How Long Does It Take?

Q: How long does a criminal trial typically take?

A: Returning to our ongoing serial look at the criminal trial process, my answer to the question should be obvious for those who have been reading this column these several months: it depends. What are the charges? Who are the witnesses? How many witnesses? How much evidence has to be presented? How long winded are the attorneys?

A trial consists of only a few basic parts: opening statements, presentation of the evidence, closing arguments, instructions, and deliberation. Opening statements we have already discussed. And, to an extent we have talked about the presentation of evidence too. What you may not know is how the parties take turns presenting the evidence.

Since the accused is always “innocent until proven guilty,” the State has the burden of proof. So, it is the State who puts on evidence first during what is called their, “case-in-chief.” Witnesses are called and asked questions to introduce evidence into the trial. This is called a “direct examination” because they are asking them “direct” questions to elicit evidence by way of a narrative. A textbook case of direct examination will involve questions that begin with “who,” “what,” “where,” and “when.” The goal of the questioner is to elicit a story, directed only by the questions asked.

When the prosecutor is done asking direct examination questions, the witness is “tendered” (I.e., offered for further examination) to the Defendant for what is called “cross examination.” It is unknown exactly why they use the term “cross” other than to speculate that it is an examination from the party across the room. (Although, www.etymonline.com suggests dates the phrase “cross-examine” back to 1664. Impress your friends with that at your next dinner party!) Nonetheless, the goal of cross examination is altogether different from direct. During cross, the goal is to insert reasonable doubt into the evidence presented on direct. The type of question used also differs from direct. On cross, the Defendant is entitled to use “leading” questions, meaning questions that propose the answer and are typically answered “yes” or “no.” For instance, “Isn’t it true that you stole all the money and not the Defendant?”

After the Defendant finishes, the State gets another crack at the witness and can ask questions on “re-direct” examination. Then, when finished, the Defendant may opt to ask “re-cross” questions on those topics inquired into during “re-direct.” This back and forth usually does not go past this point and the witness is excused.

When the State is done presenting all of its evidence, it “rests” its case-in-chief, thus allowing the Defendant to put on his defense, if any, during his case-in-chief. A Defendant has a Constitutional right to present no evidence whatsoever and may choose to be silent, forcing the State to present evidence “beyond a reasonable doubt.” Sometimes, if the State has presented a weak case, and the Defendant has managed to poke holes in the State’s case-in-chief during cross, further presentation of defensive evidence is simply not needed. But, for the most part, at least some evidence is presented by the Defendant so as to give the jury a reason to find the existence of “reasonable doubt.”

So, how long does all of this take? That is the $64,000 question. Sometimes it takes a day, two days, a week, a month – it just depends on who is saying what about the where, when, how, who, and why, and what the other party’s response, if any, will be to it. Justice takes time.

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Copyright Jeremiah G. Dys 2007. May not be used absent express, written permission. Please contact the author for permission to reprint.

Objectionable Objection

Q: What does it mean when a lawyer says, “I object!”?

A: We have all seen some courtroom drama where things are sailing along keenly, the key witness is on the stand, and, as the music builds, the questioning gets more and more intense. You sense that a confession is just about to explode from the mouth of the confused witness. The lawyer asking the questions is hovering over the witness, who cowers in the corner of the witness stand, shirking away from the shrill barrister. Suddenly, from the other side of the room, the opposing jurist, erupts to his feet, pounds the table with his fist bellowing, “Your honor, I object!!” As the whole courtroom gasps and fills the air with chatter, the judge brings all to a silence simply by saying, “On what grounds?!”

While most objections are something less dramatic than that, objections serve several useful purposes in the trial. The verb “object” means, “to bring forward in opposition.” That definition summarizes things nicely. An objection is used as a means of one attorney saying, “I disagree that the piece of evidence (or particular procedure) at issue is being appropriately introduced (or used).” Why is that important?

Remember that the jury decides all questions of fact and the judge governs all matters of law. In order for the judge to make a ruling on a matter of law, an attorney must make such a request known to the gavel jockey. This process is called, raising an “objection.” An objection stops all the presentation of factual evidence and allows a discussion of the law to be had. There is a grand variety of objections to be made – too many to be listed in this column.

Once an objection is lodged, the ground for the objection is made, the opposing counsel is given a chance to disagree with the objection, and the judge pronounces judgment as to that issue. If the objection is successful and the jury heard something they should not have heard, the attorney can ask that the forbidden issue be stricken from the jury’s review. If granted, the judge instructs the jury to forget what they just heard, which is often as effective as someone trying to un-ring a bell.

What is perhaps more important is the preserving effect objecting has. When trials conclude, appeals to a higher court may follow. The only issues that may be heard on appeal are errors of law. Such errors of law are preserved by the making of objections. Failure “to bring forward in opposition” is tantamount to saying, “I see nothing wrong with that issue.”

Objections, therefore, enforce the orderliness of courtroom proceedings and preserve the contentious issues for any subsequent appeals.

P.S. Have you ever wondered why attorneys use the term “object?” It probably has something to do with the definition, but there are other words that mean the same thing and could have been used. But, then again, can you really hear Perry Mason leaping to his feet saying, “Your Honor, I demur!!”? Can you hear Matlock saying, “Expostulation, your Honor!”? “I object,” seems to encompass all that needs to be said in one nice, neat package. Besides, that’s what Rule 103 of the Rules of Evidence says you are supposed to call it.

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Copyright Jeremiah G. Dys 2007. May not be used absent express, written permission. Please contact the author for permission to reprint.

And So It Begins

Q: What is an opening statement?

A: Our ongoing series on the criminal trial has worked itself through indictment and arraignment, and discussed most of the players of the criminal trial, including the jury itself. It appears, therefore, that all the players are in place. How does the trial begin?

Once the jury is assembled and in place, the judge calls the case on for trial. Usually that is done much less dramatically than what we used to see Judge Wapner and his bailiff do. Judges may, but rarely do, bang the gavel to quiet the courtroom, but usually, the bailiff’s demand that, “All rise! The Court of [Insert county name] is now in session, the Honorable [Insert full name of judge] presiding,” usually gets the attention of the gallery.

Sidebar: You may recall from Perry Mason, or other courtroom dramas, hearing the bailiff say, “Oyez! Oyez! Oyez!” and going on to call the trial to order. This is true. In fact, many courts still use the crying of “Oyez!” to open the court proceedings. The Supreme Court of the United States still does, as does the Supreme Court of Appeals of West Virginia. “Oyez!” is of Latin-Old French origin meaning, “Hear Ye.” The practice of using this interjection at the beginning of a trial dates back to the days when the Town Crier would wander the community using the exclamatory statement to secure the attention of his countrymen. Since the uttering of the phrase both gets the attention and signals that a serious matter follows, “Oyez” has become as much of a staple of courtroom tradition as the gavel has. End sidebar.

With the courtroom’s attention fixed, the Judge calls the name of the case, State v. John Doe, and the case number, 07-F-1. He then notes the presence of the prosecuting attorney, the attorney for the defendant, and that the defendant is present, in person. All of this, of course, is being dutifully recorded by the court reporter.

What happens next is most adequately described as a procedural roadmap. Remember juries are made up of ordinary folk who have little or no experience with the legal process. There is no required course in high school civics called, “Juries 101,” nor is the book, “Juries for Dummies” readily available, so most jurors are come to the adjudicatory process not knowing what to expect.

The judge welcomes the jury and begins his portion of the roadmap. He instructs them as to their duty as triers of fact and distinguishes that duty from his own duty as all matters legal. He informs them that objections and private discussions may arise that they need not concern themselves with; that’s the judge’s job. The judge sounds much like a bad episode of Dragnet during his monologue: “Only the facts, jurors.”

He then affords the attorneys the opportunity to make an opening statement. An opening statement serves the purpose of presenting to the jury what each attorney thinks the facts will prove. The ideal opening argument is less persuasive and more informative, less of a legal argument and more of a factual presentation. It is the first step of the old adage, “Tell them what you are going to tell them, tell them, and tell them what you told them.” It alerts the jury to the theory of the case that the attorney has chosen, providing markers for the jury to remember throughout the trial. In short, it gives, in the form of an outline, the jury a sneak peak at the attorney’s game plan.

Once each side has made their opening statement, the trial is officially underway.

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Copyright Jeremiah G. Dys 2007. May not be used absent express, written permission. Please contact the author for permission to reprint.

Juries Are All About the Facts

Q: What is the role of the jury in a criminal trial?

A: Trials follow arraignments, which follow indictment, which are produced by grand juries, which are assembled after criminal charges are filed against an alleged criminal. There are four essential roles in a criminal trial: the prosecutor, the defendant, the judge, and the jury. The prosecutor, as you might have guessed, prosecutes the defendant, who defends himself as necessary. The judge presides over all matters of law in the trial. It is the unique province of the jury to determine the facts of the case.

Juries are picked from a random sampling of the defendant’s peers, as the Sixth Amendment to the U.S. Constitution requires. In felony cases, twelve jurors are required to constitute a petit (as opposed to a “grand”) jury. The West Virginia Code requires that a qualified panel of at least twenty jurors be presented in order for a jury of twelve to be picked.

When twenty random names are picked from the list, the process of voire dire (pronounced, “vwah-deer”) begins. Voire dire literally means, “to speak the truth” and is used to produce a jury whose minds, as one court has said, “wholly free from bias or prejudice.” Typically, the judge begins the voire dire process by asking a litany of general questions: “Do you know the lawers?”, “Do you know the defendant?”, etc. Once the judge has determined that there are twenty qualified, prospective jurors, he allows each attorney to voire dire the jurors.

The attorney might ask if the jurors have heard anything about the case, if they have a prejudice against particular crimes, if their work gives them special knowledge about the matter to be tried, etc. Attorneys have even been known to ask about whether jurors listen to talk radio in an attempt to peg one’s political persuasion. The goal of each attorney is, superficially, to obtain an impartial jury. In reality, each is attempting to determine which jurors are more likely to be sympathetic to their position.

Once the attorneys are finished, they are permitted to exercise their “strikes.” Strikes come in two forms: “peremptory” and “for cause.” Each gets four peremptory strikes, meaning, they can cut a juror for any reason they want. Strikes “for cause” are limitless, but can only be exercised when true instances of bias or prejudice are shown. For instance, if an Elbonian is the defendant in the criminal case, and a potential juror is the sworn enemy of the Elbonian people, that juror might be stricken “for cause.” But, if that same juror’s dislike of the Elbonians is based solely upon the way Elbonians are described in the comic “Dilbert,” it is likely that the juror could be rehabilitated and the prejudice dissipated.

When the panel of twenty prospective jurors is complete, eight must be stricken. The prosecution and defense take turns striking jurors, until the number remaining is twelve. Exactly why jurors are struck peremptorily is largely unknown – even to most attorneys. Many have theories about the ideal jury, but if you asked most attorneys, they would probably tell you that certain jurors are struck mostly on “gut instinct.”

It may be an imprecise science, but it is remarkable how often well-balanced juries are chosen. It is not uncommon for juries to have a coal miner sitting beside an executive sitting beside a homemaker. The greater the cross-section of society that juries represent, the more objective the jury becomes.

It is its objective nature that makes trial by jury such a hallmark of our democracy.

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Copyright Jeremiah G. Dys 2007. May not be used absent express, written permission. Please contact the author for permission to reprint.

Venues: They are a Changin'

Q: What is a “change of venue?”

A: Before an answer to this question can be properly understood, you must understand that the Sixth Amendment to the Constitution of the United States guarantees an alleged criminal the right to a “speedy and public trial, by an impartial jury of the State and district” where the crime allegedly occurred. Key in on that word “impartial;” its importance will be shown shortly.

Here’s what normally happens. A criminal is arrested and indicted for the commission of a crime. Ultimately, the criminal defendant will get the opportunity to defend the charges brought against him in an appropriate court of law. That defense takes place in the form of a trial. Criminal trials are presided over by a judge and a jury. The judge governs matters of law, while the jury is the determiner of facts. That jury, for a criminal trial, consists of twelve individuals who are residents of that county.

Most of the time, we are blissfully unaware of all the sordid details of the crimes that happen within our community on a routine basis. But what happens when a “high-profile” case comes to trial? Trials for cases that have already been tried in the court of public opinion present an especially difficult issue when it comes time to make payment on that Constitutional guarantee of an impartial jury.

Sometimes, the projected jury pool could be so vastly biased that it is necessary to find another jury pool. Enter “change of venue.” Venue is simply the place where the trial will occur. When we speak of changing venue, lawyers mean that the trial needs to change location. So, if the case is pending in County X, but County X is determined to be frightfully biased, the trial of the case is moved to County Y, using all the lawyers, witnesses, and even judges that would have been used in County X, but jurors from County Y in an effort to ensure impartiality.

Changes of venue are few and far between. One reason for that is the law, which requires a defendant to prove “the existence of a locally extensive present hostile sentiment against him,” as one court put it. The Rules of Criminal Procedure require the existence of “so great a prejudice against the defendant” that no “fair and impartial trial” can be had in the place the law demands trial. Proof of such a pervasive bias is undeniably difficult.

Why? Well, say there are 80,000 people residing in the current venue. The jury only needs to be twelve people. We all know that you, dear readers, keep well-informed of the goings-on of this county, but not all of our fine residents do – by this paper, radio, or television. It is safe to say, frankly, that most of our neighbors have no idea what is going on down at the courthouse. Only twelve people who know nothing of the criminal defendant or alleged crime need to be found to secure impartiality. Finding those twelve can be surprisingly less difficult than you may think.

The reason the burden is so heavy upon a criminal defendant is that there are great costs to changing venue. Where do you go to be free of the bias? What does it cost to transport the entire trial to the new place of venue? What evidence must make the trip?
Our system of justice functions well to ensure impartiality. It depends upon the honesty of prospective jurors to confess bias, should they have any. Empanelling “an impartial jury of the State and district” where the crime allegedly occurred happens far more often than not.

Impartial juries: just one more indication of your importance to the assuaging of injustice in this fine country.

Copyright: Jeremiah G. Dys, Esq. May not be used absent express, written permission. Please contact the author for permission to reprint.