Criminal Justice Process

If the defendant demands trial by jury, the trial process begins with the selection of the jury. Potential jurors will be summoned to court in a venire. They will be questioned either by the court, by counsel, or both. Potential jurors will be excused for cause if they have an association with one side or the other or if they in some way manifest an inability to act impartially. Both sides will be given a limited number of peremptory challenges that may be exercised without giving a reason. The defense is usually allowed more peremptory challenges than the government. If either side uses peremptory challenges to excuse potential jurors in a way that might be perceived as racially motivated, the Supreme Court's Batson decision requires the trial court to demand a race-neutral explanation of the peremptory challenges (Batson v. Kentucky, 476 U.S. 79 (1986); Georgia v. McCollum, 502 U.S. 1056 (1992)).

Once the jury is empaneled the prosecuting attorney and defense counsel have the opportunity to make an opening statement. Then the prosecution begins its case by calling witnesses. Their testimony is subject to cross-examination by the defense. At the close of the government's case the defense may move for a directed verdict of acquittal if the government's evidence failed to enable reasonable jurors to find the elements of the charged offense beyond a reasonable doubt.

If the government has succeeded in making out a prima facie case, the defense has the opportunity to put on its case. The defendant may not be called to the stand by the prosecution, and may refuse to testify in his own defense. Jurors are likely to conclude that the defendant who refuses to testify is hiding something, but if the defendant testifies his prior convictions are admissible to impeach the credibility of his testimony. If the defense puts on a case, the prosecution will have an opportunity to call witnesses in a rebuttal case.

Once both sides have rested their cases, the court will instruct the jurors on the legal issues in the case and the two sides will have the opportunity for closing arguments. There is no fixed pattern as to whether the instructions follow the arguments of counsel or vice versa. During the argument stage the prosecution usually has the first argument, the defense the second, and prosecution is given a rebuttal argument to close the case.

The Supreme Court has upheld juries composed of six rather than twelve jurors. Most jurisdictions, however, continue to employs juries of twelve. The Court has also upheld nonunanimous jury verdicts of eleven to one, ten to two, or nine to three to convict, but many jurisdictions continue to require unanimity for a conviction. Although the Supreme Court has never recognized a constitutional right to an appeal, all jurisdictions allow at least one appeal as a right of a felony conviction. The double jeopardy clause prevents the government from appealing acquittals.

The double jeopardy clause does not prohibit a second prosecution following acquittal for an offense under the laws of a different sovereign. Thus an acquittal on federal charges does not bar a subsequent prosecution under state law, and an acquittal on state charges does not bar a subsequent prosecution under federal law.