So, you’ve had your final Pretrial Conference and was given a trial date, now what? Well, after all the motions (if any) are heard, your trial will begin. If you have chosen a waiver or judge trial, opening arguments are almost always skipped since they are deemed not necessary with a judge since he or she is familiar with the legal system already. (Usually at this point, the judge already knows at least a little bit about the facts and charges of the case from the Pretrial Conferences and any motions.)
The Commonwealth goes first with their case by presenting witnesses and evidence for consideration. Your attorney will object to certain testimony and evidence if they feel it is not relevant enough to the case to be allowed into your trial. According to Federal Rule of Evidence 401, the test for relevance is whether the evidence has a “tendency to make the existence of any fact that is of consequence to the determination of the action more probable or less probable than it would be without the evidence.” Hence, the judge must look at the “materiality” or the degree of the relationship of the evidence to the facts, and “probative value” or does the evidence make it more or less likely that the disputed fact is true. If the judge rules that the evidence is not relevant than the evidence is obviously not allowed into your trial. (Which evidence is allowed into a trial is much more complicated than this sometimes, but that is beyond the scope of this article.)
After a witness testifies, then your attorney is allowed to cross examine the witness. This is where your attorney gets a chance to really demonstrate his worth since cross examination is the hardest and most important part of most criminal trials. Witnesses usually sound great on “direct examination” since they are only talking about the things that they want to talk about AND no one is challenging what they are saying. But sometimes, after a good cross examination, witnesses sound a lot less credible than they did on direct. Cross examination on television shows and movies are different than in real life often times because the attorneys (actors) say things that are not allowed in a real life trial. Hence, in real life there are generally less “fireworks” during cross examination than on television shows or in the movies. But, that doesn’t mean that they are not very effective sometimes.
After the Commonwealth puts on all their witnesses and evidence, they rest, and the case is turned over to the defense. What happens now will be discussed in the next article.