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  1. Home
  2.  – Criminal Law FAQs


  1. How does a Jury Trial Work?
  2. What are the Steps of a Case?
  3. Why do I Need an Attorney?
  4. What Would You Charge to Represent Me in My Case?
  5. What Areas of Law do You Practice in?
  6. In Which Courthouses do We Represent Clients?

How does a Jury Trial Work? First, rest assured that the decision to have a trial (or not) is yours. Second, our attorneys at The Law Offices of Smith & White, PLLC, are veteran criminal defense attorneys. Third, you will know what is involved, what pieces are key and what risks you are taking. That said, jury trials are the ultimate test of evidence –“the crucible of cross-examination”– and often a marathon of endurance and wits for the attorney, and stress for the client. The anxiety, uncertainty and public scrutiny causes most persons accused of crimes to avoid them. In fact, likely less than 1 in 10 of persons accused of a crime for the first time elect to have a trial.

A jury trial is to twelve jurors of “your peers” in a superior court matter and six jurors in a district or municipal court matter. For you, jail or prison time is always a potential consequence. That’s what gives you the right to a jury trial. You cannot have one for a ticket where only a monetary penalty is in question. Now, in Washington state, the government, a.k.a. the prosecution, has been ruled to be a “party” to the case and it also has a right to a jury trial. In the old days you could choose to have your trial to a judge instead of a jury. That is still possible but now the government must agree as well. Some issues are better for a judge and some for a jury. Smith & White will advise you accordingly.

The “jury pool” is regular people – usually taken from the voters’ rolls and selected at random by the court – who have taken the time to fulfill their civic duty. Many have jobs that will pay for their time away, i.e., Boeing employees. If the person does not vote and does not respond to court mailings then they have no chance of being on a jury. Jurors are not distinguished by race, creed, color, gender, sexual orientation, religion, etc. So, when they say “your peers” it is the old British meaning of people of the same class. Commoners judged by commoners and, since America does not have royalty, that’s everybody.

The “jury pool” is whittled down to an actual jury by a process called “Voir Dire,” or now more commonly called jury selection. The judge elects an appropriate amount of time for each side, prosecution and defense, depending on the complexity of the case. Each side is allowed to talk about issues related to the case, but not the case itself, to make sure that the potential jurors can be fair jurors. The fine line between the case and not the case itself is one of the many reasons you need a veteran criminal defense attorney like Smith & White.

Both sides ask questions of the jury pool. Both sides can ask the judge to excuse jurors “for cause”– one of their answers demonstrated that they cannot be fair. Each side also gets “preemptory challenges.” Each side usually has three challenges for a six-panel jury and six for a twelve-panel jury but the judge has the discretion to change this number as long as it remains equal. This means you can get rid of that many potential jurors for no reason stated. However, if it looks like you are discriminating for one of the above stated reasons (race, etc.) that can lead to a Batson challenge. Basically, you and the prosecutor are not allowed to do that.

Once both sides have used their challenges the remaining front six or twelve is the jury. They are sworn in to follow the law. The judge instructs them not to discuss the case with anyone, including each other, until the presentation of all the evidence is concluded. The judge tells them not to do any of their own investigation, including not looking things up on their smartphones.

The jury decides the “ultimate question”: Whether you are guilty or not guilty of the crime/s. Note that they do not decide if you are guilty or innocent. There is no legal obligation for a defendant or the defense attorney to prove their innocence. The failure of the prosecution to convince a jury “beyond a reasonable doubt” means they should return a verdict of not guilty. Beyond a reasonable doubt will be discussed elsewhere.

What the jury is allowed to hear in making this decision is an interesting and complex intersection of facts and law. Some things, even though a fact, are not allowed to be put in front of the jury. Usually these facts are irrelevant (wasting everyone’s time), unreliable or unfairly prejudicial. There are entire courses taught about the rules of evidence. The rules themselves are a large volume. And there are many more volumes that discuss the rules. Also, there are cases where the courts interpret the rules. So, again, you’ll benefit from your veteran Smith & White criminal defense attorney.

The facts to a jury are usually proved through testimony. Testimony is someone, under oath, saying what they themselves heard, saw, etc. This is evidence. You’ve might’ve heard someone say that the prosecution has no evidence – just the word of a bunch of people. The word of one person, much less a bunch of them, is evidence. If the jury chooses to believe those words then that is sufficient evidence for a jury to find one guilty beyond a reasonable doubt.

Likely what these people mean is that there is no “corroborating evidence”: physical evidence that supports what the witness says is true. In fact, one of the things our defense attorneys at Smith & White commonly analyze is whether there should be other evidence if things happened as the witness says. The failure of the prosecution to present this other evidence that likely should have been gathered and presented is a common argument that proof beyond a reasonable doubt has not been offered.

Fortunately, you have a very powerful right to cross-examine the witnesses against you. Your criminal defense lawyer can question them about the lack of corroborating evidence. We can also question them about their own motives and biases. Maybe they get a benefit if you go to jail or get convicted. Maybe they already did not like you for some reason. Maybe they have a record that makes them less believable in general. Your criminal defense attorney gets to ask them about all these issues that show they may not be truthful or may not be right about what they have to say.

After the prosecution has presented all their witnesses and evidence, all of which is subject to cross-examination by your attorney, you then have the right to present your own case. You have the legal right to subpoena and present witnesses. You could potentially get a material witness warrant if you can prove proof of service of the subpoena to the witness. Of course, it’s best if your witnesses come to testify by their own choice. All of your witnesses, including yourself should you chose to testify, will be subject to cross-examination by the prosecution. So, it is important to be prepared for that cross-examination. Your Smith & White criminal defense attorney can help greatly with that preparation.

After hearing testimony through direct- and cross-examination and seeing what evidence has been admitted, the judge reads the jury instructions to the jury. Jury instructions are summaries of the law, drafted by both sides and argued to the judge as to which should be presented, that the judge has selected. They always explain to the jury the elements of the offense. For example, in a theft charge the elements are: 1) taking of property, 2) belonging to another, 3) without their consent, 4) of a certain value, etc. In all criminal cases the jury is instructed that each element must be proved beyond a reasonable doubt.

After the instructions come closing arguments. Both sides are given a set amount of time, again set by the judge depending on the complexity of the case, to argue. Argument is not really an argument since each side takes a turn. They take turns arguing that the facts do or do not fulfill the instructions so the jury should return a verdict of guilty or not guilty. The prosecutor, for no real good reason, is allowed to go first and last. This is completely unfair in my opinion but it is a well established precedent.

After argument, the jury is sequestered. They are put in a room where they may now discuss the case with each other. They are kept in the room (during business hours) until they have reached a decision of guilty or not guilty or decided that they will never reach such a decision. All of the jurors must agree with the decision and sometimes they cannot. If they cannot agree on a result then a mistrial is declared. This allows the prosecutor to re-file the case starting things all over from the beginning if they so choose. The prosecution usually only does so in the most serious of cases.

If the decision is guilty then the Judge will impose a sentence. Sometimes this is done right away. Sometimes a later sentencing date is selected. If the decision is not guilty then the case is over and the defendant (a.k.a. client) is allowed to leave without any conditions. You will be free to never to have this charge raised again (in a criminal court by the same “Sovereign”). If the jury cannot decide it is called a “hung jury” or mistrial. The prosecution has the option of starting the case all over again.

Call Smith & White today to start to prepare you for this ordeal or to start the work of avoiding it if that is your preference.

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What are the Steps of a Case? Your first step should be hiring Smith & White to defend your criminal charge. There are a number of steps we go through that are discussed elsewhere. The steps you go through in the courthouse are:

  1. Arraignment or First Appearance: This is your first time appearing on a case. You must appear in court for any felony, domestic violence misdemeanor or DUI. If you have hired our firm then you do not need to appear for this hearing on other types of cases. The judge confirms you are the correct person with name, date of birth and address. You are informed by the prosecutor or judge of the charge. You (or your lawyer) waive formal reading, otherwise you are read all the essential elements of the crime. You (or your lawyer) respond not guilty. You are informed of the maximum you could receive for the charge. You are informed of your rights as a defendant. Some courts have you acknowledge these in writing. Some courts inform you of your rights under the Geneva Convention (in the case you are a foreign national).
    The judge reviews probable cause to make sure that there is sufficient accusation which, if true, would constitute a crime. Your lawyer may stipulate to probable cause for this purpose. This is done to speed things up, but can be used tactically to prevent the judge from reading bad facts. Some judges will determine probable cause even with this stipulation. The judge will set conditions of release, which could include bail, restrictions on travel, restrictions on contact, restrictions on alcohol and drug consumption, ignition interlock devices in cars, house arrest and even pretrial probation (to name just a few possibilities).
  2. These conditions are based on three major factors: The first is the danger you present to the community, generally assessed by looking at your criminal history and the alleged behavior in this case. The second is your flight risk, which a good defense attorney can address by giving information to the judge to show your ties to the community. The third is the likelihood you may attempt to tamper with witnesses. If a bail is set, you need to immediately arrange to post bail or you will be taken into custody until you can do so. This is a good reason to have your attorney already arranged. We can argue against needing a bail and, if a bail is imposed, can help arrange a bail bondsmen (usually at a discount). You are given your next court date, which is called either a case scheduling or pretrial in most courts.
  3. Case Scheduling or Pretrial: These are initial hearings for administering the case. It is unfortunate that you need to be present. Often, the parties (prosecutor and defense) are just making sure that documents and photos (discovery) are being exchanged. Because they are administrative in nature, these hearings are often continued (meaning you need to appear again). As your attorneys, we do everything possible to reduce the number of appearances you need to make but we are struggling against a large, ingrained bureaucracy. An offer (plea bargain) is usually made by the prosecution at one of these hearings. Any offer made to you must be communicated to you by your attorney whether your attorney thinks it is a good offer or not. If the case is not resolved through negotiation at this phase, the matter moves on to omnibus or readiness.
  4. Omnibus or Readiness: This hearing – which is usually the last hearing before trial, although it to can be continued (multiple times) — is to make sure that both parties are ready for trial. It also is used to give the judge an understanding of what the trial entails. Usually the parties tell the judge how long they think the trial will last, whether there are motions before trial, how many witnesses are being called by each side, whether there are any special accommodations needed in terms of language, ADA, etc., and whether there are affirmative defenses by the defense.
  5. Jury Trial and/or Judge Trial: Your case is tried to either a judge or jury. That means either a judge or jury decides if you are guilty or not guilty. Even in a jury trial, a judge will be present to decide arguments between the parties. Your attorney may try for a judge trial for tactical reason. For more detail on a trial, specifically a jury trial, see the next question.

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Why do I Need an Attorney? “I’m guilty so when I appear for my first court date and the judge asks me for my plea, I’ll just say I’m guilty. I’d be lying otherwise right?”

Well, the short answer to that is you absolutely need an attorney to help you. First, many people think that they are guilty of something that they actually didn’t do. The law is very complex and technical and an attorney can help you with your situation. Second, whether or not you feel you did something wrong, your first appearance on the case (when you don’t have an attorney who knows all the facts of your situation to advise and assist you) is probably the worst time to be making a decision like this. A finding that you are guilty of the crime is a legal outcome that may or may not occur as the result of a process begun by the prosecution and that should not end until all the facts are known and actions of the government are determined to be justified and correct. Additionally, if you want to plead guilty you can always change your plea later. To protect your rights, you should make sure that your lawyer has been fully advised of your situation, the actual real-world consequences of your plea, and the probable sentence the judge might impose on your case. Even if you are guilty, an attorney can often help you mitigate your sentence or even get a reduced charge in your case.

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What Would You Charge to Represent Me in My Case? Please see our page on Fees.

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What Areas of Law do You Practice in? We serve our clients in many types of cases. A lot of our practice consists of DUI cases and domestic violence cases. Another significant portion of our clients are accused of felony level offenses of all kinds including assault, felony DUI, theft, robbery, drug, firearms and even murder. In addition to these criminal cases we also assist our clients in several fields of law related to criminal defense. Immigration, civil rights restoration, expungement and/or vacation of criminal records, and drug asset forfeiture defense are most of the types of cases we assist our clients with. If you have a question about whether we would handle the type of case you have and it’s not listed here, please contact us.

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In Which Courthouses do We Represent Clients?
We represent persons accused in federal court. We represent clients in the District and Superior Courts of Pierce, Thurston, Kitsap and southern King County. Other locations are only by special arrangement. Also we appear in most of the municipal courts in the area: Tacoma Municipal Court, Kent Municipal Court, Olympia Municipal Court and Port Orchard Municipal Court being just a few of the largest examples.