If a plea agreement is not reached, the proceedings move toward the trial stage.
A trial must be held in a relatively speedy fashion, unless the defendant waives the "speedy trial right" by asking for additional time for the preparation of a defense.
If a defendant is charged with a crime punishable by six or more months of imprisonment, he has the right to a public trial by jury. The defendant may choose to waive that right, either by pleading guilty or by agreeing to be tried by a judge. A defendant may choose a " bench trial ," a proceeding in which the judge performs the fact-finding function of the jury.
Circumstances under which a defendant might choose a bench trial rather than a jury trial include:
- Cases involving technical legal issues that a jury might not easily understand.
- Cases in which the defendant fears that a jury may be inflamed by the nature of the charges and be unable to judge the evidence in the case objectively.
If a jury trial is chosen the jury selection process is part of the trial. Both the defendant and the prosecution have the right to challenge potential jurors " for cause ," meaning that they're unable to be objective in hearing testimony and deciding the case.
Factors considered when challenging potential jurors include:
- Preexisting knowledge about the case.
- Whether they have any relationship with the prosecutor or the defendant.
- Whether they are capable of hearing and understanding the testimony.
Both the defendant and the prosecutor also have the right to a certain number of "peremptory challenges," depending upon the nature of the charges and the court in which the case is being tried. A peremptory challenge means that the defendant or the prosecutor can remove a juror without giving a reason.
Traditionally, peremptory challenges could be used for any reason, but in recent years the federal courts have held that peremptory challenges cannot be used to affect the racial composition of a jury. At the trial, the prosecutor presents evidence in the form of witness testimony, documentary evidence and " demonstrative evidence ."
- Documentary evidence includes documents, such as books, deeds, wills, letters and the like.
- Demonstrative evidence includes all kinds of exhibits, such as photographs of the victim in the case of a homicide, or the gun used in committing a robbery.
The defendant has the right to present witnesses and other evidence in defense of criminal charges. The defendant also has the right to "confront" or cross-examine the witnesses brought forward by the prosecution. Once the prosecutor finishes submitting the evidence, the judge "charges" the jury by giving the jurors instruction on the law. Both the prosecutor and the defense attorney then sum up their arguments to the jury, based on the facts presented and the applicable law. The order in which these presentations happen varies from court to court.
In rare cases, the court will dismiss the charges at the conclusion of the prosecutor's presentation of evidence. If the court finds that the prosecutor failed to present any evidence to support any of the elements of the offense, or didn't present enough evidence to support a verdict of guilty, the court can enter a verdict of not guilty without submitting the case to the jury for deliberation.
