Choosing a Jury Trial

Every person charged with a crime in the United State has a right to a jury trial. Clients decide from time to time that a trial is necessary. In those instances, when the prosecutor would not bend and the balance to obtain a dismissal or reach a negotiated plea never shifted, we have a jury trial.


Jury trials are a right but also a risky proposition. No one can predict what twelve people will decide based on the evidence they hear at trial.

Find a lawyer with the experience to evaluate your case honestly for you; one who does not promise outcomes. No one can guarantee a specific outcome. Zealous advocacy and sound advice are what you need.

Legal Definitions: Hearsay

One of the great challenges of representing clients revolves around language and word usage. Many times the legal definition and common understanding of a word differ.

Hearsay falls into that category. Recently, while working to resolve a case for a client whose codefendant just entered a guilty plea and agreed to implicate the client, a family member said, “that’s just hearsay.” We discussed what the family member thought was hearsay, so that I could be understand the concern. Under the common understanding-not the legal definition-if a codefendant, or eyewitness for that matter, testifies about having observed an event, there is a false belief that this testimony is hearsay and that this testimony is worthless.


To unravel this misapprehension, we must talk about direct evidence and hearsay. First, an eyewitness, regardless of recent psychological publications, is classified as direct evidence that a crime was committed. A witness, who is a codefendant or a just an observer, may testify to what that witness observed. In my client’s case, the codefendant agreed to testify about actions my client took at the time of the crime: that the client was driving a motor vehicle involved in a crime. Like it or not, this evidence is admissible and cannot be challenged as hearsay.

Second, hearsay, in the situation of this particular client, would be a witness who testifies that she “heard” that the client was driving the car in question. With no direct observation, that witness’s testimony falls into the category of gossip and would not be admitted. The legal definition of hearsay varies from state to state but generally hearsay is an out of court statement offered by a witness to establish the truth of the matter asserted in the statement.

Be sure that when decisions are made in your case, that you make them based on the actual rules of evidence after discussion with counsel. Do not make decisions based on what you may have heard from someone who is not a lawyer.

© 2016 Nancee Tomlinson

Picking a Jury

The first aspect of a jury trial is selecting a jury. Which 6 or 12 people will hear the case and decide whether a person is guilty or not guilty?

The phrase, “picking a jury” misrepresents what happens in jury selection. Also known as voir dire, a French phrase which means “telling the truth,” jury selection thrives on direct discussion between potential jurors and counsel for the parties. Potential jurors provide basic information, usually by answers to a written questionnaire: name, area of the community one lives in, profession, spouse, spouse’s profession, prior jury service, and, in criminal cases whether one is related by blood or marriage to someone in law enforcement.


Then, attorneys may ask questions of the jurors that relate to specific ideas in the case, the law surrounding criminal trials, what local organizations potential jurors are involved with, and many other topics.

Potential jurors who are related to a defendant or to a prosecuting witness may be struck for cause. A decision made by the judge to strike a potential juror for a legal reason is called a strike for cause. Neither side loses a the peremptory strike available when a potential juror is released for a legal cause.

Attorneys and their staff track the answers to questions, their impressions of the potential jurors, and how the attorney feels about the potential jurors on a chart. After enough jurors are qualified, counsel and clients have about 15 minutes to determine which jurors to strike. Defense counsel and client will evaluate who to strike and who to keep. During that discussion, counsel will likely be able to predict who the State will strike as well.

Jury selection really comes down to removal. The question is which potential juror does a party absolutely NOT want deciding a case? Clients usually fixate on the jurors they believe will see the client’s side of the story. Inevitably, the State will strike the jurors a client really wants because the prosecutor feels that those jurors will lean more towards the defendant.

In the end, the jury will be made of the people who fall in the middle of the spectrum between pro-prosecution and pro-defense.

© 2016 Nancee Tomlinson