In Suits at common law, where the value in controversy shall exceed twenty dollars, the right of trial by jury shall be preserved, and no fact tried by a jury, shall be otherwise re-examined in any Court of the United States, than according to the rules of the common law.
If you have good facts, pound the facts; if you have good law, pound the law; if you have nothing, pound the table. Aside from the good rule of focusing attention on the areas where one’s case has strength, advocacy, as a form of rhetoric, also requires knowing your audience. In American criminal and civil procedure, where there is a jury, the jury is a trier of fact and the judge makes determinations of law.
The jury is a legal invention that can be traced back to at least 11th Century England, when the Domesday Book was assembled from information gathered by juries empaneled to catalogue property holdings throughout the realm. Juries of local people were assumed to be familiar with the local facts that would be the basis of the catalogue.
As the use of juries expanded, juries came to be considered a bulwark against tyranny, because while magistrates might align with a king, a jury of peers would check the king’s power at trial. The Bill of Rights protects jury trials in civil and criminal matters.
The Sixth Amendment provides “In 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, which district shall have been previously ascertained by law.” The Seventh Amendment provides “In suits at common law, where the value in controversy shall exceed twenty dollars, the right of trial by jury shall be preserved, and no fact tried by a jury, shall be otherwise re-examined in any Court of the United States, than according to the rules of common law.”
While most state constitutions have jury clauses, the Supreme Court has determined that the Sixth Amendment right to an impartial jury in criminal cases extends to the states through the operation of the Due Process Clause of the Fourteenth Amendment under the doctrine known as “substantive due process.” However, the right to a trial in the state and district where the crime is committed, known as the Vicinage Clause, is not incorporated into the Fourteenth Amendment against the states. The right to a jury trial in a civil case is also not protected in state proceedings, unless protected under state law.
In jury trials, judges do not try questions of fact. Rather judges determine questions of law, including questions regarding the procedures by which the facts are developed in court. Judges further instruct the jury as to what is the law to which the facts are to be applied. In certain cases, juries may refuse to determine the facts at all and engage in what is known as jury nullification to satisfy its own views of what the law should be in the particular case. Arguments run here and there as to whether this is a check and balance of the justice system or whether it is a dereliction of the duties of jurors.
In certain cases and courts the judge is both the trier of fact and the trier of law. Commercial parties frequently waive the right to a jury trial. Administrative courts, as administrators, and bankruptcy courts, as courts of equity, largely do not employ juries. This is in part based on the opinion that the subject matter of administrative law and commercial issues may be too sophisticated for a jury. Left and Right take varying and perhaps contradictory positions on this. Some on the Right advocate for removal of juries in medical malpractice cases. The plaintiffs bar howls. The Left admires administrative law and great bureaucracies. They call it job creation. Almost all commercial interests are satisfied that juries are generally absent from involvement in bankruptcy cases, which require rapid determinations and understanding of complex financial issues.
As usual, Ronald Reagan may have put it best. In his First Inaugural Address he said first: “[W]e have been tempted to believe that society has become too complex to be managed by self-rule, that government by an elite group is superior to government for, by, and of the people. But if no one among us is capable of governing himself, then who among us has the capacity to govern someone else?” and then he said “Now, so there will be no misunderstanding, it is not my intention to do away with government. It is, rather, to make it work—work with us, not over us; to stand by our side, not ride on our back.”
J. Eric Wise is a partner in the law firm of Gibson, Dunn & Crutcher LLP, where he practices restructuring and finance.
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