Trial by Jury

Author:Paul D. Carrington

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The right to jury trial is provided in three clauses of the Constitution of the United States. Jury trial in federal criminal cases is required by Article III, which is otherwise given to defining the role of the federal judiciary: "The Trial of all Crimes, except in Cases of IMPEACHMENT, shall be by Jury." This provision is repeated in the Sixth Amendment, which is otherwise given to the rights of the accused: "In all criminal prosecutions, the accused shall enjoy the right to a speedy and PUBLIC TRIAL, by an impartial jury.?" The BILL OF RIGHTS also included a provision for jury trial in civil matters; this right is embodied in the SEVENTH AMENDMENT : "In Suits at common law, where the value in controversy shall exceed twenty dollars, the right of trial by jury shall be preserved.?"

The federal Constitution makes no explicit provision regarding the right to trial by jury in proceedings in state courts. State constitutions contain many similar provisions, although the interpretations of the right in state courts have varied significantly from the standards applied in federal courts. Substantial variation survived the enactment of the FOURTEENTH AMENDMENT, which for the first time subjected the state courts to the strictures of the DUE PROCESS clause. It was early held, and appears still to be the law, that the Fourteenth Amendment does not incorporate the Seventh, that there is no federal constitutional requirement of a right to jury trial in civil cases in state court. (See WALKER V. SAUVINET.) More recently, the Supreme Court has held that due process does require some form of access to a jury in major criminal prosecutions in state courts. (See DUNCAN V. LOUISIANA.)

Although the institution of jury trial has been known to American and English courts for a millennium, there have been significant changes in its form and nature over that period. Indeed, the origins of the institution are shrouded in the uncertainties of prehistory. Germanic tribes, like most stable societies, made early use of laymen in official resolution of disputes. Such practices were well known to Saxons and their neighbors at the time of the Norman Conquest in 1066. Nevertheless, at that time and place, more common resort was made to various ordeals, which were essentially religious services purporting to reveal the will of the deity. One variation on trial by ordeal was trial by battle, in which the Saxon disputants, or their champions, waged a ritual struggle to determine the side of the diety. Yet another variation was trial by wager of law, which engaged the services of the neighbors as oath helpers. By their willingness in numbers to risk salvation to stand up for a disputant, the oath helpers were perceived to express a divine will. In some sense witnesses and in some sense decision makers, these laymen can be viewed as early jurors. The nature, origin, and extent of the use of such institutions in the several shires of Saxon England doubtless varied and are the subject of some uncertainty.

The royal judges appointed by Norman kings embraced Saxon traditions, including trial by ordeal, oath helping, wager of law, and the use of laymen to share responsibility for official decisions. A papal decree in 1215, which withdrew the clergy from participation in trials by ordeal, had the effect of withdrawing the imprimatur of the deity from the decisions of the royal courts. This apparently stimulated interest in alternative methods of trial that might deflect some of the odium of decision from the royal surrogate. Thus, the PETIT JURY (to be distinguished from the GRAND JURY) emerged in more nearly contemporary form in the thirteenth century as a feature of the Norman royal courts.

Thirteenth-century jury trial emerged chiefly in proceedings of TRESPASS, a form of action in which the lash of royal power was applied to maintain the peace of the realm. As trespass and its derivative forms of action came to dominate the COMMON LAW, so trial by jury became the dominant method of trial in civil matters coming before the royal law courts. Thus, jury trial was associated with the various forms of trespass on the case (from which the modern law of torts emerged), of assumpsit (from which the modern law of contracts emerged), and of replevin, an action important to the development of personal property rights. Indeed, one reason for the demise of some of the earlier royal writs, such as the writ of right, or even the writ of debt, was dissatisfaction with the mode of trial that accompanied the use of such writs.

A concurrent evolution led to the emergence of the jury as an important element of criminal justice in the royal courts. The royal inquest was a feature of early Norman

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royal governance; it was an important device for centralizing power in the royal government and was a proceeding for calling local institutions and affairs to account. The grand jury was a group of local subjects of the crown who were called upon to investigate, or answer from their own knowledge, regarding the observance by their neighbors of the obligations imposed upon them by royal command. By stages, the inquest came to be followed by a further proceeding to impose royal punishment on apparent wrongdoers. In the latter half of the twelfth century, the royal government was initiating such enforcement proceedings, thus supplementing the trespass proceedings which had earlier provided protection for the peace of the realm, but only on the initiative of a victim of wrongdoing. By 1164, there was a clear beginning of the use of petit juries in crown proceedings. By 1275, it was established that the petit jury of twelve neighbors would try the guilt of an accused, provided the accused consented to such a means of trial, which he was coerced to do.

One major theme in the evolution of the right to jury trial in royal courts was the development of a system of accountability to constrain lawlessness by juries. For some time, the only method available to royal courts to deal with such behavior was to prosecute (or, more precisely, to attaint) the jurors for rendering a false verdict. If a second jury so decided, a jury could be punished for this offense. The harshness of this remedy led to its demise, for the attaint jurors were reluctant to expose an earlier jury to disgrace and punishment. In the seventeenth century the writ of attaint was gradually replaced by the practice of granting a new trial when the first verdict was against the weight of the evidence. This practice came to be equally applicable to criminal as well as civil proceedings, except insofar as an accused could not twice be placed in jeopardy of conviction. (See DOUBLE JEOPARDY.)

A second major theme in the evolution of the right to jury trial in civil cases was its confinement to the common law courts when the Chancery emerged as an alternative system of adjudicating the use of the royal power. English chancellors were exercising a form of judicial power as early as the fifteenth century. An important feature of the Chancery (or proceedings in EQUITY as they came to be known) was the absence of the jury. Another important feature was the use by the chancellor of a broader range of judicial remedies, most prominently including the INJUNCTION, which were personal commands of the judge under threat of punishment for contumacy.

Nineteenth-century English law reform ultimately brought about the demise not only of equity as a separate judicial system, but also of the right to jury trial in civil cases. In a search for greater efficiency and dispatch, the jury system in the law courts was modified and limited, so that the jury trial is now seldom used in the United Kingdom, or in other parts of the Commonwealth, except in criminal cases.

The right to jury trial took quite a different turn in the United States. At the time of the Revolution, that right came to be celebrated as a means of nullifying the power of a mistrusted sovereign; hence the several constitutional provisions guaranteeing the continued exercise of the right. Moreover, there was a special mistrust of equity (where the English recognized no right to jury trial) in eighteenth-century America, based in large part on its close connection to the royal power. Accordingly, some of the states abolished it, others conferred its powers on their legislatures, while only some retained its colonial forms or created state chanceries to continue the English tradition.

In many parts of the early United States, there was a widely shared mistrust of professional lawyers and of judges drawn from that profession. Mistrust of officials in general and professional judges in particular was a feature of the Jacksonian politics of the first half of the nineteenth century, which was reflected in provisions for the election of judges and the reaffirmation of the importance of jury trial as a means of deprofessionalizing the exercise of judicial power. These political impulses were magnified in the populism of the late nineteenth century.

Indeed, the American legal profession came to be...

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