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]
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).
"(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]
"(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]
"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]
"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]
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.]
"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)]
"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)]
(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).
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)]
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)]
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.
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).
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