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.
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)]
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).
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.
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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