In all criminal prosecutions, the accused shall enjoy the right to a… 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….
–Amendment VI
The Framers of the Constitution of 1789 and of the Bill of Rights revered trial by jury. They had been part of the American experience from the start.
In some colonies, juries had the power to judge questions of law as well as fact. They consisted of twelve people who always acted by unanimous vote. In felony cases, nonjury trials were unknown, and guilty pleas infrequent. Trials were expeditious and routine.
The period since the Framing has seen notable changes in the general understanding of the right to jury trial.
They were essential to the U.S. system, “Providing an accused with the right to be tried by a jury of his peers gave him an inestimable safeguard against the corrupt or overzealous prosecutor and against the compliant, biased, or eccentric judge.”
In Apodaca v. Oregon in 1972, four Supreme Court Justices concluded that conviction by a vote of 10–2 did not violate the Sixth Amendment. Four Justices dissented, arguing that the amendment preserved the historic requirement of unanimity. The remaining Justice agreed with the dissenters on the construction of the Sixth Amendment but rejected the view that “all of the elements of jury trial within the meaning of the Sixth Amendment are necessarily embodied in or incorporated into the Due Process Clause of the Fourteenth.” As a result, nonunanimous verdicts are permissible in state but not federal courts. (OPINION: this slicing and dicing of the Constitution by the SCOTUS would be comedic if the result was not so tragic).
Although juries sometimes disregarded the legal instructions of judges in England, they never acquired formal authority to do so. The American practice, however, was different. In 1735 in New York, Andrew Hamilton told the court trying his client, publisher John Peter Zenger, that the authority of juries “to determine both the law and the fact” was “beyond all dispute.” The jury’s acquittal of Zenger, despite his apparent guilt of seditious libel, helped shape the American understanding of the role and duties of jurors. (OPINION: a fairly modern example of this would be the jury nullification verdict in the O.J. Simpson murder case).
More recently, however, courts have denied the legitimacy of nullification altogether. In 1997, a federal Court of Appeals held that, even after jury deliberations had begun, a trial judge could remove a juror who had revealed “beyond doubt” an intention to violate the court’s instructions on the law. (OPINION: since jury deliberations are “secret”, even from the judge presiding, my question would be “how would the judge in the case know ‘beyond doubt’ that a juror had the intention to violate the court’s instructions?)
Today nearly half of the convictions in the felony cases tried are the products of trials before judges sitting without juries. Moreover, only a small minority of felony cases go to trial. Ninety-four percent of the felony convictions in both state and federal courts are by guilty plea, and behind this figure lies the practice of bargaining with defendants to waive the Sixth Amendment right to jury trial.
Far from encouraging guilty pleas in felony cases, courts at the time of the Bill of Rights actively discouraged them. When instances of plea bargaining began to appear in appellate reports in the decades following the Civil War, lower courts generally denounced the practice and often declared it unconstitutional. The Supreme Court did not uphold the constitutionality of plea-bargained waivers of the right to jury trial until 1970.
Prolonged jury-selection procedures, cumbersome rules of evidence, repetitive cross-examination of witnesses, courtroom battles of experts, jury instructions that many empirical studies tell us jurors do not understand, and other complications have made trials inaccessible for all but a small minority of defendants. Only a shadow of the communitarian institution the Framers wished to preserve has survived into the twenty-first century. Although the Sixth Amendment declares, “In all criminal prosecutions, the accused shall enjoy the right to a speedy and public trial, by an impartial jury,” one commentator has said that Americans could replace the word “all” in this Amendment with the words “virtually none.”
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