Thursday, September 24, 2009

What is a Criminal Trial in Douglasville like?

Most people have no idea what it is like to experience a trial – either from the perspective of a juror, witness, or defendant. As a witness, the experience seems confusing and boring because you spend most of your time waiting to testify outside the courtroom. As a juror, the experience is probably a mixture of boredom, excitement, and frustration because you will see almost everything but not quite. As a criminal defendant the trial experience is a drag race with no helmet, doors, seatbelt or floorboard. You experience everything with the knowledge that your life hangs in the balance.

The trial experience actually begins days or perhaps even weeks before the actual trial with the “Calendar Call.” The Calendar Call is a show-up and “shut-up, or put-up” event. During the call of the calendar, each attorney has to announce whether the case is going to trial. If the State (prosecution) announces “ready”, the defense must either be ready to go to trial, willing to accept the state’s plea offer, or have some explanation as to why the case is not ready for trial. In Douglas County, it is not unusual for 50-100 cases to be on the trial calendar. If both the State and the Defense announce “ready”, you will have to report back at the start of the trial week.

Start of trial week is still uncertain. Your case may be the first out, or it may be down the list. If it is not first out, you will be put “on-call”. You may be called in later during the trial, but if you are not, you will be put back on the calendar call for the next month and the process repeats. I have several cases that have been on 10 or more calendars without ever being tried. Likewise, I have had cases that were on only one calendar and tried the first week. In general, the District Attorney controls which cases will get tried and which will not. Weak cases will not go to trial unless they have nothing else to try. Cases which the DA thinks are strong will go to trial right away.

The beginning of the trial starts with voir dire. This is the process of selecting jurors who are impartial and fair to both sides. A panel of 12-14 jurors is put into the jury box and the attorney for the State begins questioning the jurors. Next, the attorney for the defendant asks questions. Questions may cover just about any topic so long as they do not ask the jury to prejudge the case. Since most cases that go to trial are very close, I believe voir dire is the most important part of the trial. An experienced attorney will know exactly what kind of juror he is looking for and what questions to ask to determine who is and who is not that kind of juror.

After voir dire, each side makes an opening statement. The opening statement is just a preview of what each side expects the evidence to be. Openings are not supposed to have any legal argument and are therefore rarely dramatized in movies or TV. However, research shows that most jurors actually make up their minds by the end of opening statements and rarely change from their initial judgment. Therefore, a powerful opening statement that clearly communicates the theory of your case is more important than all the fancy one-liners watched in the movies.

After opening statements, the prosecution presents its case. Witnesses will normally include law enforcement officers, the victim, and maybe scientific testimony if the case requires it. After the prosecution finishes the direct examination of each witness for the State, the Defense is allowed to cross-examine the witness.

After the State has presented its case, the Defense is allowed to call any witnesses it wishes. It’s important to note that the Defense does not have to call any witnesses because the “burden of proof” belongs to the prosecution. Additionally, although the Defense may call any witness it wishes, the defendant does not have to testify. The Court may not order the defendant to testify and the State may not call him as a witness.

Following the Defense case, the prosecution may call rebuttal witnesses if they so choose. If they do not, the case will proceed with closing. Closing is the part the lawyers like because we get to be dramatic and persuasive while we try to impress everyone in the Courtroom. However, in my opinion, closings are mostly for show. At best closings are simply icing on the cake. Icing won’t make a dry cake taste good; likewise a powerful closing won’t make a poor case a winner.

Following closing, the Judge will charge the jury on the law. The jury will then retire to the jury room and deliberate. Deliberations can last minutes, hours or days. If the jury has questions, they will send a note to the Judge, who will then consult with the Attorneys and formulate a response. Once the jury reaches a verdict, they will return to the Courtroom and the clerk or the foreperson will read the verdict.

As you can see, a trial is a complicated event. I often see people who have not been trained try to act as their own attorney in Court, which I always consider to a fatal mistake. For example, how does a lay person know when the prosecution is attempting to introduce impermissible hearsay (as opposed to permissible hearsay). What if the prosecution asks a question that puts the Defendant’s character at issue? What if the prosecution objects to a question on the basis of improper foundation? Simply put, if you represent yourself in a criminal trial, you have a fool for a client.

If you need help, call me at 678-383-1690 or visit my website at If for whatever reason I can't help you, I'll point you in the direction of someone who can.

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