1. STREET LAW UNIT 2: Criminal Law and Juvenile Justice Chapter 14
Criminal Justice Process: The Trial
STREET LAW

2. Many of the basic rights set forth in the U. S
Many of the basic rights set forth in the U.S. Constitution apply to people accused of a crime
Accused people are entitled to have a public jury trial without undue delay

3. During their trial, they are entitled to:
be informed of their rights & of the charges against them
to confront & cross-examine witnesses
to require witnesses to testify on their behalf
to refuse to testify against themselves
& to be represented by an attorney
These rights together constitute the overall right to a fair trial

4. Right to Trial by Jury  
The 6th Amendment guarantees the right to a jury trial in most criminal cases
However, a jury is not required in every case, & most trials proceed without one
Most criminal cases are resolved by guilty pleas
Jury trials are also not required for certain minor offenses (< 6 mo. in prison)
Defendants can waive (give up) their right to a jury trial & have their case heard by a judge (bench trial)
Jury panels are selected randomly from voter registration or ID/Driver’s license lists (& in some states tax lists) & aim to be representative of the community

5. How Are Petit Juries Selected?
Petit jurors are people who hear evidence in a trial & determine whether or not a defendant is guilty
In some states, petit jurors also decide the punishment a guilty person receives—this is in contrast to grand jurors

6. The Summons
The 1st step in selecting a jury is to call a group of potential jurors to the courthouse for jury duty
Most people asked to serve on juries get a letter in the mail called a summons
The summons tells them where & when they should report for duty

7. The Jury Venire
Most people who appear for jury duty are not actually picked to serve on a jury
The court sends summonses to more people than it needs
Once a person shows up for jury duty, he or she is officially in the jury venire, or panel from which the jury is chosen
In most court systems, a large group of people are summoned to appear on the same day

8. Each is assigned a number
The clerk then calls for jurors by number to go to a particular courtroom
Once a person is sent to a courtroom, the chances of being picked for duty are much higher
Depending on how many juries are needed that day, the rest of the people who were summoned will be sent home
You Tube: Jury Duty - Massachusetts School of Law

9. You Tube: Voir Dire in Action
The Voir Dire
To narrow down the group even more, lawyers representing the defendant & lawyers representing the prosecutor or plaintiff question potential jurors
Through the questioning process, lawyers try to determine if a potential juror holds biases or prejudices that would affect his or her ability to be impartial
This questioning process is called voir dire, which means to “seek the truth” in French
You Tube: Voir Dire in Action

10. Removal for Cause
If, based on answers given in voir dire, lawyers think a potential juror would be biased against their side of the case, they can request for that juror to be removed from the pool
This is called removal for cause
As potential jury members are eliminated, the venire gets smaller

11. Peremptory Challenges
In the U.S. adversarial system of justice, lawyers want jurors who will be sympathetic to their side of the case
In addition to removing jurors for cause, it has been a long tradition to allow lawyers to remove certain potential jurors from the venire without stating a reason
This is called peremptory challenge

12. When lawyers use peremptory challenges, they may base their requests on instinct & probability
The U.S. Supreme Court has ruled that judges & lawyers cannot use peremptory challenges to remove potential jurors because of their race or gender
Each side may use up to 6 peremptory challenges (plus 1 for an alternate juror) except in death penalty cases where you get more

13. Seating (or empanelling) the Jury
Once the voir dire is finished & potential jurors are removed for cause or through peremptory challenges, a jury is selected
In most criminal trials, 12 people serve on a jury & may be joined by 1 or 2 alternates
Some civil trials—cases involving lawsuits—use 12 jurors, while others use 6 jurors (the U.S. Supreme Court only requires 6)
Jury Selection: What Should You Ask?

14. Improving the Jury System
The right to a jury trial in criminal cases was the only explicit guarantee to appear in both the original U.S. Constitution & in the Bill of Rights that was added later
The role of the jury in both civil & criminal trials has been the subject of much debate

15. One argument is that U.S. trials should become more inquisitorial, meaning the judge should play a more dominant role (as is the case in some European countries)
Another argument is that the jury should be more actively involved in the case, which would improve the jury’s ability to interpret information & determine the facts

16. Specific Suggestions
Looking to a wider variety of sources from which to draw potential jurors to provide a more diverse jury pool
Eliminating or cutting back on peremptory challenges & extensive lawyer-conducted voir dire
Retaining the rule of unanimity & the 12-member jury

17. Drafting clear & concise jury instructions & presenting the instructions to the jury before the trial starts
Giving jurors the right to communicate with each other, ask questions of the witnesses as well as the judge, & take notes during trial
Allowing for greater jury participation in sentencing; &
Requiring the jury to give reasons for its verdict in a written decision

18. The U.S. Supreme Court has held that juries in state courts need not be composed of 12 persons - they have to have at least 6 people in criminal cases
For non-petty cases using a 6-person jury, the Supreme Court has ruled that conviction must be unanimous
In some states smaller juries are permitted so long as the jury is large enough to promote group deliberation & provides a possibility for obtaining a cross section of the community

19. A jury of fewer than 6 persons for a non-petty offense is deemed to violate the constitutional right to trial by jury
The Supreme Court has permitted a 9-to-3 verdict in a non-capital, state criminal case
WA state law requires a unanimous decision in criminal cases

20. A Jury of Your Peers
The right to a jury trial helps guarantee judgment by one’s peers & provides for community participation in the criminal justice system
These ideas are considered basic to the American notions of fairness & justice

21. Legal Difficulties Involved in Peremptory Challenges
“The Batson Challenge”
In Batson v. Kentucky, an African American defendant was convicted by an all-white jury in Kentucky
The defendant argued that the jury should be dismissed on the grounds that the prosecution’s removal of African American jurors violated his rights under the 6th & 14th Amendments
These amendments guarantee the defendant a jury drawn from a cross section of the community & equal protection under the law

22. The U.S. Supreme Court held that the equal protection clause of the 14th Amendment prohibits the prosecution from excluding potential jurors solely on the basis of race
The Court also held that the clause forbids the prosecution’s exclusion of African American jurors based on the state’s assumption that African American jurors as a group are unable to impartially consider a case against an African American defendant

23. The Court found that this type of exclusion practice not only denied the rights guaranteed to the defendant under the 6th & 14th Amendments, but also discriminated against the excluded juror
The Court noted that discriminatory selection procedures undermine the public’s confidence in the fairness of our justice system

24. In its decision, the Court also said that a state denies an African American defendant equal protection when it puts him on trial before a jury from which members of his race have purposely been excluded
The Court wrote: “The very idea of a jury is that it is a body of men composed of the peers or equals of the person [who is on trial]”
Despite this decision, many juries remained segregated well into the 1950s

25. In a much earlier case, the Supreme Court ruled that a state law exempting women from jury service solely because of their gender deprives a defendant of his or her 6th and 14th Amendment rights to an impartial jury
The Court said that excluding identifiable segments of the population cannot be squared with the constitutional concept of trial before a jury composed of a fair cross section of the community

26. The American with Disabilities Act (ADA) prohibits discrimination against an individual with a disability
The ADA plays a role in the jury selection process because jurors & potential jurors must be given reasonable accommodations that enable them to serve, rather than being excluded outright

27. The Composition of Juries
Should every juror have the same skills? Experiences? Values?
What is diversity?
Is it a good idea to have a diverse jury?
What would be the advantages of having different perspectives on a panel of jurors, if any?
What might be the disadvantages, if any?

28. When the jury system first began in the U. S
When the jury system first began in the U.S., the only people allowed to serve on juries were white men who owned property
Over time, the property, race, & gender requirements were dropped
In the late 1870s, the U.S. Supreme Court ruled that states cannot prevent any citizen from having the opportunity to serve on a jury because of his or her race

29. Questions to Consider . . .
What do you think the phrase “a jury of your peers” means?
If a 13-year-old was on trial & the jury was composed of adults, do you think the proceeding would be fair?
How close in age should the jury be to the defendant?
What are the benefits of having jurors of various ages? What are the drawbacks?
Can young people have a jury of their peers if jurors must be at least 18 years old to serve on a jury?
There are a growing number of youth courts, which attempt to give young people with minor offenses a true jury of their peers

30. What if the jury was all male & the offender was female?
Should the jury be from the same part of town or same neighborhood as the offender?
What if the jury was composed of Hispanics & the accused was Asian?

31. Are We Guaranteed a Right to a Jury of Our Peers?
The Constitution does not literally & specifically guarantee a diverse or “representative” jury of a defendant’s peers; however, it does guarantee the right to an impartial jury

32. Jury Diversity & Policy Analysis
Many people are looking at ways to make adult juries more diverse, particularly since historical cases like the rape trial known as the Scottsboro case & the murder trial after the assassination of Emmit Till
Some Americans have been skeptical of high-profile & racially-charged cases, like those involving O.J. Simpson, Amadou Diallo, Rodney King, & others, & the effect of the composition of the juries on the level of justice some people perceived in those cases

33. Right to Speedy and Public Trial
The 6th Amendment provides defendants with a right to a speedy trial in all criminal cases
Without this requirement, an innocent person might be denied fundamental liberties while awaiting trial in jail for something he or she did not do
The case may be dismissed if the person does not receive a speedy trial
Defendants often waive, or give up, their right to a speedy trial because they may need more time to prepare

34. The U.S. Supreme Court announced the four factors that courts must use when determining whether or not the right to a speedy trial has been violated:
The length of the delay
The reason for the delay
Whether or not the defendant asserted his or her right to a speedy trial, and
The prejudice resulting from the delay

35. Writ of Habeas Corpus
An order from a higher court to a lower court or to a government official to bring the defendant to court
A writ, or legal action, through which a prisoner can be released from unlawful detention, that is, detention lacking sufficient cause or evidence
Historically been an important legal instrument safeguarding individual freedom against arbitrary state action

36. Public Trial
Public trials, along with freedom of the press to cover trials, limit the power of government to deprive accused people of their rights
This right, along with others in the Constitution, is not absolute
For example:
Some jurisdictions close all juvenile court proceedings
Judges, (or 1 or both parties) in some high-profile cases have attempted to exclude the press from preliminary proceedings based on the theory that pretrial publicity makes it impossible to select unbiased jurors

37. Jury Nullification
Juries determine the facts provided at trial & apply the law based on instructions by the judge
Sometimes juries disregard the law & the judge’s instructions when they believe they must do so in the interest of justice  jury nullification
Ex: in the 19th century, some juries refused to convict people who hid runaway slaves, even though it was illegal to do so at that time

38. Today juries sometimes refuse to convict when they believe a law is unfair or is being enforced unfairly
Ex: a refusal to convict a defendant for marijuana possession when the defendant uses the drug for strictly medicinal purposes
Ex: assisted suicide when the victim is suffering from a disease

39. Right to Compulsory Process & to Confront Witnesses
Defendants in a criminal case have a right to compel, or force, witnesses to testify through the use of a subpoena—a court order that requires witnesses to testify
The 6th Amendment also provides defendants with the right to face the witnesses testifying against them & to ask them questions through cross-examination

40. The issue of the right to confrontation has been the focus of special attention in child & sexual abuse cases
Although the Supreme Court has rejected state statutes that afford blanket protections for traumatic child abuse cases, the Court has allowed the use of closed-circuit TV for witness testimony where a case-specific determination is made that the child witness would be traumatized by the presence of the defendant

41. Still, the Court has expressed “a preference for face-to-face confrontation” between witnesses & defendants where feasible
This idea derives from the traditional concept that persons are less likely to fabricate testimony when forced to look squarely at the person they are accusing

42. Freedom from Self-Incrimination
The 5th Amendment protects a defendant from having to testify against himself or herself in a criminal case
The prosecutor cannot use the decision not to testify as evidence of the defendant's guilt
Regardless of innocence or guilt, defense attorneys often believe it is better that their clients do not take the stand

43. Critics argue that self-incrimination is no protection for innocent defendants; rather, it keeps criminals from being convicted
Others say that its importance is not to protect “the innocent from conviction, but rather to preserve the integrity of a judicial system in which even the guilty are not to be convicted unless the prosecution shoulders the entire load”

44. A witness who is given immunity cannot be prosecuted based on any information provided in testimony
Sometimes the government will grant immunity when the information a person has is more important than prosecuting that person

45. Right to an Attorney  
The 6th Amendment provides each defendant with the right to have a lawyer assist with his or her defense
In cases for which imprisonment is a possible punishment, the government provides defense counsel for indigent (poor) defendants
The right to an attorney has been held to mean that people have the right to “effective” assistance of counsel

46. If this is not provided in a criminal case, defendants may be able to appeal & ask for a new trial
This does not mean that a person must have an “excellent” or even a “good” lawyer
In Strickland v. Washington, the Supreme Court ruled that in order to prevail on an appeal, a defendant must show reasonable probability that the result would have been different, but for the attorney’s unprofessional conduct

47. To prove “ineffective assistance of counsel,” one must show a serious error by the attorney that affected the outcome of the case
In the face of some budget shortfalls, many states have begun imposing a fee (a co-pay) for using a public defender, ranging from $10 to $250
Critics claim these fees violate the 6th Amendment & the Gideon ruling [Gideon vs. Wainwright]
The fees may cause some people to give up their right to counsel aid, &, therefore, they may not get a fair trial

48. Criminal Appeals  
If the jury returns a verdict of “not guilty,” the case is usually over
If the jury finds the defendant “guilty,” the defense may ask the judge to overturn the jury's verdict
The defense may also appeal to a higher court, known as an appellate court, claiming that there were legal errors made by the judge during the trial
The defendant can challenge the conviction or the sentencing decision

49. New information is not presented at an appeal
The defendant’s brief sets out the alleged errors of law at the trial that led to the conviction
The state’s reply brief provides a response to those arguments

50. Serious Errors of Law Among the possible errors are:
Ineffective assistance of counsel
Improperly admitting evidence
Giving the jury the wrong instructions
Improper use of a sentencing guideline

51. Trial courts determine questions of fact (guilty or not guilty in a criminal case)
Appellate courts determine questions of law
in order to win an appeal, the defendant (now called the petitioner or appellant) must convince the appeals court that there were serious errors of law made at the trial

52. Can people appeal a verdict because they think the jury made a mistake?
No, usually an appeal is possible only when someone claims the trial court made an error of law— not an error of fact
Assume a judge made an error during the trial that involved law—will the case automatically be granted an appeal?
No, the trial court’s decision will not be reversed if the judge’s error is considered so minor that it would not affect the outcome of the case

53. Are appeals heard by a jury of citizens?
No, typically, appeals are heard by a panel of three or more judges

54. One of the more compelling issues surrounding the appeals process is how people who are indigent are served
There are significant differences among the states regarding whether a poor person can get assistance with the costs associated with appeals, such as lawyer fees, filing fees, transcript costs, etc.

55. Quote from former Attorney General Janet Reno– presented at the First National Symposium on Indigent Defense:
I believe that all of us, regardless of our position in the criminal justice system, have the responsibility to work to improve the quality of criminal defense for the poor. Our system of justice will only work, and will only inspire complete confidence and trust of the people, if we have strong prosecutors, an impartial judiciary, and a strong system of indigent criminal defense. When the conviction of a defendant is challenged on the basis of inadequate representation, the very legitimacy of the conviction itself is called into question. Our criminal justice system is interdependent: if one leg of the system is weaker than the others, the whole system will ultimately falter.”