Right to a Trial by Jury
A. How D Looks to the Jury
very nature of courtroom setting may make D look guilty, ex. clothing, architecture
D can’t be required to wear jailhouse garb
Jury shouldn’t see D in handcuffs, chains, leg restraints, etc. (exception if danger based on specific finding)
Security in courtroom ok
Rule of Thumb:  if objected to, can’t put D in position where “branded” guilty or dangerous
Texas loves juries … can get one on anything criminal (even a parking ticket!)
Some states require employers to pay jurors normal wages; Texas just pays a pittance
Prosecutions to Which the Right Applies
a.  Duncan v. Louisiana – federal incorporation of 6A trial by jury
look to potential (not actual) penalty to see if need a jury
6 months or less potential penalty, not entitled to jury trial as matter of federal Constitutional law
get jury trial in state court if were they to be tried in federal court would be under 6A guarantee
b.   Just look at time .. probation, fines don’t matter
c.  Corporations:  $100,000 threshold for jury trial (USSC has yet to rule)
E.  Jury Selection – Composition of the Jury
1965 Voting Right Act – change in voting laws need to be cleared if a state with bad history, basically wiping out race discrimination jury selection problem
After 1965, ok to use voting registry to select jurors; Texas added drivers licenses
6A (fully incorporated) entitles selection process to be a fair cross-section
but … this does NOT mean your particular jury will be perfectly diverse; just a fair selection process
Standing – anyone can challenge jury selection/make EP challenge (D need not be member of cognizable group being excluded)
Most judges do voir dire
For attorneys in state court, voir dire used as method of presenting case
Peremptory Challenges
Batson Standard:      1)    Is there a cognizable group?
People struck who are members?
Then upon objection can ask WHY?
To challenge have to show selected out for impermissible reason
Religion not valid ground; individual beliefs ok, but not bc Methodist
Can’t strike bc black, afraid offended by racial slurs
If reason given is neutral, D doesn’t show pretext, then reason is ok
5th Cir. not sympathetic to “disgusted look” …ok as long as not linked to race
judge’s discretion lots of weight … any reason sufficient
if reasons are neutral but judge doesn’t believe, not valid
if neutral but superstitious or silly, ok
basically a credibility call for judge
standard of review:  abuse of discretion, bop on person claiming racial
prima facie case:  ask for neutral reason, show pretextual
if judge accepts neutral reason almost impossible to show pretext – how do you get into the P’s head? … if judge accepts reason, Batson has no force
charade of race-neutral reason (one case body language held to be enough reason)
only the 9th Cir. has held out, holding challengers feet to fire, finding trial judges clearly erroneous
not race neutral if reason directly related to a cognizable group
Marshall argues peremptory challenges by very nature invite discrimination
F.  The Jury Size and Agreement Required
Apodaca – court badly split …
4 say unanimity the rule at time of ratification BOR
4 say not expressly in 6A so less than unanimous is ok
Powell says binding on federal trials but states are not bound and can use less than 12 and need not be unanimous
Feds:  12 and unanimous
States see smaller juries as cost efficient (though Texas stayed with 12)
Non-unanimous means less hung juries
Lowest minimum – 6 member jury (but then has to be unanimous)
10-2 or 11-1 is ok …below that, the USSC has not ruled
most say 8-4 is NOT ok, 9-3 is debatable
most misdemeanor cases (6 mo – 1 yr) 6 jurors in most jurisdictions