Modern trials are adversary proceeding where two lawyers, acting as surrogates for their clients battle in a courtroom, as Clarence Darrow once said, ”Not for justice, but to win.” Each lawyer is an advocate for his client’s view of the case. The adversarial process dates back to the days of trial by combat when each “suitor” would choose a champion who would fight to the death for him.
The U.S. Constitution guarantees a trial by jury in felony cases. Many people think a defendant "chooses" his jurors. Nothing could be farther from correct. Jury selection is a process of weeding out people who cannot impartially decide the case. Both sides "strike" prospective jurors from a group of people who meet the basic legal requirements for jury service.
The process begins with something called "voir dire." Voir dire is French, meaning to speak the truth or to "speak truthfully." Typically the judge and the lawyers question prospective jurors to determine whether they can be fair and impartial. In most jurisdictions the lawyers participate in varying degrees. The Louisiana State Constitution affords a criminal defendant the right to full and complete voir dire of the prospective jury. The lawyers are allowed to question prospective jurors in the presence of the court about a wide range of subjects. In the Federal system, the judge has complete discretion on whether to allow the lawyers to conduct voir dire and to what degree it will be permitted. Often the judge alone will voir dire the jury in federal court.
Once voir dire is competed the lawyers are allowed to "strike" prospective jurors they are not comfortable with. These strikes are limited in number and are known as "preemptive challenges," meaning that no explanation is required for asking that the prospective juror not be seated. Both sides are allowed an unlimited number of "challenges for cause." However, the party challenging the juror must show the court why the jury is unfit to serve. During jury selection the prosecutor is looking for people who will be receptive to the evidence he will present.
"As a defense lawyer I don't look for stereotypes. I look for intelligent articulate people who want to be good jurors and who are open-minded and willing enough to listen to the all the evidence and examine all aspects of the defense before deciding the case."
Opening Statements
The trial actually begins with opening statements. Both the prosecutor and defense counsel tell the jury what they think the evidence will show. The opening statement sets the stage for the presentation of the evidence. It is a critical part of the trial because evidence is not always presented in an apparently logical and easily understood fashion.
"In opening statement I try to tell my client's story while explaining why I expect the evidence will prove my client's innocence. My goal is to provide the jury a framework into which they can place the testimony of each witness and "make sense" of the evidence and understand why my client is not guilty."
Presentation of Evidence
The Prosecution's case in chief
The prosecutor has each witness testify by asking the witness questions which the witnesses then under oath. This is called direct examination.. Defense counsel has the opportunity to ask the witness questions. This is called cross-examination. Cross-examination has been dubbed the greatest engine for reaching the truth that has ever been devised. During cross-examination a lawyer can use leading questions. He may elicit testimony from the witness that is favorable to the defendant and may inquire into areas of possible bias, prejudice or motivation to testify falsely.
"The importance of cross-examination cannot be overlooked. Oftentimes the entire defense case is presented through the cross-examination of the prosecution witnesses. Cross-examination is one of the most important skills of a criminal defense lawyer."
The decision to defend is a difficult one. A criminal defendant is not required to present a defense; however, after the prosecutor rests his case, the defense may present witnesses. The prosecutor is allowed to cross-examine any defense witnesses, including the defendant, if he or she testifies. The defendant may, but is not required, to testify. If the defendant does not testify nor present any evidence, the jury will be instructed that it cannot take this to mean the defendant is guilty. That is because the Constitution places the burden of proof on the prosecutor to prove the defendant is guilty beyond a reasonable doubt. The defendant does not have to prove he or she is innocent.
"As I try to explain to juries it is the case that is brought by the prosecutor that is not trial, not the defendant."
Prosecution Rebuttal
Once the defense rests, the prosecution has the option to call witnesses to rebut the defense case.
Closing Arguments
After the evidence is closed, the prosecutor and the defense counsel will argue their respective cases to the jury. In closing, a lawyer is allowed wide latitude to argue the inferences and conclusions that can be drawn from the evidence. It is the defense lawyer's opportunity to explain the significance of various pieces of evidence, show how the evidence relates to the law and passionately plead his client's case.
"In closing argument I try to bring my case full circle back to my opening statement and back to my client's story. I try to show how the law and evidence bear out the client's story and support a not guilty verdict."
