§ 3.01  Introduction [23]

 

Most students have taken a course in civil procedure before they take the evidence course.  The same cannot be said for criminal procedure.  Thus, this chapter briefly summarizes some of the initial steps before trial, with more background information provided for criminal litigation.

 

§ 3.02  Pretrial Stages in Civil Cases  [23-29]

 

A civil suit commences with the filing of a complaint.  A summons along with the complaint is then served on the defendant, who is required to respond with an answer.  The party must either admit or deny the averments in the complaint, unless unsure.  Failure to deny may result in an admission.  Affirmative defenses must also be set forth in the answer.  Once the pleadings are closed, a party may move for a judgment on the pleadings.

 

§ 3.03  Pretrial Stages in Criminal Cases  [29-34]

 

                        [A]       Charging Instruments

 

Criminal cases may commence with the filing of a complaint or an arrest, which then is followed by a complaint.  The process may also start with a grand jury indictment or in some jurisdictions, with the filing of a prosecutor’s information.

 

                        [B]       Preliminary Hearing

 

The preliminary hearing is a screening device, much the same as the grand jury is a screening device, designed to insure that persons are not made to stand trial for a felony in the absence of “substantial credible evidence.”  Unlike a grand jury, a preliminary hearing is an adversarial proceeding.

 

                        [C]       Grand Jury Proceedings

 

State law generally governs indictment issues.  Indeed, approximately two-thirds of the states do not require grand jury indictments for felonies.  The rules of evidence, constitutional or otherwise, are generally inapplicable to grand jury proceedings. 

 

§ 3.04  Jury Selection & Voir Dire   [34-35]

 

The examination of prospective jurors (voir dire) is conducted to determine whether challenges are warranted.  There are two types of challenges: (1) for cause and (2) peremptory.  Challenges for cause are typically based on statutory provisions that contain age, citizenship, and other disqualifications such as a felony conviction or some relationship with one of the parties.  The impartiality of jurors, of course, is required.  Thus, evidence of personal bias is grounds for challenge.  A peremptory challenge can be exercised for any reason except peremptory strikes may not be based on race or gender, a rule that also applies in civil cases.

 

§ 3.05  Order of Proceedings at Trial [35-41]

 

The trial begins with opening statements. Evidence is first presented in the plaintiff's (prosecution's) case-in-chief, which is followed by the defense case-in-chief, plaintiff rebuttal, and defense surrebutal. The trial ends with closing arguments by counsel and jury instructions. The judge has the discretionary authority to alter this scheme.

 

§ 3.06  Jury Deliberations, Verdicts & Posttrial Motions  [41-42]

 

                        [A]       Exhibits in the Jury Room

 

Real and documentary evidence admitted at trial usually goes with the jury to the deliberation room.

 

                        [B]       Post-Verdict Hearings & Motions

 

When the jury returns its verdict and it is read in open court, losing counsel may ask for the jury to be polled.