Right to Jury Trial Checklist

Does the Right to Jury Trial Attach?
o Serious Offense—
 Special Case: Contempt
 Civil—no right.
 Criminal—if sum of sentences exceeds 6 months.

Does the Jury Meet Constitutional Requirements?
o Number
o Unanimity
o Impartiality
o Cross-Sectional
o Challenges to Prospective Jurors
 For Cause
 Peremptory Challenges

Free Press and Fair Trial: Right of Public Access
o Can Trial Be Closed to the Public?
o Can Trial or Proceeding Be Closed to the Media?
 Substantial prejudice
 Least restrictive Alternative
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Right to Jury Trial Checklist Expanded

Basis
o The right to a jury trial is guaranteed by Art. II, § 2 and 6A.
o It has been extended to the states through the Fourteenth Amendment [Duncan v. Louisiana]

Does the Right to Jury Trial Attach?
o Serious Offense
 Rule: anytime the ∆ is charged with an offense that has a maximum authorized sentence
which exceeds six months the right to a jury trial attaches [Baldwin v. New York].
 Note: there is a right to counsel whenever imprisonment is actually imposed.
o Special Case: Contempt
 Civil—no right to jury trial attaches in cases of civil contempt. Contemnor will be
released from prison as soon as he complies with the court order.
 Criminal—
 multiple-contempt: if the sum of sentences for multiple acts of contempt exceed 6
months, contemnor is entitled to a jury trial [Codispoti v. Pennsylvania]

Does the Jury Meet Constitutional Requirements?
o Number
 Rule: there is no constitutional right to a jury of 12—the minimum number of jurors is 6.
o Unanimity
 Rule: the right to a unanimous jury verdict is not absolute, but depends on jury size.
 SIX  unanimous verdict required [Burch v. Louisiana].
 TWELVE  nonunanimous verdict approved [Apodaca v. Oregon; Johnson v. Louisiana]
o Impartial
 Rule: ∆ has a right to an impartial jury.
o Cross-Sectional
 Rule: ∆ has a right to have the county jury pool reflect a representative cross-section of
the community.
 But… ∆ has no right to have his own jury reflect a cross-section of the
community [Taylor v. Louisiana]

Claim for Unconstitutional Jury Discrimination:
 Showing: under-representation of a distinct and numerically significant
community group
o ∆ does not have to be a member of the excluded group [Taylor v. Louisiana]
o Challenges to Prospective Jurors
 For Cause1
 Rule: parties may strike an unlimited number of potential jurors if there is
ground to believe that they cannot properly perform their duty.
o suffered from same crime
o know ∆
o financial interest

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Peremptory Challenges2
A for cause challenge allows for the removal of a prospective juror when there’s proof of actual or implied bias
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

Rule: it is unconstitutional for the prosecution or defense to exercise peremptory
challenges to exclude from jury persons on account of race or gender [Baston v.
Kentucky; J.E.B. v. Alabama]

Challenging Peremptory Strikes
o (1) Δ bears burden to show facts or circumstances that raise an inference
that exclusion of potential jurors was based on race or gender.
o (2) If burden is met… prosecution must present race-neutral explanation
o (3) Then… judge must decide whether prosecutor’s explanation was:
 genuine reason for strike; or
 pretext for purposeful discrimination
Free Press and Fair Trial: Right of Public Access
o Rule: in criminal prosecutions, the accused has a right to a public trial [Press-Enterprise Co. v.
Superior Court]
o Can Trial be Closed to Public?
 Rule: access to criminal trials may be denied only if the denial is necessitated by a
compelling government interest [Globe Newspaper Co. v. Superior Court]
o Media Issues
 Exclusion from Trial3
 Rule: the judge can order the trial closed only if specific findings are made that
closure is necessary for a fair trial in the particular case [Globe Newspaper Co. v.
Superior Court]
 Requirements:
o Prejudice—∆ must show a substantial probability of prejudice from
proceeding.
o Alternatives—showing that other reasonable alternatives to closure will
not preserve the accused’s right to an unbiased jury.

Prior Restraints on Publication
 Rule: any bar on media coverage of an open hearing is an impermissible prior
restraint [Nebraska Press Ass’n. v. Stuart]
o Note: gag orders and closed proceedings are to be used only in extreme
circumstances.


Least Restrictive Analysis: for gag order on press you must consider:
o nature and extent of pretrial news coverage
o whether other measures would be likely to mitigate the effects of
unrestrained pretrial publicity
o how effectively a restraining order would operate to prevent the threatened
danger
Other Mechanisms
 Continuances—infringes on ∆’s right to speedy trial and lets evidence get stale.
2
A peremptory challenge allows for the removal of a prospective juror without explanation. Usually, reason for exclusion is
“merely a suspicion based on amorphous assumptions about their attitudes.” The future of peremptory challenges may be in doubt.
Some judges do not use them at all and there is no constitutional basis for their use. Therefore, the state does not have a strong interest
in maintaining their use.
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The media has a First Amendment right to attend a criminal trial [Richmond Newspapers, Inc. v. Virginia]. Extended to pretrial
hearings [Press-Enterprise Co. v. Superior Court].
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


Changes of venue—when publicity extraordinarily inflammatory and extensive
Jury sequestration
Sheppard-Mu’Min Remedy
o Exclusion at voir dire of jurors with fixed opinion against ∆ [Mu’min v.
Virgina]
o Gag orders on participants [Sheppard v. Maxwell]
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