Criminal Trials: The Judge And Jury

What determines whether I receive a judge or a jury trial?

For any offense where the punishment is incarceration, either a misdemeanour or a felony, you are 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 to have a jury trial because the prosecution has to get all 12 people to agree and it's usually much easier for the defence to knock out just one juror, and has a one in 12 chance, than to knock out a judge who's seen everything.

How are jurors chosen?

Jurors are usually chosen by the voter rolls or by the driver's license rolls. They are just picked from the community. Letters are sent out and they are summoned to jury service.

What can I do if I don't like certain jurors?

If you don't like certain jurors, 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 that through the questions of that juror. You also have a certain amount of peremptory challenges when you can just remove a juror just because you don't like the way they look or the way they sit. However, it can't be for an illegal reason, based on race, religion, sexual orientation, nationality, etc.

What can I do if I don't like the judge?

Generally you're stuck with the judge, whether you like them or not. At the very first appearance you can make a motion to exclude the judge for actual bias reasons. If you believe the judge is biased or your attorney believes the judge is biased, you can have the judge removed or disqualified. It's called papering the judge. Usually it's not a good idea because, just like any other real world, all of the judges are judges in the same building and you're just going to be sent to the judge down the hall who's going to be annoyed that he's being sent somebody else's work. Generally not a good idea to paper the judge unless the judge is actually biased.

What is the "charge to the jury"?

The jury is charged with what we call "voir dire," which means "to seek the truth." The jury is charged with finding a verdict. They are read jury instructions; there is a very specific set of laws and rules that explains the elements of the crime in supposedly common phrases. The jury is what's called the "finder of fact." They are charged with determining fact based on the evidence presented, based on witnesses that testified and whether they believe that testimony. They weigh the evidence and they come up with a verdict.

Can jurors take notes during the trial?

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. Jurors are also not allowed to do any independent research. They are not allowed to go look at the scene. They are not allowed to do internet or any book research outside of what the judge charges the jury to do.

Can jurors ask to see evidence or transcripts?

Jurors are generally allowed to see evidence and they're not allowed to see transcripts. What they do is they have what's called a readback. Say there was a particular witness, such as a doctor, and the jurors want to hear the cross-examination of the doctor. The court reporter that's taking 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. Jurors are allowed to review evidence depending on what the evidence is.

Can the judge take over the trial from the jury?

In certain instances, the judge could take the case away from the jury, but would generally find a mistrial. It would be 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.

What rules do juries have to follow when returning a verdict?

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 jury nullification - though it happens - where you feel that this case is so outrageous that even though we believe this person did it we're not going to find them guilty. What the jurors also not supposed to do is base a verdict on prejudice or the fact that the person looks guilty. They're supposed to follow the law. They're not supposed to do any independent investigation, they're not supposed to talk to anybody and they're not supposed to be biased. It's a very high duty that's charged to jurors and most jurors take their duties very seriously.

What happens if the jury cannot agree on a verdict?

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's really frustrated because they've spent a lot of time and effort say, "Look. I want you to go back and try to deliberate, and try to agree on this." And then the judge would say, "Is there anything that would help you agree? Would you like some readback of testimony? Would you like to see some more evidence that would help you agree?" If the jury goes back and they say they are hopelessly deadlocked, if they cannot agree on a verdict, the judge will generally issue a mistrial. The judge will often poll the jurors to see what the deadlock on agreement is. If it's 6-6 or 7-4, or if there's just one holdout. So, for instance, if there's one holdout for not guilty and 11 say guilty, the prosecutor will probably retry the case. If it's the opposite, then the prosecutor might not retry the case.

When will the judge declare a mistrial?

A judge can declare a mistrial during a criminal trial when 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 the trial can't proceed.