Jury Trial

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—a right that Sir William Blackstone had described as "the palladium of English liberty." By the time of the Framing, common-law juries had a more than five-century history in England. They had been part of the American experience from the start. Although juries then were considerably less representative of the adult population than they are today, they were the most democratic of the governmental institutions in the colonies. Most Americans cheered their resistance to repressive colonial measures, especially British revenue laws and seditious libel laws.

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.

As originally understood, the Sixth Amendment guaranteed the right to jury trial only in the federal courts, and the ratification of the Fourteenth Amendment in 1868 did not alter this understanding. One hundred years after the approval of the Fourteenth Amendment, however, the Supreme Court held in Duncan v. Louisiana (1968) that the amendment's Due Process Clause "incorporated" the right to jury trial and made it applicable to the states. The Court said that although juries were not essential to fairness in every legal system, they were essential to the U.S. system. It wrote, "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."

The federal courts initially followed the jury selection rules of the states in which they sat, and all of the states limited jury service to men. All of them except Vermont also limited jury service to property owners or taxpayers. Blacks were formally disqualified in only a few states.

The Sixth Amendment was not thought to preclude expansion of the right to serve on juries, but it also was not thought to require any expansion. Moreover, the Fourteenth Amendment's Equal Protection Clause was not initially thought to extend "political" rights, including the right to serve on juries, to either African-Americans or women.

In 1879, however, the Supreme Court held in Strauder v. West Virginia that a statute disqualifying blacks from jury service violated the equal protection rights of black litigants. It was only in 1991 that the Court concluded that the Equal Protection Clause protected prospective jurors themselves from discrimination.

The Court has read the Sixth Amendment as well as the Equal Protection Clause to eliminate jury disqualifications of the sort the Framers approved. It held in 1975 that a "fair cross-section requirement" implicit in the amendment precluded the "systematic" exclusion of a "distinctive group in the community." Because "systematic" exclusion need not be purposeful, the Sixth Amendment prohibits some forms of discrimination in jury selection the Equal Protection Clause does not reach. Racial minorities and women qualify as "distinctive groups." As currently understood, moreover, the Sixth Amendment also probably precludes property qualifications of the sort the Framers accepted.

At the time of the Framing, litigants could challenge a limited number of prospective jurors peremptorily. In a series of cases beginning in 1986, however, the Court held that litigants may not use peremptory challenges to discriminate on the basis of race, gender, or other suspect classification.

Although the Supreme Court previously had said that the Sixth Amendment required juries of twelve (a number that had 700 years of history behind it), the Court concluded in 1970 that the amendment allows juries of six. In 1978, however, it held five-person juries impermissible. A great many states now use six-person juries, especially in misdemeanor cases.

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. In a companion case, the Court upheld a state-court conviction by a 9–3 vote. Later, the Court held conviction by a vote of 5–1 unconstitutional; convictions by six-person juries must be unanimous.

Although juries sometimes disregarded the legal instructions of judges in England, they never acquired formal authority to do so. As early as 1628, Chief Justice Coke declared that judges do not decide questions of fact and juries do not decide issues of law.

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. Some, but not all, American colonies permitted juries to decide issues of law, and in 1771 John Adams called it "an Absurdity to suppose that the Law would oblige [jurors] to find a Verdict according to the Direction of the Court, against their own Opinion, Judgment, and Conscience."

The authority of juries to decide issues of law was contested throughout the nineteenth century, but the opponents of jury authority gained the clear upper hand in the century's second half. Although three state constitutions still declare that juries may decide legal issues, the Supreme Court's 1895 decision in Sparf and Hansen v. United States effectively ended the battle and held that federal juries may not decide questions of law.

In the late 1960s and early 1970s, defendants charged with unlawful resistance to the war in Vietnam sought to revive the issue. They argued that judges should inform jurors of their right to acquit whenever conviction would be unjust (or at least permit defense attorneys to argue in favor of jury nullification). Although appellate courts rejected the defendants' arguments, the courts did not deny in all circumstances the appropriateness of jury nullification. If, as a matter of conscience, jurors decided to disregard the court's instruction, their disobedience might be justified. 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.

The Anti-Federalists who opposed ratification of the Constitution protested that the right to jury trial guaranteed by Article III was inadequate. Their objections led to the Sixth Amendment's requirement that juries must be drawn from "the State and district wherein the crime shall have been committed." Although the Sixth Amendment also declared that juries must be impartial, the requirement of impartiality did not imply that jurors should arrive at the courtroom unaware of the circumstances of the case before them. George Mason and Patrick Henry insisted that local juries would protect the defendant's right to be judged on the basis of "his character and reputation." Courts now voice greater concern about information obtained prior to trial, especially in cases of widespread pretrial publicity. The Supreme Court has said that although a juror need not "be totally ignorant of the facts and issues," he must be able to "lay aside his impression or opinion and render a verdict based on the evidence presented in court." Irvin v. Dowd (1961).

At the time of the Sixth Amendment, all trials in serious criminal cases were jury trials. In 1874, the Supreme Court declared that a defendant could not "be tried in any other manner than by a jury of twelve men, although he consent in open court to be tried by a jury of eleven men." Home Insurance Co. of New York v. Morse (1874). Nevertheless, the Court held in Patton v. United States (1930) that a defendant could waive the right to jury trial and agree to be tried by the court alone.

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. Sir William Blackstone's Commentaries on the Laws of England observed that courts were "very backward in receiving and recording [a guilty plea]...and will generally advise the prisoner to retract it," and similar statements appeared in American treatises throughout the nineteenth century. 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.

When jury trial was routine, it was a reasonably summary procedure. As recently as the 1890s, a felony court apparently could conduct a half-dozen jury trials in a single day. The intervening century has seen a proliferation of procedures in contested cases and, as a result, an inability to contest many cases. 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."

[Editors' Note: In June 2004, in Blakely v. Washington, and in January 2005 in United States v. Booker (consolidated with United States v. Fanfan), the Supreme Court construed the right to a jury trial in a manner that collaterally limited the lawful sentences that could be imposed on a convicted defendant. It held that a defendant could not mandatorily be sentenced to a term of imprisonment that exceeded the maximum authorized by the facts determined by the jury. As a consequence, the mandatory aspects of the Federal sentencing guidelines system (and those of several states) were deemed in violation of the jury trial right. The Court concluded, however, that the right to a jury trial did not limit the authority of a sentencing judge to discretionarily sentence a defendant above a guideline range so long as the sentence stayed within the statutorily authorized maximum.]

Profile photo of Albert W. Alschuler
Albert W. Alschuler
Julius Kreeger Professor Emeritus of Law and Criminology
Professor of Law, Northwestern University School of Law
The University of Chicago Law School