Overview of the Capital Trial Process

Overview of the Capital Trial Process

Note that not every case goes through all of the steps outlined here. Some states have different procedures.


Crimes that would be eligible for the death penalty almost always involve brutal murders which shock the community. There is often considerable pressure on the police to make an arrest, and on the prosecution to get a conviction. Only rarely do the police come upon such a crime in progress. Usually, they must depend on evidence gathered at the scene of the crime and on possible eyewitnesses. Police often rely on photographs of individuals who have committed crimes in the past to display to eyewitnesses who might be able to identify a suspect. Thus, even though a particular individual has no connection to a crime, he might become a suspect if he looks like the actual perpetrator. The police also use informants who hope to gain something by providing information about a particular case. Their information may or may not be reliable, but may form the basis for building a case around a particular suspect.


The taking or keeping of a person in custody by legal authority in response to a criminal offense or charge.


The initial step in a criminal prosecution whereby the defendant is brought before the court to hear the charges and enter a plea.

Preliminary Hearing

A criminal hearing to determine whether there is sufficient evidence to prosecute an accused person. If sufficient evidence exists, the case will be bound over for grand-jury review or an information will be filed in the trial court.

Grand Jury

A body of people (often 23) who are chosen to sit permanently for at least a month and who decide whether indictments should be issued. If the grand jury decides that the evidence is strong enough to hold a suspect for trial, it returns a bill of indictment (a true bill) charging the suspect with a specific crime.


The formal written accusation of a crime, affirmed by a grand jury and presented to a court for commencement of criminal proceedings against the accused.


A formal criminal charge filed by a prosecutor without the aid of the grand jury. The information is used for the prosecution of misdemeanors in almost all states, many of which allow for its use for felony prosecutions as well.

Hearing on Pre-trial Motions

A judicial session held for the purpose of deciding issues of fact or of law, sometimes with witnesses testifying, before the trial begins.

Intention to Seek the Death Penalty

At some point before the trial, the prosecution announces its intention to seek the death penalty if the defendant is found guilty.

Guilt Phase Trial

Jury Selection (voir dire)

A preliminary examination of prospective jurors by a judge or lawyer to decide if the prospects are qualified and suitable to serve on a jury. In a capital case, prospective jurors must be “death qualified,” i.e., questioned about their ability to consider both aggravating and mitigating evidence and to render a death sentence in an appropriate case.

Opening Statements

The statements, at the outset of a trial, in which the lawyer for each side gives the fact- finder (the jury, or sometimes the judge alone) a preview of the case and of the evidence that will be submitted.

Prosecution’s Case

The government, which has the burden of proving the defendant's guilt beyond a reasonable doubt, offers evidence in an effort to convince the jury that the defendant committed the offense.

Defendant’s Case

The defendant offers evidence to rebut the prosecution's evidence. Although the defendant has no burden of proof, and is presumed to be innocent until proven otherwise, he or she may introduce evidence either to weaken the prosecution’s case or to help establish innocence.

Closing Statements

The final statements to the judge or jury before they begin their deliberations to decide the case, in which the lawyer for each side asks the jury, or judge, to consider the evidence and apply the law in his or her client's favor.

Jury Instructions

The direction or guidelines that the judge gives the jury concerning the law that is applicable to the case.


The jury's finding or decision on whether the defendant’s guilt on the charges has been proved beyond a reasonable doubt.

Penalty Phase Trial

Aggravating Circumstances

Facts that make a crime worse or more serious by such circumstances as the facts of the crime, the defendant’s prior criminal record, etc. Some aggravating circumstances are very specific, e.g., the murder of more than one victim. Other aggravators are broad, e.g., the murder was committed in a heinous, cruel or atrocious manner.

Mitigating Circumstances

Facts that do not justify or excuse an act or offense, but may reduce the degree of moral culpability, and thereby reduce the penalty. Examples include mental impairments, deprived background, etc.

Victim Impact Statements

Statements read into the record, or presented through testimony of witnesses, during sentencing to inform the jury of the financial, physical, and psychological impact of the crime on the victim and the victim's family.

Jury Sentence Recommendations

The jury considers the aggravating and mitigating circumstances surrounding the crime and the defendant and returns with a recommended sentence. In a death penalty case, the jury chooses between a death sentence and a lesser sentence of life without parole, life, or a term of years.

Judge Sentencing

After considering the jury recommendation, the court formally pronounces punishment on the defendant. In some states, the judge must follow the jury recommendation. In other states, a judge may sentence without a jury, or override a jury’s recommendation.