Law and Fiction: Getting the Facts Straight 3

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Getting the Facts Straight: Overview of a Trial
(First published in the Sisters in Crime Guppy Newsletter, First Draft)

Now that you know the basic structure of the state and federal courts, let's look at how a trial unfolds. As always, check the specifics of the jurisdiction where your story is set.

Pretrial procedure is a blanket term for events that occur after a case is initiated (by filing a civil complaint or criminal charges) but before trial. While some aspects are routine, variations are infinite. In most cases, the parties file pretrial motions. A motion is simply a request that the judge take a specific action. A motion is supported by a brief and sometimes by evidence, such as an affidavit, deposition excerpts, or documents. Typically, the other side opposes the motion, filing their own brief and supporting evidence. A brief includes a statement of key facts, a discussion of the law on the issue, with citations to cases or statutes (called authority), and argument applying the law to these facts.

In criminal cases, typical motions are to set or reduce bail, suppress evidence, or dismiss the charges. In civil cases, typical motions include a motion to dismiss or a motion for summary judgment, asking the judge to decide the case without a trial. Both criminal and civil cases may include motions to exclude certain evidence from trial because it was not properly obtained, is not relevant to the issues, or does not satisfy acceptable medical or scientific standards.

A judge may hear oral argument or decide a motion "on the briefs." Judges act by issuing orders, which usually include the reasoning behind the ruling, but sometimes don't, leaving everyone guessing.

In the discovery phase, the parties exchange information--that is, they "discover" the facts and issues on both sides. Discovery is limited in criminal cases. Discovery disputes are common and annoy judges to no end; in recent years, new court rules require each side to provide the other with detailed information up front, including lists of witnesses, documents, and in civil cases, damages calculations and insurance limits.

Pretrial practice isn't usually very exciting, and most writers speed-skate over the surface of techno-legal detail. A notable exception: in Perri O'Shaughnessy's Motion to Strike, Nina Reilly defends a teenage girl charged with homicide by using a motion to strike (that is, a motion to exclude from trial) the testimony of a key witness based on her inability to see what she thought she saw.

Trial dates are set months in advance. Judges rarely grant as much time as the parties request; their calendars are too full. Criminal cases are often tried on short notice, especially when a defendant's constitutional right to a "speedy trial" is running short. Civil cases may be bumped to make room for a criminal trial.

Trial can be by jury or by a judge, known as a bench trial. Courtroom staff includes the clerk of court, the keeper of official records of witnesses and of documents and other physical evidence. The court reporter keeps the official transcript of all testimony and arguments made in "open court," and some arguments made in chambers, the judge's office. Sidebars, where the lawyers approach the bench from the side, so the judge can hear them but the jury can't, are not usually recorded. Court reporters use electronic machines to record words and phrases; most machines are now digital and some include a real-time function so the judge and lawyers can read an uncorrected version of the transcript moments after the reporter hits the keys.

In document-intensive cases, such as fraud, securities violations, or contract disputes, trial exhibits are shown on computer screens. Lawyers use bar code pens to call up and display a document, and highlight specifics. Many federal jury boxes include several small screens so jurors can examine documents without strain or squint.

A bailiff, an employee of the county sheriff or federal marshal and often armed, oversees courtroom security. Security is more extensive in high-risk criminal cases. The bailiff also takes care of the jury, escorting jurors in and out of the courtroom, resolving unexpected problems, and preventing disturbance or tampering from outside. In one much-publicized Montana case, a defendant in an auto accident case got a new trial on grounds of misconduct after jurors asked the bailiff for a dictionary and looked up terms defined by the judge's instructions.

Jury selection is called voir dire, from the French "to see and speak," or as I think of it, "show and tell." Whether six or twelve jurors are seated depends on the court and the nature of the case. Alternates are chosen in most felony cases and more complex civil trials. Each side gets a specific number of peremptory challenges, used to bump a potential juror without explanation. Unlimited challenges for cause are used to excuse obviously biased persons. In very complicated or high-dollar cases, outside jury consultants may advise counsel, as in Grisham's The Runaway Juror.

The judge then gives the jurors opening instructions on the order of trial and how to behave. Each side may make an opening statement; criminal defense counsel may defer their opening until after the prosecution presents its case-in-chief, that is, its witnesses and exhibits. After the prosecution in a criminal case or the plaintiff in a civil case presents its case-in-chief, the defendant commonly moves to dismiss; the motion will be granted only if the judge believes that a key element has not been proven. After the defense rests, the prosecution or plaintiff may call rebuttal witnesses, to rebut assertions made by the defense. Closing statements are then delivered. The prosecution or plaintiff goes first and gets a chance to give two closings--before and after the defense--because they have the burden of proof. The judge then instructs the jury orally, although most judges also give the jurors written jury instructions. The jury conducts its deliberations in the closed jury room. Jurors may send out questions to ask the judge, and may request that specific testimony be read to them. Most judges now allow jurors to take notes during the trial. The jury may also take the documents and physical evidence into the jury room.

After the verdict, either side may file post-trial motions asking the judge to set aside the verdict, order a new trial, or increase or lower the damages. Possible verdicts in criminal cases are guilty, not guilty, or a mistrial (in the case of a hung jury, which cannot reach a decision, or other misconduct). Criminal verdicts must be unanimous. In a capital case, a second phase immediately follows to decide whether the death penalty should be imposed. Civil verdicts determine liability and damages. Unanimity is not required. In most states, punitive damages are decided in a second phase, by the same jury. The purpose of the second phase is to prevent the jury from considering such factors as a criminal defendant's record or abusive childhood in deciding guilt, or considering a civil defendant's financial condition or other judgments against it in deciding liability.

Appeals may follow. The prosecution may not appeal a not guilty verdict in a criminal case, although it can appeal procedural or evidentiary rulings. A criminal defendant is usually sentenced before appeal.

At any point, of course, either a criminal or a civil case may settle. Settlement conferences are often required in civil cases, both before trial and on appeal.

At long last, a final judgment is entered and the case is over. Its impact on the parties, and sometimes on their counsel, may continue for a long time.

Next time: your questions.

A graduate of Notre Dame Law School, a former law clerk to the Washington State Court of Appeals, and a lawyer admitted in Washington and Montana, Leslie Budewitz is astonished to realize she's been out of law school twenty years. If you have a question about a legal issue in your fiction, see Law and Fiction: Services.

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