The Process Of A Jury Trial
Depp vs. Heard remains in the headlines and has provided everyone with a fantastic look at how a trial is conducted. The procedure related to a jury trial will vary slightly based on the jurisdiction, but the structure of a trial is universally the same. There are different procedures that also apply to civil and criminal matters. Here I’m going to outline the basic structure of a jury trial in Oklahoma.
The first step of a trial is called voir dire a/k/a jury picking if you’re an Okie. The phrase is French and means “to speak the truth.” The pool of prospective jurors is called the venire. Members of the venire are chosen in Oklahoma based upon being licensed drivers over the age of 18. Depending on the kind of trial, subject matter, proposed length, and other important factors 18-36 jurors will be randomly selected from the venire to make up the jury panel. Voir Dire is the only time the lawyers get to speak with potential jurors. The goal is try to determine bias and who will be willing to hear the case with an open mind.
After the potential jurors are selected each side is given the opportunity to question the jurors to see if they are the right fit for trial. Jurors may be stricken from the panel for cause or based on preemptory challenges. Jurors are stricken for cause when it appears there is some reason why they should not sit on a panel. Usually for a bias that is not correctable, or they are ineligible for some reason. As an attorney I am ineligible to be a juror in state court but could in federal court. In a criminal matter someone who says they could never impose the death penalty would likely be stricken for cause as would someone who says there are no circumstances under which they could award money damages in a civil case. After all potential jurors are stricken for cause, each side is then allowed a certain number of preemptory challenges allowing them to strike a juror for whatever reason they like as long as its not discriminatory. For example, it would be inappropriate to strike all the women or BIPOC individuals for a female or BIPOC defendant.
The right to a jury trial is set forth in the Oklahoma Constitution, Article II, Section 19. In most civil cases requesting damages in excess of $10,000 there is a constitutional right to a 12-member jury. For cases involving less than $10,000, forcible entry and detailer, and collection of rents, there is a 6-person jury. Felony criminal cases have a 12-person jury while other cases have 6 persons. In criminal cases where the punishment is greater than 6 months in prison the verdict must be unanimous. In all other cases, three fourths of the jury must concur with the result.
After the jury is selected each side gives an opening statement. A good trial lawyer will have introduced the jury to their theme and theory of a case through the voir dire process in how the jurors were questioned. This should continue into the opening statement where the lawyers have the opportunity to introduce the overall story of the case to the jury. An opening should provide a road map to the case. Signposts should be pointed out relating to key facts and witnesses to prepare the jury for the story of the case to unfold. It's like the prologue to a book introducing the characters and setting the scene for the journey. Openings should not be argumentative, and the attorney should not overstate the case or over promise on the evidence.
Next, we move into the presentation of evidence. Each side is allowed to call witnesses to tell their story of the case. The Plaintiff or the Prosecutor carry the burden of proof which means they must put on enough evidence to establish that the Defendant has either committed the crime charged or is at fault in causing whatever civil harm occurred. The defense does not have a burden unless they have made counter claims. It is the defense’s job to poke holes in the evidence and theory of the Plaintiff/Prosecutor. My favorite analogy for this is to say it’s the Plaintiff’s job to build the house and the Defendant’s job to knock it down. The Plaintiff/Prosecutor wins by building a house on a strong foundation that the Defendant cannot wipe out or knock over. A defendant wins by either knocking down the walls or roof thereby devaluing the case or resulting in the conviction of a lesser crime or by ripping the house off the foundation resulting in either no monetary award to the Plaintiff or a finding of not guilty for the defendant.
After all the evidence is presented but before the closing arguments, the jury is instructed. Oklahoma has pattern jury instructions approved by the Supreme Court on almost all matters that will come before the court and jury. These are correct statements of the existing law on the subject. These instructions should not be modified without a very specific reason for the modification and the authority for the modification should be presented to the judge. The judge reads all the jury instructions to the jury so they are fully advised of the law on the subject matter of the case.
Finally, the trial concludes with closing arguments. The closing argument is a summary of where we went on the trip described in the opening. It is the opportunity for the lawyers to argue why they should win and the other side should lose. Lawyers should ask the jury for specific relief for their client – a finding of not guilty, an award of damages in a specific amount. The jury should feel empowered to make a decision when it retires to the jury room to review the evidence.
The jury is then sent to deliberate. A foreman is elected by the jury and the foreman presides over and leads the deliberations. If the jury has a question the foreman will send it to the judge. In my experience when the jury asks a question the Court will tell them “you have all the evidence before you to make a decision.” Once a decision is finally reached, the jury foreman prepares the verdict form and sends notice to the judge. The jury will then be called back into the courtroom where the judge will read the verdict on the form presented by the jury foreman.