When a case goes to trial, it can either be in front of a judge alone, or in front of 12 jurors that are chosen specifically for each trial. When the case is in front of a judge alone, commonly known as a bench trial, he or she is the factfinder in place of a jury and will determine the outcome after hearing the case. When a case goes in front of a jury, then that jury is specifically selected by the lawyers on the case, or the parties if they choose to represent themselves. This jury is chosen amongst many who are called by the court to serve on jury duty and will serve if chosen as one of the twelve jurors, along with two alternates.

Choosing a jury may involve a process called voir dire. This involves different questions by the attorneys and sometimes judge to those who have been called to decide if they can be impartial to the case at bar and will not use their outside experiences or biases to decide the case to come. Jurors can be removed by challenges by the attorneys, Attorneys can remove those jurors that they believe would be biased and eventually will narrow down to twelve people who will be required to serve on the jury throughout the duration of the case, with little exceptions. This is called removing a juror for cause. An attorney may also remove a juror without cause, however only three.

Once a jury is chosen, the trial can be scheduled to begin. Every jury trial begins with an opening statement from both parties that tells the jury a number of things. An opening statement can tell the jury the evidence they might hear, the themes the attorneys want them to pay attention to, and to remind them of their duty as jurors to be fair and impartial when deciding the fate of the defendant. They may mention evidence that is admissible and will be discussed during the trial, however other evidence that either attorney knows is will not be used cannot be mentioned or alluded to in order to sway the jury. The prosecution or plaintiff goes first in jury trial to give their opening statement, however the defense can either choose to give their opening after the prosecution or reserve it for a later period in a criminal case.

After openings have been given, the plaintiff or prosecution (depending on the kind of case) will call their first witness, which is called direct examination. Because they are the ones bringing the case and have the burden to show that the Defendant did what they are claiming under a certain standard. The prosecution calls their witnesses and asks them questions that help paint a picture to the jury of their interpretation of what happened, in order to sway the jury in their favor. This kind of questioning is often the most conversational because they are they prosecutions own witnesses who they have met with to discuss their testimony. However, rehearsing testimony and telling the witnesses what to say, often called coaching, is not permitted.

Once direct examination has concluded of one witness the defense can cross-examine that witness. This is often the more commonly known aspect of the jury trial as the defense lawyer is often seen as the person asking interrogating questions to discredit a witness or “crack them” into telling the truth. The goal of cross is in fact to show the weaknesses of the witness to the jury, or to impeach the witness, so that they may judge their testimony accurately. Cross-examination occurs immediately after the prosecution gives its direct, and once cross has concluded, the witness may be subject to re-direct and re-cross. Then the witness may be excused and the prosecution calls its next witness, who is then cross-examined by the defense and so on, until the prosecution has called all of its witnesses and rests its case. This process is then repeated by the defense who calls its first witness for direct examination, and the prosecution crosses their witnesses. Sometimes a judge may allow either side to also rebut which occurs after cross-examination of witness by the attorney that directed their witness in order to rehabilitee their credibility. It is also important to note that the questions asked on both direct and cross are subject to rules of evidence that limit what can and cannot be asked as well as how certain things may be asked.

Finally, after motions have been made, both sides deliver a closing argument. The defense goes first, because the prosecution has the burden of proof. Closings are argumentative and try to show the jury their side of the story in line with the evidence that has been presented. Once closings are given, the judge will give the jury the jury instructions which inform them of the legal principles they are to consider as well as the elements of the crime. The jurors are then released and must deliberate as to which side they believe and find the defendant guilty or not guilty. In a criminal case, the jury must come to this decision unanimously, and a jury foreperson announces this decision when they return to the courtroom to give the verdict. In a civil case, the jury does not have to be unanimous in its decision. Opportunities for appeal may arise if a number of situations can be argued to have improperly swayed the outcome.

At Smith-Weiss Shepard & Kanakis, P.C. our practice areas include estate planning, guardianship, probate administration, family law, civil litigation, criminal defense, personal injury, business and corporate law, real estate law and settlement services on behalf of buyers, sellers and lenders for both residential and commercial real estate transactions. We happily serve areas that include the entire state of New Hampshire as well as Northern Massachusetts. We invite you to call our office, or submit your information online, and we will respond promptly to schedule your free initial consultation.

Smith-Weiss Shepard & Kanakis, P.C.- Providing Practical Advice, Achieving Results.