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CHAPTER THIRTEEN
COURT PROCEEDINGS II: TRIAL AND CONVICTION
Learning Objectives
After studying this chapter, students should be able to:
1. Understand that jury trials promote fact-finding and check government power. Know the
constitutional rights the trial by jury process must protect.
3. Understand the types of verdicts juries can give, the purpose of the unanimous verdict
requirement, and the significant of jury nullification.
4. Understand the difference between straight guilty pleas, negotiated guilty pleas, charge
5. Understand, and appreciate the empirical research regarding plea bargains in and outside
“the shadow of trial.”
Lesson Plan
I. Trial by Jury
Learning Objective 1: Understand that jury trials promote fact-finding and check government
power, while plea negotiation promotes efficiency. Know the constitutional rights the trial by
jury process must protect.
Learning Objective 2: Know the stages of a jury trial and the constitutional amendments that
guarantee defendants the right to a public trial.
Learning Objective 3: Know the types of verdicts juries can give, the purpose of the unanimous
verdict requirement, and the significance of jury nullification.
Media Tool
“Principles for Juries and Jury Trials”
http://www.americanbar.org/content/dam/aba/administrative/american_jury/principles.au
thcheckdam.pdf
o American Bar Association website listing principles for juries and jury trials.
o Discussion: Discuss each of the nineteen principles listed and how well they are
implemented in our court system today. Ask students which they think are the
most important principles.
Class Discussion/Activity
Have students attend a jury trial in your jurisdiction. After they have all attended a trial
have a class discussion on the similarities and differences in the case they watched, what
they read in the chapter, and their perceptions prior to these two pieces of information.
What If Scenario
What if you were charged with a crime seriousness enough to provide you with a right to a
jury trial? Would you plea? Would you prefer jury trial over a bench trial? Why/why not?
A. The Constitution creates a right to trial by jury.
1. Trial by jury promotes several interests.
a. It checks and balances government power by putting an independent
community-dominated body between the state, with all its resources, and a
single individual.
b. It balances official power with citizen participation in criminal law
enforcement.
c. It guarantees that accused citizens who prefer that other citizens decide their
innocence or guilt will have that preference honored.
B. The moral seriousness standard
1. The one major exception to the right to a jury trial is for “petty offenses.”
C. The 12-member jury requirement
See Assignments 1, 2, & 4
3, 4, 5, 6, & 7
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(1) Are there enough jurors to find the truth?
(2) Are there enough to allow community participation in decision making?
(1) Judges
D. Jury selection
1. The Federal Jury Selection Act is followed in most states.
3. Jury selection isn’t popular. Many people ask to be excused
a. Economic hardship
4. Some groups are automatically excluded from jury service.
a. Persons below voting age
b. Convicted felons
5. Prosecutors and defense counsel use voir dire to select jurors from the jury panel.
a. Peremptory challenges (striking without having to give a reason) are limited by
(2) The Antiterrorism and Effective Death Penalty Act
E. The Right to a Public Trial
1. Three constitutional amendments guarantee defendants the right to a public trial.
2. Public trials support the right of public access.
3. Defendants have a right to attend their own trials.
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12-13
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© 2018 Cengage Learning. All Rights Reserved. May not be copied, scanned, or duplicated, in whole or in part,
except for use as permitted in a license distributed with a certain product or service or otherwise on a password-
protected website for classroom use.
b. Defendants’ rights aren’t absolute.
(1) Their appearance has to comport with the dignity of the proceedings.
(2) They can’t be disruptive.
(3) They can be excused during the questioning of child witnesses in sexual abuse
cases.
b. Courtroom size limits public access.
c. Judges can close trials for the following reasons:
d. To protect threatened witnesses or undercover agents
e. To encourage shy and introverted witnesses to come forward.
f. During sensitive proceedings.
F. The Stages and Rules of Jury Trials
2. Presenting evidence: The state presents first, then the defendant.
3. The burden of proof: The Fifth Amendment provides that “no person . . . shall be
compelled in any criminal case to be a witness against himself.”
4. Proof beyond a reasonable doubt: Defendants don’t have to prove their innocence or
their cases.
a. Prosecutors present first, then the defense, and finally the prosecution rebuts.
b. Appellate courts frequently express disapproval of prosecutors’ “improper”
remarks but rarely reverse because of them.
(1) Juries decide facts; the judge decides the law.
(3) The state has the burden to prove guilt beyond a reasonable doubt.
(4) The definition of all the elements of the crime the prosecution has to prove.
7. Jury deliberations
8. Jury verdicts
a. Juries can return one of three verdicts:
(1) Guilty
(3) Special, mainly related to insanity or capital punishment
b. If the jury acquits, the defendant is free to go.
9. The “unanimous verdict” requirement
a. There’s no constitutional requirement for a unanimous verdict.
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10. Jury Nullification
a. Juries nullify the law when they acquit defendants even though they believe
they’re guilty beyond a reasonable doubt.
b. Jury nullification reflects a community role as a safety valve to relax the law’s
rigidity and provide justice in individual cases.
Media Tool
“Jury Verdict Research”
http://www.juryverdictresearch.com/
o Website for a for-profit jury service company.
o Discussion: Discuss what services the company provides. Ask students if
they are surprised that such a service exists. Ask who would use such a
service. How does this demonstrate the issues discussed earlier regarding
the ability of poor people to receive equal justice?
Class Discussion/Activity
Provide the students a felony case to try. Assign each group a “part” in the process
(judge, prosecutor, etc.). Allow them time to research their part and what strategy
they will use. Have students “try” the case during class. This assignment can be
done over multiple days if the class is large.
What If Scenario
What if you were chosen for jury duty? Would you try to get out of it? How would
you approach your responsibility as a juror?
II. Conviction by Guilty Plea
Learning Objective 4: Understand the difference between straight guilty pleas, negotiated guilty
pleas, charge bargaining, and sentence bargaining. Know the circumstances under which guilty
Learning Objective 5: Understand, and appreciate the empirical research regarding plea
bargains in and outside “the shadow of trial.”
Media Tool
“Midland Park Man Pleads Not Guilty in Slaying of His Son’s Mother”
http://www.northjersey.com/news/Midland_Park_ex-
boyfriend_pleads_not_guilty_in_slaying_of_his_sons_mother.html
o Website with video of plea of not guilty to murder and other charges.
o Discussion: Discuss with students the process seen in the video. How does this appear
compared to what they have seen on television or what they had read about in the past?
Further search of the internet regarding the case may provide information as to how the
case has played out since this original plea. Students may find it interesting to follow an
actual case and see if the defendant chose a jury trial or changed his plea.
See Assignments 3 & 5
Class Discussion/Activity
Have students research the Alford plea. Discuss with students why a defendant
might choose to plead guilty while still maintaining innocence.
What If Scenario
What if you were facing a trial by jury? What would you want to know about the
process of selecting a jury? What questions would you want your attorney to ask
during voir dire?
A. There are two types of guilty pleas:
2. Negotiated guilty plea: Defendants plead guilty after getting concessions through
(1) Charge bargaining
(3) Fact bargaining
B. Historical developments that contribute to guilty pleas:
2. Expansion of the criminal law
4. Larger case loads
6. Increase in the number of criminal justice professionals
7. Increasing statutory powers of prosecutors
C. The Constitution and guilty pleas
1. When defendants plead guilty they waive three rights:
2. SCOTUS has rule that to give up these constitutional rights defendants
3. If judges fail to ask defendants questions regarding their plea in open court it is a
reversible error.
D. Courts can accept guilty pleas from defendants even if they maintain their innocence.
E. The plea-bargaining debate
1. Some say negotiation better serves the search for truth; other argue that the
adversarial process best serves the ends of justice.
3. Some insist the criminal justice system would collapse under its own weight if only a
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4. Some maintain the guilty plea intimidates the innocent and emboldens the guilty;
other say outcomes between jury trials and guilty pleas don’t differ much at all.
6. Plea bargaining in the “shadow of trial” model:
7. Plea bargaining outside the “shadow of trial” model:
a. Legally irrelevant factors sometimes skew the fair allocation of punishment.
9. Information deficits - Defendants may not know what evidence the prosecution
has or how it will affect jurors.
Media Tool
“Peter Donnelly: How Juries Are Fooled by Statistics”
http://www.ted.com/talks/peter_donnelly_shows_how_stats_fool_juries.html
o Video regarding how people make mistakes regarding statistics and the
impacts on criminal trials.
o Discussion: Discuss the issues addressed in the video. How did the video
affect the students thinking regarding trials and juries?
Class Discussion/Activity
Divide the students into two groups. Have one group work together to research the
outside the “shadow of trial” model and one research the in the “shadow of trial”
model. Have them debate the two models.
What If Scenario
What if you were charged with a serious crime but do not want to go to trial? What
kind of concession would you want from the prosecutor?
Lecture Notes
Trials promote fact-finding, procedural regularity, and public participation. Negotiating for
guilty pleas promotes efficiency and fact-finding.
Trial by jury has ancient roots and was common practice in the American colonies. It
promotes several interests: a check and balance on government power, requires citizens to
participate in the criminal justice process, and guarantees that accused persons will have other
The 12-member jury has strong traditional support from legal experts and social scientists,
but is not an exclusive rule. The Sixth Amendment is satisfied by a jury of fewer members. The
Court has said that the right demands only enough jurors to find the truth and allow community
members to participate in the criminal justice system. The Court has held that six member juries
satisfy the Sixth Amendment, but that five person juries do not.
The Fourteenth Amendment ensures that juries are selected from a random cross-section of
the public using local census reports, tax rolls, city directories, and more. From the jury panel,
the list of eligible citizens who have not been excused, the prosecutor and the defense attorney
pick the actual jurors during voir dire. The attorneys use peremptory challenges to strike jurors
without having to give a reason and challenges for cause to strike jurors who may be biased.
Because racial prejudice can sway some jurors, harming a defendant as well as groups generally,
The right to a public trial is based on the Sixth Amendment right to confront witnesses, the
Fifth Amendment due process right, and the Fourteenth Amendment due process right. Public
trials also protect the right of the public to attend proceedings and the right of defendants to
attend their own trials. The right includes every stage of the trial. There are some exceptions to
the right. Courtroom size may limit access to the public. Sensitive proceedings may also allow a
judge to limit access as well as the need to protect certain witnesses such as undercover agents,
witnesses who have been threatened, and shy witnesses. Defendants can be exclude defendants if
they are disruptive to the proceedings and during the questioning of child witnesses in sexual
abuse cases.
Stages of a jury trial include opening statements (starting with the prosecution), presenting
evidence, closing arguments, instructions to the jury, and jury deliberations. During the
presenting evidence stage, the Sixth Amendment confrontation clause allows the defendant the
right to cross-examine the prosecution’s witnesses. With some exceptions, the clause also limits
the prosecution’s ability to use hearsay evidence. The amendment also guarantees a defendant’s
right to compel witnesses to testify in court for them. The Fifth Amendment bars the government
from compelling a defendant to testify at his or her trial. The prosecutor is also prohibited from
commenting if a defendant refuses to testify.
Before the jury begins deliberating a defendant’s guilt or innocence, the trial judge instructs
the jurors about their role to find the facts, that defendants are presumed innocent, until proven
guilty, the state has the burden of proof, and defines all of the elements of the crimes charged.
Juries can return “guilty”, “not guilty”, or “special” verdicts. Special verdicts are generally
jury nullification, meaning they can acquit a defendant even when the facts clearly support a
guilty verdict.
Guilty pleas include straight pleas and negotiated pleas. Negotiated pleas include three types:
charge bargaining, sentence bargaining, and fact bargaining. Historical developments such as
complexity of the criminal trial process, expansion of criminal law, increasing crime rates, larger
caseloads, political corruption, increasing criminal justice professionals, and increasing statutory
powers of prosecutors have all resulted in the growth and prevalence of plea bargaining.
Defendants who plead guilty waive their Fifth Amendment right to remain silent, and the
Sixth Amendment rights to trial by jury and to confront witnesses. Guilty pleas are constitutional
when defendants waive these rights knowingly and voluntarily. According to the U.S. Supreme
Court, the guilty plea must have a factual basis, meaning that defendants’ pleas reflect an
understanding of the “true nature” of the charges against them. When a judge fails to question a
defendant about their plea and establish it as knowing and voluntary, the conviction may be
reversed. Courts have held that a guilty plea may be “knowing and voluntary” even if the
Legal and behavioral research demonstrates that parties involved in a plea bargain negotiate
based on legally irrelevant factors. For example, prosecutors and defense lawyers might have their
own motivations to settle that are not shared by the people they represent. Cognitive research into
“bounded rationality” creates problems for the “shadow of trial” model, since it shows people stop
looking for solutions when they have found one that is “good enough.” Faced with many “difficult-
to-predict inputs,” people are likely to accept the first plea they think they can live with.
Key Terms
moral seriousness standard: The principle that the Sixth Amendment right to a jury trial
extends to all crimes punishable by more than six months’ imprisonment and also to other
morally serious misdemeanors. (p. 502)
Federal Jury Selection and Service Act: Federal law that sets forth requirements for selection
of citizens as prospective jurors. (p. 503)
key-man system: System of jury selection in which civic and political leaders recommend
people whom they know personally or by reputation to be prospective jurors. (p. 503)
jury panel: Potential jurors drawn from list of citizens eligible to serve as jurors. (p. 504)
voir dire: The examination of prospective jurors. (p. 504)
striking: Striking prospective jurors without showing cause. (p. 504)
peremptory challenges: Striking prospective jurors without showing cause. (p. 504)
challenges for cause: Removal of prospective jurors upon showing partiality. (p. 504)
prima facie case: When a party to a case establishes enough facts to prove their case unless it
they are rebutted by the other side. (p. 505)
jury instructions: Instructions from the judge to the jury on what the law is and how they should
Sixth Amendment confrontation clause: The right to examine the prosecution’s witnesses. (p.
515)
515)
compulsory process for obtaining witnesses: The right a defendant has to compel witnesses to
come to court and testify for the defense. (p. 515)
reasonable doubt standard: due process requires both federal and state prosecutors to prove
every element of a crime beyond a reasonable doubt. (p. 516)
pattern jury instructions: Published boilerplate instructions that fit most cases. (p. 518)
judgment: The court’s final decision on the legal outcome of a case. (p. 519)
© 2018 Cengage Learning. All Rights Reserved. May not be copied, scanned, or duplicated, in whole or in part,
except for use as permitted in a license distributed with a certain product or service or otherwise on a password-
protected website for classroom use.
charge bargaining: When the prosecution and the defense bargain for a reduction in either the
number or severity of the criminal charges in exchange for a guilty plea. (p. 521)
sentence bargaining: When a favorable sentence is recommended to the judge by the prosecutor
or bargaining directly with the judge for a favorable sentence. (p. 521)
fact bargaining: When the prosecutor agrees not to challenge the defendant’s version of the
facts, or agrees not to reveal aggravating facts to the judge in exchange for a guilty plea. (p. 521)
reversible error: Grounds for an appellate court to reverse the trial court’s judgment. (p. 522)
factual basis for guilty pleas: A requirement that before a judge can accept a guilty plea, the
defendant’s guilt must be factually supported. (p. 522)
Alford plea: A guilty plea by a defendant who claims to be innocent. (p. 522)
plea bargaining in the “shadow of trial” model: A model of plea bargaining that theorizes that
prosecutors, judges, and defense attorneys act rationally to forecast the outcome of a trial and make
plea bargains that leave both sides better off by splitting the costs they save by not going to trial.
(p. 527)
Assignments
1. Have students research their state code of criminal procedure to find out what the rules are in
their state about how juries are selected, their size, and whether there is a requirement of a
2. Have students use a search engine to search the Internet for pattern jury instructions for criminal
3. Discuss with students the problems associated with guilty pleas. There is reason to fear that
innocent persons plead guilty because they are afraid of the consequences of going to trial
and being convicted. Why would an innocent person plead guilty? The Frontline news
4. Have students watch a television show that follows a courtroom case. Have them write a
paper discussing the differences between television and reality. How does television twist the
5. Have students the concept of bounded rationality and write a paper on how it affects the
