CHAPTER 12: OUTLINE OF A TRIAL - Table of Contents

12.1 - Introduction12.2 - Pretrial Matters12.3 - Jury Selection12.4 - Opening Statement12.5 - Prosecution Case-in-Chief12.6 - Motion For Judgment of Acquittal/Directed Verdict12.7 - Defense Case-in-Chief12.8 - Rebuttal and Surrebuttal12.9 - Witness Examination12.10 - Jury Instructions12.11 - Closing Argument12.12 - Jury Deliberations12.13 - Motions For Mistrial12.14 - Miscellaneous Issues



The prosecution in a criminal case, and the plaintiff in a civil case, must present evidence to support their claims: they carry the burden of proof. They try to meet their burden by presenting the testimony of witnesses through direct examination, introducing exhibits and obtaining stipulations as to other facts. After each witness testifies, the defense may cross-examine that witness. Before any exhibit is admitted into evidence, the defense has the opportunity to challenge that exhibit. A failure by the prosecution or plaintiff to present an adequate case-in-chief will result in the trial judge dismissing the case at the conclusion of the case-in-chief.

A stipulation to a fact is an agreement by both parties that the fact is true and relieves a party of having to prove the fact. The jury is also instructed that it may regard the fact as proved. Parties may agree to stipulate to certain facts or to a witness' testimony. Stipulations may make a trial more efficient in eliminating the need to bring a witness into court when the parties all agree as to the substance of the witness' testimony. In criminal cases, a jury remains free to reject a stipulation.


Every person charged with a crime is presumed innocent and the prosecution always has the burden of establishing the defendant's guilt. The prosecution must offer sufficient evidence on each element of the charge to establish the guilt of the defendant beyond a reasonable doubt. Colorado defines a reasonable doubt as "a doubt based upon reason and common sense, which arises from a fair and rational consideration of all of the evidence, or lack of evidence, in the case. It is a doubt which is not a vague, speculative or imaginary doubt, but such a doubt as would cause reasonable people to hesitate to act in matters of importance to themselves."

In civil cases, the plaintiff bears the burden of proof because it is the plaintiff who is making the claim of some sort of wrongdoing on the part of the defendant. The plaintiff must prove its claim by a preponderance of the evidence, which simply means the greater weight of the evidence, or more likely than not.


The prosecution in a criminal case must offer evidence in its case-in-chief sufficient to establish 1) the date of the offense; 2) the identity of the defendant as the perpetrator of the offense; and 3) the statutory elements of the offense or offenses charged. A failure by the prosecution to present a prima facie case results in the trial judge ordering a judgment of acquittal, that is, a dismissal of the charge.

The plaintiff in a civil case must offer evidence in its case-in-chief sufficient to establish each element of the claim. The types of claims are too numerous and too different to set forth here. Suffice it to say that every civil complaint that is filed should list the elements of the complaint and the plaintiff's case-in-chief should then present evidence on each element. A failure to do so will result in the trial court granting the defendant's motion for a directed verdict at the close of the plaintiff's case.

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