It has been said that a society can be judged by how it treats its least favored citizens, and people accused of crimes, by definition, fall into this category. They have allegedly broken the social compact by depriving other people of life, limb, or property, and if in fact the charges are true, they have placed themselves outside the bonds of society; they are, literally "outlaws." But before we consign people to prison, purge them from the community, or even deprive them of life, we want to be exceptionally sure that in fact they are guilty of the crimes with which they are charged — guilty, that is, "beyond a reasonable doubt."

There are two reasons for this cautious approach. The first, and most obvious, is to avoid lasting harm to the individual. If the accused did not commit a crime, then that must be determined through the rule of law, so that the innocent shall not be punished. Another, and equally important reason, is to prevent both harm to society and the erosion of the people's liberties. A system of justice that is corrupt, that is used by authorities to punish political opponents, or that lets the guilty go free, erodes the trust in government and society that is essential in a democratic society. Just as one cannot have a free society without liberty of speech or press, neither can democracy exist without a justice system that treats people accused of crimes fairly and ensures them their rights.

This is not to say that the criminal justice system in the United States is perfect; there are often gaps between the real and the ideal, as there are in any society. But the constitutional requirements found in the Fifth and Sixth Amendments serve as constant reminders of what the ideal is, and provide those who believe they have been unfairly treated the right to appeal adverse judgments to higher courts.

Because the workings of the criminal justice system are very important in a democracy, the right to a speedy and public trial refers not just to those accused of crimes; it is also a right of the public, one that suggests people may examine how the system is working and determine whether there are significant problems. Moreover, jury duty is an essential responsibility of citizenship, second only, perhaps, to voting itself. In no other governmental function is the average citizen asked to shoulder the task of determining whether someone is innocent or guilty of a crime, or bears the responsibility for civil damages. Jury duty is an education, in which people are asked to apply the law, and so they must learn to understand what the law is, and how it affects the case in front of them.

The jury, which is the most energetic means of making the people rule, is also the most efficacious means of teaching it to rule well.

But the most grievous innovation of all, is the alarming extension of the power of the courts of admiralty. In these courts, one judge presides alone! No juries have any concern there! The law and the fact are both to be decided by the same single judge.

But in settling and adjusting a question of fact, when entrusted to any single magistrate, partiality and injustice had an ample field to range in; either by asserting that to be proved which is not so, or by more artfully suppressing some circumstances, stretching and varying others, and distinguishing away the remainder. Here, therefore, a competent number of sensible and upright jurymen, chosen by lot from among those of middle rank, will be found the best investigators of truth, and the surest guardians of public justice. For the most powerful individuals in the state will be cautious of committing any flagrant invasion of another's right, when he knows that the fact of his oppression may be examined and decided by twelve indifferent men, not appointed until the hour of the trial; and that, when once the fact is ascertained, the law must of course redress it. This, therefore, preserves in the hands of the people that share which they ought to have in the administration of general justice, and prevents the encroachment of the powerful and wealthy citizens.

The petit jury normally has 12 members, but some states have smaller jury panels. They are chosen, like the members of the grand jury, from a pool of registered voters. The procedural requirements of a jury trial are quite precise, and rest upon the assumption that the accused is innocent until proven guilty. It is not the defendant's task to prove that he or she is innocent of the crime; rather, the burden is on the state to prove the guilt of the accused, and for felonies, the most serious crimes, the standard is "beyond a reasonable doubt." In federal courts and in most state courts, unanimous agreement is required for a guilty verdict. Should a majority of the jury vote for innocence, the defendant is discharged. Should a majority vote for guilt, however, this may result in what is known as a "hung jury," and lead to a new trial with a different panel.

The phrase "innocent until proven guilty" is not empty rhetoric. Constitutional provisions and the procedural rules that have flowed from them are designed to redress the clear advantage that the state has when confronting a single citizen. At the grand jury stage, the prosecution must prove, by a preponderance of the evidence, that the accused might have committed the crime. This standard is similar to the "probable cause" standard that police must meet in securing a search warrant. The grand jury need not know absolutely that the accused is in fact guilty, only that there is a reasonable possibility; actual guilt is determined by the petit jury.

In that trial, the prosecution lays out its case first, and each witness for the prosecution may be cross-examined (subject to questioning) by the defendant's attorney. The state must present evidence that has been lawfully secured, and it cannot introduce certain types of evidence, such as hearsay, that is, assertions based entirely on things a witness has heard from other people. Moreover, it cannot refer to matters that are beyond the scope of the current trial, such as the defendant's problems with the law at other times. If there are witnesses with evidence against the defendant, they must be presented in court, since under the Constitution the accused is entitled to confront those giving testimony against him. At the end of the prosecution's presentation, if the defense believes that the state has failed to make its case, it may request that the court summarily dismiss the charges. This rarely happens, but occasionally it does, and serves to remind the state that bringing ill-founded charges does not sit well with the judiciary.

The defense then presents its case, and its witnesses may also be cross-examined by the prosecutor. The defense has the power, under the Constitution, to compel the appearance of witnesses who can testify to the defendant's innocence. The defense need not prove the innocence of the defendant, only that there is a reasonable doubt regarding guilt.

This outline is, by its nature, merely an overview, and the actual procedural rules governing a trial are quite complex. That is one reason why the Constitution guarantees that a person accused of a crime is entitled to counsel to aid in his or her defense.

The question has been asked whether [trial by jury] is among those fundamental principles of liberty and justice which lie at the base of all our civil and political institutions. . . . We believe that trial by jury is fundamental to the American scheme of justice. . . . The jury trial provisions in the Federal and State Constitutions reflect a fundamental decision about the exercise of official power — a reluctance to entrust plenary powers over the life and liberty of the citizen to one judge or to a group of judges.

Indeed, if we look at how the jury system has changed over the years, we see that change within the Constitutional framework has always been the rule rather than the exception. Thomas Jefferson in the late 18th century noted that "the common sense of twelve honest men" (jurors) enhanced the chances of a just decision. He might well have added, at that time, "twelve honest, white, property-owning men," since jury rolls in the United States have always been taken from voter registration lists. Just as the right to vote has expanded over history (see Chapter 12), so have the rights and responsibilities of people heretofore excluded from full participation in the workings of government and law. As the Supreme Court noted in 1940, "Our notions of what a proper jury is have developed in harmony with our basic concepts of a democratic society and a representative government. It is part of the established tradition . . . that the jury be a body truly representative of the community."

Property requirements for civic participation fell into disrepute early on in American history, so that by the 1830s no state imposed the ownership of property as a precondition for either voting or for jury service. However, though the Civil War ended slavery, some southern states attempted to keep blacks off juries simply because of their race. In 1879, the Supreme Court struck down a West Virginia statute that excluded blacks from grand and petit jury service. But since voting qualifications were then considered a matter of state law, once southern states devised various stratagems to deprive blacks from voting, they also managed to keep them off juries. If the voting lists did not include blacks, then neither did the jury pools.

But as the civil rights movement began to take shape in the 1940s, challenges to keeping blacks off juries found a sympathetic ear in the federal courts. In part, the country's ideas and ideals regarding race were changing, and they would come to fruition in the great upheavals of the 1950s and 1960s which finally won black Americans full legal rights in the country. As the courts have emphasized time and again, barring particular groups from jury service not only discriminated against those groups and prevented them from partaking fully in their responsibilities as citizens, it also deprived persons accused of crimes from one of the basic attributes of a free trial — a jury of one's peers.

Over the years, court cases have arisen not only from those who have, for one reason or another, been kept off jury rolls, but also from defendants who have claimed that barring certain groups from jury service denied them due process of law.

When any large and identifiable segment of the community is excluded from jury service, the effect is to remove from the jury room qualities of human nature and varieties of human experience, the range of which is unknown and perhaps unknowable. It is not necessary to assume that the excluded group will consistently vote as a class in order to conclude . . . that its exclusion deprives the jury of a perspective on human events that may have unsuspected importance in any case that may be presented.

If the shoe were on the other foot, who would claim that a jury was truly representative of the community if all men were intentionally and systematically excluded from the panel? The truth is that the two sexes are not fungible: a community made up exclusively of one is different from a community composed of both; the subtle interplay of influence of one on the other is among imponderables . . . . A flavor, a distinct quality is lost if either sex is excluded. The exclusion of one may indeed make the jury less representative of the community.

The jury system, as we have seen, is designed to protect first and foremost the rights of persons accused of crimes. The theory is that a panel of one's fellow citizens — one's peers — are best qualified to judge guilt or innocence. Second, the jury system is essential to democracy in that it imposes a serious responsibility upon individuals who, as in perhaps no other setting, can learn how democracy works. But there is still a third aspect to the jury trial, the assurance to the community at large that the legal system is functioning properly.

The origins of the proceeding which has become the modern criminal trial in Anglo-American justice can be traced back beyond reliable historical records. . . . What is significant for present purposes is that throughout its evolution, the trial has been open to all who care to observe. . . . From this unbroken, uncontradicted history, supported by reasons as valid today as in centuries past, we are bound to conclude that a presumption of openness inheres in the very nature of a criminal trial under our system of justice.

The First Amendment, in conjunction with the Fourteenth, prohibits governments from "abridging the freedom of speech, or of the press; or the right of the people peaceably to assemble, and to petition the Government for a redress of grievances." These expressly guaranteed freedoms share a common core purpose of assuring freedom of communication on matters relating to the functioning of government. Plainly it would be difficult to single out any aspect of government of higher concern and importance to the people than the manner in which criminal trials are conducted.

The Bill of Rights was enacted against the backdrop of the long history of trials being presumptively open. Public access to trials was then regarded as an important aspect of the process itself; the conduct of trials "before as many of the people as chose to attend" was regarded as one of "the inestimable advantages of a free English constitution of government." In guaranteeing freedoms such as those of speech and press, the First Amendment can be read as protecting the right of everyone to attend trials so as to give meaning to those explicit guarantees. . . . What this means in the context of trials is that the First Amendment guarantees of speech and press, standing alone, prohibit government from summarily closing courtroom doors which had long been open to the public at the time that Amendment was adopted. ''For the First Amendment does not speak equivocally. . . . It must be taken as a command of the broadest scope that explicit language, read in the context of a liberty-loving society, will allow."

We hold that the right to attend criminal trials is implicit in the guarantees of the First Amendment; without the freedom to attend such trials, which people have exercised for centuries, important aspects of freedom of speech and "of the press could be eviscerated."

Unlike nearly all the other liberties of the people, trial by jury has been the subject of serious criticism, and of the sort that requires extensive examination. Nowadays, people do not claim that the right of trial by jury should be replaced with ordeals by combat, or closed courtrooms where a single judge hands down unreviewable decisions. The ideal of a free and fair trial is that justice be done, and critics claim that the current system is so overloaded that truly free and fair trials cannot take place.

The current system, it is claimed, works poorly. There are too many trials, many of them for petty offenses that could and should be handled in a more efficient manner. Court calendars are overcrowded, so that oftentimes there may be delays of months or perhaps even years before an accused person is brought to trial, and, as the saying goes, justice delayed is justice denied. Public defenders are overworked, and cannot give truly effective assistance to the poor people whom they serve. Public prosecutors, faced with too many trials and insufficient staff, are willing to enter into plea bargains that often penalize those accused of relatively minor crimes while letting those accused of more serious felonies off with minimal penalties.

Even when a case goes to trial, are juries actually the best means of determining truth? In former times, part of the rationale for a jury was that the panel members would know the neighborhood, know both the victim and the defendant, know the facts, and thus be able to reach a fair and just decision. Today, juror panels are taken from voting lists of jurisdictions that cover hundreds of square miles and contain hundreds of thousands of people. Jurors rarely know the accused, and if they do may be excused because of it, under the assumption personal acquaintance might unduly influence their judgment. In antitrust cases and in charges of stock manipulation and fraud, can the average citizen really understand the economic and accounting issues involved?

Are there more efficient means of managing the criminal justice system? After all, in Great Britain, the birthplace of trial by jury, only one percent of civil trials and five percent of criminal trials are decided by juries. "Bench trials," in which a single judge or a panel of judges hears the case without a jury, take less time, cost less money, and since they are open to the public and may be reviewed by appellate courts, are considered by many to be fair and efficient. Moreover, in cases involving difficult questions of law, judges rather than laypersons are better equipped to make a determination.

Prompted by such considerations, in the United States, in the area of civil law, there has been a growing movement toward impartial arbitration, where both parties agree to be bound by the ruling of an impartial outsider. Arbitration, it is claimed, is faster since there is no delay caused by overcrowded court calendars; it is fair; and when businesses are involved, it allows the parties to have the decision made based on the rules of the marketplace in which they operate.

Finally, it is charged, juries are notoriously fickle, and can ignore the law when they decide that a defendant had good reason to do whatever was done, or they can be manipulated by crafty attorneys.

All of these criticisms are partially true, and, in fact, the American systems of criminal and civil justice today rely on a variety of forms. There are bench trials, and there is arbitration. Moreover, good police work often yields such a convincing amount of evidence that accused criminals will plead guilty without a jury trial. As for so-called renegade juries that ignore the law to vote their emotions, this is an occasional weakness of a system that relies heavily on the decisions of ordinary citizens. In addition, there have also been times in American history when "jury nullification" has taken place because juries have believed the laws to be unjust. Prior to the American Revolution, local juries refused to convict their neighbors accused of smuggling, believing the English trade and navigation acts to be unjust.

But to eliminate trial by jury because of perceived defects in the system would be to strike a blow against democratic government itself. For those who believe they will do better by bench trial or (in civil matters) through arbitration, that option is there. But for many, their only hope of establishing their innocence is to go before a jury of their peers, where the state must establish the issue of guilt "beyond a reasonable doubt."

Critics who look at the jury system simply in terms of its efficiency or inefficiency also fail to recognize the importance the jury has beyond the question of determining guilt or innocence. As society grows more complex, many people worry that the average citizen is growing disconnected from the government, that he or she is losing a sense of participation in the daily processes of democracy. Jury service, almost alone of everything a person does as a citizen, continues to provide that sense of both responsibility and participation.

A free and fair trial by a jury of one's peers remains a critical right of the people, both of those who may be accused of a crime, as well as those called upon to establish that fact.

For further reading:

Jeffrey Abramson, We the Jury: The Jury System and the Ideal of Democracy (New York: Basic Books, 1994).

Harry Kalven, Jr., and Hans Zeisel, eds., The American Jury (Boston: Little, Brown and Company, 1966).

Linda K. Kerber, No Constitutional Right to be Ladies (New York: Hill & Wang, 1998).

Godfrey D. Lehman, We the Jury: The Impact of Jurors on Our Basic Freedoms (Amherst, NY: Prometheus Books, 1997).

Leonard W. Levy, The Palladium of Justice: Origins of Trial by Jury (Chicago: Ivan R. Dee, 1999).

Chapter 8: Rights of the Accused »