Courtroom Facts for Writers: Write It Right & Don’t Be A Stooge
You’ve come to the juiciest part of your soon-to-be-best-selling-as-soon-as-I-finish-it novel.
The high publicity murder trial is at a fever pitch. The sidewalks outside the courthouse are jammed with television stations and their satellite-dish topped trucks. Inside the courtroom, the defendant is on the witness stand sweating, being forced to testify by the judge. He stutters, keeps shaking his legs, and his hands tremble when the prosecutor screams at him to answer his questions. Suddenly, in mid-sentence, the double doors in the back of the courtroom burst open. A tall woman in dark sunglasses and a trench coat strides briskly down the center aisle. The court officers escort her up to the witness stand.
The defendant is ordered by the judge to sit down next to his defense attorney. The mysterious woman is sworn in. She testifies against the defendant, refusing to give her name. Fifteen minutes after she testifies, the jury quickly finds the defendant guilty and is given the death sentence by the judge. Two weeks later, he is executed by being forced to sit in a six by six foot cell and watch “real police/forensic” shows on television 24 hours a day non-stop. He dies a slow and painful death.
Is this the scenario in your amazing new work in progress novel? If so, there are ten serious errors that exist in that scenario.
TEN.
So, if we don’t correct these mistakes now, and they slip by your agent, and your publisher, and it makes it onto millions of Nooks, Kindles and bookshelves, what will those familiar with courts, criminal law, police procedural, and criminal defense think about your research? Not very much. Your credibility is shot. They may never be back to you – because they can’t trust you.
Let’s define a criminal trial. That is one where the defendant (the accused) is facing incarceration, if convicted. It doesn’t mean he will serve time in jail, it just means that is the penalty that he faces. He could always be found guilty and ordered to serve probation, community service, or a myriad of what is called “diversionary” sentences, all designed to keep the prisons from overflowing. A criminal trial is all about violating the criminal code, which is clearly defined by each state.
In a civil trial, the defendant stands to have a monetary judgment against him if found guilty. He’s not going to jail.
Here’s the real deal on the procedure of a criminal trial. It may vary slightly from state to state, but are almost universally the same in the United States.
The beginning of the trial starts when the prosecutor gives the “opening arguments.” This is where he or she will talk about how the defendant on trial should be found guilty, and they lay out their facts that promise to cover in the trial. It can last for five minutes, or two hours, and except for unscrupulous and outrageous claims, can’t be interrupted by the defense attorney.
Next, the defense attorney presents their opening arguments, if they choose. They don’t have to. In fact, they don’t have to call a single witness on behalf of their client. They don’t have to have the defendant testify.
Why?
Because in a criminal trial, the burden of proof is on the prosecutor, or district attorney, as they are called in some states. The district attorney or prosecutor represents the victim and the state, and they must prove the defendant committed the crime to the jury. The defendant doesn’t have to do anything. Not even testify. The Fifth Amendment to the Constitution states that a defendant is protected against self-incrimination. Testifying in court where you are facing jail falls under that protection. In fact, the defendant’s defense attorney doesn’t even have to call any witnesses. None. The burden of proof falls on the prosecution.
After opening arguments, the prosecutor calls witnesses for the State. Perhaps the victim, if alive. Eyewitnesses that gave statements to the police. Detectives that worked on the case. Crime scene or forensic experts. Medical examiners. Social workers. Anyone that the prosecutor feels will portray the facts to the jury. Since the prosecutor has called these witnesses, his questions are called “direct examination.”
As each person testifies, and before they are done, the defense is allowed to question them as well. Since the defense did not select this witness to testify, their questioning is called “cross examination.”
This process goes on until all the witnesses the prosecutor called are done testifying. The prosecution is then described as “resting.”
Then the defense attorney calls his witnesses. Since these witnesses are his selection, his questioning of them is called “direct” and when they are then questioned by the prosecutor, it is called “cross examination.”
When all the defense witnesses are finished, the defense is described as “resting.” The defense attorney does not bring in her favorite beach chaise, it means that all legal maneuvering for the defense is done.
Then, the “summations” are given by the attorneys for both sides. The defense attorney goes first, then the prosecutor. In the summations they will try to sum up what they have presented. In the case of the prosecution, they’ll ask for a guilty verdict; in the case of the defense attorney, they’ll ask for a not guilty.
After the summations, the judge will randomly excuse two jurors, thanking them for their service. In states where there are twelve needed on the jury, there are actually fourteen used during the trial, so the judge will excuse two. In other states, such as Florida where six are needed for a jury, seven are selected, so the judge will excuse one. This is in case a juror or two becomes ill, or must be removed for other reasons during the trial.
Each juror is assigned a number from the start, so the judge will excuse the jurors by their number. No one is told before the trial who will be excused at the end. The rationale is if you tell two people in advance that they will be excused and not allowed to deliberate with the rest of the jury, chances are they won’t pay much attention during the trial.
The judge then “charges” the jury. No, they don’t have to whip out their credit cards. Charging means the judge reads from a “charging manual” exactly what the law is in regard to what the defendant is charged with, what is needed to reach a guilty verdict, and other basic laws regarding to the jury deliberation process.
