Trials

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Every citizen is entitled to a trial, either before a jury or a judge. Very few citizens ever go through the actual trial process, however. The vast majority of cases will either be dropped, resolved through a negotiated plea, or end in a plea to the court and sentencing hearing. Whether to go to trial or not is a critical decision that must be made ultimately by the client, with the counsel of the attorney.

Why wouldn't I go to trial?

The criminal justice system is designed to reward people who plead guilty and punish people who go to trial. This seems to be in direct contradiction to our constitutional right to a trial and the presumption of innocence. However, in both State and Federal courts, the sentence after a guilty verdict at trial will almost always be more severe than a guilty plea prior to trial. This doesn't mean that you shouldn't go to trial.

Why would I go to trial?

There are several reasons why you may want to go to trial. First, many times prosecutors play a game of chicken with the accused. They try to negotiate a plea before trial knowing that they are going to drop the case just before trial if the person does decide to go to trial. Many times, attorneys are able to uncover evidence, lack of evidence or a conflict of evidence that can increase the probability of success at trial. If you are found not guilty, you go home with no penalties and no criminal conviction. And finally, sometimes, there is no downside to going to trial. In some situations, the sentence will be or is likely to be the same regardless of whether you plead guilty or go to trial. It is important to consult with an experienced attorney with knowledge of the particular judges and prosecutors so he or she can properly advise you of the risks versus the rewards of going to trial.

What happens at trial?

Trial consists of:

1) Motions in Limine - Legal motions that either side can make to include or exclude evidence from the trial.

2) Jury selection - The process of selecting a jury. Both the prosecutor and the defense get a certain number of challenges that allow them to exclude potential jurors. Other jurors may be excluded for cause, for reasons like they have a family emergency or can't be fair. In Florida, there are typically 6 jurors and 12 jurors for capital cases.

3) Opening Statements - In opening statements, the prosecutor goes first and the defense attorney goes second. Both sides tell the jury what they expect to prove or disprove during the course of the trial and whey the jury will find the person guilty or not guilty.

4) Direct Examinations - When either side calls a witness, the conduct a direct examination of that witness, which includes open ended questions - Who, what, where, when, why, how. The side calling the witness asks questions, then the other side cross examines the witness, then the calling side gets to ask follow up questions relating to questions asked on cross examination.

5) Cross Examinations - When the other side calls a witness, the opposing attorney can ask closed ended questions. Isn't it true that... Didn't you... The purpose of cross examination is to call the witnesses credibility into question. In other words, to try to convince the jury not to believe all or some of what the witness is testifying about.

6) Closing Arguments - After both sides rest, the prosecutor gives a closing argument, followed by the defense attorney and then the prosecutor gets to give a rebuttal argument. This means that the defense attorney's closing argument is sandwiched between the prosecutor's.

7) Jury Instructions - Either before or after the closing arguments, the judge will read the jury instructions to the jury. These are the rules that the jury is bound by and instructions on how they are to conduct their deliberations.

8) Verdict - Once the jury goes back to the jury room and elects a foreperson, they will talk about the evidence and the law and must reach a unanimous verdict. That is, everyone must agree on whether the person is guilty or not guilty. If they cannot all agree, there will be a mistrial declared and the State can retry the person.

What happens if I'm found guilty at trial?

When a person is found guilty at trial, the judge can, and usually does, take the person into custody if that person was out on bond pending trial. In some cases, the judge may allow the person to remain out on bond pending sentencing. After trial, the defense attorney will file a motion for new trial and the person can file a notice of appeal. The case will be passed for a sentencing hearing.

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