This legal guide outlines the general steps taken in a felony criminal trial under California law. It does not include the procedure taken prior to trial, which has been outlined in a separate legal guide.
Once a criminal case gets to trial, the prosecution must prove the allegations are true "beyond a reasonable doubt." Each element of the charge must be proven to this standard of proof. The defendant has the choice of having the trial heard and decided by a jury of twelve citizens in the community where the court sits, or waiving the right to a jury and allowing the judge to decide the case without a jury. There are many strategic reasons to waive a jury and allow a judge to hear the case. It is important that this decision be made by both the defendant and his or her attorney. However, the prosecution also has a right to a jury trial, and even if the defendant agrees to waive a jury, the prosecution is not required to join in that waiver and may demand a jury trial over the defendant's objection. The superior criminal defense attorney will be well prepared for trial, and will have a central "theme" that everything in the case revolves around. Sometimes the only theme available is reasonable doubt--that the prosecution cannot prove its case beyond a reasonable doubt. In the right hands, reasonable doubt is a powerful tool that allows many successful defense attorneys to win cases that less experienced attorneys would lose.
Burden of Proof
What exactly does proof "beyond a reasonable doubt" mean? That is something many scholars and attorneys have been debating for years. Any good criminal defense attorney has an extensive arsenal of examples of how to show the prosecution has not met its burden of proving its case beyond a reasonable doubt. An excellent criminal defense attorney will spend a significant amount of time educating the jury exactly what that term means. The jury instruction (CALCRIM 220) normally read to a jury defining "reasonable doubt" is as follows: "The fact that a criminal charge has been filed against the defendant is not evidence that the charge is true. You must not be biased against the defendant just because he has been arrested, charged with a crime, or brought to trial. A defendant is a criminal case is presumed to be innocent. This presumption requires that the People prove a defendant guilty beyond a reasonable doubt. Whenever I tell you the People must prove something, I mean they must prove it beyond a reasonable doubt unless I specifically tel you otherwise. Proof beyond a reasonable doubt is proof that leaves you with an abiding conviction that the charge is true. The evidence need not eliminate all possible doubt because everything in life is open to some possible or imaginary doubt. In deciding whether the People have proved their case beyond a reasonable doubt, you must impartially compare and consider all the evidence that was received throughout the entire trial. Unless the evidence proves the defendant guilty beyond a reasonable doubt, he is entitled to an acquittal and you must find him not guilty." Appellate courts in California see nothing erroneous, vague or misleading about CALCRIM 220 in its current form either when viewed in isolation or with all instructions given. Yet, the concept of reasonable doubt (the very high degree of probability required under the U.S. Constitution to sustain a conviction) has been diluted below constitutional minimums by CALCRIM 220, especially when all the "probability based" jury instructions normally given in criminal cases are added. A standard of proof is an effort at instructing the jury on the degree of confidence our society thinks it should have in the correctness of its factual conclusions The United States Supreme Court recently removed the phrase "to a moral certainty" because it felt such a term could be interpreted to mean "something less than the very high level of probability required by the Constitution in criminal cases." (Victor v. Nebraska (1994) 511 U.S. 1, 14.) What the Supreme Court wanted the jury instruction to mean was that the jury must find that "subjective state of near certitude of the guilt of the accused." (Id., at p. 15; emphasis added.) The current criminal jury instruction given in California is so vague and low-probability oriented that many jurors interpret it as requiring only a preponderance of evidence to convict. In fact, in the September/October 1999 magazine, The Sciences (p. 18), a survey of mid-level business executives was done to see what level of probability they interpreted California's reasonable doubt instruction required. The figures were alarming: 35% put the probability at over 90%; 35% put the probability at 80-90%; 18% put the probability at 70-80%; 12% put the probability at 50-70%. In other words, there was wide ranging disagreement and one-third of this "relatively sophisticated and homogeneous population of business people" (id., at p. 20) thought that probabilities ranging for 50% to 80% were good enough to convict. For this reason, the criminal defense attorney needs to spend significant time educating the jury on exactly what that instruction means, and then point out how the evidence in the case does not meet that standard. It is one of the biggest mistakes of inexperienced defense attorneys to gloss over this instruction and expect the normal juror to have a clear understanding of the true meaning of the reasonable doubt standard.
At the beginning of a jury trial, a panel of potential jurors is called into the courtroom, and the attorneys and the court question them to see if they qualify to be jurors in the case. If any of the jurors are able to convince the court that serving on the jury would be a legal hardship, the court will excuse that person. When the attorneys question the potential jurors, they are allowed to ask questions that would cause the court to excuse the juror "for cause." For cause means the juror admits they have a bias so strong toward either party that they could not be fair. This often happens when the potential juror has been a victim of a crime similar to the one the defendant is being accused of, or when the juror has been the victim of police misconduct. Once each attorney passes the potential jurors "for cause," each side gets to excuse potential jurors without stating any reason for the challenge. Each side gets the same number of challenges, depending on the seriousness of the charged offenses. Experienced criminal defense attorneys focus on the theme of their case during jury selection. If the defense is going to be "self-defense," the attorney will ask potential jurors how they feel about self-defense and the law on self-defense. If the defense is "reasonable doubt," the attorney will ask how jurors feel about the law of reasonable doubt.
Opening statement is where each side gets to tell the jury what to expect in the case. Most prosecutors tell the jury what they expect the evidence to prove. This is a tried and true method that works very well for the prosecution. However, when criminal defense attorneys try the same method, it falls flat with a jury. The defense in a criminal case has to overcome the prejudice of a person on trial for a criminal act. The truth is that when the court reads the charges to the jury, the first thing they do is look at the defendant to see what kind of person would commit such a crime. In other words, they have already convicted the defendant and are just waiting for the evidence to formalize the matter. The defense attorney has to turn the tables and tell the jury the true story. People are hardwired to listen to stories. When an experience criminal defense attorney tells his or her client's story, it starts like a story you might have heard while sitting around a campfire. The story needs a hero (the client). The attorney has to give a little background about the hero. Where is he or she from, what kind of person is the hero, do people love him or her (family)? There has to be a beginning, a middle, and an end. The story must be easy to follow and clearly point to the conclusion that the defendant is an innocent person caught up in a horrible situation that only the jury can remedy. When handled properly, the opening statement convinces the jury the defendant is actually innocent and they look for evidence to support that position.
After opening statements, the prosecution has the burden of proving its case. The prosecution will call witnesses and present any physical evidence to the jury. The prosecutor calls a witness to testify and asks questions about what happened. After the prosecution has asked its questions, the defense attorney gets to cross-examine. During cross-examination, an experienced criminal defense attorney will only ask questions that supports the defense theory of his or her client. There is no reason to go over all the witness' testimony unless it helps the defense case. Rehashing everything the witness said so it looks like you have questions to ask is the mistake of the inexperienced attorney. There is absolutely nothing wrong with stating "no questions" when a witness has nothing to offer to the defense. Why distract the jury from your defense with meaningless questions that wastes everyone's time?
At the end of the prosecution's case, the defense can ask the court to direct a verdict of not guilty because the prosecution failed to prove some element of one of the charges. If the court agrees that no evidence has been presented on some element, the court will grant the motion on that charge. If there are no remaining charges, the case is then dismissed and the defendant discharged. Many attorneys, both experienced and inexperienced, forget this very simple procedural step and miss an opportunity to win a case.
After the prosecution has rested (they have no more evidence to present), and the court has ruled on any motions, the defense has the opportunity to present its own evidence. This is where defense witnesses testify, experts present their opinion and the client has an opportunity to testify. In a criminal case, the client has the choice of testifying or remaining silent. Even if the defense attorney does not agree on the client testifying or remaining silent, the right to do so or not belongs to the client and cannot be interfered with. The decision to testify is something that needs to be thoroughly explored by the client and his attorney. There are many reasons not to testify. If the defendant and his attorney believe the prosecution has not proven its case, testifying often gives the prosecution the opportunity to force the defendant to make a misstatement and lose the case. Many prosecutors will ask criminal defendants very argumentative and inflammatory questions that are extremely improper. However, once the question is asked, it is impossible to "un-ring the bell." Many clients are simply not good public speakers and the fright of speaking in front of a group of strangers is terrifying. Exhibiting fright will often be mistaken by jurors as evidence of guilt--what do you have to be afraid of if you are innocent? Along the same lines, many people simply do not present well. Lots of people always think about an answer for an unusually long amount of time that mistakenly gives the appearance of thinking about a lie. At the same time, there are some kinds of defenses that need the client to testify. In many self-defense cases, the only way to prove the client was in fear of serious harm or death at the time of the alleged crime is to take the stand and testify.
After all the evidence has been presented, the court and the attorneys meet to discuss the jury instructions. The jury instructions are the law that is read to the jury to explain how they need to go about reaching a verdict. During the jury instruction conference, the defense attorney can argue that some law applies and some does not. This is also where special jury instructions are worked out that are helpful to the jury in finding the defense that has been presented. Good defense attorneys are prepared with special jury instructions and supporting law to show the court that it should give the special instructions. Without being prepared to support special instructions with unimpeachable case law, few courts are willing to deviate from the pattern instructions requested by the prosecution.
Once the court and the attorneys have agreed on the jury instructions, each attorney gets to argue to the jury how the evidence shows either guilt or innocence. The prosecution gets to argue first. After the prosecution is done, the defense gets to argue the other side. After the defense argument, the prosecution has one last opportunity to argue in rebuttal of the defense. The defense is not allowed to get up and argue a second time. The prosecution is allowed to rebut the defense argument because it has the burden of proof. However, closing argument is where experience really counts. An experienced defense attorney can anticipate the prosecution's rebuttal argument and point them out in the closing argument--giving the defense's rebuttal and taking the wind out of the prosecution's sails! It is critical for the defense to point out the important law to be applied in the case, summarize the defense evidence, and then illustrate how the jury should apply the law to the defense evidence which will result in a verdict of not guilty.
Jury Deliberations and Verdict
After all the evidence has been presented, each side gives its closing argument, and the court reads the law to the jury, the jury goes into the jury room to deliberate. During deliberations, the jury has the opportunity to examine any physical evidence, have testimony read back by the court reporter, review the written jury instructions, and discuss the case as a group. The jury is also provided with a set of verdict forms. For each charge, there will be one form for guilty and one form for not guilty. When the jury reaches unanimous agreement on any of the charges, the jury foreperson will sign the appropriate form and set it aside. After the jury comes to an agreement on every count, the jury returns to the courtroom with a verdict. If the jury cannot reach a unanimous verdict for either side, the court will declare a mistrial and discharge the jury. In that case, the prosecution has to decide if it is going to try the case again or dismiss. If the jury finds the defendant guilty on any of the charges, the case proceeds to sentencing. If the jury finds the defendant not guilty on all the charges, the defendant is discharged.
If a defendant is found guilty at trial or pleads either guilty or no contest, the case goes to sentencing. In felony cases, this normally takes at least twenty court days, or about four weeks. If the defendant is out of custody, the defendant will often waive time to give his or her attorney time to prepare information and present evidence that shows the defendant should be granted probation and not sent to prison, or that the court should impose the least amount of prison time. In several kinds of cases, a psychological report is helpful or even necessary to show the court that probation is appropriate. For example, in many kinds of sex offense cases, the law requires a psychological report before the court can even consider whether to grant probation. Knowledgeable defense attorneys will have several different kinds of experts in reserve for such instances and will be able to fashion terms and conditions of probation to show the court that it will be safe to grant probation to his or her client, if the circumstances are right. Of course, some cases require a prison sentence. In fact, there are a number of crimes that are statutorily ineligible for probation. In these cases, the court is prohibited from granting probation. In these case, the defense attorney needs to be prepared to keep the amount of prison time to a minimum.
After the court imposes a sentence, the client has the right to appeal the case. Depending on how the case was handled procedurally, the appeal may challenge the sufficiency of the evidence, the denial of motions, or errors of law by the court. If the clients decides to file an appeal, the defense attorney files a notice of appeal with the court. The court then causes a transcript of the case to be prepared, collects all the necessary court paperwork, such as minute orders and copies of any motions filed in the case, and sends the entire record to the appropriate court of appeal. If the client cannot afford to hire a private attorney to represent him or her in the appeal, the Court of Appeal will appoint an experienced appellate attorney. A review of the court record is then conducted by the appellate attorney and an opening brief is filed. After the opening brief is filed, the prosecution, normally through the California Attorney General's Office, files a responding brief arguing that no error occurred. Finally, the defense attorney gets to file one more brief, a reply brief, rebutting the prosecution's argument. Because the appealing party (usually the defendant) has the burden of showing some kind of reversible error, they get two chances to file briefs. After all the briefs are filed, the appellate court decides if it needs to hear oral argument. Oral argument is actually rare in criminal appeals. Most courts decide the case on the briefs alone. Once the time for oral argument has passed, the court has a specified amount of time in which to render its decision. In most case, the entire process of filing a notice of appeal, all the briefing and the court issuing an opinion takes approximately a year or more, depending on how complex the issues are in the case and how much evidence was presented at trial After the appellate court issues an opinion, the losing party can appeal that court's decision to the California Supreme Court where the entire process happens all over again if the Supreme Court agrees to hear the case. If the California Supreme Court agrees to hear the case and issues an opinion, the losing party has one last opportunity to appeal that decision to the United States Supreme Court. The United States Supreme Court is the final court for all fifty states and only accepts about one hundred cases a year. Because of this, it is very rare for a case to even be accepted for appeal. The reality is that very few of the millions of criminal cases decided each year are overturned on appeal. The best opportunity to win a criminal case is in the trial court.
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