One thing you need to know right away – the judge rules the courtroom, and what he or she says, goes. Judges have broad discretion to run things the way they see fit.
Each county in Wisconsin has its own set of rules about trials, and the general guidelines judges will follow. You can quickly find the rules for your county at the Wisconsin State Bar website, where you can click on the county and get the rules.
Some trials begin with a pre-trial conference. This is a meeting where the judge and the attorneys meet, at which the judge often sets a time frame for the trial, and a tentative trial date. A person charged with a felony has a right to a preliminary hearing to determine if there is probable cause that a felony was committed. A court commissioner or judge will make the probable cause determination at a defendant’s initial appearance. As a reporter, you are allowed to attend these events, unless the judge has “closed” them. To check to be sure you can attend, call your District Media Coordinator. He or she will know.
The American Bar Association website is most helpful in learning how trials work, and there’s a special section of the site for journalists. There is an explanation of the pre-trial conference and many other aspects of a trial.
Wisconsin has nine classes of felony and three classes of misdemeanor, depending on the severity of the charge. Felonies are classed A through I, with A the most severe, and misdemeanors are classed A through C.
There is a predictable path for most criminal trials. Once the jury has been selected, the judge gives them preliminary instructions, telling them what the state must prove. The judge reminds the jurors that defendants are to be presumed innocent, and will often give a brief talk about some of the legal terms the jurors will hear. The judge will also tell the jurors whether they can take notes or ask questions. The judge may also explain to jurors that from time to time during the course of the trial, there may be sidebar conferences where the attorneys will come right up to the judge’s bench and discuss evidence or legal issues relating to the trial. These sidebars are done so the jury can’t hear them, and as a reporter, you don’t have a right to hear them, either. But – a transcript of the comments can be obtained later from the court reporter, if the judge has allowed the court reporter to take notes. You can usually get this in a day or two.
The lawyers then make opening statements to the jury and next the prosecutor will present the state’s evidence and witnesses. After that, in nearly every criminal trial, the defense will move to have the case dismissed. The reason for this involves legal strategies regarding the defendant’s appellate rights, but don’t be surprised if you’re in court at the end of the state’s presentation and the defense lawyer asks for a dismissal. The judge will dismiss the case only if he or she thinks there’s no credible evidence for the jury to find the defendant guilty. It’s likely the defense attorney will make a similar motion after all the evidence has been presented in the trial.
If the judge doesn’t dismiss the case, the defense then presents its witnesses and evidence. Remember, the defendant is not required to present evidence or to testify, and has a right to be present for all parts of the trial. If the defendant becomes disruptive, the judge may order him or her removed from the courtroom if they don’t heed the judge’s warning.
The trial ends with closing arguments from the attorneys, and final instructions from the judge. A common mistake reporters make is to call the closing arguments “closing statements”, which is incorrect. The prosecuting attorney is allowed to speak first and last, because they have the burden of proof – proving the defendant is guilty.
The jurors then meet to deliberate to determine a verdict. In Wisconsin, the verdict of a jury in a criminal case must be unanimous, whether they decide for or against the defendant.
A word about the verdict: Not guilty does NOT mean “innocent”. It may mean that the jury decided that the state failed to prove its case. No reporter should ever use the word “innocent” in reporting a jury’s verdict. And remember, the defendant is not required to prove that they’re innocent.