The Lost Right to Jury Trial in 'All' Criminal Prosecutions

75 Pages Posted: 6 Jun 2022 Last revised: 30 Nov 2022

See all articles by Andrea L. Roth

Andrea L. Roth

University of California, Berkeley - School of Law

Date Written: November 17, 2022

Abstract

The Sixth Amendment states that “in all criminal prosecutions, the accused shall enjoy the right to a speedy and public trial, by an impartial jury.” Similarly, Article III mandates that the trial of “all crimes, other than impeachment, shall be by jury.” Nonetheless, tens of thousands of federal defendants each year are denied a jury in “petty” cases with a potential sentence of six months or less. These cases can carry significant consequences and involve not only regulatory crimes but traditional crimes like theft, assault, and sexual abuse. This apparently blatant contradiction of the U.S. Constitution’s text is justified by the so-called “petty-offense exception,” originating in nineteenth-century Supreme Court dictum, which cited the Founding-era practice of allowing certain offenses deemed “petty” by Parliament or colonial charters to be summarily tried by a justice of the peace. While a couple of commentators over the last century have criticized this doctrine, it has never been fully litigated. Harnessing previously unexplored historical and textual sources, this Article offers the most comprehensive argument to date that the petty offense exception’s existing rationales are untenable. Indeed, as the sources reveal, controversial summary bench trials could just as naturally be read as inspiration for the Framers’ conspicuous decision to guarantee a jury in “all” criminal prosecutions. Ultimately, if one looks to text and history to interpret the jury right, it must at the very least extend to defendants formally charged by the U.S. Department of Justice in federal criminal court. The Article concludes by exploring the implications of a jury right in federal petty cases, including the importance of the right, implications for state defendants, and the Sixth Amendment right to counsel.

Keywords: jury, Sixth Amendment, textualism

Suggested Citation

Roth, Andrea L., The Lost Right to Jury Trial in 'All' Criminal Prosecutions (November 17, 2022). 72 Duke Law Journal 599 (2022), Available at SSRN: https://ssrn.com/abstract=4120787

Andrea L. Roth (Contact Author)

University of California, Berkeley - School of Law ( email )

442 Boalt Hall (North Addition)
Berkeley, CA 94720-7200
United States

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