Criminal trials include bench trials and jury trials. A bench trial is when a judge hears and decides the case. In the case of a misdemeanor trial, you have a right to a bench trial, but there are also limited exceptions that allow for a jury trial of a misdemeanor charge.
For a trial of felony charges, you have the right to decide if you want to have a trial by a jury of your peers or if you would like to be tried by the judge alone. If you elect to be tried by a jury of your peers, the jury will consist of 6 or 12 individuals depending on the felony charge.
Currently, in Louisiana, 10 of 12 jurors must agree to convict or acquit. If 10 of the 12 jurors are unable to agree on a verdict, then it is considered a “hung jury.” This does not mean that your case is over. The prosecution can proceed to trial once again with a new jury panel.
Jury trials are a time consuming process. The first step in a jury trial is called \”voir dire.\” Voir dire is the process of selecting a jury. During this process, the prosecution and defense counsel are able to question potential jurors about their ability to be a fair and impartial juror. Things like criminal history, family criminal history, being the victim of a crime, religious beliefs that may prevent one from sitting in judgment of another individual, and different life experiences are touched upon by both the prosecutor and the defense attorney in an attempt to select a fair and impartial jury.
Effective voir dire can make or break the outcome of a trial. Attorneys work hard to select jurors that we think will be favorable to our side. During voir dire, if it is determined that a juror cannot be fair and impartial, then they can be challenged for cause. When a challenge for cause is made by an attorney, the other side can argue against that challenge or join in the challenge. This is used to ensure a fair and impartial jury for both sides.
Both attorneys also have use of peremptory challenges during voir dire. With a peremptory challenge, both the prosecutor and the criminal defense attorney can dismiss up to 3 jurors in a 6 person jury and up to 12 jurors in a 12 person jury for any reason, other than race or gender. If one of the attorneys attempts to use a peremptory challenge based on a juror\’s race or gender, then the other attorney can bring a \”Batson\” challenge arguing the other side is striking jurors based on race or gender.
After a jury is selected, the trial starts with a the prosecutor giving an opening statement. The opening statement is where the prosecutor outlines the case against the defendant, the witnesses they will call, and what they intend to prove at trial. After the prosecution\’s opening statement, the defense attorney is allowed to present an opening statement as well. However, the defense attorney is not required to give an opening statement.
After opening statements, the prosecution will move into their case by calling the first witness. When a witness is called, the prosecution conducts a direct examination of the witness. When the prosecutor completes the direct examination, the defense attorney may conduct a cross examination of the witness. If defense chooses to question the witness, the prosecutor is allowed to conduct a redirect examination of the witness. The scope of a redirect examination is limited to only the issues covered during the cross examination.
After the prosecution calls their final witness, the prosecution rests their case. At this point, the defendant can choose to present or not present a case. If the defense decides to present a case, then the same method is used as described above. The defense attorney completes a direct examination, the prosecution may complete a cross examination, and the defense attorney may complete a redirect examination. After the defense questions their last witness, the defense will rest their case.
Whether or not the defense presents a case, the defendant will be questioned by the judge about whether or not the defendant wishes to testify at trial. The right to testify at trial is solely at the decision of the defendant. A criminal defense attorney will be able to provide guidance on the pros and cons of testifying based on the specific circumstances surrounding your case.
If the defense attorney calls witnesses on behalf of the defendant, then the prosecution can present rebuttal witnesses after the defense rests their case. If the defense does not call any witnesses, then the case will proceed to closing arguments.
The prosecution presents a closing argument first followed by the defense attorney\’s closing argument. After the defense\’s closing argument, the prosecutor may present a rebuttal.
When closing arguments are completed, the judge instructs the jurors on how to proceed with deliberation. There will be a set of jury instructions that the judge will read to the jury. It will include certain laws and provisions that have been agreed upon by both the prosecution and the defense. After reading the instructions, the jury will be sent out of the courtroom to deliberate and make their decision.
The jury instructions include a verdict form that presents the possible verdicts the jury can come to an agreement on. Once the jury returns, the verdict is read. If a \”not guilty\” verdict is obtained, then the case is over. If a \”guilty\” verdict is returned, the defense attorney may file post-trial motions and appeals as appropriate.
A criminal trial may last a day, several days, or even weeks, but the amount of time spent at trial doesn\’t compare to the months spent preparing for the trial.