Guest Essayist: Julia Shaw, Research Associate and Program Manager in the B. Kenneth Simon Center for Principles and Politics at the Heritage Foundation

Amendment VI:
In all criminal prosecutions, the accused shall enjoy the right to a speedy and public 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, and to be informed of the nature and cause of the accusation; to be confronted with the witnesses against him; to have compulsory process for obtaining witnesses in his favor, and to have the Assistance of counsel for his defence.

The Jury Trial Clause

The right to a trial by jury is essential to the American legal tradition. The Charter of the Virginia Company in 1606 guaranteed the colonists all the traditional rights of Englishmen, including the right to trial by jury. The Declaration of Independence recognized the importance of the right, when it condemned the King “for depriving us in many cases, of the benefit of Trial by Jury.”

When drafting the Constitution, the framers made the jury part of the structure of government: Article III states “the Trial of all Crimes, except in Cases of Impeachment, shall be by Jury; and such Trial shall be held in the State where the said Crimes shall have been committed; but when not committed within any State, the Trial shall be at such Place or Places as the Congress may by Law have directed.” In drafting the Bill of Rights, the framers separately protected the right to a trial by an impartial jury in federal criminal cases in the Sixth Amendment.
In the early history of the United States, a jury consisted of 12 individuals who were drawn from the community in which the crime was committed. Though members may have some knowledge of a case before they enter the courtroom, they would consider the evidence presented to reach unanimous verdict. A jury decided both questions of fact and questions of law. Meaning, judges would not tell jury members what the law meant; instead, lawyers argued questions of law before the jury, and the jury decided how the law should be interpreted and applied.

The Sixth Amendment does not mention who can serve on a jury. Initially, federal courts looked to state laws to determine who could serve on a jury. In early American history, all states limited jury service to men, and all states except Vermont required jurors to be property owners or taxpayers. A few states prohibited blacks from serving on juries.

Since the Framing, the interpretation of the Jury Trial Clause has changed in several significant respects. First, juries now decide questions of fact and not question of law. Since the Supreme Court’s ruling in Sparf and Hansen v. United States (1895), judges tell the jury what the law means, and jurors are obliged to follow that definition. Although their power to determine questions of law has been eroded, juries still retain the raw power to check general laws, because a verdict of non-guilty is not reviewable.

Second, the clause now applies to both state and federal proceedings, according to the Supreme Court’s ruling in Duncan v. Louisiana (1968).

Third, the Supreme Court has also altered the rules regarding the size of a jury and the requirement of unanimity. For hundreds of years, juries consisted of 12 individuals. In 1970, though, the Supreme Court ruled that juries could consist of as few as six members. Six-person juries must reach a unanimous decision, and unanimous decisions are required in federal cases. But, non-unanimous verdicts are permissible for 12-person juries in state courts: that means convictions by a vote of 11–1 and 10–2 are possible.

Fourth, the Supreme Court has ruled that both the Sixth Amendment and the Equal Protection Clause of the Fourteenth Amendment prohibit the jury qualifications of the Founding era. Race and sex are no longer grounds for preventing individuals from serving as jury members.

Perhaps the greatest change today is how few criminal cases ever go before the jury. Nearly half of felony convictions are achieved without juries. Guilty pleas and plea bargains account for the vast majority of felony cases. Guilty pleas were rare and discouraged during the Founding era, when jury trials were routine. Though these individuals are sentenced without jury trials, the Supreme Court recently concluded that certain federal sentencing guidelines violate the right to trial by jury.

Julia Shaw is Research Associate and Program Manager in the B. Kenneth Simon Center for Principles and Politics at the Heritage Foundation.

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March 26, 2012

Essay #26

1 reply
  1. Ralph T. Howarth, Jr.
    Ralph T. Howarth, Jr. says:

    The power of jurors to determine law and fact is Due Process under the Common Law. No court can determine what is and what is not Due Process no matter how high the court. I also read that the federal courts have not wholly taken over the civil courts YET. Last, Jury Qualifications have nothing to do with any Equal Protection Clause. That is simply the right to sue somebody in court. What we have here is a court system that does not follow the Common Law.


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