Right to Trial by Jury: Scope of the Right

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 Footnote
Patton v. United States, 281 U.S. 276, 288 (1930) . It had therefore been held that this included trial by a jury of 12 persons2 Footnote
Thompson v. Utah, 170 U.S. 343 (1898) . Dicta in other cases was to the same effect. Maxwell v. Dow, 176 U.S. 581, 586 (1900) ; Rassmussen v. United States, 197 U.S. 516, 519 (1905) ; Patton v. United States, 281 U.S. 276, 288 (1930) . who must reach a unanimous verdict3 Footnote
Andres v. United States, 333 U.S. 740 (1948) . See dicta in Maxwell v. Dow, 176 U.S. 581, 586 (1900) ; Patton v. United States, 281 U.S. 276, 288 (1930) . and that the jury trial must be held during the first court proceeding and not de novo at the first appellate stage.4 Footnote
Callan v. Wilson, 127 U.S. 540 (1888) . Preserving Callan , as being based on Article II, § 2, as well as on the Sixth Amendment and being based on a more burdensome procedure, the Court in Ludwig v. Massachusetts, 427 U.S. 618 (1976) , approved a state two-tier system under which persons accused of certain crimes must be tried in the first instance in the lower tier without a jury and if convicted may appeal to the second tier for a trial de novo by jury. Applying a due process standard, the Court, in an opinion by Justice Blackmun, found that neither the imposition of additional financial costs upon a defendant, nor the imposition of increased psychological and physical hardships of two trials, nor the potential of a harsher sentence on the second trial impermissibly burdened the right to a jury trial. Justices Stevens, Brennan, Stewart, and Marshall dissented. Id. at 632 . See also North v. Russell, 427 U.S. 328 (1976) . 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 Footnote
Duncan v. Louisiana, 391 U.S. 145, 158 n.30 (1968) ; DeStefano v. Woods, 392 U.S. 631, 632–33 (1968) . In Williams v. Florida ,6 Footnote
399 U.S. 78 (1970) . Justice Marshall would have required juries of 12 in both federal and state courts, id. at 116 , while Justice Harlan contended that the Sixth Amendment required juries of 12, although his view of the due process standard was that the requirement was not imposed on the states. Id. at 117 . 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 Footnote
The development of 12 as the jury size is traced in Williams , 399 U.S. at 86–92 . or by any ascertainment of the intent of the framers.8 Footnote
399 U.S. at 92–99 . Although the historical materials were scanty, the Court thought it more likely than not that the framers of the Bill of Rights did not intend to incorporate into the word “jury” all its common-law attributes. This conclusion was drawn from the extended dispute between House and Senate over inclusion of a “vicinage” requirement in the clause, which was a common law attribute, and the elimination of language attaching to jury trials their “accustomed requisites.” But see id. at 123 n.9 (Justice Harlan). 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 Footnote
399 U.S. at 99–103 . In Ballew v. Georgia, 435 U.S. 223 (1978) , the Court unanimously, but with varying expressions of opinion, held that conviction by a unanimous five-person jury in a trial for a nonpetty offense deprived an accused of his right to trial by jury. Although readily admitting that the line between six and five members is not easy to justify, the Justices believed that reducing a jury to five persons in nonpetty cases raised substantial doubts as to the fairness of the proceeding and proper functioning of the jury to warrant drawing the line at six.

When the unanimity rule was reconsidered, the division of the Justices was such that different results were reached for state and federal courts.10 Footnote
Apodaca v. Oregon, 406 U.S. 404 (1972) (plurality opinion), involved a trial held after decision in Duncan v. Louisiana, 391 U.S. 145 (1968) , and thus concerned whether the Sixth Amendment itself required jury unanimity, while Johnson v. Louisiana, 406 U.S. 356 (1972) , involved a pre- Duncan trial and thus raised the question whether due process required jury unanimity. Johnson held, five-to-four, that the due process requirement of proof of guilt beyond a reasonable doubt was not violated by a conviction on a nine-to-three jury vote in a case in which punishment was necessarily at hard labor. 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 Footnote
406 U.S. at 407–09 (1972) . 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 Footnote
Apodaca v. Oregon, 406 U.S. 404 (1972) (plurality opinion) (Justices White, Blackmun, and Rehnquist, and Chief Justice Burger). Justice Blackmun indicated a doubt that any closer division than nine-to-three in jury decisions would be permissible. Id. at 365 . 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 Footnote
406 U.S. at 414 , and Johnson v. Louisiana, 406 U.S. 356, 380, 395, 397, 399 (1972) (Justices Douglas, Brennan, Stewart, and Marshall). 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 Footnote
406 U.S. at 366 . Burch v. Louisiana, 441 U.S. 130 (1979) , however, held that conviction by a non-unanimous six-person jury in a state criminal trial for a nonpetty offense, under a provision permitting conviction by five out of six jurors, violated the right of the accused to trial by jury. Acknowledging that the issue was “close” and that no bright line illuminated the boundary between permissible and impermissible, the Court thought the near-uniform practice throughout the Nation of requiring unanimity in six-member juries required nullification of the state policy. See also Brown v. Louisiana, 447 U.S. 323 (1980) (holding Burch retroactive).

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 Footnote
140 S. Ct. 1390, 1397 (2020) . 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 Footnote
Id. at 1395 ( “Wherever we might look to determine what the term 'trial by an impartial jury trial' meant at the time of the Sixth Amendment's adoption—whether it's the common law, state practices in the founding era, or opinions and treatises written soon afterward—the answer is unmistakable. A jury must reach a unanimous verdict in order to convict.” ). 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 Footnote
Id. at 1395–96 . The Court described the Apocada plurality's analysis as “a breezy cost-benefit analysis” 18 Footnote
Id. at 1401 . and said that “the ancient guarantee of a unanimous jury verdict” should not have been subjected to such a “functionalist assessment.” 19 Footnote
Id. at 1402 . 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 Footnote
Compare id. at 1402 (plurality opinion) (Gorsuch, J., joined by Ginsburg and Breyer, JJ.) (arguing that Apodaca did not supply “a governing precedent” and that “a single Justice writing only for himself” should not have “the authority to bind this Court to propositions it has already rejected” ), and id. at 1424–25 (Thomas, J., concurring in judgment) ( “I would simply hold that, because all of the opinions in Apodaca addressed the Due Process Clause, its Fourteenth Amendment ruling does not bind us because the proper question here is the scope of the Privileges or Immunities Clause.” ), with id. at 1428 (Alito, J., dissenting, joined by Roberts, C.J., and Kagan, J.) (arguing that Apodaca is a binding precedent). but ultimately, a majority of the Court overruled the decision.21 Footnote
Id. at 1404–06 (majority opinion).

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 Footnote
See In re Winship, 397 U.S. 358, 364 (1970) . has been held to be a standard mandated by the Sixth Amendment.23 Footnote
Sullivan v. Louisiana, 508 U.S. 275 (1993) . 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 Footnote
United States v. Gaudin, 515 U.S. 506 (1995) . 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 Footnote
515 U.S. at 523 . 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 Footnote
Neder v. United States, 527 U.S. 1 (1999) . 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 Footnote
Washington v. Recuenco , 548 U.S. 212, 220 (2006) . Apprendi is discussed in the next section.

Footnotes 1 Patton v. United States, 281 U.S. 276, 288 (1930) . 2 Thompson v. Utah, 170 U.S. 343 (1898) . Dicta in other cases was to the same effect. Maxwell v. Dow, 176 U.S. 581, 586 (1900) ; Rassmussen v. United States, 197 U.S. 516, 519 (1905) ; Patton v. United States, 281 U.S. 276, 288 (1930) . 3 Andres v. United States, 333 U.S. 740 (1948) . See dicta in Maxwell v. Dow, 176 U.S. 581, 586 (1900) ; Patton v. United States, 281 U.S. 276, 288 (1930) . 4 Callan v. Wilson, 127 U.S. 540 (1888) . Preserving Callan , as being based on Article II, § 2, as well as on the Sixth Amendment and being based on a more burdensome procedure, the Court in Ludwig v. Massachusetts, 427 U.S. 618 (1976) , approved a state two-tier system under which persons accused of certain crimes must be tried in the first instance in the lower tier without a jury and if convicted may appeal to the second tier for a trial de novo by jury. Applying a due process standard, the Court, in an opinion by Justice Blackmun, found that neither the imposition of additional financial costs upon a defendant, nor the imposition of increased psychological and physical hardships of two trials, nor the potential of a harsher sentence on the second trial impermissibly burdened the right to a jury trial. Justices Stevens, Brennan, Stewart, and Marshall dissented. Id. at 632 . See also North v. Russell, 427 U.S. 328 (1976) . 5 Duncan v. Louisiana, 391 U.S. 145, 158 n.30 (1968) ; DeStefano v. Woods, 392 U.S. 631, 632–33 (1968) . 6 399 U.S. 78 (1970) . Justice Marshall would have required juries of 12 in both federal and state courts, id. at 116 , while Justice Harlan contended that the Sixth Amendment required juries of 12, although his view of the due process standard was that the requirement was not imposed on the states. Id. at 117 . 7 The development of 12 as the jury size is traced in Williams , 399 U.S. at 86–92 . 8 399 U.S. at 92–99 . Although the historical materials were scanty, the Court thought it more likely than not that the framers of the Bill of Rights did not intend to incorporate into the word “jury” all its common-law attributes. This conclusion was drawn from the extended dispute between House and Senate over inclusion of a “vicinage” requirement in the clause, which was a common law attribute, and the elimination of language attaching to jury trials their “accustomed requisites.” But see id. at 123 n.9 (Justice Harlan). 9 399 U.S. at 99–103 . In Ballew v. Georgia, 435 U.S. 223 (1978) , the Court unanimously, but with varying expressions of opinion, held that conviction by a unanimous five-person jury in a trial for a nonpetty offense deprived an accused of his right to trial by jury. Although readily admitting that the line between six and five members is not easy to justify, the Justices believed that reducing a jury to five persons in nonpetty cases raised substantial doubts as to the fairness of the proceeding and proper functioning of the jury to warrant drawing the line at six. 10 Apodaca v. Oregon, 406 U.S. 404 (1972) (plurality opinion), involved a trial held after decision in Duncan v. Louisiana, 391 U.S. 145 (1968) , and thus concerned whether the Sixth Amendment itself required jury unanimity, while Johnson v. Louisiana, 406 U.S. 356 (1972) , involved a pre- Duncan trial and thus raised the question whether due process required jury unanimity. Johnson held, five-to-four, that the due process requirement of proof of guilt beyond a reasonable doubt was not violated by a conviction on a nine-to-three jury vote in a case in which punishment was necessarily at hard labor. 11 406 U.S. at 407–09 (1972) . 12 Apodaca v. Oregon, 406 U.S. 404 (1972) (plurality opinion) (Justices White, Blackmun, and Rehnquist, and Chief Justice Burger). Justice Blackmun indicated a doubt that any closer division than nine-to-three in jury decisions would be permissible. Id. at 365 . 13 406 U.S. at 414 , and Johnson v. Louisiana, 406 U.S. 356, 380, 395, 397, 399 (1972) (Justices Douglas, Brennan, Stewart, and Marshall). 14 406 U.S. at 366 . Burch v. Louisiana, 441 U.S. 130 (1979) , however, held that conviction by a non-unanimous six-person jury in a state criminal trial for a nonpetty offense, under a provision permitting conviction by five out of six jurors, violated the right of the accused to trial by jury. Acknowledging that the issue was “close” and that no bright line illuminated the boundary between permissible and impermissible, the Court thought the near-uniform practice throughout the Nation of requiring unanimity in six-member juries required nullification of the state policy. See also Brown v. Louisiana, 447 U.S. 323 (1980) (holding Burch retroactive). 15 140 S. Ct. 1390, 1397 (2020) . 16 Id. at 1395 ( “Wherever we might look to determine what the term 'trial by an impartial jury trial' meant at the time of the Sixth Amendment's adoption—whether it's the common law, state practices in the founding era, or opinions and treatises written soon afterward—the answer is unmistakable. A jury must reach a unanimous verdict in order to convict.” ). 17 Id. at 1395–96 . 18 Id. at 1401 . 19 Id. at 1402 . 20 Compare id. at 1402 (plurality opinion) (Gorsuch, J., joined by Ginsburg and Breyer, JJ.) (arguing that Apodaca did not supply “a governing precedent” and that “a single Justice writing only for himself” should not have “the authority to bind this Court to propositions it has already rejected” ), and id. at 1424–25 (Thomas, J., concurring in judgment) ( “I would simply hold that, because all of the opinions in Apodaca addressed the Due Process Clause, its Fourteenth Amendment ruling does not bind us because the proper question here is the scope of the Privileges or Immunities Clause.” ), with id. at 1428 (Alito, J., dissenting, joined by Roberts, C.J., and Kagan, J.) (arguing that Apodaca is a binding precedent). 21 Id. at 1404–06 (majority opinion). 22 See In re Winship, 397 U.S. 358, 364 (1970) . 23 Sullivan v. Louisiana, 508 U.S. 275 (1993) . 24 United States v. Gaudin, 515 U.S. 506 (1995) . 25 515 U.S. at 523 . 26 Neder v. United States, 527 U.S. 1 (1999) . 27 Washington v. Recuenco, 548 U.S. 212, 220 (2006) . Apprendi is discussed in the next section.

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