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RIGHT TO TRIAL BY IMPARTIAL JURY

Jury Trial

By the time the United States Constitution and the Bill of Rights were drafted and ratified, the institution of trial by jury was almost universally revered, so revered that its history had been traced back to Magna Carta.42 The jury began in the form of a grand or presentment jury with the role of inquest and was started by Frankish conquerors to discover the King’s rights. Henry II regularized this type of proceeding to establish royal control over the machinery of justice, first in civil trials and then in criminal trials. Trial by petit jury was not employed at least until the reign of Henry III, in which the jury was first essentially a body of witnesses, called for their knowledge of the case; not until the reign of Henry VI did it become the trier of evidence. It was during the Seventeenth Century that the jury emerged as a safeguard for the criminally accused.43 Thus, in the Eighteenth Century, Blackstone could commemorate the institution as part of a “strong and two–fold barrier . . . between the liberties of the people and the prerogative of the crown” because “the truth of every accusation . . . . [must] be confirmed by the unanimous suffrage of twelve of his equals and neighbors indifferently chosen and superior to all suspicion.”44 The right was guaranteed in the constitutions of the original 13 States, was guaranteed in the body of the Constitu[p.1407]tion45 and in the Sixth Amendment, and the constitution of every State entering the Union thereafter in one form or another protected the right to jury trial in criminal cases.46 “Those who emigrated to this country from England brought with them this great privilege ‘as their birthright and inheritance, as a part of that admirable common law which had fenced around and interposed barriers on every side against the approaches of arbitrary power.”’47

the citizen to one judge or to a group of judges. Fear of unchecked power . . . found expression in the criminal law in this insistence upon community participation in the determination of guilt or innocence.”48

Because “a general grant of jury trial for serious offenses is a fundamental right, essential for preventing miscarriages of justice and for assuring that fair trials are provided for all defendants,” the Sixth Amendment provision is binding on the States through the due process clause of the Fourteenth Amendment.49 But inasmuch as it cannot be said that every criminal trial or any particular trial which is held without a jury is unfair,50 it is possible for[p.1408]a defendant to waive the right and go to trial before a judge alone.51

The Attributes of the Jury.—The Attributes and Function of the Jury.-It was previously the position of the Court that the right to a jury trial meant “a trial by jury as understood and applied at common law, and includes all the essential elements as they were recognized in this country and England when the Constitution was adopted.”52 It had therefore been held that this included trial by a jury of 12 persons53 who must reach a unanimous verdict54 and that the jury trial must be held during the first court proceeding and not de novo at the first appellate stage.55 However, as it extended the guarantee to the States, the Court indicated that at least some of these standards were open to re–examination,56 and in subsequent cases it has done so. In Williams v. Florida,57 the Court held that the fixing of jury size at 12 was “a historical accident” which, while firmly established when the Sixth Amendment was proposed and ratified, was not required as an attribute of the jury system, either as a matter of[p.1409]common–law background58 or by any ascertainment of the intent of the framers.59 Being bound neither by history nor framers’ intent, the Court thought the “relevant inquiry . . . must be the function that the particular feature performs and its relation to the purposes of the jury trial.” The size of the jury, the Court continued, bore no discernable relationship to the purposes of jury trial—the prevention of oppression and the reliability of factfinding. Furthermore, there was little reason to believe that any great advantage accrued to the defendant by having a jury composed of 12 rather than six, which was the number at issue in the case, or that the larger number appreciably increased the variety of viewpoints on the jury. A jury should be large enough to promote group deliberation, free from outside attempts at intimidation, and to provide a fair possibility that a cross–section of the community will be represented on it, but the Court did not speculate whether there was a minimum permissible size and it recognized the propriety of conditioning jury size on the seriousness of the o60

When the unanimity rule was reconsidered, the division of the Justices was such that different results were reached for state and federal courts.61 Applying the same type of analysis as that used in Williams, four Justices acknowledged that unanimity was a common–law rule but observed for the reasons reviewed in Williams that it seemed more likely than not that the framers of the Sixth Amendment had not intended to preserve the requirement within the term “jury.” Therefore, the Justices undertook a functional[p.1410]analysis of the jury and could not discern that the requirement of unanimity materially affected the role of the jury as a barrier against oppression and as a guarantee of a commonsense judgment of laymen. The Justices also determined that the unanimity requirement is not implicated in the constitutional requirement of proof beyond a reasonable doubt, and is not necessary to preserve the feature of the requisite cross–section representation on the jury.62 Four dissenting Justices thought that omitting the unanimity requirement would undermine the reasonable doubt standard, would permit a majority of jurors simply to ignore those interpreting the facts differently, and would permit oppression of dissenting minorities.63 Justice Powell, on the other hand, thought that unanimity was mandated in federal trials by history and precedent and that it should not be departed from; however, because it was the due process clause of the Fourteenth Amendment which imposed the basic jury–trial requirement on the States, he did not believe that it was necessary to impose all the attributes of a federal jury on the States. He therefore concurred in permitting less–than–unanimous verdicts in state courts.64

Supplement: [P. 1410, add to text following n.64:]

Certain functions of the jury are likely to remain consistent between the federal and state court systems. For instance, the requirement that a jury find a defendant guilty beyond a reasonable doubt, which had already been established under the Due Process Clause,1 has been held to be a standard mandated by the Sixth Amendment.2 The Court further held that the Fifth Amendment Due Process Clause and the Sixth Amendment require that a jury find a defendant guilty of every element of the crime with which he is charged, including questions of mixed law and fact.3 Thus, a district court presiding over a case of providing false statements to a federal agency in violation of 18 U.S.C. Sec. 1001 erred when it took the issue of the “materiality” of the false statement away from the jury.4 Later, however, the Court backed off from this latter ruling, holding that failure to submit the issue of materiality to the jury in a tax fraud case can constitute harmless error.5

Criminal Proceedings to Which the Guarantee Applies.—Although the Sixth Amendment provision does not differentiate among types of criminal proceedings in which the right to a jury trial is or is not present, the Court has always excluded petty offenses from the guarantee in federal courts, defining the line between petty and serious offenses either by the maximum punishment available65 or by the nature of the offense.66 This line has been adhered to in the application of the Sixth Amendment to the States67 and the Court has now held “that no offense can be deemed ‘petty’ for purposes of the right to trial by jury where im[p.1411]prisonment for more than six months is authorized.”68 A defendant who is prosecuted in a single proceeding for multiple petty offenses, however, does not have a constitutional right to a jury trial, even if the aggregate of sentences authorized for the offense exceeds six months.6The Court has also made some changes in the meaning attached to the term “criminal proceeding.” Previously, it had been applied only to situations in which a person has been accused of an offense by information or presentment.69 Thus, a civil action to collect statutory penalties and punitive damages, because not technically criminal, has been held to implicate no right to jury trial.70 But more recently the Court has held denationalization to be punishment which Congress may not impose without adhering to the guarantees of the Fifth and Sixth Amendments,71 and the same type of analysis could be used with regard to other sanctions. In a long line of cases, the Court had held that no constitutional right to jury trial existed in trials of criminal contempt.72 But in Bloom v. Illinois,73 the Court announced that “[o]ur deliberations have convinced us . . . that serious contempts are so nearly like other serious crimes that they are subject to the jury trial provisions of the Constitution . . . and that the traditional rule is constitutionally infirm insofar as it permits other than petty contempts to be tried without honoring a demand for a jury trial.” At least in state systems and probably in the federal system as well, there is no constitutional right[p.1412]to a jury trial in juvenile proceedings.74 In capital cases there is no requirement that a jury impose the death penalty75 or make the factual findings upon which a death sentence must rest.76


Footnotes

42 Historians no longer accept this attribution. Thayer, The Jury and Its Development, 5Harv. L. Rev. 249, 265 (1892), and the Court has noted this. Duncan v. Louisiana, 391 U.S. 145, 151 n.16 (1968) .
43 W. Forsyth, History of Trial by Jury (London: 1852).
44 W. Blackstone, Commentaries on the Laws of England *349–*350 (T. Cooley 4th ed. 1896). The other of the “two–fold barrier” was, of course, indictment by grand jury.
45 In Art III, § 2.
46 Duncan v. Louisiana, 391 U.S. 145, 153 (1968) .
47 Thompson v. Utah, 170 U.S. 343, 349–50 (1898) , quoting 3 J. Story, Commentaries on the Constitution of the United States 1773 (1833).
48 Duncan v. Louisiana, 391, U.S. 145, 155–56 (1968). At other times the function of accurate factfinding has been emphasized. E.g., McKeiver v. Pennsylvania, 403 U.S. 528, 543 (1971) . While federal judges may comment upon the evidence, the right to a jury trial means that the judge must make clear to the jurors that such remarks are advisory only and that the jury is the final determiner of all factual questions. Quercia v. United States, 289 U.S. 466 (1933) .
49 Duncan v. Louisiana, 391 U.S. 145, 158–59 (1968) .
50 Id. at 159. Thus, state trials conducted before Duncan was decided were held to be valid still. DeStefano v. Woods, 392 U.S. 631 (1968) .
51 Patton v. United States, 281 U.S. 276 (1930) . As with other waivers, this one must be by the express and intelligent consent of the defendant. A waiver of jury trial must also be with the consent of the prosecution and the sanction of the court. A refusal by either the prosecution or the court to defendant’s request for consent to waive denies him no right since he then gets what the Constitution guarantees, a jury trial. Singer v. United States, 380 U.S. 24 (1965) . It may be a violation of defendant’s rights to structure the trial process so as effectively to encourage him “needlessly” to waive or to penalize the decision to go to the jury, but the standards here are unclear. Compare United States v. Jackson, 390 U.S. 570 (1968) , with Brady v. United States, 397 U.S. 742 (1970) , and McMann v. Richardson, 397 U.S. 759 (1970) , and see also State v. Funicello, 60 N.J. 60, 286 A.2d 55 (1971), cert. denied, 408 U.S. 942 (1972) .
52 Patton v. United States, 281 U.S. 276, 288 (1930) .
53 Thompson v. Utah, 170 U.S. 343 (1898) . Dicta in other cases was to the same effect. Maxwell v. Dow, 176 U.S. 581, 586 (1900) ; Rassmussen v. United States, 197 U.S. 516, 519 (1905; Patton v. United States, 281 U.S. 276, 288 (1930) .
54 Andres v. United States, 333 U.S. 740 (1948) . See dicta in Maxwell v. Dow, 176 U.S. 581, 586 (1900) ; Patton v. United States, 281 U.S. 276, 288 (1930) .
55 Callan v. Wilson, 127 U.S. 540 (1888) . Preserving Callan, as being based on Article II, § 2, as well as on the Sixth Amendment and being based on a more burdensome procedure, the Court in Ludwig v. Massachusetts, 427 U.S. 618 (1976) , approved a state two–tier system under which persons accused of certain crimes must be tried in the first instance in the lower tier without a jury and if convicted may appeal to the second tier for a trial de novo by jury. Applying a due process standard, the Court, in an opinion by Justice Blackmun, found that neither the imposition of additional financial costs upon a defendant, nor the imposition of increased psychological and physical hardships of two trials, nor the potential of a harsher sentence on the second trial impermissibly burdened the right to a jury trial. Justices Stevens, Brennan, Stewart, and Marshall dissented. Id. at 632. See also North v. Russell, 427 U.S. 328 (1976) .
56 Duncan v. Louisiana, 391 U.S. 145, 158 n.30 (1968) ; DeStefano v. Woods, 392 U.S. 631, 632–33 (1968) .
57 399 U.S. 78 (1970) . Justice Marshall would have required juries of 12 in both federal and state courts, id. at 116, while Justice Harlan contended that the Sixth Amendment required juries of 12, although his view of the due process standard was that the requirement was not imposed on the States. Id. at 117.
58 The development of 12 as the jury size is traced in Williams, 399U.S. at 86–92 399U.S. at 86–92.
59 Id. at 92–99. While the historical materials were scanty, the Court thought it more likely than not that the framers of the Bill of Rights did not intend to incorporate into the word “jury” all its common–law attributes. This conclusion was drawn from the extended dispute between House and Senate over inclusion of a “vicinage” requirement in the clause, which was a common law attribute, and the elimination of language attaching to jury trials their “accustomed requisites.” But see id. at 123 n.9 (Justice Harlan).
60 Id. at 99–103. In Ballew v. Georgia, 435 U.S. 223 (1978) , the Court unanimously, but with varying expressions of opinion, held that conviction by a unanimous five–person jury in a trial for a nonpetty offense deprived an accused of his right to trial by jury. While readily admitting that the line between six and five members is not easy to justify, the Justices believed that reducing a jury to five persons in nonpetty cases raised substantial doubts as to the fairness of the proceeding and proper functioning of the jury to warrant drawing the line at six.
61 Apodaca v. Oregon, 406 U.S. 404 (1972) , involved a trial held after decision in Duncan v. Louisiana, 391 U.S. 145 (1968) , and thus concerned whether the Sixth Amendment itself required jury unanimity, while Johnson v. Louisiana, 406 U.S. 356 (1972) , involved a pre–Duncan trial and thus raised the question whether due process required jury unanimity. Johnson held, five–to–four, that the due process requirement of proof of guilt beyond a reasonable doubt was not violated by a conviction on a nine–to–three jury vote in a case in which punishment was necessarily at hard labor.
62 Apodaca v. Oregon, 406 U.S. 404 (1972) (Justices White, Blackmun, and Rehnquist, and Chief Justice Burger). Justice Blackmun indicated a doubt that any closer division than nine–to–three in jury decisions would be permissible. Id. at 365.
63 Id. at 414, and Johnson v. Louisiana, 406 U.S. 356, 380, 395, 397, 399 (1972) (Justices Douglas, Brennan, Stewart, and Marshall).
64 Id. at 366. Burch v. Louisiana, 441 U.S. 130 (1979) , however, held that conviction by a non–unanimous six–person jury in a state criminal trial for a nonpetty offense, under a provision permitting conviction by five out of six jurors, violated the right of the accused to trial by jury. Acknowledging that the issue was “close” and that no bright line illuminated the boundary between permissible and impermissible, the Court thought the near–uniform practice throughout the Nation of requiring unanimity in six–member juries required nullification of the state policy. See also Brown v. Louisiana, 447 U.S. 323 (1980) (Burch held retroactive).
65 District of Columbia v. Clawans, 300 U.S. 617 (1937) ; Schick v. United States, 195 U.S. 65 (1904) ; Callan v. Wilson, 127 U.S. 540 (1888) .
66 District of Columbia v. Colts, 282 U.S. 63 (1930) .
67 Duncan v. Louisiana, 391 U.S. 145, 159–62 (1968) ; Dyke v. Taylor Implement Mfg. Co., 391 U.S. 216 (1968) .
68 Baldwin v. New York, 399 U.S. 66, 69 (1970) . Justices Black and Douglas would have required a jury trial in all criminal proceedings in which the sanction imposed bears the indicia of criminal punishment. Id. at 74 (concurring); Cheff v. Schnackenberg, 384 U.S. 373, 384, 386 (1966) (dissenting). Chief Justice Burger and Justices Harlan and Stewart objected to setting this limitation at six months for the States, preferring to give them greater leeway. Baldwin, supra, at 76; Williams v. Florida, 399 U.S. 78, 117, 143 (1970) (dissenting). No jury trial was required when the trial judge suspended sentence and placed defendant on probation for three years. Frank v. United States, 395 U.S. 147 (1969) . There is a presumption that offenses carrying a maximum imprisonment of six months or less are “petty,” although it is possible that such an offense could be pushed into the “serious” category if the legislature tacks on onerous penalties not involving incarceration. No jury trial is required, however, when the maximum sentence is six months in jail, a fine not to exceed $1,000, a 90–day driver’s license suspension, and attendance at an alcohol abuse education course. Blanton v. City of North Las Vegas, 489 U.S. 538, 542– 44 (1989).
6 Lewis v. United States, 518 U.S. 322 (1996) .
69 United States v. Zucker, 161 U.S. 475, 481 (1896) .
70 Id. See also Oceanic Steam Navigation Co. v. Stranahan, 214 U.S. 320 (1909) ; Hepner v. United States, 213 U.S. 103 (1909) .
71 Kennedy v. Mendoza–Martinez, 372 U.S. 144 (1963) .
72 E.g., Green v. United States, 356 U.S. 165, 183–87 (1958) , and cases cited; United States v. Burnett, 376 U.S. 681, 692–700 (1964) , and cases cited. A Court plurality in Cheff v. Schnackenberg, 384 U.S. 373 (1966) , held, asserting the Court’s supervisory power over the lower federal courts, that criminal contempt sentences in excess of six months imprisonment could not be imposed without a jury trial or adequate waiver.
73 391 U.S. 194, 198 (1968) . Justices Harlan and Stewart dissented. Id. at 215. As in other cases, the Court drew the line between serious and petty offenses at six months, but because, unlike other offenses, no maximum punishments are usually provided for contempts it indicated the actual penalty imposed should be looked to. Id. at 211. And see Dyke v. Taylor Implement Mfg. Co., 391 U.S. 216 (1968) .

Supplement: [P. 1411, add to n.73:]

The distinction between criminal and civil contempt may be somewhat more elusive. International Union, UMW v. Bagwell, 512 U.S. 821 (1994) (fines levied on the union were criminal in nature where the conduct did not occur in the court’s presence, the court’s injunction required compliance with an entire code of conduct, and the fines assessed were not compensatory).

74 McKeiver v. Pennsylvania, 403 U.S. 528 (1971) .
75 Spaziano v. Florida, 468 U.S. 447, 459 (1984) .
76 Hildwin v. Florida, 490 U.S. 638, 640–41 (1989) (per curiam) (“the Sixth Amendment does not require that the specific findings authorizing the imposition of the sentence of death be made by the jury”); Clemons v. Mississippi, 494 U.S. 738 (1990) (appellate court may reweigh aggravating and mitigating factors and uphold imposition of death penalty even though jury relied on an invalid aggravating factor); Walton v. Arizona, 497 U.S. 639 (1990) (judge may make requisite findings as to existence of aggravating and mitigating circumstances).

Supplement Footnotes

1 See In re Winship, 397 U.S. 358, 364 (1970) .
2 Sullivan v. Louisiana, 508 U.S. 275 (1993) .
3 United States v. Gaudin, 515 U.S. 506 (1995) .
4 Gaudin, 515 U.S. at 523.
5 Neder v. United States, 527 U.S. 1 (1999) .
6 Lewis v. United States, 518 U.S. 322 (1996) .
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