Section 27.3 Role of the Jury

• Library: Criminal Practice 2012 Supp

C. (§27.3) Role of the Jury

Section 557.036, RSMo Supp. 2004, determines how a jury will participate in the trial of a criminal prosecution. In 2003, S.B. 5 amended § 557.036 by making two stages to a trial. The first stage of the trial is the determination of whether the defendant is guilty or not guilty of the submitted offense. During this first stage the punishment issue is not submitted to the jury. The second stage of the trial takes effect only if the jury determines that the defendant is guilty of the submitted offense, and the assessment of the punishment is done during this stage. At this second stage the jury will hear evidence that supports or mitigates the statutorily authorized punishment and declare the defendant’s punishment. Section 557.036.3. Evidence may consist of reiterating or detailing the nature and circumstances of the offense, victim impact evidence, the defendant’s history, and, possibly, character evidence. But under certain circumstances during the second stage of the trial, the court and not the jury will assess the punishment. These include when:

· the defendant requests in writing before voir dire that the court assess the punishment if found guilty; or

· the defendant is proven to be a prior offender, a persistent offender, a dangerous offender, a persistent misdemeanor offender under § 558.016, RSMo Supp. 2004, a persistent sexual offender under § 558.018, RSMo 2000, or a predatory sexual offender under § 558.018.

Further, if the jury cannot reach a decision of the defendant’s punishment, the court will assess the punishment. Section 557.036.4.

The bifurcation of the criminal jury trial requires the use of additional instructions, which can be found at MAI-CR 3d 305.01–305.07. These instructions are used only when the defendant has been found guilty during the first phase of the trial. The Notes on Use for MAI-CR 3d 305.02 state that, before the second stage of the trial begins, the court should make a determination of whether the defendant, the prosecutor, or both intend to introduce evidence during the second stage. If so, this instruction on the order of proceeding is to be given immediately after the first instruction of MAI-CR 3d 305.01, which outlines the punishment limits prescribed by law for the offense. If no evidence is presented, MAI-CR 3d 305.02 is not given, and the court gives the verdict mechanics found in MAI-CR 3d 305.03. The last instruction to the jury is MAI-CR 3d 305.04, which deals with the argument...