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Television often dramatizes trials, but only the most exciting aspects of trials make it on the screen. A real trial is seldom anything like a television trial.

Jury

Some cases are decided by a judge, some are decided by a jury. Both the defense and the prosecutor are involved in determining who gets to decide a criminal case. Unless a citizen agrees to have the case heard by the judge, all criminal cases in Texas must be decided by a jury.

If the judge decides the case, the judge will be the "fact finder," meaning the judge will determine what facts are deserving of consideration.

For example, the fact finder must determine which witnesses to believe when people testify differently about the same event. This is called determining the witnesses credibility.

The jury's role is as fact finder, as well. In Texas, jury trial is a prized right which even extends to simple traffic tickets.

Jurors are randomly chosen from county residents who have a driver's license or are registered to vote.

They appear at court after being mailed notices, placed on a "jury panel," and are qualified by a judge. The judge explains certain basic requirements of jury duty and the jurors' responsibilities. Certain panelists are excused simply by making a request, and others may be released for good reason.

Voir Dire/Jury Selection

When assembled in numerical order, the panel is then questioned by each side's attorney in a process called "voir dire."

Panelists may be "struck for cause," thus excusing them from jury duty. For example, a panelist may disagree with the applicable law in the case.  Such a position may prevent him from following the law.

Each side also has a limited number of "peremptory strikes," which they may use to eliminate potential jurors without having to offer a reason.

When questioning is concluded and strikes have been applied, the first remaining panelists are then sworn in as jurors. Misdemeanors have juries of six persons, while felonies have twelve.

When the jury has been seated, the judge may give a couple of last-minute instructions. Then, the charge is read aloud to the jury. The accused pleads not guilty. The government then must prove every element of its case beyond a reasonable doubt, the highest burden of proof in our courts.  

Opening Statements

Each side usually gives an "opening statement" to put the case into perspective before evidence is heard.  However, there is no requirement that either side give an opening statement. The accused may choose to wait until the government finishes its case before making an opening statement.

Evidence

The judge announces that the government may call its first witness. Witnesses are sworn to tell the truth either before the trial begins or immediately before their testimony.

The government lawyer asks questions of the witness.  This is called direct examination. Objections may be made to improper questions, and the judge rules on the objections to determine whether the witness will be allowed to answer the questions.

Sustaining an objection means that the witness should not answer the question, and the lawyer asking questions should ask his next question.

Overruling an objection means that the witness is allowed to answer the question.

When the government's lawyer has finished his questioning, the defense lawyer has the opportunity to ask questions, if he chooses.  This is called cross-examination.

Each side is allowed additional opportunities to question the witness in re-direct and re-cross examination. Then, the witness is allowed to "step down" and may be excused or be required to remain available for further questioning.

Witnesses offer testimonial evidence and may be able to authenticate other evidence, such as documents and physical evidence.

The government then "rests," which is a way of saying it is finished presenting evidence. Unless the accused chooses to offer evidence, the evidence portion of the trial is finished.

Normally, the lawyer for the accused asks the judge to find the accused "not guilty" because the government did not prove its case.  If the judge agrees, the accused wins.

If the judge disagrees, the accused has the option to put on his case, just like the government did. The difference is that the accused asks questions on direct examination, while the government gets to cross examine witnesses.

If the accused did not make an opening statement at the beginning of the trial, it is usually done immediately before the accused calls his first witness.

Jury Charge and Deliberations

When all the evidence has been presented to the jury, the judge reads written instructions to the jury. The instructions explain the law that applies to the case.  

The jury must decide whether the accused is guilty or not guilty by determining which facts, if any, were proven beyond a reasonable doubt. The jury then must apply the facts to the law presented in the judge's instructions.

A verdict requires a unanimous vote.  No verdict may be returned unless every juror agrees that the accused is guilty or not guilty.

If the jurors cannot reach a verdict, they are considered a "hung jury." In that case, the jury is discharged, ending the trial. The prosecutor must decide whether to try the case again.

Verdict

If the accused is found "not guilty", he is set free.

If the accused is found "guilty", the trial continues so as to determine punishment.

Punishment, if Found Guilty

Before the trial began, the accused may have filed an application for probation. Only people who have no felony conviction are eligible for probation from a jury. An eligible person may file a sworn application stating he is eligible for probation. Otherwise, he will be sentenced to a jail term, a fine, or both.

Much like the "guilt/innocence" phase of trial, each side is allowed to present evidence that may help the jury assess a fair punishment. The judge will again instruct the jury on the law and charge them to follow it.

Should the jury determine that probation is not acceptable, it must determine an appropriate jail sentence and fine. If probation is recommended, the jury may also recommend the length of the probation. Ultimately, however, the judge has the final word on the length of the probation.  The maximum probation period for a misdemeanor is two years, while a felony's maximum is ten years.

The judge also sets the conditions the defendant must follow while on probation. Conditions may include jail time, in-patient drug/alcohol treatment, as well as many other programs and restrictions.

Failure to follow the conditions of probation may result in revocation of the probation and execution of the original sentence of incarceration. No jury is permitted at a revocation hearing.

Back to Criminal Defense in General

*All answers are for people 21 years or older, do not involve enhancements, are not exclusive, and are limited to Texas.