December 23, 2004

Devries Column

Jury trials are available for criminal cases involving serious offenses

This week’s question:
I followed the Scott Peterson double-murder trial with great interest, and I especially appreciated the jury process in both the guilt phase and the penalty phase. I recently went through a divorce, however, and my attorney told me that I could not have a jury in Family Court. Was she right and if so, why is this true? Although my life was not on the line, my wife and I had several million dollars in property to divide, serious child custody issues, and this case was very important to me. I wanted to have a jury decide and not just a judge.

Bradley B.
Almaden Valley

Dear Bradley:
Unfortunately, Bradley, your attorney was right. A jury trial is not available in every kind of case, even though your case may be of extreme importance to you.

The starting point in looking at the possibility of a jury trial is the United States Constitution, ratified in 1788. (By the way, my family and I recently had the opportunity to see the original U.S. Constitution, along with the Declaration of Independence and Bill of Rights ratified in 1791, over the Thanksgiving holiday at the National Archives building in Washington, D.C. This is an incredible experience!)

The United States Constitution Sixth Amendment provides:
“In all criminal prosecutions, the accused shall enjoy the right to speedy and public trial, by an impartial jury of the State and district wherein the crime shall have been committed...”

State and federal cases and statutes adopted after the Sixth Amendment was ratified have dealt with a number of questions involving jury trials, such as:

- What is the right number of jurors in any given case?
- Does the verdict of the jury need to be unanimous?
- What is the difference between “serious” and “petty” offenses?
- What is the meaning of “public” trial?
- What is the correct burden of proof?

One also needs to look at the California Constitution and the difference between “actions at law” and “actions in equity.” Basically, most divorce cases are considered an action in a court of equity, and a jury trial is not ordinarily available in a civil case of that nature.

Jury trials are available, however, in most criminal cases, especially for “serious” cases. The difference between “serious” and “petty” or non-serious cases is often based upon the potential sentence. Any offense that carries a potential sentence of more than six months is generally regarded as a “serious” offense, so that a jury trial must be afforded on demand, and this is true even in cases where the actual sentence imposed is less than six months.

Although attorneys are usually excused by one side or another during the jury selection process, I had the opportunity to serve as a juror in a criminal case a few years ago. The defendant was charged with attempted petty theft.

Even though the monetary amount involved was not significant, the defendant in that case had a right to a jury trial and asked for a jury to decide guilt or innocence in her case. Even though 12 of us had to take time out of our busy lives to serve on that jury, the experience taught me once again a very valuable lesson. That lesson is summarized in one simple but profound concept: Our right to a trial by jury, if it applies to our case, is a bedrock of our system of justice. And this right to a trial by jury, again if it applies to our case, must not be tampered with by anyone.

I hope this answers your question, Bradley. And best wishes for a great holiday season!

Donald J. DeVries
Almaden Valley

Donald J. DeVries is an attorney practicing law in Almaden Valley. If you would like him to answer your question in his next Almaden Times column, you can reach him by email at don@almadenvalleylawyers.com, fax at (408)268-6502, telephone at (408)268-9500, or mail at, 6475 Camden Avenue, Suite 200, San Jose, CA 95120. Your matters are personal and private, so of course, DeVries will not disclose your identity or any details about your situation. Visit his web site at www.almadenvalleylawyers.com. Almaden Times columns since 1986 are available there. DeVries writes this column to provide you with general information about important legal matters affecting California residents—not to give you legal advice about your specific matter. No attorney-client relationship is created by these articles. The law is complex and constantly changing and varies from state to state. So you should consult an attorney before taking any action that would affect your personal or business matters.