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. Learn more about jury trial in Massachusetts in this report.

1. 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

2. 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:

3. “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

4. 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

5. 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

6. 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

7. 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.

8. 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