A Brief History of Trial by Jury in the United States, Per the Supreme Court

Recently, the U.S. Supreme Court held, in Erlinger v. United States, 2024 WL 3074427 (U.S. June 21, 2024), that a criminal defendant is entitled, under the Fifth and Sixth Amendments, to have a jury unanimously determine beyond a reasonable doubt whether his past offenses were committed on separate occasions for purposes of the Armed Career Criminal Act (ACCA).

En route to its decision, it provides a brief history lesson, pertaining to the right to trial by jury:

Prominent among the reasons colonists cited in the Declaration of Independence for their break with Great Britain was the fact Parliament and the Crown had “depriv[ed] [them] in many cases, of the benefits of Trial by Jury.” ¶20. For centuries, English law had recognized the right to trial by jury. Duncan v. Louisiana, 391 U.S. 145, 151, 88 S.Ct. 1444, 20 L.Ed.2d 491 (1968). Yet, as tensions grew between the British Empire and its American Colonies, imperial authorities responded by stripping away that ancient right. By their lights, colonial juries “ ‘were not to be trusted’ ” because they found for defendants too often. D. Lovejoy, Rights Imply Equality: The Case Against Admiralty Jurisdiction in America, 1764–1776, 16 Wm. & Mary Q. 459, 468 (1959). To secure more vigorous enforcement of the Stamp Act and other unpopular laws, authorities directed more and more cases to vice-admiralty courts where crown-appointed judges, rather than local juries, decided the defendant’s fate. Jones v. United States, 526 U.S. 227, 245–246, 119 S.Ct. 1215, 143 L.Ed.2d 311 (1999). Just as authorities hoped, the tactic proved “ ‘most effective’ ” at securing the verdicts they wished. Parklane Hosiery Co. v. Shore, 439 U.S. 322, 340, n. 3, 99 S.Ct. 645, 58 L.Ed.2d 552 (1979) (Rehnquist, J., dissenting) (quoting 11 W. Holdsworth, A History of English Law 110 (1966)).

After securing their independence, the founding generation sought to ensure what happened before would not happen again. As John Adams put it, the founders saw representative government and trial by jury as “the heart and lungs” of liberty. Letter from Clarendon to W. Pym (Jan. 27, 1766), in 1 Papers of John Adams 169 (R. Taylor ed. 1977). “[W]ithout them,” he wrote, we “have no other fortification … against being ridden like horses, fleeced like sheep, worked like cattle, and fed and clothed like swine and hounds.” Ibid. Reflecting that sentiment, the right to trial by jury in criminal cases was, on one telling, the only right included in every newly enacted state constitution. A. Alschuler & A. Deiss, A Brief History of the Criminal Jury in the United States, 61 U. Chi. L. Rev. 867, 870 (1994).

Those who drafted our Federal Constitution took just as strong a stand on the jury trial right. As originally proposed, the Constitution promised that “[t]he Trial of all Crimes, except in Cases of Impeachment, shall be by Jury.” Art. III, § 2, cl. 3. In the ratification debates that followed, some questioned the adequacy of this provision; even with it, they feared, the new federal government might fall prey to the kinds of temptations that led the British to restrict the jury trial right in the colonies. That right, they argued, had to be “guard[ed] with the most jealous circumspection.” A [New Hampshire] Farmer, No. 3, June 6, 1788, quoted in The Complete Bill of Rights 681 (N. Cogan 2d ed. 2015) (internal quotation marks and italics omitted). To address this and other concerns about the new Constitution, James Madison agreed to draft a series of amendments we now know as the Bill of Rights. No fewer than three of those ten amendments touch on the right to trial by jury, two with implications for criminal cases. Amdts. 5, 6, 7. Madison himself described protections for the jury trial right as among “the most valuable” that appear in “the whole list” of amendments he produced. 1 Annals of Cong. 755 (1789).

Happy Independence Day!

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