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The Constitution guarantees that "the trial of all crimes ... shall be by jury." The jury system is one of the most fundamental tenets of the American judicial system. Thus, in all but the most minor cases and in impeachment trials, anyone accused in a civil or criminal case is ensured that a group of people, rather than an individual judge, will decide the outcome of the proceeding.In the United States, there are two types of juries: grand juries and petit juries. The grand jury’s function is to listen to evidence provided by prosecutors against an individual and return a bill of indictment. If a grand jury indicts someone after they have heard the evidence presented by the prosecution, they are not saying that the person is guilty. They are simply saying that there is enough evidence to bring that person to trial. While grand juries in almost all cases follow the lead of the prosecutor, they are considered an important check on overzealous government prosecutors. In many states, however, the grand jury is rarely used, and has been replaced by a simpler system in which the prosecutor merely bring formal charges.The petit jury is the jury that actually hears evidence in a trial. It is typically made up of 12 people. Some states have juries with fewer people. In most cases, jury verdicts need to be unanimous. In some other cases, however, particularly in civil cases, there must be some kind of extraordinary majority.
The Importance of the Jury System
The purpose of law is to define behavior and conduct that is acceptable in a society. &ldquoObedience of the law is demanded not asked as a favor,&rdquo(1) was said by Theodore Rosevelt in regards to how important the law is to a country. This is to ensure that people of a society are living in a place where they are free of fear, and able to reside in peace. Crime can be found throughout that world and is an unfortunate part of society, which must be dealt with in order to prevent the demise of law and order in a society.
Martin Luther King Jr. said &ldquoLaw and order exist for the purpose of establishing justice and when they fail in this purpose they become the dangerously structured dams that block the flow of social progress. &rdquo(2) Individuals believed to have committed an offence against the law must be found guilty in a court of law to receive their punishment. The jury system provides a definitive conclusion to the innocence of those who have been accused of a crime.
Having the jury system is effective and useful because Canada prides itself in its value of democracy which is shown through the involvement in justice, it allows for the peers of an accused to hear the entire facts of a case and the fate of the accused is not in the hands of solely one individual who may have conflicting opinions and values than that of the accused. In the following, the reasons for having the jury system become an integral part of the Canadian Justice System. The involvement of a jury is important because it allows for a fair conclusion to trials.
To begin, Canada having the jury system allows for Canadains to have an active role in their justice system which is crucial in ensureing that there societial veiws and values are upheld. Canada takes great pride in ensuring every individual that has to appeear before the court for offecnes is given a fair trial. Having a democratic government enables the citizens of a country to elect those who will lead them, and those elected vote on issues affecting their country and its citizens. Being an active citizen, demonstrates how invovled you are with society.
John Fitzgerald Kennedy stated &ldquoask not what your country can do for you ask what you can do for your country. &rdquo(3) Based on this quote it is evident that being an active citizen is very important and jury duty is one of the most commons ways that this can be accomplished. Canda is known as a country where the views and vaklues of citizens are taken in consideration when deciding opn what is consideried right or worng. Having the jury makes it more effiecnet because it follows the reuglations to a fair trial and and to ensure justice is served.
Although it is important for citizens to play an active role in their society, it is also important that there is no bias. In addition,when dealing with circumstances in which a person or group has committed an offence against society it is important that there is an unbiased trial. this means that the people involved are not aware of the case before hand, this allows them to make decisions based on evidence and allowable admissions from witnesses. Having a jury is effective as the jurors are randomly selected.
John Amery said &ldquoThat is why I come forward tonight without any political label, without any bias, but just simply as an Englishman to say to you: a crime is being committed against civilization. &rdquo (4)This presents the idea that the jury also is basing there decsiions on the cases on facts and evidence and not bias opinons. Their can be many influences that effect the decions made in a trial but having a jury unaware of the crime, case, or unaware of who the accused is allows the possibility of a fair trial.
Curt Weldon stated, &ldquoThe mainstream media has its own agenda. They do not want to print the facts. They have an agenda, they have a slant, they have a bias. It is outrageous to me. &rdquo(5) This relates to the idea that people can easily be swayed by false facts that may be written about certain things, which can alter a persons percepective on it. We have juries in many cases, as they are unaware of any details relating to the case so their opinions do not swy toward one side prior to all the facts and admissable evidence being displayed in a court of law.
Although it is important for their to be no biases in the courtroom, it should also be stated that the decision on someone's fate should not be decided solely by one person. Lastly, having a jury in place to decide the fate of an individual who is accused of committing an offence, allows that individual to have a fair trial. Having only a judge decide the fate of a person can be conflicting because the judge may have opinons and vlaues that differ from the accused causing there to be a unfair verdict.
Having twelve people searching for the truth rather then only one allows for a better judgement. In addition a jury consists if everyday people who all want to make sure justice is served where it should be. The objective of the defence is to raise a reasonable doubt and protect the rights of the accused. Having twelve ppl decide if a person is innocent or guilty, allows for one to have a fair trial. In a jury trial all members of the jury must agree on a verdict, meaning that the facts presented and the testimonies provided undoubtedly prove the accused is guilty.
Having only a judge can be difficult because there may be presecdents for cases that are similar to the one they are hearing which may sway or push for a certain decision regardless of how it applies in the specific case. Individuals who have trial by jury usually feel that they are more likely to have to truth revealed because there are so many people that are trying to find the truth that concelaing proves to be much more difficult then if only one person needed to be convinced.
Dave Barry is quoted as saying &ldquoWe operate under a jury system in this country, and as much as we complain about it, we have to admit that we know of no better system, except possibly flipping a coin. &rdquo(6) Through this quote it is explained that the jury system does not have an equivalent. All jurors must be convinced that a crime has been comitted, instead of flipping a coin which in this case he may be comparing it to having only one person decide the outcome.
This is because they will either say guilty or not guilty, which is just like flipping a coin where the result is either heads or tails. Therefore having a group of indiviuals decide the outcome of a case is more effective because it not based on one person who may be compelled to tbe more leniant towards one side rather than the other. In conclusion, having the jury system in Canada is an effective way of determining the fate of the indiviudals accused of committing a crime against society without them having to face injustice.
Canada prides itself inbeing a democratic country and having the public be invovled in makingn their community a peaceful safe place to live. Having a jury means that there is much less chance for biased verdicts because they are random individuals who are chosen to veiw cases that are not known to them. Moreover having twelve people searching for the truth is better than a lone person. Finding the truth can prove to be a difficult task but having more than one person deciding if what is displayed is truth is a great way of preserving justice within our community.
Why Cases Go to a Grand Jury
The concept of a grand jury originated in England and became enshrined in the U.S. legal system through the Fifth Amendment, which requires all potential federal cases to proceed through a grand jury.
Only about half of U.S. states recognize grand juries as a way to pursue state criminal charges. In states that use grand juries, a grand jury indictment is the primary way to start criminal proceedings. Their importance and usage vary between states.
States that don't use grand juries use preliminary hearings for felony cases. Instead of impaneling a grand jury, a prosecutor files a criminal complaint which lists the name of the defendant, facts of the case, and relevant charges. After the complaint is filed, a judge reviews it in a public preliminary hearing. During this hearing, lawyers are present and the judge decides whether or not to indict the defendant. In some states, a person who has been accused of a crime can request a preliminary hearing.
Trial by jury. Should the jury system be abolished?
More than 50 years later, is this statement still applicable? Should the jury system be abolished? A jury is a sworn body of people convened to deliver an impartial verdict. Juries are composed of jurors, who are by definition layman finders of fact, not professionals. The jury trials are now governs by the Juries Act 1974. As Lord Devlin once stated, trial by jury is more than an instrument of justice and more than once wheel of the constitution. It is now been regarded as the lamp that shows that freedom lives.
This was written by Lord Devlin in 1956, and the question now is whether this statement can still be applied in the legal system nowadays? To start with, the academic Penny Derbyshire penned an article entitled "The Lamp that Shows that Freedom Lives – Is it worth the Candle? In this article, she argued that jury is no longer seen as representative to the society, they are more likely to be seen as anti-democratic, irrational and haphazard legislator, whose erratic and secret decisions that against the rule of law.
Since then, the critics have raised up few arguments so to support her statement. One of the arguments is the perverse decision made by the jury. It was claimed by the critics that in some clear cut cases, the juries choose to acquit the defendant though the evidence prove otherwise. More to say it was because they make the decision based on their own conscience rather than examine the evidence. This was seen in the case of R v Randle and Pottle, where defendants were charged with helping the spy George Blake to escape from the prison.
The arrest did not occur until 25 years later and based on the lapse of time, the jury acquitted them. Another argument raised up by the critics is the secrecy of decision. This was supported by s. 8 of Contempt Court Act 1981, where it will be contempt to court if one disclose or obtain information about that occurred in the jury. This Act was claimed to protect the jury from outside influence and allows them to bring in unpopular verdict. However, there is no way of knowing whether the jury truly understand the nature of the case and reach the decision for the right reasons.
One such case is R v Mirza, where the defendant was a Pakistani who lived in UK in 1998. In this case, the conviction was quashed because the jury has developed a theory claiming that the use of an interpretation was a 'ploy'. Besides that, in some cases like R v Young and R v Karakaya, where both of this cases concern with the jury using unreliable means of coming to a decision. Therefore, the authorities above show that the jury is not competence enough to decide the conviction of defendant.
Besides that, it was also argued that the racial bias in the jury brought up a lot of issues. Some claimed that due to the reason that the names of jury are randomly selected, it may not produce a cross selection society. When this happen, one would most likely to face a group of white people though he might have the option to challenge to the array. Even if he can challenge to the array, the court might choose not to accept on the ground that jury was chosen in a random manner as in the case of R v Ford.
Therefore, based on the case of Sander v UK, the European Court of Human Rights held that the judge should have discharged the jury on the basis that they have made racist remarks and jokes. Some would also argue that with the technology developing nowadays, the people are provided with many forms of media. This media will indirectly influence the people's life and this does not exclude the jury. This could happen especially for a high profile case, where the media will publish all sort of news, which possible to mislead the jurors.
One such case will be R v Taylor and Taylor, where 2 sisters were charged with murder and the newspaper published a still form of video consequence which gave the people a false impression. Based on that, the Court of Appeal decided to quash the conviction on possible influence. However, apart from the arguments above, many see that today the jury plays a fundamental part of the English Legal System. They not only ensure the criminal justice system works for the benefit of the public but also ensure that it won't be abused by political leaders.
Thus, the verdict given by they are seen to be those of society rather than judicial system. With the appointment of laymen as jury, this will increase the public confidence. Moreover, the supporters of jury give the reason of jury equity. They claimed that juries are not legal experts and they are not bound to follow the precedent. In addition, they do not have to give reasons for their verdict. Thus, it is more likely that they decide cases based on fairness. Cases like Ponting show that how important jury equity is. In this case, a civil servant was charged with s.
3 of the Official Secret Act 1911 for leaking information on the sinking ship. He claimed that his actions had been in the public interest and due to that the jury refused to convict him. Lastly, it was claimed that as compare to judge, the jurors have less prosecution minded. They have the ability to judge according to conscience. They are seen as a vital protection against oppressive and politically motivated prosecutions. This was shown is R v Owen, where the jury acquitted the lorry driver, who injured the defendant, despite a great deal of evidence against him.
Thus, this shows that jury has more compassion than the judge. They are able to give verdict in favour of the public. Based on the disadvantages listed above, it is obvious that the role of the jury may not see as important as last time. Because of that, Sir Robin Auld Lj made a few recommendations in his Review of the Criminal Courts. In relation to racial bias, he recommend that jurors should be more widely representation than they are of the national and local communities and the qualification for jury service should be remained the same.
Besides that, no one in future should be ineligible for, or excusable as of right from jury service. Any claimed inability to serve should be subject to discretionary deferral or excusal. In term of perverse decision, he recommends that the law should be declared by statute that juries have no right to acquit defendant if the evidence said otherwise. In conclusion, even though there are disadvantages of the sitting of juries in English Legal System, but since the recommendation of Auld report, the government has tried to work on it by enacting.. . It proves to be success as
What are Juries and why does the US have them - History
The 7th Amendment to the United States Constitution was formulated and ratified as part of the Bill of Rights. This particular Amendment is what defines each citizen’s right to trial by jury and is among the most frequently mentioned parts of the Bill of Rights. It was designed primarily to prevent the establishment of arbitrary courts of justice, where the decision of the judges is subject to the whims and control of the government.
As one of the first 10 Amendments to the Constitution, the Seventh Amendment plays an important role in American political and legal theory. The right to trial by jury was even mentioned in the Declaration of Independence, in which the Founding Fathers decried the arbitrary courts created by the British Crown to try American merchants and traders for violating what they perceived to be unjust trade laws.
Over time however, the nature of the Seventh Amendment took on more complexity, such that it created a clear distinction between judge and jury and emphasized the difference between Private Rights and Public Rights. Even today, there are still people who argue against the efficacy of Trial by Jury and those who argue in favor of them.
The 7th Amendment was originally ratified on December 15, 1791. However, it originated in England in the 12th century. Back then juries were composed of 12 local men who were brought in to give their opinions about a particular case. Although originally used as accusers against those who were deemed enemies of the king, the jury eventually evolved into a system where the twelve men would declare a verdict based on evidence as opposed to political expediency.
This practice eventually spread to the American colonies, where juries became one of the leading institutions where colonists expressed their discontent against the British crown. This discontent came primarily from the Navigation Act and the economic restrictions imposed upon the colonies by the Crown.
As the British government imposed more and more trade controls on the American colonies, the colonists were forced to turn to smuggling. Those who were caught were often subjected to trial by jury, where sympathetic jurors would acquit their fellow colonist of any wrongdoing, even though they violated British law.
Naturally, this angered the British King, who then created new courts which did not allow juries. This, of course, outraged the colonists, who considered such decisions by the King as being against the traditions of English law, and infringements on their rights as citizens of the British Empire.
After the War for Independence, the Seventh Amendment became one of the first ten Amendments to the Constitution enacted by the first Congress and was designed in such a way as to limit the powers of both the Federal Government as well as the Judicial Branch.
The Seventh Amendment guarantees the right of the accused to a jury trial in certain civil cases, and states that such trials are not subject to re-examination by other courts. However, the importance of this amendment goes beyond its most obvious characteristics and extends to other areas of American Jurisprudence.
Among the key functions of the 7th Amendment is the clear distinction between judge and jury. This distinction is expressed in terms of functions. It designates the judge as the trier of the law, whereas juries are triers of fact. This distinction between fact and law is important because it gives legitimacy to the verdict of juries, while at same time, preventing them from violating the justified legal expectations of the plaintiffs.
In other words, the 7th Amendment not only guarantees the existence of juries, but also sets the limits of its duties and responsibilities. What this means is that the law must always be taken into account whenever a jury makes a verdict. This was the original intention of those who framed the Bill of Rights. They wanted a system where the defendant’s right to have a trial by jury is protected without abrogating the plaintiff’s right to be protected by law.
So the way this works out is that the judge determines which laws apply to which case, while the juries determine the facts of each case. In every trial by jury, the judge is given the duty to determine which evidence is admissible in court, instructing the jurors about the nature of laws involved and maintaining a certain degree of balance between the plaintiff and the defendant. As for the jury, they are in charge of determining the facts of the case and what the legal consequences are for the involved parties.
What cases are sent to a grand jury?
In Minnesota, charges that carry the state's harshest sentence — life imprisonment there's no death penalty in the state — always go to a grand jury. Included among those charges are first-degree murder and certain sex offenses. For other suspected crimes, it is up to a prosecutor's discretion whether to convene a grand jury.
The question of how — and whether — to prosecute law enforcement officers who take a life has made its way to the forefront of discussion in the wake of police killings.
In the case of the officer who killed Michael Brown in Ferguson, Mo., a grand jury returned a "no-bill" decision. Activists were upset, and cries against the use of grand juries have persisted. In 2016, when he declined to bring charges against two Minneapolis officers in the shooting death of Jamar Clark, Hennepin County Attorney Mike Freeman said his office would no longer send police-involved shooting cases to grand juries, something Hennepin County prosecutors have done for decades.
But it's important to keep in mind that there's no legal imperative to bring a fatal police shooting case to a grand jury — it's a prosecutor's choice, and there are lots of reasons a prosecutor might decide to do so.
A prosecutor might toss a case to a grand jury, for instance, for political cover, said Brad Colbert, a professor at the Mitchell Hamline School of Law. "Then the prosecutor doesn't have to a say 'I charged it or I didn't charge it,' but rather sent a case to a jury of peers." A prosecutor might also choose to call a grand jury because he or she sees it as a way to democratize the justice system.
Why juries work best
I n the quarter of a century I've been practising law, I've seen all sorts of jurors, from the highly educated to those who could not read the words of the oath, from copious note-takers to those who fought a battle to stay awake (usually losing it during my speech), from those who laughed just before convicting to those who cried as they acquitted. I long ago gave up trying to read juries or predict their verdicts. So if jury trial seems so haphazard, why do I remain such a big fan of it?
First and foremost, because despite the failings of individual jurors, juries get it right most of the time. They make the right decisions on the evidence and come to the right verdicts. Not every time, of course, they are not infallible – how could they be, no humans are, not even judges, but they do get it right most of the time.
Don't just take my word for it. The report from the Ministry of Justice published last week, the culmination of 18 months of meticulous research into over half a million cases heard in England and Wales, shows juries are fair, efficient and effective. They convict almost two-thirds of those they try, they convict more than they acquit in rape, they do not exhibit any racial bias and they only fail to reach verdicts in less than 1% of cases. So juries do a good job and now we have the facts and figures to prove it. Plainly that must be the first requirement of jury trial, whatever else may be its value.
Think back to all the major miscarriages of justice of the last 50 years and you'd be hard pressed to find one where the fault lay with the jury. Overwhelmingly the miscarriages have been due to failures in other parts of the system – by police, by experts, by witnesses or by lawyers. If the evidence put before the jury is flawed, because it is tainted by impropriety, wrongly interpreted, inaccurate or incomplete, then you will get a flawed verdict.
But that juries work well is not the only reason to support trial by jury. Equally important is the fact that juries are one of the most democratic aspects of the constitution they are democracy in action every day of the week, not just once every four or five years. There is no other part of the constitution that is so open to the public, where ordinary people participate in decisions of such immediate importance and wield real power. There are jurors settling the fates of their fellow citizens in crown courts up and down the country every day of the week, determining by their verdicts whether or not defendants are guilty of the most serious crimes of violence and dishonesty such as murder, rape, robbery and fraud.
Juries bring with them the freshness and insights of those who are new to the system and have not become case-hardened or cynical. For anyone accused of crime, the truthful defence can be no different from the lying one – I wasn't there, I thought he was going to hit me, she consented, I thought I was being honest, I didn't know the drugs were there. There is a limit to the ways in which you can be innocent. But if juries are not cynical, neither are they naive, and it is a rare jury that cannot detect where the truth lies when faced with the conflicting accounts of witnesses.
Because that is the advantage of a jury of 12: it reduces the chance that a mistake of fact will be made. It may be that one or two on the jury don't believe the witness or the defendant but that all 12 will be wrong is unlikely. Those who argue for trial by judge will have to accept that judges make mistakes and they are not infallible. But what if the judge makes a mistake of fact, chooses to believe the wrong witness, one that only a minority of the jurors would have believed? There is no remedy for that kind of mistake.
There is another powerful reason why trial by jury is necessary. In this age of mass media, most people derive their knowledge of what goes on in a court from what they read in the paper and see on television. But no newspaper report or TV item can possibly convey all the detail and subtlety of the hours of evidence given in court. An editing process is taking place: even the most impartial reporter has to filter the evidence. If all that citizens know of the criminal justice system is what they read in the papers and see on TV, they are going to get a misleading impression of how it works and that misleading impression can corrode their faith in the system.
You may wonder when you read the newspaper report of a case how a jury could have arrived at its verdicts, but you will only have heard a fraction of the evidence that the jury heard. When Frances Inglis and Kay Gilderdale were tried for unlawfully killing their children, there was fierce public debate about the merits of the prosecutions, but the only people who heard all the evidence were the jurors, and the differing verdicts reflected the differing evidence in two cases that were superficially similar.
How often was I asked in the aftermath of the Munir Hussain trial whether the law on self-defence was out of touch with the public view, despite the fact that 12 members of the public sitting on the jury heard all the evidence, including the facts of the burglary and the characters of the participants, and were sure that the defendants had gone beyond the bounds of self-defence?
By bringing ordinary citizens into the system and placing them at the very heart of the decision-making process, trial by jury exposes the criminal justice system to their scrutiny while ensuring they gain first-hand experience of how that system works. Trial by jury helps the criminal justice system reflect the values and standards of the general public. It's vital for the health of the criminal justice system that citizens participate in it and it is vital for democracy that they do, which might explain why politicians are always seeking to limit that participation.
At the start of every criminal trial, the jurors take an oath to try the defendant "and give a true verdict according to the evidence". What last week's report shows beyond reasonable doubt is that is exactly what juries do and, for all our sakes, they must be allowed to carry on doing it.
Why Do We Need Juries?
Most Americans consider jury duty a waste of time. The state forces you to forego personal and professional obligations so that you can fight traffic and struggle to find (most likely paid) parking at the courthouse. Then you hurry up and wait in a bare room with uncomfortable chairs as unknown forces decide whether or not your service is even needed. And if you are unlucky enough to be selected, the whole ordeal could wind up lasting weeks or even months. It’s no wonder people dread receiving their summons.
But there are a number of important reasons we have juries. Remember, the right to trial by jury literally motivated the Revolutionary War. The Declaration of Independence explicitly cites King George’s acts “depriving [the colonists], in many cases, of the benefits of trial by jury” as one of the Founders main grievances. Unsurprisingly, then, Article Three Section Two of the Constitution establishes the criminal jury as an institution. And in not one, not two, but three separate amendments making up the Bill of Rights are dedicated to guaranteeing the right to grand, criminal, and civil juries respectively. Indeed, as many have noted, the right to trial by jury at the time of our Founding was probably the most valued of all civil rights.
The Founders so valued juries for their ability to check abuses of government power by judges, legislatures, and presidents. Thomas Jefferson, for instance, privileged “the opinion of twelve honest jurymen” over permanent judges, “who are liable to be tempted by bribery and misled by favor, … relationship, … spirit of party, and devotion to the executive or legislative power.” Furthermore, the Founders celebrated the jury as a mechanism to repeal legislative acts. The jury ensured that no act of Congress could be enforced without first passing through a democratic body of ordinary citizens. Finally, the jury ensured that presidents who abused their authority could not bring charges without the stamp of the grand jury’s approval, and that those harmed by such abuses might find compensation.
These considerations are no less relevant today as they were nearly two hundred and fifty years ago. Judges—especially those that are elected, as is the practice in the majority of states—remain more likely to be corrupt or swayed by political favor than an impermanent body of jurors. Legislatures, too, still pass inequitable laws that run afoul to the community’s conscious. And Presidents continue to exercise their authority to punish political rivals or benefit preferred party members. We, just like our Founders, need the jury to help halt these abuses of power.
Accordingly, while serving on a jury surely disrupts your daily life, it is important to remember that by doing so you are engaging in an institution designed to preserve our very democracy. Our country needs juries to check the work of our representatives and judges, and assure that justice is done. Without your participation, power runs amok and liberty gives way to tyranny.
For much of its history, the American criminal jury has been required to reach unanimous verdicts. In 1972, in a pair of U.S. Supreme Court cases, the Justices held that Sixth and Fourteenth Amendments did not require jury unanimity in state court jury trials. Social science research conducted on the impact of jury unanimity raises questions about the Justices&rsquo assumptions about how non-unanimous decision rules would affect the functioning of the jury. Recent certiorari petitions have pressed the Court to reconsider the jury unanimity issue in light of changing Sixth Amendment jurisprudence and the social science evidence.
Social Science and Law
That all members of the jury must agree unanimously on a final verdict has long been a traditional feature of trial by jury. Consider this set of clips of famous cinematic depictions of trial by jury, where the unanimity requirement creates memorable dramatic tension.
Case Excerpts. In a remarkable departure from the historical tradition, in Apodaca v. Oregon, 406 U.S. 404 (1972), and a companion case, the US Supreme Court held that the Sixth and Fourteenth Amendments did not require jury unanimity in state court jury trials. A plurality of the Court employed a functional rather than a historical test, and concluded that the prime functions of the jury would not be impaired if states required less-than-unanimous jury verdicts.
Excerpt of Apodaca v Oregon
Apodaca v. Oregon, 406 U.S. 404 (1972)
From Justice White&rsquos opinion:
Our inquiry must focus upon the function served by the jury in contemporary society. Cf. Williams v. Florida, supra, at 99-100. As we said in Duncan, the purpose of trial by jury is to prevent oppression by the Government by providing a "safeguard against the corrupt or overzealous prosecutor and against the compliant, biased, or eccentric judge." Duncan v. Louisiana, 391 U.S. at 156&hellip.A requirement of unanimity, however, does not materially contribute to the exercise of this common sense judgment. As we said in Williams, a jury will come to such a judgment as long as it consists of a group of laymen representative of a cross-section of the community who have the duty and the opportunity to deliberate, free from outside attempts at intimidation, on the question of a defendant's guilt. In terms of this function, we perceive no difference between juries required to act unanimously and those permitted to convict or acquit by votes of 10 to two or 11 to one. Requiring unanimity would obviously produce hung juries in some situations where nonunanimous juries will convict or acquit*. But in either case, the interest of the defendant in having the judgment of his peers interposed between himself and the officers of the State who prosecute and judge him is equally well served&hellip..Petitioners also cite quite accurately a long line of decisions of this Court upholding the principle that the Fourteenth Amendment requires jury panels to reflect a cross-section of the community&hellip.. We also cannot accept petitioners' &hellip assumption -- that minority groups, even when they are represented on a jury, will not adequately represent the viewpoint of those groups simply because they may be outvoted in the final result. They will be present during all deliberations, and their views will be heard.
*The most complete statistical study of jury behavior has come to the conclusion that when juries are required to be unanimous, &lsquothe probability that an acquittal minority will hang the jury is about as great as that a guilty minority will hang it.&rsquo H. Kalven & H. Zeisel, The American Jury 461 (1966).
Excerpt of Johnson v. Louisiana
Johnson v. Louisiana 406 U.S. 356 (1972)
JUSTICE WHITE delivered the opinion of the Court.
Under both the Louisiana Constitution and Code of Criminal Procedure, criminal cases in which the punishment is necessarily at hard labor are tried to a jury of 12, and the vote of nine jurors is sufficient to return either a guilty or not guilty verdict. The principal question in this case is whether these provisions allowing less than unanimous verdicts in certain cases are valid under the Due Process and Equal Protection Clauses of the Fourteenth Amendment&hellip. Appellant focuses instead on the fact that less than all jurors voted to convict, and argues that, because three voted to acquit, the reasonable doubt standard has not been satisfied, and his conviction is therefore infirm&hellip.. But the mere fact that three jurors voted to acquit does not, in itself, demonstrate that, had the nine jurors of the majority attended further to reason and the evidence, all or one of them would have developed a reasonable doubt about guilt. We have no grounds for believing that majority jurors, aware of their responsibility and power over the liberty of the defendant, would simply refuse to listen to arguments presented to them in favor of acquittal, terminate discussion, and render a verdict. On the contrary, it is far more likely that a juror presenting reasoned argument in favor of acquittal would either have his arguments answered or would carry enough other jurors with him to prevent conviction. A majority will cease discussion and outvote a minority only after reasoned discussion has ceased to have persuasive effect or to serve any other purpose when a minority, that is, continues to insist upon acquittal without having persuasive reasons in support of its position&hellip.Appellant offers no evidence that majority jurors simply ignore the reasonable doubts of their colleagues or otherwise act irresponsibly in casting their votes in favor of conviction, and before we alter our own longstanding perceptions about jury behavior and overturn a considered legislative judgment that unanimity is not essential to reasoned jury verdicts, we must have some basis for doing so other than unsupported assumptions.
Justice Douglas&rsquos dissent in Johnson v. Louisiana:
The plurality approves a procedure which diminishes the reliability of a jury. First, it eliminates the circumstances in which a minority of jurors (a) could have rationally persuaded the entire jury to acquit, or (b) while unable to persuade the majority to acquit, nonetheless could have convinced them to convict only on a lesser-included offense. Second, it permits prosecutors in Oregon and Louisiana to enjoy a conviction-acquittal ratio substantially greater than that ordinarily returned by unanimous juries.
The diminution of verdict reliability flows from the fact that nonunanimous juries need not debate and deliberate as fully as must unanimous juries. As soon as the requisite majority is attained, further consideration is not required either by Oregon or by Louisiana even though the dissident jurors might, if given the chance, be able to convince the majority. Such persuasion does in fact occasionally occur in States where the unanimous requirement applies: &lsquoIn roughly one case in ten, the minority eventually succeeds in reversing an initial majority, and these may be cases of special importance.&rsquo* One explanation for this phenomenon is that because jurors are often not permitted to take notes and because they have imperfect memories, the forensic process of forcing jurors to defend their conflicting recollections and conclusions flushes out many nuances which otherwise would go overlooked. This collective effort to piece together the puzzle of historical truth, however, is cut short as soon as the requisite majority is reached in Oregon and Louisiana. Indeed, if a necessary majority is immediately obtained, then no deliberation at all is required in these States. (There is a suggestion that this may have happened in the 10-2 verdict rendered in only 41 minutes in Apodaca's case.) To be sure, in jurisdictions other than these two States, initial majorities normally prevail in the end, but about a tenth of the time the rough-and-tumble of the jury room operates to reverse completely their preliminary perception of guilt or innocence. The Court now extracts from the jury room this automatic check against hasty fact-finding by relieving jurors of the duty to hear out fully the dissenters. It is said that there is no evidence that majority jurors will refuse to listen to dissenters whose votes are unneeded for conviction. Yet human experience teaches that polite and academic conversation is no substitute for the earnest and robust argument necessary to reach unanimity.
* H. Kalven & H. Zeisel, The American Jury 490 (1966). See also The American Jury: Notes For an English Controversy, 48 Chi.B.Rec. 195 (1967)
Justice Douglas included the following table, taken from Kalven & Zeisel&rsquos The American Jury, in his dissenting opinion in Johnson. He used it to support the claim that the nonunanimous verdict option favored the state over the defendant. How persuasive is this table?
The Sixth Amendment
The Sixth Amendment guarantees a cluster of rights designed to make criminal prosecutions more accurate, fair, and legitimate. But the institutions of American criminal justice have changed markedly over the past several centuries, forcing courts to consider how old rights apply to new institutions and procedures.
At the time of the Founding, there were local sheriffs but no professionalized police forces instead, ordinary men took turns serving as constables or night watchmen. Criminal cases were almost always brought by victims, not public prosecutors. At trial, neither side typically had a lawyer, so both victims and defendants represented themselves. Trials were like shouting matches, in which victims and defendants argued and brought other live witnesses to tell their stories. They lasted minutes or hours, not days.
Juries of twelve ordinary men were central players in this system. They were local citizens who often knew the victim, defendant, and other people and places involved. They also knew which charges subjected defendants to the death penalty (as many felonies did), and which did not. Jurors looked witnesses in the eye and debated both whether a defendant was factually guilty and whether he deserved mercy. They checked the government&rsquos power to punish and applied the conscience of the community in the public eye, assuring everyone that justice had been done swiftly, impartially, and fairly.
The Framers of the Sixth Amendment sought to strengthen this vigorous adversarial process. Continental Europe had long used an inquisitorial system, in which magistrates investigate crimes and judges take leading roles in framing the issues, digging up evidence, and questioning witnesses. The Anglo-American system that the Sixth Amendment codified, by contrast, leaves it to each side to conduct its own investigation, present its own evidence, and argue one side of the story in open court.
Most of the institutions of criminal justice changed greatly over the decades after the Sixth Amendment was enacted. Professional police forces came into being and took charge of investigating crime and arresting suspects. Public prosecutors steadily displaced victims, and then defendants who could afford to increasingly hired lawyers to level the playing field. In some communities, charities or local governments set up public defender offices, offering free lawyers to all or some defendants accused of sufficiently serious crimes. Judges developed rules of evidence and procedure and gave the lawyers a say in selecting and instructing juries, so trials grew longer and more complex.
To avoid the time and expense of jury trials and clear courts&rsquo busy dockets, prosecutors and defense lawyers also increasingly plea bargained. That meant that most defendants avoided trial and pled guilty in exchange for lower charges or sentences. So by the mid-twentieth century, juries resolved only a small fraction of criminal cases.
Around the same time, the Supreme Court ruled that virtually every aspect of the Sixth Amendment applies not only to federal but also to state prosecutions. This vastly expanded the Amendment&rsquos reach, because most criminal prosecutions occur in state court. This &ldquoincorporation&rdquo of the Sixth Amendment against the states has also required the Court, over the past half-century, to spell out the Amendment&rsquos protections and apply them to the variety of criminal justice systems across the Nation.
Perhaps the Supreme Court&rsquos most significant work has involved implementing the right to counsel. The Court has confirmed that a defendant with enough money generally has the right to be represented by the lawyer of his choice. The accused also has an implied right to forego counsel entirely and defend himself. But what if the defendant wants a lawyer but cannot afford to hire one? In Gideon v. Wainwright (1963), the Court held that such defendants facing possible prison time are entitled to court-appointed lawyers, paid for by the government. Furthermore, such appointed lawyers (usually public defenders) must deliver &ldquoeffective&rdquo assistance to defendants&mdashmeaning that they must adequately advise the defendants of the potential consequences of pleading guilty and provide a reasonably competent defense if defendants choose to go to trial. But the test for effectiveness is quite lax. Courts routinely condone mediocre lawyering, often because the conviction seems to have been inevitable no matter what the lawyer did.
The Court also has fleshed out the Sixth Amendment&rsquos other requirements. Starting with the right to a &ldquospeedy and public&rdquo trial, the Court has held that the failure to begin a trial in a timely manner requires dismissing the prosecution entirely. Perhaps because that remedy is drastic, the Court has interpreted the term &ldquospeedy&rdquo quite leniently delays of several years are sometimes permissible. The Court has enforced the &ldquopublic&rdquo aspect of the trial right much more strictly. Criminal proceedings may be closed to the public and the media only for &ldquooverriding&rdquo reasons, such as national security, public safety, or a victim&rsquos serious privacy interests.
The Compulsory Process Clause, the Court has confirmed, lets defendants subpoena witnesses to force them to testify at trial. This Clause (combined with other constitutional provisions) also now impliedly guarantees defendants the right to testify in their own defense if they wish. The Confrontation Clause requires prosecution witnesses to testify under oath and subject to cross-examination except for small children who would be traumatized by the process, they must also testify in court and in the presence of the defendant. To preserve the integrity of these confrontation requirements, the Court also held in Crawford v. Washington (2004) that the prosecution may not introduce out-of-court statements by nontestifying witnesses when those statements are &ldquotestimonial&rdquo&mdashthat is, when the statements were made primarily to establish facts for the criminal prosecution. So if, for example, the police investigate a crime and a witness identifies the defendant in order to have him arrested and charged, the prosecution cannot use that statement as evidence in court against the defendant, unless the witness is brought to court so that the defendant can cross-examine him. Finally, the Compulsory Process and Confrontation Clauses guarantee the defendant&rsquos right to be present in the courtroom throughout his trial (though he can forfeit this right by behaving badly).
That leaves the right to trial by &ldquoan impartial jury.&rdquo The Court has held that this right applies whenever the accused faces more than six months&rsquo imprisonment, and it applies to any fact (other than a prior conviction) that would affect the permissible sentencing range. A jury must come from a pool representing a fair cross-section of the local community. Despite the history to the contrary, a jury may consist of as few as six members (though nearly all states require the traditional twelve). The Jury Trial Clause, combined with the Due Process Clauses of the Fifth and Fourteenth Amendments, also forbids conviction unless the prosecution proves every element of the crime beyond a reasonable doubt. And the jury&rsquos verdict must be unanimous though the Court declined in 1972 to enforce this requirement against the States. Louisiana and Oregon, therefore, have continued to allow non-capital convictions by 11-1 and 10-2 votes.
Consistent with its historical purpose, a jury retains the power to acquit regardless of the strength of the prosecution&rsquos case or to return logically inconsistent verdicts to mitigate punishment. Yet the Supreme Court has refused to hold that the Sixth Amendment entitles defendants to have juries instructed about that power or even advised about the sentencing consequences of the charges. Thus, while juries have continued to serve the role as fact-finders, they are left today to perform their traditional role as &ldquocircuitbreaker in the State&rsquos machinery of justice&rdquo largely in the dark.