Estimated reading time: 9 minutes
The jury trial process, by Criminal Jury Trial Attorney Thomas Gallagher
Every person accused of a crime has the right to a jury trial. But a trial is not only for the benefit of the accused. Of the many steps in the criminal court process, the jury trial process is pivotal. And Rule 26 of the Minnesota Court Rules of Criminal Procedure provides guidelines for jury trials. (The federal court process is similar.) But in the end, the quality of justice depends upon you and me.
Do we as a society have an interest in fair trial procedures? We all suffer when a jury convicts a person of a crime they did not commit. And when a jury convicts the wrong person, the true perpetrator of the crime will not be found.
The criminal jury trial attorney is the key to enforcement of all the other legal protections for the accused. And your attorney should understand the psychology of persuasion.
A fair trial, or a show trial?
A trial could be fair. Or, a trial could have precious little fairness about it. To call a court proceeding a “trial” means nothing. But to conduct a fair, trustworthy, reliable trial requires effort.
In a fair trial, the court focuses upon a fair jury trial process. It ignores the effect choices increasing fairness may have on the outcome. This is what we mean by “Justice is blind.” The right of the accused to present her chosen defense is basic and fundamental to a fair trial. But sometimes a prosecutor or a judge prevents a defendant from presenting their defense or their evidence.
Garbage in, garbage out (GIGO): The right to a jury trial means that the jury has a right to all the relevant evidence constitutionally obtained. And this must include relevant and material evidence, from the defense perspective.
The jury trial attorney for the defense must ensure that defense evidence gets to the jury. He demands that the court honor our Constitutional right to present a defense.
Fact-finding step: At last, the trial is the “search for the truth” step in the court process. In the jury trial process, the jury is the finder-of-fact and law. But in a court trial to a judge only, the judge is the fact-finder. The “fact-finder” considers both side’s evidence; and decides what they think really happened. The fact-finding function precedes the application of the law to the facts. But the jury also applies the law to the facts.
Lawyers outline trial with judge
Jury trials begin with the lawyers discussing the trial evidence, motions in limine, with the judge. They discuss an outline of the trial evidence, along with witness and scheduling issues. Jury trials usually last for days or weeks.
Jury selection
Jury selection follows. The defense lawyer and the prosecutor talk to the potential jury members with the judge observing. We call this “voir dire.” The jury trial attorney may challenge a potential juror “for cause” (meaning for a reason). If so, the judge decides whether to excuse that potential juror or not.
After that process the lawyers may exercise their “peremptory challenges” (no reason required, normally) to exclude potential jurors. But a lawyer’s peremptory challenge may be subject to objection by the opposing attorney on constitutional grounds. For example, the lawyer may object when he suspects the peremptory challenge was based on race.
Opening statements: jury trial
After the jury swears its oath, the prosecuting attorney makes an Opening Statement to the jury. Then the defense lawyer may follow with an Opening Statement. Or he may reserve it for after the close of the prosecution evidence.
Prosecution case-in-chief
Next the prosecuting lawyer presents the prosecution evidence. The prosecutor must attempt to meet her initial burden of production of evidence; or “prima facie” case. If she does, then the prosecution case can survive a defense motion for acquittal. And the prosecuting attorney then hopes to meet their burden of persuading the jury beyond doubt.
Cross examination
“The first to present his case seems right, till another comes forward and questions him.”
Proverbs 18:17 (New International Version).
“Examination” means to question. When a lawyer questions their own witness, we call that “Direct Examination.” And then, when the opposing lawyer questions that opposing witness, we call that “Cross Examination.”
Cross examination of witnesses is essential to the search for the truth by a jury during deliberations. And it may be the most powerful tool available to the defense, in exposing a weak prosecution case.
Defense case
After the prosecution case, the defense may present defense evidence, if it chooses to present evidence. The defense jury trial attorney often will not, since the burden of proving claims made, lays squarely upon the prosecuting attorney. Why present defense evidence when the prosecution evidence fails? But each case is different.
‘In cases of doubt it is no less just than it is safe to adopt the milder construction.’ Ammianus Marcellinus relates an anecdote of the Emperor Julian which illustrates the enforcement of this principle in the Roman law. Numerius, the governor of Narbonensis, was on trial before the emperor, and, contrary to the usage in criminal cases, the trial was public.
Numerius contented himself with denying his guilt, and there was not sufficient proof against him. His adversary, Delphidius, ‘a passionate man,’ seeing that the failure of the accusation was inevitable, could not restrain himself, and exclaimed, ‘Oh, illustrious Caesar! if it is sufficient to deny, what hereafter will become of the guilty?’ to which Julian replied, ‘If it suffices to accuse, what will become of the innocent?’
COFFIN v. U.S., 156 U.S. 432 (1895)
Final arguments: jury trial
Closing arguments to the jury by both lawyers follow. Most consider the prosecution and defense final arguments the most interesting part of the trial. They summarize the evidence in the trial, and connect it to the applicable law, from each party’s perspective.
Judge offers jury instructions
After the judge instructs the jury on the judge’s opinions about the law, the jury and bailiff will be sworn. Then the jury will deliberate.
“It is the first responsibility of every citizen to question authority.”
Benjamin Franklin
Jury deliberation
During deliberation, at last, the jury is now in control. They can take as much time as they like. But if the jury is unable to agree on a unanimous verdict, eventually the judge will declare a mistrial. If the jury does reach a verdict, we all reconvene in the courtroom for the verdict.
“Reflective opinions upholding the necessity for the jury as a protection against arbitrary action, such as prosecutorial abuse of power, stress fundamental features like the jury ‘common sense judgment’ and assurance of ‘community participation in the determination of guilt or innocence.’ Human frailty being what it is, a prosecutor disposed by unworthy motives could likely establish some basis in fact for bringing charges against anyone he wants to book, but the jury system operates in fact, so that the jury will not convict when they empathize with the defendant, as when the offense is one they see themselves as likely to commit, or consider generally acceptable or condonable under the mores of the community.”
United States v. Dougherty, 473 F.2d 1113 (D.C. Cir. 1972)
Jury power: Some of the judge’s jury instructions can be misleading. When a judge instructs jurors to simply “follow the law,” that instruction is incomplete.
Judicial jury instructions should include the law on jury power. Perhaps that missing instruction is unnecessary; since the very core of the jury trial is the power of the jury to apply its community standards and delivery any verdict it views as just. Because, the law also says the jury has the power to return a not-guilty verdict where the jurors believe that the law is wrong. And the jury can bring a not-guilty verdict; even if the jury believes beyond doubt that defendant did the prohibited act intentionally.
“A jury has a power of lenity and can bring in a not guilty verdict in the teeth of the facts.”
State v. Carlson, 268 N.W.2d 553, 560 (Minn. 1978)
In its full form, we call the power: jury nullification. It’s the power of the jury to veto unjust laws. Juries have had this power since the beginning of the United States. In fact, we can trace it back to the birth of democracy in Classical Athens, over 2,400 years ago. So, this power is the essence a jury trial. Another, broader term is the power of jury lenity.
“The jury in a criminal case has the power of lenity — that is, the power to bring in a verdict of not guilty despite the law and the facts.”
State v. Perkins, 353 N.W.2d 557 (Minn. 1984)
A real jury trial is a cornerstone of any real democracy.
“I consider trial by jury as the only anchor ever yet imagined by man, by which a government can be held to the principles of its constitution.”
Thomas Jefferson to Thomas Paine, 1789
Verdict
If the verdict is not-guilty; the court releases the defendant. But if the verdict is “guilty;” the judge may order the defendant into custody. Or the judge may order that conditions of pretrial release continue until the sentencing hearing.
If either the defense or the prosecution believes the jury trial process or pretrial proceedings were illegal or unfair, they can appeal to a higher court. Though some appeals succeed, most do not.
Who has a right to a jury trial?
In Minnesota, the right to a jury trial depends upon the offense level of the charge.
Any criminal charge (felony, gross misdemeanor or misdemeanor) triggers your right to a jury. But you don’t have the right to a jury on a petty misdemeanor charge since jail is not possible.
And currently traditional juvenile court denies the right to a jury trial to most juveniles facing criminal charges. (This is a problem since a Minnesota juvenile “adjudication” of guilt strips civil rights, and can trigger predatory offender registration.)
An accused person may waive or give up her right to a jury trial. And if she does, she chooses a trial to a judge. The trial procedure is similar, but without jury selection and deliberation.
How many jurors in a jury trial?
In Minnesota, a person charged with a felony or gross misdemeanor has the right to a jury of twelve. And we pick one or more alternates, in case we lose a juror along the way. In a misdemeanor case, the accused has the right to a jury of six. Since loss of liberty is not possible in a petty misdemeanor, we have no jury trial right in Minnesota when facing a petty misdemeanor charge.
Do all jurors have to agree for a verdict?
Yes. A verdict in a Minnesota criminal case must be unanimous; whether guilty or not-guilty. And the judge will ask the jury to deliberate until it reaches a verdict. But the judge declares a mistrial if it cannot reach a verdict — deadlocks. We call this a hung jury.
Your criminal defense attorney
You have the right to a lawyer at trial. Though an accused person has the right to represent themselves without a lawyer, that is not a good idea. Even lawyers hire other lawyer to represent them in court.
Conducting a jury trial is an art, requiring hard work and skill. You should hire a criminal jury trial attorney with the skills and a proven history. A good criminal defense lawyer understands and can explain the jury trial process. He works hard and smart for his client.
“Will my case go to jury trial?”
Every criminal case goes to trial unless resolved before trial. And this is every defendant’s sacred right. But a case can settle by agreement or a judge or prosecutor can dismiss the charges after defense efforts. So if that happens, there is no trial.
Minnesota Criminal Lawyer Thomas Gallagher advises clients that the outcome should be the priority; not the time, effort or process. It should not matter whether the defense outcome comes from a:
- plea agreement,
- judge’s Order after a Contested Omnibus Hearing, or
- not-guilty verdict.
Fear of the unknown is natural. But remember that the jury trial right belongs to the defendant. So it is a protection for the defense, against an unfair prosecution.
And Attorney Gallagher can explain and prepare his client for trial. An experienced jury trial attorney, Gallagher can help you know what was once the unknown.
“There are three points in the constitution of Solon which appear to be its most democratic features: first and most important, the prohibition of loans on the security of the debtor’s person; secondly, the right of every person who so willed to claim redress on behalf of any one to whom wrong was being done; thirdly, the institution of the appeal to the jurycourts; and it is to this last, they say, that the masses have owed their strength most of all, since, when the democracy is master of the voting-power, it is master of the constitution.
Moreover, since the laws were not drawn up in simple and explicit terms (but like the one concerning inheritances and wards of state), disputes inevitably occurred, and the courts had to decide in every matter, whether public or private. Some persons in fact believe that Solon deliberately made the laws indefinite, in order that the final decision might be in the hands of the people.”
“The Athenian Constitution,” Section 1, Part 9, By Aristotle, Written 350 B.C.E
Question? Call Lawyer Thomas Gallagher, 612 333-1500
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