Criminal Trial

At the trial, the prosecutor must prove to the Judge (if it is a bench trial) or jury that you are guilty beyond a reasonable doubt. This is called the burden of proof. You are not required to offer any proof because a defendant is presumed innocent until proven guilty. But some defendants offer Evidence and witnesses to support their defense.

The trial starts with opening statements. The prosecutor goes first and then the defense can make a statement. Next, the prosecutor tries to meet the burden of proof by having witnesses testify and by submitting evidence. If you choose to do so, you then call your witnesses and offer evidence in support of your defense. Then the prosecutor has a chance to put on witnesses and evidence to try to prove that your defense is no good. Everyone who testifies must swear to tell the truth. You and the prosecutor each have a turn to ask each witness questions. At the end of the trial, the defense may make a closing statement called a summation, followed by the prosecutor’s closing statement. Then the Judge or jury makes a decision.

Jury Trial

You have a right to a trial by jury for all Class A misdemeanors and felony cases unless you ask to be tried by a Judge instead. The only exception is murder in the first degree, for which you must be tried by a jury. In New York City, all other misdemeanors and violations are tried by a Judge without a jury. This is called a bench trial. But, outside New York City, you have a right to a jury trial for all Class B misdemeanors.

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

  • If you are charged with a felony, 12 jurors and up to 6 alternates are chosen.
  • If you are charged with lesser crimes, six jurors and up to 4 alternates are chosen.

The Judge, your lawyer and the prosecutor will question the jurors. This is called voir dire. Both attorneys can object to 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 presented and the Jury has been instructed on the law by the Judge, the jury goes to the jury room to deliberate. The jury’s decision is called the verdict. Every juror must agree on the verdict, this means it must be unanimous. If they can’t all agree, this is called a hung jury and the Judge will have to declare a mistrial. After a mistrial, the prosecutor can choose to try the case against you again.

In a jury or bench trial, if you are found not guilty, then you are released. This is called acquitted. The record of the case against you will be sealed and will not be listed on a criminal records search. See Sealed Records: Good Result. If you are found guilty, you will be punished. This is called the sentence. You may be sentenced right away, or a date may be set for sentencing. Learn more about Sentencing.

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