SELECTING YOUR JURY FOR A CRIMINAL JURY TRIAL IN NEW YORK

Only Your New York Criminal Defense Attorney Can Provide You with Specific Advice and Guidance with Regard to Your Case;

However, a Better Understanding of the Jury Selection Process May Be Beneficial If You are Contemplating a Jury Trial

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As an accused in a criminal prosecution in the State of New York you have a

number of important rights that are guaranteed to you by both federal and state

constitutions. Whether or not you choose the exercise your right to a trial by jury

is a decision that should only be made after careful deliberation on your part. If

you do decide to proceed to trial by jury, the members of your jury will hold your

fate in their hands. For this reason, jury selection is an extremely important part

of any trial by jury. Because each criminal prosecution is unique, only your New

York criminal defense attorney can provide you with specific advice and guidance

with regard to your case; however, a better understanding of the jury selection

process may be beneficial if you are contemplating a jury trial in the State of New

York.

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WHERE IS YOUR RIGHT TO A TRIAL BY JURY FOUND?

Both the United States Constitution and the New York State Constitution

guarantee an accused the right to a trial by jury. The Sixth Amendment to the

U.S. Constitution reads, in pertinent part, as follows:

“In all criminal prosecutions, the accused shall enjoy the right to a speedy

and public trial, by an impartial jury of the state and district wherein the

crime shall have been committed, which district shall have been previously

ascertained by law, and to be informed of the nature and cause of the

accusation; to be confronted with the witnesses against him; to have

compulsory process for obtaining witnesses in his favor, and to have the

assistance of counsel for his defense.”

At the state level, Article 1, Section 2 of the New York State Constitution reads, in

pertinent part, as follows:

“Trial by jury in all cases in which it has heretofore been guaranteed by

constitutional provision shall remain inviolate forever;”

WAIVING YOUR RIGHT TO TRIAL BY JURY

Although an accused has several inalienable rights in the United States, those

rights can be waived by the accused if the waiver if made knowingly and

voluntarily. Your right to remain silent, for example, can be waived as can your

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right to counsel. Your right to a jury trial can also be waived; however, given the

importance of these rights, courts want to make sure that a defendant

understands his or her rights and has made an informed decision before waiving

any of them. For this reason, courts typically require a defendant to waive the

right to jury trial at a hearing, particularly if the defendant is charged with a more

serious offense. By doing so, the court is able to question the defendant and make

sure the waiver is being made knowingly and voluntarily.

Waiving your right to a trial by jury is done for one of two reasons – because you

have reached a plea agreement with the State of New York or because you prefer

to have a judge decide your fate. Although the terms of a plea agreement will

vary, entering into a plea agreement requires you to plead guilty to at least one

charge against you. Therefore, you will have to waive your right to a jury trial on

that charge, and any other charges to which you are pleading guilty.

While a judge always presides over a criminal trial, in a jury trial the judge

doesn’t decide the outcome of the case. You have the option, however, of waiving

your right to a jury trial and allowing the judge to decide the verdict instead.

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Known as a “trial by judge” or “bench trial”, there are strategic reasons why you

and your attorney may decide this is a better option. One common reason is

because you do not believe that you can convene a jury that will return a “not

guilty” verdict even if the state fails in its burden of proof.

WHO ARE THE JURORS?

The concept behind a jury trial is that a group of your “peers” will decide if the

State of New York has proven that you are guilty beyond a reasonable doubt.

Whether or not the members of your jury truly reflect a jury of your “peers”,

however, remains the subject of

much debate. In the State of New

York, potential jurors are

randomly selected from lists of

registered voters, holders of

drivers’ licenses or ID’s issued by

the Division of Motor Vehicles,

New York State income tax filers,

recipients of unemployment

insurance or family assistance,

and from volunteers.

A potential juror will receive notification that he or she is to report for jury duty

on a given day and time. All jurors who report that day are referred to as the “jury

pool”. From the jury pool, your final jury will be chosen. For trial in Criminal

Court (lessor offenses) the final jury will consist of six jurors and one or two

alternates. For a trial in Superior Court (more serious offenses) the final jury will

consist of 12 jurors and two to four alternates.

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VOIR DIRE – JURY SELECTION

On the day of your trial, a group from the jury pool will be brought into court to

begin the jury selection process, formally known as “voir dire”. During voir dire,

questions will be asked of the potential jurors by your attorney, the prosecuting

attorney, and the judge. The purpose of the questions is to determine if a

potential juror should be excused for cause or if either attorney wishes to excuse a

potential juror using a peremptory challenge.

Challenges for cause are based on a legal reason why the individual cannot serve

on the jury, such as bias, previous knowledge of the case, or because the

individual knows the defendant. Challenges for cause must be explained to the

court’s satisfaction and are, therefore, unlimited because they are based on an

articulable reason why the jury cannot serve on the jury. The judge has the final

say as to whether a potential juror is excused for cause.

Peremptory challenges need not be explained when used. These are used to

excuse a potential jury because you and/or your attorney believe the individual

would not be a beneficial addition to your jury. This is the only opportunity you

have to influence the make-up of your final jury. A jury may have admitted to

recently being the victim of a robbery, for example, which might make the juror a

poor choice if you are charged with robbery. Entire books have been written

about the jury selection process giving how important it is to a criminal trial.

Although your attorney will likely have a list of questions to ask potential jurors,

you certainly have the right to formulate questions yourself or to suggest excusing

a juror (or keeping one) for any reason.

Peremptory challenges are limited depending on the size of the jury and the

offense charged as follows:

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20 per side if the highest crime charged is a class A felony, plus two for each

alternate

15 per side if the highest crime charged is a class B or C felony, plus two for

each alternate

10 for all other crimes, plus two for each alternate

After all challenges have been exhausted, the individuals remaining make up the

final jury. The final jury will listen to the case and reach a verdict after

deliberation. The alternate does not participate in the deliberation process unless

a jury member cannot continue for any reason.

The jury selection process is, arguably, as important as the trial itself. Juries can

be unpredictable under the best of circumstances. Choosing your final jury

careful can take some of the risk out of taking a criminal case to jury trial. If you

have additional questions or concerns about jury selection in your case consult

with your New York criminal defense attorney.

REFERENCES

New York Laws, Jury Laws

New York State Unified Court System, Trial Juror’s Handbook

The New York County District Attorney’s Office, Criminal Justice System: How It

Works

NY Juror.gov, New York State Constitution, Article 1, Section 2

NY Juror.gov, General Information

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About Simon & Gilman, LLP

Simon & Gilman is the premier law firm in the Queens and New York Metro area. They have expertise in many areas of practice and can help you resolve legal issues that you are confronted with. ACCIDENTS We handle all types of injury cases, including automobile accidents, sidewalk and stairway, elevator, escalator, slip, trip and fall cases, bus, train and plane accidents, sporting activity accidents, snow & ice, defective products, medical malpractice, nursing home, hospital, school accidents, work and construction related accidents, and accidents involving New York City, New York State, and the U. S. Government. SOCIAL SECURITY DISABILITY Representing individuals who have applied for, been denied and refused disability benefits. We pursue all levels of appeal through the Hearing level, Appeals Council and, if necessary, to the Federal Courts CRIMINAL DEFENSE Representing individuals who have been arrested or about to be arrested, from violations to misdemeanors to felony charges, from arraignment through trial, if necessary including domestic violence, assault, shoplifting, driving while intoxicated (DWI), crimes against the person and/or property. WILLS/TRUSTS/ESTATES Representing you and your loved ones in the preparation of Wills, Living Wills, Trusts, Health Care Proxies, Powers of Attorney, and estate planning.Probate and Administration of estates; contested will proceedings and all phases of Surrogate’s Court actions. Arrangements can be made to come to your home or hospital if necessary to prepare any such documents. FAMILY LAW Though often emotional, your case is handled with sensitivity and compassion. Includes such matters as: annulment, divorce, separation, custody, visitation, support, adoption, pre-nuptial/post-nuptial agreements, paternity, Orders of Protection, name changes, Family Court & Supreme Court matters. REAL ESTATE Representing buyers and sellers in both residential and commercial matters, condominiums and cooperatives. Landlord/tenant matters involving non-payment, holdovers and unlawful occupancies.