THE SIXTH AMENDMENT RIGHT TO A TRIAL BY JURY
The Guarantee of a Jury Trial
The Sixth Amendment provides, among other rights, that, "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 . . ."
Application of the Basic Right
The Sixth Amendment guarantees that "in all criminal prosecutions" the accused person shall have the right to have the case heard "by an impartial jury of the State and district" where the crime was committed. As originally conceived, this guarantee of a jury trial required the federal government to grant jury trials but left the states free to determine whether, when, and under what circumstances to offer a jury trial. The Sixth Amendment jury trial provision was incorporated into the Due Process Clause of the Fourteenth Amendment and made applicable to the states in Duncan v. Louisiana, 391 U.S. 145 (1968), This Lesson. According to Duncan, since a jury trial was considered to be among the fundamental principles of liberty and justice which were part of the foundation of all our civil and political institutions, the federal constitution required the states to offer jury trials. Once Duncan made the jury trial mandatory on the states, regardless of what the state constitutions had to say about the matter, the states had to grant jury trials in much the same manner as did the federal government.
Even though the Sixth Amendment speaks of allowing a jury trial in all criminal cases, the drafters of the Amendment did not contemplate that each minor offense charge should culminate in a trial jury. In support of allowing petty offenses to be tried without juries, Baldwin v. New York, 399 U.S. 117 (1970) held that a jury trial is constitutionally required only where the potential sentence is greater than six months incarceration. Thus, a reading of Duncan v. Louisiana and Baldwin requires a state to offer jury trials in serious cases punishable by incarceration longer than six months and permits a state to require bench trials for offenses where six months or less is the maximum penalty.
Precisely what constitutes a "petty" offense has been the subject of litigation where defendants have invited the Supreme Court categorize other offenses a "serious" for Sixth Amendment purposes. In Banton v. City of North Las Vegas, 489 U.S. 538 (1989), This Lesson, the litigants contended that the offense of driving under the influence of alcohol should be construed as a serious offense for which a jury trial should be required. While the Court admitted that a crime's seriousness was to be judged by the maximum allowable
custodial penalty and the Court was willing to consider the other penalties attached to such crime, it was not persuaded that the Nevada legislature considered the offense a serious crime. Thus, driving while intoxicated did not require the cause to be tried to a jury.
Jury Size and Nature of Verdict
The typical jury in a criminal case, in the minds of most people, consists of twelve persons who are representative of the local community who are empaneled to hear or judge a case. The jury hears the evidence and renders a verdict based on the facts of the case with a vote which generally must be unanimous A non-unanimous vote generally requires that the case be re-tried.
In contrast to the traditional jury practice, many states have experimented with avenues designed to minimize the size of the jury while maximizing the chances that it will come to a verdict. The government expenditure required for selecting and managing the jury system is significant, so measures which make the system less expensive, such as fewer jurors make sense in many ways.
In Williams v. Florida, 399 U.S. 78 (1970), Next Lesson, the Court approved the use of a six-person juries in a serious, non-capital cases. The Court noted that the selection of the number, twelve, was probably an historical accident, even though the number appears in the Bible as twelve tribes or twelve apostles. Since the number of jurors selected was an accident and since the intent of authors of the Sixth Amendment was not clearly known, a six person jury was not prohibited by the United States Constitution.
Following Williams, Florida and other states which utilize the six person jury could enjoy the financial benefits of lower costs of smaller juries as well as the probability that fewer hung juries would require retrials. Georgia attempted to reduce the six-person jury to a five person jury. In Ballew v. Georgia, 435 U.S. 223 (1978), the Court refused to approve the five-person jury trial for serious crimes on the theory that such a small body of persons would prove too small to allow for effective group deliberation and might produce a greater number of inaccurate verdicts.
In another areas of jury reform, Louisiana and a few other states eliminated the unanimity requirement for serious non-capital cases, permitting a 9-3 jury vote for either conviction or acquittal. Allowing non-unanimous jury verdicts lessened the number of hung juries and, consequently, lowered the number of retrials required. The Supreme Court approved the procedure despite allegations that a non-unanimous verdict called into question whether proof beyond a reasonable doubt was possible where three persons believed in innocence. In Johnson v. Louisiana, 406 U.S. 356 (1972), the Court upheld the non-unanimous verdict of 9-3 and rejected the contention that three dissenters would tend to impeach the vote of the other nine.
Efforts to combine aspects of both reduction in juror numbers and non-unanimous voting ran aground in Burch v. Louisiana, 441 U.S. 130 (1979), where the Court ruled that a non-unanimous six-person jury (a 5-1 vote) was not constitutionally permissible in serious, non-capital cases. If the line had to be drawn at some place concerning jury size and voting practice, the Court found the line in Burch and refused to move further from the traditional unanimous vote of twelve persons of the community.
Jury Selection: Racial and Gender Issues
The Constitution and case law require that a fair jury must be impaneled. While both the prosecution and defense desire a fair jury trial, most often each side would prefer a jury more "fair" to that side than the other. In the past, various efforts have been employed for a variety of reasons to keep persons of color and other minorities from serving on juries altogether or serving on some juries in particular. Where service was permitted, other methods had been devised to prevent particular individuals from seeing jury duty.
In Strauder v. West Virginia, 100 U.S. 303 (1880), the Court held that a state violated the Fourteenth Amendment guarantee of Equal Protection of the laws when it puts a black defendant before a jury "from which [all] members of his own race have been purposefully excluded." This case seems to have been the genesis of efforts by the Supreme Court to remove elements of racial discrimination from the courts in general and from jury selection, in particular.
Where a defendant could prove both that a prosecutor had used peremptory challenges to remove black prospective jurors and had a pattern of using this procedure, a violation of equal protection would have been proven. Swain v. Alabama, 380 U.S. 202 (1965). Under the Swain test, a prosecutor who discriminatorily removed jurors in one case was not likely to have a verdict disturbed on appeal on equal protection grounds. The virtually insurmountable burden which a defendant had to meet required proof of a pattern of discrimination, data difficult to obtain from the prosecutor's office.
Swain remained good law until the Court faced a similar claim in an updated setting. In Batson v. Kentucky, U.S. 79 (1986) a prosecutor used peremptory juror challenges to remove all blacks from the jury which resulted in an all white jury to hear the case of an African-American defendant. The defendant could not meet the Swain test by showing that the prosecutor, in trial after trial, whatever the crime and whoever the defendant, had systematically removed blacks from serving as jurors. The Court announced that the Swain test had been slowly eroded by later decisions and that, henceforth, a defendant may establish a prima facie case of purposeful discrimination solely on evidence concerning the prosecutor's use of peremptory challenges. According to Batson, the defendant would have to show that he or she is a member of a cognizable racial group and that the prosecutor exercised peremptory challenges to remove members of defendant's race from the jury. The defendant must show that the facts raise an inference that the prosecutor excluded the jurors due to race. Then, the prosecutor must come forward with a race-neutral explanation for challenging black jurors. Batson effectively overturned the Swain test and substituted a more rational and workable approach.
While a member of a racial minority can use the Batson test for judging discrimination in jury selection, the same theory may be employed by a member of a racial majority. In Powers v. Ohio, 499 U.S. 400 (1991), the Court focused on the rights of jurors rather than a defendant's rights. The Court held that although an individual juror does not have the right to sit on any jury, he or she does possess the right not to be removed from jury service due to race.
In a further decision dealing with racial discrimination in jury selection, Georgia v. McCollum, 505 U.S. 42 (1992), Next Lesson, the Court held that criminal defendants cannot use peremptory challenges based on race. Just as the prosecutor in Batson has been prohibited from using racial criteria, the Court applied a similar reasoning the prevent the defendant from doing the same thing.
The purpose of a jury in a trial is to insulate the defendant from an unfair or overzealous prosecutor or judge. This role cannot successfully implemented where a jury is too small or where a significant agreement of the majority is not required for a decision or where racial discrimination taints the selection of the jury.
The Sixth Amendment Right to Counsel Applies in State Cases
DUNCAN v. LOUISIANA, Supreme Court of the United States (1968), 391 U.S. 145, 88 S.Ct. 1444
FACTS:
While driving in Plaquemines Parish, appellant Duncan observed two of his cousins in a conversation with four white boys. Since racial incidents had occurred in the recent past, he stopped to see if anything was amiss. Duncan urged his cousins to come with him and was about to enter his automobile when a small altercation developed.
The white boys testified that Duncan slapped one of them on the arm while Duncan and his partisans related a story which indicated Duncan had only lightly touched the elbow of the white boy. As a result of the encounter, Duncan was charged with simple battery for which the maximum penalty was two years imprisonment and a $300 fine. The trial court rejected Duncan's request for a jury trial, citing Louisiana law which granted jury trials only where imprisonment at hard labor or the death penalty could be imposed.
The bench trial resulted in a conviction for simple battery and a sentence which required Duncan to serve 60 days in the parish prison and a $150 fine. Having properly preserved the jury trial issue, Duncan requested that the Supreme Court of Louisiana hear the case. After the state supreme court denied to consider the case, Duncan applied to the Supreme Court of the United States for a grant of certiorari. Subsequently, the Court granted the writ.
PROCEDURAL QUESTION:
Where the potential punishment for a crime consists of up to two years imprisonment and a $300 fine, is such a crime considered a serious criminal offense for which the Sixth Amendment right to a jury trial applies?
HELD: Yes.
RATIONALE:
Mr. Justice WHITE delivered the opinion of the Court.
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The test for determining whether a right extended by the Fifth and Sixth Amendments with respect to federal criminal proceedings is also protected against state action by the Fourteenth Amendment has been phrased in a variety of ways in the opinions of this Court. The question has been asked whether a right is among those "fundamental principles of liberty and justice which lie at the base of all our civil and political institutions," Powell v. State of Alabama, 287 U.S. 45, 67, 53 S.Ct. 55, 63, 77 L.Ed. 158 (1932); whether it is "basic in our system of jurisprudence," In re Oliver, 333 U.S. 257, 273, 68 S.Ct. 499, 507, 92 L.Ed. 682 (1948); and whether it is "a fundamental right, essential to a fair trial," Gidedon v. Wainwright, 372 U.S. 335, 343-344, 83 S.Ct. 792, 796, 9 L.Ed.2d 799 (1963); (citations omitted). The claim before us is that the right to trial by jury guaranteed by the Sixth Amendment meets these tests. The position of Louisiana, on the other hand, is that the Constitution imposes upon the States no duty to give a jury trial in any criminal case, regardless of the seriousness of the crime or the size of the punishment which may be imposed. Because we believe that trial by jury in criminal cases is fundamental to the American scheme of justice, we hold that the Fourteenth Amendment guarantees a right of jury trial in all criminal cases which--were they to be tried in a federal court--would come within the Sixth Amendment's guarantee. Since we consider the appeal before us to be such a case, we hold that the Constitution was violated when appellant's demand for jury trial was refused.
The history of trial by jury in criminal cases has been frequently told. It is sufficient for present purposes to say that by the time our Constitution was written, jury trial in criminal cases had been in existence in England for several centuries and carried impressive credentials traced by many to the Magna Carta. Its preservation and proper operation as a protection against arbitrary rule were among the major objectives of the revolutionary settlement which was expressed in the Declaration and Bill of Rights of 1689.
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The constitutions adopted by the original States guaranteed jury trials. Also, the constitution of every State entering the Union thereafter in one form or another protected the right to jury trial in criminal cases.
Even such skeletal history is impressive support for considering the right to jury trial in criminal cases to be fundamental to our system of justice, an importance frequently recognized in the opinions of this Court.
We are aware of prior cases in this Court in which the prevailing opinion contains statements contrary to our holding today that the right to jury trial in serious criminal cases is a fundamental right and hence must be recognized by the States as part of their obligation to extend due process of law to all persons within their jurisdiction. Louisiana relies especially on Maxwell v. Dow. None of these cases, however, dealt with a State which had purported to dispense entirely with a jury trial in serious criminal cases. Maxwell held that no provision of the Bill of Rights applied to the States--a position long since repudiated--and that the Due Process Clause of the Fourteenth Amendment did not prevent a State from trying a defendant for a noncapital offense with fewer than 12 men on the jury. It did not deal with a case in which no jury at all had been provided. In neither Palko nor Snyder was jury trial actually at issue, although both cases contain important dicta asserting that the right to a jury trial is not essential to ordered liberty and may be dispensed with by the States regardless of the Sixth and Fourteenth Amendments.
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The guarantees of jury trial in the Federal and State Constitutions reflect a profound judgment about the way in which law should be enforced and justice administered. A right to jury trial is granted to criminal defendants in order to prevent oppression by the Government. Those who wrote our constitutions knew from history and experience that it was necessary to protect against unfounded criminal charges brought to eliminate enemies and against judges too responsive to the voice of higher authority. The framers of the constitutions strove to create an independent judiciary but insisted upon further protection against arbitrary action. 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 complaisant, biased, or eccentric judge. If the defendant preferred the common-sense judgment of a jury to the more tutored but perhaps less sympathetic reaction of the single judge, he was to have it. Beyond this, the jury trial provisions in the Federal and State Constitutions reflect a fundamental decision about the exercise of official power--a reluctance to entrust plenary powers over the life and liberty of the citizen to one judge or to a group of judges. Fear of unchecked power, so typical of our State and Federal governments in other respects, found expression in the criminal law in this insistence upon community participation in the determination of guilt or innocence. The deep commitment of the Nation to the right of jury trial in serious criminal cases as a defense against arbitrary law enforcement qualifies for protection under the Due Process Clause of the Fourteenth Amendment, and must therefore be respected by the States.
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The State of Louisiana urges that holding that the Fourteenth Amendment assures a right to jury trial will cast doubt on the integrity of every trial conducted without a jury. Plainly this is not the import of our holding. Our conclusion is that in the American States, as in the federal judicial system, a general grant of jury trial for serious offenses is a fundamental right, essential for preventing miscarriages of justice and for assuring that fair trials are provided for all defendants. We would not assert, however, that every criminal trial--or any particular trial--held before a judge alone is unfair or that a defendant may never be as fairly treated by a judge as he would be by a jury. Thus we hold no constitutional doubts about the practices, common in both federal and state courts, of accepting waivers of jury trial and prosecuting petty crime without extending a right to jury trial. However, the fact is that in most places more trials for serious crimes are to juries than to a court alone; a great many defendants prefer the judgment of a jury to that of a court. Even where defendants are satisfied with bench trials, the right to a jury trial very likely serves its intended purpose of making judicial or prosecutorial unfairness less likely.
II
Louisiana's final contention is that even if it must grant jury trials in serious criminal cases, the conviction before us is valid and constitutional because here the petitioner was tried for simple battery and was sentenced to only 60 days in the parish prison. We are not persuaded. It is doubtless true that there is a category of petty crimes or offenses which is not subject to the Sixth Amendment jury trial provision and should not be subject to the Fourteenth Amendment jury trial requirement here applied to the States. Crimes carrying possible penalties of up to six months do not require a jury trial if they otherwise qualify as petty offenses, Cheff v. Schnackenberg, 384 U.S. 373, 86 S.Ct. 1523,16 L.Ed.2d 629 (1966). But the penalty authorized for a particular crime is of major relevance in determining whether it is serious or not and may in itself, if severe enough, subject the trial to the mandates of the Sixth Amendment. District of Columbia v. Clawans, 300 U.S. 617, 57 S.Ct. 660, 81 L.Ed. 843 (1937) . . . The question then, is whether a crime carrying such a penalty is an offense which Louisiana may insist on trying without a jury.
We think not. So-called petty offenses were tried without juries both in England and in the Colonies and have always been held to be exempt from the otherwise comprehensive language of the Sixth Amendment's jury trial provisions. There is no substantial evidence that the framers intended to depart from this established common-law practice, and the possible consequences to defendants from convictions for petty offenses have been thought insufficient to outweigh the benefits to efficient law enforcement and simplified judicial administration resulting from the availability of speedy and inexpensive nonjury adjudications. These same considerations compel the same result under the Fourteenth Amendment. Of course the boundaries of the petty offense category have always been ill-defined, if not ambulatory. In the absence of an explicit constitutional provision, the definitional task necessarily falls on the courts, which must either pass upon the validity of legislative attempts to identify those petty offenses which are exempt from jury trial or, where the legislature has not addressed itself to the problem, themselves face the question in the first instance. In either case it is necessary to draw a line in the spectrum of crime, separating petty from serious infractions. This process, although essential, cannot be wholly satisfactory, for it requires attaching different consequences to events which, when they lie near the line, actually differ very little.
In determining whether the length of the authorized prison term or the seriousness of other punishment is enough in itself to require a jury trial, we are counseled by District of Columbia v. Clawans, supra, to refer to objective criteria, chiefly the existing laws and practices in the Nation. In the federal system, petty offenses are defined as those punishable by no more than six months in prison and a $500 fine. In 49 of the 50States crimes subject to trial without a jury, which occasionally include simple battery, are punishable by no more than one year in jail. Moreover, in the late 18th century in America crimes triable without a jury were for the most part punishable by no more than a six month prison term, although there appear to have been exceptions to this rule. We need not, however, settle in this case the exact location of the line between petty offenses and serious crimes. It is sufficient for our purposes to hold that a crime punishable by two years in prison is, based on past and contemporary standards in this country, a serious crime and not a petty offense. Consequently, appellant was entitled to a jury trial and it was error to deny it.
The judgment below is reversed and the case is remanded for proceedings not inconsistent with this opinion.
Reversed and remanded.
Notes
1. From your reading of Duncan, what minimum length of potential incarceration allows the defendant to request a trial by jury? Only two years? Or would one year be sufficient? According to Baldwin v. New York, 399 U.S. 117 (1970), the right to a trial by jury begins for offenses for which the maximum penalty is greater than six months incarceration. A sentence of that length crosses the line between "petty" offenses and serious crimes, according to the Baldwin court. Would a defendant consider the possibility of six months a "non-serious" loss of freedom?
2. While the right to a jury trial in a serious criminal case constitutes a constitutional right under Duncan, what about a defendant who does not want to face a jury? May the defendant waive a jury trial? As a general rule, a trial by jury may be waived by a defendant who is addressed by the judge and clearly and unequivocally asks not to have a jury trial.
3. Could some crimes which carry sentences of six months or less be considered "serious" for which a trial by jury should be allowed? What about possession of small amounts of recreational pharmaceuticals which could the defendant to lose a job? What about driving while intoxicated? Is this a serious offense? Why or why not? Consider the next principal case.
Sixth Amendment Jury Trial Right Is Not Extended to Non-serious Crimes
Blanton v. City of North Las Vegas, Supreme Court of the United States (1989), 489 U.S. 538, 109 S.Ct. 1289
FACTS:
Defendants contend that the offense of driving under the influence of alcohol [DUI] constitutes a serious crime for which the opportunity to have a trial by jury should exist.
Under Nevada law, DUI is punishable by a minimum term of two days' imprisonment and up to a maximum term of six months' imprisonment. The defendant automatically loses his driver's license for 90 days, and he must attend, at his own expense, an alcohol abuse education course. As an alternative to two days' incarceration, a court may order the defendant to perform two days of work for the community while dressed in distinctive clothing which identifies the individual as a convicted DUI offender." In addition to the above, the defendant may be subject to a fine ranging from $200 to $1,000. Habitual offenders are subject to enhanced penalties.
PROCEDURAL QUESTION:
Is the offense of driving under the influence of alcohol, as stated under Nevada law, a sufficiently serious crime that the application of the Sixth Amendment right to a trial by jury is constitutionally required?
HELD: No.
RATIONALE:
JUSTICE MARSHALL delivered the opinion of the Court.
The issue in this case is whether there is a constitutional right to a trial by jury for persons charged under Nevada law with driving under the influence of alcohol (DUI). Nev. Rev. Stat. 484.379(1) (1987). We hold that there is not.
It has long been settled "that there is a category of petty crimes or offenses which is not subject to the Sixth Amendment jury trial provision." Duncan v. Louisiana, 391 U.S. 145, 159 (1968); see also District of Columbia v. Clawans, 300 U.S. 617, 624 (1937); Callan v. Wilson, 127 U.S. 540, 557 (1888). In determining whether a particular offense should be categorized as "petty," our early decisions focused on the nature of the offense and on whether it was triable by a jury at common law.
* * In recent years, we have sought more "objective indications of the seriousness with which society regards the offense." Frank v. United States, 395 U.S. 147, 148 (1969). "[W]e have found the most relevant such criteria in the severity of the maximum authorized penalty." Baldwin v. New York, 399 U.S. 66, 68 (1970) (plurality opinion); see also Duncan, supra, at 159.
In using the word "penalty," we do not refer solely to the maximum prison term authorized for a particular offense. A legislature's view of the seriousness of an offense also is reflected in the other penalties that it attaches to the offense. See United States v. Jenkins, 780 F.2d 472, 474, and n. 3 (CA4), cert. denied, 476 U.S. 1161 (1986). We thus examine "whether the length of the authorized prison term or the seriousness of other punishment is enough in itself to require a jury trial."
Following this approach, our decision in Baldwin established that a defendant is entitled to a jury trial whenever the offense for which he is charged carries a maximum authorized prison term of greater than six months. 399 U.S., at 69; see id., at 74-76 (Black, J., concurring in judgment). The possibility of a sentence exceeding six months, we determined, is "sufficiently severe by itself" to require the opportunity for a jury trial. Id., at 69, n. 6. As for a prison term of six months or less, we recognized that it will seldom be viewed by the defendant as "trivial or 'petty.'" Id., at 73. But we found the disadvantages of such a sentence, "onerous though they may be, may be outweighed by the benefits that result from speedy and inexpensive nonjury adjudications." Ibid.; see also Duncan, supra, at 160.
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A defendant is entitled to a jury trial in such circumstances only if he can demonstrate that any additional statutory penalties, viewed in conjunction with the maximum authorized period of incarceration, are so severe that they clearly reflect a legislative determination that the offense in question is a "serious" one. This standard, albeit somewhat imprecise, should ensure the availability of a jury trial in the rare situation where a legislature packs an offense it deems "serious" with onerous penalties that nonetheless "do not puncture the 6-month incarceration line." Brief for Petitioners 16.
Applying these principles here, it is apparent that petitioners are not entitled to a jury trial. The maximum authorized prison sentence for first-time DUI offenders does not exceed six months. . . . [T]he Nevada legislature has . . . indicated that a DUI is [not] a serious offense.
Viewed together, the statutory penalties are not so severe that DUI must be deemed a "serious" offense for purposes of the Sixth Amendment. It was not error, therefore, to deny petitioners jury trials. Accordingly, the judgment of the Supreme Court of Nevada is Affirmed.
Notes
1. Should a criminal case which could cause a severe loss of reputation in the community be considered sufficiently serious so that a jury trial would be permitted? Consider the case of a prominent citizen charged with shoplifting? Is such case not "serious" to the individual involved? One matter to note is that Duncan and Blanton merely give the limits for when a jury trial is constitutionally required and when one is not. Nothing prohibits a state from offering jury trials for offenses which have less than six months incarceration as the maximum penalty.