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Basic Trial, Jury Selection

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Opening statement
The opening statement is the time during which the attorney may speak to the jury and describe the case. The opening statement is not an argument, however; in fact, legal arguments are prohibited during the opening statement. It is during the opening statement that attorneys will tell the story of the case and what they hope to prove using the evidence that will be presented.

Challenge for cause
A challenge for cause is a procedure attorneys use during jury selection to dismiss prospective jurors for a specific reason, such as bias or prejudice.

Closing statement
The closing statement is the time when the attorneys may forcefully argue their sides of the case to the jury. The closing statement occurs after the close of evidence.

Cross examination
The cross examination is the questioning of a witness for a particular party by an opposing party.

Direct examination
The direct examination is the questioning of a witness for a particular party by that party.

The foreperson is the member of the jury who is designated to lead and speak for the jury.

A juror is an individual member of a jury.

Jury selection
Jury selection is the process by which attorneys and the court choose which prospective jurors will constitute the jury for a particular action.

Jury instructions
Jury instructions are statements by the judge to the jury that instruct the jurors on the pertinent law in the jurisdiction applicable to the action about which they will deliberate.

Peremptory challenge
A peremptory challenge is a procedure attorneys may use during jury selection to dismiss prospective jurors for almost any reason. Each attorney is limited to a specific number of peremptory challenges under the applicable rules of the jurisdiction.

A verdict is a jury’s decision.

Voir dire
Voir dire (vwär dîr) is a Latin term that literally means “to speak the truth”. It is the process through which attorneys question, or examine, prospective jurors to determine whether they are fit to serve as jurors.

An extremely basic trial will run as follows: First, if it is a jury trial, the jury must be selected. This process is aptly named “jury selection”. After the jury is selected, the trial will begin. The jury, kept in a room adjacent to the courtroom, will enter and sit in the jury box, which is usually on the side of the courtroom. Once a few procedural formalities are accomplished (e.g., the judge might introduce him/herself, tell the jury the name of the case, etc.), the attorneys will give their opening statements. After the opening statements, the plaintiff will begin by examining its witnesses. The defense is then entitled to cross-examine the witnesses. Once the plaintiff has no more witnesses to call, the plaintiff and/or defendant may choose to present motions. If no motion is made, or no motion has the effect of resolving the action, the defendant will call and examine its own witnesses, who the plaintiff is entitled to cross-examine. After the defendant has concluded examining its witnesses, the parties may, again, choose to present motions. If no motion is made, or no motion has the effect of resolving the action, the parties will present their closing arguments. After the closing arguments, the judge will instruct the jury on the applicable law and the case will be turned over to the jury for deliberations. After the jury deliberates, it will return its verdict.

The jury is the fact-finder. It is the jury who ultimately decides, for example, whether the plaintiff was or was not in the crosswalk when she was struck by the defendant’s motor vehicle or whether the defendant did not fulfill its duty to repair the sidewalk over which the plaintiff tripped. In other words, it is the jury who decides the truth of what actually happened, or at least, what is most likely the truth.

Under the United States Constitution, there is no absolute right to a jury trial in a civil action. The Seventh Amendment states that where the value in controversy is over twenty dollars, the right to a jury trial is preserved. Many state constitutions follow the proposition that the right to a jury trial, while not absolute, is preserved for the party that demands a jury trial. For example, Pennsylvania’s Constitution provides:

“Trial by jury shall be as heretofore, and the right thereof remain inviolate.”

In general, any party, plaintiff or defendant, may demand a trial by jury. See Federal Rule of Civil Procedure 38. If a party fails to demand a trial by jury, he or she has waived the right to a jury trial.

Jury selection

In most jurisdictions, when citizens are called for jury duty, they arrive to the courthouse and are put in a large room, where they become part of the jury pool. Usually, a representative from the court (often a judge) will give a short speech, welcoming the jurors to the courthouse and telling them what to expect. Eventually, the jurors will be divided randomly for each case in the jury selection phase. Once divided, the attorneys for the parties to the action will question each group of jurors. Depending on the jurisdiction, the prospective jurors will be questioned alone, apart from the other jurors, or they will be questioned in the presence of the other prospective jurors. The process whereby the attorneys examine prospective jurors is called the voir dire. See Mu'Min v. Virginia, 500 U.S. 415, 431 (1991):

Voir dire examination serves the dual purposes of enabling the court to select an impartial jury and assisting counsel in exercising peremptory challenges.”

During the voir dire, the attorneys will explain to the jurors the general background of the case and ask the prospective jurors about their background, education, careers, etc. The questions are designed to allow the attorneys and the court to get to know the jurors, as well as to reveal any prejudices that the jurors may have that may affect their opinion of the plaintiff or defendant. For example:

Bob and Joan are the attorneys for the plaintiff and defendant, respectively. The action is a dental malpractice case against a dentist for a dental procedure that has allegedly caused the plaintiff severe injuries. During voir dire, Bob asks John, a prospective juror, what he does for a living, to which John responds that he is a dental hygienist. Bob then asks John if he would have difficulty remaining impartial for a case that involves a dentist’s conduct. John replies the he would not and that he would listen to all of the evidence and weigh it accordingly. The next prospective juror is Sally. Bob asks Sally if she has ever been to the dentist, and if so, whether a dentist has ever caused her pain. Sally replies yes. Bob then asks Sally what type of procedure caused her pain. Sally responds that she had oral surgery that didn’t go as planned, from which she developed a massive infection that put her in the hospital for three days and that she was forced to see the dentist every week for the next six weeks. She also states that ever since the incident, she has been fearful of going to dentists and avoids them whenever possible. Joan, the dentist’s attorney, asks Sally if she would be able to remain impartial throughout the proceedings. Sally responds no, she is just too fearful of dentists.

In some jurisdictions, only the judge may examine the jurors, and in others, both the attorneys and the judge may present questions.

During jury selection, attorneys may challenge a juror for cause, to prevent the juror from becoming a member of the jury. See, e.g., Miniel v. Cockrell, 339 F.3d 331, 338 (5th Cir. 2003):

“In a capital sentencing context, a defendant has the right to challenge for cause a juror whose views on capital punishment would ‘prevent or substantially impair the performance of his duties as a juror in accordance with his instructions and his oath."

As the name suggests, the attorney must have good cause to challenge the juror. The judge will then decide whether there really is good cause to dismiss the juror. If the judge feels that there is, the juror will be dismissed. In the example above, Joan would almost certainly have good cause to challenge the selection of Sally as a juror and a judge would no doubt grant Joan's request to dismiss Sally for cause. John, on the other hand, would probably not be dismissed for cause. In most jurisdictions, each attorney has an unlimited number of challenges for cause.

Each side also has a certain number of peremptory challenges. A peremptory challenge allows an attorney to dismiss a prospective juror for almost any reason. The number of peremptory challenges an attorney (or party) has is provided in the jurisdiction’s rules of procedure, and may vary, depending on the nature, importance or complexity of the case.

Once the jurors are selected, alternates are also chosen, using the same procedure. Alternates attend trial and sit in the jury box just like the regular jurors, and are called upon to replace a juror who has, for one reason or another, been unable to continue as a juror (e.g., for health reasons). If not transferred from alternate to regular, the alternate jurors will not deliberate or vote on the verdict.

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