The right to a jury trial is guaranteed by two amendments to the United States Constitution. The Sixth Amendment guarantees a defendant charged with a serious crime the right to a ‘‘speedy and public trial, by an impartial jury of the State and district wherein the crime shall have been committed.’’ The U.S. Supreme Court has interpreted the Seventh Amendment to guarantee a jury trial to parties in a civil dispute if the action (or an analogous action) would have received a jury trial in 1791, when the Seventh Amendment was enacted.
Even though the Sixth Amendment provides that ‘‘ [i]n all criminal prosecutions, the accused shall enjoy the right to a speedy and public trial,’’ the U.S. Supreme Court has explained that this right is limited to ‘‘serious crimes.’’ A defendant has a right to a jury trial for a serious crime, but not for a petty one. The key question, then, is what constitutes a serious crime? Through case law, the U.S. Supreme Court has given guidance to lower court judges to help them determine whether the defendant has been charged with a serious crime. The defining feature of a serious crime is that the maximum penalty that the defendant can receive is more than six months of imprisonment. This focus on the maximum penalty takes into account whether the legislature considers the crime to be serious, because the legislature sets maximum penalties. Although a court can consider other penalties, such as fines or probation, in deciding whether a crime is serious, the main focus is the maximum authorized prison time. The reason for this, according to the U.S. Supreme Court, is that prison time is different from other penalties; it involves a loss of liberty.
Although the right to a jury trial in criminal and civil matters is guaranteed by different amendments, criminal and civil juries are selected in the same manner and afford parties many of the same protections. For example, in jury selection in both criminal and civil cases, the venire, or panel, from which the petit jury is selected must be drawn from a fair cross section of the community. The U.S. Supreme Court has interpreted this to mean that no group can be systematically excluded from the venire. The idea is that if the venire is drawn from a broad swath of the community, the petit jury will have a broad range of ideas and perspectives to consider when it deliberates. A venire drawn from a fair cross section also assures the defendant that the government cannot stack the jury in its favor. The defendant also hopes that there is at least one person on the jury who will view the case from the defendant’s perspective.
Similarly, in the selection of both criminal and civil juries, both sides have a certain number of peremptory challenges that allow them to remove from the petit jury a certain number of prospective jurors without, in most cases, having to give a reason. The peremptory challenge allows each side to feel that it has ‘‘selected’’ its jury and removed those jurors less likely to be sympathetic to its case. The number of peremptory challenges that each side is given varies depending on whether the case is in federal or state court and whether it is a criminal or civil case. Although the peremptory challenge is not constitutionally mandated, it has been part of our legal tradition since before this nation’s founding. Defendants, in particular, view the peremptory challenge as a protection; it allows defendants to feel comfortable with the jury selected. However, over the past forty years, there has been much debate about the peremptory challenge, particularly because for many years, lawyers used peremptory challenges to excuse African Americans from serving on juries. Because peremptory challenges do not require reasons, attorneys could use peremptory challenges to excuse African Americans without having to explain why. This led some critics of the peremptory challenge, including Justice Thurgood Marshall, to suggest their elimination. Instead, the Supreme Court decided that if it appears that an attorney is exercising a peremptory challenge on the basis of race, gender, or ethnicity, the other side could challenge this use of the peremptory. Attorneys can no longer exercise peremptory challenges on the basis of a prospective juror’s race, ethnicity, or gender.
Another subject of debate is jury nullification. Jury nullification is when the jury decides not to follow the law as the judge has explained it to the jury. It is often difficult to know when a jury has engaged in nullification, because juries typically return only a general verdict (either guilty or not guilty in criminal cases or liable or not liable in civil cases). If the judge suspects that the jury engaged in nullification in a civil case or in criminal case in which it convicted the defendant, then the judge can take action to alter what the jury has done. However, in a criminal case in which the jury engaged in nullification and acquitted, the judge cannot take any further action.
The debate has centered on whether jurors should be told by the judge or attorneys that they have the power to nullify. The current practice is to tell the jurors the opposite. Jurors take an oath to follow the law, and the judge instructs them that it is their job to find the facts and to apply the law, as the judge explains it to them. There has been a movement to inform jurors of their power to nullify. Some grassroots organizations have distributed leaflets at the courthouse door, explaining to prospective jurors that they have the power to nullify, regardless of the instructions that the judge will give them. Some members of the African-American community have called for African-American jurors to nullify in certain victimless crimes when the defendant is African American. They have taken this position as a means of protesting the number of African-American men being sent to jail, particularly for violations of the drug laws.
All the federal circuit courts have held that judges should not instruct jurors on their power to nullify. Recently, the Second Circuit held that if a deliberating jury sends the judge a note indicating that a juror intends to nullify, the judge must interview that juror and determine whether that juror’s view is based on nullification or reasonable doubt. If the juror intends to nullify, the judge must remove that juror and replace him with another, even though the jury is already deliberating.
A jury may be inclined to nullify when it does not agree with the law at issue, when it does not believe the law should be applied to the particular defendant, or when it wants to use its verdict to protest some aspect of the justice system. Judges, who have sworn to uphold the law, and legislators, who pass the laws, are generally opposed to nullification. However, a jury that engages in nullification after careful deliberation may provide an important safety valve, because laws are drafted for the general case and cannot always take account of a particular case, as a jury can do.
NANCY S. MARDER
References and Further Reading
Cases and Statutes Cited