Amdt6.3.1.2.2 Right to Trial by Jury: Scope of the Right

Sixth Amendment:

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, and to be informed of the nature and cause of the accusation; to be confronted with the witnesses against him; to have compulsory process for obtaining witnesses in his favor, and to have the Assistance of Counsel for his defence.

It was previously the Court's position that the right to a jury trial meant a trial by jury as understood and applied at common law, and includes all the essential elements as they were recognized in this country and England when the Constitution was adopted.¹ It had therefore been held that this included trial by a jury of 12 persons² who must reach a unanimous verdict³ and that the jury trial must be held during the first court proceeding and not de novo at the first appellate stage.⁴ However, as it extended the guarantee to the states, the Court indicated that at least some of these standards were open to re-examination.⁵ In Williams v. Florida ,⁶ the Court held that the fixing of jury size at 12 was a historical accident that, although firmly established when the Sixth Amendment was proposed and ratified, was not required as an attribute of the jury system, either as a matter of common-law background⁷ or by any ascertainment of the intent of the framers.⁸ Being bound neither by history nor framers’ intent, the Court thought the relevant inquiry . . . must be the function that the particular feature performs and its relation to the purposes of the jury trial. The size of the jury, the Court continued, bore no discernable relationship to the purposes of jury trial—the prevention of oppression and the reliability of factfinding. Furthermore, there was little reason to believe that any great advantage accrued to the defendant by having a jury composed of 12 rather than six, which was the number at issue in the case, or that the larger number appreciably increased the variety of viewpoints on the jury. A jury should be large enough to promote group deliberation, free from outside attempts at intimidation, and to provide a fair possibility that a cross-section of the community will be represented on it, but the Court did not speculate whether there was a minimum permissible size and it recognized the propriety of conditioning jury size on the seriousness of the offense.⁹

When the unanimity rule was reconsidered, the division of the Justices was such that different results were reached for state and federal courts.¹⁰ In Apodaca v. Oregon, a four-Justice plurality applied the same type of analysis used in Williams to conclude that, while unanimity was the rule at common law, the framers of the Sixth Amendment likely had not intended to preserve that requirement within the term jury.¹¹ Therefore, the Justices undertook a functional analysis of the jury and could not discern that the requirement of unanimity materially affected the role of the jury as a barrier against oppression and as a guarantee of a commonsense judgment of laymen. The Justices also determined that the unanimity requirement is not implicated in the constitutional requirement of proof beyond a reasonable doubt, and is not necessary to preserve the feature of the requisite cross-section representation on the jury.¹² Four dissenting Justices thought that omitting the unanimity requirement would undermine the reasonable doubt standard, would permit a majority of jurors simply to ignore those interpreting the facts differently, and would permit oppression of dissenting minorities.¹³ Justice Powell, on the other hand, thought that unanimity was mandated in federal trials by history and precedent and that it should not be departed from; however, because it was the Due Process Clause of the Fourteenth Amendment that imposed the basic jury-trial requirement on the states, he did not believe that it was necessary to impose all the attributes of a federal jury on the states. He therefore concurred in permitting less-than-unanimous verdicts in state courts.¹⁴

The Supreme Court departed from Apodaca's badly fractured opinions in Ramos v. Louisiana, holding that the Sixth Amendment's unanimity requirement applies to state and federal criminal trials equally.¹⁵ The Court confirmed that, at the time of the Founding, the Sixth Amendment's guarantee of a jury trial included the requirement of unanimity.¹⁶ And since then, the majority opinion observed, the Supreme Court commented on the Sixth Amendment's unanimity requirement in a number of opinions over the years.¹⁷ The Court described the Apocada plurality's analysis as a breezy cost-benefit analysis¹⁸ and said that the ancient guarantee of a unanimous jury verdict should not have been subjected to such a functionalist assessment.¹⁹ With respect to Justice Powell's dual-track theory of incorporation, the Justices disagreed as to whether this aspect of the Apodaca ruling was a governing precedent,²⁰ but ultimately, a majority of the Court overruled the decision.²¹

Accordingly, after Ramos, the unanimity requirement joins other aspects of the Sixth Amendment right to a jury trial that must exist in both the federal and state court systems. For instance, the requirement that a jury find a defendant guilty beyond a reasonable doubt, which had already been established under the Due Process Clause,²² has been held to be a standard mandated by the Sixth Amendment.²³ The Court further held that the Fifth Amendment's Due Process Clause and the Sixth Amendment require that a jury find a defendant guilty of every element of the crime with which he is charged, including questions of mixed law and fact.²⁴ Thus, a district court presiding over a case of providing false statements to a federal agency in violation of 18 U.S.C. § 1001 erred when it took the issue of the materiality of the false statement away from the jury.²⁵ Later, however, the Court backed off from this latter ruling, holding that failure to submit the issue of materiality to the jury in a tax fraud case can constitute harmless error.²⁶ Subsequently, the Court held that, just as failing to prove materiality to the jury beyond a reasonable doubt can be harmless error, so can failing to prove a sentencing factor to the jury beyond a reasonable doubt. Assigning this distinction constitutional significance cannot be reconciled with our recognition in Apprendi that elements and sentencing factors must be treated the same for Sixth Amendment purposes. ²⁷