Trial by Jury The Facts 1. Trial by jury in serious criminal cases is guaranteed in the Sixth Amendment "in all criminal prosecutions, the accused shall enjoy the right to a speedy and public trial, by an impartial jury..." and in the Constitutions of many states. 2. Supreme Court decisions interpreting the due process clause of the Fourteenth Amendment have applied the Sixth Amendment guarantee to state criminal cases. See Duncan v. Louisiana, 391 U.S. 145 (1968). 3. Trial by jury in most Federal civil suits is guaranteed by the Seventh Amendment. Similar provisions exist in many state Constitutions. How Many on a Jury? 4. Traditionally, juries consisted of 12 members, who must reach a unanimous verdict. However, Supreme Court cases have held that the number 12 is not essential (Williams v. Florida, 399 U.S. 78, 1970, upheld the use of six-person juries in state criminal cases; see also Ballew v. Georgia, 435 U.S. 223, 1978). The Court's reasoning in Williams was that a six-person jury was "large enough to promote group deliberation, free from outside attempts at intimidation, to provide a fair possibility of obtaining a representative cross-section of the community." Many states have set numbers under 12 for particular types of cases. Do Juries Have to Be Unanimous? 5. Traditionally, juries had to be unanimous, but the Supreme Court has upheld verdicts of 11-1, 10-2, and 9-3. See, for example Apodaca v. Oregon, 406 U.S. 404 (1972) and Johnson v. Louisiana, 400 U.S. 356 (1972). In Burch v. Louisiana, 441 U. S. 130 (1979), the Court did not uphold a 5-1 verdict. Do Juries Have to Be Representative? 6. A series of Supreme Court cases has held that the requirement of an impartial jury means that jurors must be chosen from a representative cross section of the community, with no persons excluded on the basis or race, sex, or other impermissible factors. In Taylor v. Louisiana, 419 U. S. 522 (1975) the Court wrote "The purpose of a jury is to guard against the exercise of arbitrary power to make available the common sense judgment of the community as a hedge against the overzealous or mistaken prosecutor....This prophylactic vehicle is not provided if the jury pool is made up of only special segments of the populace." The Role of Peremptory Challenges 7. Traditionally, lawyers on each side of a case, besides being able to challenge jurors "for cause", are allotted a certain number of peremptory challenges to jurors basically, hunches that a particular juror will not be favorable to their side. In recent years, courts, including the U.S. Supreme Court, have instituted procedures to see that these challenges are not used to impermissibly remove jurors of a particular ethnic group or gender. See Batson v. Kentucky, 476 U.S. 79 (1986). Discussion Questions The U.S. is one of few countries that relies heavily on juries. It's been estimated that the United States accounts for 95% of all jury trials in the world. Even England no longer uses juries as heavily as we do. What arguments could be made for why juries fill an important role in a democracy? What arguments support severely limiting their role? In many cases, psychologists have been retained by one side (or maybe both!) to guide the lawyers as they select a jury. The idea is that they will develop profiles of potential jurors that will help the lawyers select those more apt to favor their side. Does this threaten the concept of "jury of one's peers" and the ideal of "equal justice under law." In a number of cases, most notably Sheppard v. Maxwell, 384 U.S. 333 (1966), the Supreme Court has expressed concern over publicity that imperiled the accused's ability to "receive a trial by an impartial jury free from outside influences," and in that case a new trial was ordered. Yet, in an era of instant news transmission and information overload, how can that be achieved? Though the circumstances of unusual cases might demand extraordinary measures, in several high-profile cases the Supreme Court has struck down "gag" orders (whereby the press is prohibited from publishing what it knows) and the closing of courtrooms (whereby the press is denied access). Some commentators have suggested that very complex civil cases are beyond the power of a jury to deal with. In one recent case, the Supreme Court held that it did not offend the Constitution if a jury decided the issue of liability, but the judge set the damages. Is that an appropriate solution to the problem, or does it unwisely take discretion from the jury? Does live television in the courtroom make a fair trial more difficult by affecting the behavior of the parties in the case, i.e., lawyers, witnesses, jurors? In a number of recent high-profile cases, legal commentators, and sometimes the public itself, have been disappointed by the jury's verdict. Rather than discussing these cases per se, consider some of the following suggestions on improving jury performance. These are suggested by Steven J. Adler, in his book The Jury. Eliminating exemptions still in existence in the law of a number of states, which permit certain categories of workers (doctors, lawyers, etc.) to be excused from jury service. "One-day, one-trial" plans (under which prospective jurors who are not selected for a case are dismissed after their first day of service) or similar procedures which make jury service less onerous. Severe limitations on (if not elimination of) peremptory challenges. Better instructions for jurors at the beginning of trials as to their role, the differences between argument and evidence, the steps in a trial, etc. Permitting jurors to take notes. Shorter trials perhaps through sharply defining the relevant issues before trial and dealing in advance with procedural and legal disputes that are apt to arise. Some mechanism to enable jurors to suggest questions for witnesses during the trial, and to receive clarification on points of law. Shorter and clearer instructions from the judge at the end of the trial, before the jury begins to deliberate. Speech Ideas/Talking Points Home | Tips on Volunteering Home