I. Historical Basis and Constitutional Language

• Library: The Rights of the Accused under the Sixth Amendment (ABA) (2016 Ed.)

I. Historical Basis and Constitutional Language

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.¹ To the Americans, the jury trial represented a liberty inherited from their English roots and a means of mitigating the power of a distant and mistrusted sovereign.² This helps to explain why our Founders protected this right in the body of the U.S. Constitution, in state constitutions, and in the Bill of Rights. The events that affected the development of the right to trial by jury took hundreds of years to form the modern understanding in place today.

A. Development in England

Trial by jury can be understood as a consequence of the accusatorial nature of criminal and civil justice through English history. At the time of the Norman Conquest, the county court served as the court of general jurisdiction and heard cases that affected the freeholders of the county. Twelve jurors were selected from the men of the county, but, at the time, jurors were expected to share their personal knowledge of the dispute at hand. Because the twelve jurors were from the same county as the parties, they presumably had knowledge of which party held the greater right in the dispute. This early practice embodied the idea that jurors must also have been witnesses. Rather than hearing evidence and declaring a verdict, the jurors simply ruled according to what they knew firsthand. The function of the early juries thus was markedly different than that of juries today. Jurors were charged with investigating the facts of the case, sifting through information, and using their own knowledge to declare a verdict.

The key event that would have the greatest influence on the trial process in England, and later in the United States, occurred eight centuries ago. In the Magna Carta of 1215, freemen were given the right to a trial by their peers before there could be a loss of person or prop-erty.³ Although these freemen were guaranteed a type of jury trial far from that known today, the Magna Carta embodied a principle of jury trial that would greatly influence the perceived rights and liberties of the English people.

Over the years, this principle would evolve to provide defendants with the option of submitting themselves to the verdict of jurors, and to permit judges to seek verdicts from separate juries: one jury to present an accusation and another to confirm a guilty verdict.⁴ Still later, the...