1. Basic Criminal Law: The United States Constitution, Procedure and Crimes Anniken U. Davenport ©2006 Pearson Education, Inc. Pearson Prentice Hall Upper Saddle River, NJ 07458 Basic Criminal Law: The United States Constitution, Procedure and Crimes Anniken U. Davenport

2. ©2006 Pearson Education, Inc. Pearson Prentice Hall Upper Saddle River, NJ 07458 Chapter 6 The Constitutional Right to Trial by Jury UNIT TWO: CRIMINAL PROCEDURE

3. Basic Criminal Law: The United States Constitution, Procedure and Crimes Anniken U. Davenport ©2006 Pearson Education, Inc. Pearson Prentice Hall Upper Saddle River, NJ 07458  Introduction and Historical Background Every year, all across the United States, millions of citizens are called to jury duty. One of the earliest known uses of ordinary citizens as fact finders is the use of volunteers in ancient Greece. These volunteers were collectively referred to as the dicastery. England traces the right to trial by jury as far back as Henry II’s Constitutions of Clarendon in 1164 and the Magna Carta in 1215. Trial by jury replaced two earlier methods for determining guilt in medieval England, trial by battle and trial by ordeal. Trial by battle was essentially used when a private individual believed himself wronged by the accused in some way.

4. Basic Criminal Law: The United States Constitution, Procedure and Crimes Anniken U. Davenport ©2006 Pearson Education, Inc. Pearson Prentice Hall Upper Saddle River, NJ 07458 Trial by ordeal involved having the accused perform a physical task. If he survived unharmed, he was innocent. The right to a jury trial came to America with the English colonists. The settlers demanded that they be tried in America, not back in England. They also insisted that the jury consist of fellow colonists, not Englishmen. After the Revolution, the right to a jury trial in a criminal case was specifically provided for in the Constitution, not once, but twice. First in Article III, section 2 of the Constitution. The the Sixth Amendment reiterates the right. Through judicial interpretation, the right to a jury trial has been expanded and refined. It is now clear that every criminal defendant who is accused of a crime punishable by more than six months in prison can demand a jury trial.

5. Basic Criminal Law: The United States Constitution, Procedure and Crimes Anniken U. Davenport ©2006 Pearson Education, Inc. Pearson Prentice Hall Upper Saddle River, NJ 07458  Defining the Right to Trial by Jury Who can demand trial by jury?  The federal government has always allowed defendants in criminal cases to have their case heard by juries.  Every state constitution provides some type of guarantee that criminal defendants may have their case heard by a jury. Until 1968, some state constitutions only provided for the right to a jury trial in cases where the punishment was death or imprisonment at hard labor for a long period of time. The case that firmly established that the Sixth Amendment’s guarantee of a jury trial applied to the states was Duncan v. Louisiana.  The Court wrote that the Sixth Amendment applied to states, too, not just to the federal government.

6. Basic Criminal Law: The United States Constitution, Procedure and Crimes Anniken U. Davenport ©2006 Pearson Education, Inc. Pearson Prentice Hall Upper Saddle River, NJ 07458 Generally, if the punishment possible under a criminal law is six months or less in prison, there is no right to a jury trial. If the defendant faces the possibility of more than six months in prison, he or she has the right to demand a jury trial.  The defendants choices are: plead guilty, be tried by a judge, or be tried by jury. Plea Bargaining and Trial by Jury  According to Department of Justice statistics, almost 95 percent of defendants sentenced for a federal crime pled guilty.  A plea bargain is an agreement between the prosecutor and defendant that calls for the defendant to plead guilty in exchange for receiving a lighter sentence than he might have received or in exchange for a reduction in the type or number of charges.

7. Basic Criminal Law: The United States Constitution, Procedure and Crimes Anniken U. Davenport ©2006 Pearson Education, Inc. Pearson Prentice Hall Upper Saddle River, NJ 07458  Trials by Judge In a few cases, trial my be by a judge. A defendant may choose trial by judge if the case involves facts that might inflame a jury. Trial by judge has another advantage: Unlike a guilty plea, the decision can be appealed to a higher court.  How the Jury Pool is Selected There are two types of juries: grand and petit. One serves as a mechanism for bringing criminal charges, and the other decides whether the accused is guilty as charged or innocent of the charges against him.  How Jurors are Called The group of people from which a jury is selected is variously known as the jury pool, array, panel, or venire. The pool from which jurors are to be picked is drawn from the local population.

8. Basic Criminal Law: The United States Constitution, Procedure and Crimes Anniken U. Davenport ©2006 Pearson Education, Inc. Pearson Prentice Hall Upper Saddle River, NJ 07458  The jury pool must be varied enough to allow the jury selected from the pool to be a “representative cross section of the community.”  The Supreme Court has consistently upheld the right of all groups or classes of citizens to serve on juries.  As early as 1880, the Supreme Court ruled that a fair trial demanded that all racial groups be included in the pool of potential jurors and that all groups have the opportunity to serve on juries.  Empaneling the Jury Excusing Jurors for Hardship Some jurisdictions allow potential jurors to request exemptions as soon as they receive written notice to appear for jury duty. Others require all jurors to appear before the trial judge to request an exemption. Granting every request tends to concentrate those with “free time” on juries, usually the retired, the unemployed and students.

9. Basic Criminal Law: The United States Constitution, Procedure and Crimes Anniken U. Davenport ©2006 Pearson Education, Inc. Pearson Prentice Hall Upper Saddle River, NJ 07458  Voir Dire When the court or attorneys involved in a case question potential jurors about their ability to serve as impartial jurors, the process is called voir dire. Voir dire literally means “to speak the truth”.  The Challenge for Cause When making a challenge for cause, the attorney states his or her reasons for believing that the jury pool member is unable to be an impartial judge of the facts of the case.  The Peremptory Challenge A peremptory challenge involves striking a juror from consideration as a juror for any reason, or no reason at all.

10. Basic Criminal Law: The United States Constitution, Procedure and Crimes Anniken U. Davenport ©2006 Pearson Education, Inc. Pearson Prentice Hall Upper Saddle River, NJ 07458  Death Qualifying Jurors A jury that will hear a death penalty case must be Witherspoon qualified. The term comes from the Supreme Court case Witherspoon v. Illinois. The jurors must be asked whether they are able to follow the court’s instructions on the law and can vote for death if the facts are appropriate. If they answer “yes” they are “Witherspoon qualified.”  In federal criminal cases, a jury must have 12 members. Criminal trials in state court can use a lesser number of jurors. In 1970 the Supreme Court held that six jurors were a sufficient number. The Supreme Court relied on a number of studies on jury deliberations and group dynamics.

11. Basic Criminal Law: The United States Constitution, Procedure and Crimes Anniken U. Davenport ©2006 Pearson Education, Inc. Pearson Prentice Hall Upper Saddle River, NJ 07458 One study cited by the Court found that the likelihood of convicting an innocent person rises as the size of the jury shrinks, while the risk of not convicting a guilty person rises as the size of the jury gets larger.  Pretrial Publicity, Change of Venue or Venire, and Sequestration The Media and Finding Impartial Jurors Today the details of crimes are known to millions of people almost as soon as they happen. Judges are obligated to judge defendants impartially. Jurors can only consider the evidence presented at trial.

12. Basic Criminal Law: The United States Constitution, Procedure and Crimes Anniken U. Davenport ©2006 Pearson Education, Inc. Pearson Prentice Hall Upper Saddle River, NJ 07458  Change of Venue and Venire Many crimes receive intense media coverage locally, but little mention statewide or nationally. Moving the case to another geographic area is called a change of venue. Another way of finding impartial jurors is through a change of venire. In that case, the simplest solution may be to bring the jurors in from another location.  Sequestration Once a trial starts, jurors are told to disregard anything they hear about the case other than in the courtroom. To minimize the possibility of exposure to facts outside the courtroom juries can be sequestered. Sequester means to separate. The jurors in the O.J. Simpson murder case were sequestered for over a year.

13. Basic Criminal Law: The United States Constitution, Procedure and Crimes Anniken U. Davenport ©2006 Pearson Education, Inc. Pearson Prentice Hall Upper Saddle River, NJ 07458  Rendering the Verdict Beyond a Reasonable Doubt The state must prove that the defendant is guilty of a crime beyond a reasonable doubt. The court defines reasonable doubt for the jury before it begins deliberation. Jurors are only required to decide that they are convinced that the defendant did it. Juries are told before they begin deliberation that their function is to decide what the facts are and then to apply the law to those facts. These are the jury instructions.  Jury Unanimity, Hung Juries, and Reasonable Doubt In federal criminal trials, the jury must reach a unanimous decision.

14. Basic Criminal Law: The United States Constitution, Procedure and Crimes Anniken U. Davenport ©2006 Pearson Education, Inc. Pearson Prentice Hall Upper Saddle River, NJ 07458 The Supreme Court has upheld a state law that required only 9 out of 12 jurors to agree on conviction or acquittal. In 1979 the Supreme Court ruled that juries of six must reach a unanimous decision. Most states do require a unanimous jury decision. In those states, if all jurors don’t agree the jury is said to be a hung jury. A defendant can be retried if the jury is unable to convict or acquit him or her.  The role of the jury and the role of the judge The judge is charged with the task of interpreting and determining what is law. The jury is given the role of finding the facts in a case.