This is a transcript of my Podcast for Arizona Misdemeanor Jury Trial Process.
I am Gordon Thompson and I am a DUI attorney in Phoenix. My experience includes practicing DUI criminal law now for 47 years. As a part of my practice I regularly do jury trials, the vast majority which are misdemeanor DUI jury trials.
In today’s podcast discusses what is the jury trial process because I have found over the years that most of my misdemeanor clients have little familiarity with the process unless rarely have they been a defendant in another case and so they have little understanding of the process unless they have been a juror another case and so before we begin the trial I describe the process something like this.
In Arizona misdemeanor offenses are jury eligible for two reasons. One is if the charge was jury eligible when Arizona was a territory, Arizona became State in 1912, that right is preserved on the Arizona Constitution. Two types of offenses that would be included are a Reckless Driving and Theft related offenses such as Theft or Shoplifting. A second reason an offense can be a jury trial eligible as a misdemeanor is by Arizona state statute. DUI cases are not jury eligible under the Arizona Constitution but they are eligible by state statutes, 28-1381.A, Regular DUI, as well as 23-1382.A, Extreme DUI. The vast majority of misdemeanor jury trials in Arizona are for DUI.
The first order of business in a jury trial is both the state and defense have announce whether they are ready to proceed with the trial or not. If the either side is not ready then the court would either entertain a motion to continue. In some circumstances if the state is not being ready the court would dismiss the case. Both sides have to know if they are ready before announce ready, because it can be an ethical problem for a lawyer to announce ready when they are not.
After both parties announce ready the next-order business is to pick a jury. In Arizona misdemeanor charges are decided by a six person jury. Usually an alternate or sometimes in some courts two alternates are also picked. To get to the jury of six people what the court does is summons a number of prospective jurors. That varies by court, sometimes between 100 and 200 people are summonsed because many people do not obey a jury summons. If enough prospective jurors appear and I would say for misdemeanor you need at least 15 prospective jurors then we begin the jury selection process. To do that the court brings all the prospective jurors into the courtroom and the judge, prosecutor and I ask them a whole series of questions designed to see if they have strong feelings one way or another. In the context of a DUI case the questions that could make a difference could be something like have you, family member or close friend ever been charged with DUI or you or family member or close friend ever been a victim of an incident in which it was alleged one of the drivers was DUI ordo you have a strong moral objection to the use of alcohol to the extent it be difficult to be fair and impartial? The question which I think is perhaps the most important one is, you have strong feelings about the charge of driving under the influence to the extent you think you be difficult to be fair and impartial in DUI case? The usual court practice is if some of the jurors answer affirmatively to some of the questions, for example say that they have been convicted of driving DUI, than after the panel as a whole is been asked questions in front of each other, we bring individual jurors back separately to ask them questions outside the presence of the other jurors. This is done because they may very well be more candid with their answers if they don’t have a whole group of strangers listening to them. If somebody indicates that they could not be fair and impartial than either party, the State or me, can move to strike a person for cause by saying that there are not qualified because they’re biased in some way which is called a strike for cause. If the judge grants the motion to strike, the person is no longer part of the process. If the judge denies the motion to strike then the person remains as p prospective.
Eventually enough prospective jurors must remain in the panel for the prosecutor and me to pick the jury. Let’s assume that that’s going to be a six person jury with one alternate, I have the preemptory right and so does the prosecutor to remove two people from the jury panel for basically almost any reason. There are some limitations on this right, and it can’t be done for racial prejudice reasons but basically we can say in our minds, there is something about the person we don’t like and so therefore we think they should be excluded from the jury. I have two peremptory challenges as a so does the prosecutor so for most cases to get the six person jury which would be six people we need eleven people to pick from, six for the final jury, one alternate and then for the two peremptory challenges, four more. So we would need eleven people to pick from. If we have less than eleven people on the panel unless the prosecutor waives one of the peremptory strikes or the judge says we will not have an alternate, we cannot proceed with the trial because we don’t have enough for people to pick from.
The alternate is not designated at the beginning of the trial rather the court waits to essentially the case is over and then at random picks the alternate or alternates. The most common way to pick the alternate is to take cup with seven (or eight if there are two alternates) pieces of paper with numbers 1 to 7 on it the court.
Once the parties have picked the seven or (eight if there are two alternates) jurors the judge empanels them as the jury, put them in the jury box and swears them in as jurors. That is important because once the jury has been sworn in Double Jeopardy attaches which means at that stage of the State can’t dismiss the case if turns out that they’re not ready after all. If the case gets dismissed then for that reason the case gets dismissed with prejudice which means it can’t be prosecuted again. That is another reason why the State has to be very careful about answering ready.
Next the judge reads the jury their preliminary instructions in which you the judge describes basically what the trial procedure is going to be to and how they are to listen to the evidence. The judge may or may not describe the standard of beyond reasonable doubt by which the jury will decide the case and may also describe the elements of the offense however that varies by judge. The judge must give one instructions which I think is one of the most important instructions, namely that they, the jurors have the right to ask their own questions. Back in December, 1994, the Arizona Supreme Court had a very logical thought, namely jurors decide cases not judges and so why shouldn’t jurors have the right to ask questions just the lawyers and the judge. It makes perfect sense and that is why our Supreme Court gave jurors the right to ask questions. Until recently I think Arizona was unique in the union in allowing juror questions however now I think several other states permit it. I think it’s a very important right. Judges tend to want to de-emphasize the right to ask questions by saying something to the effect, “you’re not encouraged to ask large numbers of questions and keep in mind the lawyers know the case better than you or I”. I frankly disagree with that statement and as a part of my opening statement I always like to emphasize the jurors’ right to ask questions. I do so for two reasons, one is because it creates the impression that I have nothing to hide from the jury and ask whatever you want to, and second because the juror’s questions gives me a general idea of what the jurors may be thinking of and how can I answer their thoughts.
Next, after the judges given the initial jury instructions the prosecutor makes an opening statement briefly outlining the prosecutor believes the facts will show as well as taking a brief outline of the law. Next, I can make an opening statement or I can reserve until the end of their case or I can waive and never make an opening statement. I always make an opening statement because jury expects you to and it gives me a chance to get up there and say something with confidence even though I may not have much of a defense. I want to give the jury I am confident about our case and the trial even though we may not have a good defense.
After that the state proceeds with the testimony of their witnesses. In a DUI case that would usually consist of an arresting officer, sometimes other officers who assisted in the investigation, possibly civilian witnesses and if there was an accident, victims. If there is a blood test someone would have to testify to the testing process and results. If there was breath testing some prosecutors would have an expert witness to come in and testify about the operating condition of the breath testing machine as well as the test results.
The procedure for questioning the State’s witnesses is the prosecutor asks questions first, I then-cross examine the witness and if I get into a new subject area on cross examination which was not covered on the prosecutor’s direct examination, the prosecutor then has an opportunity ask questions about that new subject area on redirect examination.
Arizona has what is known “wide-open cross examination” which means that any witness can be asked any question upon which they would have relevant information to testify about. In most states a witness’s testimony is limited to what they testified to on direct examination however not so in Arizona. Lawyer have to be careful about this because you can suddenly be hearing your witness testifying about something you did not anticipate and did not discuss with the witness beforehand. This can be good or bad for either side’s case. When I can I like to use it to get one police officer to make another police officer look bad about something they did or say.
Once the State’s witnesses have concluded all of their testimony the prosecutor will say the State rests. I then make a motion for directed verdict in which I contend the State has presented so little evidence that the jury cannot logically convict my client. These motions are rarely granted however if the motion is granted a directed verdict of not guilty is entered on one or more of the charges and so that is the end of the trial on those charges.
Next, we may or may not present witnesses for the defense. The judge must tell the jury that the defendant is not required present evidence or testify. The judge must instruct the jury that that’s a right all people have not to testify and that the jury can’t infer anything against the defendant for not testifying and they cannot let that the exercise of that right affect their deliberations in any way. My feeling is with defendants in DUI cases they shouldn’t testify unless they got something important to say unless only some necessary evidence can only come from the defendant. For example, if what my client says can directly contradict a police officer and that was on an important point then we would consider having my client testify but unless there’s something important to have the client testify to what I think it’s always better not to testify. The right not to testify is always my client’s right and they are the ones to ultimately decide whether to testify or not. A reason not to testify is testifying is a lot harder than it looks. When you see the state’s witnesses such as police officers testify it looks easy however what you do not realize they trained on how to testify so to make it look very natural. Clients can be given advice on how to testify but that is not the same as going through the training program the police do. The client can be very well be testifying truthfully however they can get easily tripped up because they’re not used to testifying so unless we have a good reason to testify, I think not testifying in a DUI case is usually the better choice.
After we have presented our witnesses, if any, I say to the judge, “defense rests.” The prosecutor then has a limited right for rebuttal testimony. Rebuttal testimony is to allow the prosecutor to introduce evidence to contradict anything we brought up for the first time is a part of our case. Rebuttal always meant to be very limited however prosecutors love to try to retrial the whole State’s case as a part of rebuttal. I am very aggressive in challenging rebuttal evidence because I do want the prosecutor to simply to their whole case again. If we didn’t present any defense evidence and there’s nothing to rebut and so the prosecutor cannot present rebuttal evidence.
Once the evidence has ended the next step is for the judge to instruct the jury as to the law and procedure they are to follow when deciding the case. The judge’s closing instructions include the elements of the offense, meaning what constitutes DUI and the beyond reasonable doubt standard the jury must decide the case by. What that means from my perspective is the evidence must eliminate all real possibility my client is not guilty before the jury can come back with a verdict of guilty. The judge also instructs the jury that they have to decide the case unanimously one way or another.
After that then the prosecutor makes their first closing argument. After that I make my closing argument and then the prosecutor is right to make a second closing argument. The prosecutor has the right to make two arguments because the burden they have of trying to prove a case beyond a reasonable doubt is a very heavy burden.
Once closing arguments have been concluded the judge choices the alternate(s) at random and the jury goes to the jury room to decide the case.
The jury decides though charges which are jury eligible, such as DUI. Sometimes we try additional charges besides DUI that arose from the same incident but those charges not jury eligible offenses For example, Excessive Speeding, going 20 miles an hour over the speed limit, is a criminal charge but is not a jury eligible offense so the judge would decide that alone charge alone. Also there could be civil charges such as, Improper Right Turn, and those are decided by the judge.
The jury can take as long as they want to decide their verdicts. The verdicts must be unanimous, one way or another on all the jury eligible charges. Sometimes they cannot do that. For example, if there’s a DUI charge as well as a .08% charge, they would have to decide unanimously each charge separately. A couple of possibilities are, guilty unanimously on all charges, or guilty on one charge and not guilty on the others. Another possibility is that the jury decide guilty on the DUI but couldn’t decide the .08% charge. If that happens, the case then conceivably there can be another trial on just the .08% charge because the charges must either be decided on dismissed at some point.
If at least one of the charges is guilty then in misdemeanor charge we normally proceed immediately to the sentencing. For misdemeanors presentence reports are not required as they are in felony cases. The judge then sentences the defendant to whatever the sentence the judge thinks is appropriate. For DUI cases that is often the mandatory minimum sentence for whatever DUI charge the defendant is convicted of.
This then is a basic outline of the misdemeanor jury process in Arizona as I describe my clients before we begin the trial as explained in the context of a DUI case.
If you have any questions about this please call or email me.