The steps in a criminal trial generally include:
- Jury Selection
- Prosecutions Opening Statement
- Defendants Opening Statement
- Prosecutions Presentation of Evidence (Direct Examination)
- Defendant Cross Exams State Witnesses
- If They Want Defense Presentation of Evidence (Direct Examination)
- Prosecution Cross Exams Defense Witnesses
- Prosecution Makes Closing Argument
- Defense Makes Closing Argument
- 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.
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.
- People v. Evans, 2016 IL App (1st) 142190 (December) Episode 270 (Duration 7:02) (family members of the defendant are inappropriately kept out of the courtroom during important trial procedures)
- People v. Gore, 2018 IL App (3d) 150627 (April) Episode 502 (Duration 6:36) (Judge doesn’t have to open the courtroom to the public to handle how to answer a jury question.)
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.
- People v. Encalado, 2018 IL 122059 (March). Episode 477 (Duration 8:50) (There is no body of case law documenting the public shaming of patrons of prostitutes.)
- People v. Encalado, 2017 IL App (1st) 142548 (February). Episode 314 (Duration 10:18) (lower court opinion)
Batson Rule Requires Race Neutral Reasons For Striking Jurors
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.
- People v. Austin, 2017 IL App (1st) 142737 (April) Episode 342 (Duration 17:15) (How To Properly Raise A Batson Prima Facie Case)
- In re A.S., 2016 IL App (1st) 161259 (October). Episode 255 (Duration 12:42) (When 4 Of 5 African American Are Struck From The Jury There May Be A Batson Problem)
- In re A.S., 2017 IL App (1st) 161259-B (March) Episode 335 (Duration 15:09) (State Fails To Raise Race Neutral Reason In This Batson Challenge)
- People v. Williams, 2015 IL App (1st) 131103 (November) Episode 113 (Duration: 5:21) (Defense Counsel Needs to Do More Than Just Say “Batson” To Raise a Proper Batson Challenge)
- People v. Shaw, 2016 IL App (4th) 150444 (April) Episode 174 (Duration 4:14) (Any Race Neutral Reason is Sufficient To Beat A Batson Challenge: That’s The Problem)
- Foster v. Chatman, SCOTUS No. 14–8349. Argued November 2, 2015—Decided May 23, 2016 Episode 189 (Duration 7:29) (Prosecutors Wrote B’s Next To All The Potential Jurors Who Were African American)
- People v. Byrd, 2017 IL App (2d) 140715 (April) Episode 343 (Duration 5:07) (After A Batson Violation What’s The Appropriate Remedy?)
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,
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
- People v. Connors, 2017 IL App (1st) 162440 (September) Episode 404 (Duration 9:32) (DUI Dismissed After State Trooper Consistently Does Not Come To Court)
- People v. Gibbs, 2016 IL App (1st) 140785 (June) Episode 202 (Duration 7:56) (Was it error for the judge to deny defendant’s motion to continue the trial so he could build up his Lynch material?)
- People v. Lilly, 2016 IL App (3d) 140286 (April) Episode 173 (Duration 7:44) (Speedy Trial Right Comes With A Big Pause Button: Generally Any Litigation Started By Defendant Stops The Clock)
- People v. Kilcauski, 2016 IL App (5th) 140526 (August) Episode 241 (Duration 9:02) (Constitutional and statutory speedy trial right violations occurred from these unique facts.)
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:
- The length of the delay
- The reasons for the delay
- The defendant’s assertion of the right to a speedy trial, and
- 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?
At the beginning of voir dire, the court admonished the venire as to “certain principles of law that apply to all criminal cases.”
(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.
- People v. Dismuke, 2017 IL App (2d) 141203 (June) Episode 361 (Duration 8:30) (What Happens When A Judge Instructs The Jury Inaccurately?)
- People v. Sebby, 2017 IL 119445 (June) Episode 351 (Duration 9:25) (screwing up the Zehr principles gives Illinois Supreme Court a chance to review what plain error is)
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:
The Illinois Constitution also conforms with the confrontation clause of the federal constitution. The Illinois Constitution provides in part as follows:
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”.
- The Child Shield Act – 725 ILCS 5/106B-5
- In re T.Z., 2017 IL App (4th) 170545 (December) Episode 450 (Duration 10:35) (Judge Gets A Little Too Involved With Kid On The Stand When He Allows The Child To Whisper The Testimony Into His Ear)
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.
- People v. Dabney, 2017 IL App (3d) 140915 (October) Episode 433 (Duration 8:44) (Kid didn’t testify about some of the acts but was still available for cross.)
- People v. Burnett, 2015 IL App (1st) 133610 (December 2010) Episode 123 (Duration 8:45) (Witness Can Be Available Under Crawford But Unavailable Under State Statute)
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:
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:
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).
- People v. Crowder, 2018 IL App (1st) 161226 (November) Episode 564 (Duration 9:49) (Convict grabs his dad’s gun when 3 big dudes start punching them.)
- People v. Gullens, 2017 IL App (3d) 160668 (October) Episode 429 (Duration 11:50) (Fundamental Fairness And The Necessity Defense Save Defendant 3 Years)
- People v. Wilkinson, 2018 IL App (3d) 160173 (June) Episode 504 (Duration 15:06) (Defendant beats back a racist aggressor; now he’s doing 3 years.)
- People v. Teper,2016 IL App (2d) 160063 (November) Episode 264 (Duration 10:51) (Did You Know There Is “Overdose Immunity”? That’s When You Call For Help After An Overdose And You Can’t Get Charged)
- People v. Smith, 2014 IL App (1st) 103436 (July) (Involuntary Manslaughter Instruction Denied When Defendant Claims Self Defense)
Compulsion Defense Is An Affirmative Defense
With a compulsion defense the potential harm has to be imminent.
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.
- People v. Wood, 2014 IL App (1st) 121408 (July) Episode 007 (Duration 12:33) (GBMI In Illinois And How Its Different Than Insanity Defense)
- People v. Oelerich, 2017 IL App (2d) 141281 (February) Episode 295 (Duration 13:05) (Defendant had severe mental delusions and issues when he drove his car head on into a lady’s mini van.)
- People v. Burnett, 2016 IL App (1st) 141033 (December) Episode 286 (Duration 7:59) (Defendant Allowed To Claim The Insanity Defense Even Though The Fitness Report Will Come Back As Sane)
- Problems with the Insanity Defense In Illinios
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
- People v. Garcia, 2019 IL App (2d) 161112 (March) Episode 615 (Duration 15:28) (prosecutor inaccurately describes accountability to the jury)
- People v. Thompson, 2015 IL App (1st) 122265 (August) Episode 094 (Duration 8:05) (there is no good way to talk about the definition of reasonable doubt in front of the jury)
- People v. Thompson, 2016 IL App (1st) 133648 (March) Episode 164 (Duration 5:47) (Error For The Prosecution To Ask The Jury If There Heart Is Not Broken For That Women)
- People v. Williams, 2015 IL App (1st) 122745 (March) Episode 067 (Duration 16:28) (Improper Witness Vouching: Was This Prosecutor Vouching For His Witness?)
- Episode 010 – The Definition Of Reasonable Doubt In Illinois Is Handled A Little Differently (Duration 10:42)
- Episode 020 – Reasonable Doubt Definition Demystified With Evan Bruno (Duration 16:28)
- People v. Downs, 2015 117934 (June) Episode 080 (Duration 9:55) (Reasonable Doubt Question Answered By Illinois Supreme Court)
- People v. Thomas, 2014 IL App (2d) 121203 (August) (Why We Shouldn’t Give The Jury A Definition For “Reasonable Doubt”)
- People v. Middleton, 2018 IL App (1st) 152040 (June) Episode 503 (Duration 17:07) (see defense team lose their mind objecting when prosecutor shows the jury a doctored up photo of defendant)
See Also Other Examples Of What Can Go Wrong In A Criminal Trial
- People v. Sheley, 2017 IL App (3d) 140659 (October) Episode 419 (Duration 14:30) (What To Do When The Judge Falls Asleep During Trial)
- People v. Alexander, 2017 IL App (1st) 142170 (June) Episode 370 (Duration 6:43) (Illogical verdicts in this trial won’t require reversal.)
- People v. Brown, 2017 IL App (3d) 140514 (May) Episode 367 (Duration 14:51) (The jury signed the not guilty of first degree murder conviction and they signed the second degree murder instruction, this was inconsistent, yet the conviction is sustained.)
- People v. White, 2017 IL App (1st) 142358 (March) Episode 341 (Duration 11:27) (In this bench trial the judge gets annoyed with defendant who wants to show him his tattoos.)
- People v. Tate, 2016 IL App (1st) 140598 (September) Episode 243 (Duration 2:43) (Error To Deny This Substitution Of Judge Motion (SOJ) – Having A Room Number Not Sufficient Notice Of Who The Judge Will Be)
- People v. Johnson, 2019 IL App (1st) 162517 (March) Episode 614 (Duration 11:45) (It’s Structural Error To Proceed With A Bench Trial Without A Knowing Waiver In Open Court)
- Pena-Rodriguez v. Colorado, SCOTUS (March 2017) Episode 310 (Duration 6:59) (Should the rules allow judges to do something about bigotry that’s discovered during jury deliberations?)
- People v. Wiggins, 2015 IL App (1st) 133033 (September) Episode 089 (Duration 8:23) (Judge Can Ask Witness Some Questions So Long It Doesn’t Become Biased)
- People v. Williams, 2016 IL App (3d) 130901 (April) Episode 178 (Duration 7:30) (Shackling Defendant During a Bench Trial is Strongly Discouraged)
- People v. Little, 2018 IL App (1st) 151954 (September) Episode 546 (Duration 10:51) (What Does It Mean To Have An Unbiased Bench Trial Judge?)
- People v. Manning, 2018 IL 122081 (March) Episode 480 (Duration 21:31) (When Should The Judge Declare A Mistrial When The Jury Can’t Agree On A Verdict?)
- People v. Denson, 2014 IL 116231 (November) Episode 699 (Duration 15:01) (At The End Of A Trial Here Is How To Properly Preserve an Issue for Criminal Appeal)