14.5 Criminal Trial Practice and Appeals

Criminal trial practice is how the file built in investigation and motions is actually shown to a fact-finder. The PCCE wants the elements of a jury trial, the difference between a cause challenge and a peremptory strike, a hard line between what the attorney says in court and what the paralegal prepares, and an appeals vocabulary that does not invent one national deadline. States vary on jury size in some misdemeanor courts, on how voir dire is conducted, and on post-conviction statutes. Federal-and-general rules below are the default on a silent stem.

Elements of a criminal jury trial

A serious criminal prosecution carries a Sixth Amendment right to an impartial jury. Petty offenses (generally those with a maximum authorized sentence of six months or less) may be tried to the court. In federal felony trials the petit jury is twelve, and the verdict must be unanimous. Ramos v. Louisiana requires unanimity for serious criminal convictions in state court as well. Some states use smaller juries for lesser offenses; do not import a six-person civil jury into a federal felony stem.

The working sequence a paralegal tracks:

1. Pretrial preparation — trial notebook, witness folders, exhibit list, proposed instructions, motions in limine already ruled or renewed.
2. Voir dire / jury selection.
3. Opening statements (attorney).
4. Prosecution case-in-chief — direct examination, exhibits, then defense cross-examination.
5. Defense case, if one is presented; the defendant may testify or remain silent without comment on that silence.
6. Rebuttal as allowed.
7. Closing arguments (attorney).
8. Jury instructions and deliberations; the jury may be sequestered.
9. Verdict.
10. Sentencing hearing (often a later date), then judgment.

A bench trial skips the jury but still uses openings, evidence, and closings. A defendant may waive a jury if the waiver is knowing and the jurisdiction's rules (sometimes including the government's or the court's consent) are met.

Voir dire and jury challenges

Voir dire is the questioning of prospective jurors for bias, relationship to the parties or witnesses, pretrial publicity, and views that would prevent following the court's instructions. The judge, the attorneys, or both may ask questions; local practice controls the split.

Two challenge labels:

• A challenge for cause requires a legal disqualification — actual bias, a statutory disqualification, or an inability to be fair. Cause challenges are not numbered in a small fixed allotment; if bias is shown, the juror should come off.
• A peremptory challenge needs no reason, but the number is limited by rule or statute, and it cannot be used to discriminate on race (Batson v. Kentucky) or sex (J.E.B. v. Alabama). A Batson objection shifts a three-step showing: a prima facie pattern, a race-neutral explanation, and the court's decision on pretext.

Exam tell. Cause is bias or a legal bar. Peremptory is a limited no-reason strike that still cannot be a racial or sex classification.

What the attorney does; what the paralegal does

Opening statement previews the evidence. It is not argument and not evidence. Closing argument asks the fact-finder to draw inferences; it still may not misstate the record or comment on the defendant's silence. Both are attorney functions. A paralegal who delivers an opening is in unauthorized-practice territory.

Direct examination is the questioning of a party's own witness, ordinarily with nonleading questions (except for preliminaries, hostile witnesses, or other allowed settings). Cross-examination is the other side's questioning, typically leading, and limited to the scope of direct plus credibility unless the court allows a wider inquiry. Redirect and recross follow. The Confrontation Clause is why the accused gets to cross-examine prosecution witnesses.

Exhibits enter through identification, authentication, a relevance showing, and — for physical evidence — a chain of custody. The paralegal pre-marks the exhibit, keeps the list, watches the court's admitted-or-refused ruling, and does not let an unadmitted demonstrative go back to the jury room. Jury instructions are the court's statement of the law, often taken from pattern books plus party requests. A paralegal compares the charge conference draft to the elements sheet so a missing mental-state paragraph is caught before the jury retires.

Sequestration can mean keeping the jury together and away from outside influence during deliberations (or, rarely, for the whole trial), or keeping witnesses out of the courtroom so they do not hear one another. Know which person the stem is sequestering.

A verdict of guilty or not guilty ends the trial phase. A hung jury produces a mistrial and usually allows retrial. An acquittal is final for that offense in that sovereign. Sentencing is often a separate hearing with a presentence report, victim statements, and argument on statutory factors or guidelines. The judgment is the appealable document, not the courtroom announcement of the verdict alone.

Appeals: deadlines, direct review, collateral review

Notice-of-appeal deadlines vary by jurisdiction. Do not invent one national day count and apply it to every state file. A paralegal looks up the controlling rule the day of judgment. In federal criminal cases, FRAP 4(b) generally gives the defendant fourteen days after entry of the judgment or order appealed from (or after the government's notice of appeal). That is a federal clock, not a fifty-state rule. Missing the deadline is often jurisdictional or near-jurisdictional. Calendar it the same day the judgment hits the docket.

Direct appeal is the first review of the same case in the appellate court: claimed trial error, sufficiency of the evidence, and some sentencing error, on the trial record. The appellate court does not hear new live witnesses as a second jury. Relief can be affirmance, reversal, remand for a new trial, or a limited resentencing.

Habeas corpus and other collateral (post-conviction) remedies are separate civil-style proceedings attacking custody after the direct appeal is over or unavailable. They are not a second direct appeal. They are narrower, often require exhaustion of state remedies, and face procedural-default and limitations rules that vary. Federal habeas after a state conviction is a statutory maze; the PCCE wants the label (collateral / habeas versus direct appeal), not an unpublished day count.

When appointed counsel concludes the appeal is frivolous, counsel does not silently abandon the client. In the Anders framework (and state no-merit analogues), counsel files a brief referring to anything in the record that might support an appeal, asks to withdraw, and the court independently reviews the record. States vary on the exact filing, but the concept is the same: appointed counsel still owes a record-based no-merit procedure.

The paralegal's appellate job is record assembly: the charging instrument, written motions and orders, transcripts of trial and sentencing, exhibits, the judgment, and the notice of appeal. An incomplete transcript is how a meritorious confrontation claim dies. Start the transcript order when the notice is filed, not when someone remembers it a month later.

Discovery contrast: criminal prosecution versus civil practice

Civil discovery under FRCP 26 is party-managed, broad (relevance plus proportionality), and includes depositions, interrogatories, and document requests running in both directions. Criminal discovery is narrower, more statute- and rule-specific, and shaped by the Fifth Amendment. The accused is not a civil deponent. The prosecution, however, carries a constitutional duty to disclose material exculpatory evidence (Brady) and material impeachment of its witnesses (Giglio), whether or not the defense served a document request that used those words. Reciprocal defense disclosure exists but is limited (alibi, insanity, experts). Treat a criminal file that has no Brady log as an incomplete file, not as a civil case that simply skipped interrogatories.

Trap. Openings and closings are not paralegal speaking parts. A peremptory strike is not unlimited and is not immune from Batson. Habeas is not the prosecutor's closing and not a synonym for direct appeal. A fourteen-day FRAP 4(b) clock is federal; repeating it as a national state-court deadline is the error this section exists to prevent.

Term-swap. Voir dire selects the jury. Sequestration isolates jurors or witnesses. Direct appeal uses the trial record in the same case. Collateral review / habeas is a later, separate attack on custody. Anders is appointed-counsel no-merit procedure. Brady is the prosecutor's constitutional disclosure duty, not FRCP 26.