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Courtroom Procedures

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 statutes.

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- trial conference.

(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, was acquitted.

(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.

  1. The "pool" of prospective jurors called to court is called the "venire". The venire is usually drawn from the voter registration records.
  2. The only persons legally ineligible to serve on a jury are generally convicted felons whose civil rights have not been restored.
  3. 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 circumstances.
  4. 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.
  5. 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.
  6. 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.
  7. 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 dismissal

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.

(h) rebuttal

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 testimony.
  • hearsay - not based on first-hand knowledge, but what others were heard to say.
  • 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.

(j) mistrials

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.

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