Earlier this month, two writers asked for a description of criminal trial procedures. Below is an overview of the trial stages from Bail to Sentencing. While states and the federal government follow a standard set of procedures, jurisdictions have procedural nuances. Talk to a local attorney with criminal experience from the jurisdiction where your fictional trial is set to understand the differences.
Stages of a Criminal Trial
Stage 1: Bail
Bail is the money paid to the court to release the defendant from custody. The amount is set according to the offense (the more serious, obviously the higher the bail). Bail is returned when the case is finished, provided the defendant appeared for all his court dates. The judge can reset bail at the first court appearance (the Arraignment) – raise or lower it depending on extenuating circumstances like the defendant is a flight risk, or the defendant has no criminal record and works to support an ailing spouse. The judge can also deny a defendant the chance to post bail, or release a defendant without bail on his own recognizance if circumstances warrant.
Stage 2: Arraignment
The Arraignment is held after the arrest to ensure the prosecutor has valid evidence and isn’t holding a defendant indefinitely. The judge provides the defendant with the charges, the defendant responds to the charges with his plea, and the judge decides on bail. A schedule is then set for pre-trial motions and the trial itself.
Stage 3: Preliminary Hearing
Preliminary hearings are grand jury type hearings with witnesses and evidence presented by the prosecutor so the judge can decide if there is probable cause to have a trial on the charges or should the case be dismissed for lack of evidence. Depending on the state, prelims are held in every criminal case, or only if requested, or only in felony cases. Defendants can wave their right to a prelim. Defense attorneys normally won’t try to prove their client’s innocence at this stage, but will use the prelims instead to understand the details of the prosecution’s case.
Stage 4: Pre-trial Conference
Plea bargains are discussed/negotiated at this stage between the prosecutor, defense attorney and the judge. Both sides present their opinion as to a fair resolution of the case based on the crime, defendant’s criminal history and his personal situation (was he a good person who made a mistake, or a habitual thief). If the defendant doesn’t accept the plea bargain, the case progresses toward trial.
Stage 5: Judge or Jury Trial
The defendant decides whether to have his case tried before a judge or jury. In some jurisdictions, the prosecution can demand a jury trial. If a jury trial is selected, then, Stage 6 is next. If a judge tries the case, then Stage 7 is next.
Stage 6: Jury Selection
Jury Duty, we have all been there, where the judge, prosecutor and defense attorney question a group of citizens in hopes of finding twelve fair and impartial jurors (some jurisdictions allow six). This process is known as “voir dire” and there are a host of pronunciations.
Stage 7: Motions in limine
Once the jury has been selected, the prosecution and defense ask the court to admit or exclude evidence for trial.
Stage 8: Opening Statements
These you have seen a thousand times on television court dramas. The prosecution gives a speech to the jurors (or judge) outlining the evidence they expect to present at trial. Afterwards, the defense counsel has the opportunity to give an opening statement of what he expects the evidence to show. Sometimes the defense waits to give an opening statement when the prosecution has rested her case.
Stage 9: Case-in-chief
The center of every criminal trial is the case-in-chief, a process whereby each side has the opportunity to provide key evidence to the jury to prove their case. The prosecution begins, attempting to convince the jury with eyewitnesses and experts and physical evidence (like photos, medical records, documents) that prove beyond a reasonable doubt the defendant committed the crime.
The defense has the right to cross-examine the witnesses with the intent of attacking credibility and discrediting the testimony. After cross-examination, the prosecution has the opportunity to re-direct in order to remedy any damaging effects from cross-examination. When the prosecution finishes, the prosecution rests its case.
At this point the defense counsel may move to dismiss the case should he believe the prosecution failed to prove her case. The judge will either grant the motion (and the defendant goes free) or deny it (and the trial continues).
If the trial continues, the defense presents its case-in-chief through witnesses and evidence with cross-examination by the prosecution and rebuttal by the defense. When the defense rests its case, the trial moves toward the next stage.
Stage 10: Closing Arguments
These speeches are similar to opening statements, but here the prosecution and defense take turns summarizing the evidence and why the jury should return with a guilty verdict or not.
Stage 11: Jury Deliberations
At this point the judge will instruct the jury on applying the law to the case. The jury deliberates, attempting to reach a verdict. Normally the jury must be unanimous, if not then the jury is “hung” and the case can be retried if the prosecution so wishes, or the judge can order a mistrial.
Stage 12: Post Trial Motions
When a jury returns with a guilty verdict, the defense usually requests the judge to override the jury in favor of a new trial or acquittal. Often this motion is denied.
Stage 13: Sentencing
If the jury returns with a guilty verdict, the judge will determine the appropriate sentence from a range based on the crime.
The defendant can challenge a jury’s verdict via an appeal. On appeal, the defense cannot introduce new evidence or witnesses or new arguments. Instead the defense must challenge the jury’s decision and explain the errors and why the trial court didn’t handle the case properly. If the appellate judge feels the jury or judge made a mistake, the appellate court can overturn the verdict.
If you are writing a murder trial, you should determine if the death penalty is legal in your jurisdiction. If the prosecution seeks the death penalty, then the trial will have two parts – the guilt phase and the penalty phase. The jury must return with a unanimous verdict to convict. If so, then the second phase determines if the death penalty is warranted. The jury listens to aggravating and mitigating circumstances, and victim impact statements then decides if the defendant should receive the death sentence or a lesser sentence of life without parole. The judge then considers the jury recommendation and formally states the punishment.
Check with an attorney in the jurisdiction where the story is set to determine the nuances of the punishment phase. The judge in some states must follow the jury recommendation. In other states, the judge may override the recommendation.
If you need to read courtroom thrillers for guidance, check out these books:
To Kill A Mockingbird (Harper Lee)
Presumed Innocent (Scott Turow)
A Time to Kill (John Grisham)
Defending Jacob (William Landay)
Exile (Richard North Patterson)
If you have any questions, we’d love to hear from you.