Can a state conduct a criminal trial with only five jurors?

No, the United States Supreme Court ruled in Ballew v. Georgia (1978; see LegalSpeak, p. 168) that a state could not conduct a criminal trial with less than six jurors, because a five-member jury would violate a criminal defendant's right to a jury trial guaranteed by the Sixth Amendment. The court cited empirical research showing a correlation between jury size and good results. "As juries decrease in size, then, they are less likely to have members who remember each of the important pieces of evidence or argument," Justice Harry Blackmun wrote the Court.

Who was the defendant Ballew?

Claude Davis Ballew was the manager of an adult movie theater in Atlanta, Georgia, who faced obscenity charges for showing the pornographic movie Behind the Green Door.

Do jury verdicts have to be unanimous?

Yes, jury verdicts in federal criminal cases must be unanimous. Federal Rule of Criminal Procedure Rule 31(a) provides: "The jury must return its verdict to a judge in open court. The verdict must be unanimous."

However, a few states do allow non-unanimous verdicts in criminal cases. The United States Supreme Court upheld a Louisiana law that allowed individuals to be convicted if at least 9 of 12 jurors voted for conviction. In Johnson v. Louisiana (1972), the Court reasoned that "disagreement of three jurors does not alone establish reasonable doubt, particularly when such a heavy majority of the jury, after having considered the dissenters' views, remains convinced of guilt."

Can judges sequester juries?

Yes, trial judges—particularly in criminal cases—have the option of sequestering jurors to prohibit outside influences from contacting jurors. This can help to ensure that criminal defendants receive a fair trial and also to protect jurors.

Can a court use an anonymous jury?

Some courts have ruled that anonymous juries are permissible in the appropriate case where juror safety is an issue. These courts reason that protecting jurors from harm is a compelling or very strong governmental interest that justifies the extraordinary use of an anonymous jury. A Minnesota appeals court reasoned in State v. Ferguson (Minn.App. 2007) that an anonymous jury could be used if the following two factors were met: (1) there was strong reason to believe that the jury needs protection and (2) the court takes precautions to minimize any possible prejudice to the defendant that the jurors' anonymity might present.

How do criminal trials proceed?

Criminal trials proceed like civil trials in the sense that there are opening statements by both attorneys. The prosecution then presents its case-in-chief with the defense being able to cross-examine witnesses. After the prosecution finishes its case or rests, the defense has the opportunity to ask for a directed verdict of acquittal or motion to dismiss. Often, this is not granted. The defense then presents its case. After the conclusion of the case-in-chief, the parties then make closing arguments to the jury. Then, the judge will read jury instructions to help the jurors understand their duty and apply the law properly.

Must a criminal defendant testify on behalf of himself or herself?

No, the Fifth Amendment of the U.S. Constitution provides that a defendant does not have to incriminate himself by testifying on his or her own behalf. This amendment means that the defendant can sit quietly at trial and require the prosecutor to prove that he or she committed the crime beyond a reasonable doubt—a formidable legal standard.

Can a judge declare a mistrial?

Yes, a judge can declare a mistrial if there is legal error committed during the trial or if something happens that the judge believes substantially prejudices the case. For example, Idaho Rule of Criminal Procedure, Rule 29.1 provides: "A mistrial may be declared upon motion of the defendant, when there occurs during the trial an error or legal defect in the proceedings, or conduct inside or outside the courtroom, which is prejudicial to the defendant and deprives the defendant of a fair trial."

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