State Defense

How Long It Takes To Get To Trial

A lot has to happen before a case is called for trial. Initial charges have to be presented, evidence has to be turned over and reviewed, and pretrial efforts to resolve the case through a plea bargain have to fail before the case is placed on a docket for trial.

And that docket can be a long one that constitutes a lot of waiting. Generally, a criminal trial occurs within one to two years after the arrest.

When the case is scheduled for trial, a notice usually goes out a month or so before the trial is set to begin.

The imminence of trial will sometimes renew plea negotiations, and sometimes a plea bargain can be struck in the months, days, or even hours and minutes leading to trial (and on occasion, a plea bargain is struck during trial or even while a jury is deliberating).

However, absent a plea bargain, a case will proceed to trial.

The Trial Process - Bench Trial Or Jury Trial

Before a trial starts, a defendant can choose between a jury trial or bench trial.

In South Carolina, misdemeanor jury trials have six jurors and felony cases have twelve jurors. In either instance, the jurors must unanimously agree on a verdict in order to convict.

A "bench trial" is where a judge hears the evidence and decides guilt. The choice between a jury trial and bench trial is up to the individual.

There are reasons for choosing one type of trial over another, however, those reasons are often closely tied to the specific facts of a particular case.

Just the same, there are some broad considerations to take into account and weight in a particular case.

1. One fact finder vs. several: A jury trial takes into account the views of several individuals, where a bench trial only takes into account one (the judge). Understanding it only takes one juror to cause a hung jury and not reach a conviction, defense lawyers often prefer a jury trial over a bench trial. A greater number of fact finders tends to result in a greater number of perspectives, and in that case a greater likelihood that a particular fact or defense will be accepted by the fact finder.

2. If a case has particularly complicated legal issues that are helpful to a defendant, or particularly emotional evidence that may sway a jury, a bench trial could be preferable. The reasoning being that a jury may get confused by certain legal issues and not give them full consideration, or may be more swayed by emotion than a judge who sees cases every day might be. These considerations are highly case specific, however, and should be thoroughly thought through on a case by case basis.

3. Jury trials usually take more time than bench trials because it takes time to select the jurors that will decide the case and for the judge to explain the law to the jurors.

4. Jury trials offer the possibility of a hung jury that results in a mistrial. A mistrial due to a hung jury usually ends the case without resolution, and the case can be retried. However, this rescheduling often results in renewed plea bargaining, and after the evidence has been heard by both sides the likelihood of a resolution is increased. With a bench trial, there’s no jury involved, so a hung jury isn’t possible.

5. A judge's history with a particular type of case should also be considered. Knowing how a judge will rule on certain issues, and identifying issues in a particular case, can inform the decision to exercise the right to a jury trial, or to waive it and proceed with a bench trial. A judge’s track record with similar defendants might inform whether it’s smart to waive the right to a jury trial in a given case. This type of decision is best left up to an experienced lawyer.

6. In both bench trials and jury trials, what the prosecution must prove is the same, the sentencing is done by the judge, and the rules of evidence - or what is admissible at trial - is the same. These fundamental aspects of a trial are the same in both a bench trial and a jury trial.

All of these factors should be taken into account when deciding between a jury trial and a bench trial. Anecdotally, the majority of defense lawyers elect a jury trial over a bench trial, however such a decision needs to be based on the specific facts of a case.

What Happens At A Trial - Pre Trial Motions

Although it often varies from judge to judge and courtroom to courtroom, at some point after arraignment and before trial pre-trial motions are heard.

Often this is right before trial, when it is clear a plea bargain cannot be reached. Pre-trial motions are requests made by either party, usually in writing, prior to the trial to dismiss the case or to limit the amount of evidence a judge or jury will hear during the trial.

Although there are a great number of pre-trial motions that could be filed, and each case will determine which are appropriate, some typical pre-trial motions are:

A. Motions to Suppress. These motions address what physical or testimonial evidence can be used at trial. If certain types of evidence are critical to the prosecution's case, and are suppressed, it could lead to dismissal. Common motions to suppress involve:

1. Illegal searches or seizures. This could be an improper traffic stop or search.

2. Improperly obtained statements. This could be statements made during a traffic stop, during transport to the jail, or at the police station.

3. Improper lineup or identification. Out-of-court identifications, whether it is through a photo line up or an in person identification, need to follow certain rules, not be impermissibly suggestive, and not influence any in court identification. If done improperly, this could result in the suppression of any identification made out of court, or preclude any that could be made in court.

What Happens At A Trial - Motions In Limine

These motions address what type of arguments can be made at trial or what procedures will occur. These may consist of:

1. Motion to Admit a Defense Expert.

2. Motion to Exclude References to Prior Record. This can include excluding any prior arrests or convictions.

3. Motions to Dismiss. These motions address whether there is any legal basis to dismiss the case. Pre-trial motion hearings usually do not take long. They can sometimes involve testimony, and include the prosecutor, defense and judge. They are most often heard just before trial starts and usually ruled on by the judge at the end of the hearing. If the motions do not result in dismissal, the trial usually starts after the motions are done.

4. Jury Selection

After pre-trial motions have been heard and ruled on, and a plea agreement has not been reached, the next step in the trial process is jury selection, at least when a defendant exercises their right to a jury trial and does not choose to proceed with a bench trial.

Jury selection is the process of deciding or choosing who will sit as the jury and decide the case. In South Carolina the clerk of court sends out juror summonses, based upon driver's license registrations, and a certain number of folks are selected as the group the jury will be chosen from. This initial, large group of people is usually called the "jury pool" or "jury venire." When the initial summons is sent out, the clerk of court requests a response. Thought it can vary, this response is generally not a questionnaire, but an effort to determine initial eligibility. Some individuals who are summoned may not be eligible initially. For instance, if someone moved out of state, they could inform the clerk of court about this and they would be excused early on.

Once enough jurors are contacted and respond, they report to the courthouse for jury selection. It is common for several juries to be selected from the same jury pool. This is more efficient, since it brings in fewer jury pools. When multiple juries are selected from a single pool, selected jurors are asked to report back at a later date for specific cases they will be sitting on.

The next step in selecting a jury is "juror qualification". Although the clerk of court will have filtered out certain individuals when juror summonses were issued, during qualification the judge, and sometimes the lawyers, will ask additional questions to determine juror availability. The judge will usually inform the jurors of the type of case involved, who the parties are in the case, when the case is scheduled to be heard, and how long the case will last. These details often result in conflicts for some potential jurors. Individuals may have medical problems, like poor hearing or back problems, which will make it impossible for them to follow evidence or sit for the time needed in a trial. Some potential jurors, upon learning the trial date, may have scheduled vacations that they cannot change, or work obligations that would create an undue burden on them.

Some courts will allow additional questioning to ensure that jurors can fairly serve on a jury. This process is called "voir dire." Usually, questions are submitted by the parties and either the judge or the parties ask questions of the jurors. Jurors who cannot fairly consider the evidence in a case cannot serve. For instance, in a DUI case, this might be someone who had a family member killed by an intoxicated driver, or someone who thinks it is never ok to drive after drinking even a minimal amount of alcohol. Other jurors may know one of the parties, one of the attorneys, or one of the witnesses, and as a result not be able to fairly judge the case

Once voir dire is completed, the parties exercise "strikes" to determine who will sit on the jury. The jury selection process allows each party to strike "for cause" any juror that cannot fairly consider the case. Further, depending on the type of case, each party gets several "peremptory" strikes to excuse jurors that they do not want on the jury. There can be a wide range of reasons for exercising a peremptory strike, but it cannot be based upon an illegal reason, such as race, ethnicity or gender.

After both sides have used as many strikes as they want, or have, the jury has been selected and is sworn. At that point, the trial begins.

Trial - Opening Statements

Trials have several steps: Opening Statements, Direct Examinations, Cross Examinations, Closing Arguments, Jury Instructions, Jury Deliberation and Verdicts.

A. Opening Statements

Before presenting any evidence, the defense and prosecution get to make opening statements to the jurors. The purpose of opening statements is for the parties to tell the jurors what they believe the evidence will show. The prosecution will typically outline how they intend to prove the charges. In other words, the prosecution will explain who they plan to call as witnesses, what the witnesses will testify to, and the other types of evidence, such as photographs or recordings they're going to present to support the charges. The defense opening statement could inform the jurors of what evidence and witnesses they anticipate presenting at trial, but it could also focus on what the prosecution evidence is lacking and how the prosecution will not prove their case beyond a reasonable doubt.

Trials - Evidence Presentation

B. Evidence Presentation

At any criminal trial the prosecution carries the "burden of proof" and must convince each juror that the defendant is guilty "beyond a reasonable doubt." This burden can only be met through the admission of evidence, and the jury can only consider evidence that is presented to them. If the prosecution fails to meet this burden, the "presumption of innocence" requires that a defendant be found not guilty.

Because the prosecution carries the burden of proof, they present their evidence first. The circumstances of each case are different. But prosecution evidence often includes the testimony of the arresting officers and any witnesses to a crime, such as a victim. Further, crime scene analysis and expert witnesses where there is fingerprint or DNA evidence is common. As well, cell phone data (cellular analysis) showing a phone’s location at a particular time (in an effort to show a person’s location at that time) as well as text messages from a cell service provider, or from a device, as well as other computer analysis, is becoming more and more common in criminal investigations.

As each prosecution witness testifies, the defense can object to evidence that it does not believe should be admitted. After each prosecution witness has testified, the defense also gets an opportunity to cross-examine the witness, and question the strength or weight of the evidence presented. Objections and cross-examination are critical times in a trial, and are pivotal to undermining the prosecution case.

After the prosecution has presented all of its evidence, the defense can argue that the government did not meet its burden and move for a "directed verdict". For instance, in a DUI case, if the prosecution had a case where they responded to an accident with several people standing around a crashed car, but failed to show any evidence that the person charged was actually driving the car at the time of the accident (setting aside any other issues such as impairment) the defense could move for a directed verdict, arguing that no reasonable judge or jury could find guilt from the lack of evidence. If this motion is granted, the DUI case is dismissed.

If a directed verdict motion is not granted, the defendant has an opportunity to present evidence, called the defense case in chief. This could consist of additional witnesses or expert witnesses who could cast doubt on the reliability of prosecution evidence and testimony.

Once both sides have presented their evidence, the prosecution can call rebuttal witnesses to address any issues raised in the defense case, however, rebuttal witnesses are rare. Once both sides have concluded their evidence presentation, the judge or jury hears closing arguments.

Trials - Closing Arguments

In most trials, the prosecution fundamentally uses the closing argument to summarize the evidence presented and argue how it supports guilt beyond a reasonable doubt.

Likewise, the defense fundamentally argues how the prosecution's evidence is lacking and how the prosecution has not met its burden of proof, which are reasons why the judge or jury should find the defendant not guilty.

However, beyond these fundamentals lie extraordinary opportunities to argue the case.

The defense has a chance to not just attack the credibility of the prosecution's case, but to tell the defendant's story.

For instance, in a DUI case a common DUI piece of evidence is that a driver had "bloodshot watery eyes" and the investigating officer uses this as an indicator of impairment. A good defense will not just argue that bloodshot, watery eyes can be caused by many things, but explore the defendant's situation.

It will tell the story of a defendant who may have been working late that night, had been staring at a computer screen all day, who because he was working late was driving in the dark and late for dinner with his family. It will point out that with a long day at work, followed by overtime, all spent squinting at a screen, followed by driving in the dark, eye fatigue, redness and watery eyes should be expected, though not necessarily a sign of intoxication.

Likewise, a good closing argument can focus on the long list of errors documented in the evidence. These errors, combined with alternate explanations for the evidence presented and a compelling story about the defendant can be powerful and go a long way towards getting a favorable verdict or result.

Trials - Jury Instruction, Deliberations and Verdict

The final phase of a trial involves the judge instructing the jury on the relevant law ("jury instructions") and then the jurors getting together to come to a decision ("deliberation"). The jurors must reach a unanimous verdict to find a defendant guilty or not guilty.

Once the jury reaches a verdict, the jury foreman, who is usually selected by other jurors to communicate with the court, informs the judge that the jury has reached a verdict, and the verdict is announced in open court.

If the defendant is found not guilty, the case is over.

If the jury returns a guilty verdict, the judge will sentence the defendant in accordance with South Carolina laws.

If the jury cannot reach a verdict, the jury will be considered deadlocked, or hung, and a mistrial will usually be declared by the judge.

If a mistrial is declared, the prosecution usually has the ability to take the case to trial again, with a different jury.

Trials - Sentencing

Though the jury decides a person’s guilt or innocence, a separate sentencing phase is conducted by judges to determine the length of any punishment.

The sentence imposed is at the discretion of the judge and usually falls somewhere between the ranges outlined under South Carolina criminal law.

Trials - Appeals

Anyone who loses his or her case at the trial level has the right to appeal. Your criminal defense lawyer should be the type of attorney that moves quickly at this stage to ensure you preserve all possible avenues for appealing your conviction.

The appeal marks an entirely separate phase of the criminal process and can take months or even years to conclude.

During this phase, it is likely the suspect will remain in jail. Sometimes, depending on the criminal defense lawyer, in some cases (not all), the person may be released pending the appeal. This may require the added assurance of home confinement and/or electronic monitoring.