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A judicial examination and determination of facts and legal issues arising between parties to a civil or criminal action.

In the United States, the trial is the principal method for resolving legal disputes that parties cannot settle by themselves or through less formal methods. The chief purpose of a trial is to secure fair and impartial administration of justice between the parties to the action. A trial seeks to ascertain the truth of the matters in issue between the parties and to apply the law to those matters. Also, a trial provides a final legal determination of the dispute between the parties.

The two main types of trials are civil trials and criminal trials. Civil trials resolve civil actions, which are brought to enforce, redress, or protect private rights. In general, all types of actions other than criminal actions are civil actions. In a criminal trial, a person charged with a crime is found guilty or not guilty and sentenced. The government brings a criminal action on behalf of the citizens to punish an infraction of criminal laws.

The cornerstone of the legal system in the United States is the jury trial. Many of the opinions of the U.S. Supreme Court, which set forth the law of the land, are based on the issues and disputes raised in jury trials. The jury trial method of resolving disputes is premised on the belief that justice is best achieved by pitting the parties against each other as adversaries, with each party advocating its own version of the truth. Under the Adversary System, the jury, a group of citizens from the community, decides which facts in dispute are true. A judge presides at the trial and determines and applies the law. At the end of the trial, the judge will enter a judgment that constitutes the decision of the court. The parties must adhere to the judgment of the court.

Not all trials are jury trials. A case may also be tried before a judge. This is known as a court trial or a bench trial. A court trial is basically identical to a jury trial, except the judge decides both the facts and the law applicable to the action. A criminal defendant is always entitled to a trial by jury. Also, common-law civil claims usually are tried by jury. Often, however, actions created by statute may be tried only before the court. In some court trials, the court will have an Advisory Jury. The advisory jury observes the proceedings just as an ordinary jury would, but the judge need not accept the advisory jury's verdict.

Historical Background

Jury trials were introduced in the Massachusetts Bay Colony, in 1628, because King James of England declared that certain crimes in the colonies were to be tried before juries. In early civil trials, the parties could choose, by mutual consent, a jury or court trial. Criminal defendants could also choose a jury or court trial. By the late 1600s, several colonies were holding jury trials, but jury trials were unavailable to many citizens.

During the revolutionary period, many documents noted the importance of jury trials. The colonists feared that they could not get a fair trial before a judge who usually was appointed by the king or his representatives. The First Continental Congress declared, in 1774, that the colonists were entitled to the "great and inestimable privilege of being tried by their peers of the vicinage." The 1775 Declaration of Causes and Necessities and Taking Up Arms specifically noted the deprivation of jury trials as a justification for forcibly resisting English rule. The Declaration of Independence noted that many colonists were not permitted jury trials.

The constitution of Virginia, which is considered the first written constitution of modern republican government, contained a bill of rights providing for a jury of 12 and a unanimous verdict in criminal cases, and trial by jury in civil cases. After several other states adopted similar provisions in their constitutions, the U.S. Constitution was drafted to require trial by jury in criminal cases. Although the Constitution did not provide for jury trials in civil cases, the first Congress incorporated trial by jury in civil cases into the Bill of Rights. Since that time, trial by jury has become universal in the courts of the United States, although juries are not used in all cases.

Pretrial Matters

Technically, a trial begins after the preliminary matters in the action have been resolved and the jury or court is ready to begin the examination of the facts. The trial ends when the examination is completed and a judgment can be entered. The trial of a jury case ends on the formal acceptance and recording of a verdict decisive of the entire action. Before the trial may begin, however, certain preliminary matters must be resolved.

Venue Venue refers to the particular county or city in which a court with jurisdiction may conduct a trial. The proper venue for most trials is the city or county in which the injury in dispute allegedly occurred or where the parties reside. Venue may, however, be changed to a different jurisdiction. Sometimes the proper venue for a trial is difficult to determine, such as in cases involving multinational corporations or class actions involving plaintiffs from many different states. The venue for a criminal trial can change if a defendant persuades the trial court that he cannot obtain a fair trial in that venue. For example, a defendant may request a change of venue because he feels that extensive pre-trial publicity has prejudiced the public.

Pretrial Motions and Conference Motions may be made by the parties at any time prior to trial and may have a significant impact on the case. For example, in a criminal case, the trial judge might rule that the primary piece of incriminating evidence is not admissible in court. In a civil case, the judge might grant Summary Judgment, which means that no significant facts are in dispute and judgment may be entered without the need for a trial. Before the trial begins, the court holds a pre-trial conference with the parties' attorneys. At the pretrial conference, the parties narrow the issues to be tried and decide on a wide variety of other matters necessary to the disposition of the case.

Public vs. Closed Trials Although most trials are presumptively open to the public, sometimes a court may decide to close a trial. Generally a trial may be closed to the public only to ensure order and dignity in the courtroom or to keep secret sensitive information that will come to light during the trial. Thus, a trial might be closed to the public to protect classified documents, protect trade secrets, avoid intimidation of witnesses, guard the safety of undercover police officers, or protect the identity of a juvenile. Although trials are usually open to the public, most jurisdictions do not permit television cameras or other recording devices in the courtroom. A growing minority of states permits cameras in the courtroom, although the judge still has the discretion to exclude the cameras if he or she feels that their presence will interfere with the trial.

Trial Participants

Judge The judge presides over the court and is the central figure in a trial. It is the presiding judge's responsibility to conduct an orderly trial and to assure the proper administration of justice in his court. The judge decides all legal questions that arise during the trial, controls the presentation of evidence by the parties, instructs the jury, and generally directs every aspect of the trial. The judge must be impartial, and any matter that lends even the appearance of impartiality to the trial may disqualify the judge. Because of his importance, the presiding judge must be present in court from the opening of the trial until its close and must be easily accessible during jury trials while the jury is deliberating on its verdict.

The judge holds a place of honor in the courtroom. The judge sits above the attorneys, the parties, the jury, and the witness stand. Everyone in the courtroom must stand when the judge enters or exits the courtroom. The judge is addressed as "your Honor" or "the Court." In the United States, judges usually wear black robes during trials, which signify the judges' importance. The judge will conduct the trial with dignity. If the judge feels that a person is detracting from the dignity of the proceedings or otherwise disrupting the courtroom, he or she may have the person removed.

A trial judge has broad powers in his courtroom. In general, the presiding judge has discretion on all matters relating to the orderly conduct of a trial, except those matters regulated by rule or statute. The judge controls routine matters such as the time when court convenes and adjourns and the length of a recess. When the parties offer evidence, the judge rules on any legal objections. The judge also instructs the jury on the law after all of the evidence has been submitted.

Although the judge has broad discretion during the trial, his rulings must not be Arbitrary or unfair. Also, the judge must not prejudice the jury against any of the parties. Unless special circumstances are present, however, a party can do little during the trial if it disagrees with a ruling by the judge. The judge's decision is usually final for the duration of the trial, and the party's only recourse is to appeal the judge's decision after the trial has ended.

Parties In a trial, the term party refers to an individual, organization, or government that participates in the trial and has an interest in the trial's outcome. The main parties to a lawsuit are the plaintiff and the defendant. In a civil trial, the plaintiff initiates the lawsuit and seeks a remedy from the court for private civil wrongs allegedly committed by the defendant or defendants. There may be more than one plaintiff in a civil trial if they allege similar wrongs against a common defendant. In a criminal trial, the plaintiff is the government, and the defendant is an individual accused of a crime.

A party in a civil trial may be represented by counsel or may represent himself. Each party has a fundamental right to be present at every critical stage of the proceedings, although this right is not absolute. A party may, however, choose not to attend the trial and be represented in court solely by an attorney. The absence of a party does not deprive the court of jurisdiction. The court must afford the parties the opportunity to be present, but if the opportunity is given, a party's absence does not affect the court's right to proceed with the civil trial.

In a criminal trial, the government is represented by an attorney, known as the prosecutor, who seeks to prove the guilt of the defendant. Although a criminal defendant may represent himself during trial, he is entitled to representation by counsel. If a defendant cannot afford an attorney, the court will appoint one for him. A criminal defendant has a constitutional right in most jurisdictions to be present at every critical stage of the trial, from jury selection to sentencing. Also, many court decisions have held that the trial of an accused without his presence at every critical stage of the trial violates his constitutional right to due process. A defendant may waive this right and choose not to attend the trial or portions of the trial.

Jury The jury is a group of citizens who are charged with finding facts and reaching a verdict based on the evidence presented during the trial. The jury renders a verdict decisive of the action by applying the facts to the law, which is explained to the jury by the judge. The jury is chosen from the men and women in the community where the trial is held. The number of jurors required for the trial is set by statute or court rule. Criminal trials usually require 12 jurors, whereas civil trials commonly use six-person juries. Also, alternate jurors are selected in the event that a regular juror becomes unable to serve during the trial. Longer trials require more alternate jurors. The jurors sit in the jury box and observe all of the evidence offered during the trial. After the evidence is offered, the judge instructs the jury on the law, and the jury then begins deliberations, after which it will render a verdict based on the evidence and the judge's instructions on the law. In civil trials, the jury determines whether the defendant is liable for the injuries claimed by the plaintiff. In criminal trials, the jury determines the guilt of the accused.

Attorneys Every party in a trial has the right to be represented by an attorney or attorneys, although a party is free to conduct the trial himself. If a party elects to be represented by an attorney, the court must hear the attorney's arguments; to refuse to hear the attorney would deny the party Due Process of Law. In a criminal trial, the defendant has a right to be represented by an attorney, or attorneys, of his choosing. If the defendant cannot afford an attorney, and the crime is more serious than a petty offense, the court will appoint one for him. An indigent party in a civil lawsuit is generally not entitled to a court-appointed attorney, although a court may appoint an attorney to represent an indigent prisoner in a Civil Rights case.

The attorneys are present in a trial to represent the parties, but they also have a duty to see that the trial is fair and impartial. The trial judge may dismiss an attorney or impose other sanctions for improper conduct. Thus, attorneys must at all times conform their conduct to the law. Attorneys must avoid any conduct that might tend to improperly influence the jury. Also, attorneys' conduct is governed by various ethical rules. Within these bounds, however, the attorney may zealously represent her client and conduct the trial as she sees fit.

Witnesses Witnesses provide the chief means by which evidence is offered in a trial. Through witnesses, a party will attempt to establish the facts that make up the elements of his case. A witness may testify on virtually any matter if the matter is relevant to the issues in the trial and the witness observed or has knowledge of the events to which he is testifying. Witnesses are also used to provide the foundation for documents and other physical evidence. For example, if the state wishes to introduce the defendant's fingerprints from a crime scene in a criminal trial, it must call as a witness the police officer who identified the fingerprints in order for the fingerprints to be admitted as evidence. The police officer would testify that he found the fingerprints at the crime scene and that he determined that the fingerprints matched the defendant's fingerprints.

A witness must testify truthfully. Before giving testimony in a trial, a witness takes an oath or affirmation to tell the truth; a witness who refuses the oath or affirmation will not be permitted to testify. A typical oath states, "I swear to tell the truth, the whole truth and nothing but the truth, so help me God." The exact wording of the oath is not important, however. As long as the judge is satisfied that the witness will tell the truth, the witness may take the witness stand. A witness who testifies falsely commits the crime of perjury.

Virtually anyone may be a witness in a trial. Generally, a person is competent to be a witness in a trial if he is able to perceive, remember, and communicate the events to which he is to testify and understands his obligation to tell the truth. Thus, even a young child may be a witness, as long as the judge is satisfied that the child is able to relate the events to which he will testify and understands that he must tell the truth. Similarly, people with mental disabilities may testify at a trial if they meet the same criteria.

One special type of witness is an expert witness. Normally, a witness may only testify as to what she saw, heard, or otherwise observed. An expert witness, if properly qualified, may offer her opinion on the subject of her expertise. Expert witnesses are used when the subject matter of the witness's testimony is outside the jury's common knowledge or experience. Expert witness testimony is often extremely important in lawsuits. For example, in a criminal trial where the defendant pleads the Insanity Defense, the experts' opinions on whether the defendant was insane at the time of the crime will most likely decide the outcome of the trial.

Support Personnel A number of people may assist the trial judge in conducting the trial. The court reporter, also known as the stenographer, records every word stated during the trial, except where the judge holds a conference off the record. The court reporter prepares an official transcript of the trial if a party requests it. The bailiff is an officer of the court who keeps order in the courtroom, has custody of the jury, and has custody of prisoners who appear in the courtroom. In federal court, u.s. marshals have custody of prisoners who appear in court. A language interpreter is present in a courtroom when a party or witness is unable to speak English. Finally, most judges have a law clerk who assists the judge in conducting research and drafting legal opinions.

Trial Process

Jury Selection Although a trial does not technically begin until after the jury is seated, jury selection, or Voir Dire, is commonly referred to as the first stage of a trial. At the beginning of a trial, the jury is chosen from the jury pool, a group of citizens who have been randomly selected from the community for jury duty. The judge and the attorneys representing the parties question each of the prospective jurors. If a prospective juror is for any reason not able to judge the evidence fairly, he will not be allowed to sit on the jury. This is known as a challenge for cause. A prospective juror may be challenged for conviction of a serious crime, a financial interest in the outcome of the controversy, involvement in another proceeding concerning one of the parties, a business, professional, personal, or family relationship with a party, or any other reason that might indicate bias.

In addition to challenges for cause, the parties' attorneys may issue a certain number of peremptory challenges against prospective jurors. An attorney may use a Peremptory Challenge to keep any prospective juror off the jury even if he has no reason to believe that the prospective juror would judge the trial unfairly. A peremptory challenge may not be based on race, however.Once the jurors and alternate jurors are seated, the judge usually gives the jury preliminary instructions on the law. The purpose of the preliminary instructions is to orient the jurors and explain their duties. Typically, the judge will summarize the jurors' duties, instruct them on how to conduct themselves during recesses, and describe how trials are conducted. The judge may summarize the nature of the Cause of Action and the applicable law. The preliminary instructions usually last only a few minutes.

Opening Statements After the judge gives the preliminary instructions, the attorneys for the parties give their opening statements to the jury. During opening statements, the lawyers outline the issues in the case and tell the jury what they expect the evidence will prove during the trial. The purpose of the Opening Statement is to give a general picture of the facts and issues to help the jury better understand the evidence. The opening statements usually last ten to thirty minutes, although sometimes they are much longer. The judge can limit the time for opening statements.

Usually an attorney will present her opening statement as a story, giving a chronological overview of what happened from the party's viewpoint. Although the attorneys will present the case in the best possible light for their clients, the opening statements should be factual, not argumentative. The opening statements are not evidence, and the attorneys should not offer their opinion of the evidence. Attorneys are not permitted to make statements that cannot be supported by the evidence they expect to present during the trial.

Cases in Chief After the opening statements, the plaintiff, who has the burden of proving his allegations, begins his case in chief, in which he attempts to prove each element of each legal claim alleged in the complaint (civil) or indictment (criminal). After the plaintiff has concluded his case in chief (and assuming the judge does not dismiss the plaintiff's claim for lack of proof), the defendant presents his case in chief. The defendant presents evidence to refute the plaintiff's proof and establish any affirmative defenses. The defendant may also present evidence to support claims he has against the plaintiff (counterclaims) or third parties (cross-claims).

During the case in chief, a party may offer evidence of any type in any order it wishes. Before the evidence may be presented to the jury, however, it must be admitted into evidence by the judge. If a party objects to the admission of any evidence, the judge must rule on the objection. The admission of evidence is governed by the rules of evidence. Each jurisdiction has its own rules of evidence, but the rules in most jurisdictions are patterned after the Federal Rules of Evidence. The rules of evidence are extensive and require hours of study by trial attorneys. If the judge determines that evidence offered by a party is admissible under the rules, she will admit the evidence.

During their cases in chief, the parties have four possible sources of proof: witnesses, exhibits, stipulations, and Judicial Notice. The parties elicit proof from a witness through an examination. The party who calls the witness conducts the initial examination, known as the direct examination. The party's attorney asks the witness questions designed to elicit testimony helpful to his case. After the direct examination is completed, the opposing party may cross-examine the witness. During cross-examination, a party will often attempt to discredit the witness's testimony by questioning the truthfulness of the witness or raising inconsistencies or weaknesses in the witness's testimony. In most jurisdictions a party may only cross-examine the witness about the subjects discussed in the testimony given during the direct examination. The party who originally called the witness may continue to question the witness following the cross-examination. This is known as redirect examination and is usually used to clarify or rebut issues raised during the cross-examination. The other party could then recross-examine the witness concerning the testimony offered during the redirect examination. In some jurisdictions the judge may ask the witness questions, and a few jurisdictions permit the jury to ask the witness questions, usually written questions read by the judge.

Witnesses can offer proof in a variety of ways. Most commonly, a witness will simply describe what she saw, heard, or observed to establish events making up elements of a party's claim. For example, in an Assault and Battery trial, the plaintiff might call a witness to testify that she saw the defendant strike the victim. A witness might be used to establish the foundation for the admission of other evidence, such as business records. Many jurisdictions allow character witnesses. Usually used in criminal cases, character witnesses can offer evidence of specific character traits or evidence of truthfulness or untruthfulness.

Rules of evidence govern the testimony of witnesses. Although the rules are far too extensive to discuss in depth, several rules are important in every trial. Rule 402 states the basic tenet of evidence law: evidence that is relevant to a fact in issue in the trial is admissible, and evidence that is not relevant is not admissible (subject to various exceptions stated in the rules). Virtually any evidence may be excluded from a trial under this rule if the trial judge believes that it will not help prove a fact at issue in the trial. Rule 802 is the Hearsay Rule, which prohibits a witness from testifying about statements made out of court, unless special circumstances apply. Such statements are known as hearsay statements and are thought to be unreliable evidence. Thus, generally, witnesses may only testify about their own knowledge and observations. The Hearsay Rule contains many complicated exceptions, however, and is often criticized as being too rigid and overly complicated.

Although the rules of evidence apply to both criminal and civil trials, certain rules have heightened importance in criminal trials. Rule 609 generally prohibits the admission of evidence that a witness has been previously convicted of a crime when the evidence is used to attack the witness's credibility. Evidence of prior convictions is admissible to attack the credibility of a witness when the prior crime was serious or involved dishonesty or false statement. The judge can still exclude such evidence if a long period of time has passed since the conviction or if the evidence would unduly prejudice the jury. This rule is often important when a criminal defendant with a criminal record is considering whether to testify in his defense. Also, Rule 608 generally prohibits evidence attacking the character of a witness. However, the rule does allow evidence concerning the veracity of the witness. A party may not offer evidence of the truthfulness of a witness, however, unless the other party has questioned the witness's credibility. Finally, although not specifically a rule of evidence, the Fifth Amendment of the U.S. Constitution provides that a witness cannot be compelled to testify if the testimony could lead to the witness's Self-Incrimination.

Besides witnesses, exhibits are the other principal form of evidence in a trial. The four principal types of exhibits are real objects (guns, blood, machinery), items used for demonstration (diagrams, models, maps), writings (contracts, promissory notes, checks, letters), and records (private business and public records). Before an exhibit may be admitted as evidence in a trial, a foundation for its admissibility must be laid. To provide foundation, the party offering the exhibit need only establish that the item is what it purports to be. The foundation for the evidence may come from witness testimony or other methods. As with witness testimony, the admissibility of exhibits is governed by rules of evidence and is within the discretion of the trial judge.

The third type of evidence that the parties may offer during their case in chief is the stipulation. A stipulation is an agreement between the parties that certain facts exist and are not in dispute. Stipulations are shown or read to the jury. The purpose of a stipulation is to make the presentation of undisputed evidence more efficient. For example, the parties might stipulate that an expert witness is an expert in her field so that time is not wasted establishing the witness's credentials.

Judicial notice is the fourth method of offering evidence to the jury. If the judge takes judicial notice of a fact, the fact is assumed true and admitted as evidence. Judges take judicial notice of facts that are commonly known in the jurisdiction where the trial is held (the Empire State Building is in Manhattan) and facts that are easily determined and verified from a reliable source (it rained in Manhattan on May 28, 2001). As with stipulations, the primary purpose of judicial notice is to speed the presentation of evidence that is relevant but not in dispute. When a party finishes offering evidence to the jury, he rests his case.

Rebuttals After the defendant rests her case in chief, and any motions are decided, the plaintiff may introduce evidence that rebuts the defendant's evidence. Rebuttal evidence is usually offered to prove a defense to the defendant's counterclaims or to refute specific evidence introduced by the defendant. Finally, the defendant may rebut evidence offered during the plaintiff's rebuttal case. This is known as the defendant's surrebuttal case.

Motions Although motions might be made on a variety of issues at any moment in a trial, certain important motions are made during virtually every trial. After the plaintiff rests his case in chief, the defendant usually moves for a directed verdict. (This motion has different names in different jurisdictions. In criminal cases, this type of motion is often called a motion for judgment of acquittal. The substance of the motion is the same in virtually every jurisdiction.) A motion for directed verdict asserts that the plaintiff failed to establish a critical element of his claim during his case in chief. If the plaintiff has failed to offer any evidence to support an element of his claim, the judge will enter judgment for the defendant. The defendant need not offer any evidence; the trial is over. For purposes of the motion, the judge will consider all of the plaintiff's evidence in the light most favorable to the plaintiff. For example, the judge will consider all of the testimony offered by the plaintiff's witnesses to be true. Although motions for directed verdict are made in virtually every trial, they seldom are granted.

After the defendant's case in chief, the plaintiff may move for a directed verdict on any of the defendant's affirmative defenses and counterclaims. The motion is identical to a defendant's motion for a directed verdict, except that the judge will consider the defendant's evidence in the light most favorable to the defendant. If the defendant has offered evidence to support all of the elements of her Affirmative Defense or counterclaim, the plaintiff's motion for directed verdict is denied. Finally, either party may make a motion for directed verdict after the close of all evidence. Again the judge considers the evidence in the light least favorable to the party making the motion and decides whether Probative evidence supports the nonmoving party's claims.

Closing Arguments After both sides have rested, the attorneys give their closing arguments. During closing arguments, the attorneys attempt to persuade the jury to render a verdict in their clients' favor. Typically, the attorneys tell the jury what the evidence has proved, how it ties into the jury instructions (which the attorneys and judge agreed upon in a conference held before closing arguments), and why the evidence and the law require a verdict in their favor. Because closing arguments provide the attorneys with their last chance to persuade the jury, the closing arguments often provide the most dramatic moments of a trial. Closing arguments typically last 30 to 60 minutes, although they can take much longer.

In most jurisdictions, the plaintiff argues first and last. That is, the plaintiff argues first, then the defendant argues, and then the plaintiff makes a rebuttal argument. Actually, the party with the Burden of Proof usually argues first and last. This is almost always the plaintiff, but sometimes the only issues remaining for the jury to decide are affirmative defenses or counterclaims raised by the defendant. Also, a few jurisdictions allow only one argument per side, and in a few of these, the defendant argues first, plaintiff last.

Jury Instructions After the attorneys have completed their closing arguments, the judge instructs the jury on the law applicable to the case. In most jurisdictions the judge will both read the instructions and provide written instructions to the jury. A few jurisdictions only read the instructions. The jury will also be given verdict forms. On the verdict form, the jury will indicate how it finds on each of the claims presented during the trial. Sometimes the jury may be given a special verdict form asking how the jury finds on a specific issue of fact or law. The jury instructions normally last ten or 15 minutes, although they may take much longer in complex cases.

Jury Deliberations and Verdict After the judge has finished instructing the jury, the jury retires to the jury room to begin deliberations. At this time the alternate jurors are dismissed, although some jurisdictions allow the alternate jurors to participate in deliberations. The court bailiff brings the exhibits and written instructions to the jury room and safeguards the jury's privacy during deliberations.

It is largely up to the jury to decide how to organize itself and conduct the deliberations. The judge usually only instructs the jurors to select a foreperson to preside over the deliberations and to sign the verdict forms that reflect their decisions. Jurors sometimes have questions during their deliberations. Usually, they write their questions and give them to the bailiff, who takes them to the judge. The judge confers with the attorneys and sends a written response to the jury. A jury might deliberate anywhere from a few minutes to several days.

Usually the jury must reach a unanimous verdict, although majority verdicts are sometimes allowed in civil cases. If the jury tells the judge it cannot reach a verdict, the judge usually gives the jury some further instructions and returns it to the jury room for further deliberations. If the jury still cannot reach a verdict, however, the jury is deadlocked, and a mistrial is declared. The case must then be retried.

Usually, however, the jury reaches a verdict. When the jury reaches a verdict and signs the verdict forms, it notifies the judge that it has reached a decision. The attorneys, if they are not in the courtroom, are called, and everyone returns to the courtroom. The judge asks the foreperson if the jury has reached a verdict. The foreperson responds "yes," and the verdict forms are read aloud, usually by the court clerk. In most jurisdictions the parties may poll the jury by asking each individual juror if he or she agrees with the verdict. Obviously, in a court trial without an advisory jury, there is no jury deliberation or verdict. The judge simply enters a judgment based on the applicable law and his own view of the facts.

Posttrial Motions and Appeal Although a jury trial technically ends when the verdict is read, the attorneys normally file post-trial motions. The losing party often will file a motion for Judgment Notwithstanding the Verdict. This motion asks the judge to set aside the jury's verdict as manifestly against the weight of the evidence presented at the trial and to enter judgment for the moving party instead. This motion is not applicable to a court trial. Also, the losing party will often move for a new trial, claiming that errors made during the trial by the judge require the case to be retried. Usually the judge will conduct a hearing on post-trial motions.

After the judge decides the post-trial motions, she enters judgment in accordance with the jury verdict and the post-trial motions. Once the judge enters the judgment, the court loses jurisdiction, and the case ends in the trial court. If the losing party still believes that errors in the trial caused an incorrect judgment, it may appeal to an appellate court. The appellate court may agree and order a new trial, in which case the trial process begins anew.

Further readings

Mauet, Thomas A. 1992. Fundamentals of Trial Techniques. Boston: Little, Brown.

Singleton, John V. 1988. "Jury Trial: History and Preservation." Trial Lawyer's Guide 32 (fall).


Civil Procedure; Criminal Procedure; Right to Counsel.

West's Encyclopedia of American Law, edition 2. Copyright 2008 The Gale Group, Inc. All rights reserved.


n. the examination of facts and law presided over by a judge (or other magistrate, such as a commissioner or judge pro tem) with authority to hear the matter (jurisdiction). A trial begins with the calling of the parties to come and be heard and selection of a jury if there is a jury. Each party is entitled to an opening statement by his/her attorney (or the party if he/she is representing himself/herself), limited to an outline of what each side intends to prove (the defense may withhold the opening statement until the defense is ready to present evidence), followed by the presentation of evidence first by the plaintiff or prosecution (in a criminal case), followed by the defense evidence, and then by rebuttal evidence by the plaintiff or prosecution to respond to the defense. At the conclusion of all evidence each attorney (plaintiff or prosecution first) can make a final argument which can include opinion and comment on evidence and legal questions. If it is a jury trial, the judge will give the jury a series of instructions as to the law of the case, based on "jury instructions" submitted by the attorneys and approved, rejected, modified and/or added to by the judge. Then the jury retires to the jury room, chooses a foreperson, and decides the factual questions. If there is no jury, the judge will determine legal issues and decide factual questions and render a judgment. A jury will judge the factual issues and decide the verdict based on the law as given in the instructions by the judge. Final verdict or judgment usually concludes the trial, although in some criminal cases a further trial will be held to determine "special circumstances" (acts which will increase the punishment) or whether the death penalty should be imposed. Throughout a trial there may be various motions on legal issues, some of which may be argued in the judge's chambers. In most criminal cases the exact punishment will be determined by the judge at a hearing held at a later time.

Copyright © 1981-2005 by Gerald N. Hill and Kathleen T. Hill. All Right reserved.

TRIAL, practice., The examination before a competent tribunal, according to the laws, of the land, of the facts put in issue in a cause, for the purpose of determining such issue. 4 Mason, 232.
     2. There are various kinds of trial, the most common of which is trial by jury. To insure fairness this mode of trial lust be in public; it is conducted by selecting a jury in the manner prescribed by the local statutes, who must be sworn to try the matter in dispute according to law, and the evidence. Evidence is then given by the party on whom rests the onus probandi or burden of the proof, as the witnesses are called by a party they are questioned by him, and after they have been examined, which is called an examination in chief, they are subject to a cross-examination by the other party as to every part of their testimony. Having examined all his witnesses, the party who supports the affirmative of the issue closes; and the other party then calls his witnesses to explain his case or support his part of the issue these are in the same manner liable to a cross- examination. In case the parties should differ as to what is to be given in evidence, the judge, must decide the matter, and his decision is conclusive upon the parties so far as regards the trial; but, in civil cases, a bill of exceptions (q.v.) way be taken, so that the matter may be examined before another tribunal. When the evidence has been closed, the counsel for the party who supports the affirmative of the issue, then addresses the jury, by recapitulating the evidence and applying the law to the facts, and showing on what particular points he rests his case. The opposite counsel then addresses the jury, enforcing in like manner the facts and the law as applicable to his side of the case; to which the other counsel has a right to reply. It is then the duty of the judge to sum up the evidence and explain to the jury the law applicable to the case this is called his charge. (q.v.) The jurors then retire to deliberate upon their verdict, and, after having agreed upon it, they come into court and deliver it in public. In case they cannot agree they may, in cases of necessity, be discharged: but, it is said, in capital cases they cannot be. Very just and merited encomiums have been bestowed on this mode of trial, particularly in criminal cases. Livingston's Rep. on the Plan of a Penal Code, 13 3 Story, Const. 1773. The learned Duponceau has given beautiful sketch of this tribunal; "twelve invisible judges," said he, "whom the eye of the corrupter cannot see, and the influence of the powerful cannot reach, for they are nowhere to be found, until the moment when the balance of justice being placed in their bands, they hear, weigh, determine, pronounce, and immediately disappear, and are lost in the crowd of their fellow citizens." Address at the opening of the Law Academy at Philadelphia. Vide, generally, 4 Com. Dig. 783; 7 Id. 522; 21 Vin. Ab. 1 Bac. Ab. h.t.; 1 Sell. Pr. 405 4 Bl. Com. ch. 27; Chit. Pr. Index, h.t. 3 Bl. Com. ch. 22; 15 Serg. & R. 61; 22 Vin. Ab. h.t. See Discharge of jury; Jury.
     3. Trial by certificate. By the English law, this is a mode of trial allowed in such cases where the evidence of the person certifying is the only proper criterion of the point in dispute. For, when the fact in question lies out of the cognizance of the court, the judges must rely on the solemn averments or information of persons in such station, as affords them the most clear and complete knowledge of the truth.
     4. As therefore such evidence, if given to a jury, must have been conclusive, the law, to save trouble and circuity, permits the fact to be determined upon such certificate merely. 3 Bl. Com. 333; Steph. Pl. 122.
     5. Trial by the grand assize. This kind of trial is very similar to the common trial by jury. There is only one case in which it appears ever to have been applied, and there it is still in force.
     6. In a writ of right, if the defendant by a particular form of plea appropriate to the purpose, (see the plea, 3 Chitty, 652,) denied the right of the demandant, as claimed, he had the option, till the recent abolition of the extravagant and barbarous method of wager by battel, of either offering battel or putting himself on the grand assize, to try whether he or the demandant "had the greater right." The latter course he may still take; and, if he does, the court award a writ for summoning four knights to make the election of twenty other recognitors. The four knights and twelve of the recognitors so elected, together making a jury of sixteen, constitute what is called the grand assise; and when assembled, they proceed to try the issue, or (as it is called in this case) the mise, upon the question of right. The trial, as in the case of a common jury, may be either at the bar or nisi prius; and if at nisi prius, a nisi prius record is made up; and the proceedings are in either case, in general, the same as where there is a common jury. See Wils. R. 419, 541; 1 Holt's N. P. Rep. 657; 3 Chitty's Pl. 635; 2 Saund. 45 e; 1 Arch. 402. Upon the issue or mise of right, the wager of battel or the grand assise was, till the abolition of the former, and the latter still is, the only legitimate method of trial; and the question cannot be tried by a jury in the common form. 1 B. & P. 192. See 3 Bl. Com. 351.
     7. Trial by inspection or examination. This trial takes place when for the greater expedition of a cause, in some point or issue being either the principal question or arising collaterally out of it, being evidently the object of sense, the judges of the court, upon the testimony of their own senses, shall decide the point in dispute. For where the affirmative or negative of a question is matter of such obvious determination, it is not thought necessary to summon a jury to decide it; who are properly called in to inform the conscience of the court in respect of dubious facts, and, therefore, when the fact, from its nature, must be evident to the court either from ocular demonstration or other irrefragable proof, there the law departs from its usual resort, the verdict of twelve men, and relies ou the judgment alone. For example, if a defendant pleads in abatement of the suit that the plaintiff is dead, and one appears and calls himself the plaintiff, which the defendant denies; in this case the judges shall determine by inspection and examination whether be be the plaintiff or not. 9 Co. 30; 3 Bl. Com. 331; Steph. Pl. 123.
     8. Judges of courts of equity frequently decide facts upon mere inspection. The most familiar examples are those of cases where the plaintiff prays an injunction on an allegation of piracy or infringement of a patent or copyright. 5 Ves. 709; 12 Ves. 270, and the cases there cited. And see 2 Atk. 141; 2 B. & C. 80; 4 Ves. 681; 2 Russ. R. 385; 1 V. & B. 67; Cro. Jac. 230; 1 Dall. 166.
     9. Trial by the record. This trial applies to cases where an issue of nul tiel record is joined in any action. If, on one side, a record be asserted to exist, and the opposite party deny its existence, under the form of traverse, that there is no such record remaining in court, as alleged, and issue be joined thereon, this is called an issue of nul tiel record; and the court awards, in such case, a trial by inspection and examination of the record: Upon this the party, affirming its existence, is bound to produce it in court, on a day given for the purpose, and if he fail to do so, judgment is given for his adversary.
     10. The trial by record is not only in use when an issue of this kind happens to arise for decision, but it is the only legitimate mode of trying such issue, and the parties cannot put themselves upon the country. Steph. Pl. 122; 2 Bl. Com. 330.
     11. Trial by wager of battel. In the old English law, this was a barbarous mode of trying facts, among a rude people, founded on the supposition that heaven would always interpose, and give the victory to the champions of truth and innocence. This mode of trial was abolished in England as late as the stat. 59 Geo. III., c. 46, A. D. 1818. It never was in force in the United States. See 8 Bl. Com. 337; 1 Hale's Hist. 188; see a modern case, 1 B. & A. 405.
     12. Trial by wager of law. This mode of trial has fallen into complete disuse; but in point of law, it seems, in England, to be still competent in most cases to which is anciently applied. The most important and best established of these cases, is, the issue of nil debet, arising in action of debt of simple contract, or the issue of non detinet, in an action of detinue. In the declaration in these actions, as in almost all others, the plaintiff concludes by offering his suit (of which the ancient meaning was followers or witnesses, though the words are now retained as mere form,) to prove the truth of his claim. On the other hand, if the defendant, by a plea of nil debet or non detinet, deny the debt or detention, be may conclude by offering to establish the truth of such plea, "against the plaintiff and his suit, in such manner as the court shall direct." Upon this the court awards the wager of law; Co. Ent. 119 a; Lill. Ent. 467; 3 Chit. Pl. 479; and the form of this proceeding, when so awarded, is that the defendant brings into court with him eleven of his neighbors, and for himself, makes oath that he does not owe the debt or detain the property alleged and then the eleven also swear that they believe him to speak the truth; and the defendant is then entitled to judgment. 3 Bl. Com. 343; Steph. Pl. 124. Blackstone compares this mode of trial to the canonical purgation of the catholic clergy, and to the decisory oath of the civil, law. See Oath, decisory.
     13. Trial by witnesses. This species of trial by witnesses, or per testes, is without the intervention of a jury
     14. This is the only method of trial known to the civil law, in which the judge is left to form in his own breast his sentence upon the credit of the witnesses examined; but it is very rarely used in the common law, which prefers the trial by jury in almost every instance.
     15. In England, when a widow brings a writ of dower, and the tenant pleads that the tenant is not dead, this being looked upon as a dilatory plea, is, in favor of the widow, and for greater expedition, allowed to be tried by witnesses examined before the judges; and so, says Finch, shall no other case in our law. Finch's Law, 423. But Sir Edward Coke mentions others: as to try whether the tenant in a real action was duly summoned; or the validity of a challenge to a juror; so that Finch's observation must be confined to the trial of direct and not collateral issues. And in every case, Sir Edward Coke lays it down, that the affirmative must be proved by two witnesses at least. 3 Bl. Com. 336.

A Law Dictionary, Adapted to the Constitution and Laws of the United States. By John Bouvier. Published 1856.
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