Basic Courtroom Procedure for Georgia, Part 2

The process of a trial is unknown to a great many of my first time clients.  Most clients only know courtroom legal procedures from watching "Law and Order" on TV.  Most of the TV shows will get some of the terminology right, but other than that, it's pure Hollywood.  In Georgia, the following procedures are very likely to occur in most situations.  I hope this is informative for you.  Once again, this is not to be construed as legal advice, unless you and I have entered into a contract for representation. 

How Most People View Court

Pretrial Procedures

• There are a number of things that can happen to a criminal case. It can be dismissed by the prosecutor, you can enter a pretrial intervention program, you can plead guilty, or the case can go to trial. Under certain circumstances your attorney may be able to get your case dismissed via a nolle prosse or dead docket.
• If you're convicted following a trial or if you plead guilty, in addition to facing possible jail time, you may be subject to fines and probation.  If you're not a citizen,  you may also be subject to deportation. If you're convicted of a felony, you may also lose some of your civil rights, such as the right to own a firearm.
• Criminal cases can take a long time to conclude. They depend on the seriousness of the charges, the amount of cases a particular judge has on his calendar, and whether you're going to accept a plea or go to trial. There are "speedy trial rules" governing the amount of time the prosecutor has to be ready for trial, but it is not uncommon for these cases to take 6 to 12 months, or longer, to go to trial.
• Delays can result from any number of reasons; crowded court calendars; busy prosecutors and defense lawyers or delays in getting documents from the prosecutor or police, that your attorney needs in order to prepare for trial. Each case is different and  requires different preparation. There are certain procedures that must be followed. Your lawyer can explain this more fully as it relates to your case. I know the wait can be frustrating, but there's little that can be done to speed things up.
• One of the biggest delays in the system is due to trial preparation. It's far better to have the delay than go to trial without adequate preparation, even if you're in jail. Your attorney will most probably prepare a Motion for Discovery, requiring that the state turn over to the defense all information and documents that the defense would be entitled to regarding your case. The attorney may also consider filing a Motion to Suppress certain evidence on the grounds that it was obtained in violation of your rights. In addition, there are also certain "dismissal" motions that may be considered, where appropriate. There will usually be hearings on the suppression motions.
• If your case is set for trial, there will usually be a pretrial conference scheduled between the prosecutor, the judge and your attorney to discuss your case to see if it can be disposed of without a trial. There will probably be a plea offer by the prosecutor. If the plea is refused, the case proceeds to trial.
• Trial is usually an uphill battle for the defense. The prosecutor normally has better resources, like the police to investigate and get witnesses to cooperate and experts "geared to" strengthening the prosecutor's case. Even if your lawyer has spoken to your witnesses, sometimes it's difficult to get them to cooperate, especially since most people just do not want to get involved.
• The prosecutor also has public opinion on their side. Even though the law says that you're presumed to be innocent, and that the burden of proving your guilt is on the state, jurors do not always understand or follow the law. Unfortunately, nowadays, many prospective jurors have been exposed to crime, either personally or through the media, and tend to presume you're guilty and expect the defense to prove your innocence, especially if you're minority or poor.
• There are several types of hearings, called pretrial hearings, or suppression hearings, that may occur before a trial jury is selected. Not every case has pretrial hearings. It depends on the evidence against you. These hearings are named after landmark cases, such as Miranda v. Arizona, which says that the police have to give you your rights before asking you any questions, IF they intend to use your responses against you in court.  After the hearing, the judge decides whether or not to let the prosecutor use certain evidence against you at trial. If the evidence in question is the only evidence against you, your case may be dismissed if you win the hearing.
• A Jackson-Denno hearing is to suppress statements allegedly made by you to a law enforcement officer, prosecutor or their agents, on the grounds that you were not advised of your constitutional right to remain silent or were forced to make the statement, either by threats or coercion. It is highly unlikely that the police will admit that they failed to read you your rights, or that they threatened you at a Jackson-Denno hearing. They will probably testify that they read you your "Miranda" rights, and deny that they used any force or coercion. Unless you are the pastor of the First Baptist Church, the judge usually believes the police when their version of what happened differs from the defendant's.
• After pretrial hearings are completed, your trial begins at which time a judge or jury listens to evidence and decides if you are guilty or not.
• You are entitled to a jury trial in all felony and misdemeanor cases unless your case is a Municipal Court Violation and there is no corresponding State charge. Even if you're entitled to a jury trial, you may waive that right and be tried by a judge. This decision depends on the specifics of your case and which judge will be conducting the trial.

The Trial

• If you are having a jury trial, the first part would be to select the jury. This is called voir dire. Prospective jurors are brought to the courtroom from the jury panel. The judge explains some general principles of law to them. From that panel, 12 or more at a time, are called into the jury box to be questioned by the judge, the prosecutor and the defense attorney.
• The purpose of the voir dire is to give each side a chance to determine whether or not prospective jurors can be fair. The defense attorney can also use this process as a means of educating prospective jurors about your case.  More often than not, the prosecutor and defense attorney are really looking more for jurors they feel may be sympathetic to their side, and if that doesn’t work, they then look for someone they feel can be fair.
• After each round, the attorneys "challenge" the jurors they do not want. It's more of a process of elimination than one of selection. Each side has a specific number of peremptory challenges depending on the criminal charges. These are challenges that do not require the attorney to give a reason for asking that a potential jury member be dismissed. If either side can show that a potential juror cannot be fair, that juror can be challenged for cause. Challenges for cause are unlimited.
• The final jury selected usually consists of 12 jurors in a felony case and 6 jurors in a misdemeanor case.  Sometimes if the trial will be more than a day, alternates can be chosen in case a juror becomes ill or for any reason, a juror cannot continue to serve.
• After the jury is selected, the judge will explain their duties and warn them not to discuss the case with anyone until it's over.
• When the jury is seated, the prosecutor makes their opening statement in which they tell the jury what they intend to prove during the trial. When the prosecutor is finished, the defense attorney, usually, makes their opening statement. I say usually, because no opening statement from the defense is required. The defense is not obligated to prove anything during the trial. Whether or not your attorney does make an opening statement is a matter of strategy.
• Following opening statements, the prosecutor presents evidence, consisting of testimony from witnesses and exhibits. When the prosecutor questions their witness, it is referred to as "direct examination." When the defense attorney questions that same witness, it is referred to as "cross-examination." You can also have "re-direct" and "re-cross."
• When the prosecutor finishes presenting their case, your attorney can present a defense but, again, it is not required. In some cases, a defense attorney puts on no defense because they feel they have successfully "discredited" the state's case or impeached a number of the state’s witnesses.
• In cases where a defense is presented, a major decision is whether you will testify at trial. Even though the jury is told not to hold it against you if you don't testify, they often do hold it against you. The decision is especially harder if the prosecutor will be allowed to cross-examine you based on a prior criminal record. In any false allegation case, a great deal of the matter will come down to your word against the word of the accuser. In most cases, a jury "demands" that you testify so they have the ability to make up their minds of whether you are or are not guilty. To acquit, a jury usually must hear the accused testify that they are innocent and the jury must believe them.
• When the defense concludes its presentation, the prosecutor may present evidence to rebut something the defense has raised in its case. If this happens, the defense may present evidence to rebut that. When both sides finish presenting their evidence, they rest.
• Following all testimony, the prosecutor and defense attorney give closing arguments. Normally, the prosecutor gives their closing, the defense attorney gives his and then the prosecutor gives a final and brief summation.
• When all closing arguments are complete, the judge explains the law to the jury and sends them out to deliberate until they reach a verdict.
• The jury cannot discuss the case with anyone who is not on the jury and any verdict must be unanimous. If, by some chance, the jury cannot reach a unanimous verdict no matter how long they deliberate, the judge may declare a mistrial based on a "hung jury." If that happens, you can be tried again. If you're acquitted, you cannot be charged or tried again for the same case. There is case law in Georgia that allows in certain cases, the prosecutor and the defense attorney may elect to take a non-unanimous verdict.
• Following a guilty verdict, your attorney may entertain filing motions for a new trial or motions appealing the verdict.
• Also, following a guilty verdict, the accused is sentenced.
• If you're convicted after trial, your lawyer must file a "Notice of Appeal" for you within 30 days of the sentence date to insure your right to appeal. If you're indigent, (without funds), a lawyer will be assigned to do your appeal. Appeals take a long time to be heard. Part of the delay, especially if you're indigent, is the length of time it takes the appeals lawyer to get the trial transcript. Assigned lawyers usually handle a lot of cases, so it usually takes longer for them to get to your case. It sometimes takes years for an appeal to be heard. If you can afford to pay an attorney and can afford to pay for the trial transcript, you can speed up the process. On some occasions, bail is allowed pending your appeal, but most defendants wait in jail until their appeals are heard.
• If the higher court denies the appeal, there are other areas of "post-conviction" relief the accused may consider, such a Petition for Writ of Habeas Corpus.