Getting it Right: Juries by Karen Wyle

Author and attorney Karen A. Wyle

[This is part 2 of a three part “Getting it Right” series by author and attorney Karen A. Wyle. This series is aimed at helping authors understand and add meaningful and convincing detail in writing courtroom drama. Part 1 can be found here.]

As promised, here are a few basics about juries.

There are some kinds of cases that may or may not be tried to a jury, and other kinds of cases where there will never be a jury.

In a criminal case where there is a possibility of more than six months’ imprisonment, a defendant has a right to trial by jury. In some states, a defendant facing less than six months also has that right. If you’re charged with an infraction, such as a parking ticket, you probably can’t get a jury trial.

In civil (noncriminal) cases, whether or not you have a right to a jury trial generally depends on how much money, if any, is at stake, and on the arcane historical distinction between “at law” and “in equity”. (If any party to a civil case has a right to a jury trial, so do the other parties.) In general, any sort of family law case (divorce, custody, child support, paternity) may not be tried to a jury. In other sorts of civil cases, the distinction may be related to what remedy the plaintiff (the person bringing suit) is seeking. A remedy other than money damages is more likely to mean a suit in equity, tried to a judge. (Note: in general, if money can fix it, money is all you can get. If money can’t fix it — for example, if unique property is at stake — you can get other kinds of relief, such as a judge ordering someone to do something (injunctive relief).)

Not all juries have the traditional twelve members. In some states, civil or even criminal jury trials may have six or nine members. A twelve-member jury is still probably the most common in criminal trials, but is not constitutionally required.

Jurors are chosen by a process called “voir dire,” which is French for “to see to say” and originally meant an oath to tell the truth. The details of the process vary, but either the judge, the attorneys, or both will ask the jurors questions. Often the jurors are asked to fill out questionnaires as well, with information like age, profession, health, and prior involvement with the judicial system. A juror who doesn’t answer these questions honestly can end up in serious trouble. The process is designed to flush out any juror who shouldn’t be on the jury, and to give the attorneys some chance to shape the jury to their liking.

If an attorney doesn’t want a potential juror to end up on the jury, s/he may “challenge” the juror. There are two types of challenges: “for cause” and “peremptory.”

A challenge for cause should be used when that juror can’t competently and fairly serve on that particular jury. Maybe the juror is friends with — or an enemy of — the defendant, or one of the attorneys, or an important witness. Maybe the juror hates black people, and the defendant is black. Maybe the juror admits that s/he could never award any damages to someone who was even a little bit responsible for an accident. (In most circumstances, someone can be a little bit at fault and still recover at least some of their damages.) Maybe the juror was the subject of a similar lawsuit. Maybe the juror has narcolepsy and may fall asleep without warning. The attorneys may make as many challenges for cause as they like, although it’s up to the judge whether or not to buy the attorney’s argument and send the potential juror packing.

An attorney uses peremptory challenges to try to get a jury who will decide his/her way. Many attorneys pay pricey jury consultants to tell them what ages, professions, etc. they should try to get on the jury in a particular case. Whether these consultants are worth their pay, I couldn’t say. Each attorney has a limited number of peremptory challenges, or the process would go on forever.

Jurors are generally told not to read newspaper accounts of the trial, and not to discuss it with each other or anyone else until it’s time for them to deliberate (discuss the evidence and decide on a verdict). Judges and attorneys are resigned to the fact that jurors will do some of this, but they hope to keep it to a minimum. It’s particularly tricky these days to try to keep jurors from deliberately looking things up online, or stumbling on information in someone’s Facebook post. (Jurors are frequently sent out of the room while the attorneys argue about what evidence should be admitted, so media and online sources may know about witnesses or exhibits that the judge decided the jury shouldn’t see.) In a particularly controversial trial, the jury may be “sequestered” — essentially incarcerated, made to spend nights and weekends in a hotel under supervision (and perhaps without computers and cell phones).

It used to be generally prohibited for jurors to take notes during the trial, perhaps on the theory that they would miss some evidence while writing other evidence down, or that their notes might over-emphasize some points. The reality that jurors won’t remember anything close to all the evidence without taking notes has led to changes in this rule, at least in some courts. (This sort of rule may vary not only from state to state, but from county to county.) Also, in some courts, jurors are now allowed to ask questions (most often by submitting them in writing to the bailiff). I heartily approve of this trend. Unlike most lawyers, I managed to make it onto a jury once, and experienced firsthand the frustration of having a pertinent question that the attorneys didn’t address.

Speaking of frustration, people often don’t think of the thankless task of the alternate juror. In many criminal and some civil cases, one or more alternate jurors are chosen to hear all the evidence — and then, most likely, get no chance to say or do anything about it. Alternate jurors are spare parts, available in case enough jurors get sick or are removed for misconduct that there wouldn’t be enough left to decide the case. Without the alternates, the judge would have to declare a mistrial, which means the whole trial has to be redone from scratch. In some jurisdictions, the jurors don’t know until just before they start to deliberate which ones will be the alternates.

Having the right to a trial by jury doesn’t mean it’s always a good idea. If your defense depends on some legal principle that the average juror might not “get,” you could be better off having a trial judge hear the case without a jury. (A lot depends on the reputation of the particular judge.) For example, you may want your case tried to a judge instead of a jury if your defense hinges on the existence of reasonable doubt. If a defendant does not plan to testify or to offer his/her own version of events, but to rely on the weakness of the prosecution’s case, a judge may be a better bet, as jurors (the judge’s instructions notwithstanding) tend to expect an innocent person to speak up and assert innocence.

I’ll have more to say about “reasonable doubt” and about jury instructions in Part III, next time.


Karen A. Wyle is the author of the science fiction novel Twin-Bred. She is an attorney with more than thirty years’ experience. Learn more about Wyle and her work at her Amazon Author Page, her website, or her blog, Looking Around. Learn more about her law practice at her legal website. You can also find her on Facebook and follow her on Twitter.


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