CHAPTER 10 THE RIGHT TO TRIAL BY JURY

• Jurisdiction: United States

Chapter 10 THE RIGHT TO TRIAL BY JURY

§ 10.01 OVERVIEW¹

Antecedents of the modern jury trace back at least to the early thirteenth century,² and "by the time our Constitution was written, jury trial in criminal cases had been in existence in England for several centuries."³ The Sixth Amendment guarantees that: "[i]n all criminal prosecutions, the accused shall enjoy the right to a . . . trial[ ] by an impartial jury."⁴ The jury-trial right has applied to state as well as federal prosecutions since the Supreme Court's decision in Duncan v. Louisiana,⁵ holding that the Due Process Clause of the Fourteenth Amendment incorporated this provision.⁶

According to the Supreme Court, the right to trial by jury serves as a bulwark against government oppression by providing a "safeguard against the corrupt or overzealous prosecutor and against the compliant, biased, or eccentric judge."⁷ The protection results from placing "the commonsense judgment of a group of laymen"⁸ between the government and the accused. Moreover, the "community participation and shared responsibility that results from that group's determination of guilt or innocence" heightens the safeguard. This "bulwark-against-oppression" rationale for jury trials has a lengthy pedigree — Blackstone praised the trial by jury as a wise barrier between "the liberties of the people and the prerogative of the crown."⁹ It also finds support in empirical research indicating that when the judge and jury disagree about a defendant's guilt, more often than not the jury would acquit, while the judge would convict.¹⁰

Notwithstanding this pedigree, jury trials have their contemporary critics. Juries have been attacked on the grounds that: (i) they lack the necessary expertise or, sometimes, intelligence to assess the evidence and decide critical issues; (ii) the nature of jury composition makes them "unpredictable, quixotic, and little better than a role of dice;"¹¹ and (iii) they resolve disputes expensively and inefficiently, particularly relative to judges. While these criticisms have certainly not won the field, they become relevant when the Supreme Court considers the limits of the jury trial right.

The right to a trial by jury presents two categories of constitutional issues. First: What is the scope of the right? The text of the Constitution refers to "all criminal prosecutions," but the Supreme Court has struggled to define precisely the category of cases and issues to which the Constitution's jury-trial mandate applies. (When the right does not apply, a jurisdiction may provide for resolution of the case or issue by a judge or magistrate.). The current state of the law on these issues, discussed in a subsection below,¹² may be summarized as follows: The right to a trial by jury applies, at a minimum, to any offense for which the maximum potential incarceration is more than six months¹³ and, within that parameter, to any issue, other than the defendant's previous record of conviction, that raises the maximum potential punishment the defendant may receive.¹⁴

The second category of issues relates to the nature of the jury. How big must a jury be, and what are the constitutional requirements for the process of its selection and its ultimate composition? The jury size question, discussed in a separate subsection below,¹⁵ may be summarized simply: Twelve jurors is the norm, but six jurors is the constitutional minimum.¹⁶

The issues surrounding the composition of the jury — the potential pool of jurors, the process of selecting the jurors and the factors that may be considered in this process — occupy the remainder of this chapter. A group of potential jurors who are available to serve as jurors — called the "venire" — is drawn from the local community by a predetermined means. In federal court, for example, the venire is normally drawn from lists of registered voters.¹⁷ The Court has determined that the Sixth Amendment requires that the process of gathering the venire must meet a "fair cross-section requirement," which is considered below.¹⁸ In an individual criminal case, members of the venire will be subjected to a process of "voir dire" — questioning by the judge and sometimes by the parties to determine whether the venireperson would make an appropriate (or desirable) juror. The parties then follow a process of rejecting proposed members of the jury on specific grounds recognized by law (challenges for cause) or, in a limited number, for reasons the parties need not disclose (peremptory challenges). As discussed below,¹⁹ all of these processes — voir dire, challenges for cause and peremptory challenges — are subject to constitutional regulation. These issues are of particular importance because "[d]efense counsel and prosecutors alike realize that the ability to shape a jury can have an important, even decisive, impact on trials."²⁰

§ 10.02 WHEN THE RIGHT TO TRIAL BY JURY APPLIES

[A] What Crimes the Right Applies To

[1] Offenses with Defined Penalties

[a] The Rule

Although the language of the Sixth Amendment refers to "all criminal prosecutions," it has never been the case that the right to trial by jury has been interpreted to apply to all criminal cases. Instead, the Court has long recognized that so-called "petty" crimes are not subject to the Constitution's jury trial mandate,²¹ and the Court continued to use the petty/serious offense distinction as the relevant demarcation line when it expanded the right to trial by jury to state prosecutions through the Fourteenth Amendment Due Process Clause.²² Despite the textual language of the Sixth Amendment, which seems to authorize juries in all criminal cases, this much has generally been uncontroversial, since "petty offenses were tried without juries both in England and in the Colonies."²³ The challenge has come in identifying the point at which offenses turn from "petty" to "serious."

In determining when an offense is "petty" for jury trial purposes, the Court has gradually shifted from a method that required case-by-case adjudication to one that applies bright-line rules.²⁴ For a time, the Court focused its inquiry on the nature of the offense and on whether a jury trial was afforded for such offenses at common law.²⁵ In part because of the inherent subjectivity of this approach (what offenses are "serious" may be in the eye of the beholder) and in part because of the growing number of offenses that were simply unknown to the common law, the Court shifted the inquiry from the nature of the offense to "objective indications of the seriousness with which society regards the offense."²⁶

As the cases have developed, the critical "objective indication" is whether the maximum authorized punishment for the offense exceeds six months. If the maximum punishment is greater than six months, it is serious, and the defendant has a right to trial by jury.²⁷ If the maximum prison term is six months or less, the offense is presumed to be petty.²⁸ To overcome that presumption, the defendant must show that additional statutory penalties "are so severe that they clearly reflect a legislative determination that the offense in question is a 'serious' one."²⁹ This standard is very hard to meet. The Supreme Court has held that a crime punishable by six months imprisonment and a $1,000 fine, a ninety-day driver's license suspension, and eligibility for harsher punishment for a repeat offense, was not enough to qualify as the "rare situation" in which the presumption could be overcome.³⁰

Most state constitutions also provide a right to trial by jury in criminal cases, and many states, either through constitutional rule or by statute (and through a variety of approaches) go further than the Sixth Amendment requires in providing a right to trial by jury.³¹

[b] Comparison to Right to Counsel

The basic constitutional rule differs somewhat from the application of the right to counsel.³² With regard to both rights, the Court moved from a process of case-by-case adjudication to a bright-line approach. However, although both the right to trial by jury and the right to counsel come from the Sixth Amendment and, on their face, apply to "all criminal prosecutions," the right to trial by jury is both broader and narrower in its application than the right to counsel. For the right to counsel, a defendant cannot be sentenced to even one day in jail without representation (or waiver of the right), but counsel is not mandatory in misdemeanor cases (usually defined as crimes punishable by jail terms of not more than one year) if the defendant is not sentenced to incarceration. Thus, if D, an indigent, is charged with a crime punishable by nine months in prison, and the judge decides in advance of trial that he will only impose a $3,000 fine, the Constitution guarantees D a trial by jury, but not a lawyer. On the other hand, if D is charged with a crime punishable by only ninety days in jail, and the judge wishes to impose a one-week sentence if D is convicted, the Constitution guarantees D a lawyer but not a trial by jury.

This contrast usefully underscores two points. First, the text of the Constitution itself, even when it is relatively clear, may not only fail to control the outcome of a case, but may be given different meanings depending on the context — "criminal prosecution" means one thing for the jury trial right and another for the right to counsel. Second, and relatedly, the Court's view of the function of a right has force in determining its applicability. With regard to trial by jury, the Court concludes that the right protects against government oppression through criminal punishment, so it applies only when the oppression would be serious enough to force the state to forgo the efficiencies of a bench trial. With regard to the right to counsel, the Court has concluded the right is necessary to ensure a fair process, and so it applies only when the case is likely to be complicated or serious enough that the disadvantage to the defendant is...