II. Petty Versus Nonpetty Offenses

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

II. Petty versus Nonpetty Offenses A. Background

The Sixth Amendment and Article III of the U.S. Constitution guarantee a criminal defendant the right to trial by jury. However, the scope of this right has always been limited. The common law delineated a class of trials for "petty offenses" that were not subject to jury trial protection. The Supreme Court recognized this common law distinction in narrowing the seemingly inclusive language of the Sixth Amendment's guarantee of trial by jury to the states.¹⁴ The theory that petty offenses are exempt from the constitutional right to trial by jury is grounded in the notion that judicial resources need not be expended for matters that are trivial in nature.¹⁵

To determine whether an offense was petty, early decisions relied heavily on common law practices.¹⁶ If the offense did not require a jury at common law, it was generally viewed as petty and therefore not subject to the Sixth Amendment's jury protection.¹⁷ In certain cases, judges considered related principles such as the moral relevance of the offense¹⁸ and whether the offense was malum in se or malum prohibitum.¹⁹ Later decisions qualified this approach by analyzing the maximum statutory penalty for the charged crime. In these cases, the focus shifted to whether the risk that the court would impose the maximum sentence made the trial serious enough to fall within the Sixth Amendment's purview respecting the jury guarantee, even though the crime would have been considered petty at common law.²⁰

Over time, the Supreme Court abandoned common law precedent in deciding whether an offense was serious or petty. Duncan v. Louisiana held that the maximum penalty imposed is, without more, enough to signal the seriousness of the offense for jury trial purposes.²¹ The Supreme Court then established that a maximum penalty imposing imprisonment time of more than six months was sufficiently severe to define the offense as nonpetty and require a jury trial.²² Not surprisingly, the Court also held that crimes with a penalty of maximum imprisonment time of six months or less would be viewed as presumptively petty, and therefore defendants facing these shorter sentences were not entitled to be tried before a jury.²³

B. Unresolved Applications

Although problems of interpreting and applying the right to a jury remain,²⁴ the most pressing concerns can often be seen in a trial for multiple petty offenses. Courts have used a number of techniques to determine how the possibility of convictions for multiple petty offenses relates to jury entitlement. As recently as twenty years ago, there was a pervasive lack of uniformity among the courts.

The matter was not resolved until 1996 in Lewis v. United States,²⁵ when the Supreme Court held that judges should consider the severity of each underlying offense.²⁶ The justices refused to aggregate the offenses, finding that multiple petty offenses did not become severe simply by virtue of their penalties when added together.²⁷ The Court construed the presence of multiple petty offenses as insufficient to rise to the level of seriousness contemplated for jury entitlement. Thus, an individual sentenced to an aggregate incarceration in excess of six months, on more than one petty offense, is not normally...