How Courts Work(ABA)美国法院诉讼程序全指引

（来源：美国律师协会网站）

1.Diagram of How a Case Moves Through the Courts

2.Civil and Criminal Cases

The law deals with two kinds of cases. Civil cases involve conflicts between people or institutions such as businesses. A civil case usually begins when a person or organization determines that a problem can’t be solved without the intervention of the courts. In civil cases, one (or more) of these persons or organizations brings suit (i.e., files a complaint in court that begins a lawsuit).

Criminal cases involve enforcing public codes of behavior as embodied in the laws, with the government prosecuting individuals or institutions. In a criminal case, the government brings charges against the person alleged to have committed the crime.

What types of cases are civil? Divorce and related lawsuits (child support, custody, and the like) account for a very large number of civil cases. Cases involving contracts are also frequent. Automobile collisions account for many tort (personal injury) cases, another common kind of civil case. An auto collision gives rise to a civil case if one driver sues the other, or if a passenger in one of the cars sues either driver. An auto collision might also lead to a criminal case, if it involves allegations of a crime such as drunken driving or leaving the scene of an accident.

In many parts of the world, civil and criminal legal actions are combined into one case, but in our country they are not. If there are serious civil and criminal aspects of an event, there will be two (or more) distinct cases. An example would be a crime leading to a criminal trial of the defendant, with the victims filing a separate civil suit against the defendant to recover damages caused by the crime.

3.Settling Cases

Relatively few lawsuits ever go through the full range of procedures and all the way to trial. Most civil cases are settled by mutual agreement between the parties. A dispute can be settled even before a suit is filed. Once a suit is filed, it can be settled before the trial begins, during the trial, while the jury is deliberating, or even after a verdict is rendered.

A settlement doesn’t usually state that anyone was right or wrong in the case, nor does it have to settle the whole case. Part of a dispute can be settled, with the remaining issues left to be resolved by the judge or jury.

Criminal cases are not settled by the parties in quite the same way civil cases are. However, not every case goes to trial. The government may decide to dismiss a case, or be ordered to do so by a court. The defendant may decide to plead guilty, perhaps as a result of negotiations with the government that result in dismissing some of the charges or recommending leniency in sentencing. Plea bargains are a very important and efficient way to resolve criminal cases.

4.Pre-trial Procedures in Civil Cases

Suits begin with the filing of a complaint in the proper court. The person filing the suit is often referred to as the plaintiff ; the person or entity against whom the case is filed is often referred to as the defendant . In some areas of law, such as domestic relations, the person filing the complaint is the petitioner , and the person against whom the case is filed is the respondent.

The complaint states the plaintiff's version of the facts, the legal theory under which the case is brought (negligence, for example), and asks for certain damages or other relief. The plaintiff also files with the court clerk a request that a summons (or notice) be issued to the defendant. In many jurisdictions, the summons will be served by a deputy sheriff or special process server. In other jurisdictions, it may be served by mail. It notifies the defendant that a lawsuit has been filed against him or her.

After being notified, the defendant has a certain period of time to file ananswer admitting or denying the allegations made in the complaint.

5.Jurisdiction and Venue

The plaintiff's lawyer must decide where to file the case. A court has no authority to decide a case unless it has jurisdiction over the person or property involved. To have jurisdiction, a court must have authority over the subject matter of the case and

• the court must be able to exercise control over the defendant,

• or the property involved must be located in the area under the court's control.

The extent of the court's control over persons and property is set by law.

Certain actions are transitory . They can be brought wherever the defendant may be found and served with a summons, and where the jurisdiction has sufficient contact with one of the parties and the incident that gave rise to the suit. An example would be a lawsuit against a business--it would probably be sufficient to file suit in any county in which the business has an operation, and not necessary to file suit in the county where it its headquartered.

Other actions - such as foreclosing on a piece of property - are local. They can be brought only in the county where the subject of the suit is located.

Venue refers to the county or district within a state or the U.S. where the lawsuit is to be tried. The venue of a lawsuit is set by statute, but it can sometimes be changed to another county or district. For example, if a case has received widespread pre-trial publicity, one of the parties may make a motion (request to the judge) for change of venue in an effort to secure jurors who haven’t already formed an opinion about the case. Venue also may be changed for the convenience of witnesses.

6.Pleadings

A lawsuit begins when the person bringing the suit files a complaint. This first step begins what is known as the pleadings stage of the suit. Pleadings are certain formal documents filed with the court that state the parties' basic positions. Common pre-trial pleadings include:

• Complaint (or petition or bill). Probably the most important pleading in a civil case, since by setting out the plaintiff's version of the facts and specifying the damages, it frames the issues of the case. It includes various counts - that is, distinct statements of the plaintiff’s cause of action - highlighting the factual and legal basis of the suit.

• Answer. This statement by the defendant usually explains why the plaintiff should not prevail. It may also offer additional facts, or plead an excuse.

• Reply. Any party in the case may have to file a reply, which is an answer to new allegations raised in pleadings.

• Counterclaim. The defendant may file a counterclaim, which asserts that the plaintiff has injured the defendant in some way, and should pay damages. ("You're suing me? Well then, I'm suing you.") It may be filed separately or as part of the answer. If a counterclaim is filed, the plaintiff must be given the opportunity to respond by filing a reply.

7.Motions

Motions are not pleadings but are requests for the judge to make a legal ruling. Some of the most common pre-trial motions include:

• Motion to Discover. A motion by which one party seeks to gain information from the adverse party.

• Motion to Dismiss. This motion asks the court to dismiss the suit because the suit doesn’t have a legally sound basis, even if all the facts alleged are proven true.

• Motion for Summary Judgment (sometimes called motion for summary disposition). This motion asks the court for a judgment on the merits of the case before the trial. It is properly made where there is no dispute about the facts and only a question of law needs to be decided.

8.Discovery

To begin preparing for trial, both sides engage in discovery . This is the formal process of exchanging information between the parties about the witnesses and evidence they’ll present at trial.

Discovery enables the parties to know before the trial begins what evidence may be presented. It’s designed to prevent "trial by ambush," where one side doesn’t learn of the other side’s evidence or witnesses until the trial, when there’s no time to obtain answering evidence.

One of the most common methods of discovery is to take depositions. Adeposition is an out-of-court statement given under oath by any person involved in the case. It is to be used at trial or in preparation for trial. It may be in the form of a written transcript, a videotape, or both. In most states, either of the parties may take the deposition of the other party, or of any other witness. Both sides have the right to be present during oral depositions.

Depositions enable a party to know in advance what a witness will say at the trial. Depositions can also be taken to obtain the testimony of important witnesses who can’t appear during the trial. In that case, they’re read into evidence at the trial.

Often a witness's deposition will be taken by the opposing side and used to discredit the witness's testimony at trial if the trial testimony varies from the testimony taken during the deposition. (A lawyer might ask a witness at trial, “Are you lying now or were you lying then?”)

Usually depositions consist of an oral examination, followed by cross-examination by the opposing side. In addition to taking depositions, either party may submit written questions, called interrogatories , to the other party and require that they be answered in writing under oath. If one party chooses to use an interrogatory, written questions are sent to the lawyer representing the other side, and that party has a period of time in which to answer.

Other methods of discovery include

• subpoenaing or requiring the other side to produce books, records or other documents for inspection (a subpoena is a written order issued by a court compelling a person to testify or produce certain physical evidence such as records);

• having the other side submit to a physical examination; or

• asking that a document be submitted for examination to determine if it is genuine.

9. Pre-trial Conferences

Judges use pre-trial conferences with lawyers for many purposes. One type of conference gaining popularity is the status conference(sometimes called the early conference). This conference—held after all initial pleadings have been filed—helps the judge manage the case. Judges use it to establish a time frame for concluding all pre-trial activities and may set a tentative trial date at this time.

In some jurisdictions, certain kinds of disputes—such as disagreements over child custody—must be referred to a third party that will try to facilitate a settlement. If the jurisdiction has such court-annexed alternative dispute resolution (for example, arbitration or mediation ), the judge may refer the case to that program at this hearing. Arbitration involves submitting the dispute to a neutral third party who renders a decision after hearing arguments and reviewing evidence. It’s generally quicker and less expensive than a full-fledged trial. In mediation, a third-party mediator who is neutral assists the parties to reach a negotiated settlement of their differences. The mediator uses a variety of techniques to help them come to agreement, but he or she is not empowered to decide the case. Both arbitration and mediation are typically private, so they have the added benefit of helping the parties avoid publicity.

In at least 28 states, court-annexed arbitration or mediation is automatic for many cases, for example, those under a certain dollar amount. Even though these cases must initially be sent to arbitration or mediation, sometimes the losing party in arbitration or mediation may appeal, which sends the case back into the court system.

Judges also use pre-trial conferences to encourage settling cases. At the conference, the judge and the lawyers can review the evidence and clarify the issues in dispute.

If a case hasn’t been settled, many courts set a time for an issue conference. The lawyers usually appear at this hearing before a judge without their clients and try to agree on undisputed facts or points of law. Such agreements are called stipulations . The issue conference can shorten the actual trial time by determining points that don’t need to be proved during the trial. If a settlement doesn’t take place through pre-trial conferences, the judge sets a date for the trial.

10.Pre-trial Procedures in Criminal Cases

Pre-trial procedures in criminal cases follow the general pattern of civil cases, but with important variations.

For one thing, the process is apt to be very different depending on the severity of the crime. In general, the more important the offense, the more elaborate the process. The most serious crimes are felonies , crimes such as robbery, assault with a deadly weapon, and sexual assault, for which the punishment on conviction is imprisonment at least a year, usually in a state or federal penitentiary. Misdemeanors are less serious crimes, such as simple assault, driving while intoxicated, and trespassing, for which punishment on conviction could be a term of incarceration of less than a year, usually in a local jail. Traffic infractions and petty misdemeanors include minor moving violations, parking violations and littering. They’re usually just punished by fines.

11.Bringing the Charge

Criminal charges are brought against a person in one of three ways:

1. Through an indictment voted by a grand jury.

2. Through the filing of an information by the prosecuting attorney (also called the county, district, or state's attorney) alleging that a crime was committed. Sometimes charges are pressed through the filing of a criminal complaint by another individual, which is essentially a petition to the district attorney asking him/her to initiate charges.

3. Through a citation by a police officer for minor traffic offenses and the like. This procedure is usually used for certain petty misdemeanors and other minor criminal matters.

The charge must tell the time, date and place that the criminal act allegedly took place, the alleged involvement of the accused, and the details of the crime itself.

12.Arrest Procedures

When an officer arrests someone, the accused is taken into custody. Similarly, when a grand jury returns an indictment or a prosecutor files an information, a judge or magistrate issues a warrant for the arrest of the person charged if not already under arrest, and the person is taken into custody. (Sometimes, for less serious offenses, defendants are issued citations to appear rather than being arrested.)

• When people are taken into custody, before they are questioned, they must be informed that anything they say may be held against them in a court of law, and that they have the right to remain silent,

• consult with a lawyer before and during questioning, and

• have a lawyer appointed to represent them if they cannot afford one.

They are also told that they can exercise these rights at any time. In some states, there may be variation in this statement for juveniles. For example, juveniles might be warned that if the juvenile court waives jurisdiction over them, then the statements they make can be used against them in a court proceeding in which they will be tried as an adult.

These are often referred to as the Miranda rights because the U.S. Supreme Court ruled in 1966 in Miranda v. Arizona that when law enforcement officers question people taken into custody, the evidence garnered from their interview cannot be used against them unless they have been informed of their constitutional rights to counsel and to remain silent.

If a person has been arrested without a warrant, law enforcement officials may hold him or her for a period of time necessary to handle certain administrative tasks (fingerprinting, checking to see if the person is the subject of any outstanding warrants, etc.) This time may vary depending on the facts of the particular case, but it’s generally quite brief, usually no more than 48 hours. They may not hold the person beyond that time without an initial or first appearance or arraignment before a judge ormagistrate (a public official vested with certain judicial powers in the federal system and the systems of some states).

13.Pre-trial Court Appearances in a Criminal Case

It’s especially difficult to generalize about this subject, since so much depends on a particular state’s procedures, whether it typically uses a grand jury to bring charges, etc. Here’s the procedure used with some variations in many states in which a prosecutor files charges without a grand jury.

Misdemeanors The first step is an initial appearance (often referred to as an arraignment), before a judge of a lower court or magistrate, at which

• The charge is read to the defendant, and penalties explained.

• The defendant is advised of his/her right to trial, and right to trial by jury if desired.

• The right to counsel (legal representation) is explained, and the judge or magistrate appoints a lawyer if the defendant requests one and is found to be indigent (too poor to afford a private lawyer).

• The defendant enters a plea. If counsel has been requested and appointed, or if the defendant indicates that private counsel will be retained, a plea of not guilty is entered. If the defendant enters a not guilty plea, a trial date will be set. If the defendant pleads guilty, either a date will be set for sentencing or the magistrate or judge will impose probation, fines or other sentences immediately. In some cases, the judge or magistrate may allow a defendant to plead nolo contendere , or no contest. In many jurisdictions a plea of no contest is equivalent to a guilty plea, except that the defendant does not directly admit guilt.

• Assuming the defendant has pled not guilty, the judge or magistrate sets the amount of bail .

Felonies The process is quite similar here, except that there is the additional step of the preliminary hearing as an additional safeguard warranted by the more serious nature of the charges.

Step 1

As with misdemeanors, the first step is an initial appearance or an arraignment before a judge of a lower court or magistrate, at which

• The charge is read to the defendant, and penalties explained.

• The defendant is advised of his/her right to a preliminary hearing and the purpose of that procedure, as well as his/her right to trial and right to trial by jury in trial court.

• The right to counsel (legal representation) is explained, and the judge or magistrate appoints a lawyer if the defendant requests one and is found to be indigent (too poor to afford a private lawyer).

• The defendant does NOT enter a plea. The matter is set forpreliminary hearing (hearing to establish if a crime has been committed and if there is probable cause to believe that the defendant committed the offense(s) alleged in complaint).The judge or magistrate sets the amount of bail.

Step 2

The second step is the preliminary hearing, at which:

• The government must demonstrate to a judge or magistrate that there is sufficient evidence, or probable cause, to believe the suspect committed the crime with which he or she is charged.

• Defendants usually must be present at this hearing, although they do not commonly offer evidence in their defense. This procedure has a similar function to grand jury proceedings, in that it is a safeguard against unfettered government action.

• If the court finds there is no probable cause, the matter is dismissed (this would be the equivalent of a grand jury declining to press charges). If this happens, defendants are released.

• If the court finds there is probable cause, the matter is transferred to trial court. Many courts use the term bound over, as "the defendant is bound over to the district or circuit court for trial."

14.Bail

Bail is the amount of money defendants must post to be released from custody until their trial. Bail is not a fine. It is not supposed to be used as punishment. The purpose of bail is simply to ensure that defendants will appear for trial and all pretrial hearings for which they must be present. Bail is returned to defendants when their trial is over, in some states minus a processing fee.

The judge or magistrate decides the amount of bail by weighing many factors:

• the risk of the defendant fleeing,

• the type of crime alleged,

• the "dangerousness" of defendants, and

• the safety of the community.

Sometimes bail is conditioned on certain behavior of the defendant - for example, that he or she have no contact with the alleged victim.

The judge or magistrate may release defendants on their own recognizance (without a payment of money), on the promise that they will appear for all hearings and for trial. This is usually done if defendants have a steady job, roots in the community, or other personal circumstances indicating that they will not flee.

In most, but not all, states, defendants who can’t come up with the amount of their bail may make arrangements for their release through a bail bondsperson. In return for the defendant's putting up a percentage of the total bond, usually 10 percent, the bondsperson will guarantee the remaining amount to the court should the defendant not be present for any court appearance. In many jurisdictions bail bondspeople are becoming obsolete because courts release defendants upon their payment of 10 percent of the bail to the court.

15.Plea Bargaining

Many criminal cases are resolved out of court by having both sides come to an agreement. This process is known as negotiating a plea or plea bargaining. In most jurisdictions it resolves most of the criminal cases filed.

Plea bargaining is prevalent for practical reasons.

• Defendants can avoid the time and cost of defending themselves at trial, the risk of harsher punishment, and the publicity a trial could involve.

• The prosecution saves the time and expense of a lengthy trial.

• Both sides are spared the uncertainty of going to trial.

• The court system is saved the burden of conducting a trial on every crime charged.

Either side may begin negotiations over a proposed plea bargain, though obviously both sides have to agree before one comes to pass. Plea bargaining usually involves the defendant's pleading guilty to a lesser charge, or to only one of several charges. It also may involve a guilty plea as charged, with the prosecution recommending leniency in sentencing. The judge, however, is not bound to follow the prosecution’s recommendation. Many plea bargains are subject to the approval of the court, but some may not be (e.g., prosecutors may be able to drop charges without court approval in exchange for a "guilty" plea to a lesser offense).

Plea bargaining is essentially a private process, but this is changing now that victims rights groups are becoming recognized. Under many victim rights statutes, victims have the right to have input into the plea bargaining process. Usually the details of a plea bargain aren’t known publicly until announced in court.

Other alternatives are also possible in the criminal justice system. Many states encourage diversion programs that remove less serious criminal matters from the full, formal procedures of the justice system. Typically, the defendant will be allowed to consent to probation without having to go through a trial. If he or she successfully completes the probation - e.g., undergoes rehabilitation or makes restitution for the crime - the matter will be expunged (removed) from the records.

16.Civil and Criminal Trials

While there are some differences in civil and criminal trials, the basic courtroom procedure is the same. The remaining topics in this section (see below) discuss this basic procedure, noting the differences where they occur.

17.Officers of the Court

The judge presides in the courtroom. If a case is tried before a jury, the judge rules on points of law and gives instructions to the jury, informing the jury about the law that governs the case. (The jury determines the facts based on the evidence presented.) If there is no jury, the judge determines the facts and decides the verdict - e.g., finding of guilty or not guilty in a criminal case, or a finding for or against the plaintiff in a civil trial.

The court clerk or bailiff usually administers the oath to prospective jurors and to witnesses. The clerk is also in charge of physical exhibits introduced into evidence and is responsible for other administrative aspects of a trial.

The bailiff keeps order in the courtroom, calls the witnesses and is in charge of the jury, as directed by the judge. It is the bailiff's duty to be certain no one attempts to influence the jury.

The court reporter records verbatim (word for word) everything that is said as part of the formal proceedings in the courtroom, including

• the testimony of the witnesses,

• objections made by the lawyers, and

• the judge's rulings on those objections.

In many jurisdictions, audio or audio-visual tapes are used to record the trial in lieu of a court reporter, particularly at the misdemeanor level. In some jurisdictions, both methods are employed, with the reporter’s record used if there is an appeal to a higher court, though occasionally the tapes become part of the record of an appeal.

The lawyers for both sides are also officers of the court. Their job is to represent their clients zealously, within the formal rules of the Code of Professional Conduct. The belief is that justice can best be achieved if each side’s case is vigorously presented by competent legal counsel.

18.The Jury Pool

The trial jury in either a civil or criminal case is chosen from a list called avenire or jury pool that has been compiled by the court. The method of selecting names for the venire varies. In many states the list is compiled from voter registration lists or drivers license lists. (In some jurisdictions, the federal and state courts use the same lists for a given area.) The jury pool is sometimes compiled with the help of jury commissioners appointed by the presiding judge.

Most states require that a court official screen the list of potential jurors to eliminate people unqualified or ineligible under state law. Traditionally many people were exempted from jury duty because their jobs were considered so important to society that they couldn't be released from them for jury duty. These automatic exemptions and excuses are becoming less and less common. In many states they have been sharply cut back or completely eliminated.

19.Selecting the Jury

Juries of six to twelve persons are selected from the jury pool. The size of jury varies from state to state and depends to some extent on the type of case at trial.

• In civil cases, especially in courts of limited jurisdiction, the standard size in many jurisdictions is becoming six, which can be increased by stipulation of both parties.

• In misdemeanor cases there are sometimes fewer than twelve jurors, though in serious criminal cases twelve jurors are generally required.

• The old requirement that juries be unanimous is also changing. In misdemeanor and civil cases particularly, states often provide for verdicts based on the agreement of three-fourths or five-sixths of the jurors.

Alternate jurors are selected in some cases to take the place of jurors who may become ill during the trial. Alternate jurors hear the evidence just as the other jurors do, but they don’t participate in the deliberations unless they replace an original juror.

In many jurisdictions, jury selection begins with the court clerk's calling twelve people on the jury list and asking them to take a place in the jury box. The judge usually makes a brief statement explaining what kind of case is to be tried and inquiring whether there is any reason the potential jurors cannot serve. The judge or the lawyers then ask them questions as to whether they have any knowledge of the case or have had specific experiences that might cause them to be biased or unfair. This questioning of the potential jurors is known as voir dire (to speak the truth).

If either lawyer believes there is information that suggests a juror is prejudiced about the case, he or she can ask the judge to dismiss that juror for cause. For example, a juror can be dismissed for cause if he or she is a close relative of one of the parties or one of the lawyers, or if he or she works for a company that is part of the lawsuit. Each lawyer may request the dismissal of an unlimited number of jurors for cause. Each request will be considered by the judge and may or may not be allowed.

In addition to challenges for cause, each lawyer has a specific number ofperemptory challenges. These challenges permit a lawyer to excuse a potential juror without stating a cause. In effect, they allow a lawyer to dismiss a juror because of a belief that the juror will not serve the best interests of the client. Peremptory challenges are limited to a certain number determined by the kind of lawsuit being tried. They can’t be used to discriminate on the basis of race or sex.

When both parties have agreed upon a jury, the jurors are sworn in to try the case by the court clerk. Those not selected are excused.

Once impaneled, the jurors’ role is to listen to the evidence conscientiously and not draw premature conclusions. They are instructed by the judge not to discuss the case with outsiders or each other (until deliberations). They generally do not have the right to ask questions of witnesses, but some judges permit jurors to submit written questions for the judge and lawyers to consider. (The lawyers have a right to object to these questions, just as they do to questions posed by lawyers during the trial.) If appropriate, the questions may be asked.

20.Opening Statements

The purpose of opening statements by each side is to tell jurors something about the case they will be hearing. The opening statements must be confined to facts that will be proved by the evidence, and cannot be argumentative.

The trial begins with the opening statement of the party with the burden of proof. This is the party that brought the case to court--the government in a criminal prosecution or the plaintiff in a civil case--and has to prove its case in order to prevail. The defense lawyer follows with his or her opening statement. In some states, the defense may reserve its opening statement until the end of the plaintiff's or government's case. Either lawyer may choose not to present an opening statement.

In a criminal trial, the burden of proof rests with the government, which must prove beyond a reasonable doubt that the defendant is guilty. The defendant does not need to prove his or her innocence--the burden is on the government. In a civil trial, the plaintiff has the burden of proof, and generally must prove liability by a preponderance of the evidence (i.e., the greater weight of the evidence.) The degree of proof required in a civil case is far less stringent than in a criminal case. Once again, the defendant does not have to prove that he or she is not liable.

21.Evidence

The heart of the case is the presentation of evidence. There are two types of evidence -- direct and circumstantial.

• Direct evidence usually is that which speaks for itself: eyewitness accounts, a confession, or a weapon.

• Circumstantial evidence usually is that which suggests a fact by implication or inference: the appearance of the scene of a crime, testimony that suggests a connection or link with a crime, physical evidence that suggests criminal activity.

Both kinds of evidence are a part of most trials, with circumstantial evidence probably being used more often than direct. Either kind of evidence can be offered in oral testimony of witnesses or physical exhibits, including fingerprints, test results, and documents. Neither kind of evidence is more valuable than the other.

Strict rules govern the kinds of evidence that may be admitted into a trial, and the presentation of evidence is governed by formal rules.

22.Direct Examination

Lawyers for the plaintiff or the government begin the presentation of evidence by calling witnesses . The questions they ask of the witnesses are direct examination. Direct examination may elicit both direct and circumstantial evidence. Witnesses may testify to matters of fact, and in some instances provide opinions. They also may be called to identify documents, pictures or other items introduced into evidence.

Generally witnesses cannot state opinions or give conclusions unless they are experts or are especially qualified to do so. Witnesses qualified in a particular field as expert witnesses may give their opinion based on the facts in evidence and may give the reason for that opinion.

Lawyers generally may not ask leading questions of their own witnesses. Leading questions are questions that suggest the answers desired, in effect prompting the witness. An example is, "Isn't it true that you saw John waiting across the street before his wife came home?"

Objections may be made by the opposing counsel for many reasons under the rules of evidence, such as to leading questions, questions that call for an opinion or conclusion by a witness, or questions that require an answer based on hearsay.

Most courts require a specific legal reason be given for an objection. Usually, the judge will immediately either sustain or overrule the objection. If the objection is sustained, the lawyer must re-phrase the question in a proper form or ask another question. If the objection is overruled and the witness answers the question, the lawyer who raised the objection may appeal the judge's ruling after the trial is over.

As a handbook for federal jurors points out, AA ruling by the judge does not indicate that the judge is taking sides. He or she is merely saying, in effect, that the law does, or else does not, permit that question to be asked.@ Even if the judge decides every objection against a certain party, he or she is not taking sides or indicating to jurors how they should decide the case.

23.Cross-Examination

When the lawyer for the plaintiff or the government has finished questioning a witness, the lawyer for the defendant may then cross-examine the witness. Cross-examination is generally limited to questioning only on matters that were raised during direct examination. Leading questions may be asked during cross-examination, since the purpose of cross-examination is to test the credibility of statements made during direct examination. Another reason for allowing leading questions is that the witness is usually being questioned by the lawyer who did not originally call him or her, so it is likely that the witness will resist any suggestion that is not true. When a lawyer calls an adverse or hostile witness (a witness whose relationship to the lawyer’s client is such that his testimony is likely to be prejudicial) on direct examination, the lawyer can ask leading questions as on cross-examination.

On cross-examination, the attorney might try to question the witness's ability to identify or recollect or try to impeach the witness or the evidence. Impeach in this sense means to question or reduce the credibility of the witness or evidence. The attorney might do this by trying to show prejudice or bias in the witness, such as his or her relationship or friendship with one of the parties, or his or her interest in the outcome of the case. Witnesses may be asked if they have been convicted of a felony or a crime involving moral turpitude (dishonesty), since this is relevant to their credibility.

Opposing counsel may object to certain questions asked on cross-examination if the questions violate the state's laws on evidence or if they relate to matters not discussed during direct examination.

24.Motion for Directed Verdict/Dismissal

At the conclusion of the plaintiff's or government's evidence, the lawyer will announce that the plaintiff or government rests. Then, when the jury leaves the courtroom, the defendant's lawyer in a civil case has the option of making a motion for a directed verdict, arguing that his or her client's liability has not been proven by a preponderance of the evidence. In a criminal trial, the defendant's lawyer can ask for a motion to dismiss the charges, arguing that the government has failed to prove its case.

In effect, in both kinds of cases, the lawyer asks the judge to direct a verdict for the defendant. The judge will either grant or deny the motion. If it is granted, the case is over and the defendant wins. If the motion is denied, as it usually is, the defense is given the opportunity to present its evidence.

25.Presentation of Evidence by the Defense

The defense lawyer may choose not to present evidence, in the belief that the plaintiff or government did not prove its case. Usually, however, the defense will offer evidence.

In a criminal case, the witnesses presented by the defense may or may not include the defendant. Because the Fifth Amendment to the U.S. Constitution protects against self-incrimination, the prosecution cannot require the defendant to take the stand and explain what happened, nor can it comment or speculate on the reasons the defendant has chosen not to testify. The jury will be instructed not to take into account the fact that the defendant did not testify.

The defense presents evidence in the same manner as the plaintiff or state, and the plaintiff or government in return has the right to cross-examine the defense's witnesses. Re-direct and re-cross examinationalso are permitted.

26.Rebuttal

At the conclusion of the defendant's case, the plaintiff or government can present rebuttal witnesses or evidence to refute evidence presented by the defendant. This may include only evidence not presented in the case initially, or a new witness who contradicts the defendant's witnesses.

27.Final Motions

After all the evidence has been presented and the jury has left the courtroom, either side may move for a directed verdict. If the motion is granted the trial is over; if not, the presentation of evidence is complete and the case is ready to be submitted to the jury.

28.Closing Arguments

The lawyers’ closing arguments or summations discuss the evidence and properly drawn inferences. The lawyers cannot talk about issues outside the case or about evidence that was not presented.

The judge usually indicates to the lawyers before closing arguments begin which instructions he or she intends to give the jury. In their closing arguments the lawyers can comment on the jury instructions and relate them to the evidence.

The lawyer for the plaintiff or government usually goes first. The lawyer sums up and comments on the evidence in the most favorable light for his or her side, showing how it proved what he or she had to prove to prevail in the case.

After that side has made its case, the defense then presents its closing arguments. The defense lawyer usually answers statements made in the plaintiff's or government’s argument, points out defects in their case and sums up the facts favorable to his/her client.

Because the plaintiff or government has the burden of proof, the lawyer for that side is then entitled to make a concluding argument, sometimes called a rebuttal . This is a chance to respond to the defendant’s points and make one final appeal to the jury.

Occasionally the defense may choose not to make a closing statement. If so, the plaintiff or government loses the right to make a second argument.

29.Instructions to the Jury

The judge instructs the jury about the relevant laws that should guide its deliberations. (In some jurisdictions, the court may instruct the jury at any time after the close of evidence. This sometimes occurs before closing arguments.) The judge reads the instructions to the jury. This is commonly referred to as the judge's charge to the jury.

In giving the instructions, the judge will state the issues in the case and define any terms or words that may not be familiar to the jurors. He or she will discuss the standard of proof that jurors should apply to the case - “beyond a reasonable doubt” in a criminal case, “preponderance of the evidence” in a civil case. The judge may read sections of applicable laws.

The judge will advise the jury that it is the sole judge of the facts and of the credibility (believability) of witnesses. He or she will note that the jurors are to base their conclusions on the evidence as presented in the trial, and that the opening and closing arguments of the lawyers are not evidence. Sometimes judges will explain what basic facts are in dispute, and what facts do not matter to the case.

The judge will point out that his or her instructions contain the interpretation of the relevant laws that govern the case, and that jurors are required to adhere to these laws in making their decision, regardless of what the jurors believe the law is or ought to be. In short, the jurors determine the facts and reach a verdict, within the guidelines of the law as determined by the judge.

Many states allow the lawyers to request that certain instructions be given, but the judge makes the final decisions about them. Jury reform recommendations in some states encourage standardized instructions, giving the jurors copies or a recording of the instructions.

30.Mistrials

Mistrials are trials that are not successfully completed. They’re terminated and declared void before the jury returns a verdict or the judge renders his or her decision in a nonjury trial.

Mistrials can occur for many reasons:

• death of a juror or attorney

• an impropriety in the drawing of the jury discovered during the trial

• a fundamental error prejudicial (unfair) to the defendant that cannot be cured by appropriate instructions to the jury (such as the inclusion of highly improper remarks in the prosecutor's summation)

• juror misconduct (e.g., having contacts with one of the parties, considering evidence not presented in the trial, conducting an independent investigation of the matter)

• the jury's inability to reach a verdict because it is hopelessly deadlocked.

Either side may make a motion for a mistrial. The judge will either grant the motion and declare a mistrial, or he or she will not grant the motion and the trial will go on.

31.Jury Deliberations

After receiving the instructions and hearing the final arguments, the jury retires to the jury room to begin deliberating. In most states the first order of business is to elect one of the jurors as the foreperson or presiding juror. This person’s role is to preside over discussions and votes of the jurors, and often to deliver the verdict. The bailiff’s job is to ensure that no one communicates with the jury during deliberations.

In some states, the jury may take the exhibits introduced into the record and the judge's instructions to the jury room. Sometimes the jury will have a question about the evidence or the judge's instructions. If this happens, the jury will give a note to the bailiff to take to the judge. The judge may respond to the note, or may call the jury back into the courtroom for further instructions or to have portions of the transcript read to them. Of course, any communication between the judge and jury should be in the presence of lawyers for each side or with their knowledge.

Usually the court provides the jury with written forms of all possible verdicts, so that when a decision is reached, the jury has only to choose the proper verdict form. In most instances, the verdict in a criminal case must be unanimous. In some states a less than unanimous decision is permitted in civil cases. All federal cases require a unanimous decision.

If the jury cannot come to a decision by the end of the day, the jurors may be sequestered, or housed in a hotel and secluded from all contact with other people, newspapers and news reports. In most cases, though, the jury will be allowed to go home at night. The judge will instruct jurors not to read or view reports of the case in the news. Nor should they consider or discuss the case while outside of the jury room.

If the jurors cannot agree on a verdict, a hung jury results, leading to a mistrial. The case is not decided, and it may be tried again at a later date before a new jury. Or the plaintiff or government may decide not to pursue the case further and there will be no subsequent trial.

32.Verdict

After reaching a decision, the jury notifies the bailiff, who notifies the judge. All of the participants reconvene in the courtroom and the decision is announced. The announcement may be made by either the foreperson or the court clerk.

Possible verdicts in criminal cases are “guilty” or “not guilty.” In a civil suit, the jury will find for the plaintiff or the defendant. If the jury finds for the plaintiff, it will also usually set out the amount the defendant should pay the plaintiff for damages, often after a separate hearing concerning damages. The jury will also make a decision on any counterclaims that may be part of the case.

The lawyer for either party may ask that the jury be polled , although the request usually comes from the losing party. This means each juror will be asked if he or she agrees with the decision, as announced. This is to make sure that the verdict announced is the actual verdict of the jury. After the decision is read and accepted by the court, the jury is dismissed, and the trial is over.

33.Motions after Verdict

Motions permitted after a verdict is announced differ from state to state.

• A motion in arrest of judgment questions the sufficiency of the indictment or information in a criminal case and asks that the judgment not be enforced.

• A motion for judgment notwithstanding the verdict is the equivalent in civil cases to the motion in arrest of judgment. It may be made after the jury's decision is announced but before a judgment is entered. This motion asks the judge to enter a judgment for the losing party despite the decision of the jury.

• A motion for a new trial asks for a new trial to be granted, based on errors committed by the judge during the trial. In some states, the losing party must make a motion for a new trial before filing an appeal.

34.Judgment

The decision of the jury doesn’t take effect until the judge enters ajudgment on the decision - that is, an order that it be filed in public records.

In a civil suit, the judge may have the authority to increase or decrease the amount of damages awarded by the jury, or to make some other modifications before entering judgment. In criminal cases, the judge generally has no authority to modify the verdict. In most jurisdictions, he or she must accept it or reject it (e.g., by granting a motion in arrest of judgment).

If the defendant doesn’t pay the damages awarded to the plaintiff in a civil case, the plaintiff may ask for an execution of the judgment. The clerk of the court in such a case will deliver the execution to the sheriff, commanding him to take and sell the property of the defendant and apply that money to the amount of the judgment.

35.Sentencing

If the defendant is convicted in a criminal case, the judge will set a date for sentencing. Before that time, a pre-sentence investigation will take place to help the judge determine the appropriate sentence from the range of possible sentences set out in the statutes. The pre-sentence investigation may consider the defendant's prior criminal record, family situation, health, work record, and any other relevant factor.

In most states and in the federal courts, only the judge determines the sentence to be imposed. (The main exception is that in most states juries impose sentence in cases where the death penalty is a possibility.) The federal courts and some states have sentencing guidelines to guide judges in determining appropriate sentences and to encourage uniformity.

36.Appeals

A popular misconception is that cases are always appealed. Not often does a losing party have an automatic right of appeal. There usually must be a legal basis for the appeal—an alleged material error in the trial—not just the fact that the losing party didn’t like the verdict.

In a civil case, either party may appeal to a higher court. In a criminal case, only the defendant has a right to an appeal in most states. (Some states give the prosecution a limited right to appeal to determine certain points of law. These appeals usually occur before the actual trial begins. Appeals by the prosecution after a verdict are not normally allowed because of the prohibition in the U. S. Constitution against double jeopardy, or being tried twice for the same crime.)

Criminal defendants convicted in state courts have a further safeguard. After using all of their rights of appeal on the state level, they may file a writ of habeas corpus in the federal courts in an attempt to show that their federal constitutional rights were violated. The right of a federal review imposes the check of the federal courts on abuses that may occur in the state courts.

An appeal is not a retrial or a new trial of the case. The appeals courts do not usually consider new witnesses or new evidence. Appeals in either civil or criminal cases are usually based on arguments that there were errors in the trial’s procedure or errors in the judge's interpretation of the law.

Appeal Procedure

The party appealing is called the appellant, or sometimes the petitioner. The other party is the appellee or the respondent. The appeal is instituted with the filing of a notice of appeal. This filing marks the beginning of the time period within which the appellant must file a brief, a written argument containing that side's view of the facts and the legal arguments upon which they rely in seeking a reversal of the trial court. The appellee then has a specified time to file an answering brief. The appellant may then file a second brief answering the appellee's brief.

Sometimes, appeals courts make their decision only on the basis of the written briefs. Sometimes, they hear oral arguments before deciding a case. Often the court will ask that the case be set for oral argument, or one of the parties will request oral argument. At oral argument, each side's attorney is given a relatively brief opportunity to argue the case to the court, and to answer questions posed by the judges. In the U.S. Supreme Court, for example, an hour is set for oral argument of most cases, which gives each side's lawyers about half an hour to make their oral argument and answer questions. In the federal courts of appeals, the attorneys are often allotted less time than that - 10- or 15-minute arguments are common.

The appellate court determines whether errors occurred in applying the law at the lower court level. It generally will reverse a trial court only for an error of law. Not every error of law, however, is cause for a reversal. Some are harmless errors that did not prejudice the rights of the parties to a fair trial. For example, in a criminal case a higher court may conclude that the trial judge gave a legally improper instruction to the jury, but if the mistake were minor and in the opinion of the appellate court had no bearing on the jury's finding, the appellate court may hold it a harmless error and let a guilty verdict stand. However, an error of law, such as admitting improper evidence, may be determined to be harmful and therefore reversible error.

After a case is orally argued or otherwise presented for judgment, the appeals court judges will meet in conference to discuss the case. Appellate courts often issue written decisions, particularly when the decision deals with a new interpretation of the law, establishes a new precedent, etc. At the conference, one judge will be designated to write an opinion. The opinion may go through several drafts before a majority of the court agrees with it. Judges disagreeing with the majority opinion may issue adissenting opinion. Judges agreeing with the result of a majority decision but disagreeing with the majority's reasoning may file a concurring opinion. Occasionally the appeals court will simply issue an unsigned opinion. These are called per curiam (by the court).

If the appeals court affirms the lower court's judgment, the case ends, unless the losing party appeals to a higher court. The lower court decision also stands if the appeals court simply dismisses the appeal (usually for reasons of jurisdiction).

If the judgment is reversed, the appellate court will usually send the case back to a lower court ( remand it) and order the trial court to take further action. It may order that

• a new trial be held,

• the trial court's judgment be modified or corrected,

• the trial court reconsider the facts, take additional evidence, or consider the case in light of a recent decision by the appellate court.

In a civil case, an appeal doesn’t ordinarily prevent the enforcement of the trial court's judgment. The winning party in the trial court may order the judgment executed. However, the appealing party can file an appeal orsupersedeas bond. The filing of this bond will prevent, or stay, further action on the judgment until the appeal is over by guaranteeing that the appealing party will pay or perform the judgment if it is not reversed on appeal.

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