Of course, in any lawyer/client relationship the people involved will determine who makes the decisions.  However, in criminal cases there are two main decisions that only the client can make—

1.  The decision to plead guilty or to demand a trial.  Not only is this legally and ethically correct, but it makes common sense also: only the defendant knows for certain if he committed the crime or not.  Therefore, he should be the one to make the decision to plead guilty.

Stemming from this, the client also has the decision to authorize his lawyer to negotiate with the prosecutor for the possibility of settling the case with a plea of guilty to some less serious offense.  It’s known as “plea bargaining” and, at the end of any negotiations, once again, it’s the decision of the defendant to plead guilty to the less serious charge or to reject the offer and go to trial.

2.  The defendant also makes the decision, if he wants a trial, that it be heard by a jury or by a judge without a jury.  This choice comes from the Bill of Rights in the Constitution that gives an accused the right to “a jury of his peers.”  Therefore, the defendant makes this decision.

In my many years of representing defendants, I always give them these decisions.  Often, a client will ask me if they should plead guilty or not—requiring me to make the decision.  I’ve never done that.  I always force them to confront the case and make the decision.  After all, they know if they’re guilty or not—I never know for sure.

When it comes to a jury or a judge for trial, I can offer a lot of advice to a defendant.  For instance, several years ago, I represented a young man who had been charged with first degree murder and transferred to adult court.  He was facing a life sentence without parole—he’d never get out of prison before he died.  He was the accomplice in a brutal, senseless execution of two people who were robbed for money.

When he asked me about a jury or a judge, I suggested that he consider going with a judge.  I was worried that a jury would be so offended by the facts of the case (even though my client was not the shooter) they would react by convicting him rather than weighing the evidence of his minor role in the murders.  A judge who had heard dozens of horrible cases like this one, might be more willing to look deeper at the legal issues involved.

My client agreed, he waived a jury, and we tried the case before a judge.

The judge found the young man guilty but of a reduced degree of homicide.  He still had to go to prison but only for about eight years.  In that case, the defendant’s decision worked to his benefit.

On the other hand, if a defendant tells me he did the crime but still wants a trial, I always suggest a jury—there’s a small chance the jury might feel sorry for the accused and give him a break.

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We all know that every accused person has a right to a jury trial.  It comes to us in America from centuries of English common law and our constitution.   When a person is on trial for a capital offense and life in prison or the death penalty can result from the jury’s decision, selecting the people who serve on the jury becomes critical.

If a person is charged with a felony, they have a right to a jury of twelve people.  All twelve have to agree unanimously that a defendant is guilty before they can be found guilty.  Typically, at the beginning of a trial about twenty people will be brought into the courtroom for selection of the final twelve.  They are originally recruited in a variety of ways: voter records, driver’s licenses, addresses, etc. in an effort to get an accurate cross-section of the community.  When I first started tying cases in Minnesota, the African American population was small.  As a result, when I defended black clients, the juries were often white, suburban people.   I don’t think you can immediately assume they were biased against a black defendant, but it sure made the client nervous.  As our constitution reads, each of us has a right to a “jury of our peers.”

Today, the judiciary makes significant efforts to include all socio-economic and racial groups in the jury pool for selection.  It’s not perfect but is better than years ago.

Once the trial starts, if it’s a murder case, the prospective jurors are questioned one at a time without the other potential jurors present.  In any other felony, twelve people are initially called out of the large group, seated in the jury box, and questioned one after another.

Each lawyer has the opportunity to ask their own questions.  Both prosecutor and defense lawyer ask their questions of one juror at a time.  Either lawyer has a number of automatic “strikes” which mean they can kick-out a prospective  juror without stating a reason why.  They can both “challenge” any juror for “cause.”   The lawyer must state the reason out loud why he thinks the juror would not be fair.  It could be because they were a victim of a similar crime as the one being tried, they’ve expressed something that shows they’re already biased against one side or the other, or something in their background makes them biased.  If the judge agrees, the juror is released.  If the judge doesn’t agree, the lawyer must then use a “strike” or be stuck with a disgruntled juror that he tried to kick-off.

Can you get out of jury duty?

Should you get out of jury duty?  This is a pet peeve of mine!!  So often, I hear people complain that government doesn’t work anymore and that each of us can’t change anything.  But when offered the opportunity to serve in the “government”–that is, the judiciary as a juror, so many people try to get out of it.  Why don’t they understand that by serving, they are playing a critical, important role in the government???

Let me know what you think.

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