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TRIALS

Q. My case will be tried before a jury. What does this entail?
A. Jury trials begin with "opening statements" presented to the jury by the lawyer for each party.
The opening statement serves to introduce the jurors to each side's theory of the case and outlines what each side plans to establish during the trial. For example, in a personal injury case, the plaintiff will argue that the defendant owed the plaintiff a legal duty of some sort, that he or she breached that duty, and that, as a result, the plaintiff suffered a financial loss or other injury. The defense, meanwhile, will explain why there is reason to doubt one or more of those elements of the plaintiff's case.

Q. How will the sides present their cases?
A. Through the testimony of witnesses and the introduction of relevant documentary or physical
evidence. The plaintiff will present the testimony of his or her witnesses first. After each witness
for the plaintiff is questioned on "direct examination" by the plaintiff's lawyer, the defendant's
lawyer usually "cross examines" the witness. Cross examination may be followed by "redirect"
examination by the plaintiff's counsel and "re-cross" examination by the defendant's counsel.
When all of the plaintiff's witnesses have testified, the plaintiff rests. If the defendant has raised
any affirmative defenses, he or she will call witnesses for direct examination in an attempt to
establish these defenses. Again, each witness is usually subject to cross-examination and may be subject to redirect and re-cross examination.
Unless the jury is instructed otherwise, all of the witnesses' testimony will be evidence in
the case, as will any documents or other physical evidence that the attorneys were successful in
admitting.

Q. How does a direct examination differ from a cross-examination?
A. Direct examination is conducted by the party calling the witness while cross-examination is
conducted by the opposing party. Direct examination is intended to establish the plaintiff's case or the defendant's defense; cross-examination is intended to undermine or discredit the testimony given under direct examination.

Q. What does it mean for a judge to "sustain" an objection?
A. One of your attorney's duties is to raise an appropriate "objection" to any violation of the rules governing the kinds of evidence the jury can and cannot weigh in deciding a case. When a court "sustains" your attorney's objection, it is telling your opponent's attorney that he or she is
proceeding in violation of applicable procedural law and must correct his or her error. In addition, if an objection is sustained, the answer given is not in evidence and the jury will be instructed by the judge to disregard the answer.
Objections to questions may be "overruled," in which case the answer is in evidence and
may be considered by the jury. However, even if the court overrules your attorney's objection, the objection will now be "preserved" in the written record of your trial and, thus, can be reviewed by an appellate court if you should lose at trial. In many instances, a failure to object at trial can be deemed to "waive" your right to complain about the matter later.

Q. What are the rules of evidence?
A. Taken together, these voluminous and complex rules require fact-finding judges or juries to
base their decisions solely on relevant evidence that has some minimum likelihood of being
reliable. As explained in the criminal justice chapter's discussion of the exclusionary rule in a later section, some evidentiary rules are fashioned to further other important policies, such as protecting civil liberties.

Q. What is the rule against hearsay?
A. Although it is one of the most familiar evidentiary rules, the rule that hearsay is generally
inadmissible at trial is also one of the most complex because it is has so many nuances and
exceptions. The Federal Rules of Evidence define hearsay as "a statement, other than one made by the declarant while testifying at the trial or hearing, offered in evidence to prove the truth of the matter asserted." Two major problems often arise when an attorney raises this rule at trial and asks that the jury not be allowed to hear or consider some statement that the other side wants to introduce.
First, the judge must determine why the party is seeking to introduce the out-of-court
statement. For example, assume that the plaintiff's attorney objects when a defense witness named John testifies that he heard a friend named Bill yell, "Look out! Mark has a gun!" Is John seeking to relate Bill's statement in order to help persuade the jury that Mark did have a gun? If so, the statement may well be inadmissible hearsay. If the defense wants the jury to consider Bill's statement, it will have to put Bill on the stand so that he can be cross-examined about it.
On the other hand, the defense could argue that John is not introducing Bill's statement in
order to prove that Mark really did have a gun, but only to show why the defendant reasonably
thought that Mark was armed. In that case, the statement might not be hearsay because it is not
being offered to prove the truth of the matter in the statement, but only to show that the statement was made or to indicate the defendant's state of mind.

Q. Even if the statement is hearsay, could it be admitted anyway?
A. Actually, it could. For example, one of the many exceptions to the rule against hearsay provides that "excited utterances" may be admissible despite their hearsay nature. The rationale is that a statement is more likely to be truthful if it was made before the speaker would have had any time to think up a falsehood in the immediate aftermath of some exciting event.

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