During a criminal trial a judge or jury examines the evidence presented by the defense and prosecutors to decide whether, “beyond a reasonable doubt,” a defendant committed a crime. A fair trial allows for the government and the defendant to argue their sides of the case. When a criminal case is tried before a judge and not a jury, the judge decides all issues of law and fact. In a jury trial, however, a fair trial starts with picking a fair jury.
Trial Phases for a Crime
A criminal jury trial typically has seven phases:
- Choosing a Jury
- Opening Statements
- Witness Testimony and Cross-Examination
- Closing Arguments
- Jury Instruction
- Jury Deliberation and Announcement of Verdict
- Punishment Hearing
(Note that criminal trials will not all have seven phases. For example, criminal defense lawyers at Traylor Law Firm work extremely hard before trial to see if we can obtain a dismissal without ever going to trial. This can happen through pretrial negotiation but also by the judge ruling on legal issues before trial. For instance, if the state’s evidence gets suppressed at a pretrial hearing, a scheduled trial might have zero phases because the state, without the ability to present evidence at trial, may have little choice but to dismiss. Also, sometimes trials end early such as when the judge orders a mistrial. And, of course, when we win and the defendant is found not guilty, no seventh phase is needed because there will not be any punishment.)
Here we focus on the first phase; selecting a jury.
Choosing a Jury (Voire Dire)
The first step of a criminal trial is to select the jury. During jury selection, the judge, the prosecutor (representing the government), and the defendant (through his or her lawyer) screen potential jurors from a pool of jurors.
Once a jury pool is formed the potential jurors are summoned to the courthouse on a particular date and time. The jury pool waits in a room until they are called to a courtroom. Once in the courtroom, the jury selection process begins with questioning. This process of questioning to determine any potential biases is called “voir dire.”
During jury selection, the judge, prosecutors, and defense team ask potential jurors about any beliefs or life experiences that may cause them to be biased as jurors. After hearing from the jurors about these things both sides and the judge assess the ability of each juror to be fair, impartial and follow the law. If either prosecution or defense wishes to excuse a potential juror for a valid legal reason, he or she must use a challenge for cause, which is a request to disqualify an individual from the jury. A challenge for cause is when a request to dismiss a potential juror is based on a specific and stated legal reason. Typically this reason is because the prosecution or defense has identified the potential juror has a potential or actual bias. A defendant (through his or her lawyer) can have the judge dismiss unfair jurors from the jury panel. This is called dismissing “for cause.” The prosecutor may also ask for specific jurors to be dismissed for cause. Attorneys are given unlimited challenges for cause. But the judge can dismiss jurors as well even if neither side requests it. This allows a fair jury to be selected by all parties involved.
Jurors can also be dismissed without stating a reason as part of a peremptory challenge. This challenge is usually based on an attorney’s experience and gut feeling when it comes to choosing a juror. There are typically limited amounts of peremptory challenges that an attorney may use during jury selection.
Potential jurors cannot be dismissed due to a particular characteristic, such as race, ethnicity, and gender. This rule does not apply to challenges based on age or mental and physical disabilities.
While jury duty may be a burden and feel like wasted time, the role of juror is important. They decide the future of the defendant on trial. A juror must hear the evidence presented during trial, consider all the evidence, and decide if the defendant is guilty of the charged crimes. An unbiased jury is key. And for a defendant, having fair and impartial jurors can mean the difference between a life sentence (or worse) and freedom.
Alternate Trial Jurors
Once a jury is selected, alternate jurors are selected in case a regular juror needs to be replaced because of inability to perform jury duty. Alternate jurors are questioned and selected in the same manner as the regular jurors.
Input from Defendant
Both sides and the judge have input into who is included and excluded from the jury. While a criminal defense lawyer makes the final decision about selecting jurors for the defendant, these decisions are not made without the defendant’s input. Your criminal defense lawyer handles all questioning during the voir dire process because a defendant is not allowed to address the potential jurors. The only exception to this is if the defendant is representing him or herself.
The goal of jury selection is to find an unbiased jury that will follow the law, hold the state to its burden of proof and only consider evidence presented during trial so that a fair decision will be made. With all these things in mind a jury is selected.