| Chapter
8
Covering
Criminal Courts
By Maurice
Possley
The Trial
The trial is the main event in a criminal case that does not result in a guilty
plea. Each major step of a trial may generate news. The reporter should be
aware of and report trial strategy, legal issues, and the human drama that
unfolds in court.
There are some basic terms that a reporter needs to understand
to be able to interpret properly what goes on during a trial. The
first and most obvious is the burden of proof required to sustain
a verdict of guilty—proof beyond a reasonable doubt. Essentially,
a reasonable doubt is defined as a doubt that is based upon reason
and common sense. Proof beyond that is proof sufficient that an
individual would be willing to rely and act upon it without hesitation.
It does not mean an absolute certainty. And the burden of proof
is not beyond all doubt.
All defendants are presumed innocent until this burden has been
met, and that cannot be met until evidence has been presented in
court. An indictment or a charge is not evidence of guilt. An opening
statement is not evidence of guilt. A judge in Cook County, Il.,
frequently trips up a prospective juror or two during jury selection
by reading the indictment and explaining the concepts of burden
of proof and presumption of innocence and then asking, “If
you had to vote right now, how would you vote: Guilty or not guilty?” Invariably,
someone says, “Guilty,” prompting a gentle chiding
from the judge. “Of course, that’s wrong,” the
judge says. “You haven’t heard any evidence yet, so
you would have to vote not guilty.” It is a good reminder
not only for prospective jurors, but for all observers in the courtroom,
including reporters.
There will be objections by the prosecution or defense and rulings
by the judge during the course of the trial. A reporter must become
familiar with these objections and the legal reasoning for the
rulings from the bench. Absent this knowledge, a reporter may well
fail to understand the significance of what transpires right in
open court. And this failure frequently translates to a report
that misleads or misinforms the public.
Objections typically made during the course of a trial include
relevance, asking questions that suggest answers to witnesses (also
known as “leading the witness”), or asking questions
beyond the scope of the expertise or knowledge of a witness. There
will be objections to hearsay testimony—that is, testimony
about what a witness has heard about the actions or words of another
person instead of having had a direct conversation with that person
or a personal observation of the person’s actions. Hearsay
testimony may be allowed under certain circumstances. In some instances,
it is allowed not for the truth of the testimony, but to provide
an explanation for the subsequent action taken by the witness.
Before a trial can begin, a decision must be made on whether a
judge or jury will render the verdict. In some jurisdictions, the
defense has the right to request that a judge hear the evidence
and render a decision—a bench trial. In the absence of such
a request, the trials are heard by a jury. Defense lawyers often
say that if they have a case that is strong for the defendant based
on the facts, they will ask for a jury. If the case is bad on the
facts, but strong on the law, they will ask for a bench trial.
Jury selection: This is an often-ignored portion
of a trial because it can be time-consuming and stultifying. However,
the reporter who takes good notes during the selection of a jury
frequently is able to make cogent observations at the conclusion
of a case and have sufficient information to reach out to jurors
after they have left the courthouse following the announcement
of a verdict. This includes whether jurors have served on a jury
before, if they or a relative or friend has been a victim of a
crime, their occupation, or the approximate location of their residence.
Most judges allow the lawyers in a case to ask questions of jurors
during voir dire to determine if they hold any biases against their
clients. However, some judges ask the questions themselves and
others use written questionnaires.
Prosecutors and defense lawyers are allotted a certain number
of peremptory challenges, which are opportunities to dismiss prospective
jurors without giving a reason. However, prosecutors and defense
attorneys are prohibited under the 14th Amendment from using their
strikes to remove a prospective juror based on race, ethnicity,
or gender. If a judge or one of the lawyers feels a lawyer has
used a peremptory strike to eliminate a juror because of their
race, ethnicity, or gender, they may invoke a “Batson challenge,” which
is named after a 1986 Supreme Court case entitled Batson v.
Kentucky. If the judge determines that race, ethnicity, or
gender was the primary reason the juror was struck, that juror
is reinstated. Prospective jurors may also be challenged for cause.
These reasons must be stated and a judge must agree. Reasons for
dismissal for cause include the perceptions that the individual
is biased for one side, appears to not understand the concept of
presumed innocence, or may have a language problem. At a trial
in Chicago many years ago, a prospective juror was asked during
questioning if he understood that an indictment was only a way
of bringing a charge and that the defendant was presumed innocent.
The juror looked at the judge and replied, “I figure he must
have done something wrong or he wouldn’t be here.” That
juror was dismissed for cause.
Sometimes, jury selection—the questioning of prospective
jurors—is conducted in the judge’s chambers. Reporters
should request to be present for these proceedings. The purpose
of conducting selection in that manner is primarily to prevent
prospective jurors from contaminating the entire jury pool during
their questioning—not to suppress the selection process entirely.
It is always good to keep in mind that the U.S. Supreme Court in
1984, in a case entitled Press-Enterprise Co. v. Superior Court,
ruled that all court proceedings are presumed open to the public
and press except under the most extraordinary circumstances. These
circumstances must be articulated before any closure is made. An
example of a limited closure is the selection of anonymous juries,
usually in organized crime prosecutions, and the reason cited is
to protect the safety of the jurors and reduce the chances of jury
tampering. Typically, alternate jurors are selected as well, particularly
when a trial is expected to be lengthy, to replace any regular
jurors who may be dismissed due to illness or other reasons. It
is not advisable to print or broadcast the names of sitting jurors
before the end of a trial—there is no accounting for wacky
individuals who may try to contact them.
Opening statements: Often mistakenly called opening
arguments, these statements to the jury (or the judge in a bench
trial) are supposed to be previews of the evidence. In these opening
statements, prosecutors and defense lawyers provide their views
of what the evidence is expected to show. These statements are
not evidence to be considered by the judge or jurors, but merely
outlines of what each side expects to present. These previews are
valuable to a reporter because they provide a snapshot of the case
that is about to unfold and a preview of the strategies of the
defense and prosecutors.
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