Concept
Sources of the Right
Right to a jury trial
Sources of the Right
Every jury rule in this chapter rests on one of three constitutional texts, and the first step in any problem is to say which one supplies the right. Two of the three speak to criminal trials. Article III, Section 1 vests the judicial power of the United States in the Supreme Court and in the lower federal courts that Congress creates.1 The jury command for crimes appears in the next section of that same article, which declares that “The Trial of all Crimes . . . shall be by Jury,” so it limits how the federal judiciary may try a criminal case.2 The Sixth Amendment reaches the same subject from the accused's side, guaranteeing that “[i]n all criminal prosecutions” the accused enjoys a trial “by an impartial jury.”3 The third text, the Seventh Amendment, preserves jury trial “[i]n Suits at common law, where the value in controversy shall exceed twenty dollars,” which is the vocabulary of civil litigation.4
The two criminal texts operate as a pair. In Reid v. Covert the Court found that a court-martial of civilian dependents of servicemen did not meet the requirements of Article III, Section 2 or the Fifth and Sixth Amendments, and then asked whether anything else in the Constitution authorized trying them that way.5 The Seventh Amendment works from a different premise. It preserves the jury right as it existed under the English common law when the amendment was adopted, so a court applying it asks whether the cause of action was tried at law at the founding or is analogous to one that was.6 The criminal texts pose no such question, and importing civil-jury rules into a criminal case sends the analysis toward whether a prosecution resembles an eighteenth-century action at law or whether more than twenty dollars is at stake, neither of which matters to a defendant facing criminal charges. Which prosecutions do carry the right is a separate inquiry, taken up in the next part of this chapter.
The texts also bind different courts. The criminal jury right applies in state prosecutions as well as federal ones, because Duncan v. Louisiana applied the criminal jury guarantee to the States through the Due Process Clause of the Fourteenth Amendment.7 The civil right stops short of that, because the Seventh Amendment's jury guarantee is among the Bill of Rights protections the Court has not fully incorporated, which leaves it governing federal court only and leaves state civil juries to the state's own constitution.8
Run in order, the sort asks two questions: whether the proceeding is a criminal prosecution or a civil suit, and whether it is in federal or state court. The answers identify the controlling text before any threshold, waiver, or size rule is applied. The three subsections that follow take the texts in the order a federal prosecution meets them: the Article III clause, then the Sixth Amendment and its application to the States, and finally the Seventh Amendment as the civil contrast that marks the edge of the criminal right.
Article III Jury Clause
The federal command appears in the last sentence of Article III, Section 2: “The Trial of all Crimes, except in Cases of Impeachment; shall be by Jury.”10 The words are mandatory (“shall”), universal (“all Crimes”), and subject to one stated exception, impeachment. The same sentence goes on to require that the trial be held in the state where the crime was committed, a venue rule that belongs to a separate reading and is not developed here. The question to answer first is why a jury command sits in the Article that creates the federal courts at all.
The placement is part of the design. Section 1 vests the judicial power in one Supreme Court and in the lower courts Congress chooses to establish, and it gives the judges tenure during good behavior and a salary that cannot be reduced while they serve.11 Those protections make federal judges independent of the officials whose cases they decide. Independence did not satisfy the framers, though. Duncan v. Louisiana explains that they insisted on further protection against arbitrary action, in the form of community participation in deciding guilt, because they were reluctant to entrust plenary power over life and liberty to one judge or to a group of judges.12 A jury command inside Article III therefore makes the jury a feature of how federal courts try crimes, a second check that stands beside the independent judge. Congress cannot treat it as a privilege to grant or withhold by statute.
The breadth of the word “all” has been tested most sharply when the government tried to move a prosecution out of the civilian courts. In Ex parte Milligan a civilian citizen of Indiana was tried by a military commission and sentenced to death while the civil courts of Indiana were open, and the Court held that the commission had no jurisdiction over him.13 Milligan's counsel argued that the words “all Crimes” are all-embracing, and that because the Constitution names its own exceptions, courts may not invent others.14 That is an advocate's argument rather than the holding, but it shows how the text reads on its face. Later, a plurality in Reid v. Covert repeated the Milligan declaration that the jury right “is preserved to everyone accused of crime who is not attached to the army, or navy, or militia in actual service.”15
Two situations fall outside the command, and they have different sources. The first is the one the clause names itself. A case of impeachment is tried under the Constitution's own separate machinery for removing officials, so the jury clause steps aside. The exception turns on the kind of proceeding and leaves the seriousness of the charge out of the analysis. The second is trial of members of the armed forces. Article I, Section 8, clause 14 empowers Congress to make rules for the land and naval forces, and that power has been held to create an exception to the ordinary civilian method of trial for service members.16 The Reid plurality confined the exception to its words. The court-martial of civilian wives charged with murder failed the requirements of Article III, Section 2, and the plurality found nothing in the military power that reached civilian dependents.17
The breadth of “all” needs one qualification, because reading “all Crimes” as reaching every offense, however minor overstates the guarantee. The Court has said it holds no constitutional doubts about the common practice of prosecuting petty crimes without extending a right to jury trial.18 Where the line between petty and serious falls is the subject of the next part of this chapter. The neighboring Treason Clause adds a different requirement that should not be confused with the jury command. Section 3 provides that no person may be convicted of treason except on the testimony of two witnesses to the same overt act or on confession in open court.19 That rule governs the proof needed for conviction, and treason remains a crime tried by jury under Section 2.
Because the clause says “shall,” a reader might conclude that a criminal court has no power to proceed without a jury, so that a bench trial is void even when the defendant requested it. Patton v. United States took a different view, treating the presence of a jury as something other than a constitutional prerequisite to the trial court's jurisdiction.20 The reasoning ran through the Judiciary Act of 1789, which used the same mandatory words, “shall be by jury,” for trials of fact in the district courts and which had always been understood to allow the parties to waive a jury. The Court assumed that the Act's drafters, borrowing the constitutional wording, meant it to carry the same meaning.21 A companion case shows the practical result. In Riddle v. Dyche a prisoner attacked a federal conviction by habeas corpus because the jury had only eleven members. The Court held that a record showing on its face that a lawful jury had been impaneled, sworn, and charged could not be collaterally impeached, and that the remedy was a writ of error.22
The waivable-right reading also removes an incentive problem. If a missing jury voided the judgment, a defendant who had agreed to a bench trial could wait for the verdict and raise the defect as a nullity only if the result went badly, holding the objection in reserve as a free second chance. Treating the jury as a right the accused may give up closes that gamble, and a jury defect becomes an error to raise and correct in the ordinary course. How a defendant waives the jury, and what must accompany the waiver, is the work of Rule 23(a) later in this chapter.
Sixth Amendment Guarantee
The Sixth Amendment is the general statement of the accused's jury right, and its opening words set the scope for the rest of this chapter. It provides that “[i]n all criminal prosecutions, the accused shall enjoy the right to a speedy and public trial, by an impartial jury.”25 Three phrases carry the guarantee. “In all criminal prosecutions” sets the trigger, so the first question in any problem is whether the proceeding is a criminal prosecution at all. “The accused” names the holder, which makes the jury a protection that belongs to the defendant personally. “An impartial jury” names the content, and the decisions about who may sit on a jury, such as Taylor v. Louisiana on the makeup of the jury pool and Peña-Rodriguez v. Colorado on racial bias voiced during deliberations, are taught in other readings.26 Both decisions treat the guarantee as binding on the States, and the paragraphs below explain how it came to be.
The criminal jury is guaranteed twice, in Article III and in the Sixth Amendment. According to the plurality in Reid v. Covert, fear that jury trial might be abolished was one of the principal sources of objection to the proposed Constitution and an important reason for adding a Bill of Rights, and the Sixth Amendment reaffirmed the criminal jury right.27 Like the rest of the Bill of Rights, though, the amendment first restrained only the federal government. Barron v. Baltimore confirmed that reading by holding that the Bill of Rights did not apply to the states, which left state governments bound only by their own laws and constitutions.28 The Fourteenth Amendment, ratified in 1868, seemed to change that, but the Court has read its Privileges or Immunities Clause narrowly.29 As late as 1937, the Court stated in Palko v. Connecticut that a state could modify or even abolish trial by jury, because the jury was not of the very essence of a scheme of ordered liberty.30 That earlier position is now historical only, and the next paragraph shows what replaced it.
In Duncan v. Louisiana the Court rejected that position, reasoning that the earlier statements were dicta because none of the cases involved a state that had purported to dispense entirely with a jury in serious criminal cases.31 It held that the Fourteenth Amendment guarantees a jury trial in every criminal case that would come within the Sixth Amendment if tried in federal court.32 The method is selective incorporation, in which the Due Process Clause carries into state courts, one guarantee at a time, those Bill of Rights protections that are fundamental to the nation's scheme of ordered liberty.33 The Court later restated the premise of that holding: “trial by jury in criminal cases is fundamental to the American scheme of justice.”34 Incorporated guarantees are enforced against the States by the same standards that govern the federal government, so a state defendant receives the Sixth Amendment itself and not a diluted version.35 The error to avoid is the assumption that the Sixth Amendment reaches only federal prosecutions, because after Duncan a state trial for a covered offense is governed by the same jury guarantee as a federal one.
The reason the Court found the jury fundamental also shapes the rules in the rest of this chapter. As the opening of this chapter explained, the right protects the accused against government oppression, and Duncan added that the jury provisions reflect a reluctance to entrust plenary power over the life and liberty of a citizen to one judge or a group of judges.36 That purpose has a structural consequence. If a state could refuse a jury in a serious case, the government that filed the charge would also choose the factfinder who decides it, and the safeguard against a compliant or biased judge would vanish in exactly the cases where it matters most. For that reason a defendant's demand for a jury in a serious state prosecution must be honored unless the state can show that the crime charged is petty.37
The same purpose explains why the accused may give the protection up. Duncan itself voiced no constitutional doubt about the common practices of accepting waivers of jury trial and of prosecuting petty crimes without a jury, and it observed that the right likely serves its purpose of making judicial or prosecutorial unfairness less likely even where defendants are content with a bench trial.38 The conditions for a valid waiver in federal court come later in this chapter. The rules on jury size and verdicts are tested against the same function. In Williams v. Florida the Court described the number twelve as a historical accident unrelated to what the jury is for and approved a six-member jury, and in Ramos v. Louisiana it read the Sixth Amendment, in accord with the original understanding, to require a unanimous verdict.39
The words “all criminal prosecutions” are read together with the penalty the offense carries. The crime in Duncan was a misdemeanor under Louisiana law but carried a maximum sentence of two years, and the Court held the defendant entitled to a jury, because whether the guarantee applies depends on the objective severity of the authorized punishment and not on how the jurisdiction classifies the charge.40 Measuring severity by the penalty makes sense because a label is within the legislature's control. A legislature that wanted to avoid juries could rename serious crimes as misdemeanors, but the maximum penalty it authorizes reveals how seriously it regards the offense. A proceeding outside the criminal category sits at the other pole. In McKeiver v. Pennsylvania the Court held that there is no jury right in a juvenile court proceeding against a youthful offender, because such proceedings are not considered criminal in nature.41 The line between serious and petty offenses, drawn at authorized imprisonment of more than six months, is the subject of the next part of this chapter.42
Most states give a jury in lesser misdemeanors as well, though they are not required to, so a state's more generous rule does not change the constitutional floor.43 On an exam stem set in state court, the sort therefore runs in a short sequence: confirm that the proceeding is a criminal prosecution, check the authorized penalty against the six-month line, and apply the Sixth Amendment through the Fourteenth as the minimum, whatever the state's own constitution says.
Seventh Amendment Contrast
The criminal jury guarantees just covered have a civil counterpart, and keeping the two apart prevents a common error on exams that mix criminal and civil jury questions. 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 the common law.”46 Its trigger is the kind of suit, a suit at common law, together with a twenty-dollar threshold on the value in controversy. Nothing in that wording mentions a prosecution or an accused person. The second clause adds a limit on how a federal court may re-examine a fact that a jury has tried, and both clauses sit in one sentence aimed at civil litigation.
A claim for money is the standard example of a suit at common law. In Dairy Queen, Inc. v. Wood the owners of a trademark sued a licensee for money due under a licensing contract and for damages for trademark infringement, and the Court treated those claims as legal ones for which the Seventh Amendment preserves the right to a jury.47 The right in that setting belongs to a litigant in a civil dispute over money, and the amendment's text gives no role to the sovereign as prosecutor.
The two guarantees sit in different provisions because they answer different dangers. The criminal jury exists to prevent oppression by the government, which can bring unfounded charges to eliminate enemies and can find judges too responsive to higher authority.48 That danger comes from the prosecutor's power over liberty. A typical suit at common law has no prosecutor on one side seeking to deprive the other of liberty, so the civil text defines its coverage by the nature of the suit and the amount at stake. The Duncan opinion itself observed that some of the severest critics of the civil jury concede that the arguments for criminal juries are much stronger.49 Because the interests differ, a reader should not assume that a rule about the criminal jury's size, waiver, or verdict has a civil twin, or the reverse.
On an exam stem, the sort therefore begins with the nature of the proceeding. A prosecution sends the analysis to Article III and the Sixth Amendment, and from there to the federal criminal rules on waiver, size, and verdict taught in the rest of this chapter. A suit at common law for more than twenty dollars sends it to the Seventh Amendment. The mistake that costs points is citing the Seventh Amendment for a criminal defendant's jury right merely because the word “jury” appears in the problem.