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What Happens In An Illinois Criminal Trial?

By Arthur McGibbons

The steps in a criminal trial generally include:

  1. Jury Selection
  2. Prosecutions Opening Statement
  3. Defendants Opening Statement
  4. Prosecutions Presentation of Evidence (Direct Examination)
  5. Defendant Cross Exams State Witnesses
  6. If They Want Defense Presentation of Evidence (Direct Examination)
  7. Prosecution Cross Exams Defense Witnesses
  8. Prosecution Makes Closing Argument
  9. Defense Makes Closing Argument
  10. Prosecution Makes Rebuttal Closing Argument

However, any criminal law attorney will tell you that once a trial starts almost anything can happen. There are many ways for a trial to go wrong. To understand a criminal trial you also need awareness of some of the criminal law fundamentals.

Criminal Trial Have To Be Open To The Public

The sixth amendment of the United States Constitution (U.S. Const., amend. VI) guarantees the accused the right to a public trial, and this right extends to voir dire of prospective jurors.

A violation of this right falls into the limited category of “structural errors,” which require automatic reversal without the need to show prejudice.

To justify closing a trial proceeding, the court examines:

(i)  whether there exists an overriding interest that is likely to be prejudiced,
(ii) whether the closure is no broader than necessary to protect that interest,
(iii) whether the trial court considered “ ‘reasonable alternatives to closing the proceeding, and
(iv) whether the trial court made adequate findings to support the closure.

See also

Attorneys Get To Ask Questions Of Prospective Jurors

A criminal defendant has a constitutional right to trial by an impartial jury. Morgan v. Illinois, 504 U.S. 719, 727 (1992); People v. Strain, 194 Ill. 2d 467, 475 (2000). To secure this right, inquiry is permitted during voir dire “to ascertain whether the juror has any bias, opinion, or prejudice that would affect or control the fair determination by him of the issues to be tried.” People v. Lobb, 17 Ill. 2d 287, 300 (1959) (quoting Connors v. United States, 158 U.S. 408, 413 (1895)).

“The purpose of voir dire is to ascertain sufficient information about prospective jurors’ beliefs and opinions so as to allow removal of those members of the venire whose minds are so closed by bias and prejudice that they cannot apply the law as instructed in accordance with their oath.” People v. Cloutier, 156 Ill. 2d 483, 495-96 (1993).

 Jurors “must harbor no bias or prejudice which would prevent them from returning a verdict according to the law and evidence.” Strain, 194 Ill. 2d at 476.  The manner, extent, and scope of voir dire examination rests within the discretion of the trial court. To be constitutionally compelled, it is not enough that a voir dire question be helpful; rather, the trial court’s failure to ask the question must render the defendant’s proceedings fundamentally unfair. See Terrell, 185 Ill. 2d at 485.

See also

Batson Rule Requires Race Neutral Reasons For Striking Jurors

3-Step Process

Batson’s three-step process for addressing alleged discriminatory use of peremptory challenges is well-settled.

First, it is the defendant’s burden to make a prima facie showing that the prosecutor has exercised peremptory challenges on the basis of race.

Second, once a defendant makes out a prima facie case, the burden shifts to the prosecution to articulate a race-neutral reason for excluding each dismissed juror, which “need not rise to the level justifying exercise of a challenge for cause.” Also at the second stage, defendant is afforded the opportunity to argue that the State’s proffered reasons for striking particular members of the venire are pretextual.

Third, the trial court makes the ultimate determination of whether the party opposing the challenge has made the required showing of purposeful discrimination. At this stage, it is the trial court’s responsibility to undertake a sincere and reasoned attempt to evaluate the prosecutor’s explanations in light of the circumstances of the case. In addition to considering the stated reasons offered by the prosecutor, the court evaluates the prosecutor’s demeanor, which reviewing courts have recognized entails credibility determinations.

See also

Speedy Trial Rights Have To Be Honored

Both the United States Constitution and the Illinois Constitution guarantee the right to a speedy trial for anyone accused of a crime. U.S. Const., amend. VI; Ill. Const. 1970, art. I, § 8. The Illinois speedy trial statute enforces this constitutional right, and its protections are to be liberally construed in favor of the defendant.

Illinois Speedy Trial Statute

725 ILCS 5/103-5(a) of the speedy trial statute states,

“Every person in custody in this State for an alleged offense shall be tried by the court having jurisdiction within 120 days from the date he was taken into custody unless delay is occasioned by the defendant ***.”

The IDA (Illinois Detainer Act -730 ILCS 5/3-8-10) further applies the 160-day time period and trial demand requirement to “persons committed to any institution or facility or program of the [DOC] who have untried complaints, charges or indictments pending in any county of this State.”

See People v. Smith, 2016 IL App (3d) 140235 (June) Episode 205 (Duration 7:12) (Speedy Trial Violation Occurs Here Where Defendant Was “Held” For Multiple Offenses)

Extensions Of Time For A Speedy Trial

Section 103-5(a) places the responsibility on a defendant to take affirmative action when he becomes aware that his trial is being delayed by objecting to the delay via a written demand for trial or an oral demand for trial on the record in order to prevent the speedy trial clock from tolling. See also

Constitutional Speedy Trial Rights

The constitutional and statutory rights to a speedy trial are not necessarily coextensive.

When considering whether a defendant’s constitutional right to a speedy trial has been violated, there are four factors that may be considered and balanced:

  1. The length of the delay
  2. The reasons for the delay
  3. The defendant’s assertion of the right to a speedy trial, and
  4. The prejudice to the defendant.

The length of the delay is considered the triggering mechanism for considerations of the other factors, but the length of delay is necessarily dependent on the peculiar circumstances of the case, and not on any fixed period of time.

Deliberate delays are weighted heavily and negligence is weighted a little less heavily.

Finally, in assessing the prejudice factor, courts are to consider the interests of defendants that the speedy-trial right was designed to protect:

(1) Preventing undue and oppressive incarceration,
(2) 10 minimizing the anxiety and concern that accompanies public accusations, and
(3) Limiting the possibility that the defense will be impaired.

What Happens When A Judge Instructs The Jury Inaccurately On The Zehr Principals?

Zehr Principles

At the beginning of voir dire, the court admonished the venire as to “certain principles of law that apply to all criminal cases.”

These are:

(1) The presumption of innocence;
(2) The State has the burden of proof;
(3) The defendant is not required to offer evidence on his own behalf; and
(4) The defendant’s failure to testify cannot be used against him.

See Ill. S. Ct. R. 431(b) (codifying People v. Zehr, 103 Ill. 2d 472 (1984)). We refer to these principles as the “Zehr principles.”

Understand & Accept

**The rule provides that the court “shall ask” each juror, either individually or in a group, whether he or she “understands and accepts” the Zehr principles.

In People v. Thompson, 238 Ill. 2d 598, 607 (2010), our supreme court made clear that the court must ask both whether the jurors understand and accept the principles. Rule 431(b) mandates “a specific question and response process.” The court “shall ask” whether the potential jurors understand and accept the enumerated principles.

Asking jurors they had any “difficulty or disagreement” was not equivalent to asking if they understood. For example, someone might not disagree with a statement simply because he or she does not understand it.

See also

Things Can Go Wrong With Opening Statements: How Not To Conduct Opening

Courts have decried the use of derogatory and pejorative terms used to describe the defendant. Comments intending only to arouse the prejudice and passion of the jury are improper. Repeatedly calling defendant a “criminal” in front of the jury can lead to a reversal.

See People v. Jones, 2016 IL App (1st) 141008 (October) Episode 257 (Duration 6:59) (Perogatory And Pejorative Name Calling During An Opening Statement Is Going To Draw A Reversal)

Criminal Trial Is Where Confrontation Clause Rights Can Get Abused

The confrontation clause of the sixth amendment of the United States Constitution, made applicable to the states through the fourteenth amendment (U.S. Const., amend. XIV), provides, in part, as follows:

“In all criminal prosecutions, the accused shall enjoy the right *** to be confronted with the witnesses against him.” U.S. Const., amend. VI.

The Illinois Constitution also conforms with the confrontation clause of the federal constitution. The Illinois Constitution provides in part as follows:

“In criminal prosecutions, the accused shall have the right *** to be confronted with the witnesses against him or her.” Ill. Const. 1970, art. I, § 8.

Case Law On Alternate Procedures To Accommodate Testifying Witnesses

People v. Lofton

In Lofton the State, implemented an ad hoc courtroom procedure to receive a child’s testimony. See People v. Lofton, 194 Ill. 2d 40, 740 N.E.2d 782 (2000). The Illinois Supreme Court addressed the constitutionality of a courtroom procedure designed to prevent a child witness from having to face in open court a defendant charged with sexually assaulting the child.

The trial court in Lofton implemented an ad hoc procedure to allow the child witness to testify from behind a barrier of podiums, which precluded the defendant from being able to view the child when testifying. See also Coy v. Iowa, 487 U.S. 1012 (1988) (large screen that prevented defendant from seeing the kid was unconstiutional).

Maryland v. Craig

But in Maryland v. Craig, 497 U.S. 836, 841 (1990) the court allowed one way closed circuit tv testimony of the child after the court made a finding that the child witness would suffer severe emotional distress if required to testify in open court.

People v. Hadden

As this court stated in People v. Hadden, 2015 IL App (4th) 140226, ¶ 28, 44 N.E.3d 681, “spoken language contains more communicative information than the mere words because spoken language contains ‘paralanguage’—that is, the ‘vocal signs perceptible to the human ear that are not actual words”.

See Also

What’s The Least A Witness Can Say And Still Be Present And Available For Cross?

The confrontation clause guarantees an opportunity for effective cross-examination; it does not guarantee cross-examination that is effective in whatever way the examining party may want.

In general, a witness at trial is considered to be present, available for, or subject to cross examination when the witness takes the stand, is placed under oath, willingly answers questions, and the opposing party has an opportunity to cross-examine the witness.

More specifically, as to an out-of-court statement, the key inquiry in determining whether the declarant is available for cross-examination is whether the declarant was present for cross-examination and answered all of the questions asked of him or her by defense counsel.

Thus, there are no confrontation clause problems merely because a witness’s lack of memory precludes the defendant from cross-examining the witness to the extent the defendant would have liked.

See also

Self Defense Is An Affirmative Defense

To properly raise an affirmative defense, a defendant is required to present some evidence on the issue, unless the State’s evidence itself raises the defense. People v. Kite, 153 Ill. 2d 40, 44-45 (1992). “Generally, the quantum of proof necessary to raise an affirmative defense is evidence sufficient to raise a reasonable doubt as to defendant’s guilt or innocence,” which is a relatively low threshold.

Section 7-1(a) of the Criminal Code of 2012 holds as follows:

“A person is justified in the use of force against another when and to the extent that he reasonably believes that such conduct is necessary to defend himself or another against such other’s imminent use of unlawful force. However, he is justified in the use of force which is intended or likely to cause death or great bodily harm only if he reasonably believes that such force is necessary to prevent imminent death or great bodily harm to himself or another, or the commission of a forcible felony.” 720 ILCS 5/7-1(a).

Use of force in self defense or defense of another includes the following elements:

(1) unlawful force threatened against a person,
(2) the person threatened was not the aggressor,
(3) the danger of harm was imminent,
(4) the use of force (by the threatened person) was necessary,
(5) the person threatened actually and subjectively believed a danger existed that required the use of force applied, and
(6) the beliefs of the person threatened were objectively reasonable.

People v. Gray, 2017 IL 120958, ¶ 50 (citing 720 ILCS 5/7-1).

Necessity Defense Is An Affirmative Defense

In section 7-13 of the Criminal Code of 2012, the affirmative defense of necessity is defined as follows:

“Conduct which would otherwise be an offense is justifiable by reason of necessity if the accused was without blame in occasioning or developing the situation and reasonably believed such conduct was necessary to avoid a public or private injury greater than the injury which might reasonably result from his own conduct.”

720 ILCS 5/7- 13.

The defense of necessity “is viewed as involving the choice between two admitted evils where other optional courses of action are unavailable, and the conduct chosen must promote some higher value than the value of literal compliance with the law.” People v. Janik, 127 Ill. 2d 390, 399 (1989).

A defendant must show that he faced a “specific and immediate threat” for the necessity defense to apply. People v. Kite, 153 Ill. 2d 40, 46 (1992).

See also

Compulsion Defense Is An Affirmative Defense

With a compulsion defense the potential harm has to be imminent.

Compulsion Defense

Compulsion is an affirmative defense whereby a defendant is not guilty of an offense “by reason of conduct that he or she performs under the compulsion of threat or menace of the imminent infliction of death or great bodily harm, if he or she reasonably believes death or great bodily harm will be inflicted upon him or her, if he or she does not perform that conduct.” 720 ILCS 5/7-11(a).

Threat of Death or Great Bodily Harm

To warrant an instruction on compulsion, defendant must present “some evidence” sufficient to raise an issue of fact for the jury and create reasonable doubt as to defendant’s guilt. However, this defense is not available if defendant had an ample opportunity to withdraw from participation in the offense but failed to do so.

For the compulsion defense to apply, the threat of death or great bodily harm must be imminent.

A threat of future injury “is not sufficient to excuse criminal conduct.”

See People v. Collins, 2016 IL App (1st) 143422 (June) Episode 204 (Duration 5:31) (In A Compulsion Defense The Potential Harm Has To Be Imminent)

Insanity Defense Is An Affirmative Defense

The Illinois Compiled Statutes Criminal Code states that:

“A person is insane and not criminally responsible for his conduct if he lacks substantial capacity to appreciate the criminality of that conduct due to a mental disease or defect.” 720 ILCS 5/6-2(a).

The defense (or prosecution) has to present some evidence of insanity consistent with the above definition. Often the existence of a documented mental illness does not absolve one of criminal liability for an offense.

See also

Examples Of What Not To Say In Closing Argument

There are essentially a limitless amount of ways an attorney can really step in it in closing argument. It’s a minefield out there and one has to be very careful where they step.  See

See Also Other Examples Of What Can Go Wrong In A Criminal Trial

Where’s Samuel Partida, Jr.?

Samuel Partida, Jr.Samuel Partida, Jr. is now prosecuting criminal law cases in an Illinois county near you. He is, therefore, unavailable to answer questions on this site. Always remember, there is no substitute for steady, persistent attention to the cases.

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