Understanding Legal Procedure
Fanger & Associates LLC, An Ohio Law Firm
Legal procedure defines our rights and obligations as citizens. Legal procedure provides the means for enforcing those rights and obligations, fairly and effectively. It defines where, when, and how legal action is to be started, conducted, and carried to a conclusion.
Where and When Cases Must be Brought
The first procedural questions in any case are: where must the case be filed, and when must the case be filed. These matters are prescribed in the Ohio Constitution, state statutes, and the procedural rules. In general, jurisdiction and venue concern "where" cases must be filed. Statutes of limitations concern "when" cases must be filed. Jurisdiction governs the power of Ohio's courts to deal with different types of civil lawsuits and criminal prosecutions. Venue concerns the location of the particular court where a case must be tried. Statutes of limitations provide time limits for bringing civil lawsuits and criminal prosecutions.
Generally, jurisdiction means the power of a court. Different courts have different powers (See Part II, "The Courts"), and a case can be brought only in a court with authority to deal with it. There are several kinds of jurisdiction. "Subject matter jurisdiction" is the power of a court to deal with particular kinds of cases. "Monetary jurisdiction" is the minimum or maximum dollar limit on civil cases that a particular court can handle. "Territorial jurisdiction" is the geographic extent of a court's power.
A court has territorial jurisdiction over civil cases when the incident or transaction on which the case is based occurred in the court's territory or, in some cases, when the defendant or the plaintiff lives in the court's territory. In criminal cases, a court generally has jurisdiction when the crime, or any essential part or "element" of the crime, occurred in the court's territory.
Whereas jurisdiction refers to the power of a court to try a case, venue refers to the place where it is to be tried. Usually, venue follows territorial jurisdiction in both civil and criminal cases. The reason territorial jurisdiction and venue are tied to the locality where the case arose is that the witnesses and evidence are more readily available, and the trial is thus more likely to be fair. Venue can be changed in criminal cases when the change is necessary to secure a fair trial. A change of venue might be granted, for example, in the trial of a particularly heinous crime where publicity has inflamed local public opinion against the accused.
In order to discourage unreasonable delay in bringing civil lawsuits and criminal prosecutions, statutes of limitations provide time limits for beginning such actions. These time limits begin to run when the right to take legal action arises or when a crime is committed. In general, the unexcused failure to start a case on time bars a court from hearing the case.
Some of the common time limits for starting civil cases are: 21 years to recover real estate; 15 years to sue on written contracts; six years to sue on oral contracts; two years for actions for personal injuries or property damage; and one year for libel, slander, malicious prosecution, false imprisonment, and professional malpractice. Most other types of lawsuits are subject to a four-year limitation.
No time limits are provided for prosecutions for murder because of the seriousness of the offense. Time limits for other criminal cases are: six years for felonies other than murder; two years for misdemeanors other than minor misdemeanors; and six months for minor misdemeanors. (A felony is punishable by a prison term or death; a misdemeanor by a fine or a jail term up to one year, or both; and a minor misdemeanor by a fine not exceeding $100).
How A Civil Case Begins
A civil case begins when the claimant, or plaintiff, files a written statement of her claim (a complaint) in a court. Her opponent, or the defendant, must then be notified of the suit and given an opportunity to answer or challenge the complaint.
The Ohio Rules of Civil Procedure provide that a lawsuit is started by filing a written pleading called a complaint with the proper court. The complaint must contain: (1) a short and plain statement of the claim which shows that the plaintiff is entitled to relief under the law; and (2) a demand (or "prayer") for the kind of relief to which plaintiff believes she is entitled. This "relief" might be payment of a specified amount of money, or a court order directing defendant to do or refrain from doing a certain thing (an "injunction"), or other relief. Different kinds of relief can be requested in the same complaint. If the plaintiff has not specified the damages sought, then at any time 28 days or later after the filing of the complaint, the defendant may request that plaintiff state the amount of damages sought.
The defendant in a lawsuit is entitled to know that he has been sued, and why. Accordingly, when a complaint is filed, a summons is issued to the defendant. The summons tells the defendant who sued him, and when and where he must defend himself. The summons also states that if he does not defend himself, he may lose by default. A copy of the complaint is attached to the summons so that the defendant will know the exact nature of the claim against him. The summons and attached complaint are known as "process." The delivery of the summons and complaint is known as "service of process." Process can be served by delivering it directly to the defendant, leaving it at his home, or sending it to him by certified mail. Other methods of delivery are available in special circumstances. Service of process must be made within six months after the filing of the complaint.
When the defendant is notified he has been sued, he must file an "answer." His answer might deny everything in the complaint, admit some of the plaintiff's claim and deny the rest, or (rarely) admit most or all of the plaintiff's claim. If the defendant feels that he is the injured party, he might answer the plaintiff's suit with a lawsuit of his own, called a "counterclaim." In that case, the plaintiff answers the counterclaim with a pleading called a "reply." Sometimes a plaintiff or defendant may have a claim, ancillary to the main lawsuit, against a co-plaintiff or a co-defendant; this claim is stated in a "cross-claim." The response to a cross-claim is an answer. Sometimes a defendant may file a complaint against a person who is or may be liable to the defendant and who is not a party to the original lawsuit. This complaint is a "third-party complaint." A plaintiff may file a third party complaint when a counterclaim has been filed by a defendant and a person who is or may be liable to the plaintiff is not a party to the original lawsuit.
The parties to any lawsuit can challenge each other's pleadings by means of "motions." (A motion is a written request filed with the court.) For example, the defendant might file a motion to dismiss the complaint because the complaint does not show that the plaintiff is entitled to relief (plaintiff does not have a cause of action). When a complaint or answer is vague, the opposing party can file a motion to make the complaint or answer definite and certain. When a pleading contains irrelevant material, the opposing party can file a motion asking that the irrelevant material be removed. Sometimes the pleadings and additional material filed with the court show that a plaintiff is entitled to relief (or that plaintiff is not entitled to relief), even without a trial and either party (plaintiff or defendant) can file a motion for summary judgment. Similarly, a party can challenge the court's jurisdiction by motion.
The Ohio Rules of Civil Procedure permit the parties to a lawsuit to preserve the testimony of potential witnesses, and to obtain information or evidence from each other, through various methods known collectively as "discovery." The purpose of discovery is to permit all parties to prepare their cases thoroughly. "Depositions" may be taken from parties or witnesses. At a deposition, a party, or witness, is questioned under oath and his answers are recorded by a court reporter. The whole proceeding, questions and answers, is often transcribed into typewritten form. A party may be compelled to answer "interrogatories" (written questions propounded by the other party). A party may compel another party to allow the inspection of evidence and other items. When physical or mental condition is an issue in a case, a party may request the court to order a medical examination. The parties may be required to make various admissions (disclosures) important to the case.
Discovery cannot be used as a "fishing expedition." The court may limit or prohibit a discovery proceeding if it would subject anyone to undue annoyance, embarrassment, or expense.
Many courts require the parties to a civil case to attend a pretrial conference in order to establish the ground rules for the trial and to help conclude the case with the least amount of time and trouble. Many matters may be dealt with at the pretrial conference, including: (1) the possibility of settlement before trial; (2) simplification of the questions to be tried; (3) the listing of expenses and special damages; (4) possible amendments to the pleadings; (5) the exchange of the reports of expert witnesses, medical reports, and hospital records; (6) limiting the number of expert witnesses; and (7) agreement upon certain facts or admission of certain evidence.
Alternative dispute resolution (ADR) is often a pretrial activity. ADR is discussed in some detail in Part V, at "Alternative Dispute Resolution." ADR refers to a broad range of methods or techniques used to settle conflict. For example, negotiation, mediation, arbitration, mini-trials, and summary jury trials are some of the methods or techniques that lawyers, courts, and others use as alternatives to traditional litigation. These methods or techniques are intended to supplement rather than to supplant traditional litigation. The methods and techniques used in ADR offer opportunities to find and use the best method to resolve particular conflicts or types of conflicts. ADR allows speedy, creative, and effective conflict resolution.
Mediation is one method of ADR which is often used by the courts. In mediation, the mediator, or neutral third party, guides the parties through the contested issues. The mediator is a facilitator and not a judge. The mediator attempts to maintain a calm, non-threatening environment which promotes the realistic evaluation of both sides of a conflict and allows the parties to develop a reasonable solution to the conflict.
Some Ohio courts use mediation during the pretrial process to resolve pending cases. Some courts also have pre-filing mediation programs to resolve cases before they are filed. Further, some courts set aside a specific period of time each year where certain kinds of civil cases are set for mediation before volunteer mediators. The mediators (lawyers who volunteer to assist the court) review the cases with the attorneys for the parties and attempt to facilitate settlement. These various programs have assisted the courts' control of their case inventories.
How A Criminal Case Begins
There are four common ways to begin a criminal case: (1) the filing of a complaint by a private citizen; (2) the return of an indictment by a grand jury; (3) in certain cases, a proper arrest without a warrant, followed by the filing of a complaint; and (4) the issuance of a summons or citation.
A criminal case can begin when a person goes to court and files a complaint that another person has committed an offense. The complaint is followed by an arrest warrant or a summons which is served on the defendant by a peace officer. The arrest or service of summons constitutes service of process which, as in civil cases, gives the accused notice of the case against him.
The complaint in a criminal case is a statement of the essential facts constituting the crime charged. It must designate the statute or ordinance which the accused is alleged to have violated. A warrant is executed by arresting the defendant and taking him into custody. An officer can issue a summons in lieu of arrest if it appears the defendant will come to court without being arrested. A summons tells the defendant when and where he must appear in court, and is merely delivered to the defendant without placing him under arrest.
A criminal case can begin with an indictment. Like a complaint, an indictment is an accusation. In general, indictments are accusations of felonious conduct against persons who have already been arrested and referred to the grand jury by a municipal or county court through a process called "preliminary hearing." Grand juries, however, do not have to wait for cases to be referred, but can make direct indictments. When this is done, the indictment begins the case. As in cases begun by filing a complaint, the indictment must be served upon the defendant through a warrant and arrest, or a summons and delivery of the summons.
The grand jury consists of up to 14 citizens (nine jurors and up to five alternates), who have the power to inquire into any offense committed in the county. A grand jury is convened in each county at least every three months. In some larger counties, one or more grand juries may be in continuous session.
An "information" is a substitute for an indictment by a grand jury. It is a formal accusation made by the county prosecutor. Because a person has a constitutional right to indictment by grand jury in serious cases, he can be tried on an information only with his consent. Consequently, informations are used less often than indictments.
A criminal case can begin with an arrest. Under certain circumstances, a person can be arrested without a warrant.
If any person-whether peace officer or private citizen-has probable cause to believe a felony (a serious crime punishable by death or a penitentiary term) has been committed and that a particular suspect committed it, that person may place the suspect under arrest and then file a complaint. This is known as a citizen's arrest.
In cases other than a felony, only law enforcement officers can make an arrest. They can arrest without a warrant for any misdemeanor committed in their presence. They can also arrest without a warrant for misdemeanors if they have reasonable cause to believe a theft offense or offense of violence has been committed and that the suspect committed it.
The law permits arrests without warrants under the foregoing circumstances because in many cases the suspect would flee before a complaint could be filed and a warrant issued.
In any case in which an arrest without a warrant is proper, an officer can issue a summons in lieu of arrest. In traffic cases, or minor misdemeanor cases, the officer can issue a citation in lieu of arrest. (A minor misdemeanor is an offense punishable only by a fine not exceeding $100.) A citation (a traffic ticket is an example) is a form of combined complaint and summons. As a practical matter, a summons or citation in lieu of arrest is usually issued where the offense is relatively minor, the suspect is not disorderly, the suspect does not appear dangerous to himself or others, and it is reasonable to assume that the suspect will come to court when required.
When a person is arrested, or served a summons or citation in lieu of arrest, the arresting officer must file a complaint without delay. Similarly, where a person makes a citizen's arrest, that person must file a complaint without delay. In citation cases, the citation itself is filed because it includes the complaint. Filing the complaint after the arrest (or service of the summons) is necessary because it formally begins the criminal case in the court.
When a person 18 or older is arrested, he or she is usually entitled to be free pending trial provided he can satisfy the court that he will come to all court hearings. An arrested person who qualifies for bail must be given the opportunity to be free on bail as soon as possible. Different guarantees of appearance in court may be required. "Personal recognizance" is the defendant's written promise to appear. An "unsecured appearance bond" is defendant's promise to appear, coupled with his personal, unsecured promise to pay a certain amount of money if he does not appear. A "ten percent bond" is the deposit of ten percent of the face amount of the required bond plus a written promise to forfeit the deposit and the remainder of the bond if defendant fails to appear. For example, if the bond is $2,000, defendant would deposit $200 and promise to forfeit the entire $2,000 if he fails to appear. If defendant appeared throughout the case, 90 percent of the $200 he deposited, or $180 would be returned to him.
Bail may be money or property deposited as security for defendant's appearance in court. Bail can also be in the form of a kind of insurance policy, called a "bail bond." The amount of the appearance bond or bail for any given misdemeanor is usually fixed by the court through a published bail schedule. In such cases, bail can be arranged at the police station without a hearing before a judge. In felony cases, the accused is usually held until the initial appearance, at which time the conditions of his release pending trial are set by the judge. These conditions may include personal recognizance, unsecured appearance bond, or bail plus any other conditions the judge believes are required to insure defendant's appearance in court.
It is important to remember that bail is not a substitute for trial. It was formerly true that some courts, particularly in traffic cases, allowed bail forfeitures and treated them the same as a plea of guilty, waiver of trial, and payment of fine. The Ohio Supreme Court's Rules of Superintendence prohibit this practice.
If a person does not appear as required by his personal recognizance, bond, or bail, he forfeits any deposit, is liable on any promise to pay bail, and is subject to re-arrest and detention until trial. Failure to appear on a personal recognizance not only subjects the accused to re-arrest and detention, but is a separate offense in itself.
When a person is arrested for a felony, he must be given a preliminary hearing without delay. This hearing is held before a municipal court or county court judge. It is not a trial. Its purpose is to look at the evidence against the accused, and determine if it is sufficient to warrant further proceedings. If there is no probable cause to believe any offense was committed, or no probable cause to believe the accused committed the offense (even though an offense was committed by someone), then the case against the accused will be dismissed. If the judge finds probable cause to believe both that a felony was committed and that the accused committed it, she must "bind over the accused" (transfer the accused's case) to the grand jury for further action. If the judge finds the evidence supports only a misdemeanor charge, she will retain the case for trial in her court. If the judge finds there is insufficient evidence of any offense, she will dismiss the charge. The accused can waive preliminary hearing, in which case he is automatically bound over to the grand jury.
When an accused felon is bound over to the grand jury, the evidence against him is examined by the grand jury. If the grand jury finds no probable cause to believe a crime was committed or, if one was committed, that the accused is not the guilty party, then it will return a "no bill." The case is then dismissed. If at least 12 of the grand jury members find probable cause to believe that a crime was committed and that the accused committed it, then the grand jury will return a "true bill." That is, it will return a formal accusation or indictment against the accused. The grand jury may indict for any offense the evidence warrants, regardless of the offense for which the accused was bound over. Even though he was bound over for a felony, the grand jury may indict for a misdemeanor if the evidence supports only a misdemeanor offense. If an indictment is returned, the accused will be held for trial before the common pleas court. If the indictment is for a misdemeanor, the common pleas court may send the case back to the appropriate municipal or county court for trial.
In essence, both the preliminary hearing and the grand jury are screening devices. Their chief purpose is to help insure that no one is made to go through the agony of a trial for his life or liberty except on a reasonably well-grounded accusation. Indictment by grand jury in serious offenses is a right guaranteed by both the United States and the Ohio Constitutions. Preliminary hearing is a right conferred by state statute.
After an accused is indicted, he is brought into court and arraigned. "Arraignment" consists of reading the indictment to him or telling him the nature of the charge, making sure he has a copy of the indictment, and asking him to enter or make a plea to the indictment. If the accused has no attorney, the court must inform him that he has a right to an attorney, and a right to have an attorney provided at state expense if he cannot afford one. He must also be informed of his right to bail, and his right to remain silent. This "reading the rights" must also be done at other stages of the proceedings against the accused, including at the time of his arrest and at the time of the preliminary hearing.
There are several pleas an accused can make. He can plead "not guilty," which means that he denies the charge against him. He can plead "not guilty by reason of insanity." This means that while he may have done the criminal act, he is not subject to criminal liability because of a mental disease or mental defect. He can plead "no contest," which means that he does not admit guilt but does admit the truth of the facts in the accusation (the no contest plea is sometimes used where the accused realizes that a guilty plea could be used against him in a civil suit). Finally, he can plead "guilty," which is an admission that he committed the crime, and has the same effect as a conviction following a trial.
In felony cases, the court will not accept pleas of guilty or no contest unless it is satisfied that the plea is voluntary, that the accused is aware of his rights, and that he fully understands the possible consequences of his plea. In many cases, the accused may plead guilty to a lesser offense than the one with which he is charged as part of a process called "plea bargaining." Plea bargaining is often used in cases where the accused is doubtful about his chances of winning at trial, and hopes to secure better treatment in return for saving the state the time and expense of a trial. If a guilty plea is the result of a plea bargain, the agreement on which the plea is based must be filed with the court or read into the transcript of the proceeding.
Arraignment is usually a separate proceeding in felony cases. In misdemeanor cases, arraignment usually takes place at the beginning of the trial itself, rather than as a separate proceeding before trial.
Unlike civil cases, the defendant in a criminal does not file a written pleading (an answer) in response to the charge; the accused's oral plea to the charge serves the same function. However, when the defendant intends to rely on the defense of "alibi," the defendant must file written notice with the court. In essence, the defense of alibi states, "I wasn't there, so I couldn't have committed the crime."
There are several requests, challenges, and objections which the accused can make by motion. He can ask for a bill of particulars (a more detailed statement of the facts of the alleged offense). He can object that the accusation against him does not properly charge an offense or is otherwise defective. He can ask that the evidence against him be suppressed on the ground that it was obtained in violation of his constitutional rights. Many other defenses, objections, or requests can be made by motion.
The Ohio Rules of Criminal Procedure allow discovery. Criminal discovery is more limited than the discovery in civil cases. Criminal discovery involves various disclosures, including: statements made by the defendant or a codefendant to the police; the defendant's prior criminal record, if any; documents and other tangible evidence; reports of examinations and tests; the names of witnesses; and other matters. The defense must initiate discovery by asking for one or more of the disclosures allowed. When the defense makes such a request, the prosecution acquires a right to ask for corresponding disclosure from the defense. Under certain circumstances the deposition of a witness may be taken. The defendant's deposition cannot be taken because defendants cannot be forced to give testimony. Defendants, and witnesses, have the constitutional right to avoid compulsory self-incrimination.
Pretrial conferences are used in criminal cases for plea negotiations and for basically the same purposes as civil pretrial conferences.
The main steps in a trial include: selection of a jury; opening statements by the attorneys; presentation of witnesses and evidence (the complaining party always goes first, and the defense next); closing arguments by the attorneys; instructions by the judge to the jury; and deliberation and decision by the jury. Civil and criminal trials use essentially the same process.
A trial is an adversary proceeding, that is, a contest between opponents. The judge's function is to control the contest as a neutral referee and to rule on questions of law. The jury's function is to decide questions of fact. Each party presents evidence and argument. See "The Jury and Non-jury Cases" below.
The fact that a trial is a contest dictates the order in which its events proceed. The initial burden falls on the complaining party-the plaintiff in a civil case, or the state in a criminal case. The complaining party must first establish that party's case. If the complaining party fails to establish a case, there is nothing for the defendant to refute. The case ends there. On the other hand, if the complaining party produces evidence which shows that he or she is entitled to the kind of relief or judgment requested, the burden shifts to the defendant. The defendant must refute the complaining party's evidence, explain it, place it in its proper light, or produce his or her own evidence.
Different kinds of cases require different degrees of proof. In most civil cases, the winner is the party whose position is supported by the preponderance of the evidence. This means that the decision must be awarded to the party whose favorable evidence carries greater weight and believability, even if the evidence is only a fraction more weighty and believable than the evidence favoring the other party. Plaintiffs who are seeking an injunction or other extraordinary remedy have a heavier burden of proof. They must establish their case by clear and convincing evidence. This means that the decision must go against them even if their position is established by a preponderance of the evidence.
In a criminal case, the state must prove the defendant's guilt beyond a reasonable doubt. This means that even if a preponderance of the evidence favors the state, and even if the state's evidence is clear and convincing, the decision must be awarded to the defendant if a reasonable doubt of the defendant's guilt remains.
While the right to trial by jury applies in many situations, the right does not apply in all situations. Further, even where there is a right to jury trial, a jury must be requested in most cases. (The jury which actually hears cases is a "petit" [or "petty"] jury. The grand jury does not hear cases; it determines probable cause and issues indictments.)
Persons accused of "minor offenses" (offenses where the maximum penalty is a fine not exceeding $100) are not entitled to a jury trial. Otherwise, juries may be used, but are not automatically provided except in criminal cases involving serious offenses. "Serious offenses" include all felonies and those misdemeanors punishable by more than six months' imprisonment. Even in serious offense cases, the right to a jury can be waived by the defendant. In all other criminal cases the defendant is given a jury trial only if he requests it in writing in advance of the trial. Similarly, juries are not provided in civil cases unless one of the parties makes a written request for a jury in advance of the trial.
When a civil or criminal case is tried without a jury, it is tried to the judge alone. In capital cases-criminal cases in which death is a potential penalty-a three-judge panel tries the case if a jury is waived. When a criminal case is tried to a jury, it consists of 12 jurors in felony cases and eight jurors in misdemeanor cases. In most civil cases the jury usually consists of eight members, although the parties can agree to a lesser number. In Ohio, when a person's property is appropriated for a public purpose (under the government's right of eminent domain), he is entitled to have his compensation determined by a jury of 12, but he can agree to a lesser number of jurors.
Court is opened by the bailiff, a court official who acts as an aid to the judge. Everyone will be asked to stand when the judge enters, and to be seated after the judge is seated. The judge then calls the case by name (Brown v. Green; State v. Blue; etc.) and asks the attorneys for each side if they are ready to proceed. In jury trials, the first step is the selection of the jurors.
The process of choosing jurors is called "voir dire." Potential jurors are interviewed in open court by each of the attorneys. There are two ways of rejecting potential jurors: "challenge for cause" and "peremptory challenge."
Prospective jurors may be challenged for cause for any of a number of specific reasons. Some of the more obvious reasons include that a juror: (1) is a party or witness in the case; (2) is related to a party; (3) has some close personal or business relationship to a party; (4) has already served on a jury in a case involving one or more of the parties; (5) has already formed an opinion or is otherwise biased; (6) is an alcoholic, drug addict, mental incompetent, or convicted felon; (7) does not speak or understand English well enough to follow the proceeding and participate in jury deliberations. There is no limit to the number of prospective jurors who may be challenged for cause. Each time a prospective juror is excused, another will be interviewed.
When each side has run out of challenges for cause, each side may exercise its peremptory challenges. No reason need be given for peremptorily excusing a juror, but each party has only a limited number of peremptory challenges. In criminal cases the number of peremptory challenges allowed each party is six in capital cases, four in all other felony cases, and three in misdemeanor cases. Each party is allowed three peremptory challenges in civil cases. Beginning with the complaining party, each side takes turns exercising its peremptory challenges one at a time. A peremptory challenge is lost when the turn comes to use it and it is not used. When all challenges are used or passed, the jury is complete. The jury then takes an oath to do its duty.
After the jury is impaneled and takes its oath, the attorneys for each party make their opening statements, beginning with the plaintiff's attorney or, in a criminal case, the prosecutor. The opening statement is an outline of the facts of the case, what the party intends to prove, and the evidence by which the party expects to prove it.
Following the opening statements, the plaintiff's attorney, or the prosecutor, presents his evidence. When he is finished, or rests his case, the attorney for the defense then presents her evidence. In general, the presentation of evidence is the most important phase of the trial.
Evidence is almost always presented through witnesses. In fact, witnesses are so important that they can be compelled to attend the trial. A "subpoena" is a court order commanding a witness to appear in court and give testimony. A person who disobeys a subpoena is in contempt of court, and may be fined or jailed, or both.
Witnesses may tell about events they saw or heard, report on tests or investigations which they conducted, give expert opinions, or testify about other matters. Even tangible evidence, such as a murder weapon or a document, must normally be introduced or "qualified" through the testimony of a witness.
Evidence may be direct or circumstantial. Contrary to popular opinion, circumstantial evidence is often reliable evidence. Even criminal convictions can be based on circumstantial evidence. An example of circumstantial evidence is the testimony of a witness that he had come outside a building and noted that everything (the outside of the building, the cars, and the street) were wet and that water was running down the street in the gutters. The testimony offers circumstantial evidence that it recently rained, even though the witness did not see or feel the actual rain. The other side could introduce evidence to overcome this circumstantial evidence. For example, the other side could call a city street maintenance supervisor who testifies that the operator of a city water tanker had over-enthusiastically watered the entire area while preparing the street for a street cleaning machine. The jury can use the circumstantial evidence and other evidence to determine the facts.
The parties are not free to present any evidence, in any way they please, but must abide by the rules of evidence. The main purpose of the rules of evidence is to prevent a jury from being influenced by unreliable evidence. The rules of evidence require that evidence must be competent, relevant, and material to the case being tried. The term "rules of evidence" includes the common law and statutory guidelines for the admission of evidence, and the Ohio Rules of Evidence promulgated by the Ohio Supreme Court.
There are certain kinds of evidence which cannot be presented. Some evidence is said to be incompetent, and cannot be allowed or admitted into the case. For example, evidence of a defendant's prior criminal record is normally inadmissible in a criminal case. Evidence of his past crimes is not proof that he committed the crime which is the basis of the current case, and serves only to bias the jury against him. Similarly, a witness cannot testify third-hand to what another person said or saw. This kind of testimony is hearsay. A witness cannot testify, "Joe said he saw Sam in the house." The proper way to establish Sam's whereabouts is to put Joe on the stand so he (Joe) can testify, "I saw Sam in the house." (There are a number of exceptions to the hearsay rule. For example, the witness could testify that "Joe said he saw Sam in the house" if Joe made this statement while he [Joe] was on his deathbed.)
Evidence may be competent, but have nothing to do with the case at hand. Such evidence is irrelevant, and inadmissible. For example, in a suit to collect a dentist's bill, a plaintiff's attempt to show that the defendant is a month behind in the mortgage payments on her house is not relevant.
Finally, evidence may be both competent and relevant to the case being tried, but adds nothing of real importance. Such evidence is immaterial and inadmissible. For example, in a trial for murder committed in the course of a robbery, it would be immaterial that the victim had terminal cancer and probably would have lived no more than one month longer even if he had not been shot and killed during the robbery.
One of the judge's most important functions in a trial is to rule on the admissibility of evidence. Evidence may be so blatantly improper that even the attempt to introduce it at trial requires a mistrial. (When a mistrial is declared, the trial is stopped immediately and the case is retried at a later date before a new jury.) In such a situation, the judge might exclude such evidence on her own motion (without the request of the attorney of another party), rather than immediately declare a mistrial.
Generally, the judge will not exclude evidence without the request (objection) of the attorney for another party. If the judge sustains the objection, the evidence is excluded. If she overrules the objection, the evidence is admitted. The improper admission or exclusion of evidence may be the basis of an appeal.
A witness is first questioned by the attorney for the party who called her to testify. This questioning is called "direct examination." When the direct examination is complete, the other party has the right to question the witness. This questioning is called "cross-examination." During direct examination, the attorney is not permitted to ask leading questions (unless the witness is obviously hostile). That is, the attorney cannot ask the witness a question which suggests the answer. Leading questions are permitted on cross-examination. For example, on direct examination the attorney must ask, "Where were you on the evening of July 4th?" On cross-examination the attorney could phrase the question, "You were at the corner tavern on the evening of July 4th, weren't you?"
The chief purposes of cross-examination are to place a witness' testimony in perspective, to test its accuracy, and to bring out information not mentioned during direct examination. For example, the testimony of a credible witness in a murder case that she saw the defendant shoot the victim would, standing alone, be very damaging to the defense. The testimony takes on a different light when, upon cross-examination, the witness testifies: she was a city block away when she saw the shooting; it was 11 p.m.; she regularly wears glasses for night and distance vision, but was not wearing them when she saw the shooting because the glasses were broken.
It is obvious that cross-examination is very important to the fairness of the judicial process and the justice of its results. The right of cross-examination is considered so important that it is guaranteed in both the United States and Ohio Constitutions.
Everyone can expect to be a witness in a trial. Testifying under oath at a real trial can be a difficult experience. Television and movie trials do not prepare witnesses for real trials. The following "rules" are really common sense suggestions which may benefit or assist witnesses and help the trial to be fair and efficient. The list is not exhaustive. Additional rules or suggestions could be added, some could be deleted. Many could be restated.
First, tell the truth. A witness who lies under oath faces conviction for the serious offense of perjury. If you do not know the answer to a question, say so. Do not make up answers.
Second, be fair and objective. Even though you have strong feelings about the case, you cannot overemphasize a particular part of your testimony. Your feelings should not affect your testimony.
Third, pay attention when you are testifying. You do not want to be viewed as indifferent or unconcerned. You do not want to repeatedly ask the examining attorney what he said.
Fourth, if you did not hear the question or do not understand what a question (or anything else) means, say so. The judge and jury are interested in what you know about the case. Do not be shy about saying that you did not hear the question or that you do not understand.
Fifth, be courteous to everyone. Proper behavior fosters mutual respect.
Sixth, take a little time before you respond to a question. This practice will allow you to think about the question and develop an appropriate and thoughtful answer. If you do make a mistake in your testimony, say so as soon as you realize you made the mistake.
Seventh, answer the question which was asked. If the question can be answered "yes" or "no," answer it that way. Do not volunteer additional explanations, or your opinions or philosophy. The attorneys and the judge will ask for additional information if they want it. However, if you feel that an answer must be explained or that the examining attorney is bullying you, you can ask the judge for assistance and direction.
Eighth, do not lose your temper. If you lose your temper you give the examining attorney a tremendous advantage. Further, even though your testimony may be absolutely true, it may be discounted or even totally disregarded because it may appear that the testimony was emotionally biased.
Ninth, speak clearly so you can be heard.
Tenth, dress appropriately. Dress and appearance depend on individual style and resources. If you want advice on how to dress, ask the attorney or party who requested you to testify.
Eleventh, be yourself. Do not become an entertainer or comedian because you have an audience in court. A trial is not entertainment; humor is generally out of place.
When all the evidence is in, the attorneys make their closing arguments to the jury. The attorney for the plaintiff or, in a criminal case, the prosecutor, goes first. When he is finished, it is the defense attorney's turn. In general, each attorney uses the closing argument to summarize the evidence and comment on it in the most favorable light. The attorney may talk about the facts and all the inferences which can properly be drawn from them. The attorney cannot talk about evidence which was not presented, or argue about points which do not apply to the case. If an attorney uses improper material in final argument, the opposing attorney may object and the judge may instruct the jury to disregard what was said. If the offending material is seriously prejudicial, the judge may declare a mistrial.
When the attorneys have completed their closing arguments, the judge "instructs" or "charges" the jury (the judge explains the duties of a jury and also explains the law applicable to the case to the jury). Before the closing arguments, the attorneys may request the judge to give certain instructions on the law as it applies to the evidence. If these instructions are proper and would not have been covered by her charge, the judge will include them as part of her charge to the jury. The charge to the jury may take a few minutes, or it may take hours, or even days, in complicated cases.
After the judge has given her charge, the jury goes to the jury room to make its decision or verdict. The bailiff sits outside the jury room and allows no one to enter or leave the room. Sometimes the jury's deliberations go on for several days. In such cases, the jurors may be allowed to go home for the night or they may be "sequestered," that is, housed at a local hotel under guard. In either event, the jury is told not to discuss the case.
Usually, the court will give the jury written forms for every one of the possible verdicts in the case. In a civil case in Ohio, at least three-fourths of the jurors must agree on a verdict. In a criminal case, the verdict must be unanimous. Occasionally, the jury becomes hopelessly deadlocked and the necessary number of jurors cannot agree on a decision. This is called a hung jury, and the case may have to be retried with a new jury.
If the required number of jurors agree on a decision, they sign the appropriate verdict form and return to the courtroom. The court session begins and the verdict is announced either by the jury foreman (whom the jurors select from among their number) or by the clerk of the court. Either party may ask that the jury be polled (each juror asked if he agrees with the verdict). After the verdict is announced, or the jury polled, the jury is dismissed. The trial is over.
The jury's verdict is its finding of fact. An appropriate court order, called a "judgment," is required to implement the verdict. In civil cases the judgment (judgment entry) is often made immediately after the trial. In complicated civil cases, the judgment is delayed to allow the preparation of the judgment entry.
In criminal cases, the sentence is part of the judgment. In serious criminal cases, judgment may be delayed pending a pre-sentence investigation. In minor cases judgment is usually made immediately.
Proceedings After The Trial
A number of legal proceedings may be conducted after the trial is over. In civil cases, it may be necessary to take steps to enforce the judgment. In criminal cases, particularly serious cases, sentencing is often a separate proceeding. The losing party may appeal in either a civil or criminal case. In some criminal cases, there may be a probation revocation hearing, or the offender may, at a later date, ask for post-conviction relief on the ground that his constitutional rights were not adequately protected.
An entry of judgment in a civil case does not automatically insure that the winner will receive the relief he has won. When money damages have been awarded and the loser does not voluntarily pay the judgment, the loser must be compelled to pay. When an injunction has been granted, the order is not always obeyed and must be enforced. The party who wishes to have a civil judgment enforced must institute the necessary procedures. Generally, a court will not enforce a judgment unless the winning party requests enforcement and pays all pending court costs.
There are a number of methods to enforce money judgments. The three most common methods are "garnishment," "attachment," and "foreclosure." In garnishment, the court allows the judgment creditor to impose a charge upon property of the judgment debtor which is held by a third party. Usually the property involved is either unpaid wages or money in a bank account. When a garnishment order is issued to the judgment debtor's employer, or bank, a portion of the debtor's wages or bank account must be paid into court to satisfy the judgment. Wages can be garnished only once per month and only 25 percent of the wages due can be taken at any one time. (A law effective in April 1993 has a special provision regarding judgments based on money owed for health care service or health care supplies. Under this law, an employer cannot pay more than 12 percent of the judgment debtor's net earnings.)
In attachment proceedings, personal property of the judgment debtor (such as the debtor's car, television, or stereo) is seized and sold to pay the judgment.
When a money judgment is filed with the clerk of the common pleas court of the county where the judgment debtor owns real property, the judgment becomes a lien on the debtor's real estate within the county. Foreclosure of a judgment lien is a proceeding in which the real estate is sold to satisfy the judgment. (The proceeding is virtually the same as a mortgage foreclosure.) A judgment creditor may institute a proceeding in aid of execution to determine the nature, extent, and location of the judgment debtor's property. During this proceeding, the judgment debtor is examined under oath.
In many cases, a court may grant a type of judgment in which the defendant is personally ordered to do, or refrain from doing, a certain thing. This order is usually called an "injunction." If the order is disobeyed, the defendant is in contempt of court and may be fined or jailed, or both. For example, an injunction would be used to prevent a person from polluting a stream, or to compel her to move a fence which encroaches on another's property. Continued pollution or failure to move the fence is contempt of court. The orders or decrees a court grants in domestic relations cases are often similar to injunctions in that the orders require the parties to personally do, or refrain from doing, specific things. The most common use of contempt proceedings to enforce court orders is in domestic relations cases. Contempt proceedings are used to compel the parties to observe the court's decrees as to spousal support (alimony), division of property, child custody, child support, and visitation rights.
In minor criminal cases, sentencing usually takes place immediately after a verdict of guilty or the judge's finding that the offender is guilty. In serious criminal cases, sentencing is often deferred pending a pre-sentence investigation to gather information on the case and on the offender's background. The judge can then determine the proper sentence to be imposed.
Any party may file an appeal in civil cases. Because of the double jeopardy provisions in the United States and Ohio Constitutions, the right to appeal in criminal cases is more limited. In criminal cases, a person who is convicted may appeal, but the state's (prosecution's) right of appeal is narrowed by "double jeopardy." In general, double jeopardy means a person cannot be tried or punished more than once for the same offense. See Part IV at "Double Jeopardy."
Appeals are generally on questions of law rather than questions of fact. The trial process, not the appeal process, is best equipped to determine facts. Appellate courts will usually accept the factual determinations of trial courts. The questions for the appellate court are whether the trial court made an incorrect interpretation or application of the law.
In addition, not every decision of a trial court can be appealed. In general, only final judgments or final orders may be appealed. Limiting appeals to final judgments or orders prevents the continual interruption of the trial process by the appeal of each interim order or ruling of the lower court.
Generally, a party has 30 days after a final judgment or order to file an appeal. Appeals after that time are allowed only with the appeals court's permission (called "leave of court"). Permission to file a late appeal is granted only when the appellant can show a good reason why he or she failed to meet the regular deadline. The right to appeal is lost if an appeal is not filed within the time allowed, or leave to file a late appeal is not granted. In Ohio, leave to file a late appeal is limited to criminal cases. It must be noted that in many kinds of proceedings the time in which to file an appeal is much less than 30 days. The parties to any proceeding should determine if the proceeding may be appealed. Specifically, they should know when and how to make an appeal.
In criminal cases, there are a number of other proceedings which may be held following trial-often many months or years later. If an offender is placed on probation, but then violates one of the conditions of his probation, the court may hold a hearing to determine if the probation should be revoked and the offender sent to jail or prison. Similarly, when a person is released on parole from prison, and violates the conditions of his or her parole, a hearing may be held to determine if he or she should be returned to prison. Also, the trial court may hold a post-conviction relief proceeding to determine the validity of later claims that the offender's constitutional rights were violated.
Articles appearing on this website are intended to provide broad, general information about the law. Before applying this information to a specific legal problem, readers are urged to seek advice from an attorney.
Reprinted and distributed by Fanger & Associates LLC with permission from the Ohio State Bar Foundation as a service to our clients and friends.
Excerpted from The Law And You, A Handbook of General and Everyday Law Affecting Ohio Citizens. Prepared for the Ohio State Bar Association by the Ohio State Bar Foundation. Copyright © 1997-1999 Ohio State Bar Association. All rights reserved.