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Frequently Asked Questions

Where are jury rights codified in the United States Constitution?

Jury rights are explicitly and implicitly codified by several parts of the United States Constitution.

The right to trial by jury in criminal cases was first codified in the body of the United States Constitution in Article III, Section 2:

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; but when not committed within any State, the Trial shall be at such Place or Places as the Congress may by Law have directed.

It was reiterated in more detail in the 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.

Worth noting is that the founders weren't trying to create something from scratch here. Nearly two years prior to the revolution, John Jay (who would later become the first chief justice of the United States Supreme Court) wrote in an Address to the People of Great Britain that "we claim all the benefits secured to the subject by the English constitution, and particularly that inestimable one of trial by jury." They were trying to preserve for themselves this institution which they viewed as their birthright as Englishmen—complete with jurors empowered to refuse to enforce unjust law.

This was bracketed by the Fifth and Seventh Amendments. The Fifth Amendment required that the government secure an indictment through a grand jury for certain crimes before it can pursue a trial. It also prohibited someone who was found not guilty by a jury of being tried again for the same offense. And it guaranteed that due process must be afforded the accused before they be deprived of life, liberty, or property, including in their impartial trial by jury.

No person shall be held to answer for a capital, or otherwise infamous crime, unless on a presentment or indictment of a Grand Jury, except in cases arising in the land or naval forces, or in the Militia, when in actual service in time of War or public danger; nor shall any person be subject for the same offence to be twice put in jeopardy of life or limb; nor shall be compelled in any criminal case to be a witness against himself, nor be deprived of life, liberty, or property, without due process of law; nor shall private property be taken for public use, without just compensation.

The Seventh Amendment guaranteed trial by jury in civil cases where the dispute was over $20 in value:

In Suits at common law, where the value in controversy shall exceed twenty dollars, the right of trial by jury shall be preserved, and no fact tried by a jury, shall be otherwise re-examined in any Court of the United States, than according to the rules of the common law.

William C. Goodloe, former chief justice of the Washington state supreme court, wrote in Jury Nullification: Empowering the Jury As the Fourth Branch of Government of the implicit protection of jury rights codified in the Ninth and Tenth Amendments:

It should also be noted that trial by jury and jury nullification were common law rights at the time of the drafting of the Constitution and so are also included as “rights retained” by the people under the Ninth Amendment. And since jury nullification is both a right and a power that the people were exercising at the time the Bill of Rights was adopted it is therefore also a power reserved to the people by the Tenth Amendment.

The Ninth Amendment reserves existing rights, including their common law jury rights, to the people:

The enumeration in the Constitution, of certain rights, shall not be construed to deny or disparage others retained by the people.

The Tenth Amendment reserved existing powers to the states or the people:

The powers not delegated to the United States by the Constitution, nor prohibited by it to the States, are reserved to the States respectively, or to the people.

Additionally, the Fourteenth Amendment has been used to require the states to guarantee some, but not all, jury rights. The Fourteenth Amendment, Section 1 reads:

All persons born or naturalized in the United States, and subject to the jurisdiction thereof, are citizens of the United States and of the State wherein they reside. No State shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States; nor shall any State deprive any person of life, liberty, or property, without due process of law; nor deny to any person within its jurisdiction the equal protection of the laws.

So far, the Supreme Court of the United States has, based on the Fourteenth Amendment, incorporated to the states several but not all of the Constitutional jury rights including:

  • the right to a trial by jury in criminal cases
  • the requirement that the jury be unanimous to deliver a guilty verdict in a criminal trial by jury
  • the prohibition against double jeopardy
  • a prohibition against the use of peremptory challenges to exclude jurors based on their race or sex

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