Ryan Haynie
Final Sunday, July 4, was our nation’s Independence Day — a day on which we have a good time the signing of the Declaration of Independence. The Declaration might be greatest identified for its declaration of pure rights the place the founders proclaimed “that every one Males are created equal, that they’re endowed by their Creator with sure unalienable Rights, that amongst these are Life, Liberty and the Pursuit of Happiness.”
Usually ignored is the subsequent sentence which states that governments exist to guard these God-given rights.
However there may be one other half that will get even much less consideration, and that’s what I need to concentrate on right here. Nobody ever appears to learn the part itemizing the colonies’ grievances. In case you ask folks why the colonies declared their independence, you’re more likely to hear they had been bored with taxation with out illustration. Or it’s possible you’ll hear the colonies didn’t admire the quartering of British troopers of their properties.
Except you’re speaking to a lawyer, you’re not more likely to hear the colonies had been upset with Nice Britain “[f]or depriving us in lots of instances, of the advantage of Jury trial.” However it was an issue severe sufficient to incorporate within the checklist of grievances.
Accordingly, when the founders arrange a brand new authorities below the Structure, they got down to defend the jury trial. I fear that the founders’ view of what the promise of a jury trial ought to seem like is misplaced in fashionable America.
Under are two issues I see with the fashionable jury trial in gentle of its significance to the founders.
The primary drawback is just the rarity of legal jury trials. Article III of the Structure states “[t]he Trial of all Crimes, besides in Instances of Impeachment; shall be by Jury.” For years that meant the accused couldn’t even waive this requirement and request a bench trial (trial in entrance of a decide solely). Right now, the overwhelming majority of legal convictions should not the results of both a jury or bench trial.
In keeping with a legislation evaluation article by Clark Neily of the Cato Institute, plea bargaining was unknown to the founders. Neily says the significance of trial by jury was one of many few issues the Federalists and Anti-Federalists agreed on.
One other legislation evaluation article, this one co-authored by my former Felony Process professor, Stephen E. Henderson, argues that having most legal convictions happen with none participation by a jury is “anathema to our Founding imaginative and prescient, through which jury service wouldn’t solely be a civic obligation however a regularized hedge towards tyranny — a routine and democratic verify on our establishments of legislation enforcement.”
Certainly Prof. Henderson is correct. The boys who wrote the Declaration would roll over of their graves in the event that they noticed what the correct to trial by jury has turn out to be.
One other, admittedly controversial, change to the jury trial system offers with nullification or “conscientious acquittal”. To know how this performs into the Declaration of Independence, a narrative from historical past is useful.
One of many extra well-known trials of colonial America is the trial of John Peter Zenger. Zenger was a printer who started printing materials crucial of the native New York governor. To squash this, the governor sought to have Zenger tried for “seditious libel.” Not like fashionable legislation, reality was not a protection to libel in colonial America (below English legislation). At his trial, Zenger’s lawyer acknowledged that Zenger didn’t deny publishing the fabric. He argued, in impact, the legislation was unjust. The jury made up of People acquitted Zenger.
In response to this “nullification,” King George started organising his personal courts and increasing their authority. These courts didn’t make the most of juries however had been run by judges appointed by King George. That is one cause the founders believed it mandatory to incorporate trial by jury (or lack thereof) as a cause for separation.
The founders believed that trial by jury was “the very palladium of free authorities.” And so they believed that jury service carried with it the ability of nullification or conscientious acquittal.
Present court docket precedent nonetheless acknowledges the ability of nullification however doesn’t permit it without any consideration. Judges routinely deny jury directions on the topic, and attorneys are hardly ever allowed to argue it.
On this Independence Day weekend, we might do nicely to think about giving this energy extra tooth. What higher manner to make sure participation and safeguard liberty than to empower juries to be injustice preventers — not simply finders of truth.
So, every yr: Comfortable Independence Day!
NOTE: Haynie’s article was first posted on the Oklahoma Council of Public Coverage (OCPA) web site, right here. It’s reposted right here with permission. Hayne is Felony Justice Reform Fellow at OCPA.
