1. Chapter Thirteen
The Jury and the Trial

2. Introduction
If no plea agreement is reached and the defendant pleads “not guilty”, the case will go to trial
The trial is a symbol of the moral authority of the state
Every defendant has the right to a hearing conducted under rules of procedure in an atmosphere of fair play and objectivity

3. The Jury History of the Jury Trial
Jurors are independent from the court
Persons other than the judge decide factual matters
Helps prevent excess meddling by the government
The concern with having impartial individuals goes back to when Anglo-Saxon kings ruled England

4. The Jury
The Normans who conquered England in 1066 also used procedures that set the stage for modern juries
King Henry II ( ) set up a system to resolve land disputes using a jury of twelve free men
Also introduced the concept of the “presenting jury”
Became one of the precursors to the grand jury system

5. The Jury In 1215, King Johns signed the Magna Carta
Article 39 provides some basis for modern juries
Early juries were “self-informing”
Had preconceived notions going in to the trial
American colonists used juries as a means of rallying against unpopular British laws
Solidified a place in the U.S. Constitution for trial by jury

6. The Jury The Jury When the Right to a Jury Trial Applies
The right was not extended to the states until 1968 in the case of Duncan v. Louisiana
Subsequent decisions have restricted this right
There is no Sixth Amendment constitutional right to a jury in noncriminal proceedings
Known as the noncriminal proceeding rule

7. The Jury
There is also an”petty crime” exception to the Sixth Amendment right to a jury trial
In Baldwin v. New York the Court concluded that crime is petty if it has a punishment of less than six months
Also known as the six-month rule
A defendant charged in a single proceeding with several petty crimes does not have a right to jury trial even if the maximum penalty for all offenses could exceed six months in prison

8. The Jury Waiving the Right to a Jury Trial
There are occasion where a defendant may wish to waive his or her right to a jury trial
If the case is particularly inflammatory or is one with which the community is intimately familiar, then obtaining a fair jury may be difficult
Patton v. United States
The waiver must be “express and intelligent” and voluntary
Waiver of the right to a jury trial can be vetoed by the trial judge

9. The Jury Selecting Prospective Jurors
The process behind selecting an impartial jury is rather complicated
A list of prospective jurors must be compiled
The jury pool
The requirements to serve vary from state to state
Potential jurors are selected from the list
A “panel” or “venire”
A panel of jurors is selected
A jury panel

10. The Jury Once the jury panel is chosen, then voir dire commences
Many defendants have appealed their convictions on the ground the jury list or jury panel were biased
Requires the defendant to prove three facts:
The group alleged to be excluded is a “distinctive” group in the community
The representation of this group in venires from which juries are selected is not fair and reasonable
This underrepresentation is due to systematic exclusion of the group in the jury selection process

11. The Jury The Voir Dire Process
The process is concerned with the selection of jury members who can be “impartial”
“Voir dire” means “to see what is said.”
At this stage the judge, prosecutor, and defense have an opportunity to “hear” potential jurors for evidence of bias
While the jury list or panel may be unbiased an highly representative of the community, the final jury may not be

12. The Jury There are three main steps to the voir dire process:
Questioning by the judges
Concerns potential jurors’ familiarity with case, attitudes, demographic information, etc.
Challenges for the cause
Used by both the defense and prosecution to exclude potential jurors from service on the jury because of bias or a similar reason
Peremptory challenges
Calls for removal of potential jurors without any type of argument

13. The Jury

14. The Jury
TABLE 13–1 Voir Dire Processes by State for Courts of General Jurisdiction (continued)

15. The Jury Jury Consultants: Useful?
Jury consultants claim to be able to identify how prospective jurors will decide
They use social science research on juror decision-making to back up their recommendations
Jury consultants are controversial because the research community is far from unanimous on factors that influence jurors’ decision-making
Some have questioned the “science” behind jury consulting

16. The Jury Jury Decision-Making Jury Size and Voting Requirements
A twelve person jury is not a constitutional requirement
Ballew v. Georgia found a five-member jury unconstitutional, so the appropriate size is between 6 and 12 members
Juries do not have to return unanimous verdicts
Guilt can be determined by less than a unanimous jury in certain jurisdictions

17. The Jury Factors Affecting Jurors’ Decisions
Juror decisions have been studied through the use of mock juries and the Capital Jury Project
Four main set of factors:
Procedural characteristics
Juror characteristics
Case characteristics
Deliberation characteristics

18. The Jury Jury Nullification/Vilification
Jury nullification is the practice of either ignoring or misapplying the law in a certain situation
Is jury nullification a problem?
Jury vilification is when a jury may return verdicts that reflect prejudiced or bigoted community standards when the evidence does not warrant a convictions
Exceptionally rare

19. The Jury Do Jurors Tell the Truth? Time for Professional Jurors?
Jurors have been known to stretch the truth, particularly during the voir dire phase
Time for Professional Jurors?
Disadvantages to lay persons as jurors include not having legal knowledge and the CSI effect
Advantages to a professional jury include demographic diversity and specialized training
Courts in the News: Post-Traumatic Stress Counseling for Jurors

20. The Trial
Speedy Trial
There is no set standard as to what constitutes a “speedy” trial
In United States v. Ewell, the Court identified 3 advantages to a speedy trial:
It prevents excessive incarceration
It minimizes anxiety for the accused
It prevents damage to the defendant’s case

21. The Trial The Problem of Delay
A number of factors contribute to delay, including an excess of crime and an under-funded criminal justice system
Many states have enacted speedy trial laws
The Federal Speedy Trial Act

22. The Trial Box 13-1 Portions Of The Federal Speedy Trial Act
CHARGING AND TRIAL
1. Charges must be filed within 30 days from arrest or service of summons. If no grand jury is in session, a delay can be granted. Also, according to the legislation, the right to a speedy trial only applies once charges have been filed, not at the time of arrest.
2. Trial must take place within 70 days from the point at which charges are filed, or from the date on which the defendant appears before a judge, whichever is later. And in jury trials, the Act provides that trial is said to have commenced once the voir dire process is set in motion.
3. Trial cannot take place less than 30 days from when the defendant first appears, unless the defendant agrees to an earlier trial. This restriction exists so that the defense can build an adequate case.

23. The Trial
Box 13-1 Portions Of The Federal Speedy Trial Act (continued)
SANCTIONED DELAYS
1. Delays caused by the defendant. Examples of such delay are competency hearings, hearings on motions, trials on other charges and interlocutory appeals (i.e., appeals filed before final adjudication).
2. Delays resulting from deferred (i.e., delayed) prosecution, but only with agreement of all parties involved (defense, prosecution, and court).
3. Delays caused by the unavailability of the defendant or important witnesses for either the prosecution or defense.
4. Delays resulting from the defendant’smental incompetence or physical unfitness to stand trial.
5. Delays resulting from treatment of the defendant pursuant to the Narcotics Addict Rehabilitation Act.
6. Delays between dropping charges and filing of new charges for the same or a related offense.
7. Reasonable periods of delay because of joinder of defendants (i.e., because two defendants are tried in the same trial).
8. Any other delay granted by the court with justice cited as the main reason. This is the catchall category. For example, the defense can agree with the prosecution to set a trial date beyond the specified limit (e.g., New York v. Hill, 528 U.S. 110 [2000]).

24. The Trial
Box 13-1 Portions Of The Federal Speedy Trial Act (continued)
FACTORS TO CONSIDER BEFORE A CONTINUANCE WILL BE GRANTED
1. Whether failure to grant a delay would result in a miscarriage of justice.
2. Whether the case is so “unusual or complex” that it is unreasonable to expect adequate preparation during the time limits established by the Act.
3. Whether, when a defendant is arrested and later indicted, the grand jury would have a difficult time determining whether charges should be filed (e.g., because, again, the case is so “unusual or complex”).
4. Whether delay would deny the defendant (or either party) the ability to mount an effective case.
5. Whether the continuance was granted for an “inappropriate” reason, such as court backlog or government negligence.

25. The Trial When the Right to a Speedy Trial Applies
United States v. Marion
The accusation rule
When the Right to a Speedy Trial is Violated
Barker v. Wingo
The Court’s four-element test:
Length of delay
Reason for delay
Defendant’s Assertion of his/her right
Prejudice to the Defendant

26. The Trial The Public Trial Closing Trials
Used in an effort to minimize negative publicity
Waller v. Georgia
Estes v. Texas
Alternatives to Trial Closure
Voir dire
Changes of venue
Jury
Gag orders

27. The Trial
The Order of Events
There may be pretrial motions

28. The Trial Box 13-2 Common Pretrial Motions
Motion for review of conditions of release (if successful, pretrial release conditions could be changed)
Motion for removal of judge (if successful, new judge presides over case)
Motion to suppress evidence (if successful, evidence is excluded from trial)
Motion for continuance (if successful, trial is postponed for period of time)
Motion to dismiss indictment or complaint (if successful, charges are dropped)
Motion to sever offenses (if successful, separate trials are held for separate offenses)
Motion to sever codefendants (if successful, separate trials are held for multiple defendants)
Motion to evaluate defendant competency (if successful, trial may not be held until defendant regains competency)
Motion for change of venue (if successful, trial moves to different jurisdiction)
Motion to exclude public (if successful, trial is closed to public)

29. The Trial Opening Statements Prosecutor’s Evidence
Both of the attorneys summarize their case
Prosecutor’s Evidence
Prove beyond a reasonable doubt (criminal)
Preponderance of evidence (civil)
Types of evidence include direct, circumstantial, real, testimonial, demonstrative and material
Witness testimony require witnesses to be competent and credible
Prosecution performs direct examination on own witnesses

30. The Trial Cross-Examination Redirect and Re-Cross Examination
The opposing attorney questions the witness(s)
Redirect and Re-Cross Examination
The process can go on as long as necessary
Defense Response
The main concern is with establishing reasonable doubt
May utilize affirmative defense
e.g. Alibi defenses and self-defense

31. The Trial Rebuttal Final Motions and Closing Arguments
A rebuttal witness will attempt to attack the credibility of the previous witness
Final Motions and Closing Arguments
Prosecutors go first
Judge’s Instructions to the Jury
The judge will instruct the jury on basic legal principles, discuss the specific offenses in question, advise of standards and tests, and inform of the verdicts that can be selected

32. The Trial Juror Deliberations Hung Juries
Secretive and sequestered in order to preserve the jury’s neutrality and objectivity
Hung Juries
Occurs when a jury cannot reach a verdict and becomes deadlocked
The result is generally a mistrial and a new trial will be held
Allen charge

33. The Trial
The Verdict
How often do juries choose “guilty” over “not guilty”?

34. The Trial Post-Verdict Motions
If a defendant is acquitted, the trial ends
Following a guilty verdict, there will be other hearings
The next step, sentencing, occurs in a separate post-trial hearing
Summary of Steps in a Criminal Trial (Figure 13-6)