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Jury Trial: What to Expect Posted May 30, 2017

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What To Expect



The jury trial is the climax of the American judicial process and the last line of defense for the accused against an overbearing and powerful government.  Most cases resolve themselves before trial but a small percentage, mostly major felonies e.g.: Murder, Rape Robbery, must be tried before a jury to obtain a final result.  This article will walk you through the process of a jury trial in Oklahoma.


It is important to remember that the jury trial is simply the tip of the iceberg.  By that I mean that the trial itself, actual courtroom time, is only about 10% of the work that goes into the case.  The majority of the work that goes into the case happens behind the scenes.  First, most cases in Tulsa County take between 12-16 months to get to trial. As a lawyer I have usually been working on a case for at least a year before we actually seat a jury.  Second, the vast majority of work for a jury trial comes in the preparation stage before trial.  In the months leading up to trial I will generally put in 100+ hours of preparation to get ready to try the case to a jury. This way when it comes time to seat a jury I know the case inside and out and there are no surprises the State can throw our direction.  


When the day of Jury trial arrives the Court will generally have us appear at 9:00 or 9:30 a.m. to insure that we are ready to go to trial.  Once we announce ready for trial the Judge will order us back sometime later that day, usually between 11:00-1:30, it just depends on how large the Judge’s docket is that day.  When we return to the courtroom the Judge will generally take up any pretrial motion that are outstanding.  These motions generally concern evidence that will be presented at trial and the judge ill make his rulings before trial to help the trial run smoothly once the jury is seated. Once all the motions have been heard the Judge will call up the jurors.


At the beginning of the trial the judge will call up a group of jurors, called a venir, and from this group 12-14 jurors will be selected to hear the felony case. (Only 6 jurors are used in misdemeanor cases). The process of picking a jury is called “Voir Dire” which means to speak the truth.  Void Dire begins with the judge gathering general information from the jury about their lives including: marital status, children, job, criminal background and other general questions.  The questions the Judge asks vary from Judge to Judge. After the Judge completes his section of void dire then the attorneys from both sides get a chance to question the jury. (This is in State court, in federal court the Judge does all the questioning of the jury.) The state goes first in Voir Dire and the Defense goes last.  The purpose of Voir Dire is to find out which jurors are appropriate to hear the particular case that is before the court that day.  Once both sides are done talking to the jury it is time to pick the jury that will hear the case.


The jury is picked by a process of elimination where both sides alternately strike jurors that they don’t believe are appropriate to hear the particular case before the court.  Both side get a set number of preemptory challenges, often referred to as strikes, to remove jurors from the case.  In a murder case each side gets 9 peremptory challenges meaning that they can dismiss 9 people from the jury panel.  Although each side gets only 9 preemptory challenges, they also get unlimited strikes for cause.  Cause can come in many forms such as bias, prejudice, current law enforcement, medical issues etc..  Once each side has passed the jury for cause and exercised all of their peremptory challenges we will be left with 12-14 jurors who will hear the case.  1-2 of the jurors will be designated as alternates, in case a juror has to leave for an emergency, and will be dismissed at the end of the case and will not deliberate. Only 12 jurors will deliberate to reach a final verdict in the case.  Once the jury is selected, seated and sworn in the case will begin with the reading of the Information and Opening Statements. 


The reading of the information is done by the State. This is simply the State reading the current charges to the jury. Once this is complete the State will start with their opening statement.  An opening statement is a road map for the case and allows the jury to get a preview of the evidence to come.  The judge will instruct the jury that opening statements are not evidence in the case but are simply what the attorneys believe the evidence will show in the case.  Once the State has finished their opening statement we can either give an opening statement at that time or reserve our opening statement for later in the trial.  I always give my opening statement directly after the state and for good reason.  Although an opening statement is not evidence the jury still hears what the state thinks of the case they are presenting.  I don’t want to let that poison sit in their ears for days while they present their case. I prefer to get our version of the story out there as soon as possible to combat the state’s slant on the evidence.  Once opening statements are finished the presentation of evidence will begin. 


During the presentation of evidence the State proceeds first with what is referred to as his case in chief.  The state will call all their witnesses to the stand and conduct direct examination of that witness.  Direct examination is the asking of open ended questions, the state can not lead their witnesses, by the prosecution to elicit testimony from their witness.  When the prosecution has finished their direct examination of the witness it is the defense’s turn to conduct a cross examination of the witness.  Cross examination consists of the defense asking, mostly leading, questions of the state’s witness to counter the testimony of the witness on direct.  When the defense is finished with their cross examination the State is allowed to ask further questions on redirect and finally the defense is allowed the final re-cross examination of the witness.  Once re-direct and re-cross are complete the witness will be excused and the next witness will be called to the stand.  


During the presentation of evidence you will hear objections from both the prosecution and the defense.  Objections are the tool that an attorney uses when they believe that the other side is not following the rules of evidence.  The judge will make a ruling on the objection and with sustain, agree, or overrule, disagree, the objection. Some objection may require a bench conference to resolve the issue.  A bench conference is where attorney for both sides approach the bench, out of ear shot of the jury, and argue the issue at hand.  Once the judge has ruled the trial will continue with no explanation to the jury.  The judge will instruct the jury that they are not to consider any objection or take objections into account at deliberation. 


When the prosecution’s case in chief, all their witnesses, is finished the State will rest their case; letting the judge know they have no further evidence to present.  At this time the jury is usually excused from the courtroom and the defense will make their demurer to the evidence, that just a fancy term for the defense telling the judge that they don’t believe, as a matter of law, that the state has made their case.  Demurrers are rarely successful in felony trials but are always made.  Once the Demurrer has been overruled the Judge will generally make a record about whether the defendant wants to testify. The defendant has an absolute right to testify or not to testify it is absolutely his personal decision one way or another. Once the Judge has made the record about whether the defendant wants to testify then the Defense will present its case in chief.


Often in felony trials the Defense has no witnesses because all the witnesses he would have called have been called by the prosecution already.  Notable exceptions to this rule are experts on behalf of the defense e.g. medical doctors, toxicologists, Eye witness ID experts or alibi witnesses.  If the defense does have witnesses to call the jury will be brought back in and the defense witnesses will be called to the stand and question in the reverse order of the State’s case.  In the defense’s case in chief the Defense will go first with direct examination and the State will go second with cross examination.  At the conclusion of all the defense witnesses, if any, the defense will rest.  At this point the jury will once again be excused from the courtroom and at this point the defense will move for a directed verdict. A directed verdict is a scenario in which the judge, after hearing all the evidence, concludes that no jury could find a defendant guilty based on the evidence presented. Directed verdicts are almost never granted in felony jury trials.  After the ruling on directed verdict then the attorneys and Judge will compile the jury instructions that will be read to the jury prior to closing arguments.  


Oklahoma Uniform Jury Instructions, often referred to as OUJIs, are the law that will be given to the jury to use in deciding the case and can be found at www.oscn.net. The Judge and attorneys will compile a set of OUJIs that are applicable to the case at hand and then they will be reviewed by all parties and numbered for the jury.  Once this portion of the case is complete the jury will be called back in for the reading of the instructions and closing arguments. 


Once the judge is finished reading the jury instructions to the jury then closing arguments will begin.  Closing arguments are when the attorneys for both sides argue their interpretation of the evidence presented during the trial. During closing arguments the State goes both first and last with the defense sandwiched in the middle.  I personally disagree with this method as it is my client’s life on the line and I believe we should have the last words but the courts disagree with me on this issue.  The courts believe that since it is the State’s burden to prove the case beyond a reasonable doubt that they deserve to have the last word; and as the court say is as it goes. Once both sides have concluded their closing arguments the jury will be sent back to deliberate the case and reach a verdict.


A verdict in a criminal felony must be unanimous, either guilty or not guilty.  The jury is instructed that they must reach a verdict of either guilty or not guilty but this doesn’t always happen.  In certain situations, although it doesn’t occur often, the jury can fail to reach a unanimous verdict and results in a hung jury and a mistrial.  If the jury is hung and a mistrial declared the State can elect to retry the case at a later date.  If the jury does reach a unanimous verdict they will send the Judge a note letting him know they reached a verdict.  The judge will bring all parties back in the courtroom and once all parties are present the jury will be brought back in to read the verdict.  Before the reading of the verdict the judge will ask the defendant and his counsel to stand as the verdict is read.  


There are many more details to a jury trial but this is an overview of the process that an individual will go through if they are forced to go to a jury trial in Oklahoma.  Some of the process may vary from judge to judge but everything that is listed in this article will happen during a jury trial.  

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