The Criminal Trials Clause

The Trial of all Crimes, except in Cases of Impeachment, shall be by Jury; and such Trial shall be held in the State where the said Crimes shall have been committed; but when not committed within any State, the Trial shall be at such Place or Places as the Congress may by Law have directed.

—Judge Kurt D. Engelhardt, Jacob J. Thackston, & Dexter Webster

Introduction

Sir William Blackstone wrote that “the trial by jury ever has been, and I trust ever will be, looked upon as the glory of the English law.”¹ The Founders agreed. In 1771, John Adams noted that the jury system was an essential feature of a government committed to securing the “fundamental rights” of the people: The jury ought to have “as complete a control, as decisive a negative, in every judgment of a court of judicature” as the populace had in the legislative branch.² In 1789, Thomas Jefferson stated that he would sooner omit the people from the legislative branch than abolish the jury system, for “[t]he execution of the laws is more important than the making them.”³ The Criminal Trials Clause of Article III reflects the importance with which the Framers regarded the jury system.

History Before 1787

Clause 39 of Magna Carta stated that “[n]o free man shall be seized or imprisoned . . . except by the lawful judgment of his equals or by the law of the land.” The U.S. Supreme Court has pointed to this clause as the foundational promise of the right to a jury trial in English law.⁴ However, this provision appears to have applied mostly to trials directly involving the king and his noblemen.⁵ Nonetheless, it reflected a deeply rooted value placed by the English legal system on judgment by peers. Five decades before Magna Carta, the first juries with twelve members and the authority to declare guilt or innocence were used under the reign of King Henry II.⁶ In the remaining years of the thirteenth century, the convention of trial by jury continued to expand, and by the late fourteenth century, the jury had become “the dominant mode of trial.”⁷

This English practice of using juries continued in America from the time of the very first settlements. The 1606 Charter of the Virginia Company declared that the colonists who were to settle there would enjoy all the rights of Englishmen, including the right to a jury trial.⁸ King James I’s directive for the government of the Colony of Virginia instructed that serious crimes were to be tried by juries, including rebellion, conspiracy, sedition, rape, and murder.⁹

Before the American Revolution, juries played a vital role in the colonial resistance to English authority. One particularly noteworthy case involved John Peter Zenger. The New York publisher accused the British governor of, among other things, “taking away trials by juries.”¹⁰ In 1735, Zenger was tried for seditious libel: that is, publishing material designed to cause scandal and vilify a member of government. Zenger’s attorney, Andrew Hamilton (no relation to Alexander Hamilton), admitted that Zenger had published the materials in question but argued that no libel was committed because the accusations were true.¹¹ The judge rejected this legal argument and charged the jury that a true statement could still be libelous.¹² Hamilton, unbothered by the judge’s contrary declamation, still argued to the jury that truth was a defense to a charge of libel. Ultimately, the jury seemed to reject the judge’s instructions and found Zenger not guilty.¹³

The Zenger trial precisely illustrates the value of juries to our constitutional heritage. As Blackstone explained, the executive power has a tendency sometimes to imprison those it deems “obnoxious to the government,” and judges, acting as arms of the executive, could often play a role in this.¹⁴ It was therefore necessary to balance this dangerous tendency with a check by a jury of peers. Applying these insights to the Zenger trial, the jury acquitted Zenger against an executive government and a judge that perhaps were a little too overzealous in their desire to silence their political critics. Liberty was maintained thanks to the role of the jury.

In the decades that followed, the grievances about which Zenger published continued to fester. The “Declaration and Resolves of the First Continental Congress” of 1774 demanded the repeal of the so-called Intolerable Acts imposed by Parliament on the American colonists. That charter denounced various acts of Parliament that were said to “deprive the American subject of trial by jury.” Additionally, among the grievances listed in the Declaration of Independence was the charge that the king had “depriv[ed] us in many cases, of the benefits of Trial by Jury.”¹⁵

After the American Revolution, the right to a jury trial remained a central part of the American experiment. Pennsylvania’s 1776 constitution, for example, stated that the “right to trial by jury . . . ought to be held sacred.”¹⁶ The Massachusetts constitution of 1780 drafted by John Adams provided that “the legislature shall not make any law, that shall subject any person to a capital or infamous punishment . . . without trial by jury.”¹⁷ In sum, trial by jury was a nearly universal part of the early American criminal justice system. The Articles of Confederation made no mention of the right to a jury trial, but the Confederation government did not establish any regular criminal courts.

The Constitutional Convention

During the Constitutional Convention, there was a broad consensus that the Constitution would require juries for criminal trials, and the Criminal Jury Trials Clause seems to have been introduced without any controversy or debate.¹⁸ After its introduction, the clause underwent only one substantial amendment, and that was to provide for a right to a jury trial for crimes committed outside of the United States.¹⁹

During the Convention, delegates debated whether the right to a jury should also extend to civil cases.²⁰ Charles Pinckney of South Carolina and Elbridge Gerry of Massachusetts moved to add “[a]nd a trial by jury shall be preserved as usual in civil cases” to the end of the clause.²¹ In response, some members of the committee raised concerns about how to distinguish civil cases for which juries are proper from those for which they are not. Nathaniel Gorham of Massachusetts noted that “[t]he constitution of Juries is different in different States and the trial itself is usual in different cases in different States.”²² Gorham made this same point earlier with better clarity: “It is not possible to discriminate equity cases from those in which juries are proper. The Representatives of the people may be safely trusted in this matter.”²³

In other words, the states did not have a uniform standard as to when juries applied in civil cases. Juries were not used in equity cases, as Gorham noted, but states themselves might differ as to when a case is in equity. It was best to leave it to the legislature to parse the details rather than impose a single, broad requirement. Pinckney and Gerry’s motion was thus defeated.²⁴

The Criminal Jury Trials Clause also requires that criminal trials “be held in the State where the said Crimes shall have been committed.” The Framers sought to prohibit a recurrence of the English practice of transporting colonial defendants overseas to England for trial by juries of Englishmen. The Declaration of Independence specifically charged King George with “transporting us beyond Seas to be tried for pretended offences.”²⁵

The Ratification Debates

In Federalist No. 83, Alexander Hamilton observed that “[t]he friends and adversaries of the plan of the convention, if they agree in nothing else, concur at least in the value they set upon the trial by jury.” But the omission of a jury trial right for civil cases became a point of controversy during the ratification debates. For example, at the Pennsylvania Convention, William Findley contended that “[p]ersonal liberty cannot be enjoyed without trial by jury” and warned that, because “trial by jury . . . in civil cases . . . is at the mercy of the legislature,” the liberties of Americans under the proposed Constitution were “held on the most precarious tenures.”²⁶

At the Massachusetts Convention, Thomas Dawes, responding to similar critiques, noted that the guarantee of the right in criminal trials was a direct response to the British government’s “abuse of power” in taking away that right. He further explained that the reason “the Constitution [is not] as explicit in securing the right of jury in civil, as in criminal cases” is that “[t]he several States differ so widely in their modes of trial, some states using a jury in causes wherein other states employ only their judges, that the Convention have very wisely left it to the federal legislature to make sure regulations . . . accommodate the whole.”²⁷ Dawes was simply repeating the same point the delegates at the Constitutional Convention had made. Because the states did not have a single, uniform standard for juries in civil cases, the Constitution would not have one. Nonetheless, the general right to a jury would be maintained.

In Federalist No. 83, Hamilton wrote that the Constitution’s silence with regard to the right of a jury trial in civil cases was not meant to imply any prohibition of such a right. “The trial by jury in civil cases [will] not be abolished,” he declared. The Anti-Federalists were unpersuaded. Centinel wrote that “[w]hether the trial by jury is to continue as your birth-right, the freemen of Pennsylvania, nay, all of America, are now called upon to declare.”²⁸ In the end, these concerns prevailed, and the right to a jury trial in certain civil cases was enshrined in the Seventh Amendment. (See Essay Nos. 182 and 183.)

Jury Nullification

In criminal trials, judges explain the law to the jury, and the jury is expected to apply that law to the facts. However, the Zenger trial demonstrates that in the nation’s early history, the jury not only applied the law to the facts it found, but sometimes also decided unsettled questions of law themselves. In the first few decades after the Founding, many federal judges refused to tell jurors that they were obliged to accept the judge’s view of the law, and lawyers argued questions of law before the jury. The U.S. Supreme Court, for instance, opined in an early 1794 case that a jury has the right “to determine the law as well as the fact in controversy.”²⁹ Alexander Hamilton, acting as counsel for a defendant in an 1804 criminal libel case, similarly argued that the jury has a right to judge the law in criminal matters insofar as the law is intertwined with facts.³⁰ When the jury rejects a law with which it disagrees, the process is known as jury nullification.³¹

Over time, however, the power of a jury to decide the law eroded. Sparf v. United States (1895) concluded that the jury did not have the right to decide legal questions. Rather, “it [i]s the duty of the court to expound the law, and that of the jury to apply the law as thus declared to the facts as ascertained by them.”³² The Court found that disregarding “this separation of the functions of court and jury” would endanger “the stability of public justice, as well as the security of private and personal rights.”³³ In modern practice, judges instruct juries that they must accept the judge’s view of the law, and lawyers are no longer allowed to argue the merits of the law to the jury.³⁴ Nevertheless, a jury retains the raw power to check general laws with which it disagrees in individual cases. Nullification is still possible because the jury can issue an unreviewable general verdict of acquittal.

Waiver of Jury Trial Rights

The jury’s power has eroded in a second respect as well. Before 1930, jury trials in federal court, like jurisdictional provisions, could not be waived. This practice reflected the mandatory language in Article III and in the Sixth Amendment: The trial of all crimes “shall” be by jury. (See Essay No. 176.) This obligatory practice may also have resulted from the common view that the citizenry itself benefits from sitting in jury trials.³⁵ However, Patton v. United States (1930) concluded that a defendant could waive a jury trial in favor of a bench trial before a judge.³⁶ The prosecutor may still insist upon, and the court must grant, a jury trial.³⁷

1. 3 Blackstone 379. ↩︎
2. 2 John Adams, The Works of John Adams, Second President of the United States 252, 253 (Charles Francis Adams ed., 1850). ↩︎
3. 15 Thomas Jefferson, The Papers of Thomas Jefferson 282–83 (Julian P. Boyd ed., 1958). ↩︎
4. Thompson v. State of Utah, 170 U.S. 343, 349 (1898). ↩︎
5. Barnaby C. Keeney, Judgment by Peers 68 (1952). ↩︎
6. Lloyd E. Moore, The Jury 35 (2nd ed. 1988). ↩︎
7. Id. at 60. ↩︎
8. Id. at 95. ↩︎
9. American Bar Association, Sources of Our Liberties 34 (Richard L. Perry ed. 1959). ↩︎
10. 17 Thomas Bayly Howell, A Complete Collection of State Trials and Proceedings for High Treason and Other Crimes and Misdemeanors from the Earliest Period to the Year 1783, 695 (1813). ↩︎
11. Id. at 694, 699. ↩︎
12. Id. ↩︎
13. Id. at 724. ↩︎
14. 4 Blackstone 343. ↩︎
15. Declaration of Independence, ¶ 20. ↩︎
16. Pa. Const. of 1776, Decl. of Rts. art. XI. ↩︎
17. Mass. Const. of 1780, pt. I, art. XII. ↩︎
18. 2 Farrand’s 144, 173, 187. ↩︎
19. Id. ↩︎
20. Id. at 587–588. ↩︎
21. Id. at 628–29. ↩︎
22. Id. at 629. ↩︎
23. Id. at 587. ↩︎
24. Id. ↩︎
25. Declaration of Independence, ¶ 15. ↩︎
26. 2 DHRC 527–28. ↩︎
27. 6 DHRC 1370. ↩︎
28. Storing 2.7.1. ↩︎
29. Georgia v. Brailsford, 3 U.S. (3 Dall.) 1, 4 (1794). ↩︎
30. People v. Croswell, 3 Johns. Cas. 337, 355 (N.Y. Sup. Ct. 1804). ↩︎
31. United States v. Dougherty, 473 F.2d 1113, 1130 (D.C. Cir. 1972). ↩︎
32. Sparf v. United States, 156 U.S. 51, 106 (1895). ↩︎
33. Id. ↩︎
34. Fed. Jud. Ctr., Benchbook for U.S. District Court Judges 93 (6th ed. 2013). ↩︎
35. Akhil Reed Amar, The Bill of Rights as a Constitution, 100 Yale L.J. 1131, 1196 (1991). ↩︎
36. 281 U.S. 276, 299 (1930). ↩︎
37. Id. at 312. ↩︎