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 Abstract

Excerpted From: Georgetown University and The Georgetown Law Journal, Right to a Jury Trial, 49 Georgetown Law Journal Annual Review of Criminal Procedure 643 (2020)(97 Footnotes) (Full Document)

Under the Sixth Amendment, criminal defendants have a right to trial by an impartial jury drawn from the state  and district where the crime allegedly occurred. The right to a jury trial exists only in prosecutions for serious crimes, as distinguished from petty offenses. In determining whether a crime is “serious” under the Sixth Amendment, courts look to the severity of the maximum authorized penalty. Crimes punishable by a prison sentence greater than six months are considered “serious” and trigger a defendant's right to a jury trial even if the imposed sentence is less than six months. For crimes punishable by a sentence of six months or less, the right to a jury trial attaches only if additional statutory or regulatory penalties “are so severe that the legislature clearly determined that the offense is a 'serious' one.” In the absence of a maximum statutory penalty, appellate courts will consider the actual penalty imposed. A defendant charged with multiple petty offenses does not have a right to a jury trial even when the combined total of potential sentences exceeds six months.

The Sixth Amendment requires that a jury make the factual findings necessary to impose a death sentence. Other than the fact of a prior conviction, facts that increase a sentence or penalty beyond the mandatory minimum or statutory maximum must be proved to a jury beyond a reasonable doubt, unless admitted by the defendant. However, sentencing judges may make factual findings pursuant to their consideration of sentencing factors that are part of the advisory Federal Sentencing Guidelines scheme. A sentencing judge may also make findings of fact necessary for the imposition of consecutive, as opposed to concurrent, sentences when the defendant has been  tried and convicted of multiple offenses.

Waiver of Right to a Jury Trial.

A defendant may waive the right to a jury trial by (1) obtaining the court's approval and the government's consent; (2) waiving the right voluntarily; (3) expressing the waiver knowingly and intelligently; and (4) recording the waiver in writing. To ensure that a waiver is voluntary, knowing, and intelligent, the court should inform the defendant on the record of the nature of the right to a jury trial and the consequences of waiving the right. In any subsequent challenge, the defendant bears the burden of proving that the waiver was not valid.

Jury Composition and Unanimity.

Juries have historically been composed of twelve persons, but the Supreme Court has held that juries of six or more satisfy the Sixth Amendment. Rule 23(b) of the Federal Rules of Criminal Procedure requires a twelve-member jury. However, Rule 23(b) also permits parties to waive the twelve-member jury requirement at any time before the verdict, provided that the agreement is in writing and approved by the court. Although the Supreme Court has recognized the defendant's right to a unanimous verdict in federal jury trials, Rule 23(b) permits a federal court, at its discretion and without the parties' consent, to accept a verdict by eleven jurors if the twelfth juror is excused for good cause after the jury begins deliberations.

Constitutional Challenges to Jury Selection Procedures.

Jury selection procedures implicate due process, the Sixth Amendment, and equal protection principles. In limited situations, a defendant may challenge the jury selection process on the ground that it violates fundamental fairness under the Due Process Clause.

The Sixth Amendment forbids racial discrimination in the selection of jurors and requires that the jury venire from which the petit jury is selected represent a fair-cross-section of the community. However, the petit jury itself need not represent a fair-cross-section of the community. To establish a prima facie violation of the fair-cross-section requirement, the defendant must show that (1) the group allegedly excluded is a “distinctive” group in the community; (2) the group was not fairly represented in the venire from which the petit jury was chosen; and (3) the underrepresentation resulted from a systematic exclusion of the group in the jury selection process. A criminal defendant need not be a member of the underrepresented group to have standing to raise the claim. To rebut a prima facie showing of a fair-cross-section violation, the prosecution must show that the disproportionate exclusion manifestly and primarily advances a significant government interest.

A defendant may challenge a venire on equal protection grounds by demonstrating that the venire was selected in an intentionally discriminatory fashion. To establish a prima facie case of intentional discrimination against a particular group, the defendant must demonstrate that (1) the group is a recognizable class; (2) the selection procedure resulted in substantial underrepresentation of the group over a significant period of time; and (3) the selection procedure is susceptible to abuse or is not racially neutral. To rebut the prima facie showing, the government must prove an absence of discriminatory intent.

Statutory Challenges to Jury Selection Procedures.

The Jury Selection and Service Act of 1968 (JSSA) sets forth guidelines for selecting grand and petit juries in federal courts. The JSSA requires each judicial district to devise a plan for randomly selecting jurors based on voter registration rolls or lists of actual voters.

To prove a violation of the JSSA, a defendant must show that the district's plan substantially failed to comply with the JSSA. Violation of the JSSA may also constitute a violation of the constitutional fair-cross-section requirement. Similar to a fair-cross-section claim, the government can rebut a prima facie showing of a JSSA violation by showing that the disproportionate exclusion of a distinctive group manifestly and primarily advances a significant government interest. A court will not entertain a challenge to the jury selection system under the JSSA if a defendant does not follow the statutory procedures. 

Voir Dire.

The trial court must conduct a voir dire examination of prospective jurors in order to reveal potential bias. The trial court has broad discretion over the voir dire procedure and the questions to be asked. Either the trial court or the parties may conduct voir dire. Errors in voir dire are subject to harmless error analysis.

Where the defendant requests the court inquire into potential jurors' racial bias, the court is constitutionally required to do so if there is a reasonable possibility that racial prejudice may influence the jury. Where a defendant is charged with an interracial violent crime, “the possibility of racial prejudice” is presumed and the duty to inquire is automatic.

If publicity threatens to prejudice the proceedings at any point, the judge must ensure that jurors have not formed preconceptions of the defendant's guilt. To accomplish this, the court may be required to grant a defendant's request for individual questioning of each prospective juror.

The trial court may impanel an anonymous jury if necessary to protect the jurors and the integrity of their deliberations. The court must mitigate the potential prejudicial effects of an anonymous jury by conducting a careful voir dire designed to uncover juror bias and provide the jurors with plausible, nonprejudicial reasons for their anonymity.

Challenges for Cause.

The trial court may exclude for cause any prospective juror who is not statutorily qualified or who otherwise will be unable to render an impartial verdict. In most circuits, the trial court's determination of removal for cause will be reversed only for clear error. Jurors are required by statute to be (1) U.S. citizens; (2) at least eighteen-years-old; (3) residents of the judicial district where the trial is held for at least one year; (4) able to read, write, understand, and speak English; (5) mentally and physically capable of performing jury service; and (6) free from criminal conviction of, or pending charges for, an offense punishable by more than one year in prison. The trial court need not excuse a juror for cause if the juror indicates an ability to set aside an opinion and render a verdict based on the evidence.

An appellate court may consider a juror's deliberate concealment of information during voir dire to be evidence of bias and grant a new trial. Appellate courts may also reverse convictions when a juror's mistaken response to a material voir dire question prevented the trial court from discovering actual bias.

Peremptory Challenges. 

Parties to federal criminal proceedings have a limited number of peremptory challenges, which are requests to disqualify potential jurors without showing cause. Rule 24(b) of the Federal Rules of Criminal Procedure allows a certain number of peremptory challenges based on the gravity of the charged offense. The trial court may grant additional peremptory challenges in cases with multiple defendants.

Peremptory challenges are not constitutionally required, and impairment of a defendant's use of peremptory challenges on its own is not unconstitutional. In federal cases, a defendant's exercise of peremptory challenges is not improperly impaired when the defendant uses a peremptory challenge to remove a juror who should have been excused for cause.

Peremptory Challenges: Equal Protection Issues. The use of peremptory challenges to exclude persons from the petit jury based on their race or gender violates the Equal Protection Clause of the Fourteenth Amendment. In Batson v. Kentucky, the Supreme Court outlined a three-step test for evaluating whether a prosecutor's use of peremptory challenges is a constitutional violation. First, the defendant must establish a prima facie case of intentional racial discrimination by showing that (1) defendant is a member of a cognizable racial group; (2) the group's members have been excluded from the defendant's jury; and (3) the circumstances of the case raise an inference that the exclusion was based on race.

Since Batson, the Court has loosened the requirements for establishing a prima facie case in three respects: (1) a criminal defendant may object to race-based peremptory challenges on equal protection grounds regardless of whether the defendant and the excluded juror are of the same race; (2) the prosecution may challenge the defendant's use of peremptory challenges on equal protection grounds; and (3) either party may challenge gender-based exclusion.

Second, to rebut a prima facie showing of intentional discrimination, the proponent of the peremptory challenge must offer a race-neutral explanation. This explanation need not be “persuasive, or even plausible,” but must be more than a mere affirmation of good faith or assumption that the challenged juror would be “partial to the defendant because of their shared race.”

Finally, the court must determine whether the explanation is facially raceneutral and whether the opponent of the peremptory challenge has proven purposeful racial discrimination. Appellate courts will uphold the trial court's finding unless it is clearly erroneous.

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