TYPES OF TRIALS

A trial, which serves to decide whether a defendant is guilty or not guilty, can proceed in two ways:

1. Before a jury of 12 people and 2 alternates (in case a jury member gets sick or is dismissed, etc.). Jury trials are the most common. The trial judge supervises the jury.

- Or -

2. Before a judge, called a bench trial.

The defendant has a right to a jury trial in criminal cases. A defendant can waive their right to a jury trial 4-5 days before trial and request that their case be heard before a judge.

In either a jury trial or bench trial, there are typically two (or sometimes one) attorneys for each side, with a lead attorney for each side. Your lead attorney will usually be the ADA with whom you have been working.

TIME IT TAKES FOR CASE TO GET TO TRIAL

The beginning of a trial can take months or years from a defendant’s first appearance in court. Reasons might include:

To allow the defense to prepare its case; Pretrial motions; Continuances; Change in DA and/or defense counsel; Missing evidence; Failure of witnesses to appear; Mental health of the defendant; How many cases a judge is working on (a judge can be handling up to 300 cases at a time).

It is not unusual for a major offense case to take 2 or 3 years from the time of the crime before it goes to trial. This is why people often comment that the justice system is yet another punishment. If the case involves the death penalty, it can take an additional average of 6-10 years for the appeals to be exhausted (or completed).

The prosecution of a non-capital case must occur within certain time limits (e.g. six years for a felony punishable by hard labor; six months for a misdemeanor punishable by a fine).

Delay in a trial will typically benefit the defendant. Witnesses forget or become unavailable. Thus generally, the longer it has been since the crime, the harder it may be for the DA to prove its case.

MENTAL STATE AND ABILITY TO STAND TRIAL

The defendant’s mental condition may affect whether they can be tried in court, or if tried, may limit the punishment that may be imposed. A defendant may avoid a trial if s/he is determined “incompetent to stand trial,” which refers to whether the defendant is able to understand the charges against him/her by the State, and if s/he is able to give meaningful assistance to his/her attorneys at trial. If this is raised, a judge will order a mental health evaluation to determine whether to conduct a trial. If the evaluation deems the individual “incompetent to stand trial,” they may be sent to a forensic mental health facility for treatment. When they are evaluated and deemed “competent to stand trial,” the court proceedings can then move forward.

A defendant may also claim to be not guilty by reason of insanity. The defense attorneys will then present an affirmative defense that while committing the crime, the defendant’s mental state prevented them from understanding the terrible and wrong nature of their acts. The defense has the burden of proof to prove that this was the case.

• If a jury or judge finds the defendant insane at the time of the crime, the defendant will be acquitted and sent to a forensic mental hospital. At a much later stage, a judge can release the person if s/he is not considered to be a danger to him/herself or others; otherwise, the person is never released.

• The death penalty may not be imposed on a person classified as mentally incompetent, if found guilty.

STEPS IN A JURY TRIAL

1. A jury is selected.

• Both the ADA and defense attorneys ask the jury pool various questions (called voir dire and pronounced ‘vua-deer’), and are allowed to exclude a certain number of people from serving on the jury.

• A possible juror will be excused if they have any relationship with someone involved in the case, to avoid any bias or likelihood of favoring that person.

• The use of the internet has also become a powerful tool in checking up on possible jurors. Attorneys will use the internet and social media to challenge a prospective juror’s background, opinions, and cultural attitudes.

• Jurors are expected to have an open mind and hear all the evidence before deciding if a defendant is guilty or not, and what their sentence should be.

• Jurors are not allowed to discuss the case outside the courtroom. Some juries may be sequestered (or isolated) if the judge wants them to avoid any outside influence, such as from the media or individuals associated with the case.

2. The prosecutor (ADA) is required by law to give an opening statement to outline and summarize what they intend to prove. Since the State has pressed charges (via the DA), they have the burden of proof to prove their charges beyond a reasonable doubt (which is the highest standard of proof used in any court litigation).

• After this, the defense may give their opening statement opposing the prosecution charges. However, the defense counsel doesn’t have to do anything because they do not have the burden of proof.

• A defendant can decide to represent him/herself, which is called pro se, but this rarely occurs. Pro se means the defendant is directly involved in jury selection, opening and closing statements, and cross-examining witnesses, etc. The court will generally try to discourage this, as basically all self- representations lose their case.

3. The prosecution (DA) is the side that first presents evidence – this can include testimony from witnesses, experts, police, the Coroner, material evidence, or anyone relevant to the case, that the judge has allowed to be used at trial. The judge does not know what non-expert witnesses either side will call, and this is often as much a surprise to the judge as to the court audience. Every person takes an oath to tell the truth; giving false testimony is called perjury, and is a serious crime.

The ADA will question their witnesses first, which is called a direct examination. The witnesses must answer with their own direct knowledge – because hearsay (or indirect knowledge, such as what someone has heard from others) is not admissible at trial.

Then the defense lawyer can ask questions to test that witness’s evidence and memory of the facts – this is called cross- examination. It is not a requirement for the defense to do this, and sometimes the lawyer will decide that it isn’t in their best interest to ask anything.

• Once the defense finishes their cross-examination (if they choose to do so), then the ADA may ask further questions of that same witness. This process is the same for every person who testifies as to the facts of the case.

If you are a material witness (a person with direct knowledge of the crime), you may receive a subpoena to report to the trial – this means you have to testify, and “tell the truth, the whole truth, and nothing but the truth.” You may be excluded from the courtroom while other witnesses testify, to ensure your testimony is not influenced by what others say.

The ADA will meet with you ahead of time to interview you about the facts. If you are a witness and you are asked if you’ve discussed testimony with the ADA, it is appropriate to say yes. Make sure you understand the questions being asked of you – you are allowed to ask for the question to be repeated. Be plain in your responses and answer the question only, and avoid making judgmental statements. If you do not remember something, say so—do not guess. Maintain eye contact with the person questioning you.

Expert witnesses may be called to give their opinions on matters in their field of expertise. This includes forensic science, such as DNA testing, or toxicologists for drug analysis, or weapons testing, or computer forensic testing to recover deleted information.

Exhibits such as photos, documents, or physical objects from the crime scene, can be admitted at a hearing or at trial. Exhibits are given a numbered identification.

• Even during trial, the opposing side can object to admitting the evidence, which results in a legal argument; the judge will rule on what is allowed. (However, most of this will have been decided during pre-trial discovery motions.)

Note that evidence may include graphic and disturbing details – ask your ADA to tell you in advance when this might be presented so you can prepare yourself for it, or leave the courtroom before it is shown.

4. During trial, while one side is asking questions, the other side’s lawyer can raise objections, which indicates they think the question is unfair.

• If the judge sustains the objection, it means the judge agrees that the question is not allowed and that the questioning needs to change.

• If the judge overrules the objection, the lawyer can continue with his/her line of questioning.

• (These objections may become important later for any appeal of the trial.)

5. The prosecution “rests” (or has completed) its case.

6. The defense then calls its witnesses, which the prosecutor can cross-examine. However, the defense team does not have to present any case.

• Note that a defendant has the right to remain silent and cannot be made to testify against him/herself. The jury will be instructed not to hold this against the defendant.

• You may also be surprised and shocked by some details that emerge during trial about your loved one, or even yourself. Remember that the defense will show the best side of the defendant and not the best side of the victim (while you can expect the DA to do the opposite). Keep your view on what you know to be true about yourself and/or the person you loved.

7. The defense “rests” its case (if it decides to make one).

8. The prosecutor can present evidence or witnesses to challenge the evidence presented by the defense.

9. The prosecution “rests.”

10. The prosecutor makes a closing argument to the jury, followed by the defense’s closing argument. Each side tries to summarize their version of the facts in order to persuade the jury (or judge, if it is a bench trial).

At any time during the presentation of the case, before closing arguments, either side’s attorney or the judge may call a bench conference or sidebar (with only the lawyers and judge). This conversation is usually to discuss points of law or confidential information and is “off the record,” and thus not recorded by the court reporter.

11. Duties of Jurors: During the trial, the jury is not allowed to discuss evidence from the case or form an opinion with any other jurors or with anyone else.

• The jurors may only see evidence that the judge and lawyers for both sides have agreed they may see. The jury may be made to leave the courtroom, if the judge has to hear matters to be decided by the court alone.

• Sometimes jurors may be allowed to take notes. This is decided between the DA and defense in open court, but not in the presence of the jury. The trial judge will be responsible for the destruction of the jurors’ notes immediately upon the return of the verdict; therefore, such notes cannot be used in an appeal.

• The jury is tasked with being the sole determiner of the facts (or “trier of truth”) and must also decide on the credibility of witnesses (whether they are believable). In order to determine that a defendant is guilty, the jury’s “standard of proof” must be guilt beyond a reasonable doubt.

12. The judge gives the jury legal instructions about the law.

• The judge will advise the jury that the opening and closing statements of both legal sides are each one’s summary of the case – and not evidence. The judge will tell the jury what legal issues are being argued.

Some judges let jurors know in advance what the mandatory minimum and maximum sentencing guidelines are for each charge, telling them the range of years the judge must use when the jury finds the defendant guilty on each charge. For example, an illegal possession of a gun may carry up to a 10 year sentence, and armed robbery may get up to 15 years.

13. The jury deliberates (or argues the case). The jury chooses one person to be the “foreperson,” who communicates with the court if any clarification of the law is needed; only the judge may answer these questions. At the discretion of the judge, jurors can request and further inspect the exhibits presented, plus review parts of the trial testimony record from the court reporter.

After debating the case, the jurors each cast a vote. In a criminal trial, all 12 jurors must agree unanimously to the defendant’s guilt for there to be a guilty verdict.

14. If the jury is unable to reach a conclusion about the case, it is called a hung jury, and the judge will declare a mistrial. The DA must then decide if they will retry the case.

15. When the jury reaches a verdict, they let the judge know. Both sides (DA and defense) must meet in the courtroom where the verdict is announced.

• If a verdict has been reached, the defendant cannot be tried for a second time using the same charges and the same evidence (called “double jeopardy”).

16. The judge will determine the sentence the defendant will get, based upon a range of years that have been set by Louisiana state law. The judge is allowed to decide how many years within the range to apply, based on the facts of each case.

BENCH TRIAL

This is basically the same process as the jury trial, but the judge takes the place of a jury. The judge decides what facts to believe, and decides the verdict and sentencing. A judge cannot hear a death penalty case – it must be heard and decided by a jury.

PRE-SENTENCE INVESTIGATION AND REPORT

The defendant’s criminal background is summarized, and, if relevant, the probation department prepares a report. Important information about the defendant, including previous history of crimes, and letters about the defendant’s character, are also included.

The defense may introduce mitigating (or helping) circumstances to explain the defendant’s actions, which might include abuse in the defendant’s background, or pressure put on the defendant to commit the crime. These factors do not excuse the crime or justify why it happened, but are given to the judge to aid in deciding the appropriate sentence. This is why there are ranges of punishment set for each crime.

SENTENCING HEARING (For a “guilty” verdict)

The judge decides the timing of the hearing, but will typically discuss a suitable date so that relevant parties may testify at the hearing. Usually sentencing is set 2-4 weeks after a verdict.

• The victim’s family should be consulted by their ADA before sentencing; be sure to ask them to let you know as soon as they do.

You (and a few others) may be allowed to make a victim impact statement at this time if you wish to do so, or have someone read it on your behalf.

The Louisiana Legislature provides sentencing ranges that determine the length of imprisonment allowed for each charge. Generally the more serious a crime, the longer the potential sentencing range.

• Defendants who have prior convictions can be sentenced under the Louisiana habitual offender statute: this statute mandates mandatory minimum sentences and significantly increases the sentencing range available to the judge.

• All defendants convicted of 1st- and 2nd-degree felonies must be sent to the Louisiana Department of Public Safety and Corrections, which is a state-run prison (as opposed to parish prison), and are sentenced to hard labor.

• Some verdicts run concurrently, meaning that the punishment for each charge runs at the same time as other charges, but the time of their sentence will be based on the charge with the longest amount of years.

• Once a conviction is made, the Department of Corrections is notified.

RESTITUTION

This refers to compensation for injury or loss. With a guilty verdict, the judge may order restitution from the defendant(s) for actual financial losses caused by the crime. This does not guarantee that a defendant will be able to pay this amount. Restitution orders are separate from monetary awards given in civil cases. Items that can be claimed for restitution may include:

• Medical expenses not covered by insurance

• Lost property or repairs to property

• Money illegally taken or other financial expenses as a result of the crime.

DEATH PENALTY (OR "CAPITAL") CASES

Death penalty cases take a lot longer than other kinds of trials, given the finality of a death sentence.

• The DA can decide to seek the death penalty, as well as choose when to announce it, and may also elect to withdraw it.

PENALTY PHASE (FOR DEATH PENALTY CASES)

If the defendant is found guilty and a life sentence or the death penalty is being considered, there is a second part of the trial called the penalty phase, and it is the jury who will determine the appropriate sentence to be served.

• Another way to understand this is: The trial was the first phase that established the defendant’s guilt. The second phase, or the penalty phase, recognizes that there are levels of guilt among people convicted of similar crimes. Other aspects might include the defendant’s criminal history, and whether s/he has a previous major felony conviction.

APPEALS IN APPELLATE COURT

With a guilty verdict, expect appeals to be made afterwards. An appeal is a formal process that allows a defendant the right to have any aspect of the trial reviewed on legal grounds by a higher court – every state has special courts that hear appeals.

• An appeal will not consider the facts of the trial, but only decide if serious legal errors were made at trial.

When a lawyer has made an objection during the trial, this is a way to preserve the argument for appeal. These objections form the basis for appeals once a verdict has been given, over such matters as:

• Incorrect statutory (legal) rulings on evidence allowed in or not allowed in

• Ineffective assistance by the defense attorney

• Prosecutorial misconduct (such as withholding evidence).

Most appeals do not change the result of the trial, but are made in the hope that something in their argument might give the defendant another chance to prove his/her innocence.

Note: The DA’s office cannot appeal a verdict.

The appellate (or appeal) court reviews the record of the trial and determines if legal proceedings in the trial were fair and done according to law. If there were errors made by the attorneys or the judge at the original trial, and the appeals court judge determines that serious mistakes were made which could have led to an acquittal (not guilty verdict), then the appellate court can reverse a conviction.

If the appeal court reverses the conviction, the DA may decide to retry the case; this re-trial is then a second trial in the Criminal Court where new information or evidence must be presented. Note that the defendant cannot be tried again using the same charges and the same evidence (“double jeopardy”).

If the appeal court upholds the conviction of the trial verdict (meaning they agree with the verdict), the defense may continue to appeal the case to higher courts to review each lower court ruling.

Two years after the final conviction, a defendant may still file for post-conviction relief if there has been ineffective assistance from the defendant’s counsel, or if there has been prosecutorial misconduct. This is called habeas corpus.

There are many levels of courts that may review a case during the appeals process. This would first include the Louisiana State Supreme Court; then next is to the United States Court of Appeals for the 5th Circuit; and finally and very rarely, is the United States Supreme Court (the highest level of court in the country).

Defendants are entitled to a free lawyer for appeals up through the Louisiana circuit courts – but after this, they must get their own lawyer (for federal levels). Once a trial verdict has been issued, the defendant’s constitutional right to a speedy trial has been satisfied; thus appeals can take a very long time.

• As you might imagine, these appeals can take years to resolve and prove to be very frustrating.

INCARCERATION

Most people with felony convictions will serve their sentence in one of the prisons run by the Louisiana Department of Public Safety and Corrections. Some options – starting with the harshest – include:

• State prison (long-term sentences at hard labor for serious offenses). Perhaps the best known of these is the Louisiana State Penitentiary (Angola), the maximum-security prison holding thousands of individuals, including all male individuals sentenced to death

• County or parish jail (short-term sentences for less serious offenses; this is not at hard labor)

• Probation (allowed to be in the community on certain conditions, and usually reporting to a probation officer)

• Fine or restitution

• Community service

• Or a combination of the above.

The Crime Victims Services Bureau (CVSB), within the Louisiana Department of Public Safety and Corrections, attends to issues a victim’s family would have concerning the incarceration of the individual convicted for a crime.

• Find out more about how to register to receive notifications about the incarcerated individual in our guide here (Register for Victim Notification) such as: Initial housing location and projected release date; Release from incarceration by any means, including death; Sentence change due to court actions; Assignment to work transition programs; Escape and apprehension; Parole and pardon hearings.

The CVSB handles important programs such as Individual/Group Counseling, Help with Victim Impact Statements, an Accountability Letter Bank, a Victim Offender Dialogue, and a Victim Impact and Guest Speaker Program. Find out more about these programs here: Victim Services - Louisiana Department of Public Safety & Corrections.

PAROLE

The sentences given down after a guilty verdict are often not served in full (unless they are life in prison without the possibility of parole, or the death penalty).

• Parole allows for the release of an individual from prison, although that person is still considered to be in legal custody of the State. The individual agrees to accept all terms and conditions of their parole agreement, and will not be released until signing the agreement. Parole can be revoked, or reversed, if the person violates their parole order. A parole officer supervises parolees to see that they fulfill their conditions.

If someone received a sentence where they will be able to apply for parole, the Committee on Parole and Board of Pardons will send to registered victims a notice of the parole and pardon hearings, which is mailed to victims and certain other persons at least 60 days before a hearing date; investigators will also attempt to contact the victims.

• Louisiana has a “good time law” where an incarcerated individual can get credit for time served if they exhibit good behavior. Parole may occur after a certain amount of the sentence has been served, depending on the type of crime involved. If an individual is denied parole, they may request consideration for a further parole hearing at various intervals.

You may request to give an updated victim impact statement, explaining how the crime continues to affect your life. You are also allowed to send a letter to the Parole Board to be included in the file, or testify by telephone from a local DA’s office, or appear in person at the hearing, which is held in Baton Rouge by the Committee on Parole.

The Governor of every state has the right to commute (to change or shorten) an individual’s prison sentence, or to pardon (or release) an incarcerated individual.

VICTIM IMPACT STATEMENT

At sentencing, you have the right to make a victim impact statement in front of the judge and defendant(s) in the courtroom to express how the crime has affected your (and your family’s) life. This is the only time you have a direct voice in the courtroom.

• This statement is voluntary, meaning you are not forced or obliged to make one, but it is your right to make such a statement if you choose to do so. You can have someone else read it for you, including the DA Victim Witness Coordinator.

You can tell the judge anything you want him or her to know about yourself and/or your loved one and the kind of person your loved one was. You can include photos, memories, hopes and dreams, or any other information about yourself and/or your loved one.

• Keep in mind that the judge will only allow a certain amount of victim impact statements, and they should not be overly long or repetitive of comments made before.

Many victims find it helpful to organize their statement by emotional, physical, and financial effects. You may choose to write a rough draft before completing the final statement, and show it to your ADA and/or DA Victim Witness Coordinator first.

For emotional impact, consider the following:

• How has the crime affected you and those close to you?

• Have your feelings about yourself or your life changed since the crime?

• Have you had suicidal thoughts?

• Has your ability to relate to others, such as family, friends, and coworkers, changed?

• Have you needed to seek out victim services, such as counseling?

If you or another family member were injured, you can tell the court of your physical impacts:

• What physical injuries occurred?

• How long are the injuries expected to last?

• What medical treatment has been received or is expected?

• What changes have you made in your life as a result of these injuries?

• What physical side effects do you have (like insomnia, low energy)?

You may also want to discuss how you have been financially impacted:

• How has this affected your ability to earn a living or your household’s finances?

• Have you lost time from work? Have you had to take time off to go to the doctor or courthouse?

• Have you had to obtain a loan, or mortgage property?

You now have the chance to stand and put a human face to your tragedy. It is a way to restore a sense of control and relieve some of the frustration you have felt. It is also a way to say what has been stored in your heart. It can be strangely healing to have this heard publicly. Speaking on behalf of yourself and/or your loved one can be an extremely empowering experience.

• One example of a powerful impact statement was made by a sexual assault survivor, Chanel Miller (you can read it online, and/or hear her recording of it). Her rapist was given a lenient sentence by the presiding judge, and the resounding outcry led to new legislation regarding sentencing guidelines and also resulted in the judge being recalled from office.

In my situation, I never got to make an impact statement, since the killer died in jail. However, I wrote down what I would want to say to him, and that was also helpful. - Rose