Petit Juries

Petit Juries Trial by jury is the main form of lay participation in the administration of justice in the United States—the grand jury and the remnants of the justice‐of‐the‐peace system being the minor forms. Together with judge‐made law and adversarial proceedings, large‐scale employment of the jury differentiates the American legal system from all others. Petit juries are used elsewhere, but not to the same extent as in the United States. Even in England jury trials have become infrequent. About 95 percent of all jury trials now take place in the United States.

Most criminal prosecutions and civil suits do not, however, lead to a jury trial. Only about 5 to 10 percent of all lawsuits in the United States are tried to a jury. On the criminal side, this reflects plea bargaining and a rate of about 90 percent guilty pleas. On the civil side, the small proportion of jury trials mirrors high settlement rates as well as mandated bench trials.

The 5‐ to 10‐percent figure underestimates the true importance and influence of the jury. For example, in Duncan v. Louisiana (1968) the Supreme Court declared:
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. … Providing 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. (p. 156)

The jury provides a check on the power of the judiciary. Jury verdicts bring to bear on the legal system the community's sense of justice. Juries shape and temper all aspects of adjudication—from the prosecutor's decision to charge, to the defendant's willingness to plea‐bargain and the civil parties' disposition to settle, to the judge's sentencing decisions.

The significance of the jury is not fully stated by a tally of its legal functions. In Democracy in America, Alexis de Tocqueville gives an account of the American jury that appreciates its political and educational functions:


The jury, and more specially the civil jury, serves to communicate the spirit of the judges to the minds of all citizens; and this spirit with the habits which attend it is the soundest preparation for free institutions.

The jury contributes powerfully to form the judgment, and to increase the natural intelligence of a people; and this is, in my opinion, its greatest advantage. It may be regarded as a gratuitous public school ever open. (pp. 295–296)

Trial by jury also serves to generate support for the country's legal system, not least by increasing appreciation for the difficult task of the judges.

Trial by jury has its ultimate roots in the popular assemblies of the Germanic tribes—Anglo‐Saxon as well as Norman. The earliest English assembly of lay persons chosen to perform legal tasks was the Clarendon jury of inquest in 1166, established by Henry II in each community as an accusatory body of twelve “good and lawful men.” It served the interest of the Crown by reporting all offenses that had been (or were said to have been) committed in the venue. These reports became the key instrument for initiating prosecutions. In modern terms, the jury of inquest was a grand jury. The subsequent “trial” most often took the form of battle or ordeal. These forms of dispute resolution became unavailable when in 1215 the Fourth Lateran Council prohibited the participation of priests. Trial by jury emerged shortly thereafter, substituting the voice of the community for the voice of God.

For about two hundred years trial jurors were drawn from among the jurors of inquest, some of the grand jurors reconstituting themselves as trial jurors. Since these trial jurors had sworn as grand jurors that certain persons were known to have committed certain crimes, and since the evidence to be considered by the trial jury was the same as at the initial inquest, few trials ended in acquittals. It was not until the middle of the fourteenth century that grand and trial juries became fully distinct. It took additional centuries to distinguish jurors and witnesses and for juries to cease being mere instruments of the royal will.

Trial by jury came to the American colonies as part of English law. When conflicts developed between England and the colonies, the Crown sought to use the jury to further its interests. But the colonists soon came to appreciate that the jury's strength and authority could be used for the preservation of their privileges and liberties. The Declaration of Independence set forth a series of grievances against the king, important among them the complaint of “depriving us in many cases, of the benefits of Trial by jury.” And three of the ten articles of the Bill of Rights dealt with grand and petit juries.

The U.S. Constitution guarantees trial by jury only in federal criminal cases (Art. III, sec. 3; and the Sixth Amendment) and civil litigations (Seventh Amendment). In Duncan v. Louisiana, however, the Supreme Court extended to the states, via the Fourteenth Amendment, the right to trial by jury in criminal prosecutions (see Incorporation Doctrine). The Court has failed, so far, to extend likewise the right to a civil jury trial. Instead, beginning only two years after Duncan, the Court authored a series of jury‐diminishing opinions. For example, Baldwin v. New York (1970) restricted the right to a criminal jury trial by making use of a distinction (not found in the Sixth Amendment) between petty and nonpetty crimes and by applying the Sixth (and Fourteenth) Amendment only to nonpetty offenses—defined as prosecutions that provide for a maximum possible confinement of more than six months.

In Williams v. Florida (1970) the Court approved the use of six‐person juries in state criminal cases; and eventually approved small juries for civil cases in both state and federal courts. Having constitutionalized the “beyond a reasonable doubt” standard as the required proof in criminal cases, the Court, in Johnson v. Louisiana (1972) and Apodaca v. Oregon (1972), held that a state criminal jury could convict (in a noncapital case) by a 10‐to‐2 or 9‐to‐3 vote. More recently, Batson v. Kentucky (1986) restricted the prosecution's use of peremptory challenges.

Though trial by jury enjoys widespread support, the trend of Supreme Court decisions has been toward reduction of the employment, powers, and effectiveness of the jury. Perhaps the earliest instance of judicial jury slicing was the invention of the “directed verdict,” that is, if the judge thought that the evidence was insufficient for conviction, he could instruct the jury to return a verdict of “not guilty” (Commonwealth v. Merrill, 1860).

One of the most important examples of judicial ascendancy at the expense of the jury is the latter's loss of the right to decide questions of law (Sparf & Hansen v. United States, 1896). The law‐deciding right of juries, it is true, had a customary rather than a constitutional base, but the custom was well established by the 1770s and most of the Founding Fathers strongly supported it. American juries, typically, were instructed that they had the right to decide the facts of the case and to interpret (e.g., to apply or not apply) the law. Except for Maryland and Indiana, today's jurors are instructed that they must take the law from the judge. A potential juror's stated unwillingness to accept the law from the judge is sufficient cause for exclusion from jury service.

The loss of the jury's law function is particularly surprising because it is contrary to the lessons of some well‐remembered cases as well as to previous rulings, such as Georgia v. Brailsford (1792), which held that jurors not only had the right but the duty to set aside instructions on the law if they thought them to be erroneous or to create an injustice. Perhaps the most famous of these cases occurred when jurors refused to apply the existing law of libel and declined to convict the publisher John Peter Zenger in 1735. The early American jury could make law as well as break it. Until about the middle of the nineteenth century, legal commentaries uniformly recognized that the jury had legislative powers.

What is at stake is not only the nonapplication of obviously unjust laws, but the introduction of a much needed element of flexibility in the application of all laws. Formal lawmaking necessarily lags behind social and cultural developments. Statutes cannot anticipate all possible situations. The inflexible application even of a generally just law can create an injustice in particular circumstances. It is one of the virtues of the jury that it is not bound to the uniform administration of the laws. Judges, by contrast, are bound to uniformity and have much more limited discretionary powers.

Contemporary jurors still have the power not to apply the law as given to them (“nullification”). The right to do so, however, has largely been lost. Indeed, even the fact‐finding right of the jury is not entirely safe. There is an argument that judges should be free to comment to the jury on the facts of the case, including which witnesses should be believed. Most state statutes and decisions now prohibit such commentary.

An important new form of jury diminution is the denial of jury trials in civil cases thought to be “too complex” for jurors. Encouraged by the Supreme Court's opinion in Ross v. Bernhard (1970), several lower courts have issued such denials. Further reducing the power of the civil jury, the Court recently held in Tull v. United States (1987) that it does not violate the Seventh Amendment for the judge rather than the jury to set civil penalties.

Since Strauder v. West Virginia (1880), however, the Court has consistently protected the right of all citizens to participate as jurors in the administration of justice. Through a long series of cases, it has prohibited de jure and de facto discrimination against racial (and other) groups in the selection of jury venires. These decisions have been codified by the Federal Jury Selection and Service Act of 1968. In Batson v. Kentucky the Court extended the prohibition of racial discrimination to the selection of the actual jury.

In spite of the formal guarantees of the Bill of Rights, trial by jury has an uncertain future. It seems unlikely that the Court's jury dimunitions have reached their peak. Attacks on trial by jury continue inside and outside the judiciary. The main accusations are that jurors are incompetent, unfair, and lawless. The consensus of scholarly experts is different. Various investigations have found that most jurors take their task seriously, execute it competently, and strive earnestly to be fair to all parties. Furthermore, most juries follow the law as given to them by the court. The occasional “lawless” jury, in any case, brings flexibility to the system and should be regarded as a positive occurrence—as even the Court acknowledged in Duncan (p. 157).

Of course, there are occasional failures in jury comprehension and fairness. The same, however, can also be said about bench trials. The reasonable response to inadequacies is not jury abolition but improving the conditions under which jurors must work. As long as, for example, evidence continues to be presented in a disjointed fashion while jurors are refused access to the transcripts and, in many courts, may not even take notes, arguments for the abolition of trial by jury must be regarded as ill considered and premature.

See also Seventh Amendment; Sixth Amendment; Trial by Jury.

Bibliography

Reid Hastie, et al. , Inside the Jury (1983).
Harry Kalven and and Hans Zeisel , The American Jury (1971).
Peter W. Sperlich , And Then There Were Six: The Decline of the American Jury, Judicature 63 (1980): 262–279.
Lawrence S. Wrightsman, etal. , In the Jury Box (1987).

Peter W. Sperlich