Unit 8 – CJ227

1. Unit 8 – CJ227 • Monday, February 7, 2011

2. Instructions to Jury • Also known as charging the jury • Responsibility of trial judge • Counsel submit recommended instructions • Failure to object to instructions may prevent counsel from assigning error on appeal

3. Comments by the Judge on the Evidence • Some states permit the trial judge to comment on the status of the evidence, others do not. • Improper for judge to indicate that he or she believes that the defendant is guilty. • Any comments by the judge must be directed to help the jury understand the instructions and the evidence.

4. Deliberations • Jury may not begin to deliberate until they have received instructions from the trial judge and retired to deliberation room. • Only jury members should be present in the room during deliberation. • Jury will select one of their own to act as foreperson • Jury may take with them to the deliberation room all evidence admitted into evidence. • States differ as to whether juror members may take their notes into the deliberation room.

5. Hung Jury • Jury can not reach a unanimous decision • If less than unanimous verdict required, the jury cannot get the required number of jurors to agree on the verdict • Defendant generally may be retried when the judge declares a hung jury • Allen charge to prevent a hung jury

6. Less-Than-Unanimous Verdicts • Apodaca v. Oregon approved less than unanimous verdicts in non-capital cases • Burch v. Louisiana—with a six person jury, verdict must be unanimous

7. Verdict • Derived from Latin word verdictum “a true declaration” • When verdict reached by jury, foreperson informs the bailiff who informs the judge • Verdict pronounced in open court • Either party may ask that the jury be “polled”

8. New Trial • After a verdict of guilty, the trial judge may, for good cause, set aside the verdict and grant a motion for a new trial.

9. Mistrial • When a trial judge concludes that misconduct prevents a fair trial • May be declared at anytime in the proceedings • Right of prosecution to request a mistrial is limited in many jurisdictions and not permitted in others. • After mistrial, may accused be retried?

10. When Accused May be Retried After a Mistrial • Where a mistrial is not the fault of misconduct by government • Where the rights of the accused are not prejudiced

11. Appeals by the Government • Government may not appeal a verdict of not guilty. • Prosecutor generally must appeal a decision or ruling of the trial judge prior to the verdict. • Government appeals generally based on erroneous legal decisions by the trial judge.

12. Appeals by the Defendant • Generally, appeals must be submitted within a limited time frame after the trial has concluded. • Most appeals are denied. • Defendant is guaranteed a fair trial, not a perfect trial free of all error.

13. If appellate court sets aside the conviction, in most cases the defendant can be retried, e.g., in the first Miranda v. Arizona case the U.S. Supreme Court reversed the conviction based on the fact that a confession was obtained from Miranda without advising him of his rights. He was retried on the original rape charges without the use of the confession, convicted, and sentenced to prison.

14. Types of Appeal • There are no U.S. Supreme Court decisions that require states to have appellate courts. • Appeals are either mandatory or discretionary • Mandatory appeal–Defendant has the right to appeal to the first appellate level in all states. • Discretionary appeal–higher level appellate courts, e.g., state supreme court in non-capital cases, do not have to accept appeals from defendants.