In criminal cases, the defendant is the person accused of committing a crime. He or she is ordinarily represented by a lawyer, known as defense counsel. If the defendant is financially unable to afford his or her own private attorney, the defendant will be represented by a public defender or a private court-appointed defense attorney. In the federal system, there exists a Federal Defender’s Office in each district and private attorneys who receive appointed cases through the Criminal Justice Act (CJA) list. In the State of Rhode Island, there is the Rhode Island Public Defender’s Office. In the Commonwealth of Massachusetts, there is the Committee for Public Counsel Services (CPCS). A criminal defendant may also represent himself. Those who choose to do so are known as “pro se” defendants.
Criminal prosecutions are brought by the government. In the federal system, the prosecution is brought by the United States Attorney’s Office for the district where the case is being prosecuted. Individual cases are prosecuted by lawyers employed by this office who are known as Assistant U.S. Attorneys. In the State of Rhode Island, prosecutions are conducted by the Rhode Island Department of the Attorney General, which prosecutes criminal cases on a state-wide basis. These state prosecutors are known as Special Assistant Attorney Generals or Assistant Attorney Generals. In the Commonwealth of Massachusetts, cases are most often prosecuted by the District Attorney’s Office in the county where the alleged crime occurred. These lawyers are called Assistant District Attorneys. Select state cases are also prosecuted state-wide by the Massachusetts Office of Attorney General.
Criminal charges against a defendant are filed with the court in documents known as an indictment, a criminal information, or a criminal complaint. In federal court, all felony cases must be prosecuted by indictment unless a defendant waives the presentation of his or her case to a grand jury and consents to the filing of a criminal information. Indictments are used in Rhode Island for capitol felonies, those with a potential maximum sentence of life in prison, and in Massachusetts with all felonies prosecuted in Superior Court. An indictment is a formal charge filed after a grand jury hearing where the prosecution secretly presents portions of its evidence against a defendant for the limited purpose of establishing probable cause that a crime was committed by the defendant. If the grand jurors find sufficient evidence to support a finding of probable cause, they vote to return a “true bill” and, accordingly, an indictment is filed with the court. A criminal information or a criminal complaint is similar to an indictment, except that these less formal charging documents are filed with the court by the prosecution solely on the government’s assessment of probable cause. An indictment, information, or complaint is merely an accusation of a crime and is not evidence.
After being formally charged with a crime, the defendant will be asked to answer or respond to the accusation. The first response occurs at arraignment, the first court appearance after the charges have been filed. Almost always at arraignment, the defendant pleads not guilty. As a case progresses, a defendant may change his or her plea by admitting to the crime(s) charged. In all courts, admitting or accepting responsibility may occur by the defendant pleading guilty. In Rhode Island, a defendant may plead guilty or nolo contendere, which is Latin for “no contest.” However, this alternate plea has the same purpose and effect as a guilty plea. If a defendant changes his or her plea from not guilty to guilty or nolo contendere and if the court accepts the plea, there is no trial and the judge may impose a sentence.
A defendant may deny the charge(s) by entering a plea of “not guilty” at arraignment and persisting in that not guilty plea throughout the duration of the case. When this occurs, the defendant is constitutionally entitled to a trial. A trial may be conducted by a judge sitting without a jury, sometimes called a bench trial, or by a jury comprised of citizens from the community. A defendant has a constitutional right to a jury trial. A defendant may waive the right to a trial by jury and elect to be tried by a judge sitting alone. In the federal system, a defendant may only have a trial by a judge sitting alone if the government consents. If the government does not agree and the matter proceeds to trial, it must be by jury. In the State of Rhode Island or the Commonwealth of Massachusetts, a defendant may choose to be tried by a judge sitting alone or a jury of his or her peers. Regardless of which of the two triers of fact is selected, the defendant is entitled to the presumption of innocence throughout the duration of the trial, and the prosecution bears the heavy burden of proving his or her guilt beyond a reasonable doubt. In a trial without a jury, the judge will decide if the prosecution has met this burden. In a jury trial, all jurors must agree unanimously that the prosecution has met its burden of proof in order to return a guilty verdict as to any charge. Similarly, all jurors must agree that the prosecution has failed to meet this burden before returning a verdict of not guilty. If all jurors cannot agree on a verdict as to any criminal charge, the judge will declare a mistrial on that charge and the trial process will begin again with a new jury in the future.
Selection of Jurors
Jury selection consists of two parts: venire and voir dire. Venire refers to the large jury pool that arrives in court on the morning of trial to determine if they will be selected for actual jury service. The court is responsible for summoning these individuals to appear in court. Each court has its own criteria for determining who will be called for service. For example, most states use databases of registered voters, and/or the registry of motor vehicles; some use other methods to select potential jurors. These persons are selected and summoned randomly from the community where the alleged crime occurred. It is from the large pool of people that arrive that the actual trial jury is selected.
Voir Dire is the process of individual juror selection to obtain a trial jury. The goal of this process is to obtain a group of jurors who can be fair and impartial to both the prosecution and the defense. To select the actual trial jurors, the judge and the lawyers may question the potential jurors, who are told to answer the questions posed honestly and accurately. The object of this process is to determine if a prospective juror is qualified to sit on the particular case at hand or, alternatively, if he or she should be excused from participating in the trial. Questions often center on juror background and experiences, allegations of the case, sensitive issues that may arise during the case, pretrial publicity, and knowledge of the case, including the lawyers, defendant, and witnesses. Jurors who are unable to be fair and impartial to both sides for any reason are excused for cause. Jurors may also be excused for cause if their ability to perform jury service may be adversely impacted by financial hardship, medical reasons, or other obligations. If an attorney believes there is a basis to excuse a potential juror for cause, a challenge for cause will be made with the judge. There is no limit on the number of challenges for cause that a lawyer may make. If the judge agrees that cause exists, the juror is excused from participating in the case. The law also permits counsel for each party to excuse a certain number of jurors without giving a reason. The number of these “preemptory challenges” is limited and varies by jurisdiction. The jury selection process continues until a full jury is seated.
At the beginning of a trial, lawyers for each side have the opportunity to make an opening statement. These statements are designed to outline for the jury the evidence that the party expects will be presented during the trial. The prosecution goes first and always presents an opening statement. Once the prosecution finishes, the defense may, but is not required to make an opening statement. Because the defendant is presumed innocent at a criminal trial and is not required to present any evidence or make any statements, the defense is similarly not obligated to make an opening statement. If the defense elects to make an opening, it may be made after the prosecution’s opening before the presentation of any evidence, or after the prosecution has presented all of the government’s evidence, but before the presentation of defense evidence. For the defense, making an opening statement is a tactical decision.
Presentation of Evidence
Evidence may be introduced and witnesses called to testify by each side in a criminal trial. Because the government has the burden of proving the defendant’s guilt, it presents its evidence first, known as the case-in-chief. This involves calling witnesses to provide under oath testimony about what they saw, heard and believe, as they pertain to issues in the case. The party who calls the witness elicits the testimony in question and answer format known as direct examination. Once concluded, the opposing attorney has the opportunity to ask questions designed to test the truthfulness, memory, accuracy, and reliability of the witness’s testimony. This is called cross-examination. When this confrontation concludes, the original party who called the witnesses may ask further questions, called redirect examination, regarding new matters that came up on cross. Some courts allow for re-cross-examination, and some do not. In any event, this process of questioning witnesses goes back and forth until all witnesses and testimony have been presented.
In addition to calling witnesses, the lawyers for each side are also able to offer non-testimonial evidence. This may include documents, reports, photographs, video and/or audio recordings, physical items, results of testing, and other tangible items. Each case has different issues and types of evidence that may be presented. When a party offers an item of evidence, the opposing party may object to its introduction into evidence. If the Court sustains or approves the objection, the item will not be accepted into evidence, and therefore, not considered by the jury. If the Court overrules or disapproves the objection, the item of evidence will be deemed admissible.
When the prosecution in the criminal trial has concluded presenting witnesses and evidence, the defense may introduce evidence and witnesses. However, the defendant is not required to testify, put on witnesses, or introduce any evidence. As mentioned above, the defendant is presumed innocent of all charges from the moment of the accusation and throughout the trial process. The burden remains on the government, at all times, to prove the defendant’s guilt beyond a reasonable doubt. For this reason, the presentation of defense evidence is a strategic consideration to be made by the defendant and defense counsel at trial. If the defendant chooses to testify, call witnesses or offer any evidence, the prosecution may challenge any item of evidence by objection and cross-examine any defense witnesses, including the defendant.
If the defense presents any witnesses or evidence, this phase of the case is called the defense case. This occurs after the government’s case-in-chief. Once the defense has rested its case, the prosecution may, but is not required, to call additional witnesses and/or present additional items of evidence to either explain or contradict evidence presented by the defense. This is known as rebuttal evidence and is presented by the prosecution during a phase of the case called rebuttal.
Objections to Evidence During Trial
During trial, the lawyers may make objections to questions asked or items of evidence offered by the opposing side. A lawyer has the right to object to questions believed to be improper in form or in violation of the applicable rules of evidence. If the Court believes that the question asked of a witness or an item of evidence offered is improper, the objection will be sustained and the evidence disallowed. Alternatively, if the Court believes the question asked or item of evidence offered is proper, the objection will be overruled and the evidence will be allowed.
After the presentation of all evidence, the lawyers present closing arguments to the jury. Unlike opening statements that outline the evidence to be presented, closing arguments comment on the evidence already presented. The purpose is to help the jurors remember and analyze the evidence and to convince them that, based upon the evidence presented, the party is entitled to a verdict in his or her favor. For instance, the government argues that the evidence presented proves the defendant’s guilt beyond a reasonable doubt as to the charged offenses. The defense argues that the evidence does not prove guilt, or that the defendant has a lawful reason to act as he did, for example self-defense. The order of closing arguments varies by jurisdiction. In federal court, the government argues first, then the defense, followed by the government again for a short rebuttal argument. In Rhode Island and Massachusetts, the defense argues first, followed by the State. Closing arguments by the lawyers are not considered evidence and are intended to aid the jury in deciding the facts and reaching a verdict. They are an important part of a trial. The lawyers advocate for their respective and opposing positions, which help the jury arrive at the truthful verdict based upon the evidence.
Charging the Jury
While the jury is responsible for determining the facts, the judge must instruct the jurors regarding the law to be applied to the facts, as they determine them, in order to reach a verdict. This is referred to as charging the jury. It is not the function of the judge to indicate what verdict should be reached. Accordingly, jurors should not speculate as to whether the judge has an opinion about the case or the facts. It is, however, up to the judge to issue fair and impartial instructions about the relevant law governing the facts and the manner for the jury to deliberate. The time to charge the jury varies by jurisdiction and judge. Some judges instruct the jury on the law before closing arguments. Others charge the jury after closing arguments. In addition to instructing the jury on the applicable law, the judge also reminds the jurors of their oaths, legal definitions, the roles of the parties in the trial, evaluating the credibility of the evidence, the presumption of innocence, and the government’s burden of proving guilt beyond a reasonable doubt.
After receiving legal instructions, the jury leaves the courtroom and retires to a private room to deliberate on a verdict. This is the first time during the trial that the jurors are permitted to talk amongst themselves about the case. All throughout the trial, they are reminded not to discuss the case with anyone and to continue to keep an open mind until the trial concludes. The purpose of deliberations is for the jurors to discuss, share and listen to their respective views about the evidence presented, including witness testimony, and vote to decide if the government proved the defendant’s guilt beyond a reasonable doubt. In order to return a verdict of guilty as to any charged offense, all 12 jurors must unanimously agree that the government met its burden. Similarly, in order to return a verdict of not guilty, the decision must be unanimous. From time to time, jurors cannot reach a unanimous verdict. When this occurs, after the jury has been encouraged to continue deliberations in order to arrive at a unanimous verdict, the court will declare a mistrial. If there is a mistrial, the government may choose to retry the defendant again, though is not required to do so. If the government elects not to retry the defendant, the case is over. If the government elects for a retrial, the trial process will begin again in the future.
Lawyers with extensive trial experience are hard to come by in today’s legal profession. Nationally, less than 5% of all criminal cases proceed to trial. This number may even be lower in the federal criminal justice system. The fact that so few cases proceed to trial is one reason why many lawyers do not have a lot of trial experience. Another reason is that the justice system promotes the resolution of cases with guilty pleas and pretrial agreements. Judges, prosecutors, and even the law incentivize pleading guilty as opposed to going to trial. However, there are many defendants who are innocent and wrongfully accused. These individuals should proceed to trial. There are other cases where the government’s offer to plead guilty is not acceptable, thereby prompting a trial. In any event, if you have been accused of a crime and are considering exercising your right to a trial, call a law firm with extensive criminal trial experience and a track record of success in the courtroom. Call Rhode Island criminal defense Attorney John L. Calcagni III today at the Law Office of John L. Calcagni III, Inc. for a free consultation.