Introduction

The Criminal Jury Trial Right

Introduction

Before a criminal trial begins, the defendant, the prosecutor, and the judge each face the same pair of questions: does this case go to a jury, and what must that jury look like when it decides? The answers start with two constitutional texts. Article III, Section 2 declares that "The Trial of all Crimes, except in Cases of Impeachment; shall be by Jury," and the same sentence adds a requirement about where the trial must be held, which belongs to the study of venue rather than to this chapter.¹ The Sixth Amendment approaches the subject from the accused's side, promising that "[i]n all criminal prosecutions" the accused enjoys the right to trial "by an impartial jury."² Both commands are stated at a high level of generality. They require a jury, yet they say nothing about how a defendant may give the jury up, how many jurors sit, how the judge explains the law to them, or how they announce a decision. Federal Rules of Criminal Procedure 23, 30, and 31 fill that gap, governing waiver and jury size, instructions, and the return of the verdict, and each rule is best read as regulating a right the Constitution has already granted.

The reason the Constitution insists on a jury at all explains why those regulations take the shape they do. In Duncan v. Louisiana the Court explained that the criminal jury exists to prevent oppression by the government: the framers knew from history that charges could be brought to eliminate enemies and that judges could be too responsive to higher authority, so they gave the accused "an inestimable safeguard against the corrupt or overzealous prosecutor and against the compliant, biased, or eccentric judge."³ The mechanism is structural. Without a jury, both the decision to charge and the decision to convict pass through officials of the same government, so the outcome depends on the temperament of a few people. A panel of citizens placed between the accused and the state spreads that decision across the community and removes the single point of failure. Questions about who may waive the jury, how small it may be, what it is told, and whether it must agree unanimously all ask whether a given arrangement preserves or erodes that protective function.

The rules matter even though most criminal cases never reach a jury. In 2015, of the 81,024 defendants disposed of by the federal district courts, 88 percent pleaded guilty and only 3 percent went to trial.⁴ A defendant deciding whether to plead, and a prosecutor deciding what to offer, are each weighing the likely result of a trial, so the shape of the jury right sets the bargaining terms for the cases that never get that far. This chapter follows the right in the order a case encounters it: the sources of the right, the offenses that trigger it, the conditions for waiving it, the size of the jury, the instructions it receives, the verdict it returns, and the reach of its findings into punishment. The first task is a sorting question about which constitutional provision supplies the right, because criminal prosecutions fall under Article III and the Sixth Amendment, while the Seventh Amendment preserves jury trial in civil suits at common law.⁵