CITES BY TOPIC:  jury trial

Seventh Amendment

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.

[Seventh Amendment]


Seventh Amendment Annotated: Trial by Jury in Civil Cases

The Right and the Characteristics of the Civil Jury

  History .--On September 12, 1787, as the Convention was in its final stages, Mr. Williamson of North Carolina ''observed to the House that no provision was yet made for juries in Civil cases and suggested the necessity of it.'' The comment elicited some support and the further observation that because of the diversity of practice in civil trials in the States it would be impossible to draft a suitable provision. 1 When on September 15 it was moved that a clause be inserted in Article III, Sec. 2, to guarantee that ''a trial by jury shall be preserved as usual in civil cases,'' this objection seems to have been the only one urged in opposition and the motion was defeated. 2 The omission, however, was cited by many opponents of ratification and ''was pressed with an urgency and zeal . . . well-nigh preventing its ratification.'' 3 A guarantee of right to jury in civil cases was one of the amendments urged on Congress by the ratifying conventions 4 and it was included from the first among Madison's proposals to the House. 5 It does not appear that the text of the proposed amendment or its meaning was debated during its passage. 6  

  Composition and Functions of Civil Jury .--Traditionally, the Supreme Court has treated the Seventh Amendment as preserving the right of trial by jury in civil cases as it ''existed under the English common law when the amendment was adopted.'' 7 The right was to ''a trial by a jury of twelve men, in the presence and under the superintendence of a judge empowered to instruct them on the law and to advise them on the facts and (except in acquittal of a criminal charge) to set aside their verdict if in his opinion it is against the law or the evidence.'' 8 Decision of the jury must be by unanimous verdict. 9 In Colgrove v. Battin, 10 however, the Court by a five-to-four vote held that rules adopted in a federal district court authorizing civil juries composed of six persons were permissible under the Seventh Amendment and congressional enactments. By the reference in the Amendment to the ''common law,'' the Court thought, ''the Framers of the Seventh Amendment were concerned with preserving the right of trial by jury in civil cases where it existed at common law, rather than the various incidents of trial by jury.'' 11  

The Amendment has for its primary purpose the preservation of ''the common law distinction between the province of the court and that of the jury, whereby, in the absence of express or implied consent to the contrary, issues of law are resolved by the court and issues of fact are to be determined by the jury under appropriate instructions by the court.'' 12 But it ''does not exact the retention of old forms of procedure'' nor does it ''prohibit the introduction of new methods of ascertaining what facts are in issue'' or new rules of evidence. 13 Those matters which were tried by a jury in England in 1791 are to be so tried today and those matters which, as in equity, were tried by the judge in England in 1791 are to be so tried today, 14 and when new rights and remedies are created ''the right of action should be analogized to its historical counterpart, at law or in equity, for the purpose of determining whether there is a right of jury trial,'' unless Congress has expressly prescribed the mode of trial. 15  

  Courts in Which the Guarantee Applies .--The Amendment governs only courts which sit under the authority of the United States, 16 including courts in the territories 17 and the District of Columbia, 18 and does not apply generally to state courts. 19 But when a state court is enforcing a federally created right, of which the right to trial by jury is a substantial part, the States may not eliminate trial by jury as to one or more elements. 20 Ordinarily, a federal court enforcing a state-created right will follow its own rules with regard to the allocation of functions between judge and jury, a rule the Court based on the ''interests'' of the federal court system, eschewing reliance on the Seventh Amendment but noting its influence. 21  

  Waiver of the Right .--Parties may enter into a stipulation waiving a jury and submitting the case to the court upon an agreed statement of facts, even without any legislative provision for waiver. 22 Prior to adoption of the Federal Rules, Congress had, ''by statute, provided for the trial of issues of fact in civil cases by the court without the intervention of a jury, only when the parties waive their right to a jury by a stipulation in writing.'' 23 Under the Federal Rules of Civil Procedure, any party may make a timely demand for a trial by jury of any issue triable of right by a jury by serving upon the other parties a demand therefor in writing, and failure so to serve a demand constitutes a waiver of the right. 24 However, a waiver is not to be implied from a request for a directed verdict. 25  

_____________________

Footnotes

[Footnote 1] 2 M. Farrand, Records of the Federal Convention of 1787, at 587 (rev. ed. 1937).

[Footnote 2] Id. at 628.

[Footnote 3] J. Story, Commentaries on the Constitution of the United States 1757 (1833). ''[I]t is a most important and valuable amendment; and places upon the high ground of constitutional right the inestimable privilege of a trial by jury in civil cases, a privilege scarcely inferior to that in criminal cases, which is conceded by all to be essential to political and civil liberty.'' Id. at 1762.

[Footnote 4] J. Elliott, The Debates in the Several State Conventions on the Adoption of the Federal Constitution 326 (2d ed. 1836) (New Hampshire); 2 id. at 399-414 (New York); 3 id. at 658 (Virginia).

[Footnote 5] 1 Annals of Congress 436 (1789). ''In suits at common law, between man and man, the trial by jury, as one of the best securities to the rights of the people, ought to remain inviolate.''

[Footnote 6] It is simply noted in 1 Annals of Congress 760 (1789), that on August 18 the House ''considered and adopted'' the committee version: ''In suits at common law, the right of trial by jury shall be preserved.'' On September 7, the Senate Journal states that this provision was adopted after insertion of ''where the consideration exceeds twenty dollars.'' 2 B. Schwartz, The Bill of Rights: A Documentary History 1150 (1971).

[Footnote 7] Baltimore & Carolina Line v. Redman, 295 U.S. 654, 657 (1913); Parsons v. Bedford, 28 U.S. (3 Pet.) 433, 446 -48 (1830).

[Footnote 8] Capital Traction Co. v. Hof, 174 U.S. 1, 13 (1899).

[Footnote 9] Maxwell v. Dow, 176 U.S. 581 (1900); American Publishing Co. v. Fisher, 166 U.S. 464 (1897); Springville v. Thomas, 166 U.S. 707 (1897).

[Footnote 10]   413 U.S. 149 (1973). Justices Marshall and Stewart dissented on constitutional and statutory grounds, id. at 166, while Justices Douglas and Powell relied only on statutory grounds without reaching the constitutional issue. Id. at 165, 188.

[Footnote 11] Id. at 155-56. The Court did not consider what number less than six, if any, would fail to satisfy the Amendment's requirements. ''What is required for a 'jury' is a number large enough to facilitate group deliberation combined with a likelihood of obtaining a representative cross section of the community. . . . It is undoubtedly true that at some point the number becomes too small to accomplish these goals . . .'' Id. at 160 n.16. Application of similar reasoning has led the Court to uphold elimination of the unanimity as well as the 12- person requirement for criminal trials. See Williams v. Florida, 399 U.S. 78 (1970) (jury size); Apodaca v. Oregon, 406 U.S. 404 (1972) (unanimity); and discussion supra pp.1408-10.

[Footnote 12] Baltimore & Carolina Line v. Redman, 295 U.S. 654, 657 (1935); Walker v. New Mexico & So. Pac. R.R., 165 U.S. 593, 596 (1897); Gasoline Products Co. v. Champlin Ref. Co., 283 U.S. 494, 497 -99 (1931); Dimick v. Schiedt, 293 U.S. 474, 476 , 485-86 (1935).

[Footnote 13] Gasoline Products Co. v. Champlin Ref. Co., 283 U.S. 494, 498 (1931); Ex parte Peterson, 253 U.S. 300, 309 (1920).

[Footnote 14] Parsons v. Bedford, 28 U.S. (3 Pet.) 433, 446 -47 (1830); Slocum v. New York Life Ins. Co., 228 U.S. 364, 377 -78 (1913); Baltimore & Carolina Line v. Redman, 295 U.S. 654, 657 (1935); Dimick v. Schiedt, 293 U.S. 474, 476 (1935). But see Ross v. Bernhard, 396 U.S. 531 (1970), which may foreshadow a new analysis.

[Footnote 15] Luria v. United States, 231 U.S. 9, 27 -28 (1913).

[Footnote 16] Pearson v. Yewdall, 95 U.S. 294, 296 (1877); Edwards v. Elliott, 88 U.S. (21 Wall.) 532, 557 (1874); The Justices v. Murray, 76 U.S. (9 Wall.) 274, 277 (1870); Walker v. Sauvinet, 92 U.S. 90 (1876); St. Louis & K.C. Land Co. v. Kansas City, 241 U.S. 419 (1916).

[Footnote 17] Webster v. Reid, 52 U.S. (11 How.) 437, 460 (1851); Kennon v. Gilmer, 131 U.S. 22, 28 (1889).

[Footnote 18] Capital Traction Co. v. Hof, 174 U.S. 1, 5 (1899).

[Footnote 19] Minneapolis & St. Louis R.R. v. Bombolis, 241 U.S. 211 (1916). See also Melancon v. McKeithen, 345 F. Supp. 105 (E.D.La.) (three-judge court), aff'd. per curiam, 409 U.S. 943 (1972); Alexander v. Virginia, 413 U.S. 836 (1973).

[Footnote 20] Dice v. Akron, C. & Y. R.R., 342 U.S. 359 (1952). Four dissenters contended that the ruling was contrary to the unanimous decision in Bombolis.

[Footnote 21] Byrd v. Blue Ridge Rural Elec. Coop., 356 U.S. 525 (1958) (citing Herron v. Southern Pacific Co., 283 U.S. 91 (1931)).

[Footnote 22] Henderson's Distilled Spirits, 81 U.S. (14 Wall.) 44, 53 (1872); Rogers v. United States, 141 U.S. 548, 554 (1891); Parsons v. Armor, 28 U.S. (3 Pet.) 413 (1830); Campbell v. Boyreau, 62 U.S. (21 How.) 223 (1859).

[Footnote 23] Baylis v. Travellers' Ins. Co., 113 U.S. 316, 321 (1885). The provision did not preclude other kinds of waivers, Duignan v. United States, 274 U.S. 195, 198 (1927), though every reasonable presumption was indulged against a waiver. Hodges v. Easton, 106 U.S. 408, 412 (1883).

[Footnote 24] Fed. R. Civ. P. 38.

[Footnote 25] Aetna Life Ins. Co. v. Kennedy, 301 U.S. 389 (1937); Fed. R. Civ. P. 50(a).


Title 28, Chapter 121: Juries; Trial by jury


Rutter Group Practice Guide, Federal Civil Trials and Evidence, paragraph 2:49:

"(1) [2:49]  "Legal" vs. "equitable" relief-in general: In general, where plaintiff seeks money damages, the action is deemed "at law" and there is a right to jury trial.  On the other hand, where plaintiff seeks any traditional equitable remedy (injunction, accounting, restitution, etc.), a jury trial is not required . [Tull v. United States, supra, 481 US at 417, 107 S.Ct. 16 1835]"

[Rutter Group Practice Guide, Federal Civil Trials and Evidence, paragraph 2:49, Rev. #1 2000]


Rutter Group Practice Guide, Federal Civil Trials and Evidence, paragraph 2:55:

"(b) [2:44]  Compare-primacy of legal issues: But if a case involves legal issues, courts may not deny a jury trial by characterizing the legal issues as merely "incidental" or "insignificant" in comparison to the equitable issues. [Dairy Queen, Inc. v. Wood, 369 U.S. 469 (1962), 82 S.Ct. 894, 897; see 2:75]

[Rutter Group Practice Guide, Federal Civil Trials and Evidence, paragraph 2:55, Rev. #1 2000]


Rutter Group Practice Guide, Federal Civil Trials and Evidence, paragraphs 2:175-2:176:

"1. [2:175]  Jury Trial by Consent:  Even where there is no statutory or constitutional right to a jury trial, the court may order a jury trial in any case with the parties' consent.  The verdict will have the same effect as if trial by jury had been a matter of right.  [FRCP 39(c); Gloria v. Vallen Grain Products, Inc. (5th Cir. 1996) 72 F3d 497, 499; Ed Peters Jewelry Co., Inc. v. C & J Jewelry Co., Inc. (1st Cir. 2000) 215 F3d 182, 188--when both parties consent, Rule 39(c) invests trial court with "discretion--but not the duty--to submit an equitable claim" to jury for binding verdict]

"a. [2:176]  Exception--actions against U.S.: The parties cannot consent to a jury trial in actions against the United States when a federal statute provides for trial without a jury (e.g. 28 USC §2402 provides that most contract and tort claims against the U.S. shall be tried without a jury). [FRCP 39(c)]"

[Rutter Group Practice Guide, Federal Civil Trials and Evidence, paragraphs 2:175-2:176, Rev. #1 2000]


Rutter Group Practice Guide, Federal Civil Trials and Evidence, paragraphs 2:235:

"5.  [2:235]  Waiver of Right:  The right to a jury trial may be waived by:

--failure to timely demand a jury

--prior agreement not to demand a jury.

--participating without objection in a bench trial

There is, however, a presumption against waiver of the constitutional right to jury trial.  [Middle Tenn. News Co., Inc. v. Charnel of Cincinnati, Inc. (7thy Cir. 2001) 250 F3d 1077, 1083]

[Rutter Group Practice Guide, Federal Civil Trials and Evidence, paragraphs 2:235, Rev. #1 2004]


28 U.S.C. 1330(a): Actions Against Foreign States

TITLE 28 > PART IV > CHAPTER 85 > § 1330

§ 1330. Actions against foreign states

(a) The district courts shall have original jurisdiction without regard to amount in controversy of any nonjury civil action against a foreign state as defined in section 1603 (a) of this title as to any claim for relief in personam with respect to which the foreign state is not entitled to immunity either under sections 1605–1607 of this title or under any applicable international agreement.

[NOTE:  This means no jury trial in actions against Foreign States.]


Tull v. United States, 481 U.S. 412 (1987)

"The essential function of an action to abate a public nuisance was to provide a civil means to redress "a miscellaneous and diversified group of minor criminal offenses, based on some interference with the interests of the community, or the comfort or convenience of the general public." Prosser 583. 5 Similarly, the essential function of an action in debt was to recover money owed under a variety of statutes or under the common law. Both of these 18th-century actions, then, could be asserted by the sovereign to seek relief for an injury to the public in numerous contexts.

"We need not rest our conclusion on what has been called an "abstruse historical" search for the nearest 18th-century analog. See Ross v. Bernhard, 396 U.S., at 538 , n. 10. We reiterate our previously expressed view that characterizing the relief sought is "[m]ore important" than finding a precisely analogous common-law cause of action in determining whether the Seventh Amendment guarantees a jury trial. Curtis v. Loether, 415 U.S., at 196 . 6   [481 U.S. 412, 422]  

[. . .]

"In such a situation, if a "legal claim is joined with an equitable claim, the right to jury trial on the legal claim, including all issues common to both claims, remains intact. The right cannot be abridged by characterizing the legal claim as `incidental' to the equitable relief sought." Curtis v. Loether, 415 U.S., at 196 , n. 11. Thus, petitioner has a constitutional right to a jury trial to determine his liability on the legal claims."

[Tull v. United States, 481 U.S. 412 (1987)]


Test v. United States, 420 U.S. 28 (1975)

"An unqualified right of a litigant to inspect jury lists held required not only by the plain text of the provisions of the Jury Selection and Service Act of 1968, 28 U.S.C. 1867 (f), allowing the parties in a case "to inspect" such lists at all reasonable times during the "preparation" of a motion challenging compliance with jury selection procedures, but also by the Act's overall purpose of insuring "grand and petit juries selected at random from a fair cross section of the community," 28 U.S.C. 1861. Hence, where the District Court denied petitioner's motion, prior to his trial and conviction on a federal drug charge, to inspect the jury lists in connection with his challenge to the grand and petit juries-selection procedures, the Court of Appeals' judgment affirming his conviction is vacated, and the case is remanded so that he may attempt to support his challenge. "

[Test v. United States, 420 U.S. 28 (1975)]


Federal Rules of Civil Procedure, Rule 38: Jury Trial of Right

VI. TRIALS > Rule 38.

Rule 38. Jury Trial of Right

(a) Right Preserved.

The right of trial by jury as declared by the Seventh Amendment to the Constitution or as given by a statute of the United States shall be preserved to the parties inviolate.

(b) Demand.

Any party may demand a trial by jury of any issue triable of right by a jury by (1) serving upon the other parties a demand therefor in writing at any time after the commencement of the action and not later than 10 days after the service of the last pleading directed to the issue, and (2) filing the demand as required by Rule 5(d). Such demand may be indorsed upon a pleading of the party.

(c) Same: Specification of Issues.

In the demand a party may specify the issues which the party wishes so tried; otherwise the party shall be deemed to have demanded trial by jury for all the issues so triable. If the party has demanded trial by jury for only some of the issues, any other party within 10 days after service of the demand or such lesser time as the court may order, may serve a demand for trial by jury of any other or all of the issues of fact in the action.

(d) Waiver.

The failure of a party to serve and file a demand as required by this rule constitutes a waiver by the party of trial by jury. A demand for trial by jury made as herein provided may not be withdrawn without the consent of the parties.

(e) Admiralty and Maritime Claims.

These rules shall not be construed to create a right to trial by jury of the issues in an admiralty or maritime claim within the meaning of Rule 9(h).


28 U.S.C. 2402: Jury Trial in actions against the United States

TITLE 28 > PART VI > CHAPTER 161 > § 2402

§ 2402. Jury trial in actions against United States

Subject to chapter 179 of this title, any action against the United States under section 1346 shall be tried by the court without a jury, except that any action against the United States under section 1346 (a)(1) shall, at the request of either party to such action, be tried by the court with a jury.


Holland v. Illinois, 493 U.S. 474 (1990)

Fifteen years ago, in Taylor v. Louisiana, 419 U.S. 522 (1975), we unambiguously held that "the American concept of [493 U.S. 509] the jury trial contemplates a jury drawn from a fair-cross-section of the community." Id. at 527. Although Taylor's reliance on the Sixth Amendment was novel, the constitutional principle that it vindicated was ancient. Long before Duncan v. Louisiana, 391 U.S. 145 (1968), held that the Sixth Amendment is applicable to the States, it was "part of the established tradition in the use of juries as instruments of public justice that the jury be a body truly representative of the community," Smith v. Texas, 311 U.S. 128, 130 (1940), and exclusion of a cognizable group from jury service was considered to "contraven[e] the very idea of a jury." Carter v. Jury Comm'n of Greene County, 396 U.S. 320, 330 (1970).{7} We stated over a century ago -- and have often reiterated since -- [493 U.S. 510] that a defendant is entitled to "an impartial jury trial, by jurors indifferently selected or chosen without discrimination against such jurors because of their color." Ex parte Virginia, 100 U.S. 339, 345 (1880) (citing Strauder v. West Virginia, 100 U.S. 303 (1880)). Just as the potential juror has the right not to be excluded from jury service solely on account of race, so

[a]n accused is entitled to have charges against him considered by a jury in the selection of which there has been neither inclusion nor exclusion because of race.

Cassell v. Texas, 339 U.S. 282, 287 (1950) (plurality opinion); see also id. at 295 (Frankfurter, J., concurring) ("The prohibition of the Constitution against discrimination because of color does not require in and of itself the presence of a Negro on a jury. . . . The basis of selection cannot consciously [493 U.S. 511] take color into account. Such is the command of the Constitution").

The fair-cross-section principle is central to our understanding of the Sixth Amendment. It has been upon the basis of the promise of the fair-cross-section that we have held that a six-person jury does not contravene the Constitution, see Williams v. Florida, 399 U.S. 78, 102 (1970) ("As long as arbitrary exclusions of a particular class from the jury rolls are forbidden, see, e.g., Carter v. Jury Commission, 396 U.S. 320, 329-330 (1970), the concern that the cross-section will be significantly diminished if the jury is decreased in size from 12 to six seems an unrealistic one"), and that we have permitted nonunanimous verdicts, see Apodaca v. Oregon, 406 U.S. 404, 413 (1972) (opinion of WHITE, J.) ("All that the Constitution forbids, however, is systematic exclusion of identifiable segments of the community from jury panels and from the juries ultimately drawn from those panels") (emphasis added). It has also been on the basis of the fair-cross-section requirement that we have refused to scrutinize jury verdicts under the Equal Protection Clause, see McCleskey v. Kemp, 481 U.S. 279, 309-310 (1987) ("Because of the risk that the factor of race may enter the criminal justice process, we have engaged in `unceasing efforts' to eradicate racial prejudice from our criminal justice system. Batson v. Kentucky, 476 U.S. 79, 85 (1986). Our efforts have been guided by our recognition that `the inestimable privilege of trial by jury . . . is a vital principle, underlying the whole administration of criminal justice,' Ex parte Milligan, 4 Wall. 2, 123 (1866). Thus, it is the jury that is a criminal defendant's fundamental `protection of life and liberty against race or color prejudice.' Strauder v. West Virginia, 100 U.S. 303, 309 (1880)").{8} [493 U.S. 512]

The fair-cross-section requirement mandates the use of a neutral selection mechanism to generate a jury representative of the community. It does not dictate that any particular group or race have representation on a jury. See Lockhart v. McCree, 476 U.S. 162, 173, 178 (1986); Taylor, 419 U.S. at 538; Apodaca, 406 U.S. at 413 (opinion of WHITE, J.); Carssell, 339 U.S. at 286-287. The Constitution does not permit the easy assumption that a community would be fairly represented by a jury selected by proportional representation of different races any more than it does that a community would be represented by a jury composed of quotas of jurors of different classes. Cf. Castaneda v. Partida, 430 U.S. 482, 499-500 (1977); see also id. at 503 (MARSHALL, J., concurring).{9} In fact, while a racially balanced jury would be representative of the racial groups in a community, the focus on race would likely distort the jury's reflection of other groups in society, characterized by age, sex, ethnicity, religion, education level or economic class.{10} What the Constitution [493 U.S. 513] does require is "a fair possibility for obtaining a representative cross-section of the community." Williams v. Florida, 399 U.S. at 100; see also Ballew v. Georgia, 435 U.S. at 236-237 (plurality opinion); id. at 245 (WHITE, J., concurring in judgment).

Our previous cases explain the operation of the fair-cross-section requirement. In Taylor, we held unconstitutional a state provision that required women, but not men, to file a written declaration before they were placed in the jury pool. Because the provision was directed at excluding a distinctive group from jury service and was not based on any legitimate state purpose, it ran afoul of the "defendant's Sixth Amendment [493 U.S. 514] right to a jury drawn from a fair-cross-section of the community." 419 U.S. at 534. In Duren v. Missouri, 439 U.S. 357 (1979), a Missouri provision gave women an automatic exemption from jury service. Like the Louisiana provision in Taylor, Missouri's automatic exemption resulted in underrepresentation of women at the venire stage and was justified only by the stereotype that most women would be unable to serve because of their domestic responsibilities. Id. at 369.{11} We therefore held the provision unlawful.

Taylor and Duren insure that the jury pool and venire will be reasonably representative of the community. A reasonably representative jury pool, however, is not the ultimate goal of the Sixth Amendment: a State surely could not place all of its citizens in the jury pool, but then arbitrarily provide that members of certain cognizable groups would not be permitted to serve on a jury or could only serve if they overcame a special hurdle not applicable to other jurors. The Sixth Amendment guarantees the accused "an impartial jury," not just an impartial jury venire or jury pool. The State may remove jurors at any stage on the grounds, among others, that service would cause hardship to the individual or community, see Taylor, 419 U.S. at 534; Rawlins v. Georgia, 201 U.S. 638 (1906), or that the individual juror is unable to render an impartial verdict, see Lockhart v. McCree, 476 U.S. at 175; cf. Swain v. Alabama, 380 U.S. 202, 220 (1965) ("[T]he view in this country has been that the system should guarantee `not only freedom from any bias against the accused, but also from any prejudice against his prosecution'") (quoting Hayes v. Missouri, 120 U.S. 68, 70 (1887)). By the same token, however, the State may never arbitrarily remove jurors on a discriminatory basis unrelated to their ability to serve as jurors. Cf. Lockhart, 476 U.S. at 175. [493 U.S. 515] The Sixth Amendment's protection is not so frail that it can be defeated by the State's creation of an additional level of selection.{12} Rather, by providing that juries be drawn through fair and neutral selection procedures from a broad cross-section of the community, that Amendment insures a jury that will best reflect the views of the community -- one that is not arbitrarily skewed for or against any particular group or characteristic.

[Holland v. Illinois, 493 U.S. 474 (1990)]


Clark v. U.S., 189 U.S. 1 (1933)

Mr. Justice CARDOZO delivered the opinion of the Court.

The petitioner, Genevieve A. Clark, has been adjudged guilty of a criminal contempt, in that with intent to obstruct justice she gave answers knowingly misleading and others knowingly false in response to questions affecting her qualifications as a juror (D.C.) 1 F.Supp. 747.

The conviction by the District Court was affirmed by the Circuit Court of Appeals for the Eighth Circuit; the proceeding being remanded, however, to correct an error in the sentence. 61 F.(2d) 695. A writ of certiorari brings the case here. 287 U.S. 595 , 53 S.Ct. 314, 77 L.Ed. --.

In September, 1931, there came on for trial in the United States District Court for the District of Minnesota an indictment which had been returned against William B. Foshay and others charging them with the use of the mails in furtherance of a scheme to defraud. The petitioner was one of the panel of jurors summoned to attend. She did not know when the summons came to her for what case she had been called, and telephoned [289 U.S. 1, 7]   a sister, Mrs. Brown, that she would like to be excused. She was advised by her sister, who had made inquiry of the clerk of the court, that excuses, if there were any, would have to be presented to the judge. At the same time she was informed that the trial for which she had been summoned was the Foshay trial, and that she would probably not be accepted as a juror since she had been employed by the Foshay Company, a corporation with which the indicted men had been connected as officers.

On the day appointed for the trial, the petitioner, in company with her husband, reported at the courtroom. The District Judge examined the members of the panel as to their qualifications for service. While the examination was going on, the petitioner stated to several women on the panel that she wished to serve on the jury, that for this she had a special reason, and that she was afraid her former employment by the Foshay Company would disqualify her; that she had worked for the company as a stenographer and typist for about two weeks in the summer of 1929, but did not know or come in contact with any of the defendants personally.

Her service as stenographer and typist was not the only tie of friendliness that linked her to the ,.foshay firm. There were other contacts or relations that are not without significance, though less direct and personal. Until her marriage in 1922, she had been employed with the title of assistant cashier in a bank at St. Paul, of which Mr. Clark was then the president. Foshay in those years was a customer of the bank as depositor and borrower. Mr. Clark resigned as president in 1925, but his business relations with Foshay continued in the years that followed. Letters that passed between them are printed in the record. The tone is cordial and almost intimate. True, there is nothing to show that the friendly relations had spread to the petitioner. She denies that she had any [289 U.S. 1, 8]   acquaintance with Foshay or his associates, and the District Court by its findings has accepted her denial. It is next to impossible, however, that her husband, who was with her in the courtroom, had refrained from telling her of his own friendship for one of the prisoners at the bar.

The petitioner, upon being called to the jury box, was questioned under oath by the judge presiding at the trial. She was asked whether she had ever been in any business of any kind. She answered, 'I have been a stenographer before my marriage, yes.' She was asked in what kind of business she had worked. She answered, 'Well, I did some banking and some real estate and insurance, and I was with an automobile concern, with a Nash agency.' Finally she was asked whether she felt that her mind was free from bias, and whether if accepted as a juror she would be able and willing to base her verdict on the evidence and the law as given to her by the court. To those inquiries she answered that her mind was clear of bias, and that the law and the evidence would govern her in arriving at a verdict.

The petitioner after thus testifying became a member of the jury, which was thereupon complete. The trial which followed lasted eight weeks. Two officers, a man and a woman, were in charge of the jury from the beginning to the end. During the first week of the trial, the petitioner made the remark to several of her fellow jurors that she regarded Mr. Foshay as a victim of circumstances, that he had gone to New York in the fall of 1929 to borrow $18,000,000, but that, because of the stock market crash, had come back without a dollar. When asked by a juror where she had procured that information, which was not supported by the evidence, she said that it was from a newspaper which she had read before the trial. Later on she gave expression to dissatisfaction with the government because of the way the soldiers were treated after the war. [289 U.S. 1, 9]   During the deliberations of the jury, after the case was finally submitted, she announced that since the prosecuting attorney had been unable to convince her of the guilt of the accused, the other jurors could hardly be expected to do so. At times she placed her hands over her ears when other jurors tried to reason with her, and argument became useless because she was unwilling to reply. She said of a witness for the government that he had given perjured evidence in the south in an attempt to convict an innocent man. This information had come to her in the course of a conversation with her husband who had seen her at her hotel, in the presence of a bailiff, while the trial was under way. After being kept together for a week, the jury was discharged because unable to agree. The votes of eleven were for conviction. The single vote for acquittal was cast by the petitioner.

On November 4, 1931, the government filed an information in support of a rule to show cause why the petitioner should not be punished for a criminal contempt. The information charges that her answers upon the voir dire examination were willfully and corruptly false, and that the effect of her misconduct had been to hinder and obstruct the trial. In response to the rule to show cause, the defendant filed an answer denying the misconduct, and alleging that her vote for acquittal had been dictated by her conscience. There was a full and patient hearing by a District Court of two judges. The court found the facts as they have been stated in this opinion. It drew from them the conclusion that the juror had obstructed the administration of justice, when examined on her voir dire, by 'deliberately and intentionally' concealing the fact that she had been employed during the summer of 1929 by the Foshay Company. It drew the conclusion also that she had obstructed the administration of justice by stating falsely that she was free from bias and that her verdict would be based only upon the evidence as [289 U.S. 1, 10]   introduced, and the law as given by the court. For the contempt thus adjudged there was a sentence of imprisonment and fine.

1. Concealment or misstatement by a juror upon a voir dire examination is punishable as a contempt if its tendency and design are to obstruct the processes of justice.

There was concealment by the petitioner, and that willful and deliberate. She had been asked to state the kinds of work that she had been doing in other years. She counted off a few, and checked herself at the very point where the count, if completed, would be likely to bar her from the box. There is no room for the excuse of oversight or negligence. She had been warned that disclosure would lead to challenge and rejection. With her mind full of the warning she told the part truth that was useless, and held back the other part that had significance and value. Whether this was perjury or false swearing, there is no occasion to inquire. It was a deliberate endeavor to thwart the process of inquiry, and to turn a trial into a futile form.

Added to concealment there was positive misstatement. The petitioner stated to the court that her mind was free from bias. The evidence is persuasive that it was hostile to the government. Bias is to be gathered from the disingenuous concealment which kept her in the box. She was intruding into a relation for which she believed herself ineligible, and intruding with a motive. The only plausible explanation is a preconceived endeavor to uphold the cause of the defendants and save them from their doom. Bias, thus revealed at the beginning, is confirmed by everything that followed. While the trial was still in progress, she argued with her fellow jurors that Foshay was a hapless victim of circumstances too strong for him, and went outside the evidence, quoting statements in a newspaper to win them to her view. After the [289 U.S. 1, 11]   trial was over and deliberations had begun, she waived aside all argument and closed her ears to the debate. She had closed her mind to it before.

'An obstruction to the performance of judicial duty resulting from an act done in the presence of the court is ... the characteristic upon which the power to punish for contempt must rest.' White, C.J., in Ex parte Hudgings, 249 U.S. 378, 383 , 39 S.Ct. 337, 339, 11 A.L. R. 333. The petitioner is not condemned for concealment, though concealment has been proved. She is not condemned for false swearing, though false swearing has been proved. She is condemned for that she made use of false swearing and concealment as the means whereby to accomplish her acceptance as a juror, and under cover of that relation to obstruct the course of justice. There is a distinction not to be ignored between deceit by a witness and deceit by a talesman. A talesman when accepted as a juror becomes a part or member of the court. Ex parte Savin, 131 U.S. 267 , 9 S.Ct. 699; United States v. Dachis (D.C.) 36 F.(2d) 601. The judge who examines on the voir dire is engaged in the process of organizing the court. If the answers to the questions are willfully evasive or knowingly untrue, the talesman, when accepted, is a juror in name only. His relation to the court and to the parties is tainted in its origin; it is a mere pretense and sham. What was sought to be attained was the choice of an impartial arbiter. What happened was the intrusion of a partisan defender. If a kinsman of one of the litigants had gone into the jury room disguised as the complaisant juror, the effect would have been no different. The doom of mere sterility was on the trial from the beginning.

The books propound the question whether perjury is contempt, and answer it with nice distinctions. Perjury by a witness has been thought to be not enough where the obstruction to judicial power is only that inherent in the wrong of testifying falsely. Ex parte Hudgings, supra. [289 U.S. 1, 12]   For offenses of that order the remedy by indictment is appropriate and adequate. On the other hand, obstruction to judicial power will not lose the quality of contempt though one of its aggravations be the commission of perjury. Cf. In re Ulmer (D.C.) 208 F. 461; United States v. Appel (D.C .) 211 F. 495; United States v. Karns (D.C.) 27 F.(2d) 453; United States v. Dachis (D.C.) 36 F.(2d) 601; Lang v. United States (C.C.A.) 55 F.(2d) 922; Id., 286 U.S. 523 , 52 S.Ct. 495; United States v. McGovern (C.C.A.) 60 F.(2d) 880. We must give heed to all the circumstances, and of these not the least important is the relation to the court of the one charged as a contemnor. Deceit by an attorney may be punished as a contempt if the deceit is an abuse of the functions of his office (Bowles v. United States (C.C.A.) 50 F.(2d) 848, 851; United States v. Ford (D.C.) 9 F. (2d) 990), and that apart from its punishable quality if it had been the act of some one else. A talesman, sworn as a juror, becomes, like an attorney, an officer of the court, and must submit to like restraints. The petitioner blurs the picture when she splits her misconduct into parts, as if each were a separate wrong to be separately punished. What is punished is misconceived unless conceived of as a unit; the abuse of an official relation by concealment and deceit. Some of her acts or none of them may be punishable as crimes. The result is all one as to her responsibility here and now. She has trifled with the court of which she was a part, and made its processes a mockery. This is contempt, whatever it may be besides. Sinclair v. United States, 279 U.S. 749 , 49 S. Ct. 471, 63 A.L.R. 1258; Ex parte Savin, 131 U.S. 267 , 9 S. Ct. 699.

2. The admission of testimony as to the conduct of the petitioner during the deliberations of the jury was not a denial or impairment of any lawful privilege.

The books suggest a doctrine that the arguments and votes of jurors, the media concludendi, are secrets, protected from disclosure unless the privilege is waived. What is said upon the subject in the adjudicated cases is [289 U.S. 1, 13]   dictum rather than decision. See Woodward v. Leavitt, 107 Mass. 453, 460, 9 Am.Rep. 49; cf. Matter of Cochran, 237 N.Y. 336, 340, 143 N.E. 212, 32 A. L.R. 433; People ex rel. Nunns v. County Court, 188 App.Div. 424, 430, 176 N.Y.S. 858. Even so, the dicta are significant because they bear with them the implications of an immemorial tradition. The doctrine is developed, and the privilege broadly stated, in the writings of a learned author. Wigmore, Evidence (2d Ed.) vol. 5, 2346. It has recognition to some extent by other authors of repute (Hughes, Evidence, p. 301; Jones, Commentaries on Evidence (2d Ed.) 2212; Chamberlayne, Evidence, vol. 5, 3707), but in a way that has confused it with something very different; the competency of witnesses to testify in impeachment of a verdict. What concerns us at the moment is the privilege alone. There will be need to recur later to the rule as to impeachment. For the origin of the privilege we are referred to ancient usage, and for its defense to public policy. Freedom of debate might be stifled and independence of thought checked if jurors were made to feel that their arguments and ballots were to be freely published to the world. The force of these considerations is not to be gainsaid. But the recognition of a privilege does not mean that it is without conditions or exceptions. The social policy that will prevail in many situations may run foul in others of a different social policy, competing for supremacy. It is then the function of a court to mediate between them, assigning, so far as possible, a proper value to each, and summoning to its aid all the distinctions and analogies that are the tools of the judicial process. The function is the more essential where a privilege has its origin in inveterate but vague tradition, and where no attempt has been made either in treatise or in decisions to chart its limits with precision.

Assuming that there is a privilege which protects from impertinent exposure the arguments and ballots of a juror [289 U.S. 1, 14]   while considering his verdict, we think the privilege does not apply where the relation giving birth to it has been fraudulently begun or fraudulently continued. Other exceptions may have to be made in other situations not brought before us now. It is sufficient to mark the one that is decisive of the case at hand. The privilege takes as its postulate a genuine relation, honestly created and honestly maintained. If that condition is not satisfied, if the relation is merely a sham and a pretense, the juror may not invoke a relation dishonestly assumed as a cover and cloak for the concealment of the truth. In saying this we do not mean that a mere charge of wrongdoing will avail without more to put the privilege to flight. There must be a showing of a prima facie case sufficient to satisfy the judge that the light should be let in. 1 Upon that showing being made, the debates and ballots in the jury room are admissible as corroborative evidence, supplementing and confirming the case that would exist without them. Let us assume for illustration a prosecution for bribery. Let us assume that there is evidence, direct or circumstantial, that money has been paid to a juror in consideration of his vote. The argument for the petitioner, if accepted, would bring us to a holding that the case for the people must go to the triers of the facts without proof that the vote has been responsive to the bribe. This is paying too high a price for the assurance to a juror of serenity of mind. People ex rel. Nunns v. County Court, supra. [289 U.S. 1, 15]   We turn to the precedents in the search for an analogy, and the search is not in vain. There is a privilege protecting communications between attorney and client. The privilege takes flight if the relation is abused. A client who consults an attorney for advice that will serve him in the commission of a fraud will have no help from the law. He must let the truth be told. There are early cases apparently to the effect that a mere charge of illegality, not supported by any evidence, will set the confidences free. See, e.g., Reynell v. Sprye, 10 Beav. 51, 54, 11 Beav. 618; In re Postlewaite, 35 Ch. D. 722, 724; cf. Regina v. Bollivant, (1900) 2 Q.B.D. 163, (1901) A.C. 196. But this conception of the privilege is without support in later rulings. 'It is obvious that it would be absurd to say that the privilege could be got rid of merely by making a charge of fraud.' O'Rourke v. Darbishire, (1920) A.C. 581, 604. To drive the privilege away, there must be 'something to give colour to the charge'; there must be 'prima facie evidence that it has some foundation in fact.' O'Rourke v. Darbishire, loc. cit., supra; also pp. 614, 622, 631, 633 of ( 1920) A.C. When that evidence is supplied, the seal of secrecy is broken. See, also, Regina v. Cox, (1884) 14 Q.B.D. 153, 157, 161, 175; cf. Bujac v. Wilson, 27 N.M. 112, 196 P. 513; In re Niday, 15 Idaho, 559, 98 P. 845. The judgment of the House of Lords in O'Rourke v. Darbishire has given to the whole subject a definitive exposition. Nor does the loss of the privilege depend upon the showing of a conspiracy, upon proof that client and attorney are involved in equal guilt. The attorney may be innocent, and still the guilty client must let the truth come out. Regina v. Cox, supra; Matthews v. Hoagland, 48 N.J.Eq. 455, 469, 21 A. 1054; State v. Faulkner, 175 Mo. 546, 593, 75 S.W. 116; Standard Fire Ins. Co. v. Smithhart, 183 Ky. 679, 684, 211 S.W. 441, 5 A.L.R. 972; State v. Kidd, 89 Iowa, 54, 56 N.W. 263; [289 U.S. 1, 16]   cf. Bank of Utica v. Mersereau, 3 Barb.Ch.(N.Y.) 528, 598, 49 Am.Dec. 189; Coveney v. Tannahill, 1 Hill (N.Y.) 33, 41, 37 Am.Dec. 287.

With the aid of this analogy, we recur to the social policies competing for supremacy. A privilege surviving until the relation is abused and vanishing when abuse is shown to the satisfaction of the judge has been found to be a workable technique for the protection of the confidences of client and attorney. Is there sufficient reason to believe that it will be found to be inadequate for the protection of a juror? No doubt the need is weighty that conduct in the jury room shall be untrammeled by the fear of embarrassing publicity. The need is no less weighty that it shall be pure and undefiled. A juror of integrity and reasonable firmness will not fear to speak his mind if the confidences of debate are barred to the ears of mere impertinence or malice. He will not expect to be shielded against the disclosure of his conduct in the event that there is evidence reflecting upon his honor. The chance that now and then there may be found some timid soul who will take counsel of his fears and give way to their repressive power is too remote and shadowy to shape the course of justice. It must yield to the overmastering need, so vital in our polity, of preserving trial by jury in its purity against the inroads of corruption. Cf. Attorney General v. Pelletier, 240 Mass. 264, 134 N.E. 407; People ex rel. Hirschberg v. Board of Supervisors, 251 N.Y. 156, 170, 167 N.E. 204; State v. Campbell, 73 Kan. 688, 85 P. 784, 9 L.R.A.( N.S.) 533, 9 Ann.Cas. 1203

Nothing in our decision impairs the authority of Bushell's Case, Vaughan, 135, 1670, with its historic vindication of the privilege of jurors to return a verdict freely according to their conscience. There had been a trial of Penn and Mead on a charge of taking part in an unlawful assembly. The jurors found a verdict of acquittal, though in so doing they refused to follow the instructions of the [289 U.S. 1, 17]   court. For this they were fined and imprisoned, but were discharged on habeas corpus, Vaughan, C.J., pronouncing 'that memorable opinion which soon ended the fining of jurors for their verdicts, and vindicated their character as judges of fact.' Thayer, Preliminary Treatise on Evidence at the Common Law, p. 167. Bushell's Case was born of the fear of the Star Chamber and of the tyranny of the Stuarts. Plucknett, Concise History of the Common Law, p. 114. It stands for a great principle, which is not to be whittled down or sacrificed. On the other hand, it is not to be strained and distorted into fanciful extensions. There is a peril of corruption in these days which is surely no less than the peril of coercion. The true significance of Bushell's Case is brought out with clearness in declaratory statutes. By one of these, a statute of New York, 'No juror shall be questioned (for any verdict rendered by him), or be subject to any action, ... civil or criminal, except to indictment for corrupt conduct in rendering such verdict, in the cases prescribed by law.' R.S. of N.Y., part 3, c. 7, title 4, 69; Civil Rights Law (Consol. Laws, c. 6) 14. The Revisers tell us in their notes that the statute, though new in form, is declaratory of an ancient principle (R.S. (2d Ed.) vol. 3, p. 741), and so we may assume it is. Matter of Cochran, 237 N.Y. 336, 340, 143 N.E. 212, 32 A.L.R. 433; cf. People ex rel. Nunns v. County Court, supra, 188 App. Div. at page 448, 176 N.Y.S. 858. It would give no help to the petitioner though it were enacted for the federal courts. She has not been held to answer for any verdict that she has rendered, nor for anything said or done in considering her verdict. Matter of Cochran, supra. She has been held to answer for the deceit whereby she made herself a juror, and was thereby placed in a position to vote upon the case at all. What was said and done in the jury room is not the gist of her wrongdoing. What was said and done in the jury room is no more than confirmatory evidence of her state of mind [289 U.S. 1, 18]   before. One could urge with as much reason that she would be subjected to coercion if she had been indicted and tried for bribery and the same evidence had been accepted in support of the indictment.

Nor is there anything in our decision at variance with the rule, which is not without exceptions (Mattox v. United States, 146 U.S. 140, 148 , 13 S.Ct. 50; cf. Wigmore, Evidence, vol. 5, 2353, 2354; Woodward v. Leavitt, 107 Mass. 453, 9 Am.Rep. 49; Hyman v. Eames (C. C.) 41 F. 676; Fuller v. Fletcher (C.C.) 44 F. 34, 39), that the testimony of a juror is not admissible for the impeachment of his verdict. McDonald v. Pless, 238 U.S. 264 , 35 S.Ct. 783. Here there was no verdict, and hence none to be impeached. But in truth the rule against impeachment is wholly unrelated to the problem now before us, the limits of the privilege to maintain a confidence inviolate. Wigmore, supra, 2346. Impeachment may be forbidden though the jurors waive their privilege, and combine with the defeated litigant to make the verdict null. Privilege may be asserted though there is nothing to impeach.

In the record now before us the evidence of guilt is ample, without the happenings in the jury room, to break down the claim of privilege, and thus let in the light. There is the evidence of the concealment of the petitioner's employment with all its sinister implications. There is the evidence of her arguments with the jurors while the trial was going on. There is even the evidence of her vote, for the fact that she had voted for acquittal had been stated in her answer, and to the extent of the voluntary disclosure the privilege had been waived. Indeed what happened in the jury room added so little to the case that the error, if there had been any, in permitting it to be proved, would have to be regarded as unsubstantial and without effect on the result. No one can read the findings of the triers of the facts and hesitate in concluding that even with this evidence omitted [289 U.S. 1, 19]   there would have been an adjudication of contempt. In considering with all this fullness the merits of the ruling, we have been moved by the desire to build securely for the future.

3. The oath of a contemnor is no longer a bar to a prosecution for contempt.

Little was left of that defense after the decision of this court in United States v. Shipp, 203 U.S. 563, 574 , 27 S.Ct. 165, 8 Ann.Cas. 265. Since then there has been no purgation by oath where an overt act of defiance is the gist of the offense. The point was reserved whether sworn disavowal would retain its ancient force 'if the sole question were the intent of an ambiguous act.'

The time has come, we think, to renounce the doctrine altogether and stamp out its dying embers. It has ceased to be a defense in England since 1796. Matter of Crossley, 6 Term Reports 701. It has been rejected generally in the states. Dale v. State, 198 Ind. 110, 150 N.E. 781, 49 A.L. R. 647; State v. District Court (Mont.) 10 P.(2d) 586; In re Singer, 105 N. J.Eq. 220, 147 A. 328; State v. Keller, 36 N.M. 81, 8 P.(2d) 786; Boorde v. Com., 134 Va. 625, 114 S.E. 731; Huntington v. McMahon, 48 Conn. 174, 200, 201; State v. Matthews, 37 N.H. 450, 455; In re Bates, 55 N.H. 325, 327; State v. Harper's Ferry Bridge Co., 16 W.Va. 864, 873; cf. Carson v. Ennis, 146 Ga. 726, 92 S.E. 221, L.R.A. 1917E, 650; Matter of Snyder, 103 N.Y. 178, 181, 8 N.E. 479; note 9 L.R.A. (N.S.) 1119; Curtis, 41 Harvard Law Review 51, 65. It has even lost, since the decision in the Shipp Case, the title to respect that comes of a long historical succession. It has taken its place with ordeal and wager of law and trial by battle among the dimly remembered curios of outworn modes of trial. Thayer, op. cit., supra, p. 8, et seq.

4. There was no denial to the petitioner of a fair notice of hearing, nor any variance of substance between the information and the findings. [289 U.S. 1, 20]   We have considered the arguments to the contrary, and find them without merit.

The judgment of the Circuit Court of Appeals is accordingly affirmed.

[Clark v. U.S., 189 U.S. 1 (1933)]


Sixth Amendment

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.


Sixth Amendment Annotated

Jury Trial

By the time the United States Constitution and the Bill of Rights were drafted and ratified, the institution of trial by jury was almost universally revered, so revered that its history had been traced back to Magna Carta. 42 The jury began in the form of a grand or presentment jury with the role of inquest and was started by Frankish conquerors to discover the King's rights. Henry II regularized this type of proceeding to establish royal control over the machinery of justice, first in civil trials and then in criminal trials. Trial by petit jury was not employed at least until the reign of Henry III, in which the jury was first essentially a body of witnesses, called for their knowledge of the case; not until the reign of Henry VI did it become the trier of evidence. It was during the Seventeenth Century that the jury emerged as a safeguard for the criminally accused. 43 Thus, in the Eighteenth Century, Blackstone could commemorate the institution as part of a ''strong and two-fold barrier . . . between the liberties of the people and the prerogative of the crown'' because ''the truth of every accusation . . . . [must] be confirmed by the unanimous suffrage of twelve of his equals and neighbors indifferently chosen and superior to all suspicion.'' 44 The right was guaranteed in the constitutions of the original 13 States, was guaranteed in the body of the Constitution 45 and in the Sixth Amendment, and the constitution of every State entering the Union thereafter in one form or another protected the right to jury trial in criminal cases. 46 ''Those who emigrated to this country from England brought with them this great privilege 'as their birthright and inheritance, as a part of that admirable common law which had fenced around and interposed barriers on every side against the approaches of arbitrary power.''' 47  

''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 overzealous prosecutor and against the compliant, biased, or eccentric judge. . . . [T]he jury trial provisions . . . 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 . . . found expression in the criminal law in this insistence upon community participation in the determination of guilt or innocence.'' 48  

Because ''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,'' the Sixth Amendment provision is binding on the States through the due process clause of the Fourteenth Amendment. 49 But inasmuch as it cannot be said that every criminal trial or any particular trial which is held without a jury is unfair, 50 it is possible for a defendant to waive the right and go to trial before a judge alone. 51

The Attributes and Function of the Jury .--It was previously the position of the Court that the right to a jury trial meant ''a trial by jury as understood and applied at common law, and includes all the essential elements as they were recognized in this country and England when the Constitution was adopted.'' 52 It had therefore been held that this included trial by a jury of 12 persons 53 who must reach a unanimous verdict 54 and that the jury trial must be held during the first court proceeding and not de novo at the first appellate stage. 55 However, as it extended the guarantee to the States, the Court indicated that at least some of these standards were open to re-examination, 56 and in subsequent cases it has done so. In Williams v. Florida, 57 the Court held that the fixing of jury size at 12 was ''a historical accident'' which, while firmly established when the Sixth Amendment was proposed and ratified, was not required as an attribute of the jury system, either as a matter of common-law background 58 or by any ascertainment of the intent of the framers. 59 Being bound neither by history nor framers' intent, the Court thought the ''relevant inquiry . . . must be the function that the particular feature performs and its relation to the purposes of the jury trial.'' The size of the jury, the Court continued, bore no discernable relationship to the purposes of jury trial--the prevention of oppression and the reliability of factfinding. Furthermore, there was little reason to believe that any great advantage accrued to the defendant by having a jury composed of 12 rather than six, which was the number at issue in the case, or that the larger number appreciably increased the variety of viewpoints on the jury. A jury should be large enough to promote group deliberation, free from outside attempts at intimidation, and to provide a fair possibility that a cross-section of the community will be represented on it, but the Court did not speculate whether there was a minimum permissible size and it recognized the propriety of conditioning jury size on the seriousness of the offense. 60  

When the unanimity rule was reconsidered, the division of the Justices was such that different results were reached for state and federal courts. 61 Applying the same type of analysis as that used in Williams, four Justices acknowledged that unanimity was a common-law rule but observed for the reasons reviewed in Williams that it seemed more likely than not that the framers of the Sixth Amendment had not intended to preserve the requirement within the term ''jury.'' Therefore, the Justices undertook a functional analysis of the jury and could not discern that the requirement of unanimity materially affected the role of the jury as a barrier against oppression and as a guarantee of a commonsense judgment of laymen. The Justices also determined that the unanimity requirement is not implicated in the constitutional requirement of proof beyond a reasonable doubt, and is not necessary to preserve the feature of the requisite cross-section representation on the jury. 62 Four dissenting Justices thought that omitting the unanimity requirement would undermine the reasonable doubt standard, would permit a majority of jurors simply to ignore those interpreting the facts differently, and would permit oppression of dissenting minorities. 63 Justice Powell, on the other hand, thought that unanimity was mandated in federal trials by history and precedent and that it should not be departed from; however, because it was the due process clause of the Fourteenth Amendment which imposed the basic jury-trial requirement on the States, he did not believe that it was necessary to impose all the attributes of a federal jury on the States. He therefore concurred in permitting less-than-unanimous verdicts in state courts. 64 Certain functions of the jury are likely to remain consistent between the federal and state court systems. For instance, the requirement that a jury find a defendant guilty beyond a reasonable doubt, which had already been established under the Due Process Clause, Supp.1 has been held to be a standard mandated by the Sixth Amendment. Supp.2 The Court has further held that the Fifth Amendment Due Process Clause and the Sixth Amendment require that a jury find a defendant guilty of every element of the crime with which he is charged, including questions of mixed law and fact. Supp.3 Thus, a district court presiding over a case of providing false statements to a federal agency in violation of 18 U.S.C. Sec. 1001 erred when it took the issue of the ''materiality'' of the false statement away from the jury. Supp.4  

  Criminal Proceedings to Which the Guarantee Applies .--Although the Sixth Amendment provision does not differentiate among types of criminal proceedings in which the right to a jury trial is or is not present, the Court has always excluded petty offenses from the guarantee in federal courts, defining the line between petty and serious offenses either by the maximum punishment available 65 or by the nature of the offense. 66 This line has been adhered to in the application of the Sixth Amendment to the States 67 and the Court has now held ''that no offense can be deemed 'petty' for purposes of the right to trial by jury where imprisonment for more than six months is authorized.'' 68 A defendant who is prosecuted in a single proceeding for multiple petty offenses, however, does not have a constitutional right to a jury trial, even if the aggregate of sentences authorized for the offense exceeds six months. Supp.5 The Court has also made some changes in the meaning attached to the term ''criminal proceeding.'' Previously, it had been applied only to situations in which a person has been accused of an offense by information or presentment. 69 Thus, a civil action to collect statutory penalties and punitive damages, because not technically criminal, has been held to implicate no right to jury trial. 70 But more recently the Court has held denationalization to be punishment which Congress may not impose without adhering to the guarantees of the Fifth and Sixth Amendments, 71 and the same type of analysis could be used with regard to other sanctions. In a long line of cases, the Court had held that no constitutional right to jury trial existed in trials of criminal contempt. 72 But in Bloom v. Illinois, 73 the Court announced that ''[o]ur deliberations have convinced us . . . that serious contempts are so nearly like other serious crimes that they are subject to the jury trial provisions of the Constitution . . . and that the traditional rule is constitutionally infirm insofar as it permits other than petty contempts to be tried without honoring a demand for a jury trial.'' At least in state systems and probably in the federal system as well, there is no constitutional right to a jury trial in juvenile proceedings. 74 In capital cases there is no requirement that a jury impose the death penalty 75 or make the factual findings upon which a death sentence must rest. 76  

______________________

Footnotes

[Footnote 42] Historians no longer accept this attribution. Thayer, The Jury and Its Development, 5 Harv. L. Rev. 249, 265 (1892), and the Court has noted this. Duncan v. Louisiana, 391 U.S. 145, 151 n.16 (1968).

[Footnote 43] W. Forsyth, History of Trial by Jury (London: 1852).

[Footnote 44] W. Blackstone, Commentaries on the Laws of England *349-*350 (T. Cooley 4th ed. 1896). The other of the ''two-fold barrier'' was, of course, indictment by grand jury.

[Footnote 45] In Art III, Sec. 2.

[Footnote 46] Duncan v. Louisiana, 391 U.S. 145, 153 (1968).

[Footnote 47] Thompson v. Utah, 170 U.S. 343, 349 -50 (1898), quoting 3 J. Story, Commentaries on the Constitution of the United States 1773 (1833).

[Footnote 48] Duncan v. Louisiana, 391, U.S. 145, 155-56 (1968). At other times the function of accurate factfinding has been emphasized. E.g., McKeiver v. Pennsylvania, 403 U.S. 528, 543 (1971). While federal judges may comment upon the evidence, the right to a jury trial means that the judge must make clear to the jurors that such remarks are advisory only and that the jury is the final determiner of all factual questions. Quercia v. United States, 289 U.S. 466 (1933).

[Footnote 49] Duncan v. Louisiana, 391 U.S. 145, 158 -59 (1968).

[Footnote 50] Id. at 159. Thus, state trials conducted before Duncan was decided were held to be valid still. DeStefano v. Woods, 392 U.S. 631 (1968).

[Footnote 51] Patton v. United States, 281 U.S. 276 (1930). As with other waivers, this one must be by the express and intelligent consent of the defendant. A waiver of jury trial must also be with the consent of the prosecution and the sanction of the court. A refusal by either the prosecution or the court to defendant's request for consent to waive denies him no right since he then gets what the Constitution guarantees, a jury trial. Singer v. United States, 380 U.S. 24 (1965). It may be a violation of defendant's rights to structure the trial process so as effectively to encourage him ''needlessly'' to waive or to penalize the decision to go to the jury, but the standards here are unclear. Compare United States v. Jackson, 390 U.S. 570 (1968), with Brady v. United States, 397 U.S. 742 (1970), and McMann v. Richardson, 397 U.S. 759 (1970), and see also State v. Funicello, 60 N.J. 60, 286 A.2d 55 (1971), cert. denied, 408 U.S. 942 (1972).

[Footnote 52] Patton v. United States, 281 U.S. 276, 288 (1930).

[Footnote 53] Thompson v. Utah, 170 U.S. 343 (1898). Dicta in other cases was to the same effect. Maxwell v. Dow, 176 U.S. 581, 586 (1900); Rassmussen v. United States, 197 U.S. 516, 519 (1905; Patton v. United States, 281 U.S. 276, 288 (1930).

[Footnote 54] Andres v. United States, 333 U.S. 740 (1948). See dicta in Maxwell v. Dow, 176 U.S. 581, 586 (1900); Patton v. United States, 281 U.S. 276, 288 (1930).

[Footnote 55] Callan v. Wilson, 127 U.S. 540 (1888). Preserving Callan, as being based on Article II, Sec. 2, as well as on the Sixth Amendment and being based on a more burdensome procedure, the Court in Ludwig v. Massachusetts, 427 U.S. 618 (1976), approved a state two-tier system under which persons accused of certain crimes must be tried in the first instance in the lower tier without a jury and if convicted may appeal to the second tier for a trial de novo by jury. Applying a due process standard, the Court, in an opinion by Justice Blackmun, found that neither the imposition of additional financial costs upon a defendant, nor the imposition of increased psychological and physical hardships of two trials, nor the potential of a harsher sentence on the second trial impermissibly burdened the right to a jury trial. Justices Stevens, Brennan, Stewart, and Marshall dissented. Id. at 632. See also North v. Russell, 427 U.S. 328 (1976).

[Footnote 56] Duncan v. Louisiana, 391 U.S. 145, 158 n.30 (1968); DeStefano v. Woods, 392 U.S. 631, 632 -33 (1968).

[Footnote 57]   399 U.S. 78 (1970). Justice Marshall would have required juries of 12 in both federal and state courts, id. at 116, while Justice Harlan contended that the Sixth Amendment required juries of 12, although his view of the due process standard was that the requirement was not imposed on the States. Id. at 117.

[Footnote 58] The development of 12 as the jury size is traced in Williams, 399 U.S. at 86 -92.

[Footnote 59] Id. at 92-99. While the historical materials were scanty, the Court thought it more likely than not that the framers of the Bill of Rights did not intend to incorporate into the word ''jury'' all its common-law attributes. This conclusion was drawn from the extended dispute between House and Senate over inclusion of a ''vicinage'' requirement in the clause, which was a common law attribute, and the elimination of language attaching to jury trials their ''accustomed requisites.'' But see id. at 123 n.9 (Justice Harlan).

[Footnote 60] Id. at 99-103. In Ballew v. Georgia, 435 U.S. 223 (1978), the Court unanimously, but with varying expressions of opinion, held that conviction by a unanimous five-person jury in a trial for a nonpetty offense deprived an accused of his right to trial by jury. While readily admitting that the line between six and five members is not easy to justify, the Justices believed that reducing a jury to five persons in nonpetty cases raised substantial doubts as to the fairness of the proceeding and proper functioning of the jury to warrant drawing the line at six.

[Footnote 61] Apodaca v. Oregon, 406 U.S. 404 (1972), involved a trial held after decision in Duncan v. Louisiana, 391 U.S. 145 (1968), and thus concerned whether the Sixth Amendment itself required jury unanimity, while Johnson v. Louisiana, 406 U.S. 356 (1972), involved a pre-Duncan trial and thus raised the question whether due process required jury unanimity. Johnson held, five-to-four, that the due process requirement of proof of guilt beyond a reasonable doubt was not violated by a conviction on a nine-to-three jury vote in a case in which punishment was necessarily at hard labor.

[Footnote 62] Apodaca v. Oregon, 406 U.S. 404 (1972) (Justices White, Blackmun, and Rehnquist, and Chief Justice Burger). Justice Blackmun indicated a doubt that any closer division than nine-to-three in jury decisions would be permissible. Id. at 365.

[Footnote 63] Id. at 414, and Johnson v. Louisiana, 406 U.S. 356, 380 , 395, 397, 399 (1972) (Justices Douglas, Brennan, Stewart, and Marshall).

[Footnote 64] Id. at 366. Burch v. Louisiana, 441 U.S. 130 (1979), however, held that conviction by a non-unanimous six-person jury in a state criminal trial for a nonpetty offense, under a provision permitting conviction by five out of six jurors, violated the right of the accused to trial by jury. Acknowledging that the issue was ''close'' and that no bright line illuminated the boundary between permissible and impermissible, the Court thought the near-uniform practice throughout the Nation of requiring unanimity in six-member juries required nullification of the state policy. See also Brown v. Louisiana, 447 U.S. 323 (1980) (Burch held retroactive).

[Footnote 1 (1996 Supplement)] See In re Winship, 397 U.S. 358, 364 (1970).

[Footnote 2 (1996 Supplement)] Sullivan v. Louisiana, 508 U.S. 275 (1993).

[Footnote 3 (1996 Supplement)] United States v. Gaudin, 115 S. Ct. 2310 (1995).

[Footnote 4 (1996 Supplement)] Gaudin, 115 S. Ct. at 2320.

[Footnote 65] District of Columbia v. Clawans, 300 U.S. 617 (1937); Schick v. United States, 195 U.S. 65 (1904); Callan v. Wilson, 127 U.S. 540 (1888).

[Footnote 66] District of Columbia v. Colts, 282 U.S. 63 (1930).

[Footnote 67] Duncan v. Louisiana, 391 U.S. 145, 159 -62 (1968); Dyke v. Taylor Implement Mfg. Co., 391 U.S. 216 (1968).

[Footnote 68] Baldwin v. New York, 399 U.S. 66, 69 (1970). Justices Black and Douglas would have required a jury trial in all criminal proceedings in which the sanction imposed bears the indicia of criminal punishment. Id. at 74 (concurring); Cheff v. Schnackenberg, 384 U.S. 373, 384 , 386 (1966) (dissenting). Chief Justice Burger and Justices Harlan and Stewart objected to setting this limitation at six months for the States, preferring to give them greater leeway. Baldwin, supra, at 76; Williams v. Florida, 399 U.S. 78, 117 , 143 (1970) (dissenting). No jury trial was required when the trial judge suspended sentence and placed defendant on probation for three years. Frank v. United States, 395 U.S. 147 (1969). There is a presumption that offenses carrying a maximum imprisonment of six months or less are ''petty,'' although it is possible that such an offense could be pushed into the ''serious'' category if the legislature tacks on onerous penalties not involving incarceration. No jury trial is required, however, when the maximum sentence is six months in jail, a fine not to exceed $1,000, a 90-day driver's license suspension, and attendance at an alcohol abuse education course. Blanton v. City of North Las Vegas, 489 U.S. 538, 542 - 44 (1989).

[Footnote 5 (1996 Supplement)] Lewis v. United States, 116 S. Ct. 2163 (1996).

[Footnote 69] United States v. Zucker, 161 U.S. 475, 481 (1896).

[Footnote 70] Id. See also Oceanic Steam Navigation Co. v. Stranahan, 214 U.S. 320 (1909); Hepner v. United States, 213 U.S. 103 (1909).

[Footnote 71] Kennedy v. Mendoza-Martinez, 372 U.S. 144 (1963).

[Footnote 72] E.g., Green v. United States, 356 U.S. 165, 183 -87 (1958), and cases cited; United States v. Burnett, 376 U.S. 681, 692 -700 (1964), and cases cited. A Court plurality in Cheff v. Schnackenberg, 384 U.S. 373 (1966), held, asserting the Court's supervisory power over the lower federal courts, that criminal contempt sentences in excess of six months imprisonment could not be imposed without a jury trial or adequate waiver.

[Footnote 73]   391 U.S. 194, 198 (1968). Justices Harlan and Stewart dissented. Id. at 215. As in other cases, the Court drew the line between serious and petty offenses at six months, but because, unlike other offenses, no maximum punishments are usually provided for contempts it indicated the actual penalty imposed should be looked to. Id. at 211. And see Dyke v. Taylor Implement Mfg. Co., 391 U.S. 216 (1968). The distinction between criminal and civil contempt may be somewhat more elusive. International Union, UMW v. Bagwell, 512 U.S. 821 (1994) (fines levied on the union were criminal in nature where the conduct did not occur in the court's presence, the court's injunction required compliance with an entire code of conduct, and the fines assessed were not compensatory).

[Footnote 74] McKeiver v. Pennsylvania, 403 U.S. 528 (1971).

[Footnote 75] Spaziano v. Florida, 468 U.S. 447, 459 (1984).

[Footnote 76] Hildwin v. Florida, 490 U.S. 638, 640 -41 (1989) (per curiam) (''the Sixth Amendment does not require that the specific findings authorizing the imposition of the sentence of death be made by the jury''); Clemons v. Mississippi, 494 U.S. 738 (1990) (appellate court may reweigh aggravating and mitigating factors and uphold imposition of death penalty even though jury relied on an invalid aggravating factor); Walton v. Arizona, 497 U.S. 639 (1990) (judge may make requisite findings as to existence of aggravating and mitigating circumstances).