Hey Dude, Where Is My Jury?

     When George Zimmerman was on trial, charged with the murder of Trayvon Martin, there were only 6 jurors.  What happened to the other 6?  Nothing really.  Florida, and some other states, allow criminal trials with a jury of fewer than the traditional 12 members. Is that constitutional?  The answer was NO before it was YES.  In 1898 the U. S. Supreme Court required 12, no more, no less.  In 1970 the Court reviewed legal history and viewed the traditional jury of 12 to be a "historical accident."  The Court repaired the accident damage and allowed for a jury of 6 in state court criminal trials.  John Greanias, Copyright 2013.

Yo Dude, You Can't Say That! (The "Not-So-Perfect" Trial)

A jury trial can be a messy thing.  It is not uncommon for attorneys to inadvertently violate rules in the heat of litigation, or for witnesses to act inappropriately, or for jurors to engage in improper conduct. Even judges make mistakes!  Fortunately, American jurisprudence recognizes that a fair trial does not always mean a perfect trial.  As a judge, I was frequently in the position of trying to "keep the wheels on" a trial after it hit a few bumps. On a cold winter day a few years ago, I was presiding at a trial in which the defendant was charged with attempted first degree murder of a police officer.  The trial was proceeding comfortably along when, unexpectedly, a police officer decided to supplement her answer to an attorney's question by telling the jury that the defendant refused to take a lie detector test.  BIG PROBLEM for two reasons.  First, testimony regarding lie detector tests is not admissible in a criminal trial because such tests do not have sufficient scientific reliability. Second, testimony of refusal to take a lie detector test is a serious violation of a defendant's constitutional right to remain silent.  Of course, the defendant demanded a mistrial.  Could this trial be saved? The trial was already a "do over" because, three weeks earlier, another jury was unable to agree on a verdict. I was not certain that the appellate court would agree with me, but I decided that the jury could overlook the serious mistake and still render a fair verdict.  Consequently, I fully explained the problem to the jury, and then instructed them to disregard the officer's testimony regarding a lie detector test. The trial proceeded, and the jury returned a verdict of guilty.  Two years later, the appellate court affirmed the conviction (link below).  It was another case saved by the principle that a defendant does not have a constitutional right to a perfect trial, only the right to a fair trial.  The evolution of this fundamental principle is well examined in the 2009 scholarly work of Roger A. Fairfax Jr,. published in the Marquette Law Review (link below).  John Greanias, Copyright 2013.

http://law.justia.com/cases/illinois/court-of-appeals-fourth-appellate-district/2000/4980350.html

http://scholarship.law.marquette.edu/cgi/viewcontent.cgi?article=4944&context=mulr