One of the most vaguely understood events in the United States is the
modern criminal trial. Most people have a faint knowledge of the goings-on
of criminal proceedings, mainly due to what is seen on television, but the
person who knows the real course of a trial is rare. However, there is
nothing mysterious about the events that determine criminal guilt. Trials
are carefully orchestrated, following procedures that have been laid in
legal concrete over the years, and generally follow the same basic format
across the United States.
Criminal law is distinguishable from civil law in the aspect that
criminal acts are officially considered to injure not only individuals, but
society as a whole. This is the reason why criminal cases are described as
state v. offender. The state, as the injured party, is taking the
defendant to court (Schmalleger 64). The purpose of a criminal trial is to
determine if the offender is legally guilty of the crime, but this does not
necessarily mean that the person in question committed the crime. As
opposed to factual guilt (the person ‘did it’), legal guilt merely means
that a jury of the defendant’s peers is convinced without reasonable doubt.
As can be seen, this leaves room for possible discrepancies (Schmalleger
Before a trial can proceed, certain events must take place. The
first is the arraignment of the defendant, which can happen anytime between
arrest and a logical, non-specific time before the trial itself.
Arraignment consists of the court reading to the defendant the substance of
the charge, and calls on the subject to enter a plea within a given time
The defendant may consult with and be advised by an attorney on what
plea to offer the court. He may plead guilty or no contest (nolo
contendere), in which case a trial does not occur and the subject goes
directly to a sentencing hearing (Tull 1), or he may plead not guilty, and
trial preparations will proceed. In very rare cases the defendant will not
enter a plea, and is said to ‘stand mute’ (Schmalleger 189). Directly
after entering a plea of not guilty, the defendant must decide on one, if
any, of many courses of defense to follow. A plea of guilty or no contest
that is withdrawn by the defendant cannot be used as evidence against the
defendant (Tull 3).
One of the most popular defenses is the alibi defense. This course
of action holds that the defendant was at another location at the time of
the offense, and therefore could not possibly have committed the crime. If
an alibi is to be offered, the defendant has a court-appointed time in
which he must declare his intentions. The attorney for the state will send
a notice describing the time, date, and place of the offense, and the
defendant must refute this information. If the defendant issues notice of
alibi but then withdraws the claim, this information cannot be held against
him later in court (Tull 5).
Another popular defense is the insanity defense. The court
definition holds that “a person should not be guilty if they did not know
what they were doing, did not know that what they were doing was wrong, or
if their actions were the result of a mental disease or defect”
(Schmalleger 75). This obviously covers a lot of area, which is part of
the reason for its popularity. If the defendant plans to claim insanity,
he must notify, in writing, the state’s attorney of his intentions, and
also file a copy with the court clerk. Failure to follow these guidelines
results in the disallowance of the insanity claim. A withdrawn claim of
insanity is not admissible as evidence against the defendant (Tull 5).
There are many other defenses, divided into three categories, that
are much less common than alibi and insanity. The first of these
categories is designated ‘other defenses.’ The following are examples of
these. ‘Temporary Insanity’ implies that the defendant was only insane at
the time of the offense, and was once a very popular defense, as the
defendant usually got off “scot-free”. However, due to recent
restrictions, it has lost its appeal. ‘Guilty but Insane,’ a defense that
is all but extinct, resulted in a stiff penalty, but mandatory
psychotherapy was included in any sentence. ‘Involuntary Drunkenness,’
holding that the defendant was intoxicated against his will, is rarely
used, although it has resulted in a number of successes in court.
‘Unconsciousness’ is even more rare of a defense, and is used if the
defendant committed a crime while sleepwalking, having a seizure etc. A
‘Chemical Imbalance’ defense is used if the defendant’s actions were
influenced by the consumption of food products or stimulants, including but
not limited to sugar, nicotine, and caffeine. ‘Premenstrual Stress
Syndrome,’ or PMS, is a very new defense and not yet even officially
acceptable. However, it has been successfully used in Virginia
The second group of defenses is labeled ‘special defenses.’ One that
is fairly commonly used is ‘Self Defense,’ holding that the defendant
committed the crime in self-defense to avoid physical harm. ‘Duress,’ on
the other hand, is not common, and is used when the defendant claims to
have committed a crime in order to alleviate a prior wrongdoing against
him. The ‘Entrapment’ defense has become the subject of media attention,
since its implications are a bit sinister. It is implied that law
enforcement officers have created a crime solely for the purpose of
prosecuting the defendant. In the case of an ‘Accident’ defense, the
offense is said to have been purely accidental on the part of the
defendant. ‘Mistake’ says that the defendant committed an unwitting crime
due to outside forces that precipitated the actual offense. A defense of
‘Necessity’ is rare, and is only used when the survival of the defendant
was at stake. It is only truly useful if no serious harm was done.
‘Provocation’ is a fairly new defense, and one that was sought after by
defense attorneys for years. Under this defense, a defendant is
acknowledged to have been provoked by a tormentor to the point of lashing
out. ‘Consent,’ the last defense of this group, holds that the crime
committed was done under consent of the victim (Schmalleger 80-81).
The last group of defenses is the ‘procedural defenses’ that point
fault at the court. The first of these is ‘Double Jeopardy.’ This occurs
when a subject is prosecuted twice for the same offense. Although this is
unacceptable under the Constitution, there is an exception to the rule. If
a crime was committed in two jurisdictions, then two separate trials may be
held. ‘Selective Prosecution’ charges that the defendant has been singled
out for prosecution due to discriminating factors. A defense of ‘Denial of
Speedy Trial’ is usually quite effective, because a trial must be held
within a reasonable, given time after arrest. If the court breaks this
rule, the defendant must be released. This rule is not applicable if trial
is delayed by actions of the defense. The last defense is ‘Prosecutorial
Misconduct,’ and holds that the prosecution has used bad ethical practices,
such as hiding evidence or producing false testimony (Schmalleger 83-84).
Another defense, the ‘Infancy Defense,’ may only be used by children.
“Children below the age of seven cannot be tried for any crime, no matter
how serious.” The age of prosecution as an adult varies, but ranges from
ten to eighteen years of age (Schmalleger 74).
Disclosure is a major part of trial rights. Upon request from the
defendant, the government must disclose all evidence and testimony that is
to be brought against the defendant. On the other hand, if this occurs,
the defendant must disclose defense evidence to the government if requested
At the same time as the other trial preparations, the jury for the
trial is selected, usually from the same district as the crime was
committed in (Simon 208), and subpoenas are sent to witnesses. Subpoenas
are issued by the clerk and state the name of the court and the proceeding.
They may also command the person to produce documents or other evidence.
“Failure without adequate excuse to obey a subpoena may be deemed contempt
of the court” (Tull 11).
Once a trial actually begins, the struggle of the prosecuting
attorney against the defense attorney becomes evident (Curley and Kolanda
9). The attorneys should have at least a token belief that their subject
is in the right. A criminal defense attorney may proclaim himself a
fighter for truth and justice, and he may be precisely that, but once a
case is accepted, his only responsibility is to his client, regardless of
belief (Zerman 9). Even defense attorneys who are convinced that their
client is guilty are still exhorted to offer the best possible defense and
to counsel their client as effectively as possible (Schmalleger 198). The
prosecutor, too, may claim to seek truth and justice, and is probably
already convinced he knows the truth and believes in the defendant’s guilt.
However, if he finds he no longer believes the defendant is guilty, he has
a legal responsibility to stop the proceedings (Zerman 9).
The first actions in court are the opening statements by both
attorneys. The opening statements show the jury what the attorneys plan to
do to prove their cases and how the proof will be offered (Schmalleger
206). After the opening statements, witnesses are called, generally by the
prosecution first. In most cases, witness testimony is the chief means by
which evidence is introduced at trial. Among others, witnesses may include
victims, police officers, specialists, and the defendant, although the
defendant has the right to not testify under the 5th Amendment. “Some
witnesses may have been present during the commission of the alleged
offense, while most will have had only a later opportunity to investigate
the situation or to analyze evidence” (Schmalleger 208). Traditionally,
witnesses must face the court and defendant while testifying, although
there have been exceptions. Most states allow children to testify remotely
so as not to be traumatized (Schmalleger 210).
There are three types of witnesses. Eyewitnesses are used more often
by the prosecution, and claim to have been at the scene of the crime.
Character witnesses tell about the character of the defendant, and may be
used by both sides. Alibi witnesses are only used by the defense, and try
to convince the jury that the defendant was elsewhere at the time of the
offense (Zerman 76).
When a witness is called, he undergoes a line of questioning by the
friendly attorney. This is called “direct examination.” When the attorney
is finished, the opposing attorney steps forth to interrogate the same
witness. This is called “cross-examination.” Usually, cross-
examination may only contest material covered during the direct examination
(Schmalleger 209). The witness will have gone over the questions and
answers for both examinations with both attorneys beforehand (Schmalleger
Some witnesses give untrue testimony to protect the defendant. If
demonstrated to be false during examinations, witnesses can be impeached by
the court and charged with perjury, a crime in itself (Schmalleger 210).
There are several types of testimony that are inadmissible as
evidence. Hearsay evidence is described as what a witness heard from
another person, rather than what he saw or experienced firsthand (Zerman
71). Allowances, however, can be given under certain circumstances. One
is the dying declaration, which is a statement made by a person who is
about to die. A second instance is that of the spontaneous statement,
which is made by a person in the heat of excitement without time for
fabrication (Schmalleger 212). Irrelevant or immaterial evidence is
testimony that goes beyond or misses the point of the question asked, and
statements of opinion show only what a witness thinks, rather than what he
knows (Zerman 71).
Physical evidence, if any, is brought forth during witness testimony.
There are two classes of evidence: direct and circumstantial. Direct
evidence, if believed, proves a fact without opinionation. It can be
testimonial, which is the aforementioned witness testimony, or it can be
physical (Schmalleger 207). There are three kinds of physical evidence.
Documents are anything written or typed, objects are weapons, clothing, and
the like, and copies and reproductions include photographs and recordings
(Zerman 72). Physical evidence is only subject to challenge on grounds of
authenticity or manner in which it was obtained (Zerman 72).
“Circumstantial evidence, however, requires inference and drawn
conclusions.” It is often enough to convict anyway (Schmalleger 207).
After all witnesses and evidence have been shown, the attorneys give
closing arguments, also called ‘summations.’ Closing arguments are direct
attacks on the opposing side’s weaknesses. They provide review and
analysis of evidence. Testimony, exhibits, and inconsistencies in the
opposition will be pointed out (Schmalleger 212). Many good defense
attorneys are effective showmen. They try to play on the feelings of the
jurors during this crucial point of the trial. The argument is often
emotional and poetry or verse is sometimes used. The prosecution, however,
is only likely to use one emotion: outrage at the defendant (Zerman 89).
The situation during summations is favorable to the prosecution, who, in
the vast majority of instances, opens the argument (Tull 18). After a
rebuttal by the defense, the prosecution then has an opportunity for
counter-rebuttal. In any case, the prosecution is always given the last
word in closing arguments (Zerman 91).
After summations, the judge gives his ‘charge to the jury.’ He calls
on the jury to retire and select one of their number as the foreman, and
deliberate upon the evidence that has been presented until a verdict has
been reached (Schmalleger 213). He also summarizes all testimony, makes
comments, and gives guidance. “It is often considered the single most
important statement made during a trial” (Zerman 94).
Once the jury leaves the courtroom for deliberations, they immediately
choose a foreman, whose job it will be to deliver the final verdict. The
jury may deliberate for hours, days, or weeks, and may examine evidence,
review testimony, analyze the judge’s charge, discuss, argue, and negotiate
(Zerman 13). Disagreements emerge early, but the majority almost always
wins. Surprisingly, immediate unanimous decisions are not uncommon – they
account for about 31 percent of all verdicts (Zerman 106). Most
jurisdictions require a unanimous decision, although the United States
Supreme Court has ruled that only capital cases must warrant a unanimous
Jurors are not allowed to discuss the case with relatives, friends, or
each other until the proper time, because it is known that thinking is
affected by the influence of others. “Scientific studies have shown that
people instinctively and subconsciously want to be with the majority, and
because of this, are not likely to hold out in an argument against the rest
of the jury.” During
deliberations, if the case is important enough and the judge believes there
is risk of the jury being influenced by outside sources, he may sequester
jurors, putting them in a hotel with little contact with the outside world.
Even newspapers and television may be censored. Telephone calls are short
and monitored, and windows are usually covered over so as not to let the
jurors see anything that may influence their thoughts (Zerman 58).
Deliberations will ultimately end in either a verdict or a ‘hung
jury.’ In a hung jury, the members “debate, argue, plead, and finally
admit defeat,” not being able to agree on a verdict. Hung juries are
usually just replaced, but sometimes the trial is stopped, and the time and
money involved, which is sometimes quite substantial, is wasted (Zerman
101). But a verdict is reached successfully 99 percent of the time. The
jury, led by the foreman, gives the verdict to the judge in open court
(Tull 19). If the verdict is guilty, the defense attorney may choose to
‘poll the jury.’ He asks each juror his personal opinion, and in a few
cases, a juror’s doubts re-emerge to cancel the verdict. This rarely
happens, but if it does the result is a victory for the defense (Zerman
A criminal trial is a complicated but closely choreographed event.
Almost nothing happens without proper precedent, and even the most
factually guilty defendant can be sure of having at least a small chance of
getting “off the hook.” The unbiased trial is a constitutional institution
that may not always make sense to the average person, but that reflects the
value of justice in American society.