In California criminal cases, a jury trial is where 12 members of the community are assembled to hear the evidence and decide whether or not a defendant is guilty of the crime or crimes with which he or she is charged.
Below, our California criminal defense attorneys will explain the following:
- 1. What is a jury trial in California?
- 2. What are the phases of a jury trial?
- 3. What are some of the common evidentiary motions?
If, after reading this article, you would like more information, we invite you to contact us at Shouse Law Group.
If, at the time of your arraignment, you enter a “not guilty” plea, you will thereafter engage in a number of pretrial proceedings that are designed to resolve the case. This is usually by way of a plea bargain. However, if you maintain your “not guilty” plea, you will ultimately proceed to trial, which is your constitutional right. Most likely, that trial will be a jury trial.
The jury in a California criminal jury trial is comprised of twelve members who represent a cross-section of the community in which the charged offense was committed. And before the jury can convict you, this “jury of your peers” must unanimously agree that you are guilty “beyond a reasonable doubt.” This is sometimes also called a moral certainty.3
The right to a jury trial is not a right that only extends to defendants who are accused of committing misdemeanor or felony offenses. Even misdemeanor cases often go to trial. It is a right that also extends to:
- the prosecution,4 and
- a variety of additional proceedings.
These include (but are not limited to):
- Health and Safety Code 11357(b) possession of marijuana law (even though this law carries no possible incarceration period),5
- Mentally Disordered Offender “MDO” commitment hearings,6 and
- Sexually Violent Predator “SVP” commitment hearings.7
In addition, the right to a jury trial extends to any allegations that may affect the sentence or enhance the penalty (for example, proving prior convictions and/or death penalty proceedings).8
California jury trials can be broken down into a number of phases, and each phase of the trial has its own rules and regulations. Typically, a jury trial proceeds as follows on the trial date:
- jury selection,
- opening statements,
- evidence (also known as the prosecution and defense “cases in chief” which includes the examination and cross-examination of witnesses by both sides),
- closing arguments,
- jury deliberations,
- verdict, and finally, if necessary,
Let us take a closer look at each of these stages in order to gain a better understanding of California jury trial procedures as a whole. (Note that criminal prosecutions in federal court are largely similar to those in state court.)
2.1. Jury selection
Jury selection, not surprisingly, is the process by which an impartial jury is chosen. During jury selection, the defense attorney and prosecutor ask prospective jury members questions (known as the “voir dire“) in an effort to determine who will comprise the most favorable jury.
During this process, the parties attempt to find twelve jurors (and sometimes alternate jurors)10 on which they agree. An important part of jury selection involves asking the court to dismiss certain candidates. The attorneys make this request either
- for cause, or
- through the use of a peremptory challenge.
If the attorney asks the court to dismiss a potential juror “for cause“, it means that the individual has expressed a bias and is not suitable to decide the case (for example, the juror may have stated that…based on religious reasons…she cannot pass judgment on the defendant). Lawyers are permitted an unlimited amount of these challenges.
If the attorney exercises a “peremptory challenge“, the attorney does not need to state the reason why he/she dismissed that individual from jury service. Each attorney is allowed between six and twenty peremptory challenges, depending on the alleged offenses.11
There is an important point to address with respect to peremptory challenges. An attorney may not excuse prospective jurors based on their:
- ethnicity, etc.
If he/she is suspected of doing so on a systematic basis, the opposing attorney will likely file what is known as a “Wheeler motion”.12 If granted, the entire jury panel will be dismissed, and a new panel will be ordered and questioned.13
Once twelve jurors have been selected, the attorneys make their opening statements.
2.2. Opening statements
As Rancho Cucamonga criminal defense attorney Michael Scafiddi14 explains:
“Opening statements give the jury a road map of what the attorneys expect the evidence to prove. During opening statements, the attorneys are not permitted to introduce evidence. They are, however, allowed to offer a ‘preview of coming attractions.'”
Depending on the circumstances of the offense(s), opening statements may be brief or quite detailed. The judge may also set time limits on the attorneys’ opening statements.
The prosecution goes first. If the defense wishes to make an opening statement (which it typically does), it follows.
2.3. The case in chief
This is the “bulk” of the California criminal jury trial…that is, the segment where each side introduces its evidence in accordance with the California rules of evidence. Attorneys do not personally introduce evidence. They do so through:
- witness testimony,
- expert testimony,
- photos, etc.
For the most part, witnesses are only allowed to testify to matters that are within their personal knowledge.
After the attorney examines each witness, the other side’s attorney is given an opportunity to cross-examine the witness.
This process (referred to as “re-direct” and “re-cross”) continues until the attorneys have no further questions. But in order to ensure that this process does not continue indefinitely, each side is limited to questioning the witness exclusively about issues that the previous attorney raised.
However, this limitation only kicks in after both attorneys have had one full opportunity to inquire about any testimony that they wish.
2.4. Closing arguments
After all the evidence has been submitted, the attorneys engage in their closing arguments. During this phase of the California criminal jury trial process, the attorneys recap the evidence in a way that is most favorable to their client.
The lawyers are not permitted to comment on evidence that was not introduced during the trial or to misstate the law.15
The prosecution gives his/her closing argument first, followed by the defense. The prosecution then gets a final opportunity to rebut the defense’s argument. This final argument is usually much shorter in duration than the first two.
2.5. Jury deliberations
After the attorneys present their closing arguments, the case “goes to the jury”. The judge and attorneys review all the applicable jury instructions to determine which ones the judge should read to the jury.
Once the judge has read all the applicable instructions, the jury begins its deliberations. The jury designates a “foreperson” to guide the jury in their deliberations. The jury is supposed to debate the case until they unanimously reach a guilty or not guilty verdict.
The jury may ask the judge, in the presence of the attorneys:
- questions about the case,
- to rehear specific testimony,
- to view the scene of the incident, etc.
But the jury may not consider evidence outside the “record”. They are also prohibited from speaking or otherwise communicating with people outside the jury about the case.16
In rare circumstances, the judge will sequester the jury, which means that they will not have contact with anyone other than themselves for the duration of the deliberations.
Once the jury reaches its verdict…or has deliberated the case to the point that the judge believes there is no further point in trying…deliberations end.17
2.6. The verdict
If the jury unanimously finds the defendant “not guilty” on all charges, the case is dismissed, and the defendant goes free.
If even one member of the jury panel disagrees with the rest, the jury is hung. A “hung jury” results in either:
- a mistrial (which means the case may be retried with a new jury),
- a plea bargain to a reduced charge that carries a lesser sentence, or
- a dismissal of the case.
If the jury unanimously finds the defendant guilty on one or more charges, the defendant proceeds to a sentencing hearing on those counts unless the judge grants the defendant’s motion for a new trial (which is done for a variety of reasons when, simply put, the jury verdict is against the law).
2.7. The sentencing hearing
If the defendant is convicted of any charge, he/she is entitled to a sentencing hearing. A sentencing hearing is an opportunity for both the defense and prosecution to make a “pitch” to the judge as to what they believe the defendant’s sentence should be.
The defense attorney presents mitigating factors, and the prosecution presents aggravating factors. After listening to both sides, the judge ultimately determines the exact sentence, within the framework of what is legally permissible.
“A trial can be like a great movie. The facts of the case keep the audience on the edge of their seats. They will laugh and cry and feel changed by the experience. But in the end this drama of district court is different from anything coming out of Hollywood. This is a drama where the audience gets to write the ending.”
— California Criminal Defense Attorney Michael Scafiddi
Depending on the circumstances of the case, there may be additional motions and/or plea negotiations that take place throughout the trial as well. Some of the most common include (but are by no means limited to):
- standard objections to evidence / testimony,
- motions to exclude evidence (these motions apply to a number of different issues that range anywhere from excluding newly discovered evidence to excluding coerced confessions to excluding unnecessarily gruesome photos to excluding the sexual conduct of a sex crime victim),
- motions to exclude witnesses from the courtroom,
- motions to discharge jurors (this, too, could be for any number of reasons, such as juror misconduct, a juror becomes ill, a juror is inattentive or falls asleep during the trial, or a juror has an unusually emotional reaction to the evidence),18
- challenges to expert testimony (for example, the expert is testifying to matters beyond his/her expertise, the basis for the opinion is improper, and/or the testimony will confuse the issues and mislead the jury), and
- motion for acquittal (commonly referred to as a Penal Code 1118.1 motion), which the judge may consider on his/her own or at the request of the defense
- at the close of evidence of either side, or
- just prior to jury deliberations.
The premise of a motion for acquittal is that the prosecution has not sustained its burden of proof as to one or more elements of the crime.19
And regarding court (or “bench”) trials…
It should finally be noted that you have the right to waive a California criminal jury trial and instead to allow the judge to decide the outcome of your case.20 This is what is known as a bench trial or a court trial. However, because the right to a jury trial is so deeply embedded in our Constitution, the defense attorney and the prosecutor must both agree to this waiver.21
For the most part, the procedures for both jury trials and bench trials are the same, although bench trials may be a little less formal and considerably shorter (since there is no jury selection process or oral reading of the jury instructions).
Depending on the circumstances of your case, this may be a strategically advantageous option that you may wish to discuss with your attorney.
Contact our California criminal defense attorneys for legal advice about your case. Our DUI and criminal law firm represents clients throughout the state.
Additionally, our Las Vegas Nevada criminal defense attorneys are available to answer any questions relating to Nevada’s criminal court system. For more information, we invite you to contact our local attorneys at one of our Nevada law offices, located in Reno and Las Vegas.22
To learn about Nevada jury trials, go to our page on Nevada jury trials.
- Your right to a California jury trial is guaranteed by the Sixth and Fourteenth Amendments to the U.S. Constitution, by the California Constitution Article 1, sections 16 and 24, and by various California statutory provisions. Note that criminal cases are different from civil cases; civil litigants may be able to avoid trial through arbitration or mediation.
- Our California criminal defense attorneys have local Los Angeles law offices in Beverly Hills, Burbank, Glendale, Lancaster, Long Beach, Los Angeles, Pasadena, Pomona, Torrance, Van Nuys, West Covina, and Whittier. We have additional law offices conveniently located throughout the state in Orange County, San Diego, Riverside, San Bernardino, Ventura, San Jose, Oakland, the San Francisco Bay area, and several nearby cities.
- California Constitution Article 1, section 16. (“Sec. 16. Trial by jury is an inviolate right and shall be secured to all, but in a civil cause three-fourths of the jury may render a verdict. A jury may be waived in a criminal cause by the consent of both parties expressed in open court by the defendant and the defendant’s counsel. In a civil cause a jury may be waived by the consent of the parties expressed as prescribed by statute. In civil causes the jury shall consist of 12 persons or a lesser number agreed on by the parties in open court. In civil causes other than causes within the appellate jurisdiction of the court of appeal the Legislature may provide that the jury shall consist of eight persons or a lesser number agreed on by the parties in open court. In criminal actions in which a felony is charged, the jury shall consist of 12 persons. In criminal actions in which a misdemeanor is charged, the jury shall consist of 12 persons or a lesser number agreed on by the parties in open court.”). See also California Jury Instructions, Criminal (CALJIC 2.90) — Presumption of Innocence-Reasonable Doubt-Burden of Proof. (“A defendant in a criminal action is presumed to be innocent until the contrary is proved, and in case of a reasonable doubt whether [his] [her] guilt is satisfactorily shown, [he] [she] is entitled to a verdict of not guilty. This presumption places upon the People the burden of proving [him] [her] guilty beyond a reasonable doubt. Reasonable doubt is defined as follows: It is not a mere possible doubt; because everything relating to human affairs is open to some possible or imaginary doubt. It is that state of the case which, after the entire comparison and consideration of all the evidence, leaves the minds of the jurors in that condition that they cannot say they feel an abiding conviction of the truth of the charge.”).
- People v. King (1970) 1 Cal.3d 791, 795. (“After entering his guilty plea, defendant indicated that he wished to waive a [California criminal] jury trial on the issue of penalty. The prosecutor refused to join in the waiver, and defendant moved that he nevertheless be permitted to waive a jury trial. The motion was denied, and defendant contends that the court thereby erred. We do not agree.”).
- Tracy v. Municipal Court (1978) 22 Cal.3d 760, 764. (“The final version of Senate Bill No. 95, which included the modification of [Health and Safety code] section 11357 [California’s misdemeanor possession of marijuana law], provided that unlawful simple possession of less than one ounce of marijuana is a misdemeanor punishable by a fine of not more than $100. That this change was deliberately made to settle how the offense would be classified clearly appears from the section’s other provisions with respect to jury trial…[and at 766]…A person charged with a misdemeanor is entitled to the assistance of court-appointed counsel (Pen. Code 686) and to a trial by jury (Pen. Code 689).”).
- California Penal Code 2972 PC — Hearing on petition for continued treatment; jury trial…(“(a) The court shall conduct a hearing on the petition under Section 2970 for continued treatment [that is, a Mentally Disordered Offender “MDO” commitment hearing]. The court shall advise the person of his or her right to be represented by an attorney and of the right to a [California] jury trial. The attorney for the person shall be given a copy of the petition, and any supporting documents. The hearing shall be a civil hearing, however, in order to reduce costs the rules of criminal discovery, as well as civil discovery, shall be applicable. The standard of proof under this section shall be proof beyond a reasonable doubt, and if the trial is by jury, the jury shall be unanimous in its verdict. The trial shall be by jury unless waived by both the person and the district attorney. The trial shall commence no later than 30 calendar days prior to the time the person would otherwise have been released, unless the time is waived by the person or unless good cause is shown.”).
- California Welfare and Institutions Code 6603 — Trial by jury…(a) A person subject to this article [that is, a person subject to a Sexually Violent Predator “SVP” commitment hearing] shall be entitled to a trial by jury, to the assistance of counsel, to the right to retain experts or professional persons to perform an examination on his or her behalf, and to have access to all relevant medical and psychological records and reports. In the case of a person who is indigent, the court shall appoint counsel to assist him or her, and, upon the person’s request, assist the person in obtaining an expert or professional person to perform an examination or participate in the trial on the person’s behalf. Any right that may exist under this section to request DNA testing on prior cases shall be made in conformity with Section 1405 of the Penal Code.”).
- People v. Guzman (1988) 45 Cal.3d 915, 968 overruled on other grounds. (“As noted above, defendant received a 37 1/2-year prison sentence in addition to the death sentence. Ten years of that sentence resulted from defendant’s admission at the close of the prosecution’s case-in-chief that he had suffered two prior rape convictions, for each of which he had served a state prison term. (667.5, subd. (c).) He asserts the judgment must be modified to strike the 10-year enhancement because, he notes, the trial court did not expressly advise him of his right to a jury trial on the issue of the priors…The law is well settled that before an accused can validly admit a prior felony conviction, he must be advised of, and waive, his rights to a [California criminal] jury trial, confrontation, and his rights against self-incrimination as to the prior conviction, and he must also be advised of the legal consequences of his admission.”). See also Ring v. Arizona (2002) 536 U.S. 584, 609. (“…our Sixth Amendment jurisprudence cannot be home to both. Accordingly, we overrule Walton to the extent that it allows a sentencing judge, sitting without a jury, to find an aggravating circumstance necessary for imposition of the death penalty. See 497 U.S., at 647-649, 110 S.Ct. 3047. Because Arizona’s enumerated aggravating factors operate as “the functional equivalent of an element of a greater offense,” Apprendi, 530 U.S., at 494, n. 19, 120 S.Ct. 2348, the Sixth Amendment requires that they be found by a jury…The right to trial by jury guaranteed by the Sixth Amendment would be senselessly diminished if it encompassed the factfinding necessary to increase a defendant’s sentence by two years, but not the factfinding necessary to put him to death. We hold that the Sixth Amendment applies to both.”).
- California Penal Code 1093 PC — Order of procedure in a California criminal jury trial; change of order; powers of judge to comment and to charge as to law. (“The jury having been impaneled and sworn, unless waived, the trial shall proceed in the following order, unless otherwise directed by the court: (a) If the accusatory pleading be for a felony, the clerk shall read it, and state the plea of the defendant to the jury, and in cases where it charges a previous conviction, and the defendant has confessed the same, the clerk in reading it shall omit therefrom all that relates to such previous conviction. In all other cases this formality may be dispensed with. (b) The district attorney, or other counsel for the people, may make an opening statement in support of the charge. Whether or not the district attorney, or other counsel for the people, makes an opening statement, the defendant or his or her counsel may then make an opening statement, or may reserve the making of an opening statement until after introduction of the evidence in support of the charge. (c) The district attorney, or other counsel for the people shall then offer the evidence in support of the charge. The defendant or his or her counsel may then offer his or her evidence in support of the defense. (d) The parties may then respectively offer rebutting testimony only, unless the court, for good reason, in furtherance of justice, permit them to offer evidence upon their original case. (e) When the evidence is concluded, unless the case is submitted on either side, or on both sides, without argument, the district attorney, or other counsel for the people, and counsel for the defendant, may argue the case to the court and jury; the district attorney, or other counsel for the people, opening the argument and having the right to close. (f) The judge may then charge the jury, and shall do so on any points of law pertinent to the issue, if requested by either party; and the judge may state the testimony, and he or she may make such comment on the evidence and the testimony and credibility of any witness as in his or her opinion is necessary for the proper determination of the case and he or she may declare the law. At the beginning of the trial or from time to time during the trial, and without any request from either party, the trial judge may give the jury such instructions on the law applicable to the case as the judge may deem necessary for their guidance on hearing the case. Upon the jury retiring for deliberation, the court shall advise the jury of the availability of a written copy of the jury instructions. The court may, at its discretion, provide the jury with a copy of the written instructions given. However, if the jury requests the court to supply a copy of the written instructions, the court shall supply the jury with a copy.”).
- California Penal Code 1093 PC — Alternate jurors; cases in which authorized; drawing; qualifications; examination; challenges; seating; oath; attendance; duties; confinement; discharge; substitution of alternate for regular juror. (“Whenever, in the opinion of a judge of a superior court about to try a defendant against whom has been filed any indictment or information or complaint, the [California criminal jury] trial is likely to be a protracted one, the court may cause an entry to that effect to be made in the minutes of the court, and thereupon, immediately after the jury is impaneled and sworn, the court may direct the calling of one or more additional jurors, in its discretion, to be known as “alternate jurors.” The alternate jurors must be drawn from the same source, and in the same manner, and have the same qualifications as the jurors already sworn, and be subject to the same examination and challenges, provided that the prosecution and the defendant shall each be entitled to as many peremptory challenges to the alternate jurors as there are alternate jurors called. When two or more defendants are tried jointly each defendant shall be entitled to as many peremptory challenges to the alternate jurors as there are alternate jurors called. The prosecution shall be entitled to additional peremptory challenges equal to the number of all the additional separate challenges allowed the defendant or defendants to the alternate jurors. The alternate jurors shall be seated so as to have equal power and facilities for seeing and hearing the proceedings in the case, and shall take the same oath as the jurors already selected, and must attend at all times upon the trial of the cause in company with the other jurors, and for a failure so to do are liable to be punished for contempt. They shall obey the orders of and be bound by the admonition of the court, upon each adjournment of the court; but if the regular jurors are ordered to be kept in the custody of the sheriff or marshal during the trial of the cause, the alternate jurors shall also be kept in confinement with the other jurors; and upon final submission of the case to the jury the alternate jurors shall be kept in the custody of the sheriff or marshal and shall not be discharged until the original jurors are discharged, except as hereinafter provided. If at any time, whether before or after the final submission of the case to the jury, a juror dies or becomes ill, or upon other good cause shown to the court is found to be unable to perform his or her duty, or if a juror requests a discharge and good cause appears therefor, the court may order the juror to be discharged and draw the name of an alternate, who shall then take a place in the jury box, and be subject to the same rules and regulations as though the alternate juror had been selected as one of the original jurors.”).
- California Code of Civil Procedure 231 — Peremptory challenges; number; joint defendants; passing challenges. (“(a) In criminal cases, if the offense charged is punishable with death, or with imprisonment in the state prison for life, the defendant is entitled to 20 and the people to 20 peremptory challenges [during the California criminal jury trial]. Except as provided in subdivision (b), in a trial for any other offense, the defendant is entitled to 10 and the state to 10 peremptory challenges. When two or more defendants are jointly tried, their challenges shall be exercised jointly, but each defendant shall also be entitled to five additional challenges which may be exercised separately, and the people shall also be entitled to additional challenges equal to the number of all the additional separate challenges allowed the defendants. (b) If the offense charged is punishable with a maximum term of imprisonment of 90 days or less, the defendant is entitled to six and the state to six peremptory challenges. When two or more defendants are jointly tried, their challenges shall be exercised jointly, but each defendant shall also be entitled to four additional challenges which may be exercised separately, and the state shall also be entitled to additional challenges equal to the number of all the additional separate challenges allowed the defendants.”).
- People v. Wheeler (1978) 22 Cal.3d 258.
- People v. Smith (1993) 21 Cal.App.4th 342, 346. (“The Wheeler solution allows a prosecutor to push the limit and, if found to have gone too far, to have the slate wiped clean and start over with a new venire. But unless and until the United States Supreme Court mandates a contrary remedy, or the California Supreme Court changes its mind, we have no option but to follow the Wheeler remedy.”).
- Rancho Cucamonga criminal defense attorney Michael Scafiddi represents clients at California criminal jury trials throughout the Inland Empire, including Banning, Barstow, Rancho Cucamonga, Hemet, Palm Springs, Riverside, and San Bernardino County.
- People v. Villa (1980) 109 Cal.App.3d 360, 364-365. (“The prosecutor’s insinuations that he had in his possession as yet undisclosed but highly relevant and damaging evidence regarding Villa’s prior sexual conduct clearly constituted misconduct…The Supreme Court held: “There is no doubt that the prosecutor’s statement constituted improper argument, for he was attempting to smuggle in by inference claims that could not be argued openly and legally. In essence, the prosecutor invited the jury to speculate about-and possibly base a verdict upon-‘evidence’ never presented at trial.”). See also People v. Mendoza (2007) 42 Cal.4th 686, 702. (“Although counsel have “broad discretion in discussing the legal and factual merits of a case [citation], it is improper to misstate the law.”).
- California Penal Code 1138 PC — Information for jury after retirement; return to court; notice to counsel. (“After the jury have retired for deliberation, if there be any disagreement between them as to the testimony, or if they desire to be informed on any point of law arising in the case, they must require the officer to conduct them into court. Upon being brought into court, the information required must be given in the presence of, or after notice to, the prosecuting attorney, and the defendant or his counsel, or after they have been called.”). See also People v. Honeycutt (1977) 20 Cal.3d 150, 157. (“In People v. Conkling, supra, 111 Cal. 616, 628, we stated that jurors cannot investigate the case outside the courtroom and that they must decide the guilt or innocence of a defendant based only on evidence introduced at [the California criminal jury] trial. It is equally manifest that we cannot condone a practice whereby a juror receives outside counseling relative to the applicable law, as to do so would subordinate the court’s evaluation of the law to that of the juror’s outside source and would be contrary to legislative directives that the court shall instruct on the applicable law (Pen. Code 1127) and maintain control of the proceedings (Pen. Code 1044).”).
- California Penal Code 1140 PC — Discharge of jury after submission; verdict; consent of parties; disagreement. (“Except as provided by law, the jury cannot be discharged after the cause is submitted to them until they have agreed upon their verdict and rendered it in open court, unless by consent of both parties, entered upon the minutes, or unless, at the expiration of such time as the court may deem proper, it satisfactorily appears that there is no reasonable probability that the jury can agree.”). See also Penal Code 1160 PC — Multiple defendants; multiple offenses charged; verdict and judgment as to some and disagreement and retrial as to others. (“…Where two or more offenses are charged in any accusatory pleading, if the jury cannot agree upon a verdict as to all of them, they may render a verdict as to the charge or charges upon which they do agree, and the charges on which they do not agree may be tried again.”).
- See California Penal Code 1093 PC, Discharging jurors during a California criminal jury trial, endnote 10, above.
- California Penal Code 1118.1 PC — Trial by jury; entry of judgment of acquittal for insufficient evidence. (“In a case tried before a jury, the court on motion of the defendant or on its own motion, at the close of the evidence on either side and before the case is submitted to the jury for decision, shall order the entry of a judgment of acquittal of one or more of the offenses charged in the accusatory pleading if the evidence then before the court is insufficient to sustain a conviction of such offense or offenses on appeal. If such a motion for judgment of acquittal at the close of the evidence offered by the prosecution is not granted, the defendant may offer evidence without first having reserved that right.”)
- California Constitution Article 1, section 16, endnote 3, above.
- See same. (“A jury may be waived in a criminal cause by the consent of both parties expressed in open court by the defendant and the defendant’s counsel.”)
- Please feel free to contact our Nevada criminal defense attorneys Michael Becker and Neil Shouse for any questions relating to Nevada’s criminal jury trials or Nevada’s criminal court system. Our Nevada law offices are located in Reno and Las Vegas.