1. Criminal Evidence 6th Edition
Chapter 2 The Trial Process
Criminal Evidence 6th Edition
Norman M. Garland

2. Criminal vs. Civil Trials A World Apart?
Although there are vast differences between criminal and civil trials, there is very little difference between the rules of evidence applicable in a criminal case and those in a civil matter.
Perhaps the most marked difference is the amount of proof necessary.
In a criminal case, the prosecution must present enough evidence to convince the jury of the guilt of the defendant beyond a reasonable doubt.
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3. Burdens of Proof: Civil vs. Criminal
In a criminal case, the prosecution must present enough evidence to convince the jury of the guilt of the defendant beyond a reasonable doubt.
In a civil trial, only a preponderance of the evidence must be presented on the part of one side or the other to receive a favorable judgment.
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4. Officer’s Duty to Satisfy the Criminal Burden of Proof
The law enforcement officer must help to gather and prepare the evidence for trial to ensure that the prosecutor can present enough evidence to fill in the gap between the police officer's standard of probable cause and the prosecutor’s standard of proof beyond a reasonable doubt.
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5. Jury Trial vs. Bench Trial
A criminal trial may be conducted in one of two ways. It may be what is known as a "jury trial" or it may be a "court trial," which is a trial by a judge without a jury (also known as a "bench trial").
A trial before a judge alone is conducted in much the same manner as a trial before a jury.
The structure of the trial is the same and the same rules of evidence apply.
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6. Juries and the Bill of Rights
The Sixth Amendment to the United States Constitution prescribes no set number for a jury. All the Amendment states is: "In all criminal prosecutions, the accused shall enjoy the right of a speedy and public trial, by an impartial jury."
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7. Qualifications of Jurors
A person is qualified to act as a juror if the person is:
(1) a citizen of the United States
(2) a resident of the state
(3) at least 18 years of age
(4) of sound mind
(5) in possession of the person's natural faculties
(6) able to read or speak the English language
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8. Selecting a Jury
In most jurisdictions, jurors are identified from voter registration lists and called to service in large groups for periods varying from one day to a matter of weeks.
The pool of available jurors in a courthouse on any given day provide the pool sent to any one courtroom, which pool is called the venire.
After that pool enters the courtroom, the judge engages in a general introduction and the initial questioning of the prospective jurors.
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9. The Purpose of the Voir Dire
The purpose of voir dire is to eliminate from the jury any person who is incapable of acting impartially.
Any prospective juror found by the judge to be biased or prejudiced against the parties, as to the type of case, by pre-trial publicity, or any other factor that may reasonably affect the prospective juror's ability to be fair, may be grounds to exclude the juror for cause on a motion made by the prosecution, the defense, or the judge.
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10. Challenges to Potential Jurors
Challenges for Cause
Such motions are known as challenges for cause. There is no limit to the number of challenges for cause that may be made.
Peremptory challenges
A juror may be excluded based on a peremptory challenge for any reason or no reason whatsoever.
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11. An Exception to the Exercise of a Peremptory Challenge
The only exception is that neither the prosecution nor the defense may exercise a peremptory challenge in a discriminatory manner that violates the Equal Protection Clause of the Fourteenth Amendment to the Constitution of the United States, particularly with respect to the race of the prospective juror.
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12. The Function of the Jury System
The jury interprets the evidence as it is presented and tries to determine what happened. The jury's ultimate goal in a criminal trial is to ascertain whether the defendant is guilty beyond a reasonable doubt of the crime as charged.
The ultimate function of the jury in a criminal case is rendering a verdict of guilty or not guilty; however, in some states the jury also determines the sentence to be imposed.
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13. Jury Nullification
Should a jury acquit an accused for the wrong reason, or for no reason at all, the law is powerless to correct the error.
This means that if the jury does not wish to follow the law, for whatever reason, there is no redress.
This power is known as jury nullification because it is a fact that the jury may thereby nullify the law.
This power is little known and rarely discussed.
It is not lawful for a judge or lawyer to tell a jury of its power to nullify.
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14. The Judge: In Charge of the Courtroom
The judge's principal responsibility is to see that the defendant in a criminal case gets a fair trial.
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15. Duties of the Judge Deciding what law applies to the case.
Interpreting the law of the case for the jury.
Deciding what evidence is admissible and what is not.
Ruling on objections made by the attorneys.
Determining the qualification of witnesses.
Protecting witnesses from overzealous cross-examinations.
Ensuring that the trial proceeds efficiently and effectively.
In most states in most instances, imposing sentence upon the defendant in a criminal case.
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16. Contempt of Court: “Holding the Keys to Your Jail Cell”
Contempt is the power of the court to punish persons for failure to obey court orders or to coerce them into obeying court orders.
A person held in civil contempt is said to "hold the keys to the jail cell in his or her pocket." If the person complies with the court order, he or she will be released from custody.
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17. The Prosecuting Attorney’s Responsibility
Prosecutors must decide which criminal charges should be prosecuted and which should be dismissed in the interests of justice.
The prosecutor has broad power to decide whether or not to pursue any given case. The public has a right to demand that the prosecutor use that power wisely and impartially.
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18. Some Specific Prosecutorial Considerations
In deciding what evidence to use, the prosecutor will consider:
past experience with the particular charge involved
knowledge of the personality of the judge who will be hearing the case
the potential dramatics of the situation as the trial progresses
an obligation to disclose, to the defense attorney, any evidence that could be used to aid the defense
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19. The Prosecutor’s Burden of Proof
The United States Supreme Court has held that the Constitution makes it the responsibility of the prosecutor to prove every element of a charged offense beyond a "reasonable doubt."
The Court has also held that the "Constitution does not require any particular form of words be used" in instructing the jury on the definition of reasonable doubt.
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20. What Is Reasonable Doubt?
In practical terms, the Court has approved a definition that indicates that reasonable doubt is a doubt based upon reason; that which would make a reasonable person hesitate to act in connection with important affairs of life.
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21. A Case Law Definition of Reasonable Doubt
It is not a mere possible doubt; because everything relating to human affairs is open to some possible or imaginary doubt. It is that state of the case which, after the entire comparison and consideration of all the evidence, leaves the minds of the jurors in that condition that they cannot say they feel an abiding conviction of the truth of the charge.
Victor v. Nebraska, 511 U.S. 1 (1994)
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22. The Role of the Defense Attorney
Defense counsel's primary function is to make certain that all the rights of the accused are properly protected.
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23. Specific Duties of the Defense Counsel
Conduct pre-trial investigation and discovery and otherwise prepare for trial.
Advise the accused concerning statements that he or she may or may not make.
Cross-examine the prosecution witnesses and present any defense necessary under the circumstances.
Assure that the defendant receives a fair trial.
Zealously represent the accused.
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24. Step-by-Step: The Trial Process
Opening Statement
Case-in-Chief
Direct Examination
Cross Examination
Judgment for Motion of Acquittal
Closing Statements
Prosecution’s Rebuttal Statement
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25. The Opening Statement
After the charge has been read to the jury, the trial proper begins with the prosecution's opening statement.
The opening statement is a summary of how the prosecution expects its evidence to prove the defendant guilty beyond a reasonable doubt.
An opening statement is often given in the form of a story, but it is a story in which the attorney promises to support the narrative with positive proof.
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26. The Case-in-Chief
The case-in-chief is that portion of the case consisting of the main evidence of either the prosecution or defense. The prosecution has the burden of going forward with its case-in-chief, presenting witnesses and exhibits.
The prosecution proceeds by direct examination with these witnesses and the witnesses are subject to cross-examination by the defense.
After the prosecution has concluded its case, the defense will present its case-in-chief, with the prosecution cross-examining defense witnesses.
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27. The Defense’s Opening Statement
After the prosecution rests, the defense will give an opening statement, if the attorney did not do so after the prosecution's opening statement.
Then the defense will present its side of the case in an effort to raise a reasonable doubt.
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28. What Is the Defense’s Burden?
Because of the presumption of innocence, the defendant does not have to present any evidence at all, for the burden of proving the defendant guilty rests entirely on the shoulders of the prosecution, without any help from the accused.
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29. Defense Strategies and Concerns
In many cases, the defendant will present some evidence—either alibi, character, justification, or excuse evidence.
The defendant may testify and deny guilt or support some affirmative defense, such as alibi, self-defense, or insanity.
An affirmative defense is a reason under the law that allows a defendant to claim to be exonerated, one that the defendant must affirmatively claim and prove.
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30. Prosecution’s Rebuttal
Upon completion of the presentation of all the evidence on behalf of the defendant, the prosecution has the right to call additional witnesses or to present new evidence only to overcome new matters brought out during the defendant's case.
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31. Defense’s Prima Facie Case
The prosecution must establish:
The jurisdiction of the court.
The corpus delicti of the specific offense charged.
The facts that could lead a reasonable juror to believe that the accused is the responsible person.
After the conclusion of the prosecution's case-in-chief, the prosecution rests its case.
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32. To Qualify as a Witness
In order to qualify as a witness, a person must:
be able to understand what it means to tell the truth so that they can take the oath (or affirm) that they will do so
possess personal knowledge of some perceived relevant facts about the case
be able to remember those facts
be able to communicate them
All other matters relating to being a witness, under modern law, go to the weight of the witness's testimony, not the witness's qualification.
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33. Direct Examination
The questioning of a witness by the side who calls the witness is known as direct examination.
Direct examination usually begins by asking the witness his or her name, address, and occupation. Even though this information may be well known to all in the courtroom, it is necessary for the court record of the case.
After these preliminary background questions are completed, the general questioning of the witness concerning the specific facts of the case begins.
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34. The Scope of Direct Examination
During the direct examination, whether it be by the prosecution or the defense, the attorney must form the question in such a manner that the desired answer is not indicated.
An example of a leading question is: "The defendant had a gun in his hand, didn't he?"
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35. Cross-Examination
After the direct examination is completed, the opposing side has the right to cross-examine the witness.
The right of cross-examination is considered essential for the discovery of truth during a trial.
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36. The Attorney’s Task on Cross-Examination
First, the cross-examiner may hope to shake the witness's story and thereby cause the jury to give the testimony less weight.
Second, the cross-examiner may try to show that the witness is prejudiced and consequently may have testified incorrectly or untruthfully.
Third, the cross-examiner may try to show that the witness has made prior, inconsistent statements and thus should not be believed by the jury. In any event, cross-examination is frequently a trying experience for the witness involved.
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37. Redirect Examination
Upon conclusion of cross-examination by the opposing attorney, the direct examiner may further question the witness in order to rebut or clarify matters raised during cross-examination.
This further questioning is known as redirect examination and is only for the limited purpose of rebuttal or clarification of information brought out during cross-examination.
New matters are not allowed to be brought out for the first time on redirect examination.
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38. Re-Cross- and Subsequent Examinations
After a redirect examination has been conducted, the judge may give permission to the opposing attorney to ask questions limited to further clarification of statements made by the witness during the redirect examination.
This questioning is referred to as re-cross-examination.
Likewise, after re-cross examination, and thereafter, in rotation, the opposing attorneys may, at the court's discretion, be permitted further questioning.
None of these further steps is necessarily required and any questioning past redirect examination is purely within the discretion of the trial judge.
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39. Defense’s Surrebuttal
The defense may be allowed to rebut new evidence properly introduced by the prosecution during its rebuttal of the defense.
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40. Closing Arguments
After both sides have presented their cases, the prosecutor and defense attorney may make closing, or final, arguments to the jury.
These arguments, unlike opening statements (where the attorneys present a roadmap of the case), are the opportunity for the lawyers to summarize the case in an overt attempt to persuade the jury to their view of the evidence.
Attorneys are allowed to appeal to the jury based on any inferences that may rationally be drawn from the evidence.
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41. The Judge’s Instructions or Charges to the Jury
When the attorneys for both sides have finished their closing arguments, the judge will read the instructions to the jury.
Sometimes, the judge instructs the jury before closing arguments.
In rarer instances, the judge may even instruct the jury at the beginning of the trial.
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42. What Are Instructions or Charges?
Jury instructions consist of an interpretation of the substantive and procedural law that applies to the case.
The purpose of these instructions is to assist and guide the jury in its review of the evidence in order that it may arrive at a verdict.
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43. Outcomes From the Deliberation
Hung Jury
If the jurisdiction requires a unanimous verdict and the jury cannot reach one, the result is known as a hung jury.
When a jury is hung, the judge must declare a mistrial and discharge the jury.
If there is to be a retrial, it must be before an entirely new jury.
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44. Jury Outcomes Guilty Acquittal
If the jury's verdict is guilty, the defendant must be sentenced.
Acquittal
If the defendant is acquitted, he or she is immediately released from custody and may not be tried again on the same charge, because of the Double Jeopardy Clause of the Fifth Amendment to the Constitution of the United States.
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45. Sentencing: The Next Step for the Convicted Defendant
Sentencing procedure varies widely among the states and between the states and the federal government.
In most states and the federal system, the judge imposes sentence and the judge's sentencing options are dictated by sentencing guidelines for particular crimes.
If prescribed sentencing guidelines do not exist, the judge has some discretion as to the sentence within statutory limits and alternatives.
In some states, the jury imposes sentence.
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