Television often dramatizes
trials, but only the most exciting aspects of trials make it on
the screen. A real trial is seldom anything like a television
Some cases are decided by a
judge, some are decided by a jury. Both the defense and the
prosecutor are involved in determining who gets to decide a
criminal case. Unless a citizen agrees to have the case heard by
the judge, all criminal cases in Texas must be decided by a
If the judge decides the case,
the judge will be the "fact finder," meaning the judge
will determine what facts are deserving of consideration.
For example, the fact finder
must determine which witnesses to believe when people testify
differently about the same event. This is called determining the
creditability of witnesses.
The jury's role is as fact
finder, as well. In Texas, jury trial is a prized right which
even extends to simple traffic tickets.
Jurors are randomly chosen from
county residents who have a driver's license or are registered
They appear at court after
being mailed notices, placed on a "jury panel," and
are qualified by a judge. The judge explains certain basic
requirements of jury duty and the jurors' responsibilities.
Certain panelists are excused simply by making a request, and
others may be released for good reason.
Voir Dire/Jury Selection
When assembled in numerical
order, the panel is then questioned by each side's attorney in a
process called "voir dire."
Panelists may be "struck
for cause," thus excusing them from jury duty. For example,
a panelist may disagree with the applicable law in the case.
Such a position may prevent him from following the law.
Each side also has a limited
number of "peremptory strikes," which they may use to
eliminate potential jurors without having to offer a reason.
When questioning is concluded
and strikes have been applied, the first remaining panelists are
then sworn in as jurors. Misdemeanors have juries of six
persons, while felonies have twelve.
When the jury has been seated,
the judge may give a couple of last-minute instructions. Then,
the charge is read aloud to the jury. The accused pleads not
guilty. The government then must prove every element of its case
beyond a reasonable doubt, the highest burden of proof in our
Each side usually gives an
"opening statement" to put the case into perspective
before evidence is heard. However, there is no requirement
that either side give an opening statement. The accused may
choose to wait until the government finishes its case before
making an opening statement.
The judge announces that the
government may call its first witness. Witnesses are sworn to
tell the truth either before the trial begins or immediately
before their testimony.
The government lawyer asks
questions of the witness. This is called direct
examination. Objections may be made to improper questions, and
the judge rules on the objections to determine whether the
witness will be allowed to answer the questions.
Sustaining an objection means
that the witness should not answer the question, and the lawyer
asking questions should ask his next question.
Overruling an objection means
that the witness is allowed to answer the question.
When the government's lawyer
has finished his questioning, the defense lawyer has the
opportunity to ask questions, if he chooses. This is
Each side is allowed additional
opportunities to question the witness in re-direct and re-cross
examination. Then, the witness is allowed to "step
down" and may be excused or be required to remain available
for further questioning.
Witnesses offer testimonial
evidence and may be able to authenticate other evidence, such as
documents and physical evidence.
The government then
"rests," which is a way of saying it is finished
presenting evidence. Unless the accused chooses to offer
evidence, the evidence portion of the trial is finished.
Normally, the lawyer for the
accused asks the judge to find the accused "not
guilty" because the government did not prove its case.
If the judge agrees, the accused wins.
If the judge disagrees, the
accused has the option to put on his case, just like the
government did. The difference is that the accused asks
questions on direct examination, while the government gets to
cross examine witnesses.
If the accused did not make an
opening statement at the beginning of the trial, it is usually
done immediately before the accused calls his first witness.
Jury Charge and
When all the evidence has been
presented to the jury, the judge reads written instructions to
the jury. The instructions explain the law that applies to the
The jury must decide whether
the accused is guilty or not guilty by determining which facts,
if any, were proven beyond a reasonable doubt. The jury then
must apply the facts to the law presented in the judge's
A verdict requires a unanimous
vote. No verdict may be returned unless every juror agrees
that the accused is guilty or not guilty.
If the jurors cannot reach a
verdict, they are considered a "hung jury." In that
case, the jury is discharged, ending the trial. The prosecutor
must decide whether to try the case again.
If the accused is found
"not guilty", he is set free.
If the accused is found
"guilty", the trial continues so as to determine
Punishment, if Found
Before the trial began, the
accused may have filed an application for probation. Only people
who have no felony conviction are eligible for probation from a
jury. An eligible person may file a sworn application stating he
is eligible for probation. Otherwise, he will be sentenced to a
jail term, a fine, or both.
Much like the
"guilt/innocence" phase of trial, each side is allowed
to present evidence that may help the jury assess a fair
punishment. The judge will again instruct the jury on the law
and charge them to follow it.
Should the jury determine that
probation is not acceptable, it must determine an appropriate
jail sentence and fine. If probation is recommended, the jury
may also recommend the length of the probation. Ultimately,
however, the judge has the final word on the length of the
probation. The maximum probation period for a misdemeanor
is two years, while a felony's maximum is ten years.
The judge also sets the
conditions the defendant must follow while on probation.
Conditions may include jail time, in-patient drug/alcohol
treatment, as well as many other programs and restrictions.
Failure to follow the
conditions of probation may result in revocation of the
probation and execution of the original sentence of
incarceration. No jury is permitted at a revocation hearing.
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are for people 21 years or older, do not involve enhancements,
are not exclusive, and are limited to Texas.
**This page is for
informational purposes ONLY and must not be relied upon as legal
advice because it is NOT a substitute for the advice of a qualified
attorney, nor does it establish an attorney-client
Not certified by the Texas
Board of Legal Specialization.