Chapter 13
Trials and Juries
LEARNING OBJECTIVES
After reading this chapter, students should be able to:
1. Trace the history of trials by jury.
2. Analyze the scope of the right to a trial by jury in a criminal case.
4. Explain how a jury is summoned and selected, including the constitutional
limitations on these processes.
6. Distinguish between the presumptions that apply at the start of trials and the
burdens of proof applicable to overcoming them.
8. Analyze how special limitations on expert witnesses affect the litigation of
criminal cases, especially with regard to leading types of forensic evidence.
10. Describe the effects and implications of pretrial publicity and the solutions that
courts use to prevent those effects from influencing a criminal trial.
LESSON PLAN
Correlated to PowerPoints
I. History of Trial by Jury
Learning Objective 1: Trace the history of trials by jury.
A. The primary purpose of the jury is to prevent oppression by the government
and provide the accused a “safeguard against the corrupt or overzealous
B. English Roots
i. Early English juries often functioned more like modern-day grand juries.
C. Colonial Developments
i. The pivotal role that the right to trial by jury plays in American law is
underscored by the number of times it is mentioned in the Constitution.
Media Tool
Watch PBS video THE OPEN MIND: The Jury System on Trial:
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a case by jury.
II. Law on the Books: The Constitution and Trial by Jury
Learning Objective 2: Analyze the scope of the right to a trial by jury in a
criminal case.
Learning Objective 3: Evaluate the impact of differences in jury size and
unanimity requirements.
A. Throughout most of our nation’s history, the three broad constitutional
provisions dealing with trial by jury had little applicability in state courts.
The U.S. Constitution applied only to trials in federal courts.
B. These practices changed dramatically, however, when the Supreme Court
decided Duncan v. Louisiana (1968), ruling that the jury provisions of the
Sixth Amendment were incorporated by the Due Process Clause of the
Fourteenth Amendment to apply to state courts, as well.
C. Subsequent decisions grappled with the problem of defining the precise
non-unanimous verdicts.
D. Scope of the Right to a Trial by Jury
i. When there is no right to a jury trial, a bench trial takes place in which a
judge serves as both the trier-of-law and trier-of-fact determining guilt.
ii. Bench trials are not limited to cases in which no right to a trial by jury
exists. Sometimes, the parties waive the right to a trial by jury and opt for
a bench trial instead.
iii. State laws vary considerably on when the prosecution and/or defense may
waive a trial by jury in criminal cases.
E. Jury Size
i. In Williams v. Florida (1970, p. 102), the Supreme Court declared that
the number 12 was a “historical accident, unnecessary to effect the
purposes of the jury system and wholly without significance except to
possibility of obtaining a representative cross section of the community.
ii. Attempts to use juries with fewer than six members were struck down by
Ballew v. Georgia (1978).
iii. Many states have specifically authorized juries of fewer than 12 jurors,
but most allow these smaller juries only in misdemeanor cases.
iv. In federal courts, defendants are entitled to a 12-person jury unless the
parties agree in writing to a smaller jury, but 6-member juries in federal
civil cases are quite common.
F. Unanimity
i. The Supreme Court held that verdicts in federal criminal trials must be
unanimous, but it affirmed state courts’ findings of guilty by votes of 9 to
3 and 10 to 2 (Johnson v. Louisiana, 1972; Apodaca v. Oregon, 1972).
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ii. Most state constitutions specifically require unanimous verdicts in
criminal trials.
See Assignment 1
III. Law on the Books: Selecting a Fair and Unbiased Jury
Learning Objective 4: Explain how a jury is summoned and selected, including
the constitutional limitations on these processes.
A. Master Jury List
i. Juries are supposed to be made up of fair-minded laypeople,
representatives of the community in which the defendant allegedly
committed the crime.
ii. The first step in jury selection is the compilation of a master jury list.
Voter registration lists are the most frequently used source for assembling
this list.
iii. Basing the master jury list on voter registration tends to exclude the poor,
the young, racial minorities, and the less educated (Adamakos, 2016).
B. Summoning the Venire
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pool). Not all those summoned will actually serve on the venire.
C. Venire Eligibility
i. Virtually all states have laws that require jurors to be citizens of the
United States, residents of the locality, of a certain minimum age, and
able to understand English.
ii. Most states also disqualify people who, as a result of mental illness, are
not competent to adjudicate a case. Others will be excused because of
statutory exemptions.
iii. The identities of those exempted from jury duty by statute vary greatly.
D. Voir Dire
i. The final step in jury selection is the voir dire (French legal term for “to
speak the truth”), which involves the preliminary examination of a
ii. For hundreds of years, the law has considered voir dire to be an
inexpensive and efficient way to select a fair and impartial jury.
iii. The process, however, may not be a particularly accurate way to detect
bias. Even when venire persons are not deliberately concealing
information, they may unconsciously conceal personal biases or
iv. If a potential juror’s responses during questioning suggest that the person
cannot fairly judge the case, the juror may be challenged for cause by
v. Peremptory challenges are the second method used by the prosecution
and the defense in influencing who will sit on the jury. Each side has a
limited number of peremptory challenges that can be used to exclude a
juror.
vi. Attorneys traditionally enjoyed unrestricted freedom to exercise
peremptory challenges. But in Batson v. Kentucky (1986), the Supreme
Court restricted the ability of prosecutors who used peremptory
1992).
viii. Most recently, the Supreme Court has ordered new trials for several death
row inmates because of racial bias during jury selection (Miller-El v.
Dretke, 2005; Johnson v. California, 2005; Snyder v. Louisiana, 2008).
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ix. The Court extended Batson to cover gender jury bias, holding that
lawyers may not exclude potential jurors from a trial because of their sex
(J.E.B. Petitioner v. Alabama, 1994).
E. Serving on a Jury
i. Every year, thousands of Americans are called to serve as jurors.
ii. Many jurors experience great frustration in the process. They are made to
wait hours in barren courthouse rooms; the compensation is minimal, and
iii. In spite of these hardships, most citizens who actually serve on a jury
express overall satisfaction with their jury service.
iv. Considerable attention is being devoted to reducing the inconvenience of
jury duty.
v. An approach known as the one-day/one-trial jury system requires each
juror to serve either for one day or for the duration of one trial. The
person is then exempt from jury duty for a year or two.
Write a two-page paper on the information provided to judges for the section
chosen. Discuss the complexity of the jury selection process for judges.
Media Tool
Read one section of the New Jersey Judiciary Bench Manual on Jury Selection:
IV. Law in Action: Choosing a Jury Biased in Your Favor
Learning Objective 5: Discuss the function of jury consultants in the process of
scientific jury selection.
A. Educating Jurors
i. Attorneys use voir dire for purposes other than eliminating bias. They use
the questioning of jurors to establish credibility and rapport with the
panel, to educate and sell prospective jurors on their respective theories
of the case, and to either highlight or neutralize potential problem areas in
the case (Johnson, 2015; Voss, 2005).
B. Scientific Jury Selection: Profiling Juries Using Consultants
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i. In recent years, jury selection has taken a scientific turn. Rather than
relying on personal hunch, attorneys in a few highly publicized cases
have employed social scientists to aid them in a more intelligent,
systematic use of the voir dire that has come to be called “scientific jury
selection.”
ii. Teams of jury consultants conduct public opinion polls and employ
laypeople to participate in focus groups or mock trials. These processes
iii. Jury consultants are able to advise the lawyers in a case about which
potential jurors they should want on the jury and those whom they should
seek to avoid.
iv. Trial consultants are hired most often by defense attorneys, as opposed to
the prosecutors. In reality, the consultants try to deselect jurors who are
likely to be adverse to their client.
See Assignments 2 and 3
V. Presumptions and the Burden of Proof
Learning Objective 6: Distinguish between the presumptions that apply at the
start of trials and the burdens of proof applicable to overcoming them.
A. After the jury has been selected and sworn in, most courts provide the jurors
with some basic instructions concerning juror conduct. Judges also typically
provide an overview of both the relevant presumptions and governing burden
of proof.
B. Starting Presumptions
i. Criminal trials start with two presumptions: the presumption of sanity and
the presumption of innocence.
C. Burdens of Proof
i. The concept of burden of proof actually encompasses two separate
burdens, the burden of persuasion and the burden of production.
ii. In meeting its burden of persuasion in a criminal case, the prosecution is
VI. Overview of Basic Evidence
Learning Objective 7: Summarize the basic rules of evidence concerning
trustworthiness and relevance of evidence.
A. Evidence consists of physical objects, testimony, or other things offered to
prove or disprove the existence of a fact. There are several types of evidence
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that may be direct or circumstantial evidence depending on how the evidence
is used at trial.
B. Differentiating Direct and Circumstantial Evidence
i. Direct evidence is first-hand evidence that does not require any
inferences to be drawn in order to establish a proposition of fact.
ii. Circumstantial evidence is indirect evidence.
C. Types of Evidence
i. Evidence can be classified as testimonial evidence, real or physical
evidence, scientific evidence, and demonstrative evidence.
D. Basic Rules of Evidence
i. The presentation of evidence during trial is governed by principles called
rules of evidence. Although they may seem to be a fixed set of legal
VII. Special Rules of Evidence Governing Expert Witnesses
Learning Objective 8: Analyze how special limitations on expert witnesses
affect the litigation of criminal cases, especially with regard to leading types of
forensic evidence.
A. In contrast to lay witnesses, expert witnesses are permitted to give opinions
on matters about which they have no personal knowledge. Before someone is
permitted to give opinions in court, the person must be qualified as an expert
witness based on their knowledge, skill, experience, training, or education.
B. Determining Reliability
i. In Frye v. United States (1923), a federal appeals court refused to allow
an expert to testify about the results of a lie-detector test because the
instrument had not gained general acceptance in the scientific
community.
ii. Shortcomings of the Frye test, however, caused the drafters of the federal
rules of evidence to replace Frye with rules that the U.S. Supreme Court
fleshed out in Daubert v. Merrill-Dow Pharmaceuticals, Inc. (1993).
iii. Daubert established that trial court judges are supposed to act as
gatekeepers who have a special obligation to ensure the reliability of
scientific evidence.
iv. Initially, Daubert applied only to scientific evidence. But in Kumho Tire
Co. v. Carmichael (1999), the Supreme Court held that all expert
testimony that involves scientific, technical, or other specialized
knowledge must meet the Daubert test for admissibility.
Media Tool
Watch PBS video FRONTLINE: The Real CSI:
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science in the fighting of crime and conviction of criminals.
See Assignments 4, 5, and 6
VIII. Forensic Scientific Evidence in the Age of Daubert
A. Scientific evidence-analyzing materials, such as blood, firearms, and
fingerprints, have been routinely admitted into evidence for years if they met
the traditional yardsticks of the rules of evidence—trustworthiness and
relevance. But when the technologies for gathering and measuring these
forms of evidence first emerged, their use as evidence was far from routine.
B. Moreover, as the Frye case illustrated by disallowing polygraph results, not
all evidence based on “science” was necessarily admissible. Even under
Daubert, just when a scientific principle or discovery crosses the line
between the experimental and reliably demonstrable stages is difficult to
define.
C. Troublingly, in more than a quarter of exonerations, false or misleading
testimony by forensic experts contributed to the wrongful convictions
(Giannelli, 2007).
D. Pseudoscience Contributes to Wrongful Convictions
i. Many forensic techniques, such as hair and fiber analysis, tool-mark
comparisons, and fingerprint analysis, rely upon a simple “match game,”
whereby a forensic analyst compares a known sample to a questioned
sample and makes the highly subjective determination that the two
samples originated from the same source.
ii. The National Academy of Sciences (NAS) issued a scathing report on
forensic science in the United States in 2009. The report concluded that,
E. New Debates on the Validity of Forensic DNA Analysis
i. The NAS (2009) report stated that DNA (deoxyribonucleic acid) analysis
is the gold standard of forensic science, but is rooted in the assumption
that a sizable sample of DNA from one person is compared with another
sizable sample of DNA from another person.
ii. Biological evidence can be contaminated or otherwise rendered
unreliable because of mistakes by police or crime lab personnel.
iii. The PCAST (2016) report cautioned that complex DNA mixture analysis
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conviction.
F. The CSI Effect
i. Prosecutors insist that television shows created the so-called CSI Effect,
in which jurors wrongfully acquit guilty defendants when no scientific
evidence is presented. But research has not empirically validated their
anecdotal concerns.
ii. Jurors have come to expect sophisticated forensic evidence in even the
most mundane cases. However, these higher expectations for forensic
evidence did not significantly affect conviction or acquittal voting
patterns (Alejo, 2016; Shelton, Kim, & Barak, 2009).
IX. Objections to the Admission of Evidence
A. During trial, attorneys must always be alert, ready to make timely objections
to the admission of evidence. After a question is asked but before the witness
answers, the attorney may object if the evidence is irrelevant or hearsay. The
court then rules on the objection, admitting or barring the evidence.
B. Occasionally, inadmissible evidence will inadvertently be heard by the jury.
If the erroneous evidence is deemed so prejudicial that a warning to disregard
is not sufficient, the judge may declare a mistrial.
C. Challenging Forensic Evidence
i. Significant errors in laboratory testing have been documented not only at
the FBI crime lab, but also in numerous state and local crime labs,
X. Steps in the Trial Process
Learning Objective 9: Identify the steps in a criminal trial.
A. Opening Statements
i. When the jury has been selected and sworn, the trial begins with opening
statements by both sides.
B. Prosecution’s Case–in-Chief
i. After opening statements, the prosecutor presents the state’s case-in–
chief. At the conclusion of the prosecution’s case-in-chief, the defense
may make a motion for a judgment of acquittal.
C. Defense’s Case–in-Chief
i. After the prosecutor rests, the defense must choose whether to put on its
case in chief or to rest. The prosecutor has the right to cross-examine any
defense witnesses. More often than not, the defense instead seeks to
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undermine whether the prosecutor did indeed prove the defendant guilty
beyond a reasonable doubt.
ii. Like any other witness, a defendant who takes the stand is subject to
cross-examination. Cross-examination usually ensures that the defendant
cannot tell only a part of the story and conceal the rest. When the
defendant chooses to testify, the state can bring out all the facts
surrounding the events to which the defendant testifies.
iii. Just as important, after the defendant has taken the stand, the state can
misconduct.
iv. The defense attorney must make the difficult decision about whether to
arouse the jury’s suspicion by not letting the accused testify or letting the
defendant testify and be subjected to possibly damaging cross-
examination.
v. At the conclusion of the defense’s case-in-chief, the defense may make
another motion for a judgment of acquittal, arguing that no reasonable
jury could convict based upon the totality of the evidence presented.
D. Rebuttal
i. After the defense rests its case, the prosecution may call rebuttal
witnesses.
E. Closing Arguments
i. After the prosecution and defense have rested each side has the
opportunity to make a closing argument to the jury.
F. Jury Instructions
i. Although in jury trials the jury is the sole judge of the facts of the case,
the judge alone determines the law. Therefore, the court instructs the jury
as to the meaning of the law applicable to the facts of the case.
G. Jury Deliberations
i. The only hints of what is happening during jury deliberations occur on
the rare occasions when the jurors request further instructions from the
judge about the applicable law or ask to have portions of the testimony
read in open court.
ii. If the jury becomes deadlocked (they cannot reach a verdict), the trial
ends with a hung jury. The prosecutor then has the option of trying the
defendant again.
iii. Jurors are not supposed to consider any extralegal factors—information
not admitted into evidence during a trial. But jurors do not actually come
iv. Jurors intuitively value some types of evidence more than others. In cases
in which DNA evidence is presented as circumstantial evidence, jurors
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v. The victim’s or defendant’s attractiveness (especially in sex-crime cases)
or how sympathetic the defendant appears to the jury have both been
& Zeisel, 1966; Patry, 2008; Sigall & Ostrove, 1975).
vi. Demographic characteristics of the victim and defendant, including their
race, gender, socio-economic class, and sexual orientation, all affect juror
decision making as well (Devine, Clayton, Dunford, Seying, & Pryce,
H. The Verdict
i. After the jury informs the judge that a decision has been reached, the
lawyers and the defendant gather in the courtroom. Typically, the
foreperson announces the verdict.
I. Postverdict Motions
i. A trial verdict of acquittal (not guilty) ends the case; the defendant can
leave the courthouse a free person.
ii. A verdict of guilty means that further proceedings will occur; the
defendant must be sentenced and in all likelihood will appeal.
See Assignment 7
XI. Law in Action: Trials as Balancing Wheels
A. Popular Standards of Justice
i. Juries introduce the community’s commonsense judgments into judicial
decisions, resulting in jury legislation—a jury’s deliberate modification
ii. The importance of juries’ introducing popular standards into the justice
system is associated with the concept of jury nullification.
B. Uncertainty
XII. Prejudicial Pretrial Publicity
Learning Objective 10: Describe the effects and implications of pretrial publicity
and the solutions that courts use to prevent those effects from influencing a
criminal trial.
A. Extensive media coverage can cause prejudicial pretrial publicity. This term
refers to the media’s ability to taint the venire so that potential jurors are
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C. Research supports the Supreme Court’s reasoning that publicity does, in fact,
affect jurors.
D. In trying to reconcile conflicting principles of a fair trial and freedom of the
press, trial courts use one or more of three techniques: limited gag orders,
change of venue, and sequestering of the jury.
E. Limited Gag Orders
i. In cases where it is likely that jury selection may be difficult due to
pretrial publicity, judges routinely issue limited gag orders forbidding
those involved in the case—police, prosecutor, defense attorney, and
defendant—from talking to the press.
F. Change of Venue
i. Defense attorneys may request a change of venue, or the removal of a
G. Sequestering the Jury
i. One common remedy in trials involving extensive media coverage is to
sequester the jury, requiring jurors to live in a hotel, take their meals
together, and participate in weekend recreation together.
See Assignment 8
XIII. Media in the Courtroom
A. The rise of electronic media has added a new dimension to the defendant’s
right to a fair trial.
B. Changing Views on Cameras in the Courtroom
i. In 1978, the American Bar Association proposed allowing television
coverage of courtroom proceedings when it would not be obtrusive. As a
result, some states began to change their rules.
ii. Three years later, the Supreme Court changed its view when it
unanimously held that electronic media and still photographic coverage
of public judicial proceedings do not violate a defendant’s right to a fair
trial (Chandler v. Florida, 1981).
iii. Since then, the barriers against cameras in the courtroom have fallen in
state after state.
C. Current Broadcasting Rules
i. Congress has proposed a series of bills that would allow electronic media
coverage in federal judicial proceedings, but to date, none of these
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proceedings. For example, the number of cameras in the courtroom is
usually limited and camera operators are prohibited from moving around
the courtroom while the court is in session.
D. Technology Beyond “Cameras”
i. Some courts have embraced the use of social media.
ii. While technology in the courtroom may be valuable for educational
purposes, it also has the potential to threaten the fairness of the trial
KEY TERMS
acquittal: The decision of the judge or jury that the defendant is not guilty.
Allen charge: If juries are unable to reach a verdict, sometimes a judge encourages jurors
to continue deliberating until a verdict is reached.
alternate jurors: Jurors chosen in excess of the minimum number needed, in case one or
more jurors is unable to serve for the entire trial.
bench trial: Trial before a judge without a jury.
best-evidence rule: Rule requiring that someone coming into court must bring the best
available original evidence to prove the questions involved in the case.
such as bias or prejudgment; can be granted only by the judge.
change of venue: The removal of a case from one jurisdiction to another. It is usually
granted if the court believes that, due to prejudice, a defendant cannot receive a fair trial
in the area where the crime occurred.
charging conference: Meeting attended by judge, prosecutor, and defense attorney
wrongfully acquit guilty defendants when no scientific evidence is presented.
demonstrative evidence: Visual or auditory aids which alone have no evidentiary value
but which assist the fact-finder in understanding the evidence, examples are charts, maps
or videos.
direct evidence: Evidence derived from one or more of the five senses.
impeach: To question the truthfulness of a witness’s testimony.
irrelevant: Testimony that has no bearing on the issue of a trial.
jury consultants: Researchers who use social scientific research methods to profile
jurors in an attempt to help attorneys select members of the venire for petit jury service
who are likely to be predisposed to their side of the case.
motion for judgment of acquittal: The court enters such a judgment whenever the
prosecution fails to introduce sufficient evidence to sustain a conviction as a matter of
law.
objection: The act of taking exception to a statement or procedure during a trial.
opening statement: Statements made by both attorneys at the beginning of a trial
presumption of innocence: Requires that the trier of fact accept that the defendant is
innocent unless the prosecution meets its burden of proof of guilty beyond a reasonable
doubt.
presumption of sanity: Requires that all defendants be presumed sane unless sufficient
evidence of their insanity is proven.
scientific choice of jurors by employing jury consultants to poll people, conduct mock
trials, and gather information to advise the attorneys what type of jurors they should seek
for the case.
self-incrimination: The privilege against self-incrimination protects defendants from
being compelled to be a witness against him/herself and is found in the Fifth Amendment
introduced at trial.
testimonial evidence: Oral evidence given under oath.
venire: The drawing of a randomly selected group of people for jury service or selecting
the jury pool from the master list.
verdict: The decision reached by the fact-finder after deliberations.
voir dire: French for “to speak the truth,” it is the process that involves asking potential
jurors questions in order to determine their qualification to serve.
LECTURE NOTES
Discuss the history of jurors and the fact that they were established long before the first
century A.D. Show how juries have changed over time and how the Constitution now
recognizes the protection of citizens through the Sixth and Seventh Amendments. Have
To receive a fair jury trial, courts have introduced a process of choosing potential jurors.
This begins with a master jury list, which is typically developed through voter
registration forms. The next step, known as venire, is introduced; a jury pool is selected
It is important to provide a well-developed overview of a trial so that students feel as if
they are sitting in a courtroom. This begins with opening statements in which the
prosecutor advises the jury what the attorney intends to prove. Next, witnesses and
evidence are introduced to the jury to develop the case. The defense is then able to
There are many different areas of evidence that weigh heavily in a trial. Be sure to
explain the fact that evidence is anything that is physical, testimonial, or that can prove or
disprove the existence of a fact. This includes direct and circumstantial evidence.
on their First Amendment privileges. To eliminate potential bias, many courtrooms issue
a gag order, a change of venue and in some cases they sequester a jury. By choosing one
of the three methods, the potential bias on the part of a juror to possess knowledge of a
case is reduced, thus leaving the defendant with a fair and impartial trial.
Jury consultants use social science research to assist attorneys in selecting jurors who will
be most favorable to their side. Empirical evidence has not yet established the value of
POSSIBLE DISCUSSION POINTS FOR CLASS DISCUSSION QUESTIONS
1. In federal courts, defendants are entitled to a 12-person jury unless the parties agree
in writing to a smaller jury, but 6-member juries in federal civil cases are quite
common. The Supreme Court has approved 6-member juries for states but has ruled
smaller jury sizes unconstitutional in some cases. In a review of the empirical
2. Media portrayals of the case may bias persons who might serve on a jury and thus
make it impossible for the defendant to receive a fair trial. Depending on the extent of
3. What characteristics did the students think were important? How were the
characteristics similar for both sides? How were they different?
ASSIGNMENTS
1. Have students research the requirements regarding jury trial size and unanimity of
jury decisions in your state. Ask them reflect on the impact of these factors on
2. Have student’s research jury consultants and then work together in groups as
3. “Jury Consultants”
4. Research the problems with forensic evidence identified in the chapter. What
problems did you find with some of the forensic evidence? What standard(s) do you
think should be set for forensic evidence? Write a brief paper summarizing your
findings and your reflections on this matter.
LO8
5. “Forensic Evidence”
LO8
6. “Florida’s Federal Court Excludes Advocate Expert’s Testimony”
7. Have students create a flow chart outlining the steps in a criminal trial. Are there any
differences in your local jurisdiction?
8. Have students research what media is allowed in courtrooms in your state, county and