Criminal Defense Attorneys and Jury Trials

Criminal Defense Attorneys and Jury Trials

Criminal defense attorneys for centuries have relied on jury trials to vindicate the rights of their clients. It is fair to say that criminal defense attorneys were the original trial lawyers. Trial by jury, in the Anglo-Saxon common law tradition, can be authoritatively traced to at least the time of the Norman Conquest in the year 1066. However, most legal historians believe that the practice of trials which relied on lay jurors pre-dates the arrival of the Normans and was utilized extensively by the Anglo-Saxons. Regardless of its time of origin, the criminal jury trial has been a potent tool in the hands of criminal defense attorneys for hundreds of years. Virtually unique to the common law tradition, the jury trial allows ordinary citizens with no legal training to decide the facts of a criminal case. They use their collective common sense and apply the facts presented at trial to the law provided by the judge. This remarkably straightforward process is the foundation of most criminal justice systems, like ours, which imported the common law tradition from England. Since the time criminal defense attorneys were allowed to participate in the jury trial process, they have primarily viewed jury trials as the mechanism by which an ordinary citizen can stand up to the awesome power of the government on a relatively equal basis.

It is no secret what the drafters of the United States Constitution believed about the necessity of jury trials. The framers made their feelings clear when they explicitly enshrined the right to trial by jury into both the text of both the body of the United States Constitution and into two of the Amendments. Simply put, the United States Constitution guarantees a citizen’s right to jury trial. It ensures that the trial is fair and that the jurors be impartial. As it pertains to criminal defense attorneys, the Constitution guarantees the assistance of competent counsel. Records of debates surrounding the drafting of the Constitution reveal that the Framers found it necessary for the preservation of liberty to mandate that every person charged with a serious crime be allowed the assistance of a criminal defense lawyer. Interestingly, criminal defense attorneys are one of the very few occupational groups mentioned and in certain situations required by our national Constitution.

Jury Trials in Las Vegas

Criminal defense attorneys in Las Vegas defend cases in front of juries in both state and federal court. With some exceptions, the process of defending a criminal case in state versus federal court is mostly the same. Procedurally, criminal defense attorneys must master two sets of rules; however, there is much overlap given that the state procedures are required to adhere to standards established by the United States Supreme Court. Regardless of which system a person is charged in, a few basics remain critically meaningful and relevant to jury trials in both forums.

Voir Dire

Voir dire, or jury selection, is essentially the first step in a jury trial. Like all other portions of the proceeding, criminal defense attorneys have the right to participate in the process of choosing a jury. Choosing a jury is a difficult process which requires a set of skills which all criminal defense attorneys who try cases must master. Jury selection is governed by a large body of case law which addresses the various constitutional rules which assist in ensuring a person charged with a crime be given a constitutionally fair trial. The information which is conveyed to the pool of potential jurors is carefully monitored. Any statements which may legally prejudice the rights of the accused may result in the process having to be started from scratch with a new untainted jury pool. The skillful selection of a jury requires the assistance of criminal defense attorneys who know the law applicable to such proceedings, and who understand the generalizations of people which sometimes provide guidance as to which type of persons may be more receptive and fair-minded than others. Cases are frequently reversed because a trial judge allows impermissible conduct to occur in jury selection. Often a case is won or lost in jury selection. It does not matter how good a case you may have if you have a collection of jurors who just cannot be fair-minded. That is why it is critical to have criminal defense counsel who has substantial expertise in choosing a jury.

Opening Statements

Once the jury is selected and sworn in, the prosecutors and criminal defense attorneys will give opening statements. Opening statements are legally required to be simply a roadmap of each party’s case. Both the prosecutors and criminal defense lawyers will tell the jury what they believe the evidence will show. Opening statements, properly done, are an essential portion of the case. It is important for the jury to understand what precise items of evidence are believed to have significance to the outcome of the case. Jury trials frequently involve the admission of hundreds of exhibits and the presentation of a number of live witnesses. Therefore it is easy to see how many jurors find it difficult to determine which exhibits or portions of testimony are critical to resolving the case.

However, much more thought needs to go into an opening statement than simply which evidence should be pointed out to the jury. Experienced criminal defense attorneys know to be careful in revealing too much in an opening statement. It is very easy to reveal too much in a defense opening statement and thereby allow the prosecution the chance to shape their case-in-chief in a manner which attempts to discredit a previously unforeseen defense angle. Often, if it is clear the prosecution does not see the significance of a certain piece of evidence or a certain line of testimony, the most skillful criminal defense attorneys will strategically withhold those points from an opening statement.  Those critical defense issues can be presented after the prosecution has rested their case-in-chief and is no longer in a position to shape their case in a way which rebuts the critical defense evidence.

Prosecution Case-in-Chief

After opening statements, the prosecutors will begin presenting evidence. This statement consists of calling witnesses and admitting exhibits which support their theory of the prosecution. The criminal defense attorneys defending the case are allowed to cross-examine and challenge each witness or exhibit offered by the prosecution. This portion of the trial typically is the longest because as indicated above, many cases sometimes involve thousands of exhibits and occasionally over one-hundred witnesses. While most trials involve less evidence, a relatively short prosecution case-in-chief can be a mind-numbing, frequently bewildering experience for jurors. The best, most skillful prosecutors will present tight, easy to follow narratives which engage and interest the jury. These effective presentations are overwhelmingly the most difficult for criminal defense lawyers to defend. When prosecutors confuse and bore jurors, they run the highest risk of taking a loss.

Defense Case-in-Chief

After the prosecutors present their case-in-chief, the criminal defense attorneys will be allowed to present evidence. However, oftentimes, the defense will not present any evidence. Why? Because it is a fundamental rule of constitutional law that the defense has no obligation to present evidence or prove the accused’s innocence. In criminal trials in the United States, the prosecution bears the burden of proving the defendant guilty of each material element of the charge beyond a reasonable doubt. The person accused of the crime has nothing to prove. Pursuant to the United States Constitution he or she is presumed innocent in the eyes of the law. That being said, criminal defense lawyers frequently do present evidence in support of the defense. Similar to the prosecution, the law allows criminal defense lawyers to present all legally acceptable evidence which supports their theory of the defense. Similar to the criminal defense lawyers’ legal right to challenge each witness and exhibit offered by the prosecution in their case-in-chief, the prosecutors may cross-examine any defense witnesses and object to any exhibit the defense chooses to offer into evidence.

Jury Instructions

After both sides rest, the prosecutors, criminal defense attorneys and the judge will settle jury instructions. Jury instructions are the individual rules of law which jurors must consider and apply to the facts while deliberating after the close of evidence in each jury trial. Like all other portions of a jury trial, the resolution of jury instructions is often hotly contested. The majority of the jury instructions will be agreed upon and uncontroversial, however, almost always there will be a number of jury instructions which the prosecutors and the criminal defense lawyers cannot agree upon. Each side will have an opportunity to argue what they believe the correct statement of the law to be and why their instruction should be included in the final version provided to the jury. The trial judge will decide and make his ruling on the record for purposes of appeal. The settling of jury instructions is always done outside the presence of the jury.

Closing Statements

After the judge has ruled on jury instructions, the prosecutors and criminal defense attorneys will give closing arguments. Note, that unlike opening statements, the word argument is used. That is because in closing arguments, the prosecutors and criminal defense lawyers may argue, within limits, their interpretation of what the evidence showed. Closing arguments are much more wide open affairs than opening statements which are primarily confined to what the parties believe the evidence will show. Closing arguments are the last opportunity for the prosecutors and the criminal defense lawyers to persuade the jurors that their take on the evidence is the more correct. The best criminal defense lawyers will show how the prosecution did not meet their burden in showing beyond a reasonable doubt the truth of the charge. This is done by showing critical inconsistencies and shortcomings in the prosecution’s case. Showing that a critical prosecution witness lied or simply did not have a basis for their conclusion frequently destroys the prosecution’s case. There are countless ways a prosecution can go awry. It is the criminal defense lawyers job to use his or her powers of oratory to convince the jury of the inadequacy of the case against their client.


The skills which are required to effectively conduct a criminal jury trial are difficult to master. It takes years of study and correct application of what is learned to become an expert at defending criminal cases. The best criminal defense attorneys will have a proven track record of successfully defending cases. It is not easy to get twelve people to agree with you that the prosecutors in the case are completely wrong. Generally, from the outset, people instinctively side with law enforcement. Criminal defense attorneys who try cases often do so from a credibility deficit which is the result of mostly incorrect perceptions many members of the public believe. The best criminal defense attorneys can do much to offset these disadvantages which are all too often a part of most criminal jury trials. The summary above is broad and does not include all important facets of a criminal jury trial, but it does include a highlight of the most important portions.



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