The Lost Meaning of the Jury Trial Right
50 Pages Posted: 17 Jan 2008 Last revised: 10 Apr 2009
Date Written: February 27, 2008
Apprendi and Blakely instigated a tremendous revolution in criminal procedure. These "number 10 earthquake[s]" have caused a massive rethinking of sentencing law and policy. Until now, however, there has been only meager historical and scholarly support for the keystone of the Court's sentencing decisions: the scope, meaning and provenance of the jury trial right. In response, this Article provides the missing historical and constitutional justification for the Court's fidelity to the jury. In doing so, I will show that the original jury trial right was a community right, not an individual one as we currently envision it.
Part of the difficulty the Court has faced with its championing of jury rights is due to the Constitution's two criminal jury clauses, each seemingly addressing a different right. The first, in the Constitution proper, reads like a collective right, or a right of the people: "The Trial of all Crimes, except in Cases of Impeachment, shall be by Jury; and such Trial shall be held in the State where the said Crimes shall have been committed." The second, in the Bill of Rights, reads like a right of the accused: "In all criminal prosecutions, the accused shall enjoy the right to a speedy and public trial, by an impartial jury of the State and district wherein the crime shall have been committed, which district shall have been previously ascertained by law." Until quite recently, the Court consistently emphasized the second, defendants-right version of the jury trial right. Modern scholarship is gradually rediscovering the first, with Akhil Amar in particular emphasizing that the right has a collective dimension.
My article goes further still. I will claim that even the Sixth Amendment jury trial right, which sounds grammatically like a right of the accused, is actually a restatement of the collective right in Article III. My original historical research confirms that the jury trial right in Article III was strictly a collective right, as its grammar suggests. But the central claim of this Article is that nothing in the Sixth Amendment was meant to change this historical understanding and confer an individual right on defendants. Our understanding of the jury trial right as an extension of the defendant's individual liberties came later, and with a much different gloss.
Keywords: jury trial, Sixth Amendment, constitution, bill of rights, sentencing, community, retribution, punishment
JEL Classification: K14,
Suggested Citation: Suggested Citation
By Dan Markel