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The Third and Final Installment in the After the Arrest Series - By Chief Deputy District Attorney Jessica Martinez


The first stage of the trial is called Voir Dire which translates to “See the truth”. At this stage, a panel of 40 or more jurors who reside in the county in which the trial is taking place are selected using a lottery system. The Judge speaks with all the potential jurors and ask them questions. Once the judge is finished asking the jurors questions the District Attorney can ask questions of the jurors. Once the District Attorney has finished asking questions, the defense attorney asks questions of the jurors. The goal here is to get to know as much as possible about each potential juror to select jurors who do not possess biases and preconceived notions about the case before hearing the evidence. The state and the defense want jurors who will decide the outcome of the case based solely on the evidence presented during trial.

Once questioning is finished, the court goes through each juror one by one and asks the defense and the state if they would like to keep that juror or strike them. The State picks first and gets three strikes. The defense gets 5 strikes. The first 12 jurors who are not stricken will be selected to sit on the jury.


Once a jury is Impaneled, opening statements commence. The State always goes first during a trial. Opening statements are a chance for the State and the Defense to tell the jury what they believe the evidence will show. It’s a chance to give the jury an introduction into what the case will be.

After opening Statements, the state then puts on what’s called its Case in Chief. The state calls all their witnesses to testify about the nature of the case, presents physical evidence through these witnesses such as photographs, videos, clothes with blood on it or the weapons used during the crime. Once the state has finished asking questions of each witness the defense may then cross examine the witness to test that witness’ credibility. After cross examination the state may then ask follow up questions only regarding what was discussed in cross examination. The state cannot go beyond anything discussed in cross examination. This is called, Outside the Scope of Cross and an objection will be raised by the defense if this happens.

Also, during the state’s case in chief, the state must make sure to prove each element of the charges. For example, a charge of a battery on a household member, the state must show

1. The defendant intentionally touched or applied force to the victim, a household member.

2. The defendant acted in a rude, insolent, or angry manner.

3. This happened in New Mexico on or about the day of incident.

A household member means a spouse, former spouse, parent, present or former stepparent, present or former parent in-law, grandparent, grandparent-in-law, a co- parent of a child, or a person with whom the Defendant has had a continuing personal relationship. Cohabitation is not necessary to be deemed a household member.

The state then attempts to prove these elements by presenting testimony from the victim about what happened, when it happened, where it happened, the relationship between the victim and the defendant, and asking the victim to identify that the defendant is in fact the person who caused the injuries to her/him on the day in question to prove each element of battery on a household member.

The state may also call other witnesses to corroborate the victim’s testimony such as law enforcement officers who responded to the call and who maybe saw marks on the victim’s body, or wounds on the defendant’s knuckles, or who collected the assault weapon. Other witnesses may also be called to testify who may have seen the incident take place, and possible forensic scientists who tested the evidence for fingerprints, DNA, or blood.

When the state has finished presenting all the evidence the state possesses against the defendant the State will rest. The defense then makes a motion for a Directed Verdict and argue that the state failed to meet its burden of proof, failing to prove each element of the crime charged. While this motion is standard practice it is rarely granted in full, however, occasionally a case will get dismissed because the evidence presented did not prove each element of the crime charged.

If the court denies the directed verdict motion, the defense then can put on its own defense. The defendant is not obligated to put on its own defense. If the Defendant chooses not to put on his/her own defense the jury will be instructed not to consider this choice in their deliberations as it is the defendant’s constitutional right to do so and should not be judged for invoking this right.

After all evidence has been presented, the State and the defense will present their closing arguments. Closing arguments are a chance for both parties to explain to the jury why they should reach a certain verdict based on the evidence presented in court. The State will present first, followed by the defense. Once the defense has finished their closing argument, the State will present a rebuttal closing argument.


After the State and the defense have finished presenting their cases and evidence to the jury, the judge reads the jury a series of instructions called Uniform Jury Instructions. The jury must follow these instructions during their deliberations and must unanimously answer yes to every question in the jury instructions to reach a verdict of guilty. If they answer no to any of the questions, then their verdict must be not guilty. If the jury cannot unanimously reach a decision, then the jury will hang. This is called a hung jury. If this occurs, the judge will declare a mistrial and new trial will commence to a new panel of jurors.

If the jury reaches a guilty verdict the court moves on to sentencing the defendant. Most often if the judge has discretion on the range of sentencing the judge will order a Pre-Sentence Report. This report is prepared by probation and parole. It includes the defendant’s background such as childhood experiences, past and current drug abuse, any mental or physical conditions, employment history and criminal history. The judge uses this report to help make his/her decision at sentencing.


Before the judge decides on how to sentence the defendant, the judge hears arguments from the state, which is usually for a stricter punishment, and the defense, which is normally for a more lenient punishment. After hearing the arguments and statements from family members or victims the judge decides and sentences the defendant. The sentence can range anywhere from probation to incarceration depending on the nature of the charges and the defendant’s history.


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