Criminal vs. civil jury trials: what changes for jurors

When you're seated on a jury, one of the first things you'll learn is whether the case is criminal or civil. The daily experience is similar in both, but the question you answer, the standard you apply and the rules around the verdict differ in important ways. This guide compares the two, using the federal rules and official juror materials.

What each kind of case is about

The federal Handbook for Trial Jurors describes the two classes of cases:

• Criminal cases are those in which individuals or organizations are charged with breaking criminal laws. The handbook's examples include federal tax and narcotics violations, mail theft and counterfeiting. The government brings the case, and the person charged is the defendant.
• Civil cases are suits in which people who disagree over their rights and duties ask the court to settle the matter. The handbook's example is a broken contract. The person suing is the plaintiff, and the person being sued is the defendant.

How a criminal case gets to trial

According to the handbook, criminal charges are brought by an indictment, a written accusation by a grand jury, or by an information, a charge filed by the prosecutor. At the arraignment, the defendant pleads guilty or not guilty. A guilty plea means no trial. A not-guilty plea leads to trial. See grand jury vs. trial jury.

In a civil case, the plaintiff files a complaint and the defendant files an answer. Together these "pleadings" frame the issues the jury will decide.

The standard of proof

This is the biggest difference.

• Criminal: the government must prove guilt beyond a reasonable doubt. The defendant is presumed innocent. The handbook says the judge will instruct you on this in every criminal case.
• Civil: the plaintiff must usually prove its case by a preponderance of the evidence, meaning more likely than not. The U.S. Courts call this a much lower standard, because no one's freedom is at stake. Some civil claims use an intermediate standard, "clear and convincing evidence," and the judge will tell you if one applies.

What the jury decides

• Criminal: guilty or not guilty on each count separately. The handbook says you may find a defendant not guilty of all charges, guilty of all, or guilty of some and not guilty of others.
• Civil: whether the defendant is liable and, often, how much in damages to award. Some civil juries answer a list of specific factual questions, called a special verdict.

Sentencing is not the jury's job

In federal criminal cases, the handbook says sentencing is solely the judge's responsibility, and the jury must not consider possible punishment when deciding guilt. (A few states have juries take part in sentencing in certain cases, and capital cases have special procedures. The judge will explain if that applies.)

Jury size

• Federal civil: a jury must begin with at least 6 and no more than 12 members (Federal Rule of Civil Procedure 48).
• Federal criminal: a jury consists of 12 members under Criminal Rule 23(b). Before the verdict, the parties may agree in writing, with the court's approval, to a smaller jury. The court may also permit 11 jurors to return a verdict if one juror is excused for good cause after deliberations begin.
• State courts vary. Virginia's answer book says that in civil cases, 11 jurors are called when damages of $25,000 or less are claimed and 13 when more is claimed, and each side then removes three names. Criminal panel sizes depend on whether the case is a misdemeanor or a felony.

Unanimity

• Federal criminal: the verdict must be unanimous (Rule 31).
• Federal civil: unanimous, returned by at least 6 jurors, unless the parties agree otherwise (Rule 48).
• State civil cases may allow non-unanimous verdicts in some states. Your judge's instructions control.

Peremptory challenges

The number of jurors each side can remove without a reason differs by case type in federal court:

Case	Each side / split
Capital criminal	20 each
Felony	6 government, 10 defense
Misdemeanor	3 each
Civil	3 each

These come from Criminal Rule 24(b) and 28 U.S.C. § 1870. See what happens at jury selection.

The defendant's right not to testify

In a criminal case, the defendant has a constitutional right not to testify, and the judge will instruct you not to hold that against them. In a civil case, either party can generally be called as a witness.

Alternates

Criminal trials, especially longer ones, commonly use alternate jurors. The handbook notes that alternates may be chosen to replace jurors who become ill. Civil juries in federal court work differently: because Rule 48 allows a civil jury of 6 to 12, all seated jurors typically deliberate.

What stays the same

Whatever the case type:

• the judge decides the law and you decide the facts;
• evidence is testimony and admitted exhibits only;
• you must not research the case or discuss it until deliberations;
• the stages of a trial follow the same basic order.

Frequently asked questions

Which is more common? It depends on the court. Ask the jury office about its typical mix if you're curious.

Can the same facts lead to both kinds of case? Yes. A single incident can bring criminal charges and a civil lawsuit, decided by different juries under different standards.

Will I know the case type before I'm chosen? Usually. The judge describes the case briefly at the start of jury selection and introduces the parties and lawyers.

Key takeaways

• Criminal cases require proof beyond a reasonable doubt, and civil cases usually a preponderance of the evidence.
• Federal criminal verdicts must be unanimous, and civil ones too unless the parties agree otherwise.
• Juries don't decide federal criminal sentences.
• Jury size and peremptory challenges differ by case type, and state rules can differ from federal ones.