The Trial Process

The Sixth Amendment specifies certain citizens' rights that apply in all criminal trials.
  • Speedy trial.

  • Public trial.

  • Trial by jury.

  • Notice of the accusation.

  • Confrontation of opposing witnesses.

  • Compulsory process for obtaining favorable witnesses.

  • Assistance of counsel.

Although the Sixth Amendment guarantees these rights only with respect to the federal government, the U.S. Supreme Court has incorporated all of them so they apply to the states as well as the federal government.

Jury trial versus bench trial

The defendant can waive this right to a jury trial and have a bench trial (in which the judge serves as the finder of facts and decides the innocence or guilt of the accused on the charges). The defendant might choose a bench trial if he or she believes a judge will be more capable of making an objective decision, especially if the charges are likely to arouse emotional reactions among jurors. But in all criminal matters in which jail is a possible penalty (which means just about everything above a trivial misdemeanor), the defendant has a right to a jury trial. A defendant might opt for a jury trial because of the pressures on judges to find the defendant guilty. Some of these pressures are political—in many states, judges must run for re‐election, and any judge who appears to be “soft on criminals” can be politically ruined.

Which type of trial—jury or bench—best serves the public's interest in justice? Some people want to abolish jury trials. They contend that many trials today involve legal and technical questions that are too complex for the average citizen to grasp and that judges are better equipped to decide the outcome. The right to jury trial reflects, on the other hand, a judgment about the way in which law should be enforced and justice should be administered. A right to jury trial is granted to criminal defendants to prevent oppression by the government. “Providing an accused with the right to be tried by a jury of his peers gave him an inestimable safeguard against the corrupt or overzealous prosecutor and against the compliant, biased, or eccentric judge,” the Supreme Court said in Duncan v. Louisiana (1968).

The jury pool

Although juries may consist of as few as six members, criminal cases usually come before 12‐member juries. The court forms a jury pool by selecting names at random from lists of citizens who live within the area over which the court presides. Lists are prepared from voter registration lists, motor vehicle registration information, city telephone directories, property tax rolls, and other sources. Those included in the pool must report for jury duty on a certain date. When a case is ready for trial, each juror in the pool is assigned a number and the numbers are mixed together. A court official draws numbers to determine which members of the pool will be the first considered for a jury in a particular case.

The right to a jury that reflects a fair cross section of the community

Until the 1960s, jury pools often reflected a narrow segment of U.S. society. Courts sought the leading citizens for jury duty. Women were routinely excused, and racial minorities were excluded. The civil rights movement of the 1950s and 1960s stimulated some African‐Americans to argue that all‐white juries were biased against black defendants. In 1968, Congress passed a law that prevented federal courts from excluding jurors on the basis of color, race, sex, national origin, religion, or economic status. The law required jury pools to be chosen at random, to reflect a fair cross section of the community. In 1975, the Supreme Court struck down a Louisiana law that exempted women from jury duty. This decision had the effect of extending the requirement that jurors had to be randomly selected to state courts.

Voir dire

The Sixth Amendment guarantees the accused the right to a fair trial before an impartial jury. In order to ferret out those jurors who might have a bias or prejudice in the case, the court conducts a voir dire examination, which involves questioning prospective jurors. In some federal courts, the judge is the only one who examines potential jurors. In state courts, the prosecutor and the defense attorney ask questions to assess the fitness of individual jurors.

Strikes and challenges

Jury selection is a negative process, with both the prosecution and defense making strikes or challenges. If an attorney for either side thinks a potential juror would be incapable of judging the accused fairly, he or she can make a challenge for cause. Whoever makes a challenge for cause must show that the potential juror has some bias or some other legal disability. The number of such challenges permitted to attorneys is unlimited. Through their use of the peremptory challenge, both sides seek to shape the jury. A peremptory challenge is the removal of a juror without giving any reason. State law gives each side a certain number of peremptory challenges. Ideally, a lawyer should use peremptory challenges to weed out biased jurors.

Eliminating peremptory challenges

Critics charge that lawyers use the peremptory challenge as a tool to stack the jury with people who have a bias in favor of their side. Since the law doesn't require attorneys to give a reason for striking candidates from the jury through the peremptory challenge, there is an opportunity for unscrupulous lawyers to exclude persons from jury duty on account of race or gender. The Supreme Court has ruled that such a practice violates the equal protection clause of the Fourteenth Amendment, but some prosecutors and defense attorneys still use race and gender as reasons for peremptory challenges. If challenged, an attorney can give another reason—almost any reason will do—for excluding a minority or female juror. To end discrimination in jury selection, Justice Thurgood Marshall once proposed an effective solution: eliminate peremptory challenges entirely.

The right to a fair trial versus the right to a free press

Before the start of a trial, a conflict can arise between the media's First Amendment right to report and the accused's Sixth Amendment right to a fair trial. The most significant source of conflict comes from the impact upon jury selection of media coverage of a case prior to trial. Pretrial publicity of a case, often adverse to the accused and inflammatory, has the potential to influence the attitudes of many people in the pool of eligible jurors. When confronted with this situation, a judge must preserve the accused's right to an impartial jury without restricting the free press. Perhaps the best solution for a judge is to question prospective jurors to screen out those with fixed opinions as to guilt or innocence.

Once the jury selection process is completed, a judge can employ other methods to ensure that media coverage of the trial won't influence the jury's verdict. Closing the trial to parties not directly involved in it is an extreme remedy. The Supreme Court has ruled that a judge must have very strong reasons for excluding the press and the public from a trial. Short of locking out the media and the public, a judge has at his or her disposal other ways of ensuring fairness. A judge can sequester jurors (isolate them from the world so that press coverage doesn't influence their decision making), change the venue of the trial (move the location of the trial to minimize the exposure of prospective jurors to pretrial publicity), and/or issue a gag order (tell the people involved in a case not to discuss it with reporters).

Television cameras in the courtroom

One of the most intense debates surrounds the presence of television cameras in courtrooms. Cameras are still not permitted in federal courtrooms, but they are common in state courts. For those states whose courtrooms are open to television cameras, state law usually stipulates that a trial judge can ban television coverage from the court if he or she believes the cameras would interfere with the rights of the parties involved or disrupt the proceedings.

Those favoring cameras in the courtroom assert the First Amendment's guarantee of freedom of the press. They contend that viewers have a right to access to the trial process and that this scrutiny will make the system more accountable to the citizens. Opponents argue that the presence of cameras infringes on a defendant's Sixth Amendment right to a fair trial. They claim that being on television changes the way judges, witnesses, attorneys, and jurors act, thus damaging the entire court process.

Opening statements

At the beginning of the trial, each side makes remarks to the jury. Usually, these statements set forth what each side intends to prove by evidence during the trial. The prosecution goes first and the defense follows.

The role of evidence

Testimonial evidence consists of statements by witnesses. Real evidence is presented in the form of exhibits, including physical objects, such as a murder weapon or a piece of bloodstained clothing. Most evidence is testimonial. Two types of testimonial evidence may be used in a trial: direct evidence and circumstantial evidence. Direct evidence is evidence that has been witnessed by the person giving testimony. Circumstantial evidence is indirect evidence—creating an inference that a fact exists. Hearsay evidence is not admissible except as provided for by statute or court rules. When witnesses offer evidence that they don't have direct knowledge of (and which is based on what others have said to them), this evidence is called hearsay. Hearsay is generally not permissible because it tends to be unreliable.

The prosecution's case

Once opening statements have been made, the prosecutor presents the state's evidence against the defendant. The prosecutor calls his or her first witness and conducts direct examination. The defense is permitted to conduct cross‐examination of the prosecutor's witnesses to discredit their testimony. Under the Sixth Amendment, a defendant has a right to face and question those who give evidence against him or her.

The defense's case

There are important differences between the case for the prosecution and the case for the defense. The defense is not required to present any evidence; it can merely challenge the credibility or legality of the prosecution's case. The defense is not obligated to prove the defendant's innocence; it needs to show only that the prosecution failed to prove its case beyond a reasonable doubt. Finally, the defendant does not have to testify. But if the defendant testifies, he or she must face cross‐examination. The Fifth Amendment states that the defendant has the right not to testify at a trial if to do so would implicate the defendant in a crime. Witnesses may also refuse to testify. For example, if a witness, while testifying, is asked a question to which the answer would reveal involvement in a crime, the witness may “take the Fifth.”

The prosecutor carries the double burden of the fact that the defendant is presumed innocent until proven guilty and that the prosecutor must prove the defendant guilty beyond a reasonable doubt. Several defense strategies for creating doubt are

  • Providing alternative explanations of evidence that links the defendant to the crime.

  • Pointing out weaknesses in the prosecution's case.

  • Presenting an alibi.

  • Attacking the credibility and character of prosecution's witnesses.

Once the defense settles on a strategy, it presents its case according to the same procedures that the prosecution followed: direct examination, cross‐examination, redirect examination, and re‐cross‐examination.

Closing arguments

Both sides present their interpretations of the facts to the jury, injecting their opinions about what happened. The prosecution makes the final argument.

Jury instructions

The judge describes to the jurors how they should apply the law to the facts, defines “reasonable doubt,” explains rules of evidence, and lists the possible verdicts.

Jury deliberations

In most jurisdictions, the jury's final decision of guilty or not guilty must be unanimous. A jury that can't reach unanimity is called a hung jury. If the jury hangs, the judge dismisses the case and the prosecution can retry it before a new jury. If the jury finds the defendant not guilty, the government can never prosecute the defendant again for the same charges. The Fifth Amendment protects citizens from double jeopardy, which means a person can't face criminal charges twice for the same crime. The purpose of this right is to protect citizens from government harassment. If the jury finds the defendant guilty, the judge sets a date for a sentencing hearing. Most defendants who go to trial are convicted.

Jury decisions in capital crimes

In capital cases (in which the death penalty is a possibility), jurors are often required to make two decisions: whether the defendant is guilty and, if so, whether he or she should be executed. Only after the jury has reached a guilty verdict does it turn to the penalty phase. During this phase, the jury hears evidence on both aggravating circumstances (for example, the defendant's deliberate cruelty) and mitigating circumstances (for example, the defendant's disadvantaged childhood growing up in a broken home). A jury must unanimously agree on a death sentence or the defendant automatically receives life imprisonment.

Jury nullification

Jury nullification happens when a jury disregards the law and acquits the defendant. Juries cancel the force of strict legal procedures when they think the substance of a law is unjust (for example, the fugitive slave laws) or because they disagree with the procedures used in law enforcement (for example, police lying or police planting of evidence).