T. charles Shafer Attorney At Law PLLC.

How Often Do Criminal Cases Go To Trial?


The large majority of cases don not end in a trial. This happens for a variety of reasons. Perhaps the major reason is that the client does not want to risk further jail or prison time, or any incarceration at all. In my area, if a client proceeds to trial and loses, they are likely to end up incarcerated.

Do Most Attorneys Avoid Going To Trial And Try To Achieve A Settlement?

Ethically, it’s always left to the client to determine whether to proceed to trial or change a plea. A client does not have to go to trial. This is true, even if the attorney is saying, “You have a great case here and I think the jury would feel the same way.” If the client does not want to “roll the dice,” then that is the client’s choice. After all, it is the client’s case with the client’s future at stake. The attorney is the representative of a client in court. By the same token, I do not think it a good practice to suggest a client should not look to settle a case and definitely go to trial, because, as I mentioned previously, there never is complete assurance of the ultimate outcome. While I may believe that a verdict will be in my client’s favor after I have done my level best to point out reasonable doubts and reasons the jury should acquit, I do not get to go back to the jury room with the jurors. If the client decides to proceed to trial, it will be of their own accord, after fully discussing the case, the evidence, and the pros and cons.

There comes a point in my representation where the client is at the crossroads of plea and trial. I set the client down and point out what is being offered to settle, the strengths and weaknesses I perceive in the evidence, and what the potential penalties may be it the jury returns a guilty verdict. I explain to clients that it is their case. That much being said, at the end of the trial I will be walking out of the courtroom and going home to dinner. Hopefully, the client will be walking out with me. Ultimately, however, the lawyer does not make that decision at trail; that decision is left to the jury. There are no promises, no guarantees (except that I will use every ounce of my energy in defending their cause).

I began my formative legal years as an assistant public defender, getting forced to trial because of horrible plea offers. I know what it takes to defend a case with facts horrendous on their face. Nevertheless, I have seen jurors listen to the defense, even though it looked so bad at the beginning, and in the end acquitting my client.

One never knows with specificity. A seasoned attorney will make a calculation. Make the best use of the evidence available to present the strongest defense permitted.

Finally, there also are attorneys that don’t go to trial simply because they don’t like doing them.

What Criteria Do You Consider When Determining Whether To Take A Case To Trial Or Not?

Obviously consideration includes evidence that’s been gathered and how to negate or at least diminish negative evidence. I don’t know how other attorneys do it, but I generally like to get all of the evidence that I can get prior to trial, review it, sift through it, find ways to attack adverse evidence, highlight favorable evidence. After that is completed, I sit the client down and explain the game plan if the client wishes to proceed to trial. Then it is up to the client to decide the all important decision.

If The Client Does Not Like A Plea Offer Is That Reason Enough To Go To Trial?

Any reason the client has is generally valid to the client. Certainly, if the plea offer is unreasonable, I have had many clients say, “I’m just not going to enter a plea to that, we’re going to have to try that case.” I have tried cases that went to trial because of unreasonable offers extended by the prosecution. That is a common occurrence. I do caution, however, that although a plea offer may not be liked by the client, taking it may be the lesser of two evils, when consideration is given to how harsh a sentence might be if convicted at trial.

Do Most People Have Misunderstandings Regarding A Criminal Trial?

Anyone never before involved in a criminal jury trial, as defendant or attorney, likely will have some misperceptions or preconceived notions. Let’s just say a criminal trial is a breed onto its own. Many clients misperceive jury trial because of what they have seen on television. But trials viewed on television generally are mere snippets of the event, edited for entertainment value. The majority of a trial usually is less than exciting. But then there is that 10 to 20% of a trial that is absolutely key. Evidence, through witness testimony or physical evidence, or both, that can change the dynamic, and ultimately the outcome. The secret is to know when it appears (it may not always be so obvious), and being prepared to use it to the client’s advantage, or negating its deleterious effect as much as possible.

How Does It Impact The Case If The Police Officer Fails To Show Up At The Trial?

That does happen. Officers know that there will be ramifications for failing to appear in court pursuant to a duly issued subpoena for trial. If it’s significant enough, the trial court can declare a mistrial, the jury is released, and court reconvenes at a later time to try it again. In the meantime, the judge takes the witness or witnesses to task that failing to show pursuant to that duly issued subpoena. If a subpoenaed witness that the defense wishes to put on the witness stand to introduce a particular piece of evidence doesn’t show up, and if that evidence will play a role in freeing the defendant, then trial counsel is duty bound to ask the court to declare a mistrial. It is up to the court to decide whether or not a mistrial is warranted. Like I mentioned, if a mistrial is declared, then everyone starts over again at some later time.

If the officer fails to show and the prosecution is forced to request a mistrial, then the defendant may be set free, if the jury has been sworn and the prosecution cannot proceed without that witness. It is called “jeopardy,” which attaches when the jury takes their collective oath. The constitution prevents a person being placed into “double jeopardy” for a crime.

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