UNIT 2: Criminal Law and Juvenile Justice
Chapter 14
Criminal Justice Process: The Trial
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
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During their trial, they are entitled to:
 be informed of their rights & of the charges against
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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
Right to Trial by Jury
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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
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
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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

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
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
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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
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You Tube: Voir Dire in Action
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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
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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
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
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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)
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Jury Selection: What Should You Ask?
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

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
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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
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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
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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

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
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

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
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

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
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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

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

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
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?

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
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Questions to Consider . . .
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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
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?
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Are We Guaranteed a Right to a
Jury of Our Peers?
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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
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 highprofile & 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

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
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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
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
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
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
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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
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
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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

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
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

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”

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
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
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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
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
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
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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
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
Trial courts determine questions of fact
(guilty or not guilty in a criminal case)
 Appellate courts determine questions of law
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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

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

Are appeals heard by a jury of citizens?
 No, typically, appeals are heard by a panel of three
or more judges
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.
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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.”