The Jury Trial Clause

In all criminal prosecutions, the accused shall enjoy the right to a . . . trial, by an impartial jury. . . .

—Judge Kurt D. Engelhardt, Ian Brinton Hatch, & Greta Gieseke

Introduction

The right to a criminal jury trial is the only individual right enumerated in both the Constitution and the Bill of Rights. Article III, Section 2, Clause 3 of the Constitution provides that “[t]he trial of all Crimes, except in Cases of Impeachment, shall be by Jury.” (See Essay No. 136.) The Sixth Amendment guarantees federal criminal defendants the right to trial “by an impartial jury of the State and district wherein the crime shall have been committed.” The Supreme Court has held that these two provisions “mean substantially the same thing.”¹

Drafting the Sixth Amendment

On June 8, 1789, James Madison proposed to the First Congress two separate amendments pertaining to an accused’s right to a trial. The first declared that “[i]n all criminal prosecutions, the accused shall enjoy the right to a speedy and public trial. . . .”² Although the full text included additional procedural protections, it lacked an explicit mention of a jury right. The second relevant amendment remedied this oversight by declaring that [t]he trial of all crimes . . . shall be by an impartial jury of freeholders of the vicinage. . . .”³ Congress ultimately deleted the second of Madison’s proposed amendments but incorporated the jury right into the text of the first one.⁴ This modified amendment later became ratified as what we know today as the Sixth Amendment.⁵

This survey of the legislative history suggests that the purpose of the Sixth Amendment was to ensure that the jury must be “impartial” and to secure the vicinage requirement (that jurors must be taken from the same vicinage where the crime occurred). These two details constitute the only meaningful difference between the Sixth Amendment jury right and the Article III jury right. The vicinage requirement sparked much debate during the First Congress (see Essay No. 178), but the impartiality requirement does not seem to have generated any discussion. However, the courts have gradually expounded upon its meaning over the centuries.

Incorporation

In 1868, the Fourteenth Amendment was ratified, and with ratification came an important new question: Does the Fourteenth Amendment incorporate the Sixth Amendment right to a jury trial? The original Sixth Amendment guaranteed a right to a jury in federal courts but said nothing about a right to a jury in state courts. While the legislative history of the Fourteenth Amendment is famously difficult to decipher, it does provide some clues. During the debate on the amendment’s meaning, for example, Senator Jacob M. Howard of Michigan said that “the right to be tried by an impartial jury of the vicinage” was a fundamental right protected by the Privileges or Immunities Clause of the Fourteenth Amendment. Howard further argued that “[t]he great object of the” Privileges or Immunities Clause was “to restrain the power of the States and compel them at all times to respect these great fundamental guarantees.”⁶ (See Essay No. 194.)

Here, a leading Framer of the Fourteenth Amendment intended to incorporate the Sixth Amendment jury trial right. Under this interpretation, the Fourteenth Amendment protected the “privileges or immunities” of citizens against the states, and the Sixth Amendment was to be counted under this group of privileges.

A hundred years later, the U.S. Supreme Court eventually settled the issue, albeit via an avenue slightly different from the Privileges and Immunities Clause suggested by Senator Howard. In Duncan v. Louisiana (1968), the Court held that the Fourteenth Amendment’s Due Process Clause “incorporated” the right to a jury trial and made it applicable to the states.⁷ (See Essay No. 195.) The Court said that although juries were not essential to fairness and due process in every legal system, they were essential to the U.S. system. Duncan held that “[p]roviding an accused with the right to be tried by a jury of his peers gave him an inestimable safeguard against the corrupt or overzealous prosecutor and against the compliant, biased, or eccentric judge.”⁸

The Impartial Jury

A defendant is entitled not only to a jury, but to an “impartial” one. The Founders understood jury impartiality as stemming, in the words of Richard Henry Lee in a letter to Edmund Randolph, from “the unanimous consent of twelve of [one’s] neighbors and equals,” as they are free from the “involuntary bias” that the “magistracy” would have “towards those of their own rank and dignity.”⁹ In other words, they understood impartiality as fundamentally rooted in judgment by one’s peers. Lee, quoting Sir William Blackstone, wrote that because any judgments rendered by officials, “in spite of their own natural integrity,” would be infected with “involuntary bias” favoring other officials.¹⁰ The Supreme Court, examining the impartiality requirement, observed that “[i]mpartiality is not a technical conception. It is a state of mind. For the ascertainment of this mental attitude of appropriate indifference, the Constitution lays down no particular tests and procedure is not chained to any ancient and artificial formula.”¹¹ While “a juror who has formed an opinion cannot be impartial . . . [i]t is not required that jurors be totally ignorant of the facts and issues involved . . . . It is sufficient if the juror can lay aside his impression or opinion based on the evidence presented in court.”¹²

A right to an impartial jury is predicated on an ability to challenge potential partiality. Per Edmund Randolph, “as the trial by jury is established in criminal cases, the incidental right of challenging and excepting is also established, which secures, in the utmost latitude, the benefit of impartiality in the jurors.”¹³ One must also be able to challenge venue. The Founders understood impartiality as lying, in part, in a juror’s proximity to the underlying facts and parties. They expressed concern that an accused could be “carried from one extremity of the state to another, and be tried, not by an impartial jury of the vicinage, acquainted with his character and the circumstances of the fact, but by a jury unacquainted with both, and who may be biased against him.”¹⁴ As the Supreme Court recognized, however, the reverse can be true as well: A jury pool can be rendered irreparably partial by a case’s publicity to the point that denying a venue challenge violates a party’s constitutional rights.¹⁵

The Size of the Jury

Some believe that the Constitution guarantees the right to a twelve-person criminal jury, but the only thing currently guaranteeing it is Federal Rule of Criminal Procedure 23(b)(1). The Constitution itself is silent with respect to a jury’s proper size. Perhaps this is because the Founders seemed to take for granted a twelve-person criminal jury. Since before Magna Carta, there was a common-law history of twelve jurors without any discussion of an alternative size.¹⁶ Yet, the Supreme Court, based on an examination of history, held “that the 12-man panel is not a necessary ingredient of” a jury trial, allowing the number of jurors to be as low as six.¹⁷ “[T]he fact that the jury at common law was composed of precisely 12 is a historical accident[.]”¹⁸

Peremptory Challenges

At the time of the Framing, litigants could challenge a limited number of prospective jurors peremptorily—that is, without the need for a reason or explanation.¹⁹ The traditional purpose of these challenges was to ensure impartiality by excluding biased jurors.²⁰ The Supreme Court, however, has read the Sixth Amendment and the Equal Protection Clause to limit the use of peremptory challenges. In a series of cases beginning with Batson v. Kentucky (1986), the Court has held that litigants may not use peremptory challenges to discriminate on the basis of race, gender, or any other classification subject to heightened scrutiny.²¹ The Batson Court based its decision on the landmark Strauder v. West Virginia decision (1880), which similarly held that racial discrimination in jury selection violates the Equal Protection Clause.²²

The Supreme Court upheld Batson in Flowers v. Mississippi (2019).²³ Justice Clarence Thomas dissented. He wrote that Batson “requires that a duly convicted criminal go free because a juror was arguably deprived of his right to serve on the jury,” thereby “giving a windfall to a convicted criminal who, even under Batson’s logic, suffered no injury.”²⁴ Thomas further argued that Batson itself should be overruled.²⁵ According to Thomas, the original purpose of peremptory challenges was to assuage “fears of partiality by giving effect to the parties’ intuitions about jurors’ often-unstated biases” and “racial biases, sympathies, and prejudices still exist.”²⁶ Requiring a Batson explanation for a peremptory challenge, under Justice Thomas’s view, might frustrate a litigant’s right to secure a jury free of racial bias.²⁷

The Jury Right and Sentencing

After a criminal defendant is found guilty by a jury, the judge will impose a sentence. In many cases, the severity of the sentence will be determined based on the defendant’s conduct. But an evaluation of the defendant’s conduct involves a fact-intensive inquiry—a role that historically has belonged to juries, not judges. As early as 1794, the Supreme Court laid down the “good old rule” that “on questions of fact, it is the province of the jury, on questions of law, it is the province of the court to decide.”²⁸

Under this traditional rule, can a judge still make factual findings that result in an increased sentence, or must a jury alone determine those facts? Apprendi v. New Jersey (2000) held that the jury must make these findings. The Court declared that “[i]t is unconstitutional for a legislature to remove from the jury the assessment of facts that increase the prescribed range of penalties to which a criminal defendant is exposed.”²⁹ Apprendi required a jury to determine beyond a reasonable doubt every fact other than conviction of a prior offense that increases the maximum sentence a defendant faces.³⁰ Surveying the historical tradition, the Court noted that, according to traditional common-law authorities like Blackstone, the truth of every accusation must be determined by the jury. The Court pointed out that any distinction between an element of a felony offense and a “sentencing factor” was unknown at the time of the Founding.³¹ Therefore, the traditional view would also have mandated that sentencing factors, just like elements of the offense, be determined by juries.

Alleyne v. United States (2013) extended the Apprendi principle to the context of mandatory minimum sentences. The Court held that “any fact that increases the mandatory minimum [sentence] is an ‘element’ that must be submitted to the jury.”³²

A Unanimous Jury?

The Sixth Amendment’s text is silent about whether a jury must find guilt by a unanimous vote. Perhaps this is because, like the twelve-person jury, a unanimity requirement was simply understood as being so foundational that it did not require explicit inclusion.³³ Decisions from before 1972 seemed to make clear that, at least in federal court, juries needed to reach a unanimous conclusion to convict.³⁴

In Apodaca v. Oregon (1972), the Supreme Court divided over whether a criminal defendant can be convicted by a nonunanimous jury.³⁵ Four justices, using reasoning similar to that in Williams v. Florida (1970), concluded that conviction by a vote of 10 to 2 did not violate the Sixth Amendment. Four justices dissented, arguing that the amendment preserved the historic unanimity requirement.³⁶ The remaining justice agreed with the dissenters on the construction of the Sixth Amendment but rejected the view that “all of the elements of jury trial within the meaning of the Sixth Amendment are necessarily embodied in or incorporated into the Due Process Clause of the Fourteenth Amendment.”³⁷ As a result, nonunanimous verdicts were permitted in state courts but not in federal courts.

The dissenters ultimately carried the day. In Ramos v. Louisiana (2020), the Court overruled Apodaca. Justice Neil Gorsuch, writing for the majority, ruled that “if the Sixth Amendment’s right to a jury trial requires a unanimous verdict to support a conviction in federal court, it requires no less in state court.” Here, the Court incorporated the unanimity requirement against the states.³⁸ The Court also made clear that unanimity was indeed historically supported with a discussion ranging from its origins in fourteenth-century England to precedent that the Apodaca court did not cite.³⁹ As Gorsuch said, “[i]f the term ‘trial by an impartial jury’ carried any meaning at all, it surely included a requirement as long and widely accepted as unanimity.”⁴⁰ Notably, Edwards v. Vannoy (2021) clarified that Ramos does not apply retroactively.⁴¹

Plea Bargaining

Despite the central importance of the jury trial in our justice system, very few federal criminal defendants actually exercise their right to have twelve citizen jurors evaluate their guilt or innocence. In 2022, only about 0.4 percent of federal criminal defendants went to trial and were acquitted; 1.9 percent were found guilty; the cases of 8.2 percent were dismissed somewhere during the pretrial process; and 89.5 percent entered guilty pleas and waived their Sixth Amendment right to a jury trial, seeking a reduced sentence.⁴²

This now-dominant practice is, at least in some instances, in tension with historical tradition. For example, Sir William Blackstone observed that courts confronted with prisoners pleading guilty in capital cases were “very backward in receiving and recording [a guilty plea], out of tenderness to life of the subject; and [would] generally advise the prisoner to retract it, and plead to the indictment.”⁴³ Several nineteenth-century American treatises looked askance at the practice generally.⁴⁴ When instances of plea bargaining began to appear in appellate reports in the decades following the Civil War, lower courts generally denounced the practice.⁴⁵ However, the Supreme Court made clear in Brady v. United States (1970) that plea bargaining is constitutional as long as pleas are made both voluntarily and intelligently.⁴⁶

Open Questions

• Does a criminal court commit a structural error by seating a biased juror?
• Which other sentencing enhancements and factors require submission to the jury? What about restitution?
• What are appropriate remedial actions for a successful Batson challenge?
• How can a citizen enforce his or her constitutional right to serve as a juror?

1. Patton v. United States, 281 U.S. 276, 298 (1930). ↩︎
2. 1 Annals of Cong. 452 (1789); Francis H. Heller, The Sixth Amendment to the Constitution of the United States: A Study in Constitutional Development 28–34 (1951). ↩︎
3. 1 Annals of Cong. 452 (1789). ↩︎
4. S. Jour., 1st Cong., 1st Sess. 77 (Sept. 9, 1789); 1 Annals of Cong. 948 (1789). ↩︎
5. 1 Annals of Cong. 90, 948 (1789). ↩︎
6. Cong. Globe, 39th Cong., 1st Sess. 2765–66 (1866). ↩︎
7. 391 U.S. 145, 150–51 (1968). ↩︎
8. Id. at 149, 149 n.14, 156. ↩︎
9. 1 Elliot’s 504–05. ↩︎
10. Id. (quoting 3 Blackstone 379); Sec. & Exch. Comm’n v. Jarkesy, 603 U.S. 109, 121, 127 (2024) (quoting Federalist No. 78 (Hamilton)). ↩︎
11. United States v. Wood, 299 U.S. 123, 146 (1936). ↩︎
12. Irvin v. Dowd, 366 U.S. 717, 722–23 (1961). ↩︎
13. 3 Elliot’s 573. ↩︎
14. Id. at 447. ↩︎
15. Rideau v. Louisiana, 373 U.S. 723 (1963). ↩︎
16. 3 Elliot’s 467–70, 544–55; Williams v. Florida, 399 U.S. 78, 98–99 (1970); Richard S. Arnold, Trial by Jury: The Constitutional Right to a Jury of Twelve in Civil Trials, 22 Hofstra L. Rev. 1, 3 (1993). ↩︎
17. Williams, 399 U.S. at 89. ↩︎
18. Id. at 102. ↩︎
19. Swain v. Alabama, 380 U.S. 202, 214 (1965). ↩︎
20. Lewis v. United States, 146 U.S. 370, 376 (1892). ↩︎
21. 476 U.S. 79, 89 (1986). ↩︎
22. Id. at 85–86. ↩︎
23. 588 U.S. 284 (2019). ↩︎
24. Id. at 348–49 (Thomas, J., dissenting). ↩︎
25. Id. at 351–52. ↩︎
26. Id. at 355–56. ↩︎
27. Id. ↩︎
28. Georgia v. Brailsford, 3 U.S. (3 Dall.) 1, 4 (1794). ↩︎
29. Apprendi v. New Jersey, 530 U.S. 466, 490 (2000). ↩︎
30. Id. ↩︎
31. Id. at 477 (citing 4 Blackstone 349–50), 478. ↩︎
32. Alleyne v. United States, 570 U.S. 99, 99 (2013). ↩︎
33. 1 Elliot’s 504–05; 3 Elliot’s 299; Apodaca v. Oregon, 406 U.S. 404, 406 (1972), abrog. by Ramos v. Louisiana, 590 U.S. 83 (2020). ↩︎
34. Andres v. United States, 333 U.S. 740, 748 (1948). ↩︎
35. Apodaca, 406 U.S. at 406–07. ↩︎
36. Id. at 414–15 (Stewart, J., dissenting); Johnson v. Louisiana, 406 U.S. 356, 381 (1972) (Douglas, J., dissenting). ↩︎
37. Johnson v. Louisiana, 406 U.S. 356, 369 (1972) (Powell, J., concurring in judgment). ↩︎
38. Ramos v. Louisiana, 590 U.S. 83, 93 (2020). ↩︎
39. Id. at 90–93. ↩︎
40. Id. at 91. ↩︎
41. Edwards v. Vannoy, 593 U.S. 255, 258 (2021). ↩︎
42. John Gramlich, Fewer than 1% of Federal Criminal Defendants Were Acquitted in 2022, Pew Research Center (June 14, 2023), https://perma.cc/E9Z9-BPHC. ↩︎
43. 4 Blackstone 329. ↩︎
44. John Frederick Archbold, Pleading and Evidence in Criminal Cases 73–74 (1824); John C. B. Davis, The Massachusetts Justice: A Treatise upon the Powers and Duties of Justices of the Peace 232 (1847); Hallinger v. Davis, 146 U.S. 314, 324 (1892); Green v. Commonwealth, 94 Mass (12 Allen) 155, 175–76 (1866). ↩︎
45. Albert W. Alschuler, Plea Bargaining and Its History, 79 Colum. L. Rev. 1, 19–24 (1979). ↩︎
46. Brady v. United States, 397 U.S. 742, 747 (1970). ↩︎