1. Criminal Procedure: Theory and Practice, 2d.by
Jefferson L. Ingram

2. CHAPTER 13
Trial Procedure and Legal Rights

3. 1. Trial by Jury: A Constitutional Right
Article 3, Section 2, Constitution of the United States guaranteed trial by jury.
Sixth Amendment reaffirmed the right.
“by an impartial jury of the State and district.”
Constitutional right: only covered federal trials until incorporation later.

4. 2. Application to the Right to a Jury Trial
Reference to “State” in Sixth Amendment:
Referred to location of trial, not state trials.
Under original intent: States free to eliminate jury trials in state cases.
Warren Court revolution incorporated Sixth Amendment jury trial right.
Now applicable to state criminal trials.

5. 3. Selective Incorporation of the Sixth Amendment into the Due Process Clause
Trial by jury:
Among fundamental principles of liberty and justice.
“a fundamental right, essential to a fair trial.” In re Oliver.
“basic in our system of jurisprudence.” Gideon v. Wainwright.
Duncan v. Louisiana incorporated the Sixth Amendment right to jury trial into due process clause of Fourteenth Amendment.

6. Jury trial exists if potential penalty greater than six months.
3. Selective Incorporation of the Sixth Amendment into the Due Process Clause
Following incorporation, states had to offer jury trials on same conditions as federal courts.
Right to jury trial: may differ in form in some states.
Jury trial exists if potential penalty greater than six months.
Bench trials: six months or less.

7. Case 13. 1, Leading Case Brief: Duncan v. Louisiana, 391 U. S
Facts: Duncan charged with simple battery; faced two years in prison. Demanded and was denied a jury trial; judge convicted him and sentenced him to sixty days.
Issue: Does Sixth Amendment require right to state jury trial where potential sentence is two years?
Held: Yes.
Rationale: Court determined that fundamental rights of the Bill of Rights must be recognized by states. Trial by jury is one of the fundamental principles of liberty and justice and is incorporated into due process clause of Fourteenth Amendment.

8. 4. Determining Whether the Right to a Jury Trial Exists
General Rule: Offenses with maximum penalty of six months or less:
Considered petty offenses.
No right to trial by jury.
Argument that common law offenses that had juries should still have them.
Most driving while intoxicated cases considered petty: no constitutional right to jury.
State is free to offer jury trial anytime.

9. 4. Determining Whether the Right to a Jury Trial Exists (cont.)
Juveniles tried in juvenile courts:
No constitutional right to jury trial.
Not considered criminal cases.
Juveniles tried in adult courts:
Have same jury trial rights as adults.

10. 5. Selecting Jurors from a Fair Cross Section
General Rule: the actual jury empanelled must have been selected from a fair cross section of the community.
Guards against arbitrary power and ensures common sense judgment.
Fair cross section is fundamental to the American system of justice.

11. 5. Selecting Jurors from a Fair Cross Section (cont.)
To claim violation of fair cross section:
Must allege and prove excluded group is identifiable and distinctive.
And, the group’s exclusion is unfair and unreasonable.
Jurisdiction must use method of selecting jurors that generates representative pool of all identifiable groups within jurisdiction.

12. 6. Violation of Fair Cross Section Requirement: Proof and Remedy
Defendant should raise issue and demonstrate:
The identifiable group has distinctive group characteristics,
The under-representation of this group in the jury pool unreasonable,
And under-representation is due to attempts to exclude the group.

13. 7. Waiver of the Right to a Trial by Jury
Waiver must be knowingly and intelligently made.
Some states require consent of prosecutor.
May require waiver in open court when represented by attorney.
May have to be in writing.

14. 8. Jury Size: Difference in State and Federal Requirements
Generally, jury composed of twelve persons:
Who must be citizens of the state and of the United States.
Juror vote: Unanimous.
True of federal courts and for death penalty and life imprisonment trials.
Defendant can waive jury size in state cases. Example: juror illness or death.

15. 8. Jury Size: Difference in State and Federal Requirements
Federal criminal juries must have twelve persons and reach unanimous verdicts.
State juries may have fewer than twelve members.
Some states use six-person unanimous juries.
Twelve person juries may be non-unanimous.
Smaller jury more likely to reach verdict.

16. 9. State Efforts to Reduce the Size of Juries
Smaller juries save money: deliberate faster and have fewer hung juries.
Williams v. Florida, approved six-person jury in serious, non-capital case.
Ballew v. Georgia, Supreme Court refused to approve five-person jury.

17. Case 13. 2, Leading Case Brief: Williams v. Florida, 399 U. S
Facts: Williams wanted a twelve-person jury, but state law allowed only six-person jury in his case. He contended that his Sixth Amendment right to a jury trial was violated.
Issue: Does a state violate Sixth Amendment jury trial right with a six-person jury?
Held: No.
Rationale: Framers of Sixth Amendment did not specify twelve jurors. If jury large enough to promote group deliberation, no problem. So long as modified jury serves the purpose of jury, no constitutional harm. Purpose of jury is to prevent oppression by the government.

18. 9. State Efforts to Reduce the Size of Juries (cont.)
Six person juries must have unanimous vote.
Even where six-person jury used, defendant may consent to smaller jury:
Juror illness, no alternates.
Juror death, no alternates.
Limitation: Twelve-person jury required for death penalty or life imprisonment case.

19. 10. The Concept of Jury Unanimity: Variety in State Juries
Louisiana and Oregon permitted non-unanimous jury verdicts in serious, non-capital cases.
(9-3 vote.)
Supreme Court rejected argument that non-unanimous verdicts failed proof beyond a reasonable doubt.

20. 11. Combination of Smaller Juries with Nonunamimous Verdicts
Burch v. Louisiana: Nonunanimous six-person jury vote held unconstitutional in serious, non-capital cases. (5-1 vote.)
States not permitted to introduce nonunanimous jury voting where it had reduced jury to constitutionally minimum number.

21. 12. Trial by Jury: Issues Involving Racial and Gender Discrimination
Keeping minorities from jury service: practiced by some states.
Poll taxes and literacy tests.
“Key man” system reduced minority jurors.
Equal protection clause prevents discrimination in juror selection. Strauder v. West Virginia.
Unconstitutional to allow only white men on jury.

22. 12. Trial by Jury: Issues Involving Racial and Gender Discrimination (cont.)
Provable racial discrimination: Virtually certain reversal of verdict.
Gender discrimination: Treated almost as if racial discrimination occurred.
Cannot remove jurors based on gender.
Improper for state to use peremptory challenges to remove all men in a paternity case.
No person has a right to have a jury composed of any members of same race or gender.

23. 13. Removal of Prospective Jurors: Proper and Improper Rationales
Party can remove any juror for bias, interest, or prejudice.
Peremptory challenge: Not permissible solely due to race, gender, or ethnicity.
To prevail: defendant had to prove history of prosecutor’s use of removal.

24. 14. Proving Improper Rationales for Using Peremptory Juror Challenges
Batson v. Kentucky: improper for prosecutor to remove all minority jurors from case where defendant a minority.
To prove removal improper:
Defendant demonstrates she is member of minority.
That prosecutor removed members of her race from jury solely due to race.
Then prosecutor must prove race-neutral rationale. D d

25. Case 13.3, Leading Case Brief: Batson v. Kentucky, 476 U.S. 79 (1986).
Facts: Prosecutor used peremptory challenges to remove all minority jurors in trial of black man. All white jury convicted him. Batson argued prosecutor used racial discrimination, violating of equal protection clause of Fourteenth Amendment.
Issue: If prosecutor, for racial purposes, removed all jurors of color, does practice violate equal protection?
Held: Yes.
Rationale: When proven racial discrimination appears in a case, any conviction will be reversed. Defendant needs show he is minority; that prosecutor has removed his race from jury purposefully; and then burden on prosecutor to explain race-neutral reasons. If no good explanation: reversal of conviction.

26. 15. Evolution of the Sixth Amendment Right to Counsel
Original view:
Sixth Amendment provided for counsel in federal trials if one could afford one.
Did not address how poor got attorney.
Poor defendants suffered mismatch from beginning of Constitution until 1960’s.
Gideon v. Wainwright: argued for free counsel for indigent.
Held: Free counsel if poor person charged with felony.

27. 16. Constitutional Right to Counsel: Felonies and Misdemeanors
Gideon held: indigent charged with serious, non-capital felony had right to free-appointed counsel.
Argersinger v. Hamlin and Scott v. Illinois: free counsel for all indigents facing any possibility of incarceration.

28. 16. Constitutional Right to Counsel: Felonies and Misdemeanors (cont.)
Right to counsel implies right to effective assistance of counsel. Strickland v. Washington.
Competence of appointed counsel:
Cannot fall below an objective standard of reasonableness.
Performance of counsel should not prejudice the defense.

29. 17. Summary
Right to jury trial depends on potential sentence: Greater than 6 months.
Jury trial may involve different numbers of jurors and nonunanimous voting may be permitted.
Juror selection must meet due process and equal protection standards.
Indigents receive free legal counsel if prison is a possibility.