TAKING YOUR CASE TO JURY TRIAL IN MASSACHUSETTS

Every Decision You Make as a Defendant in a Massachusetts Criminal Prosecution Is Important;

However, the Decision to Let a Jury Decide Your Fate Is Arguably the Most Important Decision You Will Make

Kevin J. Mahoney

If you have been charged with a criminal offense in Massachusetts you will have

a number of important decisions to make throughout the prosecution of your

case. One of those decisions is whether or not to take your case to trial. If you do

decide to proceed to trial you will then need to decide whether to let a jury decide

your fate or waive your right to a trial by jury and try your case to a judge. Only

an experienced Massachusetts criminal defense attorney can review the unique

facts and circumstances of your case and provide you with individualized advice

regarding your options; however, a better understanding of the jury trial system

may be beneficial in helping you make your ultimate decision.

YOUR RIGHT TO A TRIAL BY JURY

In the United States a number of rights are guaranteed to you in the United

States Constitution and the subsequent Amendments thereto. The right to a trial

by jury, as well as a number of other important rights is found in the Sixth

Amendment which reads:

“In all criminal prosecutions, the accused shall enjoy the right to a speedy

and public trial, by an impartial jury of the state and district wherein the

crime shall have been committed, which district shall have been previously

ascertained by law, and to be informed of the nature and cause of the

accusation; to be confronted with the witnesses against him; to have

compulsory process for obtaining witnesses in his favor, and to have the

assistance of counsel for his defense.”

Article XII of the Declaration of Rights of the Massachusetts Constitution mirrors

the right to a trial by jury found at the federal level and reads as follows:

“No subject shall be held to answer for any crimes or offence, until the

same is fully and plainly, substantially and formally, described to him; or be

compelled to accuse, or furnish evidence against himself. And every

subject shall have a right to produce all proofs, that may be favorable to

him; to meet the witnesses against him face to face, and to be fully heard in

his defense by himself, or his council at his election. And no subject shall

be arrested, imprisoned, despoiled, or deprived of his property, immunities,

or privileges, put out of the protection of the law, exiled, or deprived of his

life, liberty, or estate, but by the judgment of his peers, or the law of the

land.”

EXERCISING OR WAIVING YOUR RIGHT TO TRIAL BY JURY

The right to a trial by jury is one of many fundamental rights you have in the

United States. Some of your other important rights as an accused in a criminal

prosecution include:

The right to remain silent

The right to counsel

The right against self-incrimination

The right to confront and cross examine witnesses against you

Each of these rights is yours to

exercise or waive. Just as you can

decide to waive your right to remain

silent (hopefully only after

consultation with an experienced

Massachusetts criminal defense attorney) you can also decide to waive your right

to a trial by jury. If, for example, you ultimately decide to enter into a plea

agreement with the Commonwealth of Massachusetts you will need to waive

your right to a trial by jury because you will need to plead guilty to the offense.

You could also waive your right to a trial by jury because you have decided,

again with the assistance and advice from an experienced attorney, to let a judge

decide if you are guilty or not-guilty.

HOW IS A JURY IMPANELLED?

In a criminal prosecution in Massachusetts the jury will be made up of either six

or 12 jurors. These jurors represent a jury of your peers. District Court juries are

comprised of six individuals. Superior Court juries are made up of 12 jurors.

Potential jury members are summoned from a master list held by the Office of

Jury Commissioner, or OJC. That list, in turn, is formed from the annual resident

lists that are created by each of the 351 cities and towns in Massachusetts. In

this way, Massachusetts is unique because other states create their potential

juror lists from much narrower records, such as voter registration records. With a

broader potential jury pool you stand a better chance of actually ending up with a

“jury of your peers”.

VOIR DIRE – CHOOSING THE JURY

On the first day of trial, following motions in limine, jury “selection” begins with

“Voir Dire.” Both the Defense lawyer and the prosecutor will submit written

questions to the Court that they want put to those in the jury pool. The judge

determines which, if any, of these questions to add to his list of routine questions.

The entire Voir Dire process is devoted to unearthing and elimination of jurors

with biases. However, the process can be invaluable to attorneys seeking

insights into these potential jurors as they utilize their peremptory challenges or

challenge a potential juror for cause.

The number of challenges for cause is unlimited; however, a lawyer challenging

a juror for cause must persuade the judge that the individual is disqualified from

serving as a juror because he is related to a party, has an interest in the case, is

biased, has already formed an opinion or suffers from a physical disability, such

as loss of hearing, that would undermine his ability to follow the evidence or fully

participate during deliberations. Lawyers will receive a limited number of

peremptory challenges, which they can exerciseto excuse prospective jurors

without having to cite a reason. These challenges, however, are limited to 12 per

side in a prosecution where the potential punishment is life in prison and six per

side in any other criminal prosecution tried before a 12 person jury. For District

Court trials, where the juries consistof only six jurors, lawyers are permitted only

two peremptory challenges each.

Prospective jurors will continue to be questioned and excused until all challenges

have been used by each side. The individuals remaining in the jury box will be

your final jury.

THE JURORS ROLE

During the trial a juror’s role is simply to listen to all of the testimony and

evidence presented by both sides. Judges instruct jurors, at the outset of the trial,

not to form opinions until the deliberations begin. After both sides have

concluded their closing

statements the judge will recite

the final instructions to the jury.

These include a number of

standard instructions about the

role of the jury as well as several

specific instructions relating to

your charges. Your attorney will

have the opportunity to review

the proposed jury instruction ahead of time and even tender his or her own

version for consideration.

Once the instructions have been given the jury will be led from the courtroom to a

private room to begin deliberations. Before they begin deliberating, however, a

foreperson will be chosen to lead the group and to communicate with the court.

In a criminal trial the jury must reach a unanimous decision to find you guilty.

That means that all 12 (or 6) jurors must be convinced that you are guilty

beyond a reasonable doubt to return a verdict of guilty.In a small percentage

of cases the jury simply cannot agree on a unanimous verdict after a lengthy

deliberation. When this occurs it is referred to as a “hung jury.” Most cases that

end in a hung jury are retried within a relatively short period of time. Of course,

the prosecutor can choose to nolle pro (drop) the charges or the two sides could

attempt resolve the case by way of a plea agreement.

Every decision you make as a defendant in a Massachusetts criminal

prosecution is important; however, the decision to let a jury decide your fate is

arguably the most important decision you will make and should only be made

with the assistance of an aggressive Massachusetts criminal defense attorney.

About the Author

Kevin J. Mahoney

Kevin J. Mahoney is a Boston, Massachusetts criminal defense lawyer

recognized nationwide for his high-profile courtroom victories, bestselling

book on cross-examination, Relentless Criminal Cross-Examination,

novel insights into trial strategy, and numerous television appearances.

He is, perhaps, best known for overturning of the 1st-degree murder

conviction of Christina Martin, dubbed the “JELL-O Murderer” by the

national press and chronicled on television on Forensic Files (“A Dessert

Served Cold”). He has won 47 of his last 50 trials. The prestigious

National Trial Lawyers has named him one of “The Top 100 Trial

Lawyers” consistently since 2007. Avvo, the national lawyer rating

service, rates Attorney Mahoney a 10.0/10.0 for “superb.”

In addition to a thriving Massachusetts criminal defense practice, Mr. Mahoney has maintained a

steady and successful civil practice for almost two decades, handling complex international contract

negotiations; patent licensing; civil litigation; breach-of-contract disputes; landlord/tenant litigation; and

obtaining, defending and asserting worldwide intellectual property rights.

Mahoney Criminal Defense Group

Suite 22, 545 Concord Avenue

Cambridge, MA 02138

Phone: 617-492-0055

Website: www.relentlessdefense.com