Amdt6.4.2 Historical Background on Right to Trial by Jury

Sixth Amendment:

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 defence.

The use of juries in criminal cases dates back to medieval England.1 By the time of the founding, the right to trial by jury was well-recognized as a safeguard against the arbitrary exercise of power.2 William Blackstone, in eighteenth century commentary familiar to the Framers, described the right as a bedrock guarantee of English criminal procedure:

Our law has therefore wisely placed this strong and two-fold barrier, of a presentment and a trial by jury, between the liberties of the people, and the prerogative of the crown. . . . [T]he founders of the English law have, with excellent forecast, contrived, that . . . the truth of every accusation, whether preferred in the shape of indictment, information, or appeal, should afterwards be confirmed by the unanimous suffrage of twelve of his equals and neighbours, indifferently chosen and superior to all suspicion.3

Most colonial charters protected the right to jury trial by guaranteeing colonists the enjoyment of the “liberties and immunities of Englishmen.” 4 The constitutions of each of the original thirteen states also guaranteed the right.5

During colonial times, “[r]oyal interference with the jury trial was deeply resented.” 6 Such interference took the form of numerous exceptions to the accused’s right to trial by jury.7 Many of the exceptions were for minor offenses, but some “bordered on serious felonies and were punished with appropriate severity.” 8 As the Framers debated adding a Bill of Rights to the original Constitution, concerns surfaced that the jury trial provision of Article III offered the accused inadequate protection.9 Debate focused, in particular, over whether to build out the constitutional guarantee by including, in what eventually became the Sixth Amendment, a vicinage requirement (that is, a requirement that the jury be drawn locally)10 and language entitling the accused to strike potential jurors.11 Criminal jury trial procedure took a variety of forms in the colonies,12 which complicated the debate: representatives of some colonies were wary of procedural mandates that, if too specific, might clash with existing practices at home.13 The language that was ultimately ratified as the Sixth Amendment jury trial provision represents an apparent compromise between the desire to bolster what was seen as an essential guarantee and the desire to leave the language capacious enough to embrace the range of colonial practices.14

John H. Langbein et al., History of the Common Law 59–60 (2009) ( “When the Fourth Lateran Council of 1215 destroyed the ordeals, a different mode of proof had to be devised. Jury trial was already in use in English criminal procedure in some exceptional situations, as an option available to a defendant who wished to avoid trial by battle or by ordeal. The path of inclination for the English was thus to extend jury procedure to fill the enormous gap left by the abolition of the ordeals.” ); Paul Marcus et al., Rights of the Accused under the Sixth Amendment 47 (2d ed. 2016) ( “In the English common law, the right to a jury trial in criminal cases developed in response to the law’s need to abandon the old trials by ordeal.” ); see Duncan v. Louisiana, 391 U.S. 145, 151 (1968) ( “[B]y the time our Constitution was written, jury trial in criminal cases had been in existence in England for several centuries and carried impressive credentials traced by many to Magna Carta.” ); Francis H. Heller, The Sixth Amendment 6–7 (1951). The once-widespread notion that Magna Carta recognized the right to trial by jury in criminal cases has been discredited. Duncan, 391 U.S. at 151 n.16; Felix Frankfurter & Thomas G. Corcoran, Petty Federal Offenses and the Constitutional Guaranty of Trial by Jury, 39 Harv. L. Rev. 917, 922 (1926) ( “That the modern institution of trial by jury derives from Magna Carta is one of the most revered of legal fables.” ); cf. Heller, supra note 1, at 15 ( “Considering the almost religious veneration accorded to that document [Magna Carta] by the great majority of the people both in England and in this country, it is more important to recognize the fact that our ancestors associated trial by jury with this renowned mainspring of liberty than to insist that in so doing they were guilty of historical error.” ). back
Duncan, 391 U.S. at 151; Williams v. Florida, 399 U.S. 78, 87 (1970). back
4 W. Blackstone, Commentaries on the Laws of England 343 (1769); see United States v. Wood, 299 U.S. 123, 138 (1936) ( “Undoubtedly, as we have frequently said, the framers of the Constitution were familiar with Blackstone’s Commentaries. Many copies of the work had been sold here and it was generally regarded as the most satisfactory exposition of the common law of England.” ). back
Frankfurter & Corcoran, supra note 1 at 934–37; Heller, supra note 1, at 14. back
Duncan, 391 U.S. at 153. back
Id. at 152. back
Frankfurter & Corcoran, supra note 1 at 933 ( “The settled practice in which the founders of the American colonies grew up reserved for the justices innumerable cases in which the balance of social convenience, as expressed in legislation, insisted that proceedings be concluded speedily and inexpensively.” ). back
Id. at 927. back
Williams v. Florida, 399 U.S. 78, 93 (1970); Heller, supra note 1 at 25. back
Williams, 399 U.S. at 93 n.35 ( “Technically, ‘vicinage’ means neighborhood, and ‘vicinage of the jury’ meant jury of the neighborhood or, in medieval England, jury of the county.” ). back
Heller, supra note 1 at 25–26. back
Id. at 15 ( “The jury trial of colonial days is . . . not a rigid copy of its English prototype but rather the result of variegated experiences, experimentation, and adaptation.” ). back
Id. at 15, 27. back
Id. at 33–34; cf. Ramos v. Louisiana, No. 18-5924, slip op. at 12 (U.S. Apr. 20, 2020) (reasoning that the Senate might have deleted language about the right of challenge and other specific requirements from the original draft of the Sixth Amendment “because all this was so plainly included in the promise of a ‘trial by an impartial jury’ that Senators considered the language surplusage.” ) back