If the jury cannot reach an unanimous verdict, the judge can declare a mistrial. A mistrial means that the trial concluded without a decision for guilt or innocence.
A mistrial can also occur during the trial if one side violates certain rules of evidence. For example, if a defendant has a past criminal conviction, the prosecutor usually cannot mention it during trial. If the prosecutor improperly brings up the criminal conviction, the judge will probably declare a mistrial.
When a trial ends in a mistrial, the state may usually try the defendant again. However, sometimes a mistrial suggests to the state that they have a weak case, and they will dismiss the charges.
Before trial, the defense lawyer may file a motion to suppress. A motion to suppress is a way to keep out evidence that was obtained by the police in violation of a defendant’s legal rights. For example, a defense attorney may file a motion to suppress if the police seized evidence from the accused without a proper warrant or forced a confession from a defendant. In a DWI prosecution, a defense attorney may file a motion to suppress if the police did not have reasonable suspicion to pull the defendant’s vehicle over for violating a traffic ordinance.
If a defendant is found guilty, a punishment phase to determine the sentence occurs.
In Texas, the judge is the default choice to decide the sentence. However, a defendant has a right to have a jury decide the sentence.
The punishment phase is similar to guilt-innocence in that both sides make opening and closing statements and put on witnesses. The big difference is that almost any information about the defendant can be considered in the punishment phase. The state may prove up the defendant’s prior criminal record, put on witnesses to testify about the defendant’s character, or try to prove that the defendant committed other bad acts. Basically, the state can ask the judge or jury to consider much more information about the defendant—information that would not be allowed into evidence during the guilt-innocence phase.
The process of selecting a jury is known as voir dire. During voir dire, a panel of people will be questioned by both sides about their background, beliefs, and biases. The jury will be selected from this larger panel.
Each side has an unlimited number of challenges for cause. Usually, a challenge for cause is made when one side believes that a prospective juror has a bias against them. For example, a prosecutor in a capital murder trial might challenge a prospective juror who says that she objects to the death penalty because of her religious beliefs. The defense attorney might challenge a prospective juror who says that he believes that any defendant who does not testify is guilty. Such a point of view contradicts the Fifth Amendment of the Constitution.
Each side may make a limited amount of peremptory challenges. A peremptory challenge does not have to be explained. That is, each side can simply strike a certain number of prospective jurors from consideration. The amount of peremptory challenges varies according to the type of trial and the number of defendants.
In the typical felony trial, each side is entitled to ten strikes. In the typical misdemeanor trial, each side is entitled to three strikes.
There is one exception to peremptory strikes. The state may not make strikes based on race. That is, the state may not strike African-American or Hispanic panelists because the defendant is the same race or because the prosecutor believes that minorities are soft on crime. When a defense attorney believes that the prosecutor may have made improper race based strikes, he will make a Batson challenge. A Batson challenge (named after the U.S. Supreme Court case that forbids race based strikes) requires the prosecutor to show that his strikes were not racially motivated.
At the start of the trial, the prosecutor will read the charging instrument to the jury. The prosecution must then make an opening statement. The defense lawyer may make an opening statement or postpone it until later. An opening statement must not contain arguments; rather, the opening statement must only describe the facts that the prosecutor and defense lawyer believe the evidence to be presented will show.
After opening statements, the state will present evidence through its witnesses. The defense will have an opportunity to cross-examine the state’s witnesses. After the state finishes its case, the defense may elect to present evidence. After the defense finishes its case, the state can call rebuttal witnesses. The defense can then follow with other rebuttal witnesses.
Once all the testimony is finished, the judge will prepare a jury charge. The charge contains law and instructions to help the jury decide the verdict. The charge is prepared outside the presence of the jury.
The charge is then read to the jury. The prosecutor and the defense counsel then make their closing arguments to the jury. The jury is given a copy of the charge and they decide the verdict in secrecy.