If the case cannot be resolved without a trial, both attorneys are then given an opportunity to file motions. Motions, simply put, are “requests” that are made of the court to grant some type of “relief.” This “relief” is usually asking that some part of the State’s evidence be excluded from trial when the case goes to court. Attorneys may seek to exclude a breath or blood test result, field evaluations or a custodial statement made by you after your detention, but before the Miranda advisement (i.e. “You have the right to an attorney; you have the right to remain silent,” etc).
In addition, your attorney will make a motion for the prosecutor to send him or her the “discovery” in your case. Discovery is a generic term that relates to production of evidence that the state intends to present against you in court. An example of “discovery” is a list of the State’s witnesses against you, plus information on how to locate them. Obtaining discovery allows your attorney to be as fully prepared as possible when we enter court so that there won’t be surprises. One of the key aspects of discovery may be a videotape of your arrest, either at the scene, in the station or both. Most prosecutors’ offices in Connecticut follow an “open file” policy from the beginning of the case which allows your attorney to view the police report (some will allow a copy, while others only allow notes to be taken).
Your attorney will then be given oral argument of these motions, which is an important step as it sometimes allows your attorney to attack various aspects of the State’s case prior to trial. The elimination of harmful evidence is the primary purpose and goal of “motions.” There will be no jury involved at the motions hearing, but rather, at a typical motions hearing the judge, your attorney, the prosecutor, the State’s witness (the arresting officer) and yourself would be present.
The judge will hear motions and argument from both sides, then grant or deny the motions, however most judges refuse to hear motions until the day of trial. This practice is not as desirable for you for many reasons, the two most important of which is that it limits your attorney’s time to obtain a transcript of important testimony of the State’s witnesses (commonly used for “impeachment”), and your attorney will have to prepare for both motions and trial, thereby costing a larger attorney fee.
Following the motions hearing is the trial, which can be either a jury trial (a 6-person jury is used in misdemeanor cases) or a bench trial (heard only by the judge). If the case is set down for a trial, there will be a day when you and your attorney will be summoned to begin “jury selection” or “voir dire.” In Connecticut, our Constitution allows for your defense attorney to question each independent potential juror about their knowledge of the case, the witnesses and there general outlook on life.
During this phase, your attorney tries to find the best possible candidates to sit on a jury and side with you. At the same time, the state attorney is looking to find the best possible jurors who will convict you. Depending on the exact charges against you, your lawyer and the state will each have a certain number of “challenges” which allows them to get rid of a potential jurors without having a reason. If your attorney or the State attorney tries to exclude a particular gender or race, however, the judge can stop them if the other side points it out.
Unlike on TV and in the movies, in Connecticut there are not long opening statements. In fact, unless there are unusual circumstances and a judge has approved them, there will be no opening statement in your case. The prosecutor will call the first witness for the state, which is usually the police officer. After the state has asked questions of the first witness, your defense lawyer will be allowed to “cross examine” the witness and this continues until the state has no more witnesses to call.
According to the federal and state constitution, the defense does not have a burden to introduce any evidence. If the defense chooses not to do so, the sides would then make their closing arguments. However most of the time, the defense will call witnesses of their own, at which point the defense attorney will ask questions, and the prosecution will have a chance to cross-examine. After the defense has finished, the State then has a chance to bring in witnesses if they can rebut the evidence of the defense witnesses. If they do not call any, the case proceeds with closing arguments.
During closing arguments, both sides try to convince the jury to either find you guilty or not guilty (depending on the attorney). After closing arguments, the Judge will instruct the jury on the law of the case, and how it is to be applied. Once that is done, the jury is sent to the jury room to deliberate. They elect a foreperson, and discuss the case until the have reached a unanimous verdict, which means that all of the jurors must be in agreement on the verdict. Once a decision has been made, the jury sends a note to the judge in order tell the court that they have come to a decision.
If they cannot agree, the judge may tell them to deliberate again, however if they decide that an unanimous decision cannot be found, the judge declares a mistrial. If the jury can agree, the judge then brings the jury into the courtroom and the clerk of the court asks the foreperson what the verdict is. If the jury finds you “not guilty” then the case is over. If the jury finds that you are guilty, the case will then continue on to sentencing phase.
When appearing for sentencing, which may happen the same day if the case is a misdemeanor, the judge may sentence you to the maximum period of jail time allowable for the crime. Oftentimes prior to sentencing, the judge will order the Probation department to conduct a pre-sentence investigation and report, which serves to provide the judge with a better understanding of whom you are as a person. The probation department may suggest a certain way for the judge to structure the sentence or certain things to include (community service, counseling), however the judge ultimately decides the sentence.
If you are convicted, you are permitted to an appeal, but you must hire a lawyer to represent you for this new phase, which unfortunately is normally a separate fee from your trial fee for your trial lawyer. Many times people simply hire the trial lawyer for the appeal because he or she already has knowledge of the case and has conducted research on the exact issues that will be appealed. The appeal only deals with legal issues, not factual issues, so it is not a retrial. Your lawyer then will review the court transcript to find questionable issues, such as the inclusion of improper evidence by the state or incorrect instruction on the law to the jury by the judge.
The appeal is filed within a few months and then the State is given time to file a brief in opposition. The case is then argued in front of a panel of 3 judges in Hartford, in which witnesses are not presented and a time limit is instituted for both sides. After the case is argued, the judges release a written decision, which either affirms the guilty verdict, or reverses the decision and a retrial begins. In rare circumstances, the reversal will complete the case and there will not be a retrial. If the original decision is affirmed however, your lawyer may appeal for review by the Supreme Court.