The Criminal Jury: Whose Right Is It Anyway?

The Sixth Amendment guarantees criminal defendants the right to a jury trial. We're used to thinking of this as an individual right, but Prof. Laura Appleman (Willamette Law) uses historical sources to show that colonial Americans thought of the right as largely a community right -- the people of the community had a right to be represented on a jury that would decide guilt and determine the sentence. This is more than an interesting historical byway, since the Supreme Court had evoked the history of the Sixth Amendment in its decisions (Apprendi, Blakely) requiring juries to find the facts used in sentencing.

Laura I Appleman, The Lost Meaning of the Jury Trial Right, working draft (January 17, 2008), available at SSRN: http://ssrn.com/abstract=1084960.

If the right is not just the defendant's, we have to wonder how the defendant can waive a jury trial. We take bench trials and plea bargains for granted now, but I was surprised to read that some state supreme courts held that guilty verdicts were unconstitutional because they removed the community's right to decide guilt and punishment. Id. at 49.

Graphic: John Adams (one of the authorities quoted in Appleman's article), from White House Kids.