A trial is a stressful event. The anxiety that comes from uncertainty is enormous. The state has the burden of proving guilt, and must call witnesses and present evidence. The accused does not have to prove his innocence because of the presumption of innocence. It is the prosecutor's burden to prove guilt beyond a reasonable doubt. If a person chooses to go to trial instead of plea bargaining, in most instances, it will be a jury trial. In some instances, if the parties agree, you may go to trial before a single judge, without a jury.

If it is a jury trial, the verdict must be unanimous. If jurors cannot agree, it is known as a hung jury; this rarely happens. Most of the time the defendant's case is simply set for trial again.

Jury Trials Are Complex Undertakings

A jury trial, even in the simplest of cases, is a complex undertaking. Jury selection is a complicated process where experienced attorneys question jurors in an attempt to find impartial jurors. An attorney's experience, knowledge and demeanor weigh heavily in this process. A juror's first impression is important and the experienced attorney's ability to articulate and communicate is often critical to success.

Although the law dictates this presumption of innocence, it has been our experience from questioning hundreds, if not thousands, of prospective jurors that many jurors feel that a person must have done something illegal or they would not have been arrested. Jury selection is one of the most important phases of the trial — this is where many cases are won or lost. Some crimes such as sex offenses carry such a stigma that the selection of an unbiased juror is extremely difficult. Other cases are highly publicized, making it difficult to find impartial jurors.

The Importance Of The Sixth Amendment

The Sixth Amendment of the United States Constitution gives the accused what is known as the right of confrontation. This means that the state has to produce and call witnesses, and the attorney can confront them in cross-examination.

Skilled cross-examination is an art form. It is not just asking questions like "what happened next." Through skillful cross-examination, an attorney may entirely discredit a witness's testimony. Skillful cross-examination can also bring out testimony helpful to the defense. Cross-examination may also create conflicts within the testimony of other witnesses and, ultimately, may create that all-important reasonable doubt. Skill in cross-examination comes from years and years of experience.

The Right To Remain Silent

At trial, a defendant has the choice of testifying or remaining silent. It is entirely the defendant's choice. No one, including the prosecutor or judge, can make a defendant testify against him or herself. The Fifth Amendment of the United States Constitution guarantees you this important right. If a defendant decides not to testify, the prosecutor is not allowed to even mention it. The court will tell the jury that they are not to consider the failure of the defendant to take the stand as evidence of guilt.

At trial, only admissible evidence may be used by the state. For example, if the police illegally seized evidence from a person, their vehicle or their home, in violation of the Fourth Amendment, it should not be used. If the police illegally obtained a confession, without reading Miranda rights, it cannot be used in court. Many of these evidentiary issues are decided before trial at what is commonly referred to as a "suppression hearing." The Fourth, Fifth and Sixth amendments, and the court decisions interpreting them, provide many safeguards intended to ensure due process and a fair trial.

The rules of evidence and the rules of criminal procedure, and the cases interpreting them are very complex, and the unrepresented defendant has little chance of success.

Once the state presents its evidence, the defense attorney can challenge the sufficiency of the evidence by asking the court for a judgment of acquittal. If the state has failed to prove an essential element of the crime, the case may be dismissed. If the court decides that the state has presented a case sufficient for at least the jury's consideration, the case goes forward. At this point, the defense has the right to call witnesses. The defense can subpoena witnesses who will not voluntarily come to court. This is called the right of compulsory process. Witnesses may be called to contradict the state's witnesses or simply to prove some fact critical to the defense. The defense attorney can question the witness, and the prosecutor will have an opportunity for cross-examination.

Judgment Of Acquittal

Once all the evidence is presented, in most instances, the defense can again ask the judge for a judgment of acquittal. If the judge again permits the case to go forward, then the next step is closing arguments.

It is at this phase that the attorney's experience and ability to effectively argue and communicate is important. The power of persuasion and the ability to pick apart the prosecutor's case are skills seasoned attorneys gain from years of trial experience.

After the closing arguments, the judge instructs the jury on the law that they must follow and the jury then retires to decide the case.

Jury Deliberations

Jury deliberations can take minutes, hours or days. No two cases are the same. If the jury returns a verdict of not guilty, the judge makes a formal finding and the defendant is set free. If the jury returns a verdict of guilt, the court may either immediately impose sentence or order a pre-sentence investigation to learn more about the defendant's background and history before sentencing. After the trial, the attorney can ask the court to reconsider a previous ruling or file an appeal attacking the conviction and the sentence. The process for reconsideration or an appeal is complex and success on appeal is not automatic.

After conviction, a sentence will be imposed. In theory, people are not supposed to be punished for exercising their right to trial. In reality, many courts impose a harsher sentence on those who go to trial and lose. The courts sometimes explain this difference by simply saying that they are imposing a lighter sentence on those who plead and admit guilt because admitting guilt is the first step toward rehabilitation. Regardless of how it is explained, the reality is that contesting your guilt and exercising your right to trial may well result in a longer sentence. This is a factor that must be considered in deciding whether or not to accept a negotiated plea.

The Role Of The Eighth Amendment

The Eighth Amendment is supposed to protect people from cruel and unusual punishment but the simple fact is that state prison is a terrible place where sometimes terrible things happen.

Unfortunately, many crimes carry minimum mandatory penalties that are extremely harsh. These crimes do not take into account whether or not it is a person's first offense or the person's background. The courts have routinely upheld these mandatory penalties and, in the foreseeable future, the laws will only become harsher.

Discuss thoroughly with your attorney all plea offers as well as the option of trial. It is critical that you be honest with your attorney. What you tell him or her is protected under attorney-client privilege. If you are not honest with your attorney, and he or she prepares a defense based on bad information from you, in the long run, it will only hurt you. It is very important for you to be honest and forthright with your attorney.

I hope that this has been helpful in explaining to you some of your basic fundamental rights. As a criminal defense lawyer, with over 30 years of experience, I can tell you, a good lawyer does make a difference. All defense lawyers are not created equal. There is a difference in skill level, experience, confidence, negotiation skills and in the end ... results.

Discuss Your Case With A Lawyer

If you want to discuss your case or get a second opinion before making an important decision, call any one of our four offices in Fort Myers, Sarasota or Punta Gorda and ask to speak with me or my partner, Sean O'Halloran. We are both former prosecutors with over 40 years of combined trial experience.