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Jury Trials--Reasonable Minds May Differ
by Paul Bergman and Sara Berman-Barrett
Copyright © 1993 Nolo Press
Trial by jury is one of the traditions of the Anglo-American legal
But many cases, especially civil cases, are decided by a judge sitting
jury. Some kinds of cases never have a jury.
Are You Eligible for a Jury Trial?
Whatever your personal preference between judge and jury, a jury trial
may not be
available for your case. For example, you are not entitled to a jury
trial if you
are seeking not money but an order that your adversary do something,
such as tear
down a building that encroaches on your property. Also, in most states,
cannot have a jury trial in cases involving child support and child
most other cases, such as those involving personal injury, breach of
professional malpractice, libel or slander, you are entitled to a jury
And You Thought We Won Our Independence
The reason that jury trials are not available in all kinds of cases is
of our legal procedures trace their roots to England, where in centuries
there were two kinds of courts--law courts and equity courts. Jury
available in courts of law but not in courts of equity. Today, even
ancient distinctions between courts have largely disappeared, your right
jury trial often depends on whether English courts would have dealt with
case in the law or equity courts. Ironically, England, which started the
mess in the first place, has nearly eliminated jury trials in civil
Are You Better Off With a Judge or a Jury?
As a pro per, you are almost always better off trying your case before a
than a jury. By not going before a jury, you do not have to worry about:
- how long before trial you have to make a jury request
- depositing jury fees with the court, or
- preparing jury instructions.
In addition, a judge trial is likely to be more informal and easier for
conduct than a jury trial. For example, in the absence of a jury, your
not insist on strict adherence to courtroom procedural rules and rules
evidence. And, of great importance, you can reasonably expect a judge to
inflammatory, irrelevant or other inadmissible evidence from your
slips by you because of your unfamiliarity with evidence rules. Jurors,
may well be influenced by the evidence even if the judge tells them to
Despite the additional complexities a jury trial brings, you may prefer
because you think that a jury will be more sympathetic to your case than
But whether a judge or a jury trial is more likely to produce a
is a complicated question--one that many experienced lawyers readily
rarely has an easy answer. Lawyer folk wisdom often points to choosing a
a case has emotional appeal, and choosing a judge if a case is complex
on technical legal questions.
You may end up with a jury trial even if you prefer a judge trial,
adversary has an independent right to request a jury trial. If your
requests a jury trial, you will have one whether or not you want one.
Asking for a Jury Trial
Even if your case is eligible for trial by jury, in most court systems
it will be
tried by a judge alone unless you or your adversary makes a jury trial
Jury requests must usually be made in writing well in advance of trial
before a trial date is set. If you miss the request deadline, you waive
up the right to a jury trial.
You can also lose your right to a jury trial if you fail to post jury
time. People selected as jurors receive a small amount of money for each
serve. In most court systems, whoever requests a jury usually has to pay
deposit of one day's jury fees--often $50 to $150--before trial.
Choosing a Jury
If you're representing yourself in a jury trial, you'll be asked to help
the jury before the trial starts. The exact procedures for selecting a
from one court system to another, but there are similarities in all
the day your case goes to trial, a group of prospective jurors is
random. If the jury will consist of the traditional 12 jurors, about 30
prospective jurors will be called. But because in many court systems,
juries consist of only six or eight jurors, the jury pool is likely to
The pool of prospective jurors is bought into the courtroom, and a
is chosen at random and seated in the jury box. The judge or the judge
parties ask them questions. The goal of this questioning process, which
the old French term, voir dire, is to select a fair and impartial jury.
Initially, jurors are usually questioned by the judge about their
such as their marital status, occupations and previous jury service.
the judge or you and your adversary will question them further,
biases that might prevent them from being fair and impartial. For
you're suing an attorney for malpractice, it makes sense to question the
prospective jurors as to their experiences with or biases for or against
Who Questions Prospective Jurors
Traditionally, lawyers did almost all of the voir dire questioning.
judges have come to believe that lawyers take up too much time and try
persuade jurors of the merits of their cases rather than simply select a
impartial jurors. As a result, today many judges conduct most or all
After the panel of jurors has been questioned, you and your adversary
to excuse prospective jurors in a process called challenging jurors. If
allows the challenge, the challenged juror will be sent back to the jury
and a new prospective juror will be selected at random from the original
pool and questioned.
The question-and-challenge process continues until both sides accept the
group of jurors, or until both sides have challenged as many prospective
as they are allowed by local court rules. At that point the court clerk
officially swears in the jury and trial--mercifully--begins.
Your Right to Challenge Jurors
There are two kinds of juror challenges. In a challenge for cause, you
judge to excuse a prospective juror on the ground that something in that
background or answers to questions indicate that the person is not fair
impartial. You and your adversary are allowed an unlimited number of
for cause, because you are both entitled to jurors who are fair.
The second kind of challenge, a peremptory challenge, is one that you
exercise for any reason whatsoever. Unlike a challenge for cause, you
to explain or justify your challenge to the judge. For example, perhaps
to excuse Juror Number 8 because she has an occupation that suggests to
she will not give you a fair shot, or because she smiled at your
not at you. If this sounds too good to be true, be aware of a major
on peremptory challenges: you get only a few. The number of peremptory
allowed varies from one court system to another, but is usually
four or six.
Opting Out of Jury Selection
You don't have to play the voir dire game. At least one authority,
Superior Court Judge Rod Duncan, suggests that a pro per litigant may be
off simply standing up and saying, "These look like good and honest
people to me.
I'm not a lawyer and neither are they, and I trust them to apply the law
No questions." Particularly if your adversary is represented by counsel,
jurors may empathize with your "little guy v. big guy" approach.
Side Bar--Civil and Criminal Cases: Big
Civil cases arise when private citizens, including corporations and
associations, sue each other. Criminal trials occur when a state or the
government seeks to punish someone for violating a criminal law. The
Civil cases typically involve money paid by one side to the other;
may result in fines paid to the government and imprisonment.
The Burden of Proof
In most civil cases, a plaintiff wins by convincing a judge or jury by a
preponderance of evidence that a claim is true. In criminal cases the
must prove a defendant's guilt beyond a reasonable doubt.
The Right to a Jury Trial
You are entitled to a jury in all criminal cases, but not in all civil
Also, most states require unanimous jury verdicts in criminal trials,
agreement by only three-fourths of the jurors in a civil case.
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