25 Jul Unanimity of The Jurys Verdict Discussion
Discussion Board Topic: If a jury consists of twelve jurors, should they all have to agree on verdict. In other words, should the verdict have to be unamious? Explain.
Lecture NotesNot all investigative encounters with the police end up with someone being arrested. More often than not, police discretion is exercised in a way so as to avoid having to take someone into custody. There are occasions, however, when there is probable cause and the officer exercises his authority and discretion to effect an arrest. Once an arrest is made, the next step is referred to as the “booking” process. Booking consists of filing a report, taking fingerprints and “mug” shots, and gathering other pedigree information of the arrestee, e.g. – name, address, birthdate, etc.Once booked, the next order of business is usually the setting of bail. There is no constitutional right to bail, only a right not to have an excessive bail amount set. This protection is found in the Eighth Amendment. Due to extreme overcrowding in jails, most jurisdictions allow bail for almost all offenses other than murder. Depending on the circumstances, bail can sometimes be obtained even in murder cases.The primary purpose of bail is to ensure an arrestee will return for their court appearances. Because there is a presumption of innocence, any other use of bail would be subject to scrutiny. It is permissible, however, to consider an arrestee’s dangerousness when considering a bail amount. Some alternatives to bail include house arrest, electronic monitoring, and release on one’s own recognizance.Once an arrestee has been introduced into the criminal justice system as described above, the next major step is the initial/first appearance. An arrested person is entitled to an initial appearance without unnecessary delay. This rule is to prevent someone from languishing in jail without having a judicial figure review their case. Some jurisdictions have set specific time limits on when an initial appearance must take place, e.g. – no later than 48 or 72 hours. During the initial appearance, the arrestee is informed of the charges against him or her; their right to counsel is explained; and, bail is also discussed. An arrestee can ask the judge to revisit the issue of bail. A prosecutor can revisit the issue as well.If an individual is facing a felony charge, he or she will either have a preliminary hearing or have their case reviewed by a grand jury. The purpose of each is the same, i.e. – to determine if there is probable cause to take the charges to trial. The preliminary hearing is like a mini-trial with the defendant present, his or her defense counsel present, the prosecutor present, and a judge. The prosecutor gets to call witnesses for examination and the defense gets to cross-examine them. Usually, however, the prosecutor will only put on enough witnesses or evidence to establish probable cause. They do not wish to show the defense too much of their case prior to trial. The defense may put on evidence in the hope the judge will decide there is insufficient probable cause but this is rarely done since it’s easy for the prosecutor to fulfill the probable cause requirement and the defense would’ve shown their cards unnecessarily.An alternative to the preliminary hearing is the grand jury. Most jurisdictions, in fact, use the grand jury process rather than the preliminary hearing process. One of the reasons for this is that a prosecutor has a much greater chance of establishing probable cause at a grand jury than at a preliminary hearing. That’s because the grand jury is a “one-person” show. It’s only the prosecutor in the room with the grand jurors. There is no defendant or defense counsel present. The prosecutor presents the evidence and then asks the grand jurors to return an indictment or a “true bill.” If no indictment is returned, that’s known as a “no true bill.” Regardless of which process is used, if probable cause is established, the prosecutor will take that result and craft a document known as an “information.” Once this document is filed, the next step is the arraignment.The arraignment is the first opportunity for a defendant to appear before the court that has the power to try his or her case. At the arraignment, the defendant is once again advised of the right to counsel and the nature of the charges. In addition, however, the defendant is asked to enter a plea. The defendant may plead guilty, not guilty, or no contest. A “no contest” plea has the same legal effect as a guilty plea but allows the defendant to avoid admitting guilt. This is helpful if the defendant is also facing a civil suit on the same matter because the jury in the civil case does not get to learn about the no contest plea. If the defendant stands mute, that is, fails to enter any plea, the judge will enter a plea of “not guilty” on the defendant’s behalf.In addition to discussing the matters described above, the defendant may again raise the issue of bail at the arraignment. Lastly, at the arraignment, a trial date will be set.Most of the time a trial is not necessary because the defendant will plead guilty pursuant to a plea bargain. If a defendant pleads guilty, there is no jury trial. The judge will hear the defendant explain in his or her own words why they feel they are guilty of the offenses and then the judge will impose a sentence. In almost all cases, the defendant who pleads guilty does so pursuant to an agreement (bargain) with the prosecutor where the prosecutor has agreed to grant the defendant some type of break, e.g. – drop some charges or cap the punishment below what would be possible if there was no bargain. This process is very common and allows the wheels of justice to continue churning without getting bogged down in lengthy trials.In the event a trial is necessary because the defendant has pleaded not guilty, there are some legal issues that need to be discussed. The first is the defendant’s right to a speedy trial. There is an old saying: “Justice delayed is justice denied.” One should keep in mind, however, that the Sixth Amendment guarantee of a speedy trial is not just for the defendant. Victims and the public are also entitled to speedy justice. Under the federal Speedy Trial ACt, only ten days are allowed to elapse between indictment and arraignment. Nevertheless, the fact of the matter is that justice in America is anything but speedy.The landmark speedy trial case is the US Supreme Court case of Barker v. Wingo. In that case, the US Supreme Court said four questions must be addressed when determining whether a defendant was denied a speedy trial. First, how long did it take the defendant to be brought to trial. Periods of delay occasioned by, or requested by, the defense will be excluded, e.g. a request for a psychiatric examination. Secondly, the court will inquire why it took as long as it did to bring the defendant to trial. For example, did the prosecutor have to try one or more co-defendants first. Third, was the defendant harmed/prejudiced by the delay. To answer this question, the court will look to see if important defense witnesses were lost or are no longer available. This is perhaps the most important question of all. However, even if all three of the above questions are answered in favor of the defendant, the court still will not conclude there was a denial of a speedy trial unless the defendant demanded a speedy trial sometime during the process. Failure to have demanded a speedy trial is considered a waiver of the right.Along with the right to a speedy trial, another right that’s necessary to ensure a defendant receives a fair trial is the right to counsel. The right to counsel is also found in the Sixth Amendment. Shortly after the adoption of the US Constitution, the right to counsel simply meant that if you could afford counsel, you had the right to have them represent you at trial. There was no such thing as a right to court-appointed counsel. The US Supreme Court didn’t recognize the right to appointed counsel until 1932 in the case of Powell v. Alabama. In that case, several black youths were charged with rape, a capital offense. Though indigent and of low-intellect, the Alabama courts forced them to defend themselves. All but one defendant was found guilty and sentenced to death. The case had to go all the way to the US Supreme Court before it was decided the defendants’ due process rights were violated by making them defend themselves. It took many more years and many more cases before the right to counsel as we know it today came about. Now, anytime a person is facing any incarceration, they are entitled to court-appointed counsel if they are indigent or unable to afford an attorney.Once you get into the trial itself, it’s important to know the sequence of events. Each stage or step is designed for a specific purpose and courtroom attorneys would do well to use each step for its intended purpose. The first step is the impaneling of the jury. Many courtroom attorneys believe this the most important step in the entire trial for without a sympathetic jury, it’s very difficult to win. The selection of a jury is done through a process referred to as voir dire. This is where attorneys for both sides, as well as the presiding judge, get to ask jurors questions in an effort to determine if they should participate in the trial. The goal is to have an impartial jury that doesn’t have preconceived ideas of guilt. If during voir dire, either side feels it has revealed bias on the part of a juror or some other reason why the juror shouldn’t sit, that attorney may challenge the juror for cause. Lawyers have an unlimited number of challenges for cause. If the challenge is granted, the juror will be excused. Attorneys are also allowed to strike jurors for no reason. These challenges are known as peremptory challenges and each side has a limited number. Although peremptory challenges can be for any reason at all, the US Supreme Court has ruled that peremptory challenges cannot be used to exclude jurors solely on the basis of race, gender, or religion.Once the jury has been selected, the trial actually commences with each side being given an opportunity to make an opening statement. Because the prosecution has the burden of proof, it gets to make the first opening statement. Opening statements are not evidence but merely an attempt by each side to acquaint the jury with what to expect in the case. Once the prosecutor has made his or her opening statement, the defense is given an opportunity to make an opening statement. The defense, however, may elect to postpone making its opening statement until after the prosecution has rested and before they put on their own case. Whether to make an opening statement immediately after the prosecution has made its opening statement or whether to wait is a key question and cannot be made wisely unless the defense has a thorough knowledge not only of what its witnesses are going to say but what the prosecution witnesses are going to say as well.Once opening statements are completed, it’s time for the prosecution to put on its case-in-chief. The prosecution does this by calling its witnesses and introducing evidence. The side that calls the witness conducts direct-examination of the witness and when done, the opposing side conducts cross-examination. The judge, in his or her discretion, may let each side conduct additional re-direct or re-cross examination. Once done calling all of its witnesses, the prosecution will rest. That means the prosecution feels it has put forward sufficient evidence to prove the defendant’s guilt beyond a reasonable doubt.Typically, once the prosecution has rested, the defense will make a “motion for directed verdict.” By making such a motion, the defense is saying that even if you look at the evidence in the light most favorable to the prosecution, the prosecution has failed to prove each and every element of the charged offenses beyond a reasonable doubt. In the vast majority of cases, the judge will deny the defense motion by saying there’s been enough evidence produced to justify sending the case to the jury for decision. The burden on the prosecution to withstand a motion for a directed verdict is very low. There just has to be enough evidence on each charge that a jury could vote guilty. Credibility of witnesses is not at issue at this point.If the judge has ruled unfavorably on the motion for directed verdict, the judge will inquire whether the defense has any evidence to present. The defense has no obligation to present any evidence since the burden of proof remains on the prosecution. However, oftentimes, the defense will have evidence to present which it feels will show the defendant is innocent, e.g. -an alibi defense or an insanity defense. As with the prosecution case-in-chief, witnesses called by the presenting side, i.e. – the defense, will be subject to direct-examination. Afterwards, the witnesses will be cross-examined by the prosecution. Again, the judge may allow additional re-direct and re-cross examination.Once the defense has rested, it’s time for closing arguments. Since the prosecution has the burden of proof, it gets to make an opening and a closing final argument. The defense’s final argument is sandwiched in between. Both sides are limited to arguing only about matters that were introduced into evidence. If one side tries to argue a point that was not introduced into evidence, the other side can object.After closing arguments, the judge gets to instruct the jury. This is a very important stage in the trial because the judge’s instructions are the last words the jury hears before going into deliberations. The judge will instruct the jurors on the elements of the offenses and inform the jurors they must acquit the defendant if they feel the prosecution has failed to prove each and every element beyond a reasonable doubt. The judge will also instruct the jury on such matters as the credibility of witnesses, expert witnesses, and what is meant by the phrase, “beyond a reasonable doubt.” Each side is allowed to propose instructions it wishes the judge to give the jury. It is within the judge’s discretion whether to give the requested instructions. Judge’s must carefully consider any instructions requested by the defense because failure to give a requested instruction that should have been given can result in a reversal of the conviction on appeal.Jury deliberations follow the giving of instructions. Jurors are advised as to what is permissible and not permissible to consider during their deliberations and what type of conduct is permissible, e.g.- a juror may not visit the alleged crime scene during any breaks in the deliberations. Most states require unanimity in voting but unanimity is not required by the US Constitution unless there are only six jurors. Similarly, although most juries consist of twelve members, there is no requirement in the US Constitution for a twelve-person jury. Federal criminal trials are required to have twelve jurors but that is mandated by federal statute, not the US Constitution.When unanimity is required, failure to reach unanimity may result in a hung jury. To avoid a hung jury, judges sometimes give what is known as an “Allen Charge” aka “Dynamite Charge” to the jury in an effort to break the deadlock. If the deadlock cannot be broken, the judge will declare a mistrial and the prosecution must decide if the case will be retried.There are different types of verdicts that a jury can reach. The most obvious verdicts are “guilty” or “not guilty.” Jurors do not return a verdict of “innocent.” Sometimes juries return guilty verdicts on some of the charges and not guilty verdicts on others. They may even find the defendant guilty of a lesser-included offense. For example, a defendant may be charged with First-degree murder but a jury may conclude the defendant was guilty of voluntary manslaughter instead. Voluntary manslaughter is a lesser-included offense of First-degree murder.If a verdict of guilty is announced, there will be a sentencing proceeding. This may take place immediately or sometime in the future after the judge has been provided with a pre-sentencing report that is typically prepared by the probation department. What sentence is imposed is based on the defendant’s prior record, the seriousness of the present offense, and any matters that may be presented in aggravation or extenuation and mitigation. Matters in aggravation will increase the possible punishment whereas matters in extenuation and mitigation may lessen the punishment. Sentences are usually handed down by the judge rather than the jury.
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