5. Discovery and law and motion in a criminal proceeding

Both at the preliminary hearing and in special hearings set before trial, defense counsel can bring various motions, such as motion for additional access to the district attorney's evidence ("discovery motions") and/or motions to suppress evidence since illegally seized, etc. While the defendant does not have to deliver to the district attorney documents and the like in the sole possession of the defendant since there is a right not to incriminate oneself (Fifth Amendment) while no such rights protect the State. Indeed, the district attorney is required to deliver to defendants any relevant evidence and list of witnesses. (Some courts have required the defendants to deliver some evidence, such as a list of witnesses, but the discovery allowed the State is very, very limited in all instances.)

Such critical documents as witness statements, police reports, laboratory reports, finger print reports, etc, are all usually delivered to the defense counsel and failure of the district attorney to deliver the documents prior to trial and in the complete condition in an effort to hold back relevant information has been found to be grounds for reversal of convictions. The right of the defendant to see such evidence has been so well enforced by the courts that most district attorneys now make it a practice to deliver all documents without need for a motion. Since the police report and laboratory reports are delivered to the district attorney by the police and are usually vital sources of evidence, it is clear that immediate access to them is a primary goal of any competent defense counsel. Cross examination of police using the police report or of the experts using the laboratory reports is the most common defense presented by the defendant in most cases.

There are numerous other motions defense counsel can bring during this period and often two, three or more hearings are held as the two sides prepare for trial. It is during these hearings that the various rights of the defendant under the Bill of Rights are most often argued with more or less success. By far the most common motion once brought was the motion to suppress evidence illegally seized or to suppress a confession illegally obtained. While the motions are still common, the Courts seldom grant the motions in the present climate and what once resulted in many dismissals of cases are not often successful today.

 

6. Trial

The drama of an American trial is so often a matter of television and movies, not to mention books, articles and "live" newscasts, that the average person in the world is quite familiar with its basics:

1. The attorneys first make any last minute motions they wish to before the judge concerning evidentiary issues or last minute motions to suppress. Usually, at this time, the judge requires the lawyers to prepare their suggested instructions in law that the judge is to present to the jury. This is at times the most vital question of the entire trial since the jury is required to follow the judge's instructions in their deliberations and the district attorney and defense counsel often argue vehemently to the court as to the proper instructions the jury s to receive and improper instructions are often the subject of appeal. During the trial the judge may review the instructions to determine which ones he or she will actually use in advising the jury as to what law they may use during their deliberations. It is common for the judge, out of the presence of the jury, to have the lawyers argue in favor or against various instructions submitted by the other side.

 

2. The opening statements of the parties then occurs, lasting usually a few hours, sometime longer, and those openings are then followed by the district attorney's case in chief during which the district attorney must prove his case and his witnesses are cross examined by the defense counsel. Finally the defense case is presented with any witnesses the defense wishes to utilize. It is to be recalled that the defense does not have any burden of proof and quite often has no witnesses whatsoever...being content to merely attack the district attorney's case by cross examination and to argue that the district attorney has failed to meet the burden of proving guilt beyond a reasonable doubt. It should also be recalled that the defendant need not take the stand to testify and cannot be forced to testify by either the court or the district attorney.

 

3. Lastly, both sides can give the closing arguments and these arguments often can win or lose the case and can last for days.

 

4. The judge then instructs the jury on the law that applies to the case and sends them to a separate room to deliberate and hopefully render a verdict.

 

Both sides can present witnesses, both sides get to cross examine the other side's witnesses, either side can demand a jury trial and if both waive the jury, the matter is heard by the judge alone. The jury is composed of twelve persons (in certain states, six) chosen at random, usually from the voter's roles. Both the State and the defense get to question the jury to determine if they will be fair and impartial and have a certain number of challenges they can bring. (This process is called "voir dire.") Often the judge will, alone, conduct the voir dire, sometimes using questions submitted by the legal counsel. More often, the lawyers will be allowed, for at least a limited time, to question the potential jurors. Voir dire usually only takes a day or two but in major cases involving controversial issues, may take weeks.

The actual evidence to be considered by the jury consists of both documents and oral testimony which is submitted via witnesses who testify under oath and are cross examined by the opposing party. The judge may, but very seldom does, ask a few questions of witnesses and rules on any objections made by legal counsel as to questions propounded by the other side. The jury is never allowed to do more than listen and may have no other contact with the parties or their counsel except to be in court listening to testimony.

Trials can last only a day or two but more usually a week or two. Some trials last months. Each side is allowed to present all the witnesses it wishes, so long as their testimony is relevant. At the end of the testimony of both sides, each can present rebuttal witnesses, subject to the court's discretion as to the relevance. Finally the judge instructs the jury as to the proper law that applies to the case, and the jury is finally allowed to render a verdict after discussion among themselves in private.

Any attorney or party who has waited for a verdict from a jury can advise of the tension that this period creates. The jury may be out a few hours or much longer...even weeks. Often the jury will return to the court to ask to see documents introduced into evidence or ask the judge to repeat certain important instruction as to the law. (It is vital to recall that the judge applies the law: the jury's role is to determine the facts of the case. However, in determining guilty, the jury often has to hear from the judge many times the law's description as to what types of acts constitute a violation of the law.)

If a jury is unable to reach a unanimous verdict after adequate deliberation, the court can declare a mistrial due to a hung jury. Judges dislike having to do that and often ask the jury to try again, sometimes over and over. If they are still unable to reach a unanimous verdict after several attempts, the judge has no power to force them to render a verdict. The judge can only declare a mistrial which means that the trial is voided entirely as if no trial had occurred at all. The district attorney can then dismiss the entire matter or can bring the case again in a second, completely new trial. This is the only time that a defendant can be tried more than once for the same crime.

One of the Bill of Rights prohibits the government from trying the defendant twice for the same crime and this protection is termed the "prohibition against "double jeopardy"). However, that only applies if a verdict of guilty or not guilty is rendered. No verdict, no trial which counts as double jeopardy. Thus, if a hung jury occurs, the matter may be tried once again. It is not unheard of for a district attorney to try the case twice or even three times...though most cases resulting in a hung jury end up being dismissed or with a plea bargain between defense counsel and the district attorney. And note that a verdict of not guilty ends the right of the State to try the matter ever again.