What are the Stages of a Criminal Trial?

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What are the stages of a criminal trial?

Although most criminal cases do not get to a trial, everything that happens in a case is informed by what a possible trial would look like. If we are likely to win a trial, we are not likely to accept a plea offer to prison time, for example.

If there are potential legal issues, like suppression of evidence or hearsay testimony that may come in against a client, we need to know how those issues are likely to be resolved before we get to a trial – a plea to probation might sound good to a client who made incriminating statements when they were arrested.

A plea to probation might not sound as good to a client whose incriminating statements are likely to be suppressed, however, when there is not much more in the way of evidence.

Understanding this, it’s fair to say that the “stages of a criminal trial” begin long before the actual trial begins – gathering information, researching legal issues, and trial preparation are essential to trying a criminal case.

Stages of a Criminal Trial: Pretrial

Ideally, the “first stage” of a criminal trial begins when a client calls us to say, “I think I’m under investigation – a detective left his card in my door with a note telling me to call him.”

Pre-Arrest Investigations

When we can get involved in a case before our client is charged, we can shape the trial long before the prosecutor even sees their case file. In the investigation stage of a criminal case, we might be able to:

  • Prevent our client from making incriminating statements,
  • Prevent our client from turning over incriminating evidence to police,
  • Prevent our client from being charged at all, or
  • Arrange for our client to be arrested and released on bail.

Evidence or statements that the police don’t get during their investigation are evidence or statements that the jurors will not hear at trial if the case gets that far…

Gathering Information

The most important part of a criminal trial may be the preparation for the trial, which begins from the first interview or phone call with our client.

The process of gathering information that we can use 1) in negotiations with the prosecutor or 2) at the trial begins immediately and continues through the final day of trial, including:

  • Information obtained from our client and our client’s friends or family,
  • Interviewing prosecution and defense witnesses,
  • Information obtained from a private investigator which could include the location of witnesses or other information obtained through surveillance,
  • Information from expert witnesses and consultants,
  • Information obtained informally through conversations with law enforcement or prosecutors,
  • Discovery materials received from the prosecutor, and
  • Information obtained through subpoenas or Freedom of Information Act requests.

Legal Research and Issue Spotting

From the beginning of each case, we must spot legal issues that could come up at trial, research the relevant case law or statutes, and draft motions or briefs to present to the court in pretrial motions.

Pretrial motions may be one stage of a criminal trial, but they are useless unless the research and preparation are done before the trial begins.


Even when we do not intend for our client to enter a guilty plea or be convicted at trial, we must gather as much mitigation material as possible.

Our client’s education, family history, medical history, sports activities, volunteer or charitable activities – anything that can help to humanize our client and make them a real person and not just a number to the court may help when:

  • We are negotiating a dismissal or a plea agreement,
  • Our client enters a guilty plea and is sentenced, or
  • Our client is convicted at trial and is sentenced.

No attorney plans for a client to be convicted at trial, but they are a fool if they do not prepare for every contingency…

Stages of a Criminal Trial: The Trial

What about the actual trial? What are the stages of a criminal trial in SC?

Pretrial Motions

Before the trial begins, sometimes on the first day of trial and sometimes weeks or months before the first day of trial, we will argue any pretrial motions that we have, like:

  • Motions to suppress evidence based on constitutional violations or other grounds,
  • Motions to suppress statements,
  • Motions to change venue, or
  • Any motions that must be decided before the attorneys begin speaking to jurors and that may affect the way the trial is conducted.

Jury Qualification and Jury Selection

With few exceptions, attorneys in SC do not get attorney-conducted voir dire.

We can obtain limited information on potential jurors, however, both from the clerk of court and from our own investigation, and we can prepare voir dire questions that we can submit to the court to ask the potential jurors.

We are then able to exclude a number of jurors, either “for cause” or as one of our “peremptory strikes.”

Opening Statement

In our opening statement, we talk to the jurors about our client’s case, telling our client’s story and shaping the way that jurors see the issues in the case.

Is this a case about someone who was robbed? Or is it a case about someone who was wrongfully accused of robbery?

The State’s Case: Cross Examination

The State always presents their case first, and we can cross examine each of their witnesses after the prosecutor finishes asking questions.

Cross examination is our opportunity to:

  • Tell our client’s story through the state’s witnesses,
  • Get confirmation of upcoming testimony by defense witnesses,
  • Discredit the state’s witnesses when appropriate, or
  • Use the state’s witnesses to present defense evidence.

Cross examination allows for “leading questions” that suggest the answer, and it allows the defense attorney to tell a story, question by question, regardless of the witness’s denials. After cross examination, the prosecutor may be allowed to “rehabilitate” their witness through re-direct examination.

Directed Verdict

When the state rests their case, if there is insufficient evidence to go to a jury, the trial judge should direct a verdict of acquittal. In most criminal trials, the defense attorney will make a directed verdict motion at the close of the state’s case, although sometimes we do not if there is obviously sufficient evidence for the jury to make the decision.

The Defense’s Case: Direct Examination

When the state rests their case, the defense may also stand up and say, “We rest our case, your honor.” The defense does not have to produce any evidence or witnesses, and the defense does not have the burden of proof in a criminal case – the burden of proving the charges beyond any reasonable doubt is always on the prosecutor.

When we do call witnesses, however, or when the defendant chooses to testify, the defense must ask “direct examination questions” without leading or suggesting the answers.

Despite this, direct examination can be the best opportunity to tell the client’s story through one or more witnesses and to introduce any physical evidence that hasn’t already been introduced through the state’s case.

Jury Instructions

After the defense has rested their case, the judge will read jury instructions that tell the jurors what the law is and how they should apply it to the case.

In most trials, both sides will submit proposed jury instructions that the trial judge may or may not use, and there may be arguments on the record as to why the proposed jury instructions are necessary based on the facts and law of the case. A trial court’s failure to give a jury instruction that was justified can be grounds for reversal of a conviction on appeal.


After hearing the court’s instructions, the jury will go to a jury room where they will deliberate, discuss the evidence, maybe argue a bit, and then come back with a verdict.

They will often come back with questions instead of a verdict – questions the court may or may not be able to answer. And, sometimes, they will come back to tell the court that they are hung – they cannot reach a verdict.

If there is a “hung jury,” the court will declare a mistrial and the prosecutor might have the option of trying the case again, depending on the reason for the mistrial.

If the verdict is guilty, the next stage of the trial will be sentencing and a possible appeal or PCR action to overturn the conviction.

If the verdict is not guilty, it’s over, and we walk out the front door with our client.

Criminal Defense Lawyers in Columbia, Lexington, Myrtle Beach SC

The criminal defense attorneys at the Thompson & Hiller Defense Firm focus exclusively on criminal defense cases in SC. We have obtained dismissals, pre-trial diversion resulting in dismissals, or acquittals following trial in hundreds of criminal cases, and we have a record of proven results.

If you have been charged with a crime in SC or if you think you may be under investigation, call us now at 843-444-6122 or contact us through our website for a free initial consultation to find out if we can help.