Blackstone's curse: the fall of the criminal, civil, and grand juries and the rise of the executive, the legislature, the judiciary, and the states.

• Author: Thomas, Suja A.
• Position: The Civil Jury as a Political Institution

TABLE OF CONTENTS INTRODUCTION I. THE VIBRANT JURY OF THE LATE EIGHTEENTH CENTURY A. The Criminal Jury B. The Civil Jury C. The Grand Jury II. THE FALL OF THE JURY A. The Criminal Jury 1. Plea Bargaining 2. Trial by Judge 3. Military Tribunals a. Military Service Members b. Noncitizens and Nonmilitary Citizens 4. A Liability-Only Jury 5. Lessening the Role of the Jury and the Right of the Defendant B. The Civil Jury 1. Delegation of Damages to Other Tribunals 2. Procedures Before, During, and After Trial a. Judges as Fact-Finders b. Courts as Determiners of Damages c. Congress as Determiner of Damages C. The Grand Jury 1. More on Plea Bargaining 2. The Power of the Grand Jury Not to Indict 3. Lessening the Power of the Grand Jury III. A TRANSFER OF AUTHORITY A. The Executive B. The Legislature C. The Judiciary D. The States CONCLUSION INTRODUCTION

When we watch television and movies, criminal, civil, and grand juries are portrayed as performing significant roles in our government. It may come as a surprise to most Americans that despite the presence of the jury in three different amendments in the Constitution, juries play almost no role in government today. When America was founded, juries functioned differently--as an integral part of government in both England and the colonies. This Symposium Article, a chapter in my forthcoming book, tells a story about this change in the power of the jury. (1) Between the founding in the late eighteenth century and today, power shifted from juries to other parts of government--to institutions that juries were to check. So as power in the criminal, civil, and grand juries has decreased over time, the powers of the executive, the legislature, the judiciary, and the states have increased. Similar stories have been told about shifts in power, for example, from the legislative branch to the judicial branch, but never has a story been told about an institution like the jury that has absolutely no power to protect and take back its own authority. (2) Of course, the jury has arguably not fallen or has risen through other changes. This topic will be introduced later in this chapter and developed in a future chapter. As will be argued subsequently, however, the substance of the jury's power under the Constitution has fallen.

1. THE VIBRANT JURY OF THE LATE EIGHTEENTH CENTURY

   The jury has a long history in England. In America, the colonists and the Founders drew on this English tradition, in which the jury had served to check the government and in which it symbolized liberty. (3) They had learned what could happen without juries from experiences in England, where judges bypassed juries and suppressed liberty, including in the Star Chamber in the seventeenth century. (4) They also learned about the importance of the jury from their experiences as colonists facing impediments created by Parliament and royal judges. (5) The English Parliament overruled their legislative acts, royal judges took customs cases away from colonial juries, and instead of being heard by colonial juries, some crimes committed by English officers in the colonies were shifted to English courts. (6)

   When the colonists and Founders established their own government, many wanted criminal, civil, and grand juries, all of which had a rich history in England. This importance is reflected in the frequent discussion of the right to a jury before the enactment of the Constitution. (7) The First and Second Continental Congresses affirmed the importance of the jury trial with discussions of this right. (8) In the Declaration of Independence, the colonists proclaimed that they sought independence in part because the king of Great Britain repeatedly had deprived them of trial by jury. (9) And before the constitutional convention, all of the states with written constitutions had some right to a jury trial. (10)

   The original Constitution, enacted in 1787, included the right to a jury trial for all crimes, except those of impeachment, (11) but included no other jury rights. Many were concerned about this omission and the Supreme Court's retention of appellate jurisdiction over law and fact in Article III, so ratification was delayed. (12) Ultimately the Constitution was enacted based on a promise of a Bill of Rights with additional jury protections. (13) Indeed, the first Congress acted, (14) and effective in 1791, the Constitution was amended to include criminal, civil, and grand jury protections. (15)

   As for the particular jury rights, the Sixth Amendment contained further protections for the criminal jury trial, including a public and local trial. (16) The Fifth Amendment required a presentment or an indictment of a grand jury before a person could be formally accused of a capital or infamous crime. (17) And the Seventh Amendment required the preservation of a jury trial in suits at common law where the value in controversy exceeded twenty dollars. (18)

   How were these jury provisions to be interpreted? This subject, including the propriety of the historical test, will be revisited in later chapters. (19) Suffice it to say now that although jury rights were prevalent in states in existence at the time of the founding, and even in some circumstances greater than those in England, these jury rights varied. (20) The colonists and Founders valued the English jury tradition, and they drew on these experiences and knowledge, including English legal commentaries like Blackstone's Commentaries on the Laws of England, which was a best seller in the colonies. (21) Daniel Boorstin has called Blackstone the blueprint for the nation, (22) and Forrest McDonald has referred to his influence on the Constitution as "pervasive." (23)

   Recognizing the relevance of the English common law, including Blackstone, the U.S. Supreme Court has used it to interpret the jury provisions; it has cited the English common law in its jurisprudence on the Sixth Amendment criminal jury, stated that common law in the Seventh Amendment civil jury provision is the English common law, and stated that the American grand jury in the Fifth Amendment was to model the English grand jury. (24) At the same time, the Court has made comparisons to relevant practices in America at the time of the founding. (25)

   1. The Criminal Jury

      Article III, Section 2 of the Constitution establishes the criminal jury trial as follows:

      The Trial of all Crimes, except in Cases of Impeachment, shall be by Jury; and such Trial shall be held in the State where the said Crimes shall have been committed; but when not committed within any State, the Trial shall be at such Place or Places as the Congress may by Law have directed. (26) The Sixth Amendment further states:

      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. (27) So, what is the meaning of these constitutional provisions? (28) As mentioned previously, the English common law and colonial practice were influential on the Founders and are thus discussed here and below. When the criminal jury provisions were adopted in the late eighteenth century, the English jury held significant power. Some viewed the criminal jury as an essential part of the English government, along with the Crown, Parliament, and the judiciary. (29) Most eighteenth-century commentators agreed that it was established as a necessary counter to governmental authority, including the executive, the legislature, and the judiciary. (30) Some believed that the jury was "an element in the constitution ... especially as a necessary surrogate for what [was] viewed as a corrupt and unrepresentative parliament." (31) Others viewed the jury as a protector against the executive and the judiciary. (32) Some viewed the jury as important because the judiciary was dependent upon the executive for money and position. (33) Calling the jury "the grand bulwark of [every Englishman's] liberties," (34) Blackstone noted that the criminal jury itself was more essential than the civil jury because of the possible influence of the executive on judges. (35) The criminal jury balanced and checked the king's power to appoint a partial judge who could preside in a suit between the king and the subject. (36)

      In England, criminal juries tried serious crimes--felonies (crimes that were subject to the death penalty) including murder, rape, and property crimes of one shilling or more in value. (37) Juries also heard misdemeanors, crimes not punishable by death, but judges tried summary offenses, crimes that generally did not involve imprisonment. (38) An informal, lay set of people, including the victim, conducted a pretrial investigation of almost all crimes. (39) A trial would occur for felonies and misdemeanors only if the grand jury approved the indictment drafted on the basis of the investigation. (40) If the case was tried, the victim would generally act as the prosecutor (41) before the jury, which was composed of property owners. (42) John Langbein has described the jury members as typically "farmer, artisan and tradesman ... neither 'aristocratic nor democratic.'" (43) They were generally not people who had experience with those whose lives they judged. (44) Defendants had various rights, including challenging jurors for cause and without cause, and even a foreign defendant had rights, being entitled to a jury of half Englishmen and half foreigners. (45) Rules of evidence were not fully developed in proceedings at this time. (46)

      In this atmosphere, lots of jury trials occurred, and they occurred quickly (47) upon the unanimous agreement of the twelve jurors to the verdict. (48) John Beattie stated that plea bargaining did not occur in these cases: "Virtually every prisoner charged with a felony insisted on taking his trial, with the obvious support and encouragement of the court." (49)...