§ 1.02 Proving Guilt at the Trial

§ 1.02 Proving Guilt at the Trial

[A] Right to Trial by Jury

[1] In General

The Sixth Amendment to the United States Constitution provides that "in all criminal prosecutions, the accused shall enjoy the right to a speedy and public trial, by an impartial jury." The right to trial by jury is "fundamental to the American scheme of justice," and therefore applies in criminal proceedings, both state and federal.¹⁹ The Supreme Court has stated that the constitutional guarantee reflects a "profound judgment about the way in which law should be enforced and justice administered." The right is granted "in order to prevent oppression by the Government. . . . If the defendant prefer[s] the common-sense judgment of a jury to the more tutored but perhaps less sympathetic reaction of the single judge, he [is] to have it."²⁰

Notwithstanding the Sixth Amendment phrase, "in all criminal prosecutions," the Supreme Court had ruled that the jury-trial right only applies to "non-petty" offenses. According to the Supreme Court, "no offense can be deemed 'petty' for purposes of the right to trial by jury where imprisonment for more than six months is authorized."²¹ An offense is also non-petty, even if the maximum authorized period of confinement is six months or less, if any additional statutory penalties (including fines) "are so severe that they clearly reflect a legislative determination that the offense in question is a 'serious' one."²² As a practical matter, this means that a criminal defendant has a constitutional right to trial by jury in all felony and many misdemeanor prosecutions.

[2] Scope of the Right

In the federal courts²³ and in nearly all states, a jury in a felony criminal trial is composed of 12 persons. Juries as small as six, however, are constitutional.²⁴ The Sixth Amendment and the Fourteenth Amendment, the latter of which applies to the states, require a unanimous verdict to convict a defendant of a serious offense.²⁵

Because the jury system is meant to protect an accused from governmental oppression and to provide her with the common-sense judgment of the community, a defendant is entitled to a jury drawn from a pool of persons constituting a fair cross-section of the community.²⁶ This Sixth Amendment right is violated, therefore, if large, distinctive groups of persons, such as women, racial minorities, or adherents of a specific major religion, are systematically and unjustifiably excluded from the jury pool.

[B] Burden of Proof

A person charged with a crime is presumed innocent. Moreover, she may not be convicted—the presumption of innocence is not overcome—unless her guilt is proven "beyond a reasonable doubt." Although this burden of proof is not considered quantifiable, and jurisdictions define the concept in somewhat different ways, the Supreme Court has stated that, in order to convict a defendant "beyond a reasonable doubt," a juror's mind must be in a "subjective state of near certitude" of the defendant's guilt.²⁷

The common law demand that guilt be proven beyond a reasonable doubt is seen in Blackstone's assertion that "it is better that ten guilty persons escape, than that one innocent suffer."²⁸ But why should this be so? Does this not mean that society runs the risk that freed guilty persons will commit further crimes? Why is an innocent defendant preferred over an innocent victim who fails to see justice done?

Although not all modern scholars agree with the so-called "Blackstone principle,"²⁹ defenders of the principle argue that the presumption of innocence and "reasonable-doubt standard [are] indispensable to command the respect and confidence of the community. . . . It is critical that the moral force of the criminal law not be diluted by a standard of proof that leaves people in doubt" as to whether innocent people are being condemned.³⁰ Defenders also argue that the presumption is an important way to prevent governmental abuse of power.

The presumption of innocence—and the heavy burden to overcome it—is not merely an Anglo-American common law principle. The Due Process Clause of the United States Constitution mandates this presumption and burden of proof. The concept is discussed more fully in Chapter 7.

[C] Jury Nullification³¹

[1] The Issue

Are there circumstances in which a jury should acquit an individual even if the prosecutor proves beyond a reasonable doubt that the accused committed the offense charged? For example, should jurors acquit a defendant if they believe that the criminal law she violated is immoral or unwise, or because they feel that she has been "punished enough" already (perhaps because the defendant has lost her job as the result of her arrest), or because of perceived police or prosecutorial misconduct? Should jurors, in short, "nullify" the law if they feel there are justifications for doing so?

One matter is clear: jurors have " 'the raw physical power' to nullify, or disregard, the law."³² Two interrelated factors make this possible. First, a jury ordinarily returns a "general" verdict—"guilty" or "not guilty"—in criminal proceedings.³³ A jury is not required to explain or defend its verdict. It does not have to say, for example, "we believe the defendant committed the offense, but we acquit her because . . . ." Second, the Fifth Amendment of the United States Constitution provides that "[n]o person shall . . . be subject for the same offense to be twice put in jeopardy." Because the government may not reprosecute a defendant for the same crime after a "not guilty" verdict, jurors have the ability to acquit a defendant they are convinced committed an offense, fail to state their reason for acquittal, and then leave the government powerless to reprosecute.

Is such jury power of nullification, however, a good thing? Should we conclude that jurors not only have the power to nullify, but also the right? We turn to the debate.

[2] The Debate

"Jury nullification" has been the subject of rich and sometimes eloquent debate over the centuries. Advocates of jury nullification point out that the trial-by-jury constitutional right is recognized in order to protect against governmental oppression and to provide the accused with the common sense judgment of lay people.³⁴ As Judge Learned Hand put it, the institution of the jury "introduces a slack into the enforcement of the law, tempering its rigor by the mollifying influence of current ethical conventions."³⁵ This "slack" makes sense, advocates of nullification claim: A finding of guilt is not simply a determination that the accused did the acts charged; it also represents a judgment by the jurors—the "conscience of the community"³⁶ and "the oracle of the citizenry"³⁷—that the defendant should be subjected to the condemnation and formal punishment that results from a...