be able to respond. I ask them to keep my comments in mind and to ask themselves how I would have responded if they hear something new or something that I didn't address in my closing. At that point I sit down and my client's day in court has concluded. The jury will hear nothing further from the defense.

The prosecutor then gets up and makes his "rebuttal" to my argument. It's not unusual for this sequence of three final arguments to take several hours. Once concluded, the jury then retires to the jury room and begins its deliberations.


Verdicts in criminal trials must be unanimous. Each juror votes either Guilty or Not Guilty and all jurors must agree before any verdict can be returned to the judge. When a jury has concluded its deliberations and reached a verdict, they inform the bailiff and are then brought back into the courtroom to have the verdict read. There is nothing to compare to the drama of watching everyone in the courtroom hold their breath as the verdict is being read.

If for some reason the jurors cannot reach unanimous agreement, they inform the court of this fact and a "mistrial" is declared, which has no effect on determining guilt or innocence. It's as though no trial had ever occurred, and the case is put back on the court calendar for further proceedings. Often, the government will choose not to re-try a case, particularly if the jury was split in favor of the defendant.

If the jury votes a verdict of Not Guilty, the case is over and can never be appealed by the government. The defendant is free to go and there are no further proceedings. The parties can all talk to the jurors and ask them questions about their view of the evidence. I learn a lot from my discussions with jurors after a verdict, it's a very useful de-briefing process.

Trial is an exhausting and tense experience, requiring a command of the facts and absolute confidence in presentation to the jury. Most lawyers will spend their entire career never going to trial, and this comes as a surprise to most people who are used to television dramas that always end in a trial. But the reality is quite different. Trial lawyers are a rare breed and the best have established a reputation of a willingness to stand in the arena and fight, win or lose. Prosecutors don't like going to trial, and they confer significant respect to the criminal defense lawyer who actually goes to trial.