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 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. Either lawyer may choose not to present an opening statement.
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.
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.
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.
The heart of the case is the presentation of evidence. There are two types of evidence — direct and circumstantial.
Usually is that which speaks for itself: eyewitness accounts, a confession, or a weapon.
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.
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.
A qualified expert needs to be able to present reliable and credible testimony in order to help the jury better understand the facts at issue. But before the expert delves into the substance of their testimony, the first roadblock must be passed – voir dire. The voir dire process refers to testimony that establishes an expert’s qualifications. Likewise, a voir dire cross-examination by opposing counsel aims to discredit and preclude the expert from testifying. Failing to properly qualify an expert can thwart the testimony before it even begins. So it is vital to establish that the expert is competent in the subject matter at issue.
Overall, the qualifications process is not just a necessary trial procedure. However, it is also a useful tool in establishing the witness’ credibility, reliability, and even likeability in the eyes of the jury. Therefore, rather than perfunctorily going through a list, each question during voir dire should be asked for the ultimate purpose of showing that your expert is not just qualified, but also indisputably correct.
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.