by Guy E. Burnette, Jr., Esquire
Introduction: Stranger in a Strange Land
A trial is a complex process of courtroom procedures and rituals which
often seems a strange and mysterious world in the eyes of a non-lawyer.
The lawyers and judges understand the process through their law school education
and courtroom experience. The framework of our court system is derived from
the english common law dating back to the days of king arthur. Ritual and
tradition play a large part in that trial process. The rules of procedure,
rules of evidence, statutory laws and constitutional laws have shaped the
trial process into its present form. To most investigators, it remains a
confusing and puzzling process. A judge's rulings on the evidence and testimony
at trial can seem illogical. The results of a trial can seem inexplicable.
While this paper cannot take the place of a law school education, it can
offer some insights into a better understanding of what goes on during a
trial and why it happens.
The Rules of the Game
Courtroom procedures are governed by a series of rules. The rule of law
which governs our justice system is derived from a number of sources. Constitutional
law regulates the concept of a "fair trial". The united states
constitution establishes the right of trial by jury. It sets the standards
for the admissibility of evidence and testimony at trial. It remains the
fundamental source of all rules regulating the trial process.
The specific procedures in the trial process are contained in the applicable
rules of procedure. In criminal cases, the federal rules of criminal procedure
control the conduct of criminal trials in the federal system and the state
rules of criminal procedure regulate state court criminal trials. In civil
cases, the federal rules of civil procedure and the state rules of civil
procedure serve as the standards establishing civil trial procedures. The
federal evidence code controls the admissibility of evidence and testimony
in federal court criminal and civil cases while the state evidence code
regulates evidence and testimony in state court criminal and civil cases.
Finally, statutory law and "common law" provide additional
rules to be followed in a trial. The criminal offenses under prosecution
are contained in the criminal codes of federal law (the united states code)
and state statutes. Although certain crimes were historically considered
to be crimes under the common law, including arson, all criminal offenses
have now been incorporated into the united states code and/or the state
The Trial Process
(a) pre-trial conference/pre-trial stipulation
Before the trial even begins, certain matters will be controlled by order
of court or agreement of the parties at pre-trial proceedings. In civil
cases, the parties are required to file a pre-trial stipulation listing
the issues to be litigated at trial, the witnesses who will be called, the
evidence to be introduced, any undisputed areas in the case and the disputed
areas to be resolved at trial. The pre-trial stipulation will usually prohibit
a party from introducing any evidence or testimony not contained in the
stipulation and will prohibit raising new issues not listed on the stipulation.
A pre-trial conference will usually be held in both criminal and civil cases.
At this hearing, the court will review the status of the case and the issues
referenced in the pre-trial stipulation. Once again, the court will usually
prohibit a party from introducing new matters not discussed at the pre-
(b) motions in limine
A motion in limine is made by a party prior to the start of trial. It
is a request for the court to specifically prohibit reference to improper
or prejudicial matters that might otherwise come up at trial. The disputed
evidence or testimony is usually something highly controversial or prejudicial
such that it would cause a mistrial if it came out during the trial. In
civil arson cases, a motion in limine will almost always be made by the
insurance company to prohibit any reference to the subject when the insured
was not arrested by the criminal authorities for arson or, if arrested,
(c) voir dire
The process of jury selection is called voir dire. It is derived from
the french language and means "to speak the truth". There are
several important points to be made about the jury selection process.
- The "pool" of prospective jurors called to court is called
the "venire". The venire is usually drawn from the voter registration
- The only persons legally ineligible to serve on a jury are generally
convicted felons whose civil rights have not been restored.
- Although eligible to serve, persons may be excused from jury service
upon request under certain circumstances including physical infirmity,
pregnancy, dependent children, employment hardship and other exceptional
- Eligible jurors can be challenged for "cause" by a party
when it is shown the prospective juror cannot serve as a fair and impartial
member of the jury.
- Both sides are given a certain number of discretionary or "peremptory"
challenges to jurors. These may be used to challenge a prospective juror
for any reason other than race or ethnic origin.
- In most federal court trials, the attorneys are allowed only a limited
number of questions to be asked of the jury venire. In state court, attorneys
are generally given greater access to question the jurors.
- In the final analysis, it is often little more than a game of chance.
Most of the time it is a matter of playing hunches
(d) sequestration of witnesses
The "rule of sequestration" really is not a rule at all. It
is a common law practice of excluding all witnesses who will be called to
testify in a trial from listening to the trial proceedings, especially the
testimony of other witnesses. A defendant or party to the lawsuit can remain
in court at all times. Otherwise, a witness will not be permitted to remain
in the courtroom to hear what the other witnesses are saying. After they
have given their testimony, they may be permitted to sit in on the rest
of the trial - but often are still sequestered until the trial is over.
(e) "who's on first?"
In a criminal case, the prosecution goes first. In a civil case, the
plaintiff goes first. The defense may go first in a civil case where the
plaintiff's basic allegations are not in dispute. This is sometimes a trial
tactic in civil arson cases. The advantage in presenting the case first
is obvious. More importantly, that side gets to make the "first and
last" closing argument to the jury.
(f) judgment of acquittal/directed verdict/involuntary
At the end of the prosecution's or plaintiff's side of the case, the
defense may make a motion to the judge for a judgment of acquittal, directed
verdict or involuntary dismissal. Where the prosecution or plaintiff has
failed to present a prima facie case, the judge will grant the motion and
end the trial before it even goes to the jury. If such a motion is denied
at this point in the trial, it can be renewed later in the trial at the
end of the defense side of the case or at the very end of the trial.
(g) defendant's case
After the prosecution or plaintiff has presented its case, the defense
will present its case. The burden of proof must be carried by the prosecution
or plaintiff. Therefore, the defense may not have to put on a case at all.
In criminal cases, the prosecution may not comment on the defendant's "silence"
in failing to testify.
If the defense has put on a case, the prosecution or plaintiff has the
opportunity to put on rebuttal testimony and evidence. This is strictly
limited to testimony and evidence which is offered in response to the defense
testimony and evidence.
(i) the rules of evidence
The admissibility of evidence is controlled by the applicable evidence
code, federal or state. These are the most common evidentiary objections
raised at trial:
- relevancy - not related to any issue in the case.
- materiality - not probative of any issue.
- competence - not properly qualified or legally allowed to give the
- hearsay - not based on first-hand knowledge, but what others were heard
- best evidence - not the proper document.
- improper predicate - not a proper showing to establish reliability
or admissibility of evidence.
- improper expert testimony - not properly qualified or not within the
expertise of the witness.
A mistrial will be declared during a trial when evidence or testimony
has been improperly presented and is so prejudicial that the damage is irreparable.
This usually involves something that would have been appropriate for a motion
in limine. If the impact on the jury is so damaging that the inadmissible
evidence will likely influence the outcome of the trial, the court must
grant a mistrial. Also, when a jury is unable to agree upon a verdict and
becomes a "hung jury", a mistrial will be declared.
(k) jury deliberations
Time comes to a standstill when a jury is deliberating. Waiting for the
jury to reach its verdict can seem to take an eternity. The jury will generally
be allowed to take all of the evidence admitted during the trial with them
to the jury room. They may ask to have certain portions of the trial testimony
read back to them by the court reporter. However, no new evidence or testimony
may be given to the jury during deliberations. Questions may be sent out
to the judge on legal points. The answers are usually read to the jury after
calling them back to the courtroom. If the jury is expected to take several
days to reach its verdict, they may be sequestered in a local hotel. It
is up to the jury to decide how long it will take to complete their deliberations
and return a verdict, so long as they are progressing toward a verdict.
If they reach an impasse and are divided in their opinions about the proper
verdict, they will usually be given a strongly worded instruction from the
judge urging them to try to reach a unanimous verdict if at all possible.
Should they still fail to agree on a verdict and are deadlocked in their
deliberations, a mistrial will be declared and the case will have to be
tried over again.
Reprinted with permission from the author.