Criminal Trial

At the trial, the prosecutor must prove to the jury, or to the Judge if it is a bench trial, that the defendant (the person charged with the crime) is guilty beyond a reasonable doubt. This is called the burden of proof. The defendant does not have to offer any proof because a defendant is considered to be innocent until proven guilty. But some defendants offer Evidence and witnesses to support their own defense.

The trial starts with opening statements. Each side, the prosecution and the defense, has a chance to present their side of the story. The prosecutor goes first. Afterwards, the defense can make a statement if they choose to do so.

After the opening statements, the prosecutor tries to meet their burden of proof by having witnesses testify and by submitting evidence. After the prosecution presents its case, the defense may, if it chooses to do so, call their own witnesses and offer evidence in support their defense. Once the defense finishes presenting their facts, the prosecutor has a chance to put on witnesses and evidence to try to disprove the defense.

Everyone who testifies must swear (affirm) to tell the truth. This is called testifying under oath. Both the defense and the prosecutor will have a turn to ask questions to every witness who testifies.

At the end of the trial, the defense may make a closing statement, which is called a summation. Afterwards, the prosecutor makes their own closing statement. Then the jury or Judge makes a final decision, which is called a verdict.


Jury Trial

A defendant charged with a crime has a right to a trial by jury for all Class A misdemeanors and felony cases. The defendant may give up that right and ask the Judge to make the decision of guilt or innocence, without a jury. This is called a bench trial or a non-jury trial.

Outside New York City, defendants have a right to a jury trial for all class B misdemeanors. In New York City, defendants do not have a right to a jury trial for class B misdemeanors.

Throughout New York State, when a person is charged with murder in the first degree, the case must be presented to a jury, as the defendant is not allowed to waive, or give up, their right to a jury trial.

Jurors are chosen from members of the community who are serving jury duty.

  • For felony charges, there must be twelve jurors and up to 6 alternates chosen .
  • For misdemeanor charges, there must only be 6 jurors and up to 4 alternates chosen.

The Judge, defense lawyer and the prosecutor will question the jurors. This is called voir dire. Both the defense lawyer and prosecutor can object to and seek to remove, or get rid of, some of the jurors.

For more information about serving jury duty, read the Trial Juror’s Handbook.


The Decision

In a jury trial, after all the testimony has been heard and all the evidence has been presented, the Jury is given instructions on the law by the Judge. The jury then goes to the jury room to deliberate, which means to look at and review all the evidence and testimony. The jury tries to make a decision on whether the defendant is guilty or innocent, which is called reaching a verdict. The verdict must be unanimous, meaning every juror must agree on the verdict. If they can’t all agree, this is called a hung jury, and the Judge will have to declare a mistrial. A mistrial does not mean that the case is over. After a mistrial, the prosecutor can choose to try the case again.

In both a jury trial or a bench trial, the defendant may be found not guilty, which is called being acquitted. The defendant must be released from custody, and the record of the case will be sealed and will not be listed on a criminal records search. See Sealed Records: Good Result.

If the defendant is found guilty, the Judge will sentence the defendant. There are several types of sentences, ranging from fines to jail time. The Judge may deliver the sentence right away or may pick a date in the future to deliver the sentence. Learn more about Sentencing.

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