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 defendant - in either a criminal or civil case - is not obligated to present any evidence. The prosecution always shoulders the burden of proof in a criminal case and the jury is instructed of that fact and the fact that the defense need not present any evidence. The plaintiff always shoulders the burden in a civil case, but the jury is entitled to consider the fact, if it is true, that the defendant did not present any evidence.

If the defendant chooses to present a case, evidence is presented in the same fashion as for the prosecution or plaintiff. That is, the defense counsel calls witnesses and offers exhibits and stipulations. The prosecutor or plaintiff is entitled to cross-examine the witnesses and object to exhibits.

There are special rules relating to the right of a criminal defendant to testify. At the end of the prosecution's case-in-chief, the judge must advise the defendant of the right to testify and the consequences of taking the stand. The trial judge is required to determine that the defendant is the person making the decision whether to testify, and is doing so knowingly, voluntarily and intentionally. The jury is instructed that no adverse inferences are to be drawn from the fact that a defendant chooses not to testify.


An affirmative defense in a criminal case admits the doing of the act charged but seeks to justify, excuse or mitigate it. For example, a defendant claiming self-defense admits that he hit the other person, but argues that he was justified in doing so in order to protect himself. If a defendant asserts an affirmative defense, the defendant has the burden of production to persuade the trial judge that enough evidence exists to justify presenting the issue to the jury. The defendant may present this evidence as part of his case-in-chief, although the defendant may also present it through the cross-examination of prosecution witnesses.

Examples of affirmative defenses in criminal cases include insanity, intoxication, self-defense, mistake of law or mistake of fact, and consent. Once an affirmative defense is raised and presented to the jury, the prosecution has the burden to negate the defense beyond a reasonable doubt. Affirmative defenses in criminal cases are discussed in more detail in 5.9.

Similarly, an affirmative defense in a civil case admits that the defendant performed some action or that some event occurred, but argues that it was justified by the affirmative defense. For example, a defendant might admit that the plaintiff was injured on defendant's property, but claim that the plaintiff assumed the risk of injury when going on to the property and therefore should not be allowed to recover for any injury. Affirmative defenses in civil cases are discussed in 8.5.

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