Ambiguous Standards for Partial Waiver: Dimming the Lamp that Shows that Freedom Lives

• Author: Mary-Katherine L. Gibson
• Position: J.D. Candidate, The University of Iowa College of Law, 2007; B.A., The University of Kansas, 2004.
• Pages: 1075-1105

Page 1075

Mary-Katherine L. Gibson: I am grateful to Jeffrey Scudder for reviewing several early drafts of my piece and to all of the editors of Volumes 92 and 93 of the Iowa Law Review for their ideas and feedback throughout the publication process. I would also like to thank my family and, of course, Brad for their constant love and support.

I Introduction

The right to trial by jury has been a foundation of American jurisprudence as long as the Constitution itself.¹ The founders of this nation believed that the right to trial by jury was one of the most fundamental liberties-a barrier necessary to protect individuals from an oppressive government.² Despite its vital role in our democratic society, federal and state courts currently are threatening this inviolable right by effectuating partial waivers³ on an ad hoc basis.⁴

In Part II, this Note traces the history of the right to trial by jury and reveals its vital role in our democratic society. In Part III, the Note discusses the Supreme Court precedent on jury-trial waivers. It also details the growing disagreement about what is required to waive, completely or partially, the right to trial by jury. The Note then examines the growing disagreement by analyzing three Illinois state-court cases that have articulated inconsistent standards for partial waivers. In Part IV, the Note reveals and discusses the problems with the current case-by-case adjudication of partial waivers by exploring the general policy considerations. It also emphasizes the fundamental nature of partial waivers by analyzing the significant effect that jury size has on criminal trials. In Part V, the Note proposes a solution to the current ad hoc adjudication that fully preserves a defendant's right to trial by jury: a clear, strictly enforced rule that requires the trial-court judge to inform the defendant of his right to a full jury and to request his personal consent to waive it. Finally, the Note advises Illinois and other states to confront the issue of inconsistent standards for partial jury- trial waivers and to adopt the consistent standard proposed by this Note.

II A Fundamental Right: The Right to Trial by Jury

A The History of the Jury-Trial Guarantee

The right to trial by jury is embedded deeply in the history of the United States.⁵ In fact, the tradition of having a group of one's peers Page 1076 determine one's guilt or innocence was already several centuries old when it was incorporated into the United States Constitution.⁶ The English settlers of the American colonies brought with them and "strong[ly] support[ed]" the tradition of jury trials.⁷ In 1765, the First Congress of the American Colonies drafted resolutions declaring "'the most essential rights and liberties of the colonists.'"⁸ These resolutions provided "'that trial by jury [was] the inherent and invaluable right of every British subject in the[] colonies.'"⁹ The First Continental Congress echoed similar sentiments in 1774, declaring that the "'colonies [were] entitled to . . . the great and inestimable privilege of being tried by their peers.'"¹⁰

As history progressed, the right to a jury trial continued to be fiercely preserved. The Declaration of Independence listed the denial of proper jury trials among the colonists' justifications for revolt.¹¹ In fact, one of the primary objectives of the Declaration of Independence and the Bill of Rights was to preserve the right to a proper jury trial for all American citizens,¹² an objective realized through both Article III, Section 2 of the Constitution and the Sixth Amendment.¹³ Moreover, every state that subsequently joined the Union incorporated the right to a jury trial into its constitution.¹⁴ Since that time, the United States Supreme Court has held that "the right to jury Page 1077 trial . . . is a fundamental right."¹⁵ Thus, the history, Constitution, and caselaw of the United States make it clear that the right to a jury has always been, and continues to be, "fundamental to the American scheme of justice."¹⁶

B The Constitutional Jury-Trial Guarantee

The Framers of the Constitution considered the right to a jury trial one of the most fundamental individual rights and, thus, protected it in both Article III of the Constitution and in the Bill of Rights.¹⁷ The Constitution provides, "[t]he Trial of all Crimes, except in Cases of Impeachment, shall be by Jury."¹⁸ Many drafters, however, thought that this language alone provided inadequate assurance of the right to trial by jury.¹⁹ Thus, they included provisions in the Bill of Rights to strengthen this guarantee.²⁰ The Sixth Amendment provides, in part, "[i]n all criminal prosecutions, the accused shall enjoy the right to . . . trial, by an impartial jury of the State and district wherein the crime shall have been committed."²¹

In Duncan v. Louisiana, the Court applied²² the Sixth Amendment's jury- trial guarantee to the states through the Fourteenth Amendment.²³ The Court held that "[t]he deep commitment of the Nation to the right of jury trial in serious criminal cases as a defense against arbitrary law enforcement qualifies for protection under the Due Process Clause of the Fourteenth Amendment, and must therefore be respected by the States."²⁴ Thus, Duncan announced that "in serious criminal cases" defendants are entitled to trial by Page 1078 jury.²⁵ A jury trial, therefore, is only necessary for serious crimes, not for petty offenses.²⁶ Thus, any criminal defendant in federal or state court who faces a possible sentence of six months or more has a constitutional right to be tried by his or her peers.

C The Purpose of the Jury-Trial Guarantee

By including the right in the Constitution, the Framers intended trial by jury to be an immutable right that would protect criminal defendants.²⁷ The Framers included the right to a jury trial in the Constitution in order to protect defendants from an oppressive government.²⁸ Their placement of this right within the Sixth Amendment confirms that they considered it an essential individual liberty, one necessary to ensure a fair trial to individuals taken into the criminal-justice system.²⁹

The United States Supreme Court repeatedly has confirmed that the purpose of jury trials is to provide protection to criminal defendants.³⁰ In Williams v. Florida, the Court explained that "'[p]roviding an accused with the right to be tried by a jury of his peers gave him an inestimable safeguard against the corrupt or overzealous prosecutor and against the compliant, biased, or eccentric judge.'"³¹

In Patton v. United States, the Court summarized the purpose of trial by jury, stating: Page 1079

The record of English and colonial jurisprudence antedating the Constitution will be searched in vain for evidence that trial by jury in criminal cases was regarded as a part of the structure of government, as distinguished from a right or privilege of the accused. On the contrary, it uniformly was regarded as a valuable privilege bestowed upon the person accused of the crime for the purpose of safeguarding him against the oppressive power of the [Government] and the arbitrary or partial judgment of the court.³²

The Patton Court held that because the purpose of trial by jury is to protect criminal defendants, the accused could waive the right if they so chose.³³ In sum, defendants can completely waive the right to trial by jury or partially waive the right to trial by a full jury³⁴ if they believe it is in their best interest to do so, because these rights were intended for their protection.³⁵ The natural corollary of this principle is that neither a court, nor counsel, nor any individual other than the defendant has the authority to waive his right to a jury trial because the right was not intended to protect these parties.³⁶ Page 1080

The Constitution gives criminal defendants certain rights to protect them in the criminal-justice system, and they alone should be able to waive these rights.³⁷

III The History of the Conflict

A The Battle Over Whether a Criminal Defendant Can Waive the Right to a Jury Trial

Early American courts were reluctant to allow a criminal defendant to waive his right to a jury trial.³⁸ In 1898, in Thompson v. Utah, the Supreme Court addressed the requirements of the Sixth Amendment's right to a jury trial.³⁹ The Court held that "it was not in the power of one accused of felony, by consent expressly given or by his silence, to authorize a jury of only eight

state and defendant should have an equal voice as to the method of trial, . . . and that the prosecutor is also entitled to protect the public interest in maintaining the role of the jury in the...