CITES BY TOPIC:  trial by jury

Seventh Amendment

In Suits at common law, where the value in controversy shall exceed twenty dollars, the right of trial by jury shall be preserved, and no fact tried by a jury, shall be otherwise re-examined in any Court of the United States, than according to the rules of the common law.


Seventh Amendment Annotated: Trial by Jury in Civil Cases

The Right and the Characteristics of the Civil Jury

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

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

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

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

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

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Footnotes

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

[Footnote 2] Id. at 628.

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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


Title 28, Chapter 121: Juries; Trial by jury


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

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

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


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

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

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


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

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

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

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


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

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

--failure to timely demand a jury

--prior agreement not to demand a jury.

--participating without objection in a bench trial

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

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


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

TITLE 28 > PART IV > CHAPTER 85 > § 1330

§ 1330. Actions against foreign states

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

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


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

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

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

[. . .]

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

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


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

"An unqualified right of a litigant to inspect jury lists held required not only by the plain text of the provisions of the Jury Selection and Service Act of 1968, 28 U.S.C. 1867 (f), allowing the parties in a case "to inspect" such lists at all reasonable times during the "preparation" of a motion challenging compliance with jury selection procedures, but also by the Act's overall purpose of insuring "grand and petit juries selected at random from a fair cross section of the community," 28 U.S.C. 1861. Hence, where the District Court denied petitioner's motion, prior to his trial and conviction on a federal drug charge, to inspect the jury lists in connection with his challenge to the grand and petit juries-selection procedures, the Court of Appeals' judgment affirming his conviction is vacated, and the case is remanded so that he may attempt to support his challenge. " [Test v. United States, 420 U.S. 28 (1975)]


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

VI. TRIALS > Rule 38.

Rule 38. Jury Trial of Right

(a) Right Preserved.

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

(b) Demand.

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

(c) Same: Specification of Issues.

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

(d) Waiver.

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

(e) Admiralty and Maritime Claims.

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


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

TITLE 28 > PART VI > CHAPTER 161 > § 2402

§ 2402. Jury trial in actions against United States

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


Sixth Amendment

In all criminal prosecutions, the accused shall enjoy the right to a speedy and public trial, by an impartial jury of the State and district wherein the crime shall have been committed, which district shall have been previously ascertained by law, and to be informed of the nature and cause of the accusation; to be confronted with the witnesses against him; to have compulsory process for obtaining witnesses in his favor, and to have the Assistance of Counsel for his defence.


Sixth Amendment Annotated

Jury Trial

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

''The guarantees of jury trial in the Federal and State Constitutions reflect a profound judgment about the way in which law should be enforced and justice administered. A right to jury trial is granted to criminal defendants in order to prevent oppression by the Government. Those who wrote our constitutions knew from history and experience that it was necessary to protect against unfounded criminal charges brought to eliminate enemies and against judges too responsive to the voice of higher authority. The framers of the constitutions strove to create an independent judiciary but insisted upon further protection against arbitrary action. Providing an accused with the right to be tried by a jury of his peers gave him an inestimable safeguard against the corrupt overzealous prosecutor and against the compliant, biased, or eccentric judge. . . . [T]he jury trial provisions . . . reflect a fundamental decision about the exercise of official power--a reluctance to entrust plenary powers over the life and liberty of the citizen to one judge or to a group of judges. Fear of unchecked power . . . found expression in the criminal law in this insistence upon community participation in the determination of guilt or innocence.'' 48  

Because ''a general grant of jury trial for serious offenses is a fundamental right, essential for preventing miscarriages of justice and for assuring that fair trials are provided for all defendants,'' the Sixth Amendment provision is binding on the States through the due process clause of the Fourteenth Amendment. 49 But inasmuch as it cannot be said that every criminal trial or any particular trial which is held without a jury is unfair, 50 it is possible for a defendant to waive the right and go to trial before a judge alone. 51

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

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

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

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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).