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TRIAL

The main steps in a trial include: selection of a jury; opening statements by the attorneys; presentation of witnesses and evidence (the complaining party always goes first, and the defense next); closing statements by the attorneys; instructions by the judge to the jury; and deliberation and decision by the jury.

The Trial as an Adversary Proceeding. A trial is an adversary proceeding, that is, a contest between opponents. Each party presents evidence and argument. The judge’s function is to control the contest as a neutral referee and to rule on questions of law. The jury’s function is to decide questions of fact.

Burden and Degree of Proof. The fact that a trial is a contest dictates the order in which its events proceed. The initial burden falls on the complaining party – the plaintiff in a civil case, or the state in a criminal case. The complaining party must first establish that party’s case. If the complaining party fails to establish a case, there is nothing for the defendant to refute. Different kinds of cases require different degrees of proof. In most civil cases, the winner is the party whose position is supported by the preponderance of the evidence. This means that the decision must be awarded to the party whose favorable evidence carries greater weight and believability, even if the evidence is only a fraction more weighty and believable than the evidence favoring the other party. Plaintiffs who are seeking an injunction or other extraordinary remedy have a heavier burden of proof. They must establish their case by clear and convincing evidence.

In a criminal case, the state must prove the defendant’s guilt beyond a reasonable doubt. This means that even if a preponderance of the evidence favors the state, and even if the state’s evidence is convincing, the decision must be awarded to the defendant if a reasonable doubt of the defendant’s guilt remains.

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