If you’ve been charged with a crime, and your case is going to trial, you’re probably wondering what to expect. There may be some differences in how the trial proceeds, depending on where you live and the crime you’re accused of committing. By and large, however, state and federal courts follow similar procedures at criminal trials, from jury selection to jury deliberations.
Before the start of the actual trial, there are a few critical steps, including jury selection (if you’ll have a jury) and evidence requests.
You have a constitutional right to trial by jury if you’ve been charged with a serious crime. According to the U.S. Supreme Court, that generally means a crime that carries a potential sentence of more than six months imprisonment (Baldwin v. New York, 399 U.S. 66 (1970)). But states may guarantee jury trials for defendants charged with less-serious crimes. You don’t have the right to a jury when you’re facing proceedings that seem criminal but actually aren’t, like juvenile court proceedings or a military trial.
Even if you have the right to a jury, you may decide you’d rather have a judge hear and decide your case (in what’s known as a “bench trial”). While having a jury is usually to your advantage, there might be good reasons for waiving your right to a jury trial in some circumstances, including when your attorney believes that a particular judge would be less likely than a jury to be swayed by awful circumstances or news surrounding the crime.
You may not always be able to get a bench trial. In federal cases—and in some states—the judge or prosecutor may insist on a jury trial. And states may require jury trials in certain cases, like those that could involve the death penalty.
The process of selecting a jury can have a big impact on your defense. Typically, your lawyer and the prosecutor will ask the potential jurors a series of questions designed to find out whether they can be fair and impartial (a process known as “voir dire”). In some state and federal courts, the judge will do the questioning, using questions that the lawyers have offered.
The judge will generally dismiss any potential jurors if they admit in questioning that they couldn’t be impartial during the trial. Your lawyer and the prosecutor may also challenge potential jurors “for cause” when their answers reveal something in their background, relationships, or experiences that raises serious doubts about their ability to decide the case fairly based only on the evidence and the law. If the judge agrees, those people will be dismissed. Finally, both sides may use what are called a “peremptory challenges” to dismiss a certain number of potential jurors without having to give a reason. Lawyers often use peremptory challenges to weed out jurors who might favor the other side.
Before the trial starts, your lawyer and the prosecutor may ask the court (in what’s called a “motion in limine”) to admit or exclude evidence.
At the start of the actual trial, the prosecution will make an opening statement that gives a basic outline of what it plans to prove. Your lawyer will probably also make an opening statement, either immediately following the prosecutor’s statement or after the prosecution has finished presenting its evidence.
After the opening statement (or statements, depending on when the defense makes one), the prosecution will present evidence and question witnesses. Your defense lawyer may ask the prosecution’s witnesses more questions (this is known as cross-examination).
After the prosecution finishes presenting its evidence (or “rests” its case), your lawyer will usually present evidence and witnesses to support your defense. You may testify, but you don’t have to; you have a constitutional right to remain silent.
Sometimes, defense attorneys will choose not to present evidence if they believe the prosecution didn’t have enough evidence to prove your guilt.
Each side has the opportunity to make a closing statement after all the evidence has been presented. The prosecution goes first. In federal court (and most states), the prosecution may make a second statement to counter the defense’s closing statement.
The judge will give the jury instructions, including an explanation of the law, the prosecution’s duty to prove guilt beyond a reasonable doubt, and how the jury should consider different kinds of evidence and evaluate the credibility of witnesses. If you’ve chosen not to testify, the judge should also tell the jury not to take your decision as a sign of guilt.
The jury will then try to come up with a verdict. Most of the time, everyone in the jury must agree to acquit or convict the defendant. According to the U.S. Supreme Court, however, states may allow jury verdicts that aren’t unanimous as long as there were more than six jurors (Apodaca v. Oregon, 406 U.S. 404 (1972); Burch v. Louisiana, 441 U.S. 130 (1979)).
If the required number of jurors can’t reach a verdict, the judge will declare a mistrial. The prosecution may then either dismiss the charges or go for a retrial.
If you’re facing criminal charges, it’s almost never a good idea to represent yourself at trial. If you can’t afford to hire a lawyer, the court may appoint a public defender or other attorney to represent you. Otherwise, see our tips on selecting a criminal defense attorney.
