Monday, December 7, 2009

Anatomy of a Trial

Last week a reader, Steve, posted in the comments section this question:

"In Texas do they have a separate penalty phase trial in death penalty cases such as California?"

Which I will answer in a moment.

But it made me realize that I haven't explained how a trial works. In substance they are all different, of course, all fact-dependent, but the basic skeleton is the same: a two-part sytem whereby guilt is assessed in the first phase, in other words where the jurors are faced with the yes/no issue of "Is the defendant guilty of the crime charged?"
Then comes the second phase, the assessment of punishment (i.e., probation? How many months/years in jail?) if the defendant is found guilty in phase one.

Here's how it breaks down, starting with the Guilty/Not Guilty phase:

1. Voir dire -- on Monday afternoon after the morning docket, the panel of 60 jurors is seated and the lawyers conduct voir dire. Here in Travis County, we always have two ADAs trying a case, the lead lawyer (aka the "first chair" and a helper, or "second chair"). The first chair prosecutor goes first, then the defense attorney talks to the panel. Strikes for cause and peremptory challenges are made, and the final 12 is chosen.

2. The reading of the charge -- this usually happens Tuesday morning. Before the trial gets under way one of the ADAs will stand before the jury and read the indictment. The defendant will be asked how he pleads (always "not guilty," hence the need for a trial).

3. Opening statements -- immediately after the reading of the indictment the prosecution will give its opening statement. It's called a "statement" as opposed to an "argument" because both sides are limited to telling the jury what they believe the evidence will show, as opposed to arguing what the evidence means. For the State, it's usually the first chair who gives the opening.

4. State's case -- the State will put on all the witnesses it belieevs it needs to prove the case beyond a reaosnable doubt. When finished, the ADA will tell the judge and jury that "The State rests."

5. Case for the defense -- if the defense is planning to call witnesses, to mount a defense that way rather than arguing that the State has simply failed to meet its burden, then this is when the defendant's witnesses testify. Once they have done so, the defense counsel will similarly anounce, "The defense rests."

6. State's rebuttal witnesses -- if the defense has put on witnesses, the State may call additional witnesses to rebut their testimony. For example, if the defendant calls his boss to testify that he believed the defendant was working that day, the State can call his work colleagues to testify that, in fact, he was not at work that day.

7. The "Close" -- after all rebuttal witnesses, the State will tell judge and jury "they State closes." The defense will do the same.

8. Preparing the Jury Charge -- if it hasn't been done beforehand, or during trial, the judge will hand a copy of his proposed charge to the prosecutor and defense lawyer. If they are satisfied with its contents (see below) they say so, or if not they ask for changes. The judge has the final say what is included.

9. Reading the Jury Charge -- The jury is brought back in and the Judge reads the charge to them. So what is the charge? The charge lays out the elements of the crime charged, and gives legal definitions for some or all of those elements. For example, in a DWI case the charge will give the legal definition of "intoxication." The charge is a roadmap for the jurors to follow in deliberation, and they are told to consider only those issues included in the charge. Another example: in a murder trial a jury cannot deliberate on whether the defendant is insane if that issue isn't inlcuded in the charge.

10. Closing arguments -- most lawyer's favorite time. Studies show that most jurors have made up their minds by this point, but we don't seem to care. We are far too impressed with our rhetorical skills and powers of persuasion to worry about that! Again, because we have the burden of proving the case, the State goes first. Then the defense gets to argue, and when they are done the State gets to finish the argument. Usually, here, the second chair takes the first part of closing, and the first chair takes the last part.

11. Deliberations -- after the closings, without further ado, the jury is sent to begin its work.

12. Punishment phase -- if the verdict is "not guilty" then that's it, there is no more. If it's "guilty" then we move onto the punishment phase. This second trial is structured pretty much like the first, in terms of who does what when. The State puts on evidence of other nasty thins the defendant has done, and the defense puts on mitigating evidence.


  1. On a somewhat related theme Step 1 made me wonder if a Grand Jury has a Voir dire process?

  2. Thanks for the information. Excellent. Keep up the informative posts.


  3. How could there possibly be voir dire for a grand jury? That process is all so secretive and those targeted may not even know that charges might be under consideration and thus may not even have an attorney at the time of grand jury impaneling. Also, the terms are for a long time and involve many cases, so some may end up dealing with incidents that transpired after the selection of the grand jury members.

    I’m almost certain that the pool of grand jury prospects is not formed from random summons of voters and drivers. Since it requires a long term time commitment I imagine that service is by invitation or request to wealthy citizens with time on their hands.

  4. "...I imagine that service is by invitation or request to wealthy citizens with time on their hands."

    That is one of the silliest things I've read in awhile. Really, someone actually believes that our system operates in such a way?

    Why not opine that the Grand Jury is made up 7th graders that got lost on a tour of the courthouse? It makes about as much sense.

  5. A jury trial voir dire has a judge, a prosecuting attorney and a defense attorney and as I understand the voir dire has the judge and prosecution so I understand your point yet was wondering what is on the 'other side of the scales' as to this part of the process. I infer there is none. I am not making a process 'statement' just trying to understand. I also understand the voir dire to have one of objectives being an attempt to remove bias yet do not see the check and balance here. Perhaps it does not exist at this point in the process. I have also heard the selection to participate to be somewhat a merit badge as to social status, economic or otherwise. I would hope it is more than that but I am sure it is more complicated than that. I wonder about the 'why' as to the secret aspect. Perhaps a security concern. I thought the process was to provide an open system in most cases. Not a secret smoke filled back room deciding which cases come forward. The term of a grand jury, are we talking of weeks, months or years?

  6. Mackie,
    Great questions, all. I will put together some answers and post them for you, hopefully this week.


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