Trial by Jury
TRIAL BY JURY
The right to jury trial is provided in three clauses of the Constitution of the United States. Jury trial in federal criminal cases is required by Article III, which is otherwise given to defining the role of the federal judiciary: "The Trial of all Crimes, except in Cases of impeachment, shall be by Jury." This provision is repeated in the Sixth Amendment, which is otherwise given to the rights of the accused: "In all criminal prosecutions, the accused shall enjoy the right to a speedy and public trial, by an impartial jury.…" The bill of rights also included a provision for jury trial in civil matters; this right is embodied in the seventh amendment : "In Suits at common law, where the value in controversy shall exceed twenty dollars, the right of trial by jury shall be preserved.…"
The federal Constitution makes no explicit provision regarding the right to trial by jury in proceedings in state courts. State constitutions contain many similar provisions, although the interpretations of the right in state courts have varied significantly from the standards applied in federal courts. Substantial variation survived the enactment of the fourteenth amendment, which for the first time subjected the state courts to the strictures of the due process clause. It was early held, and appears still to be the law, that the Fourteenth Amendment does not incorporate the Seventh, that there is no federal constitutional requirement of a right to jury trial in civil cases in state court. (See walker v. sauvinet.) More recently, the Supreme Court has held that due process does require some form of access to a jury in major criminal prosecutions in state courts. (See duncan v. louisiana.)
Although the institution of jury trial has been known to American and English courts for a millennium, there have been significant changes in its form and nature over that period. Indeed, the origins of the institution are shrouded in the uncertainties of prehistory. Germanic tribes, like most stable societies, made early use of laymen in official resolution of disputes. Such practices were well known to Saxons and their neighbors at the time of the Norman Conquest in 1066. Nevertheless, at that time and place, more common resort was made to various ordeals, which were essentially religious services purporting to reveal the will of the deity. One variation on trial by ordeal was trial by battle, in which the Saxon disputants, or their champions, waged a ritual struggle to determine the side of the diety. Yet another variation was trial by wager of law, which engaged the services of the neighbors as oath helpers. By their willingness in numbers to risk salvation to stand up for a disputant, the oath helpers were perceived to express a divine will. In some sense witnesses and in some sense decision makers, these laymen can be viewed as early jurors. The nature, origin, and extent of the use of such institutions in the several shires of Saxon England doubtless varied and are the subject of some uncertainty.
The royal judges appointed by Norman kings embraced Saxon traditions, including trial by ordeal, oath helping, wager of law, and the use of laymen to share responsibility for official decisions. A papal decree in 1215, which withdrew the clergy from participation in trials by ordeal, had the effect of withdrawing the imprimatur of the deity from the decisions of the royal courts. This apparently stimulated interest in alternative methods of trial that might deflect some of the odium of decision from the royal surrogate. Thus, the petit jury (to be distinguished from the grand jury) emerged in more nearly contemporary form in the thirteenth century as a feature of the Norman royal courts.
Thirteenth-century jury trial emerged chiefly in proceedings of trespass, a form of action in which the lash of royal power was applied to maintain the peace of the realm. As trespass and its derivative forms of action came to dominate the common law, so trial by jury became the dominant method of trial in civil matters coming before the royal law courts. Thus, jury trial was associated with the various forms of trespass on the case (from which the modern law of torts emerged), of assumpsit (from which the modern law of contracts emerged), and of replevin, an action important to the development of personal property rights. Indeed, one reason for the demise of some of the earlier royal writs, such as the writ of right, or even the writ of debt, was dissatisfaction with the mode of trial that accompanied the use of such writs.
A concurrent evolution led to the emergence of the jury as an important element of criminal justice in the royal courts. The royal inquest was a feature of early Norman royal governance; it was an important device for centralizing power in the royal government and was a proceeding for calling local institutions and affairs to account. The grand jury was a group of local subjects of the crown who were called upon to investigate, or answer from their own knowledge, regarding the observance by their neighbors of the obligations imposed upon them by royal command. By stages, the inquest came to be followed by a further proceeding to impose royal punishment on apparent wrongdoers. In the latter half of the twelfth century, the royal government was initiating such enforcement proceedings, thus supplementing the trespass proceedings which had earlier provided protection for the peace of the realm, but only on the initiative of a victim of wrongdoing. By 1164, there was a clear beginning of the use of petit juries in crown proceedings. By 1275, it was established that the petit jury of twelve neighbors would try the guilt of an accused, provided the accused consented to such a means of trial, which he was coerced to do.
One major theme in the evolution of the right to jury trial in royal courts was the development of a system of accountability to constrain lawlessness by juries. For some time, the only method available to royal courts to deal with such behavior was to prosecute (or, more precisely, to attaint) the jurors for rendering a false verdict. If a second jury so decided, a jury could be punished for this offense. The harshness of this remedy led to its demise, for the attaint jurors were reluctant to expose an earlier jury to disgrace and punishment. In the seventeenth century the writ of attaint was gradually replaced by the practice of granting a new trial when the first verdict was against the weight of the evidence. This practice came to be equally applicable to criminal as well as civil proceedings, except insofar as an accused could not twice be placed in jeopardy of conviction. (See double jeopardy.)
A second major theme in the evolution of the right to jury trial in civil cases was its confinement to the common law courts when the Chancery emerged as an alternative system of adjudicating the use of the royal power. English chancellors were exercising a form of judicial power as early as the fifteenth century. An important feature of the Chancery (or proceedings in equity as they came to be known) was the absence of the jury. Another important feature was the use by the chancellor of a broader range of judicial remedies, most prominently including the injunction, which were personal commands of the judge under threat of punishment for contumacy.
Nineteenth-century English law reform ultimately brought about the demise not only of equity as a separate judicial system, but also of the right to jury trial in civil cases. In a search for greater efficiency and dispatch, the jury system in the law courts was modified and limited, so that the jury trial is now seldom used in the United Kingdom, or in other parts of the Commonwealth, except in criminal cases.
The right to jury trial took quite a different turn in the United States. At the time of the Revolution, that right came to be celebrated as a means of nullifying the power of a mistrusted sovereign; hence the several constitutional provisions guaranteeing the continued exercise of the right. Moreover, there was a special mistrust of equity (where the English recognized no right to jury trial) in eighteenth-century America, based in large part on its close connection to the royal power. Accordingly, some of the states abolished it, others conferred its powers on their legislatures, while only some retained its colonial forms or created state chanceries to continue the English tradition.
In many parts of the early United States, there was a widely shared mistrust of professional lawyers and of judges drawn from that profession. Mistrust of officials in general and professional judges in particular was a feature of the Jacksonian politics of the first half of the nineteenth century, which was reflected in provisions for the election of judges and the reaffirmation of the importance of jury trial as a means of deprofessionalizing the exercise of judicial power. These political impulses were magnified in the populism of the late nineteenth century.
Indeed, the American legal profession came to be shaped in important degree around the institution of the jury; jury advocacy became in the popular mind the central activity of the American lawyer. During much of the nineteenth century, the most powerful intellectual force in American law was the work of william blackstone, an English scholar of the previous century. Blackstone's Commentaries (1776) was the one book read by almost all American lawyers, and perhaps the only law book read by some. By no coincidence Blackstone was a staunch advocate of the right to jury trial in civil cases, an institution already in decline in his own country; his belief in the institution of the lay jury was one of his strongest links to the frontier society which he so significantly influenced.
Beginning as early as 1848 in New York, most American states adopted "merged" systems of procedure in civil cases. Merger united law and equity in a single judicial system; reformers were careful to retain the right to jury trial in actions "at law" and in some states even extended it to some matters properly described under the former system as "suits in equity." Through most of the nineteenth century, the federal courts played a secondary role in the American legal system, and Congress required their procedures to conform "as near as may be" to the procedural legislation of the states in which they sat. For the most part, this conformity seemed to apply to the forms of jury practice as well as to other details of procedure. It was not until 1938 that the federal rules of civil procedure were promulgated for the federal courts, for the first time formally merging law and equity in federal courts in accordance with national standards. The federal rules of criminal procedure soon followed. A national system or method of conducting jury trials in federal courts for defining the scope of the jury's power and the judge's responsibility and for prescribing the limits of the right to jury trial at last emerged.
For a period of several decades following the reform era of the 1930s, the Supreme Court made the protection of the right to jury trial in civil cases a major item on its agenda. A number of its decisions enlarged on previous expectations about the scope of the right and increased the authority of the jury, for example, Beacon Theaters, Inc. v. Westover (1959) and Rogers v. Missouri Pacific Railroad Co. (Justice felix frankfurter's dissent, 1957). Interest in the right to jury trial became very intense in the mid-1960s as a result of widespread civil rights litigation, preoccupation with equal protection, and the possible nullification or impairment of federal law by locally selected juries.
In the last decade, there may have been some growth in consciousness of the disadvantages of jury trial in civil cases. Increasing attention has focused on trial efficiency, the effectiveness of the law, and alternative methods of dispute resolution. But it is too early to say that we have entered a period in which the distinctly American institution of jury trial will be seriously reexamined.
As much as for any procedural right, the beauty of the right to jury trial is in the eye of the beholder. For as long as there have been lay decision makers, there have been strong-minded critics and devoted defenders who have disputed the wisdom of the system with equal vehemence. The practice rests on values so basic and so unsuitable to proof or disproof that the debate seems unlikely to terminate. It is at least in part for this reason that so many reforms, from the Seventh Amendment to the Rules Enabling Act, sought to evade debate on the fundamental issues by ostensibly preserving the status quo in regard to the right to jury trial, leaving the issues of the scope of jury trial to other times and other forums. Rarely has Congress or any state legislature been able to address the merit of the right to jury trial without having its deliberative processes impaled on the sharp point of the debate. For the same reason, decisions to expand or contract, preserve or alter, existing practices have been and will continue to be greatly influenced by the predominance of one view or the other of the merits of the institution.
Supporters of the right to jury trial regard it as a key-stone of democratic government. It is, indeed, a method of sharing power with those who are governed. It deflects the hostility toward public institutions otherwise engendered by the lash of public power. It is a remedy for judicial megalomania, the occupational hazard of judging. Particularly in regard to criminal legislation, the right to jury trial provides a limit on the power of legislatures who eventually must countenance the nonenforceability of laws which citizens are unwilling to enforce. It is also a means of education: jurors learn about the law and share their learning with families and neighbors. In all these respects, it engenders trust. In general, supporters and critics alike agree that those benefits are more substantial in criminal than in civil litigation.
Critics observe, however, that juries are inefficient and may well be quite inaccurate in their perceptions and decisions. Involving many people in the making of a decision is inherently inefficient. It is necessary to invest time and expense in the selection of jurors. Trials proceed much more slowly because of the shorter attention span of lay persons in courtroom contexts and because additional participants entail additional interruptions and delays for personal reasons. Because of the inexperience of jurors, there has developed a substantial body of rules governing the admission of evidence which have as their purpose the protection of the jury from confusion and inflammation of prejudice. These strictures operate at times to increase the complexity of trials and to enlarge the possibility of mis-trial or new trial, which is the result of error in the application of such rules of evidence. For these reasons, jury trials take substantially longer than nonjury trials and are substantially more expensive for the participants.
Moreover, as other critics emphasize, the deliberations of juries are undisciplined. Although jurors tend to be conscientious in the application of the governing law, the controlling rules are often dimly understood and not infrequently sacrificed in order to secure the requisite consensus. Whatever guidance or control the trial judge may supply, the chance of erratic decision is greater in jury than in nonjury trials.
Other adverse factors are less frequently mentioned. Jury service is in many cases a substantial burden to jurors; although they receive token payment, they are coerced to perform a duty that can sometimes be onerous. Particularly in communities characterized by disorder and social disintegration, jurors may even be frequent objects of intimidation and bribery; they are, in general, more difficult to protect from these vices than are judges, and they are perhaps also more vulnerable to such pernicious influences.
To a substantial degree, the perceived merits or demerits of the system will depend on particular features of the system which are designed to respond to the problems the system presents. Unfortunately, techniques for diminishing the demerits of jury trial often tend also to diminish its merits: the more control exercised over juries, the less advantage there is in assembling them. In the final analysis, almost every issue regarding the right to jury trial turns on the degree to which power is to be confided in professional officers of the law. Consensus on that basic issue being so distant a prospect, the contours of the institution as described below must be regarded as an unstable compromise, quite subject to change.
Instability is nowhere more clearly exemplified than in regard to jury size. Perhaps as early as the thirteenth century, Englishmen understood that a jury is a group composed of twelve persons. The method of selecting the jury might have varied, the duties assigned to the group may have been altered, but the one element of stability was their number, twelve. Some states experimented with the use of smaller juries, particularly in the trial of lesser crimes, and the Supreme Court in williams v. florida (1970) held that the use of such groups as six is not itself a deprivation of due process of law. It was, however, long presumed that a common law jury is twelve and that such a number was required in federal courts by the Sixth and Seventh Amendments, unless a smaller number be agreed to by the parties. This presumption is reflected in the language of Federal Rule of Civil Procedure 48, which authorizes parties to agree to smaller juries.
Nevertheless, most federal district courts have in the last decade adopted local rules of court designating civil juries to consist of six persons. The validity of these local rules was sustained by the Supreme Court in Colegrove v. Battin (1973). The Court rested its decision on the absence of any straightforward legislative prohibition on juries of less than twelve and on the dubious assumption that there were no solid data demonstrating that twelve-person juries reach substantially different verdicts from six-person juries. The Court also manifested a conviction that six-person juries are more efficient than those composed of larger numbers, a conviction which is itself not amenable to solid empirical proof. However, in ballew v. georgia (1978) the Court held that a five-member group was too small to be properly deliberative, representative, and free from intimidation and therefore did not afford due process. The Court's decisions have stimulated increased interest in the scientific examination of judicial institutions; the decisions have also called into question other traditional presumptions about juries, none of which carries more historical weight than did the tradition of twelve.
A second traditional feature of the common law jury has been the requirement of jury unanimity in reaching a verdict. Some states have experimented with the acceptance of verdicts supported by juries that are less than unanimous. In general, such provisions have called for super-majorities, such as a vote of ten or twelve jurors. The Supreme Court held in Minneapolis and St. Louis Railway Co. v. Bombolis (1916) that such provisions were not denials of due process for state court proceedings involving issues of federal law, but later, in burch v. louisiana (1979), it invalidated a Louisiana law that authorized verdicts of conviction on the basis of a five-to-one vote of a six-person jury. Despite these variations at the state level, however, the unanimity requirement remains a standard feature of federal jury practice, unless, as the Federal Rules authorize in civil cases, the parties agree on a lesser majority.
One effect of the unanimity requirement is to assure that the jury will deliberate on its decision rather than settle for a mere nose count. A secondary effect is to increase the likelihood that no decision will be reached, with the result that a new trial before a new jury will be required, unless the controversy is privately resolved without further litigation. A third effect is to enhance the role and responsibility of each individual juror, making each an important actor with power to control the ultimate outcome of the process. To the extent that the jury is intended to be a representative body, the unanimity requirement tends to protect litigants and interests that are associated with minority groups.
A third important feature of traditional common law jury practice was the mode of selecting the jury. Using the Norman nomenclature, the court administrative arm assembles a venire of citizens from whom the jury will be selected. Veniremen may be excused or disqualified by the judge and those remaining are then subject to a further process of selection by the parties. The latter process, known as voir dire examination, proceeds from a questioning of the jurors to their challenge by the parties on grounds of cause, or peremptorily if the parties would simply prefer other members of the venire. Peremptory challenges have perhaps always been limited in number, a somewhat larger number being allowed in criminal than in civil cases.
In recent decades, this traditional process has been subject to substantial criticism and pressure. Criticism proceeds from the premise that the jury should be in some degree representative of the community it helps to govern. Most of the criticism has been directed at the process of selecting veniremen, the usual earlier practice in this country having been to authorize a court administrator to select prospective jurors by methods that were usually elitist in premise and effect. In many communities, the usual method was the "key man" system, which invoked the assistance of community leaders to identify citizens of stature who would be deserving of the trust reposed in jurors. Such systems were common in federal courts. Indeed, it was not uncommon for a federal court to maintain a blue ribbon list of veniremen of more than ordinary intelligence and experience who might be summoned to decide cases requiring more than ordinary skill on the part of the decision maker. Such methods produced juries that were anything but representative, in the proportional sense, of the communities from which they were selected.
In a legal environment favoring egalitarianism, such practices were doomed. As early as 1945, in Thiel v. Southern Pacific Co., the Supreme Court upheld a challenge by a federal litigant to a venire selection method that seemed likely to result in underrepresentation of the working class in local jurors. In Carter v. Jury Commission of Greene County (1970), the Supreme Court refused to declare a state key-man system invalid on its face absent a showing that the scheme was purposefully adopted as a means of preventing some group (usually blacks) from being represented. Nevertheless, when such a scheme underrepresents a group consistently, a prima facie case of jury discrimination is established and the scheme may then be found unconstitutional as applied, as in Turner v. Fouche (1970). Congress anticipated these holdings by enacting federal jury selection legislation in 1968. Current legislation does repose some authority in local federal courts to administer jury selection, on condition that their methods produce juries that bear proximate resemblances to randomness. Of course, individual litigants are not entitled under the statute or the Constitution to have a jury that actually reflects the demography of the community; all that is assured is that the method of selection be one that is reasonably likely to produce such a panel.
In recent years, mounting attention has been given to the process of peremptory challenge and the practice of some local prosecutors to use these challenges to prevent minority representation on particular juries, especially those called to try minority members on serious criminal charges. The Supreme Court has held that a prosecutor's use of peremptory challenges in any single case is immune from attack; the Court held in swain v. alabama (1965) that the very concept of peremptory challenges entailed the right to act without explanation. Still, the Court did leave open the possibility that systematic use of peremptories to exclude members of some group might be found to violate the equal protection guarantee of the Fourteenth Amendment. In subsequent cases, however, proving to the Court's satisfaction that systematic discrimination did exist has been virtually impossible. Some state courts have gone beyond the federal standards and ruled that peremptory challenge of veniremen on the basis of membership in any group violates provisions of their state constitutions, for example, California in People v. Wheeler (1978).
Partly as a result of the practice of making juries more representative, a new issue has arisen regarding the competence of juries to deal with intricate technical disputes beyond the ken of ordinary citizens. The Third Circuit Court of Appeals held in Matsushita Electric Industrial Company v. Zenith Radio Corporation (1980) that the Seventh Amendment is subject to the Fifth Amendment, that the use of juries in very complex civil cases may be a denial of due process of law. This question, also, has not reached the Supreme Court.
Litigants having a right to jury trial are entitled to a jury decision only on questions of fact, not on matters of law. The distinction between questions of fact and law can be stated clearly enough: the former pertain to the specific events in dispute; the latter to the legal principles to be applied. But the application of the distinction is often problematic. For this reason, juries often have to deal with issues containing substantial elements of legal interpretation. The classic example, which arises in both civil and criminal contexts, is a decision applying a general standard of negligence to the conduct of the accused or the defendant; the general standard takes more specific shape in the minds of jurors as they apply it to the events at hand.
Since the seventeenth century, it has been the responsibility of the trial judge to assure that the controlling law is obeyed by the jury; the trial judge is accountable to the appellate court for the effective performance of this duty. There are several steps in the usual common law jury trial at which the trial judge is obliged to perform this function.
A major function of the judge at a jury trial is to instruct the jury on the controlling law. This instruction is usually the last event before the jury retires to deliberate. If either party makes a timely objection to the judge's statement of law in his charge to the jury, any error in the instructions will be a solid ground for reversal.
In a civil trial, the judge should not instruct the jury at all unless there is a dispute in the evidence presented which might raise some doubt in a reasonable mind or about which jurors might reasonably differ. If the judge finds that there is no such dispute, he should direct the jury to find a verdict for the part entitled under the law to judgment. In cases of doubt about the application of this standard, the judge may prefer to reserve his ruling on a motion for directed verdict until after the jury has rendered a verdict. If the verdict is rendered contrary to the law, the judge may then enter a judgment notwithstanding the verdict in favor of the verdict loser. The Supreme Court has held in Baltimore and Carolina Line v. Redman (1935) that the judge may not take this latter step unless the motion for directed verdict was timely and the question properly reserved; otherwise, there is a violation of the Seventh Amendment because the judgment notwithstanding the verdict was unknown to English practice at the time of adoption of the Amendment.
In a criminal case the judge should direct a verdict for the accused when the prosecution has failed to offer proof of one or more elements of the offense charged. But the trial judge may not direct a verdict of guilty in a criminal case; to this extent, the Sixth Amendment assures the role of the jury as a bulwark against punishment deemed oppressive by the community, even if the punishment is required by the positive law. An element of natural justice is thereby introduced to the legal system.
In addition to his role as law officer, the trial judge also has some responsibility for the quality of fact-finding done by the jury. In either civil or criminal cases, he may set aside a verdict as contrary to the weight of the evidence. When exercising this prerogative, the trial judge is obliged to order a new trial before a second jury. In a criminal case, the power to order the new trial is confined by the constitutional constraint against double jeopardy. In a civil case, the power to grant a new trial may be exercised conditionally, but this power is subject to constitutional limitations. A conditional order of new trial is likely to occur where the trial judge regards a jury verdict as correct on the matter of liability but excessive in regard to the award of damages.
Some factual issues arising in jury-tried cases may be reserved for the judge. For example, in civil cases, issues of fact arising in a determination of the jurisdiction of the court must be decided by the judge. In criminal cases, sentencing is a function of the judge, not the jury, although the wisdom and propriety of the sentence often require factual determination.
With the exceptions noted, the division of function between judge and jury in federal courts has not been deemed a matter for constitutional adjudication. A fortiori, state practice in respect to these issues has not generally been regarded as presenting any constitutional problems of due process of law. The Supreme Court, however, has on occasion intervened to reverse state court judgments in actions arising under federal law on the ground that the federal law posed an issue for a jury which under the state practice was incorrectly left to the decision of a judge. Particularly in cases arising under the federal employers liability act, the Court was strict in limiting the role of the trial judge. Its decisions, based upon statutory grounds, may indicate that state jury practice must meet federal standards when state courts are called upon to enforce federal law. It is even possible that the Seventh Amendment will be found to be applicable to litigation of federal claims in state courts, not by reason of the Fourteenth Amendment, but by an inference of congressional intent.
The Sixth Amendment applies only to criminal proceedings that could have been tried by a jury at the time of its adoption in 1791. Even at that time, it was well understood that "petty" offenses might be tried without a jury. Federal legislation gives specific meaning to such offenses as those involving a punishment of imprisonment for six months or less and fines of $500 or less. In baldwin v. new york (1970) the Supreme Court held that due process requires jury trial in state court prosecutions for offenses involving imprisonment for more than six months. In Bloom v. Illinois (1968) the Court applied a similar standard to punishments imposed for contempt of court, although it conceded that there was some historical basis for treating contempt as a matter between litigant and judge, particularly where the contumacious act is committed in the presence of the court. In mckeiver v. pennsylvania (1971), however, the Court held that the right to jury trial is not applicable to a proceeding to determine the delinquency of a juvenile, even though a decision adverse to the juvenile might result in imprisonment for a period significantly in excess of six months; such proceedings, the Court said, are not strictly criminal because they involve less moral judgment about the conduct of the juvenile.
The Seventh Amendment has proved much more complex and troublesome. One major question has been the applicability of the amendment to claims brought under federal legislation enacted after the adoption of the amendment. A narrowly historical view would preclude the application of the right to such legislation-based claims, since they are not strictly actions "at common law." The Court has, however, generally extended the right to jury trial to statutory actions where the remedy pursued in the judicial proceeding was one that resembled a common law remedy. Thus, in Pernell v. Southall Realty Co. (1974) the Court held that there was a right to jury trial in a statutory action of eviction that was closely analogous to a common law action for ejectment. And in Curtis v. Loether (1974) the Court held that there was a right to jury trial in an action brought under the fair housing provisions of the civil rights act of 1964 because the remedy sought was compensatory damages of the sort that might have been recoverable in a common law action of trespass on the case.
In other cases, however, the Court has approved legislation creating administrative procedures and remedies that displace common law rights and thus eliminate jury-triable actions. In National Labor Relations Board v. Jones & Laughlin Steel Corp. (1937), the Court upheld the award of back pay in proceedings before the board, despite the close analogy to common law contract actions. This decision was extended in Atlas Roofing Co. v. Occupational Safety and Health Administration (1977), in which the Court upheld legislation providing for the recovery by a government agency of a civil penalty in a court proceeding where there was no right to jury trial. The Court emphasized that the case involved a "public right," to be distinguished from common law rights of private parties. In Lorillard v. Pons (1978) the Court interpreted the legislature to intend a statutory right to jury trial in proceedings brought under the age discrimination act. In that case, as in Curtis, the Court avoided any indication of the applicability of the Seventh Amendment to the employment discrimination provisions of the Civil Rights Act, which, like the Age Discrimination Act, provides for back pay awards to be made by courts, not administrative agencies.
The most complex issues of the scope of the right to jury trial arise in complex litigation where matters that are within the compass of the Seventh Amendment coincide with other matters outside that compass. In general, the Supreme Court has tended to insist upon protection of the right to jury trial in such situations, even at the risk of submitting to a jury matters that would not be jury-triable if litigated alone. Illustrative is dairy queen, inc. v. wood (1962) in which the plaintiff sought both an injunction and compensatory damages. Injunctive relief, unlike compensatory damages, is an equitable rather than a legal remedy and so is not subject to the right of trial by jury. The trial court deemed the injunction to be the primary relief sought and undertook to try the case without a jury, albeit with the intention of seating a jury to decide the measure of damages should it appear that a wrong had been committed. The Supreme Court reversed, holding that the jury-triable claim for damages must be tried first in order to protect the constitutional right to jury trial, leaving it for the judge later to decide on the availability of injunctive relief if the jury should determine that a wrong had been committed. Similarly, in beacon theaters, inc. v. westover (1959) the Court held that a jury-triable counterclaim would have to be tried first, before a determination could be made on a related claim by the plaintiff that was not jury-triable.
These cases illustrate that the constitutional right to jury trial now tends to depend on the specific substantive right and remedy involved in the litigation, not on the general (common law or equity) context in which that right is disputed. This approach was illustrated in Ross v. Bernhard (1970), in which the Court held that a claim brought by a shareholder on behalf of the corporation was jury-triable when the claim would have been triable by a jury had it been brought by the corporation itself; this decision would seem to be applicable as well to claims for damages brought by class representatives. This is so even though the procedures of stockholder suits and class actions are derived from the equity tradition, not from the practices of law courts. Thus, the increasingly widespread use of complex procedural devices that unite equitable and legal matters may in fact operate to enlarge the practical scope of the right to jury trial. This seems true despite the disclaimers set forth in such law reforms as the Federal Declaratory Judgment Act and the Federal Rules Enabling Act, which express the intent not to alter the existing scope of the right. That intent was not practicably attainable consistent with achieving the other aims of the procedural reforms, which include efficiency and dispatch.
On the other hand, a rule that the Seventh Amendment right to jury trial depends on the substantive right and remedy involved in the litigation is not always applied. Illustrative is Katchen v. Landy (1966), which upholds the power of the court to determine without a jury claims brought against a bankrupt estate, whether or not the claims might have been jury-triable if asserted directly against the bankrupt. The Court emphasized the practical needs of the bankruptcy system for dispatch in making such decisions; it was said that these considerations justified Congress in directing that they be made without juries. Thus, the scope of the constitutional right to jury trial in civil cases is a complex question, drawing heavily on historical analogues but also influenced by considerations of contemporary practicality. It is not a static right, but it is likely to take on new dimensions in the hands of future courts.
It may be concluded that the right of accused persons to a trial by jury has become a deeply entrenched feature of criminal litigation in the United States, broadly protected by the Sixth and Fourteenth Amendments, with the selection and role of the jury being aspects of the right that are themselves subject to constitutional control. The right to jury trial in civil cases, on the other hand, rests upon a different constitutional provision, which is inapplicable in state courts and may be somewhat less rigidly maintained even in federal courts, for the reason that it is less assuredly beneficial to the citizens to be protected.
Paul D. Carrington
Dawson, John P. 1962 A History of Lay Judges. Cambridge, Mass.: Harvard University Press.
Heller, Francis H. 1951 The Sixth Amendment to the Constitution of the United States. Lawrence: University of Kansas Press.
James, Fleming 1963 Right to Jury Trial in Civil Cases. Yale Law Journal 72:655–693.
Kalven, Harry and Zeisel, Hans 1966 The American Jury. Boston: Little, Brown.
Mc Cart, Samuel N. 1964 Trial by Jury. Philadelphia: Chilton Books.
Schultz, Marjorie S., ed. 1980 The American Jury. Law and Contemporary Problems. Durham, N.C.: Duke University.
Spooner, Lysander 1852 An Essay on the Trial by Jury. Boston: John P. Jewett Co.
Van Dyke, Jon M. 1977 Jury Selection Procedures. Cambridge, Mass.: Ballinger.
Wolfram, Charles 1973 The Constitutional History of the Seventh Amendment. Minnesota Law Review 57:639–747.
Trial by Jury
Trial by Jury ★★½ 1994 (R)
Strong cast, lame script. Idealistic single mother Valerie Alston (Whalley-Kilmer) winds up on the jury trying notorious mobster Rusty Pirone (Assante). Rusty's henchman, Tommy Vesey (Hurt), lets Valerie know that her son is in mortal danger if she doesn't find his boss innocent. Of course DA Daniel Graham (Byrne) is equally adamant about a conviction and is willing to use Valerie any way he has to. 107m/C VHS, DVD . Joanne Whalley, William Hurt, Gabriel Byrne, Armand Assante, Kathleen Quinlan, Stuart Whitman, Margaret Whitton, Ed Lauter, Joe Santos, Richard Portnow, Beau Starr, Mike Starr, John Capodice, Lisa Arrindell Anderson; D: Heywood Gould; W: Heywood Gould, Jordan Katz; C: Frederick Elmes; M: Terence Blanchard.