Los Angeles Criminal Trial Judge and Jury FAQ
For any offense where the punishment is incarceration, either a misdemeanor or a felony, you’re entitled to a jury trial by 12 people from the community. Usually, almost always, if you’re going to have a trial you would want a jury trial because the prosecution has to get all 12 people to agree, and it’s usually much easier for the defense to knock out just one juror and has a 1 in 12 chance than a judge who has seen everything.
Q: How are jurors chosen?
A: Jurors are usually chosen by the voter roles or by the driver’s license roles. They’re just picked from the community, letters are sent out, and they are summoned for jury service.
Q: What can I do if I don’t like certain jurors?
A: You and your attorney have a certain amount of what are called “peremptory challenges.” You can always excuse a juror for “cause,” which means that the juror is actually biased and you’re able to prove through the questions of that juror that they are actually biased. You also have a certain amount of peremptory challenges where you can just remove a juror just because you don’t like the way they look, the way they sit but it can’t be for an illegal reason based on race, religion, sexual orientation, nationality, things like that.
Q: What can I do if I don’t like the judge?
A: Generally, you’re stuck with the judge. At the very first appearance you can make a motion to exclude the judge for actual biased reasons if you believe the judge is biased or the attorney believes the judge is biased you can have the judge removed or disqualified. It’s called “papering” the judge. Although usually it’s not a good idea because just like any other real world all of the judges are in the same building, and you’re just going to be sent to the guy down the hall who’s going to be pissed off that he got sent somebody else’s work. Generally not a good idea unless the judge is actually biased.
Q: What is the “charge to the jury”?
A: The jury is charged with what we call “voire dire,” which means to seek the truth. The jury is charged with finding the verdict. They are read jury instructions, very specific set of laws and rules which explains the elements of a crime in supposedly common phrases. The jury is what’s called the “finder of fact.” They are to determine fact based on the evidence presented and based on witnesses that testify, whether they believe that testimony. They weigh the evidence and they come out with a verdict.
Q: Can jurors take notes during the trial?
A: Yes. Jurors are allowed and encouraged to take notes.
What they are not allowed to do is discuss the case with each other or anyone else during the trial. They’re also not allowed to do any independent research. They’re not allowed to go look at the scene. They’re not allowed to do Internet or any book research outside of what the judge charges them to do.
Q: Can jurors ask to see evidence or transcripts?
A: Yes. Jurors are generally allowed to see evidence and they’re not allowed to see transcripts, but what they do is they have what’s called a “read-back.”
So, say there was a particular witness. Let’s say it is a medical expert, a doctor testifying and they want to hear the cross-examination of the doctor. What will happen is the court reporter that’s taken notes will go back into the jury room and will read that portion of the testimony to the jurors, but they’re not allowed generally to look at transcripts. They are allowed to review evidence depending on what the evidence is.
Q: Can the judge take over the trial from the jury?
A: In certain instances the judge could take the case away from the jury but would generally find a mistrial. It would be very, very rare for the judge to do that.
Sometimes the judge can find that the jury’s verdict is not supported by facts or law and the judge can change the verdict. Also, done in very rare circumstances because the policy of having juries decide is considered so sacred and high.
Q: What rules do juries have to follow when returning a verdict?
A: Jurors are supposed to follow the law. They’re supposed to apply the evidence to the law, meaningfully deliberate amongst themselves and return a verdict.
What they’re not supposed to do is what they call “jury nullification,” but it happens. It’s where you feel that this case is so outrageous, and even though we believe that this person did it, we’re not going to find him guilty. What they’re also not supposed to do is base a verdict on prejudice or the fact that the person looksguilty. They’re not supposed to do any independent investigation. They’re not supposed to talk to anybody. They’re not supposed to be biased. It’s a very high duty that’s charged to jurors, and those jurors take their duties very, very seriously.
Q: What happens if the jury cannot agree on a verdict?
A: If the jurors cannot agree, they generally come out in front of the judge and say, “We can’t agree.” and then the judge who is really frustrated because they’ve spent a lot of time and effort will say “Look, try to deliberate and try to agree on this” and the judge will say: “Is there anything that will help you?” “Would you like some read-back of testimony?” “Would you like to see some more evidence that could help you agree?” If the jury goes back and then says they are hopelessly deadlocked, if they cannot agree on a verdict, the judge will generally issue a mistrial. The judge will often pull the jurors to see what the deadlock is. If it’s 6/6 or 7/4, or if there’s just one hold out. So, for instance if there’s just one hold out for not guilty and 11 saying guilty, the prosecutor will probably retry the case. If it’s the opposite, then the prosecutor may not retry the case.
Q: When will the judge declare a mistrial?
A: When he’s determined either that the jury is hopelessly deadlocked or some procedural or ethical violation has occurred and the defendant cannot get a fair trial, or just because of circumstances they can’t proceed.