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... als. In both types of cases, provisions are made for alternate jurors to replace a regular juror who may become ill or disabled during trial. In a civil case, the trial jury is composed of 6 persons, with provision for the selection of alternate jurors. The trial jury is selected from the group previously described.
A panel is called, and they take their place in the jury box (criminal) or impaneling room (civil). A process known as voir dire then takes place in which the attorneys, and sometimes the judge, describe the nature of the case and ask questions to determine the suitability of the jurors. For example, a juror who is related to one of the parties or who has personal knowledge of the case may be unable to judge the evidence impartially. In criminal cases, the judge presides over the voir dire, which is conducted in a courtroom. In civil cases, the voir dire may be supervised by a judge but usually is subject to general supervision by a judicial hearing officer (retired judge) in a courtroom or, more often, in an impaneling room. During the course of questioning the jurors about their qualifications, it may become apparent that a particular juror possesses a bias, prejudice or opinion which will affect his ability to judge the evidence impartially.
In a criminal case involving the sale of narcotics, for example, a prospective juror may assert his belief that such activities are proper and that the criminal law should not be enforced. Under such circumstances, the juror could be challenged for cause. The number of challenges that may be made for cause is unlimited in both civil and criminal cases. In addition, each party has the right to exercise a certain number of peremptory challenges, which allows an attorney to excuse a juror without having to state a reason. The number of peremptory challenges is fixed by law and varies according to the type of case. In a criminal case, each party may have as many as 20 peremptory challenges, depending on the seriousness of the crime charged; in a civil case being tried in Supreme Court or a county court, each side has at least 3 such challenges.
The voir dire continues until the attorneys for both parties are satisfied with the composition of the jury or have exhausted all challenges permitted by law. Once the full jury and alternates have been selected, they will be administered an oath and the trial may then proceed. After the jury has been selected and before any evidence is offered, the attorney for each party is entitled to make an opening statement. Generally, the party having the burden of proof (usually the plaintiff) opens first. In these statements, attorneys normally will outline their respective cases and possibly indicate some of the witnesses who will be called to testify, so that the jurors may more easily follow the proof as it is introduced. After the opening statements, the presentation of evidence begins.
The plaintiff will call witnesses to testify and, in conjunction with such testimony, may offer into evidence pertinent exhibits such as reports or photographs. Witnesses may testify about matters of fact -- that is, anything perceived by means of their physical senses. Testimony usually concerns what the witnesses observed, such as what occurred at the scene of an automobile accident. As part of their testimony, witnesses may be asked to identify photographs, documents or other physical exhibits. Witnesses, however, usually cannot state an opinion or give a conclusion, unless they are experts or otherwise qualified to do so. Such opinion evidence generally is provided by persons with specialized training, such as doctors or engineers.
A witness qualified as an expert in a particular field may give an opinion based on the facts in evidence and state the basis for the opinion. In some instances, a layperson may be able to testify concerning a matter of opinion if the subject lies in an area of common knowledge, such as whether a particular person was intoxicated. An attorney usually may not ask leading questions (i. e. , those suggesting the desired answer, such as "Isn't it true that... ") of his own witness. This insures that the jury hears the facts as the witness recalls them. The opposing counsel may object to a particular question on various grounds, such as calls for an opinion, is leading or is immaterial to the case.
Objections are based upon rules of evidence, and the judge will decide them. If the objection is overruled, the witness may answer the question; if it is sustained, he need not. Frequently, the attorney will rephrase the question to overcome the objection. When the plaintiff's attorney completes his direct examination of the witness, the defendant's attorney may then cross-examine concerning those matters covered on direct examination. On cross-examination, leading questions may be asked to establish any inaccuracies or inconsistencies in the facts as related by the witness.
During cross-examination, the opposing counsel is permitted to object to any questions that may be improper, and the judge will rule on them in the same manner as on direct examination. After cross-examination has been completed, the attorney who called the witness has the right to ask questions on redirect examination. Generally, the purpose of these questions is either to strengthen the testimony of a witness which was weakened by cross-examination or to elaborate on new facts that arose on cross-examination. At times during a trial, disputes may arise concerning a question of law or legal procedure. On such occasions the attorneys may approach the bench and confer with the judge out of the hearing of the jury. Or, the judge may send the jurors from the courtroom while he listens to the legal argument and rules on the matter in question.
The jury is excluded from these sessions to avoid being prejudiced or otherwise influenced by a discussion of matters not in evidence. After completing his testimony, including direct and cross-examination, the witness will be excused and the next one will be called. This process is repeated until all the plaintiff's witnesses have been heard, at which time the attorney will advise the court that the plaintiff rests. At this point, the judge, outside the presence of the jury, will entertain motions from the attorneys. The defendant's attorney, for example, may move for a dismissal if he believes that the plaintiff has failed to establish a case. The judge may then rule on the motions or reserve decision -- that is, wait until some later time to decide the motion.
If he sustains a motion to dismiss, the case will be concluded. If the judge denies a dismissal motion, the trial will continue, and the defendant then has the opportunity to present evidence on his behalf. The defendant, in presenting proof, follows the same procedures and rules for the examination of witnesses and introduction of exhibits as were applied to the plaintiff. The sequence of direct and cross-examination of witnesses is the same as for the plaintiff's case. After the defendant's case has been concluded, the court will then hear and rule on any motions the parties wish to make. As before, the motions are argued and decided outside the presence of the jury.
If a dismissal motion is granted at this point, the case will be concluded. If denied, the case is then almost ready for submission to the jury. The attorneys are entitled to make closing statements to the jury, commenting upon the exhibits and testimony which the jurors have seen and heard. These closing arguments are made in inverse order of the opening statements. Thus, the attorney for the plaintiff, who has the burden of proof, usually opens first and is the last to give a closing statement. Should an attorney comment improperly on the evidence, the lawyer for the other party may object; if the objection is sustained, the judge will instruct the jury to disregard the improper remarks.
When the attorneys have finished their statements, the judge charges the jury concerning the applicable law. In giving these instructions, the judge outlines the issues the jury should consider and defines any legal terms, as appropriate. The jurors are told of the possible verdicts that can be returned, depending on the factual findings made. They are advised that they are the sole judges of the facts and the credibility of the witnesses, and that their verdict must be based upon a preponderance of the credible evidence.
After the judge has completed his charge, the jury is then taken to the jury room to deliberate. Court officers or attendants will wait outside the jury room to ensure that no one attempts to tamper with the jury. During the course of its deliberations, the jury may request that portions of the testimony or the judge's charge be reread to refresh its collective memory. In such instances, the jury will be returned to the courtroom, with counsel for the parties present. The jury's verdict need not be unanimous in civil cases, since agreement by five of the six jurors is all that is required.
If five of the jurors cannot agree after deliberating for as long as the judge deems reasonable, he will then discharge the jury and direct that a new trial be held before another jury. As part of the initial review, the attorney may have to determine whether the action is timely, especially if the client has waited a number of years before seeking legal assistance. Because the memories of witnesses dim and evidence may be lost with the passage of time, a statute of limitations fixes the time period within which actions may be brought. The limitation varies with the type of case. For example, most actions to recover damages for personal injury or injury to property must be begun within three years from the date of injury; cases involving contractual obligations must be brought within six years or, with respect to some contracts, within four years from the date of breach; and an action based upon libel or slander must be commenced within one year. Under certain circumstances, the time period to bring an action may be extended, as, for example, in cases involving the infancy (i.
e. , status as a minor) or insanity of the injured party. In some situations, the time may be extended if the potential defendant has left the state or is residing in the state under a false name unknown to the injured person. The parties to a civil case may appeal based on errors committed at trial. In a criminal case, a defendant may appeal the conviction, but the prosecution may not appeal a not-guilty verdict because the principle of constitutional double jeopardy bars a defendant from being tried for the same offense after an acquittal. Generally, the basis for an appeal rests on possible errors of law or procedure during trial, including prejudicial statements made by opposing counsel.
The appellate process is governed by statute and rules established by the appellate courts, including the fixing of time limits for the filing of papers. The party appealing is called the appellant, and the other party is designated the respondent. So that the appellate court will have full knowledge of the case and the claimed errors, the parties must submit a record on appeal to the court. This record consists of a transcript of the testimony, plus other pertinent papers which were part of the proceedings in the lower court, such as an indictment in a criminal case or the pleadings in a civil case.
The attorneys for the appellant and respondent then prepare and submit briefs in support of their respective positions. The appellant's brief will describe the errors upon which he is seeking reversal of the lower court's determination, citing relevant statutes or prior similar cases, known as precedents, in support of his argument. The respondent will submit a brief similar in form, outlining the legal authorities favorable to his position. In some instances, the parties will submit the case to the appellate court for a decision based upon the record and briefs that have been filed. On other occasions, they will also argue the case orally before the appellate court, especially if the issues are novel or complex. The appellate court will then consider the case in light of the applicable law.
If no errors are found or if the errors claimed are insubstantial or harmless, the appellate court will affirm the decision of the lower court. If prejudicial error is found, the appellate court will reverse the lower court decision and correct the error or remand the case to the lower court for appropriate action consistent with the opinion of the appellate court, including retrial of the case where warranted. Appeals are not limited to challenging the outcome of a trial. Errors of law committed in other situations may also be appealed.
For example, a defendant in a criminal case may appeal an illegal or excessive sentence imposed after a guilty plea, which eliminated the need for a trial. Bibliography:
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