15. What Happens in Trial?

When I went to trial in 1987, I had not invested enough time in understanding the process. I should have learned more about what the government needed to prove, how the proceedings would unfold, and which decisions I would need to make with counsel.

In the previous article, I tried to offer some insight into the costs and consequences of going to trial. This article explains the basic sequence of a federal criminal jury trial so you can prepare for conversations with your attorney.

Before the Trial Begins

Trial preparation starts well before anyone enters the courtroom. Counsel reviews evidence, investigates possible defenses, prepares witnesses, and asks the judge to resolve legal issues. Those requests, called motions, may address whether particular evidence can be used at trial.

Discuss the charges and anticipated evidence with counsel. Identify records or information that may help your defense, and ask how to provide them. Learn the expected schedule and how you will communicate during the proceedings.

Selecting the Jury

A federal criminal jury ordinarily consists of 12 people. Courts may also select alternates. During a process called voir dire, prospective jurors answer questions intended to identify bias or other reasons they may be unable to serve fairly.

The judge oversees selection, and attorneys participate according to the court’s procedures. Both sides can challenge prospective jurors, subject to legal limits.

This trial jury serves a different function from the grand jury that may have approved the indictment. The trial jury decides whether the government has proved guilt beyond a reasonable doubt.

Opening Statements

The prosecutor generally begins by describing what the government expects the evidence to show. Defense counsel may also make an opening statement, although the defense does not have to do so.

Opening statements help jurors follow the case. They are not evidence, and an attorney’s description of what a witness will say does not substitute for the witness’s testimony.

The Government Presents Its Case

The government presents witnesses and exhibits, which may include documents, recordings, photographs, or other evidence. The prosecutor questions each witness, and defense counsel has an opportunity to cross-examine.

Cross-examination can test a witness’s memory, credibility, or account of events. Counsel may also use it to bring out information that supports the defense.

Attorneys may object to questions or evidence. The judge decides those objections and directs what the jury may consider. The jury evaluates the admitted evidence under the judge’s legal instructions.

Ask counsel how to communicate observations or questions during testimony. Agreeing on a method beforehand can help you contribute without disrupting the proceedings.

The Defense’s Options

After the government finishes presenting its initial case, the defense may present witnesses and evidence. It may also rely on weaknesses in the government’s proof without presenting a separate case. The defendant does not have an obligation to prove innocence.

Whether to testify requires discussion with counsel. You have the right to testify and the right to remain silent. The final decision belongs to you. If you testify, the prosecutor may cross-examine you. If you remain silent, the jury cannot treat that choice as evidence of guilt.

Prepare for that decision before reaching the moment when you must make it.

Closing Arguments and Jury Instructions

After the evidence, the attorneys explain why it supports their requested verdicts. These closing arguments are not evidence.

The judge instructs the jury on the law, including the elements of each offense and the government’s burden of proof. Jurors then deliberate privately, applying those instructions to the evidence.

The Verdict and What Follows

To get a conviction, every person on the jury must agree that the prosecution proved its case, and that you’re guilty. It may find a defendant guilty on some counts and not guilty on others.

If jurors cannot agree on a count, the judge may declare a mistrial on that count. The government may then seek another trial, in which case the person would have to go through the entire process again, and pay again. A jury’s inability to agree does not equal an acquittal.

A not-guilty verdict means acquittal on that charge. A guilty verdict ordinarily leads to a separate sentencing hearing, with a presentence investigation and further preparation with counsel.

Prepare for Each Stage

Understanding the sequence can help you recognize what is happening and participate more effectively in your defense. Before trial, ask counsel:

• What evidence do we expect the government to present?
• What decisions will I need to make?
• How should I communicate with you as you prepare for trial?
• How should I prepare for each possible outcome?

Your comprehensive mitigation strategy should account for the possibilities ahead.