Juries Are All About the Facts

Q: What is the role of the jury in a criminal trial?

A: Trials follow arraignments, which follow indictment, which are produced by grand juries, which are assembled after criminal charges are filed against an alleged criminal. There are four essential roles in a criminal trial: the prosecutor, the defendant, the judge, and the jury. The prosecutor, as you might have guessed, prosecutes the defendant, who defends himself as necessary. The judge presides over all matters of law in the trial. It is the unique province of the jury to determine the facts of the case.

Juries are picked from a random sampling of the defendant’s peers, as the Sixth Amendment to the U.S. Constitution requires. In felony cases, twelve jurors are required to constitute a petit (as opposed to a “grand”) jury. The West Virginia Code requires that a qualified panel of at least twenty jurors be presented in order for a jury of twelve to be picked.

When twenty random names are picked from the list, the process of voire dire (pronounced, “vwah-deer”) begins. Voire dire literally means, “to speak the truth” and is used to produce a jury whose minds, as one court has said, “wholly free from bias or prejudice.” Typically, the judge begins the voire dire process by asking a litany of general questions: “Do you know the lawers?”, “Do you know the defendant?”, etc. Once the judge has determined that there are twenty qualified, prospective jurors, he allows each attorney to voire dire the jurors.

The attorney might ask if the jurors have heard anything about the case, if they have a prejudice against particular crimes, if their work gives them special knowledge about the matter to be tried, etc. Attorneys have even been known to ask about whether jurors listen to talk radio in an attempt to peg one’s political persuasion. The goal of each attorney is, superficially, to obtain an impartial jury. In reality, each is attempting to determine which jurors are more likely to be sympathetic to their position.

Once the attorneys are finished, they are permitted to exercise their “strikes.” Strikes come in two forms: “peremptory” and “for cause.” Each gets four peremptory strikes, meaning, they can cut a juror for any reason they want. Strikes “for cause” are limitless, but can only be exercised when true instances of bias or prejudice are shown. For instance, if an Elbonian is the defendant in the criminal case, and a potential juror is the sworn enemy of the Elbonian people, that juror might be stricken “for cause.” But, if that same juror’s dislike of the Elbonians is based solely upon the way Elbonians are described in the comic “Dilbert,” it is likely that the juror could be rehabilitated and the prejudice dissipated.

When the panel of twenty prospective jurors is complete, eight must be stricken. The prosecution and defense take turns striking jurors, until the number remaining is twelve. Exactly why jurors are struck peremptorily is largely unknown – even to most attorneys. Many have theories about the ideal jury, but if you asked most attorneys, they would probably tell you that certain jurors are struck mostly on “gut instinct.”

It may be an imprecise science, but it is remarkable how often well-balanced juries are chosen. It is not uncommon for juries to have a coal miner sitting beside an executive sitting beside a homemaker. The greater the cross-section of society that juries represent, the more objective the jury becomes.

It is its objective nature that makes trial by jury such a hallmark of our democracy.

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Copyright Jeremiah G. Dys 2007. May not be used absent express, written permission. Please contact the author for permission to reprint.

The Waiting Game

Q: Why does it take so long to get from arraignment to trial?

A: When last we left our alleged criminal, he had just posted bail. We assume, then, that he is out and about under a variety of conditions. Meanwhile, attorneys are busy prepping the case for trial.

Quick review: Our alleged criminal was arrested, indicted by a large and in charge grand jury, which produced an indictment, that invited him to an arraignment, where he entered a plea, and the court secured his continued participation by attaching him to a hefty bond. The next step, you would think, would be the trial. But, in a weird way, you would be wrong. The next step is actually what we call the “pre-trial period.”

Dear Sidebar, You went to four years of college, three years of law school, studied for and passed the bar exam all to prepare you to come up with a fancy term like “pre-trial period?” Isn’t there a Latin phrase that you could use to make us actually think you are smart? Signed, the Anti-Hyphen Defamation League.

Dear Anti-Hyphenites, Absolutimus notus. Signed, Sidebar.

The pre-trial period is simply a period of time for both side of the case to investigate the charges, develop trial theories, make pre-trial motions, and, generally, get to know the ins-and-outs of the case. It is a period of time that can be quite lengthy. For instance, if the crime requires collaboration with the scientific community (e.g. coroner, crime lab, forensics, DNA, handwriting expert, etc.), those tests or experiments may take some time to complete – especially if there is a backlog of cases preceding yours.

Actually, criminal trials usually come to trial quite quickly. Most criminal cases go from arraignment to trial (or plea agreement) in under a year, at most, two years. Civil cases are usually much longer, going from complaint to trial (or settlement) anywhere from one to ten years.

The answer to why criminal cases go to trial more quickly is found in the Sixth Amendment of our U.S. Constitution: “In all criminal prosecutions, the accused shall enjoy the right to a speedy and public trial . . ..” Although, I am not sure any “accused” is going to actually “enjoy” the speedy trial, we understand what is meant. The further and further you get away from the alleged crime, the more witnesses disappear, memories fade, and evidence becomes unavailable. In short, the case becomes much more difficult to try and defend.

In West Virginia, our Constitution terms “speedy trial” as one conducted “without unreasonable delay.” What is more, the Legislature has passed a law that entitles a criminal defendant to have his or her case tried within three terms of court following the indictment. Since, in the calendar year, there are three terms of court in West Virginia, this means that a criminal defendant has the right to have his or her case tried one year from being indicted. Of course, there may be strategic reasons for the criminal defendant to continue or delay the start of a trial beyond the three-term rule. Nonetheless, a speedy or un-delayed trial, is a constitutional and legislative right for the criminal defendant.

In reality, the answer to the question requires the asking of another question: why does it not take longer? Considering the amount of investigation, research, and planning that is required, a year or two is not so bad.

Next week, we begin the trial.

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Copyright Jeremiah G. Dys 2007. May not be used absent express, written permission. Please contact the author for permission to reprint.

Venues: They are a Changin'

Q: What is a “change of venue?”

A: Before an answer to this question can be properly understood, you must understand that the Sixth Amendment to the Constitution of the United States guarantees an alleged criminal the right to a “speedy and public trial, by an impartial jury of the State and district” where the crime allegedly occurred. Key in on that word “impartial;” its importance will be shown shortly.

Here’s what normally happens. A criminal is arrested and indicted for the commission of a crime. Ultimately, the criminal defendant will get the opportunity to defend the charges brought against him in an appropriate court of law. That defense takes place in the form of a trial. Criminal trials are presided over by a judge and a jury. The judge governs matters of law, while the jury is the determiner of facts. That jury, for a criminal trial, consists of twelve individuals who are residents of that county.

Most of the time, we are blissfully unaware of all the sordid details of the crimes that happen within our community on a routine basis. But what happens when a “high-profile” case comes to trial? Trials for cases that have already been tried in the court of public opinion present an especially difficult issue when it comes time to make payment on that Constitutional guarantee of an impartial jury.

Sometimes, the projected jury pool could be so vastly biased that it is necessary to find another jury pool. Enter “change of venue.” Venue is simply the place where the trial will occur. When we speak of changing venue, lawyers mean that the trial needs to change location. So, if the case is pending in County X, but County X is determined to be frightfully biased, the trial of the case is moved to County Y, using all the lawyers, witnesses, and even judges that would have been used in County X, but jurors from County Y in an effort to ensure impartiality.

Changes of venue are few and far between. One reason for that is the law, which requires a defendant to prove “the existence of a locally extensive present hostile sentiment against him,” as one court put it. The Rules of Criminal Procedure require the existence of “so great a prejudice against the defendant” that no “fair and impartial trial” can be had in the place the law demands trial. Proof of such a pervasive bias is undeniably difficult.

Why? Well, say there are 80,000 people residing in the current venue. The jury only needs to be twelve people. We all know that you, dear readers, keep well-informed of the goings-on of this county, but not all of our fine residents do – by this paper, radio, or television. It is safe to say, frankly, that most of our neighbors have no idea what is going on down at the courthouse. Only twelve people who know nothing of the criminal defendant or alleged crime need to be found to secure impartiality. Finding those twelve can be surprisingly less difficult than you may think.

The reason the burden is so heavy upon a criminal defendant is that there are great costs to changing venue. Where do you go to be free of the bias? What does it cost to transport the entire trial to the new place of venue? What evidence must make the trip?
Our system of justice functions well to ensure impartiality. It depends upon the honesty of prospective jurors to confess bias, should they have any. Empanelling “an impartial jury of the State and district” where the crime allegedly occurred happens far more often than not.

Impartial juries: just one more indication of your importance to the assuaging of injustice in this fine country.

Copyright: Jeremiah G. Dys, Esq. May not be used absent express, written permission. Please contact the author for permission to reprint.