A criminal trial can be one of the most stressful experiences in your life.
A jury of six (District Court trial) or twelve (Superior Court trial) or judge (if you elect to waive your right to a jury) determining if you committed a crime or crimes. The prosecution has the burden of proving your guilt beyond a reasonable doubt, unless the defendant is asserting an affirmative defense, where you have the burden of proof of establishing the defense by a preponderance of the evidence. In my experience, most people do not have an understanding of the actual process of a criminal trial from start to finish. As a Criminal Defense Lawyer in Vancouver, WA I’d like to explain.
Criminal Trial Motions in Limine
Typically, a trial will begin with discussing preliminary matters like arguing motions in limine. Motions in limine involve bringing legal issues to the attention of the court in advance of trial. For example, arguing against the admission of evidence like hearsay statements, arguing the relevance of evidence, arguing that even if a piece of evidence is relevant that it is more prejudicial than probative, etc. Arguing motions in limine prior to the jury coming in gives the court a better opportunity to assess the merits of the arguments and prevents the jury from hearing the issues in front of them. In a recent trial, I had I presented a motion in limine to prevent a government witness from testifying about his conclusions about certain evidence. This hearing took over an hour to present and involved rebuttal from both sides as I recall. Even though we did not win on this issue we made a record that would have been useful if we had lost the trial on the main charge. But since we won the trial on the main charge it did not become an issue.
Criminal Trial 3.5 Hearing
In addition, it is routine to have a 3.5 hearing in the preliminary stages of a trial, prior to the stage of a trial where the court and criminal defense attorney select a jury. A 3.5 hearing (District Court under CrRLJ 3.5) or (CrR 3.5 in Superior Court). The 3.5 hearing is where the prosecution intends to admit statements made by a defendant for use at trial. During a 3.5 hearing, typically the prosecution establishes that the statement was obtained lawfully and that it is appropriate for it to be admitted at trial. The defendant has the right to cross examine the prosecution witnesses about the statements, can testify about the statements, and if he or she testifies he or she does not lose the right to remain silent during the main stages of the trial, or he or she can remain silent. Also, if the defendant testifies no one will be allowed to mention his or her testimony on that issue unless the defendant testifies during the trial, and only if it is related to the testimony at the 3.5 hearing. Once the preliminary matters are dealt with, the trial moves to the stage of selecting a jury.
Criminal Trial Jury Selection – Voire Dire
The jury selection stage is called Voire Dire, which means to “speak the truth.” During this stage of the trial, the entire jury panel is sworn to tell the truth and then are divided into a primary panel (six jurors that would serve as the jury if none of them were removed for a District Court trial and twelve that would serve as the jury if none of them were removed for a Superior Court Trial). In my 17+ years of trial experience I have never seen a trial where none of the initial jurors all remained on the panel. So, in questioning the jury you must remember that you need to spend a fair amount of time talking to the primary panel, but also be aware of the jurors that could take the places of the primary panel.
Both sides have peremptory challenges in a trial, so they can remove a juror without having to establish cause. In a District Court trial, each side has three peremptory trials, while in a Superior Court trial each side has six peremptory challenges. In addition, you can have an unlimited number of challenges for cause, which means that you are removing a juror because he or she cannot be fair and impartial to a side. Typically, I remove at least one person for cause from a jury trial, and I had a trial where I was able to remove four jurors for cause. Of course, the jurors have to be honest about the fact that they may not be able to be fair and impartial.
As a top criminal defense lawyer, it’s my job to discover if a juror can be fair and impartial. In a recent criminal trial, three jurors admitted that they could not be fair and impartial to the defense based upon the nature of the charges against my client (Malicious Placement of an Explosive in the Second Degree) that their job (law enforcement arena) biased them in favor of law enforcement witnesses, or job of family members (fire fighters) made them biased toward those witnesses and would be concerned that the nature of the charge would have endangered those personnel, thus biasing them against the defendant. Ultimately the goal is to ensure that a fair and impartial group of citizens will fully and fairly listen to the evidence and determine if the prosecution has proven each element of each offense beyond a reasonable doubt. I commended those panel members for their honesty because it would be unfair to seat them to judge the case in light of those issues. Once the jury is selected, then the evidentiary portion of the trial begins.
Criminal Trial Evidentiary Portion
The parties begin the evidentiary portion of the trial with opening statements. This is the time that the parties outline what they anticipate what their evidence will be and how they believe it will relate to the issues to be decided. The defense can either give an opening statement immediately or they can reserve their opening statement until the prosecution rests their case. In most cases, the defense gives their opening statement immediately after the prosecution’s opening statement. In a recent trial, I used my opening statement to highlight the fact that the jury would hear numerous inconsistencies in the prosecution’s witness testimony, that there were major gaps in the evidence that the prosecution was going to present to the jury regarding what they had and what they needed to prove. Now you must be careful about not engaging in argument at this stage but you can outline what the evidence is or what there is not. Sometimes it is a fine line that you must understand how to appropriately present your case. From there the presentation of evidence begins.
The prosecution puts on their evidence, which usually consists of witness testimony. It may also consist of pictures, documents or even scientific or other tests, like say a breath test reading in a DUI case. The legal defense team can object to evidence and cross examine witnesses and later to present evidence to rebut the prosecution’s evidence. At the conclusion of the prosecution’s case-in-chief, the defense has the opportunity to ask the judge to dismiss a charge or charges case if the defense does not believe that the prosecution has established a preliminary showing that the charge was committed by the defendant. The vast majority of the time these motions are not granted; however, I have been able to successfully argue for dismissal prior to the presentation of the defense case before. If it is granted, then the client wins on a charge or the entire case. If it is not granted, then the defense has the option of presenting evidence or resting.
The decision to present evidence comes down to a judgment call. Sometimes it is smarter to rely on the burden of proof and arguing that the prosecution has not proven their case beyond a reasonable doubt as to a material element of their case. Also, the defense may not have any other evidence to present, so by default all the defense counsel may be able to do is argue that the prosecution hasn’t established their case. When you do have evidence to present, then it typically occurs just like when the prosecution presents evidence. Most time the evidence comes from witness testimony, documents, or test results. The prosecution may then cross-examine your witnesses, object to evidence, and potentially present rebuttal evidence too. Once the evidence has been presented, then the parties move to the jury instruction stage.
Criminal Trial Jury Instruction Stage
In the jury instruction stage the court is asked to review proposed jury instruction on the law and evidence. Most instructions come from approved jury instructions. However, the parties can craft their own instructions. Whatever instructions you present must be approved by the court to present to the jury. If they are not approved, then that becomes a legal issue that could be material in an appeal. Ultimately, the instructions are the guiding principles for applying the evidence to the law and determining if the prosecution has proven the case beyond a reasonable doubt. Once the instructions are decided then the case concludes with the closing argument and decision by trier of fact, which would be the jury or judge, depending on whether or not the defendant has waived his or her right to a jury trial.
Criminal Trial Closing Argument & The Verdict
The closing argument is the last opportunity for both sides to drive their points home to the jury. The prosecution has two opportunities to speak to the jury as they have the burden of proof. They get the initial opportunity, then the defense gets their opportunity and the prosecution concludes with a final opportunity. Cases can easily be won or lost by the quality of the closing argument. Passion, attention to detail, connecting with the jury are all vital components to a winning closing argument. Though at the same time, you must do your best to read the people that are on that jury and respond to what you believe they are thinking and feeling. Sometimes passion must give way to a more methodical, business-like approach, if you feel that the people making the decisions will respond to that approach better. Bottom line, there is no one right way and you must always be willing to reexamine your case’s needs. Once the arguments are concluded, then the final stage is the decision, highlighted by the words “Guilty” or “Not Guilty”.
Criminal Trial Sentencing
If “Not Guilty” is entered on all charges, then the defendant is a happy happy person. If Guilty is entered, then the jury is polled to determine if that was their decision and then from there sentencing occurs. In sentencing, the judge determines what an appropriate punishment will be after hearing from both sides, any victims that choose to speak and the defendant, if he or she chooses to speak. The court may sentence to jail, work crew, home confinement, classes, evaluations for mental health substance abuse, domestic violence (If a DV crime usually), anger management/evaluation, probation, fines or a combination of some or all of these things. Again, once the case is concluded, and if the defendant is convicted of something, then the defendant may appeal as a matter of right to either the Superior Court (If a District Court trial) or the Court of Appeals (If a Superior Court trial).
If you need representation for criminal trial please contact us.
Nicholas “Nick” Wood – Law Office of Nicholas Wood P.S.
Nick Wood received his J.D. in 1999 from Lewis and Clark’s Northwestern School of Law in Portland Oregon. The Law Office of Nicholas Wood, P.S. has represented clients for various criminal defense matters since 2006.