Juries in civil and criminal trials must be composed of at least six people

October 3, 2013

Thursday, October 3, 2013

Good morning:

Trained Observer asked the following question recently in a comment to the clarification-and-apology thread:

Is it typical for federal civil trial juries to be composed of 10?

According to the NY Post’s Page Six, Mark Cuban’s jury on insider tr accusations appears to be seven women, three men.

My answer:

The use of a 10-person jury does not violate the right to a jury trial. However, the Mark Cuban case is the only case that I recall using a 10-person jury.

The source for the right to a jury trial is Article 3 of the United States Constitution, which states in part, “The Trial of all Crimes…shall be by Jury; and such Trial shall be held in the State where the said Crimes shall have been committed.”

The Seventh Amendment extends the right to a jury trial to civil cases:

In Suits at common law, where the value in controversy shall exceed twenty dollars, the right of trial by jury shall be preserved, and no fact tried by a jury, shall be otherwise re-examined in any Court of the United States, than according to the rules of the common law.

In Colgrove v. Battin, 413 U.S. 149 (1973), the Supreme Court of the United States (SCOTUS) decided that a jury must consist of at least 6 people in order to function properly. SCOTUS also has ruled that the right to a jury trial in criminal cases does not apply, unless the maximum sentence authorized by statute exceeds 6 months. This ruling means that there is no right to a jury trial, if the offense charged is a petite misdemeanor.

Notice that the 6-person requirement is a minimum requirement that does not preclude the use of 12-person juries. In practice, the use of 6-person juries is restricted to courts of limited jurisdiction, such as county district and municipal courts that process misdemeanor and gross misdemeanor offenses.

Florida and possibly one other state use 6-person juries to decide felony cases (criminal offenses in which the maximum sentence exceeds one year in jail).

SCOTUS has ruled that the right to a 12-person jury applies to capital (death penalty) cases.

In addition to the constitutionally required 12-person jury in capital trials, Florida also uses 12-person juries when a defendant is charged with 1st degree murder.

To avoid potential confusion, I am including a brief review regarding the use of grand juries.

Grand juries meet in secret to decide whether to charge people with crimes. Members of a grand jury serve an 18-month term and generally meet one day per month. Grand juries investigate and issue subpoenas to witnesses (i.e., compelling a witness to appear before the grand jury and testify regarding a matter under investigation) and subpoenas duces tecum (i.e., subpoenas that require a witness to provide certain specified documents or evidence). To issue an indictment, at least 12 members of a grand jury must decide there is probable cause to support each charge under consideration.

Pursuant to the Fifth Amendment, “No person shall be held to answer for a capital, or otherwise infamous crime, unless on a presentment or indictment of a Grand Jury.”

Witnesses who testify before grand juries may bring their lawyers with them, however their lawyers cannot be present in the room while the grand jury is in session and their client is testifying. Before answering any question, a witness can request an opportunity to consult with his lawyer regarding his answer. Most of the requests concern whether the witness has a statutory privilege (e.g., attorney-client, doctor-patient, etc.) or a 5th amendment right to refuse to answer the question. The grand jury takes short breaks to accommodate such requests.

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Zimmerman: The immunity hearing should not be combined with the trial

April 30, 2013

Tuesday, April 30, 2013

Good evening:

The immunity hearing should not be combined with the trial for the following reasons:

A defendant has a 5th Amendment right to remain silent throughout the trial. If the Court were to combine the trial with an immunity hearing, that would put pressure on the defendant to testify during the defense case.

Depending on how well the prosecution’s case-in-chief might have gone, the defense might be tempted after the prosecution rests to rest and not put on a defense. However, because the burden of proof in the immunity hearing is on the defense, the defendant would have to testify. This is a classic example of compelling a defendant to testify and possibly incriminate himself by doing so. The 5th Amendment expressly prohibits compelling a defendant to incriminate himself.

That would not be the case if the immunity hearing were held before trial. The defendant could testify in the immunity hearing without waiving his right to remain silent at the trial.

Another reason not to combine the two is that the order of presentation differs. The State goes first at trial, but the defense goes first in an immunity hearing. Strategy can change dramatically depending on whether a party has the burden of proof. Whether a party goes first or second will affect the evidence it will present, its choice of witnesses, and the order in which the witnesses will be called.

Finally, the purpose of an immunity hearing is to identify strong self-defense cases early on and to immunize those defendants from criminal and civil liability so that they do not have to endure the psychological and emotional wear and tear of living a life in limbo while possibly in custody for a year or more before trial. Saves the expense too for all concerned. Combining the immunity hearing with the trial cancels out all those advantages.

Finally, just because a defendant has a fundamental right to an immunity hearing does not mean that he cannot waive that right as the defendant did today.

500 people are going to be summoned to court for jury service in this case and it makes no sense to go to the time, trouble and expense to do that just because the defendant wants to wait and see how jury selection and the prosecution’s presentation of its case is going before he decides whether to seek immunity.

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Can You Direct Me To The House Of The Reasonable Man?

April 14, 2012

Many of our civil and criminal laws are based on the theoretical concept of the reasonable person and what he or she would do in any given situation. We establish standards of conduct based on this theoretical reasonable man or woman and impose civil or criminal liability and consequences on people who intentionally, knowingly, recklessly, or negligently violate those standards.

This concept of reasonableness can change over time as people’s concepts of what constitutes reasonable behavior in any given situation change.

For example, our common law comes from Great Britain and the Brits are not as violent and gun-loving as Americans. According to their cultural concepts, a reasonable person would attempt to retreat from a volatile situation before using force in self-defense. Hence, the duty to retreat at common law that we kept after we won the war for independence.

Conditions in the western frontier of our country were not as civilized and sedate as back east. Out west the thinking was real men stand their ground and shoot your ass, if you mess with them, so the western states eliminated the duty to retreat. Their concept regarding what a reasonable man would do when threatened with violence was significantly more aggressive than back east.

As our society has become more suspicious and fearful of strangers, more and more people now appear to believe that a reasonable person would stand their ground meeting violence with equal or greater violence. The NRA and many people now think that the solution to our violent society is more people armed with guns.

Recently, in a blog within these hallowed halls, a person said we should require all teachers to carry guns in order to stop violence in schools. I think that idea is absolutely crazy and about as unreasonable as unreasonable can get, but there is no denying that a lot of people believe it’s reasonable. Fortunately, I think I am still on the majority side of this issue.

Whenever you see the word “reasonable” in a law, it means an objective, as opposed to a subjective standard. In other words, reasonableness is not based on the perception of any specific identified person, which is a subjective standard. It’s based on the actual facts and circumstances of a given situation and what a hypothetical reasonable person would do in that situation.

As I have said, Florida’s SYG law is not a license to kill. Yes, a person can stand their ground. Yes, they have no duty to retreat, Yes they can use force, including deadly force in self-defense, but only if a reasonable person in the same situation (i.e., the objective reality out “there,” as opposed to a particular person’s perception of it) would do so, AND they cannot use more force than is reasonably (i.e., there’s that damn word again) necessary to prevent being assaulted. A person can use deadly force in self-defense only if the objective facts and circumstances of the situation they are in, as opposed to their perception of it, are such that a reasonable person in the same situation would believe it necessary to use deadly force to prevent being killed or suffering serious bodily injury.

Trayvon Martin was unarmed. That is an objective fact and circumstance. George Zimmerman was armed with a gun and following him. That is an objective fact and circumstance. They had a physical confrontation. That is another objective fact and circumstance. These are undisputed facts.

One of them started the fight. That is another objective fact and circumstance, but we do not know for certain who did. The identity of that person is a disputed fact and there have been many arguments about it.

I believe Zimmerman did because he followed Trayvon against the police dispatcher’s request. He thought Trayvon was a burglar casing the neighborhood and he was frustrated because he thought Trayvon was going to get away before the cops arrived. We know that is what he was thinking (i.e., his subjective state of mind) because he said so. As I recall, his specific words were, “These assholes always get away.”

He also got out of his SUV and started following Trayvon and, after being pressed by the dispatcher to provide an address or location where the police officer could meet him, he said, “I’ve to get out of here,” and told the dispatcher to tell the officer to call his cell phone when he arrived in the neighborhood, instead of agreeing to meet the officer at the mailboxes as he had previously suggested. The mailboxes are located close to the clubhouse near the entrance to the neighborhood and would have been easy for the officer to find. The only problem with meeting the officer at the mailboxes was that he had lost sight of Trayvon, who ran behind some houses and he did not want him to get away. He then terminated the conversation.

The objective reality was that Trayvon was staying in the neighborhood and walking home after purchasing Skittles and Arizona Iced Tea at a nearby 711. Therefore, Zimmerman was mistaken.

Would a reasonable person have made that mistake? Would you or anyone you know have made that mistake?

Having made that mistake, what, if anything, would you have done upon encountering Trayvon?

And what about that loaded 9 mm KelTek semiautomatic in your holster? What, if anything, would you have done with it?

Was George Zimmerman a reasonable person that night?

A casual perusal of the 47 pages of his 911 calls to report suspicious activity strongly suggests that he was anything but a reasonable person. Those 47 pages are a damning indictment of a deeply paranoid person and I challenge everyone to read every freaking entry on every freaking page and then construct an argument that he was not a ticking time bomb waiting for the right stressor to set him off.

Why did George Zimmerman call the police that night? He saw an older teenage Black male wearing a hoodie type sweatshirt, jeans, and white tennis shoes walking around in the rain looking around at houses. I am surprised he even noticed him. Why call the cops? Why not ask him, if he needs help or directions? Don’t the police have better things to do than to respond to calls about supposedly suspicious people doing ordinary things?

A police officer cannot detain someone to investigate a possible crime, unless they have a reasonable suspicion that the person has committed, is committing, or is about to commit a crime. A hunch is not enough. There must be sufficient objective facts and circumstances that would cause a reasonable person to suspect that the person was committing a crime. I do not see that here and I see no reason to summon police to investigate.

George Zimmerman likely knew all about the reasonable suspicion test since he is a student in a criminal justice program. That is one of the key concepts that is taught in those programs.

Nevertheless, George Zimmerman was certain that Trayvon was “up to no good” and, we know that because that is exactly what he told the dispatcher.

Knowing his state of mind when he ignored the dispatcher’s advice and he set off in search of Trayvon, which is something that no reasonable person would have done, what do believe he was prepared to do, if he found Trayvon and Trayvon was not cooperative?

What would a reasonable person have done in Trayvon’s situation? We know he knew he was being followed because that is what he told his girlfriend, when she called him moments before he was shot. We know he was afraid because he ran away from George Zimmerman.

Even if George Zimmerman did not start the physical confrontation, which I suspect he did, he still could not use deadly force in self-defense unless the objective facts and circumstances were such that a reasonable person in that situation would have used deadly force to prevent being killed or suffering serious bodily injury.

Perhaps George Zimmerman should have asked someone that night for directions to the house of the reasonable man.

I do not see a reasonable person doing anything George Zimmerman did that night up to and including his effort to find Trayvon. Nevertheless, this is not my judgment to make.

We have a legal system to decide what happened and what to do about it. We have due process of law with an adversarial system presided over by judges and we have juries to decide what happened. We will have to be patient and wait and see what happens.

In the meantime, we can wonder and while we wonder, we can conduct a diligent search for the reasonable man.

As an aside, why does our president believe he has and should exercise the power to unilaterally decide to kill someone just because he believes that person is a terrorist.

What is reasonable about that?


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