Trial
Below are some guides on issues pertaining to trial that you or your loved one may be facing.
Although this web site may provide information concerning potential legal issues, it is not a substitute for legal advice from qualified counsel. Read our full disclaimer here.
Understanding Discovery
What is discovery?
In a criminal trial, the prosecution must prove “beyond a reasonable doubt” that someone is guilty of the crime they are charged with. Because of this, evidence is very important. Evidence can include documents like police reports, toxicology reports, forensic reports, and photographs. It can also include statements like witness testimony or expert testimony. Evidence can also include physical objects, such as certain clothing, drugs, or guns.
The period of gathering evidence is called “discovery.” Discovery usually happens after a you have been arrested and before trial, but it can continue into trial as new evidence comes up. You can request evidence from the prosecution if you believe they have some evidence that may that help your case. Similarly, the prosecution can also request evidence that they believe the defense has that will help their case.
How does discovery work?
There are several ways prosecution or defense can ask for evidence during discovery. One common way is through a “deposition,” which is when someone is asked to answer questions from both sides’ lawyers while under oath, but outside of court. You can also get evidence through an “interrogatory,” which is when someone answers written questions that they are sent, also under oath. Parties may also get evidence through a “subpoena,” which is a court order that can force someone to testify, questioned,, or produce some other form of evidence.
What can I get in discovery, and what can the prosecution get from me?
The federal government and each state government has its own rules about how discovery works, and jurisdictions may have certain rules about what each side must offer up in discovery. The best way to learn what evidence you are owed and what evidence you may have to give up is to ask your attorney or research the rules in the jurisdiction you are charged in.
No matter where your trial is happening, the prosecution is required to disclose evidence that is “material” (or crucial) to proving guilt, innocence, or punishment. If the prosecution doesn’t turn over evidence that may prove a defendant’s innocence during discovery, a defendant may be able to appeal to overturn their conviction.
Defense may be able to request other evidence from the prosecution. This can include:
statements that the defendant has made that the prosecution has a record of (like statements made during questioning),
test reports that the prosecution will use in its main case or which is important to a defense,
information on the type of testimony that the prosecution plans to use.
While defendants may be required to turn over some evidence to the prosecution, the Fifth Amendment protects defendants from incriminating themselves and may allow defense to withhold some information.
Resources on Discovery:
Understanding Plea Bargaining
What is plea bargaining?
Plea bargaining is a process in which your lawyer and the prosecutors negotiate to come to an agreement that settles your case without having a trial. Either side may initiate the plea bargaining, at any time during the case from arraignment up until a trial verdict. Both sides have to agree before a plea bargain is accepted. Usually, plea bargains are then reviewed by the judge, who can either approve or reject it.
What does a plea bargain involve?
Plea bargains vary based on your case. A plea bargain may involve:
- You pleading guilty to some or all of the charges against you in exchange for the prosecutors reducing the number of or severity of the charges against you.
- You pleading guilty to a lesser charge, with a lower sentencing range, than the crime you were originally charged with.
- You pleading guilty to your original charge in exchange for the prosecutors recommending to the judge that you receive a reduced sentence.
These are just some possible terms of a plea bargain. In the end, sentencing is still determined by the judge and the judge does not have to go with the sentencing recommendation of the prosecutors.
What are the consequences of plea bargaining?
There are consequences to be mindful of when choosing to accept a plea bargain. You avoid the time and cost of taking your case to trial, and potentially reduce your sentence—potentially receiving a lesser sentence than the one you might receive if you are found guilty at trial. However, by accepting a plea bargain you are giving up your constitutional right to a jury trial. Once you’ve agreed to a plea bargain, you are accepting a conviction and announcing that you are “guilty” of a crime. Once you accept a plea bargain, you cannot change your mind and you are bound to the agreement.
Resources on Plea Bargaining:
Jury Trial
What is a Jury Trial?
In a jury trial, a group of 6-12 individuals selected from the general public determine fault. This contrasts with a bench trial, where the judge determines fault. Both criminal and civil trials can be heard by juries instead of a judge.
What is the role of the jury?
The jury is the trier of fact, meaning that its role is to review the facts to determine a verdict. Civil trials usually have at least six people on the jury and the jury must come to a unanimous decision unless otherwise specified. Criminal trials are made up of twelve jurors and alternate jurors, and they must come to a unanimous decision if they believe you are guilty. At the end of the trial, the judge directs the jury to the applicable laws. The jury must listen to the judge in regards to the law, but only the jury is responsible for determining whether a defendant is “guilty” or “not guilty” in a criminal case, and “liable” or “not liable” in a civil case. In criminal cases, after the jury has given their verdict, it is the judge’s job to sentence the defendant.
How is a prospective juror selected?
First, every district court randomly chooses citizens from a list of registered voters and people living in their district with driver’s licenses. Those randomly selected people fill out a questionnaire to determine whether they are qualified to serve as a juror. In most states, people who are convicted with felonies cannot serve as jurors. Finally, there is another round of random selection from those who qualify to determine who will report to jury duty. The goal of this process is to ensure that the jury is representative of the broader community.
What happens after jury selection?
Just because a citizen has been selected for jury duty does not mean that they will actually serve as a juror. After citizens are selected, they are questioned by the judge or the lawyers in a process called voir dire (to tell the truth) in order to determine whether or not the jurors will be able to decide the case fairly and without bias. A potential juror can be excused with or without cause by either the prosecutor or the defense attorney. There is no limit to the number of jurors either lawyer can request to be excused with cause. Each lawyer also has a certain limited number of peremptory challenges, which do not require an explanation of cause. However, peremptory challenges cannot be used to discriminate on the basis of race, gender, ethnicity or any other protected characteristic.
Resources:
https://www.uscourts.gov/services-forms/jury-service/learn-about-jury-service
Appearing in Court
What can I expect at my first court date?
The first court date in a criminal case is usually the “initial appearance,” which is supposed to happen within 48 hours of the arrest. At this point, you should learn more about the charges and whether you will be released or held in jail until your arraignment. If the judge decides you will be released on bail or bond, they may also set an amount that must be paid for your release.
Your next court appearance will likely be at the arraignment where the judge will read or give you a copy of the charge and ask you to plead guilty or not guilty. If you or your loved one are out on bond or bail, you will get a notification in the mail about the date and time for this court date. Typically at an arraignment, the courtroom is full of people who are also there for their arraignments, so you will have to wait until your name is called. At that point, you will walk up to the front of the courtroom.
It varies by state and court, but the first opportunity to talk to your court-appointed lawyer is usually immediately before or immediately after your arraignment. You and your lawyer do not need to bring any evidence or witnesses with you to the arraignment, as the arraignment is not the hearing where the judge or a jury will hear your case.
What if I cannot make my court date or if I do not show up?
If you fail to appear for your court date, you could be charged with a misdemeanor or a very minor crime depending on your state. The judge can issue a warrant for your arrest, impose a jail sentence or fines, or suspend your driver’s license. So it is very important to show up on your court date.
The court might grant a request to postpone the date of the hearing, but they are usually reluctant to do so except in extraordinary circumstances.
Other things to keep in mind:
Get to the courthouse at least 15-20 minutes early. Parking close to the courthouse can be difficult and crowded, and it takes time to go through security and find the correct courtroom.
Be prepared to be at the courthouse for a long time, as you might have to wait several hours for your name to be called. Make sure you take off time from work or arrange for childcare if possible. Dress appropriately, and, if it would be helpful, bring a trusted friend for moral support.
If you have a disability and you need an accommodation, you are entitled to certain assistance free of charge under the Americans with Disabilities Act.