After Pre Trial Motions have been decided by the Judge, whether with or without a hearing on the motion, the next step generally may be renewed discussions between Defense Counsel and the Prosecutor regarding a possible plea bargain to dispose of the case, or if no plea bargain then a trial date will be scheduled. ( See prior articles regarding Pre Trial Motions ).

The first step in the Trial Process is Picking a Jury, which unlike in Federal Court where a Questionnaire is given to the prospective jurors and then the Judge asks a few questions not on the questionnaire and then each attorney can ask a few questions not on the questionnaire and not already asked by the judge, in NY State Courts, the attorneys have a much more extensive role in thoroughly questioning prospective jurors to see which ones they want to be sworn in as a juror. Unlike in a civil case which generally has only 6 jurors ( and 0ne or more alternate jurors ), in a criminal case there are 12 Jurors.

The burden of proof in a civil case is generally a Preponderance of the Evidence, which generally means a slight tipping of the scale in favor of the party who has the burden of proof ( Plaintiff) ( over 50% ) . In a criminal case the burden of Proof ( which is on the Prosecutor , the Defendant does not have to prove anything ) is Beyond a Reasonable Doubt. This means the Prosecutor must prove each and every element (listed in the Penal Law ) of the crime(s) charged beyond a reasonable doubt. Reasonable doubt does not mean Beyond a Shadow of a Doubt or even Beyond all Doubt but means that any doubt must be a reasonable one in order for the prosecutor to fail to meet his burden of proof and thus an acquittal for the defendant.( A rule of thumb is to think of it as a 95% certainty that the defendant committed the crime ). The definition of reasonable doubt is a subject that has been written about extensively and any further discussion here is beyond the scope of this brief overview of the trial process.

After the jurors are sworn in and seated the Prosecutor is required to make an Opening Statement in which he must at a minimum recite all the elements of the crime(s) charged and state that he can prove each element. If he fails to do this, the Defense Attorney can make a Motion to Dismiss the Case ( usually the prosecutor does not fail to make a sufficient opening statement, and even if he did, the motion is rarely made and even rarer, is it granted .)

After the Prosecutor’s Opening Statement, the Defense Attorney may make an Opening Statement at this time or can reserve his right to do so until after the Prosecutor finishes presenting his case ( the prosecutor Rests after presenting all evidence and witnesses ). Thus, unlike a Prosecutor, a Defense Attorney has a choice of when he can make an Opening Statement and also unlike a Prosecutor, is not obligated to even make an Opening Statement, Defense Counsel can choose to Waive the Opening Statement all together.

Assuming the case is not dismissed after the Prosecutor’s Opening Statement, and either Defense Counsel is reserving his right to make an Opening Statement, or has finished making his Opening Statement, the next step is for the Prosecutor to present all evidence and witnesses he has. This is called the Prosecutor’s Case in Chief. A discussion of the details of presenting evidence and witnesses on Direct Examination ( examination by the attorney who is calling the witness) and Cross Examination (examination by the opposing attorney ) is beyond the scope of this article.

At the conclusion of the Prosecutor’s Case in Chief, he rests.

The Defense Attorney can make a Motion to Dismiss if he believes the Prosecutor’s Case in Chief was not sufficient to prove the defendant Guilty Beyond a Reasonable Doubt. This Motion is also usually not granted unless it is very clear that the Prosecutor failed to prove the case against the defendant.

The Defense is then permitted, although not required, to present his Case in Chief. If the Defendant has one or more good defenses such as an alibi ( defendant was somewhere far away from the scene of the crime at the time it was committed ) then defendant will usually present evidence and witnesses in support of his defense (s). If the Defense does put on a case, there is then a separate decision to be made regarding whether, in addition to presenting evidence and witnesses, the defendant should Take the Stand and testify in his behalf. Generally the defendant should not and does not testify since this means he is waiving his right not to incriminate himself and is subject to cross examination by the Prosecutor. This cross examination may hurt the defendant’s chances of being found not guilty (acquitted ). However, if a Defendant makes a good witness and is likeable and articulate and has a good defense(s) , then it may be appropriate for the Defendant to testify. This is a decision to be made carefully by the Defendant after a thorough discussion of all the ramifications of the decision with his Defense Counsel.

After the Defense rests his case, or after the Prosecutor rests his case, if defendant chose not to present a case, the next step is Closing Arguments ( Summation ). The Prosecutor goes first, then the Defense and then the Prosecutor gets a second closing argument to Rebutt the Defense’s Closing Argument.

After Closing Arguments, the Judge reads the Jury Instructions ( usually which Instructions the Judge reads is partly determined at a Charging Conference in which the Prosecutor and Defense Counsel participate and have the opportunity to submit proposed Jury Instructions and partly determined by any events at trial that needed different or additional instructions ) to the Jury which advises them of what evidence they may consider, the fact that Closing Arguments are not evidence in the case but are legal argument by the attorneys to persuade the jury to decide in their client’s favor, what charges they are permitted to render a verdict on. Usually Verdict Sheets are prepared and given to the jury, and other matters needing instructions ) and the Jury then Retires to the Jury room to Render their Verdict which must be Unanimous in a criminal case or it results in a Hung Jury if they are unable to agree upon a Verdict. If there is a hung Jury, the Prosecutor usually can re try the case before a new jury without violating the law regarding Double Jeopardy. This is because a Hung Jury results in no verdict and thus a Mistrial, not a completed Trial in which a verdict was rendered. If there was not a Mistrial then the Jury Foreman reads the Verdict in open Court when asked by the judge .

If the verdict is Guilty, the Defendant can File a Notice of Appeal( within 30 days in State Court, 10 days if in Federal Court ) which usually includes a request for a Stay of Execution of Sentence pending the outcome of the appeal. If the Verdict is Not Guilty, the prosecutor can also Appeal. ( See previous article " A Brief Overview of the Appeal Process " )

Watch for future articles on Criminal and Civil Law.