What to Expect From The Trial Process

Part 5 - What to Expect From The Trial Process

After working with your criminal defense attorney for weeks, or even months, following your arrest, a criminal trial will be the next step in the process. The trial process is very structured and allows for both sides to present evidence and arguments to the jury in order for them to make a decision about whether or not the defendant is guilty of the charges against them. If you are facing criminal charges and have not resolved them outside of court (such as with a plea bargain) here is what you can expect from the trial process.

Jury Selection

Jury selection, also known as Voir Dire, is a critical part of the U.S. Court System. In Colorado, serious criminal cases have larger juries of 12 jurors while less serious crimes have juries of 6 jurors. “Alternate jurors are selected in some cases to take the place of jurors who may become ill during the trial. Alternate jurors hear the evidence just as the other jurors do, but they don’t participate in the deliberations unless they replace an original juror.” Alternate jurors do not know they are an alternate until the end of the trial, right before the jury is set to go back and deliberate.

Jury Selection begins when the court’s clerk calls 12 individuals on the jury list to take a seat in the jury box. The judge will make a statement regarding the type of trial and whether there is any reason the potential jurors cannot serve. The judge and attorneys will ask the potential jurors whether they have any knowledge of the case that would render them to be biased. The attorneys will ask other questions to see whether any jurors should be disqualified. Most jurisdictions in Colorado also have the jurors fill out juror questionnaires beforehand as well so that the attorneys have a starting point from which they can ask the individual jurors questions about their answers.

Each side has a certain number of preemptive strikes that they can use to kick off potential jurors from the jury, and both sides can ask to dismiss any juror if they believe that they can have the person dismissed for cause. Dismissals for cause can happen when jurors say that they cannot follow the law or if they have a relationship to anyone involved in the case. When each side has agreed on the jury, the clerk swears in the jurors and those not selected are excused.

Sample Questions and Weeding Out the Jury Pool

Both attorneys will ask the potential jury members questions to determine whether they will be biased and whether they can serve on the jury. Some of the questions include the following:

1. Background questions about the juror including their occupation and educational background.
2. Whether the potential juror has any knowledge about the case.
3. Whether the potential juror personally knows anyone involved in the case (including the judge or the legal team on either side).
4. The potential juror’s knowledge and attitude toward the criminal justice system.
5. Whether the potential juror has been a juror before and if so what the outcome was.
6. Questions regarding the potential juror’s beliefs on controversial topics that may come up in the case.

Opening Statements

The opening statement happens after jury selection. Opening statements are the beginning of the trial and they provide the attorney the first opportunity to address the jury in a trial. In an opening statement, the attorney will give the jury a preview of the case, how they believe the evidence will come out during trial, describe the parties, nature of the dispute, and preview evidence that will be used. The attorney will indicate what they intend on proving.

“Generally, the party who bears the burden of proof (plaintiff in a civil case or prosecution in a criminal case) begins the opening statements, followed immediately after by the adverse party (defendant).”

Prosecution’s Opening Statement

The prosecution will generally indicate what their burden of proof is and tell the jurors what is at stake for the defendant and to keep an open mind when listening to the evidence.

Your Defense Attorney’s Opening Statement

The defense attorney will often provide a narrative that presents the defense’s theory of the case to the jury.

Your Defense Attorney’s Role In The Prosecution’s Case-In-Chief

Objections

There are various objections the attorney can make during examinations in Colorado courts these can include the following:

• Irrelevant
• Prejudicial
• Hearsay
• Leading
• Prior Bad Acts
• Beyond the scope of direct
• Asked and answered
• Assumes facts not in evidence
• Compound question
• Misstatement of the record (misquoting the witness)
• Argumentative
• Improper impeachment

Cross-Examination

When the prosecuting attorney or the lawyer for the plaintiff has finished questioning a witness, the defense attorney may then cross-examine the witness. Cross-examination is generally limited to questioning only on matters that were raised during direct examination. Leading questions may be asked during cross-examination since the purpose of cross-examination is to test the credibility of statements made during direct examination.

Cross-Examination Is a Key Part of Your Defense

Cross-examination may be helpful to your defense to show the witness’s inability to identify or recollect evidence, impeach (or reduce the credibility) or witnesses, or show that there is bias. Some common cross-examination techniques include:

• Challenging the witness’ credibility with prior inconsistent statements
• Exposing a motive to lie (such as a deal with the prosecution)
• Challenge the factual basis for their opinion (in the case of an expert witness)

• Questioning the contents of the police report (when examining the arresting officer for example)
• Challenging the facts of an eyewitness account

The Defense Case 

Potential Defenses

• Self Defense
• SODDI (“Some Other Dude Did It”)
• Consciousness of Innocence
• Good Faith
• Alibi

Should You Testify?

There are various reasons why a defendant would choose to testify, or not to testify. Some of the reasons are listed below. Your attorney will help you determine what is the best way to proceed with your case.

• No Inference of Guilt
• Presumed Innocent Until Proven Guilty
• The Rigors of Cross-Examination
• Otherwise Inadmissible Evidence
• Your Theory of Defense
• Jurors Want to Hear from the Defendant
• Your Credibility as a Witness

Closing Arguments

Closing arguments are presented by each party and provide a summary of the case and an explanation as to why the jury should decide in favor of the presenter’s position.

Your Defense Attorney’s Role During The Prosecutor’s Closing Argument

Your attorney can object during the prosecution’s closing argument if the prosecution brings up any of the following in their closing statements:

• Appeals to Passion
• Comments on the Defendant’s Silence
• Reliance on Racial or Ethnic Stereotypes
• Misuse of Evidence Admitted for Limited Purposes
• Misstatements of the Evidence

Your Defense Attorney’s Closing Argument

Your attorney will then get to close the case with your theory of defense and ask the jurors to find you not guilty. Often, defense closing arguments involve the following:

• Telling a Story
• Showing Jurors How To Apply “Beyond a Reasonable Doubt”
• Educating Jurors on Their Role
• Using Physical Exhibits and Demonstrative Aids

Jury Instructions, Deliberations, and Verdict

At the end of the case, the jury will hear final arguments and receive jury instructions. The jury will go to the jury deliberation room and select an individual to be the foreperson to preside over discussions and deliver the verdict.

When the jury reaches a decision, they will notify the clerk who will notify the judge. Everyone will reconvene in the courtroom where the decision is announced.