Trail of a Trial – Step by Step


Trials are what one of the first things people think about when they think about criminal law.  Trials are what we see on TV shows.  Trials are what we read about in the news.  The occasional drama of trials continues to capture the public’s imagination.

But the trial process is a mystery to most people.

What follows is a step-by-step description of each of the major sections of a criminal trial and the major issues at stake at each step. 

Preliminary Motions

Before a trial commences, there will usually be some preliminary matters that require the judge’s attention even before they bring potential jurors into the courtroom. Sometimes, these preliminary issues can be among the most critical issues of a case, because they usually relate to issues of evidence that the judge must decide. In some cases the attorneys will attempt to  prevent the other side from discussing a particularly damaging issue in front of the jury.

One of the most common preliminary issues is usually referred to as the “Sandoval” hearing. The word Sandoval refers to a particular New York Court of Appeals case (People v. Sandoval). The Sandoval hearing involves a  review of the defendant’s criminal history (if any). The issue is how much (if any) of the defendant’s criminal history will the Prosecutor be allowed to ask the defendant about in front of the jury, if the defendant testifies.

The potential rulings from the judge can be anything from complete preclusion of discussion of the defendant’s prior criminal history all the way to complete discussion of the facts, the conviction, and the amount of jail time served.

Not surprisingly, the Prosecutor usually seeks to be able to use as much information as he can about the defendant’s prior criminal history. Also not surprisingly, the Defense Attorney usually seeks to limit the Prosecutor as much as possible.

Many people, especially defendants, believe it is unfair to permit evidence of prior criminal history before the jury at an unrelated trial. The judge is required to instruct the jury that evidence of prior criminal conduct is not to be used to conclude that the defendant is somehow more likely to commit crime, but instead to be used to help decide whether or not the defendant is the kind of person who would likely tell the truth. The theory is that there is some relationship between the commission of crime in general and the ability to tell the truth.

Theory aside, the battle over use of prior convictions is thought to be a critical one because nobody really believes that juries pay any attention to the legal instructions on the particular use of prior conviction evidence. Instead, most people believe that evidence of prior criminal convictions is almost always devastating to a defendant’s case. One can usually even observe the body language of jurors change upon hearing the news that the defendant has a prior conviction. Most defense attorneys are extremely wary of recommending that a defendant testify if evidence of any prior criminal conduct will be permitted.

As a practical matter, judges usually find a middle ground between the desire of the Prosecutor to have unlimited freedom to cross-examine a defendant about prior criminal history and the Defense Attorney’s desire to have the defendant testify without reference to his prior criminal history (if any).

A typical ruling might be that the Prosecutor is allowed to ask whether or not the defendant had been convicted of a felony in 1996. And assuming the defendant answers truthfully, no further inquiry is permitted. Although apparently a victory for the defense, the fact of the matter is that simply mentioning a prior felony is believed by many to be enough of a bad thing to keep most defendants off the stand.

Although there are many reasons defendants choose not to testify, being afraid of a jury’s unfair reaction to evidence of prior criminal history is certainly one of them.
Always keep in mind that no matter the ruling of the judge, the defendant is never permitted to exaggerate or imply that he has no record if in fact he does. If a defendant hedges even slightly or affirmatively states that he has no record, all bets are off and the Prosecutor has almost free reign.

Oddly enough, at least one group of Queens jurors thought that defendants were permitted to lie about their criminal history. In speaking with jurors after a case they told a local lawyer that they thought any defendant could say he had no record, regardless of the truth.
Sometime around the Sandoval hearing, the defense attorney might actually be provided all of the police reports in the case. The law does not require this until just before opening statements, believe it or not, but as a matter of practice judges usually ask that such discovery be turned over at this time.

It is not unheard of for defense attorneys to be provided with a stack of the most critical police documents in the case immediately before opening statements.
How can you adequately prepare a defense without the police documents you ask? Good question. In New York State, if you sue someone for $1000 you will have every pretrial discovery device in the world available to you. But if your freedom is at stake, you are entitled to NOTHING in New York until it is absurdly too late to adequately do anything with it.

Jury Selection

After all preliminary issues are decided the Judge will send for a “panel” of potential jurors. In a felony case they will usually call for about 60 people selected at random from the jury pool for that day. The Judge will send two Court Officers over to Central Jury to round up the potential jurors and bring them back to Court. Once all the jurors are assembled outside the courtroom the Judge will ask that they be brought in all at once to the Courtroom.

The moment when the jury arrives is always a tense one for nearly everyone involved. It is the moment when you realize that the trial is really going to happen. Many defendants find this moment one of the most frightening moments (aside from the verdict itself) of the trial. More than a few defendants change their minds about going to trial at this moment.

After the potential jurors settle down in the audience, the Judge usually introduces everyone (including the defendant) by name, reads a list of potential witnesses, and reads at least a summary of the charges if not the indictment itself. Any jurors with any knowledge of the people involved or the case itself are expected to speak up.

Judges often read a brief list of “preliminary remarks” to jurors.

Then the Judge will ask the Clerk to select around 16 or so people to sit in the actual jury box for questioning. Juror questioning is called “voir dire”(pronounced vwar deer (or vore dire if you are from the South)).

The Judge goes first, asking mostly basic questions about marital status, children, occupation, and whether or not the juror has ever been a victim of a crime.

After the Judge, the Prosecutor gets to ask questions. Finally, the Defense Attorney gets his opportunity.

The questioning permitted is vastly different from judge to judge. Some judges simply supply a time period (say 15 minutes) and pretty much let you do what you want, while other judges seem to find every type of question impermissible. Questions that one judge may permit without a thought might draw abusive ridicule directed at the attorney from another judge. Judges are permitted extremely wide discretion when presiding over jury selection.

Once the attorneys are finished with a “round” of questioning, they will usually approach with the judge and make selections. The selection process is supposed to be conducted in such a way that the jurors are unaware of who is challenging who and why.

Each attorney gets a set number of challenges for no reason called “peremptory challenges”. The number of these “no reason” challenges depends on the seriousness of the case. A “B” Felony (like say, the sale of a vial of crack) has 15 “no reason” challenges.

Each attorney has an unlimited number of “for cause” challenges. A “for cause” challenge is a challenge based on something the juror said or did that would make that juror unfair as a matter of law. For example, if a juror said, “If the defendant doesn’t testify that means he is guilty as far as I am concerned no matter what the law is.” that would be a “for cause” challenge because the juror is saying in essence that he can’t follow the law that says you can’t hold choosing not to testify against a defendant. The Judge must rule on challenges “for cause.”

After the first “round”, the jurors who were not selected are returned to Central Jury and the process starts all over again until there are 12 jurors and however many alternates the judge feels comfortable keeping.

The process of jury selection is often grueling and boring for jurors. It usually takes at least two days to pick a felony jury. Sometimes, depending on the judge and the case, it can take longer. Almost everyone involved hates jury selection down to Court Reporters who absolutely hate taking it down.

Nevertheless, it is obviously extremely important. Any opportunity to speak to the people who are going to decide the case is important, and the ability to help decide who is on the jury is a wonderful thing.

Opening Statements

After the jury is selected the case more formally begins. Each lawyer has the chance to make an opening statement to the jury. An opening statement is a way to tell the jury what you think the case is all about. The Prosecutor must make an opening statement. The Defense Attorney is not required to make an opening statement.

Years ago, oddly enough, it was common for defense attorneys not to make opening statements. The theory was in part that it wasn’t a good idea to “commit” to a particular defense before you are absolutely sure what the Government witnesses are going to say.

The more modern approach, however, is to take advantage of the incredible opportunity opening statements offers to speak to the jurors, develop a relationship with the jurors, and to tell the story that the jurors are longing to hear. Psychological studies of juries have demonstrated that, despite all the legal instructions they hear, jurors will often make up their minds based on opening statements. Even if only one juror in twelve makes up his mind on the opening, it would seem foolish to give up the opportunity to convince that one juror.

Up until the openings, the jurors have heard nothing but bad things about the defendant. They have had the indictment read to them sometimes as many as three times. And here the Prosecutor is talking for twenty minutes about how bad the defendant is and how guilty he is. And then, at the dramatic moment when the defense attorney is offered the chance finally to fight back, he stands and says something pathetically weak like “defense waives opening.” It is a sickening prospect.

It is difficult to imagine how it could have been commonplace not to take advantage of such a powerful opportunity to communicate with the people who will decide the case. To be sure every case is different, and every case must be handled slightly differently. Perhaps there are circumstances when openings for the defense ought to be waived. Nevertheless, those circumstances would seem to be few and far between.

In theory, opening statements are supposed to be confined to “what the evidence will show.” Argument is not permitted. The line between the two is sometimes difficult to draw. Typically attorneys will attempt to push the limits of permissible comments. You may hear judges complain to attorneys that “This isn’t a closing statement counselor.”

The wonderful thing about opening statements (and closing statements for that matter) is that it is the attorney who gets to tell the story. Witnesses are not usually accomplished public speakers or storytellers. Witnesses also tell only bits and pieces of the whole story. Opening and closing statements provide opportunities to demonstrate your skill as a storyteller. Very rarely will anyone be able to tell the story as well as the attorney.

Prosecution Case

After opening statements, the Prosecutor presents his case to the jury.  The Prosecution must go first because the Prosecution has the burden of proof.

A “Case” usually is made by live witnesses who are called and personally testify in Court in front of the jury.  But a case also is made up of other kinds of evidence.  For example, the Prosecutor might attempt to introduce the actual drugs sold in a drug sale case.  What the Prosecutor makes part of his case depends on what he must prove according to the crime charged.

When the Prosecutor calls a witness, he asks questions of the witness designed to get information before the jury.  This is called “direct examination”.   Direct examination questions usually begin with “Who”, “What”, “Where”, or “When”.

On direct examination, a lawyer is not allowed to suggest an answer to the witness, because it is the witness who is supposed to be testifying.  Suggesting an answer to a witness is called “leading the witness”.  For example, a leading question would be, “Isn’t it true you were in Miami on June 3?”  A “direct” question would be “Where were you on June 3?”

During a trial, you may hear a defense attorney say something like “Objection! Leading.”  That means that the defense attorney is asking the judge to tell the Prosecutor to stop asking leading questions.

After the Prosecutor is finished asking questions, the defense attorney is permitted a chance to cross-examine the witness.

Cross-examination is an opportunity for the defense attorney to challenge the testimony of the witness.  Because it is assumed that an opposing witness is “hostile”, attorneys are allowed to ask extremely focussed questions that suggest an answer.  “Isn’t it true you were in Miami on June 3?” is a classic cross-examination type question.  Sometimes, in good cross-examination, you may even hear what appear to be a series of statements.  For example, you may hear the same question without the “Isn’t it true” lead in. (“You were in Miami on June 3.”)  The witness then either answers yes or no.

During the questioning of witnesses you may hear many objections by the lawyers.   If the judge “sustains” the objection, that means that the judge agrees with the attorney who made the objection.  If the judge “overrules” the objection, that means the judge disagrees with the attorney who made the objection.

Defense Case

After the Prosecution “rests”, the defense has the option of putting on its own case.  In some cases, the defense will choose not to call any witnesses.   The decision to call witnesses or introduce evidence depends on the individual case.  In the defense case, the defense attorneys calls the witnesses and the Prosecutor gets to cross-examine them.

Closing Arguments

After both sides have “rested”, each attorney has a chance to make a closing argument.  The defense goes first.  The prosecution goes last.  In the closing argument an attorney is allowed a chance to suggest to the jury what the case was all about and what the evidence proves (or doesn’t prove).  Television and Movies would have you believe that you can say just about anything in a closing argument.   In times past, that may have been closer to the truth than it is today.  These days, however, judges are more likely to limit an attorney’s closing argument.  Nevertheless, closing argument offers an opportunity for an attorney to be creative.  Good closing arguments can be quite dramatic.

Jury Charge

After both sides have made their closing arguments, the judge then explains the law to the jury, reading what is called the “charge”.  The judge “charges” the jury about general principles of law (like for example, the beyond a reasonable doubt burden of proof) and the specific law about the charges against the defendant.

Jury Deliberations

Once the judge finishes reading the jury instructions, the case is “given” to the jury who then retire to deliberate.

Usually, any alternate jurors will now be released.  Some attorneys like to seek out the alternates and ask their opinions of the case.  The jurors are not required to speak to anyone, but some will.  Without having the benefit of speaking with the other jurors, however, the alternates’ views are not always the same as the views of the actual jury.  Nearly every trial lawyer, it seems, has a few stories of alternates predicting one verdict when the actual result was the opposite. 

In New York State, jury verdicts must be unanimous.  In other words, all twelve people must agree to the same verdict.  If they don’t agree, the case is “hung” and must be retried in front of another jury.  Different judges will permit a jury to deliberate for different lengths of time.

Jurors in New York are no longer sequestered (held together in a hotel overnight) in all cases if they don’t reach a verdict by the end of the day.  Jurors are sequestered in New York only in serious violent felony cases.

In many cases, the jury will send notes to the judge requesting certain portions of the trial be read back by the Court Reporter, or requesting that the judge reread portions of the jury instructions. 


This is the moment of truth.  Once the jury reaches its result, the foreperson sends a note to the judge indicating that the jury reached a verdict.  The jury is escorted back into the Courtroom for the verdict.  The tension of these moments is indescribable.

Everyone is asked to rise and the Clerk asks the foreperson whether there is a verdict. The foreperson says “Yes” and the Clerk then proceeds down the indictment asking for the verdict on each count.  The foreperson says “Guilty” or “Not Guilty” as the case may be.

If the verdict on any or all of the counts is “guilty” the defense attorney will usually request that the jury be “polled”.  “Polling” a jury means that the clerk asks each individual juror to state affirmatively that he or she agrees with each verdict.  In theory it is a means to make sure that the verdict is actually unanimous.  Polling a jury is something of a last-ditch effort.    But rarely, a juror may not be so sure about the verdict and say “NO”.

After the verdict a judge will usually thank the jury for service and have the Court personnel hand out certificates of jury service to each.

If the defendant is found Not Guilty, he walks out of the Courthouse.  If the defendant is found Guilty, the case is adjourned for sentence.  In some cases, if there is mandatory jail time, the defendant will be placed in jail immediately.  In less serious cases where the defendant has no other criminal history, the defendant may be permitted to be out at least until sentence.