The Rights of the Accused during Trial

The Constitution provides for trial by jury not only in the Eighth Amendment, but in Article III. In addition, the Seventh Amendment provides for jury trial in civil cases. Petit juries, as opposed to the grand juries which conduct the hearings to hand down an indictment earlier in the legal process, are usually composed of 12 people chosen from the citizenry at large--thus the oft-quoted phrase "a jury of his peers."

Juries are selected by a process called voir dire, in which both the prosecution and the defense have an opportunity to question prospective jurors. On the basis of a prospective juror's answer, one side or the other may arrange to have that person stricken from the list, as a defense lawyer might do if a prospective juror in a capital case states that she favors the death penalty. Prosecution and defense lawyers may also exercise a limited number or peremptory challenges. Under peremptory challenge, for instance, a lawyer defending a man accused of rape may learn from the record that a prospective juror was herself a victim of rape, and may ask that she be kept off the panel for this reason. Peremptory challenges are sometimes controversial when used to shape the jury by race or gender or other characteristics, as many observers believe the Simpson defense team did.

The size of the jury has been established by tradition, though states have used juries consisting of as few as six members. With Ballew v. Georgia (1978), however, the Court held that a jury of only five members was too small to create a proper atmosphere of deliberation. Indeed, deliberation is one of the central issues surrounding the operation of the jury: to be effective, its members must spend a sufficient amount of time reviewing the facts in order to reach a verdict. Hand in hand with this idea is the requirement that juries reach a unanimous verdict: according to this logic, serious deliberation is virtually guaranteed in the long process of thought and discussion required for twelve people to agree. Though unanimity is required at a federal level, many states allow "super majorities" of ten or more members, and in Apodaca v. Oregon (1972), the Court upheld a conviction of a defendant by an 11-1 majority.

In some cases the jury reaches a verdict. If a verdict is not reached, a "hung jury" is declared. Such a situation may lead to another trial before a new jury, or it may lead to the case being dismissed. Or at any stage leading up to the jury's deliberation, the judge may declare a mistrial if one of the parties to the case fails to act in accordance with the law--e.g., if a defendant were to claim that their interests were not being protected by their lawyer. A mistrial could also result if a juror were to suddenly stand up in the middle of the trial and say "I think he's guilty." In the case of a mistrial, as with a hung jury, the defendant may be tried again.

But if the conviction is overturned by the court due to insufficiency of evidence resulting in a verdict of "not guilty," the defendant cannot be tried again for the same crime. To do so would constitute "double jeopardy," forbidden under the Fifth Amendment; however, the double jeopardy provision does not mean that a defendant cannot be tried by a different "sovereign"--e.g., by a state court as opposed to a federal court, though this seldom happens in practice. And even if the accused is convicted of the crimes as charged, he is guaranteed the right to appeal his case. Thus, ideally at least, the American system of law allows the accused every possible opportunity to defend himself against the charges against him.