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Sixth Amendment — Right to Trial by Jury

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.

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Amdt6.4 Right to Trial by Jury

Amdt6.4.1 Overview of Right to Trial by Jury

The Sixth Amendment guarantees the right to trial by jury for criminal defendants charged with non-petty offenses.1 Article III of the Constitution also provides for jury trials in criminal cases.2 As such, the Supreme Court has recognized that the Constitution protects the accused’s right to trial by jury twice,3 although the Court has grounded its analysis of the right primarily in the Sixth Amendment.4

By virtue of its incorporation through the Fourteenth Amendment Due Process Clause, the Sixth Amendment right to trial by jury applies in both federal and state court.5 A criminal defendant may, however, waive the right and agree to a trial before a judge alone.6 A valid waiver requires the “express and intelligent consent” of the defendant,7 along with the consent of the court and the prosecution.8 In a similar vein, a defendant may plead guilty in lieu of trial.9 A valid guilty plea requires knowing and intelligent waiver of the right to trial by jury,10 among other constitutional rights.11

Notes
  1. Southern Union Co. v. United States, 567 U.S. 343, 350–51 (2012); see Amdt6.4.3.3 Petty Offense Doctrine and Maximum Sentences Over Six Months. ↩
  2. Art. III, § 2; see ArtIII.S2.C3.1 Jury Trials. ↩
  3. Ramos v. Louisiana, No. 18-5924, slip op. at 4 (U.S. Apr. 20, 2020) (explaining that the Constitution guarantees criminal jury trials “twice—not only in the Sixth Amendment, but also in Article III”) (emphasis in original); see also Neder v. United States, 527 U.S. 1, 30 (1999) (Scalia, J., dissenting in part) (“When this Court deals with the content of this [criminal jury trial] guarantee—the only one to appear in both the body of the Constitution and the Bill of Rights—it is operating upon the spinal column of American democracy.”). ↩
  4. See, e.g., Ramos, slip op. at 4, 7 (noting that both the Sixth Amendment and Article III provide for jury trials in criminal cases, but proceeding to analyze only the Sixth Amendment in holding that the right to a jury trial requires a unanimous verdict in both state and federal court); Duncan v. Louisiana, 391 U.S. 145, 149 (1968) (noting the Article III provision but grounding the analysis of whether the jury trial right applies in state court in the Sixth and Fourteenth Amendments; “we hold that the Fourteenth Amendment guarantees a right of jury trial in all criminal cases which—were they to be tried in a federal court—would come within the Sixth Amendment’s guarantee”); cf. Patton v. United States, 281 U.S. 276, 298 (1930) (reasoning that the Sixth Amendment and Article III jury trial provisions “mean substantially the same thing” and the Sixth Amendment “fairly may be regarded as reflecting the meaning of” the Article III provision). ↩
  5. Ramos, slip op. at 7. But the Supreme Court has yet to hold that the Fourteenth Amendment incorporates the Sixth Amendment vicinage requirement—i.e., the requirement that the jury be “of the State and district wherein the crime shall have been committed, which district shall have been previously ascertained by law.” See Stevenson v. Lewis, 384 F.3d 1069, 1071 (9th Cir. 2004); Amdt6.4.7 Notice of Accusation. ↩
  6. Patton, 281 U.S. at 312. ↩
  7. Id. at 312–13; see also Adams v. United States ex rel. McCann, 317 U.S. 269, 278 (1942) (“There is nothing in the Constitution to prevent an accused from choosing to have his fate tried before a judge without a jury even though, in deciding what is best for himself, he follows the guidance of his own wisdom and not that of a lawyer.”). ↩
  8. Patton, 281 U.S. at 312; Singer v. United States, 380 U.S. 24, 34 (1965) (holding that the waiver of a jury trial in a criminal case “can be conditioned upon the consent of the prosecuting attorney and the trial judge”); see Fed. R. Crim. P. 23(a) (requiring government consent and court approval). ↩
  9. See Blackledge v. Allison, 431 U.S. 63, 71 (1977) (“Whatever might be the situation in an ideal world, the fact is that the guilty plea and the often concomitant plea bargain are important components of this country’s criminal justice system. Properly administered, they can benefit all concerned.”). ↩
  10. Brady v. United States, 397 U.S. 742, 748 (1970) (“[T]he [guilty] plea . . . is the defendant’s consent that judgment of conviction may be entered without a trial—a waiver of his right to trial before a jury or a judge. Waivers of constitutional rights not only must be voluntary but must be knowing, intelligent acts done with sufficient awareness of the relevant circumstances and likely consequences.”). ↩
  11. United States v. Ruiz, 536 U.S. 622, 629 (2002) (explaining that a defendant who pleads guilty “forgoes not only a fair trial, but also other accompanying constitutional guarantees” and citing precedent for the proposition that these guarantees include “the Fifth Amendment privilege against self-incrimination, the Sixth Amendment right to confront one’s accusers, and the Sixth Amendment right to trial by jury”). Guilty pleas and plea bargaining practices also implicate other questions of constitutional law. See, e.g., Missouri v. Frye, 566 U.S. 134, 145 (2012) (“[A]s a general rule, defense counsel has the duty to communicate formal offers from the prosecution to accept a plea on terms and conditions that may be favorable to the accused.”); Bordenkircher v. Hayes, 434 U.S. 357, 358 (1978) (considering “whether the Due Process Clause of the Fourteenth Amendment is violated when a state prosecutor carries out a threat made during plea negotiations to reindict the accused on more serious charges if he does not plead guilty to the offense with which he was originally charged,” and holding that no due process violation occurred). ↩

Amdt6.4.2 Historical Background on Right to Trial by Jury

The use of juries in criminal cases dates back to medieval England.1 By the time of the founding, the right to trial by jury was well-recognized as a safeguard against the arbitrary exercise of power.2 William Blackstone, in eighteenth century commentary familiar to the Framers, described the right as a bedrock guarantee of English criminal procedure:

Our law has therefore wisely placed this strong and two-fold barrier, of a presentment

and a trial by jury, between the liberties of the people, and the prerogative of the

crown. . . . [T]he founders of the English law have, with excellent forecast, contrived,

that . . . the truth of every accusation, whether preferred in the shape of indictment,

information, or appeal, should afterwards be confirmed by the unanimous suffrage of

twelve of his equals and neighbours, indifferently chosen and superior to all suspicion.3

Most colonial charters protected the right to jury trial by guaranteeing colonists the enjoyment of the “liberties and immunities of Englishmen.”4 The constitutions of each of the original thirteen states also guaranteed the right.5

During colonial times, “[r]oyal interference with the jury trial was deeply resented.”6 Such interference took the form of numerous exceptions to the accused’s right to trial by jury.7 Many of the exceptions were for minor offenses, but some “bordered on serious felonies and were punished with appropriate severity.”8 As the Framers debated adding a Bill of Rights to the original Constitution, concerns surfaced that the jury trial provision of Article III offered the accused inadequate protection.9 Debate focused, in particular, over whether to build out the constitutional guarantee by including, in what eventually became the Sixth Amendment, a vicinage requirement (that is, a requirement that the jury be drawn locally)10 and language entitling the accused to strike potential jurors.11 Criminal jury trial procedure took a variety of forms in the colonies,12 which complicated the debate: representatives of some colonies were wary of procedural mandates that, if too specific, might clash with existing practices at home.13 The language that was ultimately ratified as the Sixth Amendment jury trial provision represents an apparent compromise between the desire to bolster what was seen as an essential guarantee and the desire to leave the language capacious enough to embrace the range of colonial practices.14

Notes
  1. JOHN H. LANGBEIN ET AL., HISTORY OF THE COMMON LAW 59–60 (2009) (“When the Fourth Lateran Council of 1215 destroyed the ordeals, a different mode of proof had to be devised. Jury trial was already in use in English criminal procedure in some exceptional situations, as an option available to a defendant who wished to avoid trial by battle or by ordeal. The path of inclination for the English was thus to extend jury procedure to fill the enormous gap left by the abolition of the ordeals.”); PAUL MARCUS ET AL., RIGHTS OF THE ACCUSED UNDER THE SIXTH AMENDMENT 47 (2d ed. 2016) (“In the English common law, the right to a jury trial in criminal cases developed in response to the law’s need to abandon the old trials by ordeal.”); see Duncan v. Louisiana, 391 U.S. 145, 151 (1968) (“[B]y the time our Constitution was written, jury trial in criminal cases had been in existence in England for several centuries and carried impressive credentials traced by many to Magna Carta.”); FRANCIS H. HELLER, THE SIXTH AMENDMENT 6–7 (1951). The once-widespread notion that Magna Carta recognized the right to trial by jury in criminal cases has been discredited. Duncan, 391 U.S. at 151 n.16; Felix Frankfurter & Thomas G. Corcoran, Petty Federal Offenses and the Constitutional Guaranty of Trial by Jury, 39 HARV. L. REV. 917, 922 (1926) (“That the modern institution of trial by jury derives from Magna Carta is one of the most revered of legal fables.”); cf. HELLER, supra note 1, at 15 (“Considering the almost religious veneration accorded to that document [Magna Carta] by the great majority of the people both in England and in this country, it is more important to recognize the fact that our ancestors associated trial by jury with this renowned mainspring of liberty than to insist that in so doing they were guilty of historical error.”). ↩
  2. Duncan, 391 U.S. at 151; Williams v. Florida, 399 U.S. 78, 87 (1970). ↩
  3. 4 W. BLACKSTONE, COMMENTARIES ON THE LAWS OF ENGLAND 343 (1769); see United States v. Wood, 299 U.S. 123, 138 (1936) (“Undoubtedly, as we have frequently said, the framers of the Constitution were familiar with Blackstone’s Commentaries. Many copies of the work had been sold here and it was generally regarded as the most satisfactory exposition of the common law of England.”). ↩
  4. Frankfurter & Corcoran, supra note 1 at 934–37; HELLER, supra note 1, at 14. ↩
  5. Duncan, 391 U.S. at 153. ↩
  6. Id. at 152. ↩
  7. Frankfurter & Corcoran, supra note 1 at 933 (“The settled practice in which the founders of the American colonies grew up reserved for the justices innumerable cases in which the balance of social convenience, as expressed in legislation, insisted that proceedings be concluded speedily and inexpensively.”). ↩
  8. Id. at 927. ↩
  9. Williams v. Florida, 399 U.S. 78, 93 (1970); HELLER, supra note 1 at 25. ↩
  10. Williams, 399 U.S. at 93 n.35 (“Technically, ‘vicinage’ means neighborhood, and ‘vicinage of the jury’ meant jury of the neighborhood or, in medieval England, jury of the county.”). ↩
  11. HELLER, supra note 1 at 25–26. ↩
  12. Id. at 15 (“The jury trial of colonial days is . . . not a rigid copy of its English prototype but rather the result of variegated experiences, experimentation, and adaptation.”). ↩
  13. Id. at 15, 27. ↩
  14. Id. at 33–34; cf. Ramos v. Louisiana, No. 18-5924, slip op. at 12 (U.S. Apr. 20, 2020) (reasoning that the Senate might have deleted language about the right of challenge and other specific requirements from the original draft of the Sixth Amendment “because all this was so plainly included in the promise of a ‘trial by an impartial jury’ that Senators considered the language surplusage.”) ↩

Amdt6.4.3 When the Right Applies

Amdt6.4.3.1 Early Jurisprudence on Right to Trial by Jury

The Sixth Amendment, by its plain language, extends its guarantees to “all criminal prosecutions.” Yet the Supreme Court has long excluded a category of minor offenses—called “petty offenses” in the doctrine, as distinct from “serious offenses”—from the reach of the right to trial by jury.1 Considerations both historical and practical have served as justifications for this textual departure: as the Supreme Court recognized, “[s]o-called petty offenses were tried without juries both in England and in the Colonies . . . and the possible consequences to defendants from convictions for petty offenses have been thought insufficient to outweigh the benefits to efficient law enforcement and simplified judicial administration resulting from . . . inexpensive nonjury adjudications.”2

The early doctrine did not trace a neat divide between petty and serious offenses but instead based the distinction on a broad analysis of the nature of each offense.3 This analysis considered the following factors: (1) whether the offense was triable by jury at common law; (2) whether the proscribed conduct was malum in se (i.e., inherently wrong)4 or merely malum prohibitum (i.e., prohibited by law but not inherently wrong)5; and (3) the maximum statutory penalty.6 Under this analysis, the Court held that the crime of reckless driving at excessive speed was not petty (and accordingly triggered the jury trial right), even though it carried a maximum penalty of only 30 days in jail, because the crime was indictable at common law and covered conduct that the Court considered malum in se.7 In contrast, the crime of conducting a secondhand sales business without a license, which had a maximum statutory penalty of ninety days’ imprisonment, was petty, the Court held, because it was not a crime at common law and amounted only to a breach of regulations (i.e., was malum prohibitum).8 Even these early cases, however, presaged in dicta the clearer rule that constitutes the Court’s current doctrine: crimes punishable by more than six months’ imprisonment cannot be deemed petty and are therefore subject to the jury trial right.9

The Court’s early doctrine on the right to jury trial also made special provision for summary trials for criminal contempt of court. In a long line of cases, the Court held consistently that the right simply did not apply to prosecutions for criminal contempt.10 These cases reasoned that contempt in England had not been triable by jury since at least the early eighteenth century,11 and that courts would lose power to enforce their orders effectively and maintain courtroom decorum if required to submit cases of contempt to juries for adjudication.12 Perhaps the most historically significant of these cases was also one of the most recent. In United States v. Barnett, the Court held that the governor and lieutenant governor of Mississippi did not have a right to a jury trial in a contempt prosecution for obstructing state officials’ compliance with federal court orders directing the University of Mississippi to admit an African-American student.13 But while the Barnett Court reiterated the rule against applying the jury trial right to contempt,14 the Court also expressed discomfort with the rule’s absoluteness.15 In Cheff v. Schnackenberg, decided two years later, the Court divided over the issue, with a plurality of four justices concluding that contempt did not require a jury trial so long as the actual sentence imposed did not exceed six months,16 while two concurring justices held to the absolute rule that the Sixth Amendment does not require a jury trial for any contempt offense.17 Criminal contempt continues to receive unique treatment under the Court’s current doctrine on the jury trial right.

Notes
  1. See Callan v. Wilson, 127 U.S. 540, 552 (1888) (“According to many adjudged cases, arising under constitutions which declare, generally, that the right of trial by jury shall remain inviolate, there are certain minor or petty offenses that may be proceeded against summarily, and without a jury . . . .”). ↩
  2. Duncan v. Louisiana, 391 U.S. 145, 160 (1968). For a criticism of the petty offense doctrine, see Baldwin v. New York, 399 U.S. 66, 75 (1970) (Black, J., concurring in judgment) (“The Constitution guarantees a right of trial by jury in two separate places but in neither does it hint of any difference between ‘petty’ offenses and ‘serious’ offenses. . . . Many years ago this Court, without the necessity of an amendment pursuant to Article V, decided that ‘all crimes’ [for purposes of Article III and the Sixth Amendment] did not mean ‘all crimes,’ but meant only ‘all serious crimes.’”). ↩
  3. See Callan, 127 U.S. at 555. ↩
  4. Malum in se, BLACK’S LAW DICTIONARY (11th ed. 2019). ↩
  5. Malum prohibitum, BLACK’S LAW DICTIONARY (11th ed. 2019). ↩
  6. District of Columbia v. Clawans, 300 U.S. 617, 624–25 (1937); District of Columbia v. Colts, 282 U.S. 63, 73 (1930); Schick v. United States, 195 U.S. 65, 67 (1904). ↩
  7. Colts, 282 U.S. at 73 (“The offense here charged is not merely malum prohibitum, but in its very nature is malum in se. . . . An automobile is, potentially, a dangerous instrumentality, as the appalling number of fatalities brought about every day by its operation bear distressing witness. To drive such an instrumentality through the public streets of a city so recklessly ‘as to endanger property and individuals’ is an act of such obvious depravity that to characterize it as a petty offense would be to shock the general moral sense.”). ↩
  8. Clawans, 300 U.S. at 630. ↩
  9. Id. at 627–28 (“[W]e may doubt whether summary trial with punishment of more than six months’ imprisonment, prescribed by some pre-Revolutionary statutes, is admissible, without concluding that a penalty of ninety days is too much.”). ↩
  10. Green v. United States, 356 U.S. 165, 183 (1958) (“The statements of this Court in a long and unbroken line of decisions involving contempts ranging from misbehavior in court to disobedience of court orders establish beyond peradventure that criminal contempts are not subject to jury trial as a matter of constitutional right.”). ↩
  11. Id. at 185–86. ↩
  12. United States v. Barnett, 376 U.S. 681, 697, 700 (1964); see also Bloom v. Illinois, 391 U.S. 194, 196 (1968) (explaining that the Court’s early cases construed “the Sixth Amendment as permitting summary trials in contempt cases because at common law contempt was tried without a jury and because the power of courts to punish for contempt without the intervention of any other agency was considered essential to the proper and effective functioning of the courts and to the administration of justice”). ↩
  13. Id. at 685–86, 692. ↩
  14. Id. at 692 (“[I]t is urged that those charged with criminal contempt have a constitutional right to a jury trial. This claim has been made and rejected here again and again.”). ↩
  15. Id. at 695 n.12 (“Some members of the Court are of the view that, without regard to the seriousness of the offense, punishment by summary trial without a jury would be constitutionally limited to that penalty provided for petty offenses.”). ↩
  16. 384 U.S. 373, 380 (“[W]e rule . . . that sentences exceeding six months for criminal contempt may not be imposed by federal courts absent a jury trial or waiver thereof.”). ↩
  17. Id. at 381–82 (Harlan, J., concurring in the result). ↩

Amdt6.4.3.2 Right to Trial by Jury Generally

The Supreme Court’s current doctrine on the applicability of the Sixth Amendment right to jury trial comprises two major principles: (1) the right applies to prosecutions for any offense with a maximum authorized penalty that exceeds six months’ imprisonment, because such offenses are not “petty”;1 and (2) the right applies to the adjudication of all elements of a criminal offense, a category that includes any fact (other than the fact of a prior conviction) that increases the minimum or maximum applicable penalty.2 As a result of this second principle, a statutory sentencing scheme cannot constitutionally delegate determination of any penalty-increasing fact to the judge at sentencing.3 Aside from these two major points, the Court has also established that the right to jury trial does not apply in juvenile court proceedings,4 military cases (e.g., courts martial),5 or proceedings to determine whether a defendant is intellectually disabled and therefore protected from capital punishment under the Eighth Amendment.6

Notes
  1. Blanton v. City of North Las Vegas, 489 U.S. 538, 542 (1989). ↩
  2. Alleyne v. United States, 570 U.S. 99, 111 (2013) (“[A]ny ‘facts that increase the prescribed range of penalties to which a criminal defendant is exposed’ are elements of the crime . . . [and] the Sixth Amendment provides defendants with the right to have a jury find those facts beyond a reasonable doubt.”); id. at 113 n.2 (“Juries must find any facts that increase either the statutory maximum or minimum because the Sixth Amendment applies where a finding of fact both alters the legally prescribed range and does so in a way that aggravates the penalty.”). ↩
  3. Id. at 113 n.2. ↩
  4. McKeiver v. Pennsylvania, 403 U.S. 528, 545 (1971) (“[W]e conclude that trial by jury in the juvenile court’s adjudicative stage is not a constitutional requirement.”). ↩
  5. United States ex rel. Toth v. Quarles, 350 U.S. 11, 37 (1955) (“Defendants in cases arising in the armed forces, we think, are not entitled to demand trial by jury, whether the crime was committed on foreign soil or at a place within a State or previously ascertained district.”); see Amdt5.2.3 Military Exception to Grand Jury Clause. ↩
  6. Schriro v. Smith, 546 U.S. 6, 7 (2005); see also Atkins v. Virginia, 536 U.S. 304, 317 (2002). ↩

Amdt6.4.3.3 Petty Offense Doctrine and Maximum Sentences Over Six Months

Under its earlier, multi-factor approach to defining petty offenses, the Supreme Court had given close and arguably preeminent consideration to the maximum statutory penalty.1 In Baldwin v. New York, however, the Court fashioned from this criterion a bright line rule, stating: “we have concluded that no offense can be deemed ‘petty’ for purposes of the right to trial by jury where imprisonment for more than six months is authorized.”2 Robert Baldwin was charged in New York City with a pick-pocketing offense called “jostling,” punishable by a maximum of one year in prison.3 Under a New York City statute, he was not eligible for a jury trial and, over his Sixth Amendment objection, was tried and convicted before a judge instead.4 The Supreme Court, in pronouncing its bright line rule and holding that the denial of Baldwin’s request for a jury trial violated his Sixth Amendment right, relied primarily upon legislative consensus.5 Apart from New York City, the Court observed, no jurisdiction within the United States denied criminal defendants the right to jury trial for crimes with a maximum penalty exceeding six months’ imprisonment.6 The Court reasoned that this “near-uniform” legislative judgment about when the jury trial right should apply constituted “the only objective criterion by which a line could ever be drawn—on the basis of the possible penalty alone—between offenses that are and that are not regarded as ‘serious’ for purposes of trial by jury.”7 In the messy business of line-drawing, in other words, legislative consensus provided the best and only mark.8 The Court also concluded that the six-month rule struck the appropriate balance between the accused’s interest in “interpos[ing] between himself and a possible prison term . . . the commonsense judgment of a jury of his peers,”9 on the one hand, and the government’s interest in efficient and inexpensive adjudications, on the other hand.10

Although Baldwin established that the right to jury trial applies whenever the maximum sentence for an offense exceeds six months, the case did not address the counter-proposition: whether the right necessarily does not apply when the maximum sentence for the charged offense does not exceed six months’ imprisonment.11

The Court took up this question in Blanton v. City of North Las Vegas, where it established a “presumption”—but not a rule—that an offense with a maximum sentence of six months or less is petty for Sixth Amendment purposes and thus outside the reach of the jury trial right.12 A defendant might rebut this presumption in a “rare situation” by demonstrating “that any additional statutory penalties, viewed in conjunction with the maximum authorized period of incarceration, are so severe that they clearly reflect a legislative determination that the offense in question is a ‘serious’ one.”13 In Blanton, the defendants faced charges for driving under the influence of alcohol (DUI), punishable under Nevada law by a term of imprisonment ranging from two days to six months, a fine ranging from $200 to $1,000, a ninety-day driver’s license suspension, and a mandatory course on alcohol abuse.14 As an alternative to the prison term, the statute authorized the trial court to order offenders to perform forty-eight hours of community service in garb identifying them as DUI offenders.15 The Court held that these statutory penalties, as a package, were not sufficiently severe to rebut the petty offense presumption arising from the absence of a potential prison term exceeding six months.16 In particular, the Court concluded that the $1,000 maximum fine fell well within the range of fines typically associated with petty offenses, and that the alternate punishment of two days of community service in DUI-offender clothing did not impose a burden or level of embarrassment commensurate with a prison sentence exceeding six months.17

In the wake of Blanton, it remained unclear what kind of alternate penalties might suffice to render an offense punishable by a maximum prison sentence of six months or less (and, accordingly, subject to the presumption of pettiness) “serious” so as to trigger a right to a trial by jury under the Sixth Amendment.18 The Court reiterated after Blanton, in a case holding the jury trial right inapplicable to a federal DUI offense, that alternate, non-incarceration penalties would trigger the right only in “rare case[s].”19 On the other side of the ledger, a more recent case acknowledged, without having to decide the issue, that a federal environmental statute providing for a fine of $50,000 for each day of an ongoing violation—and therefore capable of triggering aggregate fines into the tens of millions of dollars—imposed a punishment sufficiently serious to fall within the jury trial right.20

The other cases that bear most directly on the issue of when non-incarceration penalties trigger the jury trial right concern the imposition of large fines in criminal contempt prosecutions. Even before Baldwin, the Court had overruled its early doctrine treating contempt as a thing apart when it held that a case of “serious” contempt, like all other serious crimes, was subject to the jury trial right.21 The test the Court ultimately adopted to distinguish petty and serious cases of contempt, however, turns on the “penalty actually imposed” rather than the maximum statutory penalty.22 This distinction was necessary because varying degrees of contempt often do not have maximum penalties fixed in statute.23 In Muniz v. Hoffman, the Court held that imposing, against a labor union defendant, a $10,000 fine with no prison sentence did not render a criminal contempt prosecution serious for Sixth Amendment purposes.24 “Imprisonment and fines are intrinsically different” in terms of the deprivation they impose on a contemnor, the Court reasoned.25 While the Court refused to rule out the possibility that a fine by itself could trigger the jury trial right in some cases, it held that the $10,000 fine imposed on a union with 13,000 members was not “of such magnitude” as to make the contempt prosecution “serious.”26 In contrast, in International Union, United Mine Workers of America v. Bagwell, also involving labor union defendants, the Court held that the much larger criminal contempt fine of $52 million did trigger the jury trial right.27 Bagwell and Muniz, although decided under the modified petty offense test that applies to criminal contempt prosecutions, together cast some light on the issue of when non-incarceration penalties cross the threshold of a “serious” offense: enormous fines like the one in Bagwell clearly do cross the threshold,28 but even substantial fines like the $10,000 sum at issue in Muniz fall beneath the line and constitutionally may be prescribed for offenses tried without a jury.29

A defendant charged with multiple counts does not have a right to a jury trial based on the aggregated maximum potential sentence on all counts combined; rather, the maximum statutory penalty for each individual offense controls the analysis.30 In Lewis v. United States, the defendant faced two counts of obstructing the mail, each punishable by a maximum prison term of six months.31 The Supreme Court rejected the defendant’s argument that the total potential prison term of one year triggered the jury trial right.32 The Court reasoned that the legislative determination of the seriousness of an offense, as reflected in the maximum authorized sentence, governs the applicability of the jury trial right.33 The maximum potential penalty faced by particular defendants based on the circumstances of their individual prosecutions is not relevant to that legislative judgment and thus not relevant to the Sixth Amendment question, the Court determined.34 In other words, the constitutional issue of whether the jury trial right applies turns on the statutorily-defined offense, not on the case against the defendant.35 In reaching this holding, the Lewis Court distinguished its earlier opinion in Codispoti v. Pennsylvania—which had held that the jury trial right applied where the total sentence imposed for multiple criminal contempt violations exceeded six months (even though none of the individual violations triggered a sentence over six months)36—on the ground that the contempts at issue there did not have a statutory maximum penalty and therefore did not reveal a legislative judgment as to their seriousness.37

Notes
  1. See Duncan v. Louisiana, 391 U.S. 145, 159–60 (1968) (“[T]he penalty authorized for a particular crime is of major relevance in determining whether it is serious or not and may in itself, if severe enough, subject the trial to the mandates of the Sixth Amendment.”); District of Columbia v. Clawans, 300 U.S. 617, 624–25 (1937) (construing the question before it as “whether the penalty, which may be imposed for the present offense, of ninety days in a common jail, is sufficient to bring it within the class of major offenses, for the trial of which a jury may be demanded”). ↩
  2. 399 U.S. 66, 69 (1970) (plurality opinion). A plurality of only three Justices supported the bright-line rule, but because two additional Justices concurred in the judgment on a much broader ground (that the Sixth Amendment requires a jury trial for all crimes, petty or not), the plurality opinion set the petty offense doctrine. See Blanton v. City of North Las Vegas, 489 U.S. 538, 542 (1989) (“[O]ur decision in Baldwin established that a defendant is entitled to a jury trial whenever the offense for which he is charged carries a maximum authorized prison term of greater than six months.”). ↩
  3. Baldwin, 399 U.S. at 67. ↩
  4. Id. at 67–68. ↩
  5. Id. at 70–71. ↩
  6. Id. at 71–72 (“In the entire Nation, New York City alone denies an accused the right to interpose between himself and a possible prison term of over six months, the commonsense judgment of a jury of his peers.”). ↩
  7. Id. at 72–73. ↩
  8. Id. ↩
  9. Id. at 72. ↩
  10. Id. at 73–74 (“Where the accused cannot possibly face more than six months’ imprisonment, we have held that the[ ] disadvantages [of criminal conviction without jury trial], onerous though they may be, may be outweighed by the benefits that result from speedy and inexpensive nonjury adjudications.”). ↩
  11. Id. at 69 n.6 (“In this case, we decide only that a potential sentence in excess of six months’ imprisonment is sufficiently severe by itself to take the offense out of the category of ‘petty.’”). ↩
  12. 489 U.S. 538, 543 (1989) (“Although we did not hold in Baldwin that an offense carrying a maximum prison term of six months or less automatically qualifies as a ‘petty’ offense, and decline to do so today, we do find it appropriate to presume for purposes of the Sixth Amendment that society views such an offense as ‘petty.’”). ↩
  13. Id. ↩
  14. Id. at 539–40. ↩
  15. Id. at 539. ↩
  16. Id. at 544–45. ↩
  17. Id. at 544. ↩
  18. See id. at 543 (calling the standard for rebutting the petty offense presumption “somewhat imprecise” but indicating that it “should ensure the availability of a jury trial in the rare situation where a legislature” makes a serious offense punishable by “onerous penalties” other than a prison term exceeding six months). ↩
  19. United States v. Nachtigal, 507 U.S. 1, 5 (1993). ↩
  20. Southern Union Co. v. United States, 567 U.S. 343, 352 (2012) (“The [statute] subjects Southern Union to a maximum fine of $50,000 for each day of violation. The Government does not deny that, in light of the seriousness of that punishment, the company was properly accorded a jury trial.”) (citation omitted). The corporate defendant faced a maximum potential fine of $38.1 million for a 762-day violation and was sentenced to pay a total of $18 million, id. at 347, but the Supreme Court held the sentence unconstitutional because a judge rather than a jury determined the duration of the violation. Id. at 352; Amdt6.4.3.7 Other Applications of Apprendi. ↩
  21. Bloom v. Illinois, 391 U.S. 194, 208 (1968) (“If the right to jury trial is a fundamental matter in other criminal cases, which we think it is, it must also be extended to criminal contempt cases.”); id. at 209 (“[M]any contempts are not serious crimes but petty offenses not within the jury trial provisions of the Constitution. When a serious contempt is at issue, considerations of efficiency must give way . . . .”). ↩
  22. Muniz v. Hoffman, 422 U.S. 454, 476 (1975) (“[C]riminal contempt, in and of itself and without regard to the punishment imposed, is not a serious offense absent legislative declaration to the contrary . . . but imprisonment for longer than six months is constitutionally impermissible unless the contemnor has been given the opportunity for a jury trial.”); Taylor v. Hayes, 418 U.S. 488, 495 (1974) (“[O]ur cases hold that petty contempt like other petty criminal offenses may be tried without a jury and that contempt of court is a petty offense when the penalty actually imposed does not exceed six months or a longer penalty has not been expressly authorized by statute.”). ↩
  23. Frank v. United States, 395 U.S. 147, 149 (1969) (“[I]n prosecutions for criminal contempt where no maximum penalty is authorized, the severity of the penalty actually imposed is the best indication of the seriousness of the particular offense.”); Bloom, 391 U.S. at 211. ↩
  24. 422 U.S. 454, 476–77 (1975). ↩
  25. Id. at 477. ↩
  26. Id. ↩
  27. 512 U.S. 821, 837 n.5 (“We need not answer today the difficult question where the line between petty and serious contempt fines should be drawn, since a $52 million fine unquestionably is a serious contempt sanction.”). The Bagwell Court also addressed the antecedent question of whether a contempt penalty is civil or criminal in nature. Id. at 836–38 (determining the criminal or civil nature of a contempt order in light of “the character of the entire decree” and holding that the $52 million contempt fine was criminal because the defendants had no opportunity to purge the fine once imposed, the underlying misconduct occurred outside of the court’s presence and consisted of “widespread” violations of a “complex injunction” resembling an “entire code of conduct,” and because the fine itself was so severe). The Court has most often taken up the question of whether a proceeding is civil or criminal in the due process context. See, e.g., Hicks v. Feiock, 485 U.S. 624, 637 (1988) (considering whether a contempt proceeding was criminal in nature so as to trigger the due process requirement that the government carry the burden of proof beyond a reasonable doubt). ↩
  28. See Bagwell, 512 U.S. at 837 n.5; see also Southern Union Co. v. United States, 567 U.S. 343, 351 (2012) (stating that “not all fines are insubstantial, and not all offenses punishable by fines are petty” and citing as authority federal court judgments imposing criminal fines of $400 million, $448.5 million, and $1.195 billion). ↩
  29. Muniz, 422 U.S. at 476–77; United States v. Nachtigal, 507 U.S. 1, 5 (1993) (holding that a maximum $5,000 fine and the possibility of certain “discretionary [sentencing] conditions,” such as the payment of restitution or obligatory participation in a program at a community correctional facility, did not render a DUI offense with a maximum prison term of six months “serious”). ↩
  30. Lewis v. United States, 518 U.S. 322, 330 (1996) (“Where the offenses charged are petty, and the deprivation of liberty exceeds six months only as a result of the aggregation of charges, the jury trial right does not apply.”). ↩
  31. Id. at 324. ↩
  32. Id. at 327. ↩
  33. Id. (“[W]e determine whether an offense is serious by looking to the judgment of the legislature, primarily as expressed in the maximum authorized term of imprisonment.”). ↩
  34. Id. (“The fact that the petitioner was charged with two counts of a petty offense does not revise the legislative judgment as to the gravity of that particular offense . . . .”); id. at 328 (“Where we have a judgment by the legislature that an offense is “petty,” we do not look to the potential prison term faced by a particular defendant who is charged with more than one such petty offense.”) (emphasis in original). ↩
  35. Id. at 328. ↩
  36. 418 U.S. 506, 509, 517 (1974) (“We find unavailing respondent’s . . . argument that petitioners’ contempts were separate offenses and that, because no more than a six months’ sentence was imposed for any single offense, each contempt was necessarily a petty offense triable without a jury.”). ↩
  37. Lewis, 518 U.S. at 328 (“In such a situation, where the legislature has not specified a maximum penalty, courts use the severity of the penalty actually imposed as the measure of the character of the particular offense.”). ↩

Amdt6.4.3.4 Increases to Minimum or Maximum Sentences and Apprendi Rule

Since the landmark case Apprendi v. New Jersey,1 decided in 2000, Supreme Court jurisprudence on the applicability of the jury trial right has focused on the constitutionality of sentencing laws that delegate to judges rather than juries the determination of certain facts that affect the range of potential sentences for a crime. Before Apprendi, the Court had upheld such laws on the reasoning that although the jury trial right extended to every element of a criminal offense,2 it did not extend to “sentencing factors.”3 Apprendi changed this doctrine. The defendant in the case was convicted of a firearms offense punishable by a maximum prison term of ten years.4 Under a separate sentencing-enhancement statute, however, the maximum penalty increased to twenty years after a trial judge determined by a preponderance of the evidence—at a hearing held after the defendant pleaded guilty—that the defendant committed the offense with the purpose of intimidating a group of individuals due to their race.5 The trial court sentenced the defendant to twelve years in prison for the offense, two years above the statutory maximum that would have applied absent the judge-found fact.6

The Supreme Court held that this sentencing procedure violated the Sixth Amendment.7 The Court articulated its essential holding as follows: “[o]ther than the fact of a prior conviction, any fact that increases the penalty for a crime beyond the prescribed statutory maximum must be submitted to a jury, and proved beyond a reasonable doubt.”8 The jury trial right serves as a bulwark against unjust loss of liberty at the hands of government tyranny or oppression, the Court reasoned.9 Accordingly it does not comport with the Sixth Amendment to take the determination of facts that can lead to increased punishment away from the jury,10 especially in light of the historic connection between offense and punishment in the Anglo-American legal tradition.11

Notes
  1. 530 U.S. 466 (2000). ↩
  2. See United States v. Gaudin, 515 U.S. 506, 510 (1995) (holding that the Fifth and Sixth Amendments together “require criminal convictions to rest upon a jury determination that the defendant is guilty of every element of the crime with which he is charged, beyond a reasonable doubt”); id. at 511 (“The Constitution gives a criminal defendant the right to demand that a jury find him guilty of all the elements of the crime with which he is charged; one of the elements in the present case is materiality; respondent therefore had a right to have the jury decide materiality.”). ↩
  3. McMillan v. Pennsylvania, 477 U.S. 79, 85–86, 93 (1986) (upholding against due process and Sixth Amendment challenges a statutory sentencing scheme under which a judge’s factual determination that the defendant “visibly possessed a firearm” during the commission of certain felonies triggered an otherwise inapplicable five-year mandatory minimum sentence) (“[T]he Pennsylvania Legislature has expressly provided that visible possession of a firearm is not an element of the crimes enumerated in the mandatory sentencing statute, but instead is a sentencing factor that comes into play only after the defendant has been found guilty of one of those crimes beyond a reasonable doubt.”) (citation omitted), overruled by Alleyne v. United States, 570 U.S. 99, 103 (2013); see also Walton v. Arizona, 497 U.S. 639, 649 (1990) (upholding a statutory scheme that conditioned imposition of the death penalty upon a judge’s finding of certain aggravating factors), overruled by Ring v. Arizona, 536 U.S. 584, 589 (2002). ↩
  4. Apprendi, 530 U.S. at 468 (noting that the offense was “possession of a firearm for an unlawful purpose,” punishable by imprisonment for between five and ten years). ↩
  5. Id. at 468–69, 471. ↩
  6. Id. at 471. ↩
  7. Id. at 490. ↩
  8. Id. A passage in Jones v. United States, decided the year before, anticipated Apprendi’s holding, although the Court decided Jones on statutory grounds and did not make a clear constitutional holding. Jones v. United States, 526 U.S. 227, 243 n.6 (1999) (“[U]nder the Due Process Clause of the Fifth Amendment and the notice and jury trial guarantees of the Sixth Amendment, any fact (other than prior conviction) that increases the maximum penalty for a crime must be charged in an indictment, submitted to a jury, and proven beyond a reasonable doubt. . . . [O]ur prior cases suggest rather than establish this principle.”). As for the exception for the fact of a prior conviction, the Court held before Apprendi that judges could constitutionally determine such facts. Almendarez-Torres v. United States, 523 U.S. 224, 247 (1998) (“[W]e reject petitioner’s constitutional claim that his recidivism must be treated as an element of his offense.”). The Court has reaffirmed that holding after Apprendi while carefully delimiting its scope. See Mathis v. United States, 136 S. Ct. 2243, 2252 (2016) (“This Court has held that only a jury, and not a judge, may find facts that increase a maximum penalty, except for the simple fact of a prior conviction. That means a judge cannot go beyond identifying the crime of conviction to explore the manner in which the defendant committed that offense. . . . [The judge] can do no more, consistent with the Sixth Amendment, than determine what crime, with what elements, the defendant was convicted of.”). ↩
  9. Id. at 477. ↩
  10. Id. at 484 (“If a defendant faces punishment beyond that provided by statute when an offense is committed under certain circumstances but not others, it is obvious that both the loss of liberty and the stigma attaching to the offense are heightened; it necessarily follows that the defendant should not—at the moment the State is put to proof of those circumstances—be deprived of protections that have, until that point, unquestionably attached.”). ↩
  11. Id. at 480 (“Just as the circumstances of the crime and the intent of the defendant at the time of commission were often essential elements to be alleged in the indictment [at common law], so too were the circumstances mandating a particular punishment.”); id. at 484 (noting “the historic link between verdict and judgment and the consistent limitation on judges’ discretion to operate within the limits of the legal penalties provided [by statute]”). ↩

Amdt6.4.3.5 Sentencing Guidelines

The rule of Apprendi upended the use of binding sentencing guidelines in state and federal courts. In Blakely v. Washington, decided in 2004, the defendant pleaded guilty to an offense (second degree kidnapping involving domestic violence and use of a firearm) with a statutory maximum sentence of ten years in prison based on the applicable felony class.1 The state sentencing guidelines restricted the sentence to a “standard range” of forty-nine to fifty-three months, unless the trial judge found the presence of an aggravating factor that justified an “exceptional sentence” above the standard range.2 The trial judge did find an aggravating factor (deliberate cruelty) and imposed a sentence of ninety months—thirty-seven months above the upper limit of the “standard range” but thirty months below the ten-year maximum linked to the felony class.3 The Supreme Court held that the imposition of the sentence violated the Sixth Amendment,4 stating “[t]he statutory maximum for Apprendi purposes is the maximum sentence a judge may impose solely on the basis of the facts reflected in the jury verdict or admitted by the defendant.”5 The ten-year offense maximum did not matter for Sixth Amendment purposes because the binding guidelines directed the judge to impose a sentence within the much lower “standard range” absent an aggravating factor.6 The “standard range,” therefore, constituted the maximum sentence authorized “without any additional findings”; the fact that a judge instead of a jury made the additional finding necessary to permit a sentence above this range violated the right to jury trial.7

The year after Blakely, the Supreme Court applied Apprendi to federal sentencing law in the 2005 case United States v. Booker.8 Since 1987, federal statute had required (with limited exception) federal district courts to impose sentences within narrow ranges calculated under the Sentencing Guidelines of the United States Sentencing Commission.9 Booker produced two separate majority opinions: one majority struck down a sentence imposed under the mandatory federal guidelines as unconstitutional, but a different majority (which shared only one member, Justice Ruth Bader Ginsburg, with the first majority) set the remedy and path forward.10 The first majority determined that the federal guidelines, like the state guidelines at issue in Blakely, violated the Sixth Amendment because they premised increases in the maximum authorized sentence upon judicial factfinding.11 One of the defendants in Booker, for instance, saw his sentencing range for a narcotics violation under the federal guidelines increase significantly (from 210–262 months to 360 months’ life imprisonment) due to two factual findings made by the trial judge during the sentencing proceedings.12 The trial court ultimately imposed a sentence of 360 months.13 Applying Apprendi and Blakely, the first Booker majority held that the “need to preserve Sixth Amendment substance” and the “ancient guarantee” of the jury trial right required invalidation of that sentence.14

While the first Booker majority’s holding followed ineluctably from Blakely,15 the second majority’s formulation of a remedy broke newer ground. It transformed the federal guidelines from mandatory to advisory in nature by severing and excising two provisions of the federal sentencing statute that required federal courts to follow the guidelines, but leaving the rest of the statute and the guidelines program it created intact.16 In their advisory form, the guidelines no longer violated the jury trial right because, rather than requiring the court to impose a particular sentence based upon a judge-found fact, they now simply offered recommendations as to how judges should “exercise [their] broad discretion in imposing a sentence within a statutory range.”17 As modified, federal sentencing law would now “require[ ] a sentencing court to consider guidelines [sentencing] ranges, but . . . permit[ ] the court to tailor the sentence in light of other statutory concerns as well . . . .”18 Further, the sentences imposed by district courts would be subject to appellate review only for “unreasonableness,” rather than de novo review for compliance with the guidelines.19 The second majority reasoned that this remedy effectuated Congress’s goal of instilling uniformity in federal sentencing better than the primary alternative remedy, which would have retained the mandatory nature of the guidelines but barred sentencing courts from increasing a sentence based on a judge-found fact.20

After Booker, the Court struck down another determinate sentencing scheme in Cunningham v. California because, much like the guidelines schemes at issue in Blakely and Booker, the California sentencing law at issue authorized the trial court to depart upwards from a standard sentencing threshold if the court found one or more “circumstances in aggravation.”21 The defendant’s offense in that case triggered a standard sentence or “middle term” of twelve years, but the trial court departed upwards and sentenced the defendant to the “upper term” of sixteen years after finding the presence of six aggravating factors.22 The Supreme Court held this sentencing procedure unconstitutional under a straightforward application of Apprendi.23

Notes
  1. 542 U.S. 296, 298–99 (2004). The offense was a “class B felony,” which under state law was punishable by a prison term not to exceed ten years. Id. at 299. ↩
  2. Id. at 299. ↩
  3. Id. at 299–300. ↩
  4. Id. at 305. ↩
  5. Id. at 303. ↩
  6. Id. ↩
  7. Id. at 303–04 (emphasis in original). ↩
  8. 543 U.S. 220 (2005). ↩
  9. See Kimbrough v. United States, 552 U.S. 85, 96 n.7 (2007) (“Congress created the Sentencing Commission and charged it with promulgating the Guidelines in the Sentencing Reform Act of 1984, but the first version of the Guidelines did not become operative until November 1987.”) (citations omitted); Mistretta v. United States, 488 U.S. 361, 367 (1989) (explaining that the Sentencing Reform Act made the “guidelines binding on the courts, although [the Act] preserve[d] for the judge the discretion to depart from the guideline applicable to a particular case if the judge f[ound] an aggravating or mitigating factor present that the Commission did not adequately consider when formulating guidelines.”). The Blakely majority avoided comment on the constitutionality of the federal guidelines, 542 U.S. at 305 n.9 (“The Federal Guidelines are not before us, and we express no opinion on them.”), but dissenters pointed out that the Court’s reasoning almost certainly rendered them unconstitutional. Id. at 325 (O’Connor, J., dissenting) (noting lack of relevant distinction between Washington and federal guidelines). ↩
  10. Booker, 543 U.S. at 226–27. ↩
  11. Id. at 223. ↩
  12. Id. at 227, 235. The findings concerned that amount of illegal narcotics that the defendant actually possessed and the defendant’s obstruction of justice. Id. at 227. ↩
  13. Id. at 227. ↩
  14. Id. at 237. The first Booker majority reiterated the rule of Apprendi as follows: “Any fact (other than a prior conviction) which is necessary to support a sentence exceeding the maximum authorized by the facts established by a plea of guilty or a jury verdict must be admitted by the defendant or proved to a jury beyond a reasonable doubt.” Id. at 244. ↩
  15. Id. at 233. ↩
  16. Id. at 245. ↩
  17. Id. at 233. ↩
  18. Id. (citations omitted). ↩
  19. Id. at 260–61. ↩
  20. Id. at 246, 253 (“Congress’s basic goal in passing the Sentencing Act was to move the sentencing system in the direction of increased uniformity.”). ↩
  21. Cunningham v. California, 549 U.S. 270, 279 (2007) (“California’s DSL [Determinate Sentencing Law], and the Rules governing its application, direct the sentencing court to start with [a] middle term [of imprisonment], and to move from that term only when the court itself finds and places on the record facts—whether related to the offense or the offender—beyond the elements of the charged offense.”). ↩
  22. Id. at 275–76. ↩
  23. Id. at 288 (“Because circumstances in aggravation are found by the judge, not the jury, and need only be established by a preponderance of the evidence, not beyond a reasonable doubt, the DSL violates Apprendi’s bright-line rule . . . .”) (citation omitted). ↩

Amdt6.4.3.6 Appellate Review of Federal Sentencing Determinations

A series of decisions clarified the “unreasonableness” standard of appellate review that Booker established for federal sentencing determinations under the now-advisory federal guidelines.1 First, Rita v. United States held that “a court of appeals may apply a presumption of reasonableness to a district court sentence that reflects a proper application of the Sentencing Guidelines.”2 In other words, if a district court calculates the defendant’s sentencing range correctly and imposes a sentence within that range, it does not violate the Sixth Amendment for the appellate court to presume the reasonableness of the sentence.3 While recognizing that such a presumption would have some tendency to encourage district courts to follow the guidelines, the Supreme Court held that the presumption nevertheless does not violate the jury trial right because it does not go so far as to “forbid” deviation from the guidelines ranges absent judicial fact-finding.4

Whereas Rita concerned appellate review of sentences within the guidelines ranges, the Court took up the matter of appellate review of sentences that deviate from the guidelines (non-guidelines sentences) in Gall v. United States.5 There, the Court reaffirmed that the “unreasonableness” standard of review applies to all federal sentences, including non-guidelines sentences.6 “Appellate courts may . . . consider the extent of a deviation from the Guidelines,”7 but they may not “apply a presumption of unreasonableness” to non-guidelines sentences.8 Nor may appellate courts apply standards of review that “come too close” to a presumption of unreasonableness, such as a rule that non-guidelines sentences must be supported by “extraordinary circumstances” or a “rigid mathematical formula that uses the percentage of a departure as the standard for determining the strength of the justifications required for a specific sentence.”9 To subject non-guidelines sentences to additional scrutiny of this sort, the Court reasoned, would too nearly resemble a requirement that sentencing judges follow the guidelines—exactly what Booker struck down.10

Two cases concerned below-guidelines sentences imposed for crack cocaine offenses. In Kimbrough v. United States11 and Spears v. United States,12 the Supreme Court held that district courts have authority to “vary from the crack cocaine Guidelines based on policy disagreement with them, and not simply based on an individualized determination that they yield an excessive sentence in a particular case.”13 Until 2007, the federal guidelines employed a “100-to-1 ratio” that treated every gram of crack cocaine as equal to 100 grams of powder cocaine for purposes of setting sentencing ranges for cocaine offenses.14 The Supreme Court concluded in both Kimbrough and Spears that the discretion left to district courts under the post-Booker advisory guidelines permits “categorical disagreement” with the crack cocaine provisions by the sentencing court and is subject only to deferential abuse-of-discretion review of the imposition of a particular sentence.15 Accordingly, in both cases, the Court reversed appellate court decisions that treated non-guidelines sentences based on categorical disagreement with the crack cocaine guidelines as invalid per se.16 The Supreme Court did not clarify, however, whether its holding extended beyond the crack cocaine provisions to categorical disagreement with other guidelines provisions.17

Notes
  1. One narrow aspect of the post-Booker federal guidelines, concerning modifications to already-imposed sentences following a subsequent reduction in the applicable guidelines range, does remain binding. Dillon v. United States, 560 U.S. 817, 819 (2010) (holding that Booker does not require treating as advisory a guidelines provision that “instructs courts not to reduce a term of imprisonment below the minimum of an amended sentencing range [made retroactively applicable] except to the extent the original term of imprisonment was below the range then applicable”); id. at 828 (“[S]entence-modification proceedings . . . are not constitutionally compelled. We are aware of no constitutional requirement of retroactivity that entitles defendants sentenced to a term of imprisonment to the benefit of subsequent Guidelines amendments. . . . Viewed that way, [sentence-modification] proceedings . . . do not implicate the Sixth Amendment right to have essential facts found by a jury beyond a reasonable doubt.”). ↩
  2. 551 U.S. 338, 347 (2007). ↩
  3. Id. at 350–51. ↩
  4. Id. at 352–53 (“The Sixth Amendment question . . . is whether the law forbids a judge to increase a defendant’s sentence unless the judge finds facts that the jury did not find . . . . A nonbinding appellate presumption that a Guidelines sentence is reasonable does not require the sentencing judge to impose that sentence. Still less does it prohibit the sentencing judge from imposing a sentence higher than the Guidelines provide for the jury-determined facts standing alone.”) (emphasis in original). ↩
  5. 552 U.S. 38 (2007). ↩
  6. Id. at 41. The Court equated the “unreasonableness” standard with an abuse of discretion standard. Id. (“[C]ourts of appeals must review all sentences—whether inside, just outside, or significantly outside the Guidelines range—under a deferential abuse-of-discretion standard.”). ↩
  7. Id. at 47. ↩
  8. Id. at 51. ↩
  9. Id. at 47. ↩
  10. Id. Gall contains perhaps the most comprehensive description of the requirements of appellate review of federal sentences under the post-Booker guidelines: “[The appellate court] must first ensure that the district court committed no significant procedural error, such as failing to calculate (or improperly calculating) the Guidelines range, treating the Guidelines as mandatory, failing to consider the [sentencing statute] factors, selecting a sentence based on clearly erroneous facts, or failing to adequately explain the chosen sentence—including an explanation for any deviation from the Guidelines range. Assuming that the district court’s sentencing decision is procedurally sound, the appellate court should then consider the substantive reasonableness of the sentence imposed under an abuse-of-discretion standard. When conducting this review, the court will, of course, take into account the totality of the circumstances, including the extent of any variance from the Guidelines range. If the sentence is within the Guidelines range, the appellate court may, but is not required to, apply a presumption of reasonableness. But if the sentence is outside the Guidelines range, the court may not apply a presumption of unreasonableness. It may consider the extent of the deviation, but must give due deference to the district court’s decision that the [sentencing statute] factors, on a whole, justify the extent of the variance. The fact that the appellate court might reasonably have concluded that a different sentence was appropriate is insufficient to justify reversal of the district court.” 552 U.S. at 51. ↩
  11. 552 U.S. 85 (2007). ↩
  12. 555 U.S. 261 (2009). ↩
  13. Spears, 555 U.S. at 843; see also Kimbrough, 552 U.S. at 110 (“[I]t would not be an abuse of discretion for a district court to conclude when sentencing a particular defendant that the crack/powder disparity yields a sentence ‘greater than necessary’ to achieve [the federal sentencing statute’s] purposes, even in a mine-run case.”). ↩
  14. Kimbrough, 552 U.S. at 96–97. The federal guidelines drew the 100-to-1 ratio from the Anti-Drug Abuse Act of 1986, Pub. L. No. 99-570, which used the ratio in setting mandatory minimum sentences for cocaine offenses. Kimbrough, 552 U.S. at 97. ↩
  15. Spears, 555 U.S. at 264; Kimbrough, 552 U.S. at 110. ↩
  16. Spears, 555 U.S. at 263; Kimbrough, 552 U.S. at 91. ↩
  17. In both cases, the Court mainly limited its statements of holding to the crack cocaine guidelines. Spears, 555 U.S. at 265–66 (“[D]istrict courts are entitled to reject and vary categorically from the crack cocaine guidelines . . . .”) (emphasis added); Kimbrough, 552 U.S. at 110 (holding that district courts may disregard the “crack/powder disparity”); but see id. at 91 (“We hold that, under Booker, the cocaine guidelines, like all other Guidelines, are advisory only, and that the Court of Appeals erred in holding the crack/powder disparity effectively mandatory.”). The Court also premised its reasoning partly upon considerations unique to the cocaine guidelines. See id. at 109–110 (concluding that the cocaine guidelines “do not exemplify the [Sentencing] Commission’s exercise of its characteristic institutional role” because the Commission based those provisions upon the mandatory minimums in the 1986 Anti-Drug Abuse Act and not upon empirical data). ↩

Amdt6.4.3.7 Other Applications of Apprendi

Apprendi prompted a major revision of the Court’s Sixth Amendment jurisprudence concerning sentencing procedure in death penalty cases. In Ring v. Arizona, the Court struck down an Arizona statute (which the Court had upheld before Apprendi) that conditioned imposing the death penalty upon a judge’s factual determinations as to the presence or absence of enumerated aggravating factors.1 Although the statute imposed a burden on the prosecution to prove the existence of the aggravating factors beyond a reasonable doubt, the Court ruled that, under Apprendi, those findings must be made by a jury rather than a judge.2 In Hurst v. Florida, the Court extended this holding to invalidate Florida’s death penalty statute (also upheld before Apprendi), which used an advisory jury to make a sentencing recommendation but left the ultimate sentencing determination to “the trial judge’s independent judgment about the existence of aggravating and mitigating factors.”3 In striking down the statute, the Court reiterated that the jury trial right requires the government “to base [a defendant’s] death sentence on a jury’s verdict, not a judge’s factfinding.”4

In a different vein, Apprendi applies to the factual predicates for mandatory minimum sentences. The Supreme Court held in Alleyne v. United States that “[a]ny fact that increases the mandatory minimum is an ‘element’ [of the offense] that must be submitted to the jury.”5 Alleyne overruled one post-Apprendi case6 and one pre-Apprendi case,7 both of which upheld statutory schemes that premised increases in the mandatory minimum sentence upon judicial fact-finding.8 The Alleyne Court rejected attempts to “distinguish facts that raise the maximum from those that increase the minimum” under Apprendi’s Sixth Amendment analysis;9 both types of facts, the Court reasoned, constitute offense elements and therefore fall within the scope of the jury trial right.10 Accordingly, “[j]uries must find any facts that increase either the statutory maximum or minimum,”11 except for the fact of a prior conviction.12

In United States v. Haymond, a splintered majority of five Justices extended Alleyne to the context of supervised release.13 Haymond held unconstitutional a federal statute, 18 U.S.C. § 3583(k), that required imposing a mandatory minimum term of imprisonment of five years for any violation of a condition of supervised release through the commission of certain federal crimes, such as the possession of child pornography, by defendants required to register as sex offenders.14 The statutory scheme required judges to determine violations by a preponderance of the evidence.15 A plurality of four Justices reasoned that punishments for supervised release violations constitute part of the overall punishment for the initial offense of conviction, and that, as such, any violation found by a judge that triggered a new mandatory minimum prison term violated the jury trial right under Alleyne.16 A concurring opinion that supplied the decisive fifth vote, however, offered a narrow rationale. That opinion reasoned that supervised release proceedings generally do not implicate the jury trial right, but that the unique nature of Section 3583(k)—essentially, its requirement of a mandatory minimum prison term for enumerated offenses—rendered it “less like ordinary revocation [of supervised release] and more like punishment for a new offense, to which the jury right would typically attach.”17

Apprendi also applies to the factual predicate for a criminal fine imposed for a non-petty offense.18 Under the petty offense doctrine, not all criminal fines trigger the jury trial right, but “[w]here a fine is substantial enough to trigger that right, Apprendi applies in full.”19 As a result, it violates the Sixth Amendment for a judge to make a factual finding that increases the maximum potential fine for a serious (non-petty) offense.20 A judge may not, for example, determine the duration of ongoing criminal conduct in order to calculate the maximum potential fine under a statute prescribing penalties for each day of violation.21

In contrast, beyond the fact of prior conviction, at least one other type of factual determination relevant to sentencing remains unaffected by Apprendi. In Oregon v. Ice, the Supreme Court held that a state legislature may, without running afoul of the jury trial right, assign to a judge factual determinations that govern whether a defendant convicted of multiple offenses should receive consecutive rather than concurrent sentences.22 The Court noted that juries traditionally did not take part in this decision23 and that states take a variety of approaches to regulating how judges make the decision.24 Accordingly, on the basis of “twin considerations—historical practice and respect for state sovereignty,” the Court declined to extend Apprendi to the sentencing decision of whether to impose multiple sentences consecutively.25

Notes
  1. 536 U.S. 584, 589 (2002) (“Capital defendants, no less than noncapital defendants . . . are entitled to a jury determination of any fact on which the legislature conditions an increase in their maximum punishment.”). Ring overruled an earlier case that had upheld the same Arizona statute. Walton v. Arizona, 497 U.S. 639, 649 (1990) (“[W]e cannot conclude that a State is required to denominate aggravating circumstances ‘elements’ of the offense or permit only a jury to determine the existence of such circumstances.”). ↩
  2. Ring, 536 U.S. at 589, 597. ↩
  3. 136 S. Ct. 616, 620 (2016) (quoting Blackwelder v. State, 851 So.2d 650, 653 (Fla. 2003) (per curiam)). Hurst overruled two earlier Supreme Court cases that upheld the Florida statute. Hildwin v. Florida, 490 U.S. 638 (1989) (per curiam); Spaziano v. Florida, 468 U.S. 447 (1984); see Hurst, 136 S. Ct. at 624 (“Time and subsequent cases have washed away the logic of Spaziano and Hildwin. The decisions are overruled to the extent they allow a sentencing judge to find an aggravating circumstance, independent of a jury’s factfinding, that is necessary for imposition of the death penalty.”). ↩
  4. Hurst, 136 S. Ct. at 624. ↩
  5. 570 U.S. 99, 103 (2013). ↩
  6. Harris v. United States, 536 U.S. 545, 567 (2002) (“[T]he political system may channel judicial discretion—and rely upon judicial expertise—by requiring defendants to serve minimum terms after judges make certain factual findings.”). ↩
  7. McMillan v. Pennsylvania, 477 U.S. 79, 93 (1986) (“[T]here is no Sixth Amendment right to jury sentencing, even where the sentence turns on specific findings of fact.”). ↩
  8. Harris, 536 U.S. at 567; McMillian, 477 U.S. at 93. ↩
  9. Alleyne, 570 U.S. at 116. ↩
  10. Id. at 114–15 (“As noted, the essential Sixth Amendment inquiry is whether a fact is an element of the crime. When a finding of fact alters the legally prescribed punishment so as to aggravate it, the fact necessarily forms a constituent part of a new offense and must be submitted to the jury.”). ↩
  11. Id. at 113 n.2. ↩
  12. Id. at 111 n.1. ↩
  13. No. 17-1672, slip op. at 10–11 (U.S. June 26, 2019) (plurality opinion). ↩
  14. Id. at 3. ↩
  15. Id. ↩
  16. Id. at 10–11. ↩
  17. United States v. Haymond, No. 17-1672, slip op. at 2 (U.S. June 26, 2019) (Breyer, J., concurring). ↩
  18. Southern Union Co. v. United States, 567 U.S. 343, 360 (2012) (“We hold that the rule of Apprendi applies to the imposition of criminal fines.”). ↩
  19. Id. at 352. ↩
  20. Id. ↩
  21. Id. (“This is exactly what Apprendi guards against: judicial factfinding that enlarges the maximum punishment a defendant faces beyond what the jury’s verdict or the defendant’s admissions allow.”). ↩
  22. 555 U.S. 160, 163–64 (2009). ↩
  23. Id. at 163. ↩
  24. Id. (“Most States continue the common-law tradition: They entrust to judges’ unfettered discretion the decision whether sentences for discrete offenses shall be served consecutively or concurrently. In some States, sentences for multiple offenses are presumed to run consecutively, but sentencing judges may order concurrent sentences upon finding cause therefor. Other States, including Oregon, constrain judges’ discretion by requiring them to find certain facts before imposing consecutive, rather than concurrent, sentences.”). ↩
  25. Id. at 168. ↩

Amdt6.4.4 Scope of the Right

Amdt6.4.4.1 Overview of Scope of Right to Trial by Jury

The right to a jury trial entails the “right to have a jury make the ultimate determination of guilt.”1 As such, the criminal jury is not a “mere factfinder,” but instead an adjudicative body that decides “guilt or innocence on every issue, which includes application of the law to the facts.”2 The trial court may not usurp the jury’s function by directing a guilty verdict, “no matter how conclusive the evidence;”3 nor may the trial court “attempt[ ] to override or interfere with the jurors’ independent judgment in a manner contrary to the interests of the accused.”4 In modern doctrine, these foundational principles regarding the scope of the jury function have had perhaps their most significant ramifications in due process jurisprudence, where the Supreme Court has addressed claims that particular types of jury instructions unconstitutionally impinge upon or skew the jury’s adjudicative task.5 The Court’s Sixth Amendment doctrine, on the other hand, has taken up three central issues of jury structure and operation: size, unanimity, and juncture (i.e., the stage of the proceedings at which the jury participates).

Notes
  1. United States v. Gaudin, 515 U.S. 506, 510 (1995). ↩
  2. Id. at 513–14; see also id. at 514 (“[T]he jury’s constitutional responsibility is not merely to determine the facts, but to apply the law to those facts and draw the ultimate conclusion of guilt or innocence.”). ↩
  3. United Bhd. of Carpenters & Joiners of Am. v. United States, 330 U.S. 395, 408 (1947); see also Sullivan v. Louisiana, 508 U.S. 275, 277 (1993) (“[A]lthough a judge may direct a verdict for the defendant if the evidence is legally insufficient to establish guilt, he may not direct a verdict for the State, no matter how overwhelming the evidence.”); Sandstrom v. Montana, 442 U.S. 510, 516 n.5 (1979) (“[V]erdicts may not be directed against defendants in criminal cases.”). ↩
  4. United States v. Martin Linen Supply Co., 430 U.S. 564, 573 (1977). ↩
  5. See Sandstrom, 442 U.S. at 523 (holding that jury instruction that “the law presumes that a person intends the ordinary consequences of his voluntary acts” violated due process because the “jurors could reasonably have concluded that they were directed to find against defendant on the element of intent” and “[t]he State was thus not forced to prove beyond a reasonable doubt . . . every fact necessary to constitute the crime . . . charged”) (internal quotation marks and citation omitted); see also Schad v. Arizona, 501 U.S. 624, 630 (1991) (rejecting under due process analysis the claim that a “conviction under [jury] instructions that did not require the jury to agree on one of the alternative theories of premeditated and felony murder is unconstitutional”); Amdt5.5.1 Overview of Due Process through Amdt5.5.2 Historical Background on Due Process. Although the Court has tended to address them in the due process context, erroneous jury instructions may implicate both the right to due process and the right to jury trial. The Supreme Court has noted that “the Fifth Amendment requirement of proof beyond a reasonable doubt and the Sixth Amendment requirement of a jury verdict are interrelated,” such that a jury instruction that misstates the burden of proof as something less than the reasonable doubt standard violates both constitutional requirements and constitutes a structural error not subject to harmless error analysis. Sullivan, 508 U.S. at 278, 281 (“[T]he jury verdict required by the Sixth Amendment is a jury verdict of guilty beyond a reasonable doubt.”). ↩

Amdt6.4.4.2 Size of the Jury

Under current doctrine, a criminal jury must have at least six members.1 The Court’s early doctrine endorsed the stricter view that the Sixth Amendment required a twelve-member jury in conformity with historical practice.2 But because the federal criminal system used a twelve-person jury,3 the Supreme Court did not squarely confront the constitutionality of a state law providing for smaller juries until after it held in Duncan v. Louisiana in 1968 that the jury trial right applied against the states.4 In the first case after Duncan to address such a law, Williams v. Florida,5 the Court rejected the traditional, historically-based view that the jury trial right required a twelve-person jury and applied instead a functional analysis to uphold a Florida law providing for a six-person criminal jury.6 The Supreme Court stated: “[T]he essential feature of a jury obviously lies in the interposition between the accused and his accuser of the commonsense judgment of a group of laymen . . . [b]ut we find little reason to think that these goals are in any meaningful sense less likely to be achieved when the jury numbers six, than when it numbers 12—particularly if the requirement of unanimity is retained.”7

Eight years later, in Ballew v. Georgia,8 the Court converted the six-person jury upheld in Williams into the constitutional minimum when it struck down a Georgia law providing for five-person juries in certain cases.9 Relying on a number of academic studies about problems with small juries released after Williams, the leading opinion in Ballew concluded that “the purpose and functioning of the jury in a criminal trial is seriously impaired, and to a constitutional degree, by a reduction in size to below six members.”10 Ballew did not overturn or disavow Williams; instead, it simply prohibited any “further reduction” in the jury size that Williams upheld.11

Notes
  1. Ballew v. Georgia, 435 U.S. 223, 245 (1978) (opinion of Blackmun, J.) (“[T]rial on criminal charges before a five-member jury deprive[s] [a defendant] of the right to trial by jury guaranteed by the Sixth and Fourteenth Amendments.”); id. at 245–46 (Powell, J., concurring in the judgment, also on the theory that five-member juries violate the right to jury trial). ↩
  2. Thompson v. Utah, 170 U.S. 343, 353 (1898) (“[T]he word ‘jury’ and the words ‘trial by jury’ were placed in the constitution of the United States with reference to the meaning affixed to them in the law as it was in this country and in England at the time of the adoption of that instrument . . . [and therefore] require[ ] that [a criminal defendant] should be tried by a jury composed of not less than twelve persons.”); see also Ballew, 435 U.S. at 230 n.8 (collecting additional cases decided between 1900 and 1930 that made the “assumption . . . that the 12-member feature was a constitutional requirement”). In Thompson, the Court held that application of a provision of Utah’s state constitution providing for an eight-person jury in non-capital cases to prosecutions for crimes committed before Utah became a state, when as a territory it followed the federal practice of twelve-person juries, violated the ex post facto clause of Article I, §10 of the U.S. Constitution. Thompson, 170 U.S. at 355. ↩
  3. See, e.g., Fed. R. Crim. Proc. 23(b) advisory committee’s note to 1944 adoption (explaining that the rule restated the “existing practice” of providing for twelve-member jury, absent stipulation by the parties for a smaller jury). In 1983, Rule 23(b) was amended to authorize federal courts “to permit a jury of 11 persons to return a verdict, even without a stipulation by the parties, if the court finds good cause to excuse a juror [after the jury has retired to deliberate].” Fed. R. Crim. Proc. 23(b)(3) advisory committee’s note to 1983 amendments. ↩
  4. See Burch v. Louisiana, 441 U.S. 130, 134 (1979) (“Only in relatively recent years has this Court had to consider the practices of the several States relating to jury size and unanimity. Duncan v. Louisiana marked the beginning of our involvement with such questions.”) (citation omitted); Williams v. Florida, 399 U.S. 78, 90, 103 (1970) (explaining that before Duncan, the Court’s decisions had “assumed” that the Constitution required a twelve-person jury). ↩
  5. 399 U.S. 78 (1970). ↩
  6. Id. at 86 (“We hold that the 12-man panel is not a necessary ingredient of ‘trial by jury,’ and that respondent’s refusal to impanel more than the six members provided for by Florida law did not violate petitioner’s Sixth Amendment rights as applied to the States through the Fourteenth.”). ↩
  7. Id. at 100. ↩
  8. 435 U.S. 223 (1978). ↩
  9. Id. at 245 (opinion of Blackmun, J.). Only Justice John Stevens joined Justice Harry Blackmun’s opinion, which announced the judgment; four other Justices concurred in the judgment in opinions that also concluded that five-member juries violated the Sixth Amendment. See id. (White, J., concurring in judgment on ground that “a jury of fewer than six persons would fail to represent the sense of the community and hence not satisfy the fair cross-section requirement of the Sixth and Fourteenth Amendments”); id. at 245–46 (Powell, J., concurring in judgment on ground that “use of a jury as small as five members, with authority to convict for serious offenses, involves grave questions of fairness . . . and a line has to be drawn somewhere if the substance of jury trial is to be preserved,” but disagreeing with plurality’s implication that the Fourteenth Amendment fully incorporates the right to jury trial and with plurality’s reliance on “numerology derived from statistical studies”). ↩
  10. Id. at 239 (opinion of Blackmun, J.). ↩
  11. Id. (“While we adhere to, and reaffirm our holding in Williams v. Florida, the[ ] [academic] studies, most of which have been made since Williams was decided in 1970, lead us to conclude that the . . . [Constitution prohibits] a reduction in [jury] size to below six members.”). ↩

Amdt6.4.4.3 Unanimity of the Jury

Under current doctrine, jury verdicts must be unanimous to convict a defendant of a non-petty offense in both federal and state criminal trials.1 For federal criminal trials, the Supreme Court’s recognition of this unanimity requirement is long-standing, dating back at least as far as the late 1800s.2 But for state criminal trials, it was not until 2020 that the Court held for the first time, in Ramos v. Louisiana, that the Sixth Amendment unanimity requirement applies by incorporation via the Fourteenth Amendment.3

Before Ramos, the unanimity requirement did not apply to state criminal trials under the splintered decision in the 1972 case Apodaca v. Oregon.4 This outcome was significant for the two states—Oregon and Louisiana—that authorized non unanimous verdicts in criminal trials (the other 48 states required unanimity).5 In Apodaca, the Supreme Court upheld a provision of the Oregon constitution that permitted jury verdicts by votes of 10-2 in all but first-degree murder cases.6 A plurality of four justices concluded that the Sixth Amendment did not require unanimity. Much like the Williams majority that upheld the six-person Florida jury, these justices preferred functional over historical considerations when interpreting the Sixth Amendment.7 They reasoned that a jury allowed to convict on a 10-2 vote adequately safeguarded a criminal defendant’s Sixth Amendment interest in “having the judgment of his peers interposed between himself and the officers of the State who prosecute and judge him . . . .”8 Justice Lewis Powell’s narrower concurrence, however, set the doctrine on unanimity that would endure until 2020. He agreed with four dissenters on the point that “in accord both with history and precedent . . . the Sixth Amendment requires a unanimous jury verdict to convict in a federal criminal trial.”9 He voted to uphold the Oregon constitutional provision, however, on the ground that the Fourteenth Amendment Due Process Clause did not incorporate the unanimity component of the Sixth Amendment jury trial right, even though it incorporated the right to a jury itself.10 As a result, under Apodaca, federal but not state criminal juries were constitutionally required to render unanimous verdicts.11

Until the Supreme Court overruled Apodaca in 2020, state laws that authorized small juries (as opposed to the twelve-member jury at issue in Apodaca) to render non-unanimous verdicts triggered special Sixth Amendment concerns. In Burch v. Louisiana, the Supreme Court held that six-person juries must convict unanimously.12 The Court struck down, as a violation of the jury trial right, a Louisiana law permitting conviction for nonpetty offenses upon the agreement of five members of a six-person jury.13 Just as the Apodaca plurality opinion followed the reasoning in Williams in departing from historical understandings of jury structure to afford the states more flexibility in crafting criminal procedure, the Burch decision followed the reasoning in Ballew in putting a limit on the flexibility.14 The Burch Court conceded its inability to “discern a priori a bright line below which the number of jurors participating in the trial or the verdict”15 would violate the Sixth Amendment and emphasized that “line-drawing . . . ‘cannot be wholly satisfactory.’”16 The Court concluded, however, that “lines must be drawn somewhere if the substance of the jury trial right is to be preserved” and that “conviction for a nonpetty offense by only five members of a six-person jury presents a . . . threat [to that preservation] and justifies . . . requiring verdicts rendered by six-person juries to be unanimous.”17 The Court “intimated no view” as to the constitutionality of nonunanimous juries with more than six but fewer than twelve members.18

In the 2020 Ramos decision, the Supreme Court overruled Apodaca, reaffirmed that the Sixth Amendment requires unanimity, and held that the Fourteenth Amendment incorporates the Sixth Amendment unanimity requirement against the states.19 The Court reasoned that “Apodaca was gravely mistaken” and that “Justice Powell refused to follow this Court’s incorporation precedents” when he determined that an alternative version of the jury trial right—one without a unanimity requirement—applied in state criminal trials.20 In 2021, the Court held that Ramos did not apply retroactively to invalidate, on federal collateral review, convictions from non-unanimous verdicts that were already final at the time Ramos was decided.21

Notes
  1. Ramos v. Louisiana, No. 18-5924, slip op. at 7 (U.S. Apr. 20, 2020). ↩
  2. Id. at 6 (“As early as 1898, the Court said that a defendant enjoys a ‘constitutional right to demand that his liberty should not be taken from him except by the joint action of the court and the unanimous verdict of a jury of twelve persons.’”) (quoting Thompson v. Utah, 170 U.S. 343, 351 (1898)); Andres v. United States, 333 U.S. 740, 748 (1948) (“Unanimity in jury verdicts is required where the Sixth and Seventh Amendments apply. In criminal cases this requirement of unanimity extends to all issues—character or degree of the crime, guilt and punishment—which are left to the jury.”); Maxwell v. Dow, 176 U.S. 581, 586 (1900) (stating that the right to jury trial “implies that there shall be an unanimous verdict of twelve jurors in all Federal courts where a jury trial is held”); see also Johnson v. Louisiana, 406 U.S. 366, 369–70 (1972) (Powell, J., concurring) (citing “an unbroken line of cases reaching back into the late 1800’s [in which] the Justices of this Court have recognized, virtually without dissent, that unanimity is one of the indispensable features of federal jury trial”). ↩
  3. Ramos, slip op. at 7. ↩
  4. 406 U.S. 404 (1972). ↩
  5. Ramos, slip op. at 1. ↩
  6. 406 U.S. at 406. ↩
  7. Id. at 410 (“[A]s in Williams, our inability to divine ‘the intent of the Framers’ . . . requires that in determining what is meant by a jury we must turn to other than purely historical considerations.”). ↩
  8. Id. at 411. ↩
  9. Johnson, 406 U.S. at 371 (Powell, J., concurring in judgment). Justice Powell’s concurring opinion in Apodaca is reported together with his concurring opinion in a companion case, Johnson v. Louisiana, 406 U.S. 356 (1972), at 406 U.S. at 366. ↩
  10. Johnson, 406 U.S. at 373 (Powell, J., concurring in judgment) (reasoning that incorporation of the unanimity requirement “would give unwarranted and unwise scope to the incorporation doctrine as it applies to the due process right of state criminal defendants to trial by jury.”); see Ramos, slip op. at 8 (“Justice Powell doubled down on his belief in ‘dual-track’ incorporation—the idea that a single right can mean two different things depending on whether it is being invoked against the federal or a state government.”). ↩
  11. Timbs v. Indiana, No. 17-109, slip op. at 3 n.1 (U.S. Feb. 20, 2019) (citing Apodaca for the proposition that “the Sixth Amendment requires jury unanimity in federal, but not state, criminal proceedings”). ↩
  12. 441 U.S. 130, 138 (1979). ↩
  13. Id. at 134 (“[C]onviction by a nonunanimous six-member jury in a state criminal trial for a nonpetty offense deprives an accused of his constitutional right to trial by jury.”). ↩
  14. Id. at 138 (resting decision on “much the same reasons that led us in Ballew to decide that use of a five-member jury threatened the fairness of the proceeding and the proper role of the jury”). ↩
  15. Id. at 137. ↩
  16. Id. at 138 (quoting Duncan v. Louisiana, 391 U.S. 145, 161 (1968)). ↩
  17. Id.; see also Brown v. Louisiana, 447 U.S. 323, 326–27 (1980) (holding that the rule of Burch applies to convictions still pending on direct review on the date Burch was decided, even where the jury was empaneled before that date). ↩
  18. Burch, 441 U.S. at 138 n.11. ↩
  19. Ramos v. Louisiana, No. 18-5924, slip op. at 7 (U.S. Apr. 20, 2020) (“There can be no question either that the Sixth Amendment’s unanimity requirement applies to state and federal criminal trials equally.”). ↩
  20. Id. at 21. The Court also explained that the Louisiana and Oregon laws had “racist origins”: both states originally had provided for non-unanimous verdicts to “dilute” the participation of African Americans and other minorities on juries. Id. at 2–3. ↩
  21. Edwards v. Vannoy, No. 19-5807, slip op. at 2 (U.S. May 17, 2021). ↩

Amdt6.4.4.4 Two-Tier Trial Court Systems

The Court held in Ludwig v. Massachusetts that the provision of a jury trial on appeal, instead of at the first level of adjudication, does not violate the right to jury trial so long as the accused does not face any undue burdens in reaching the jury trial stage.1 Ludwig upheld Massachusetts’s “two-tiered” system for trying certain non-petty crimes, which afforded the accused the possibility of a jury trial only after conviction in a non-jury trial at the first tier.2 A defendant keen on a jury trial could expedite the procedure by “admitting sufficient findings of fact” at the first tier, thereby obviating most of the proceedings before the second-tier jury trial, which was de novo (i.e., not influenced by the outcome of the first tier trial).3 The Court held that this procedure did not violate what it called the “Fourteenth Amendment right to a jury trial.”4 Because the Massachusetts system undeniably provided the accused with the opportunity for a jury trial, the real question according to the Court was whether the provision of that opportunity only at the second tier “unconstitutionally burden[ed] the exercise of that right.”5 The Massachusetts system did not impose such an unconstitutional burden, the Court concluded, because the procedure for admitting factual findings at the first tier allowed the accused to mitigate the increased financial costs and “psychological and physical hardships” of two trials.6 The post-Duncan context also appeared to influence the decision: the Ludwig Court, like the Williams and Apodaca Courts, emphasized the need to afford the states flexibility in their manner of administering a jury trial system.7

Notes
  1. 427 U.S. 618, 630 (1976). ↩
  2. Id. at 620 (“Massachusetts is one of several States having a two-tier system of trial courts for criminal cases.”). ↩
  3. Id. at 621. ↩
  4. Id. at 626. The Court construed the defendant’s claim as being that the Massachusetts system violated his jury trial right and based its decision largely on Sixth Amendment precedent. Id. at 624–26. The Court refrained from expressly tying its holding to the Sixth Amendment right to jury trial, however, presumably to retain Justice Powell’s vote in the five-justice majority. See id. at 632 (Powell, J., concurring) (“I join the opinion of the Court, as I understand it to be consistent with my view that the right to a jury trial afforded by the Fourteenth Amendment is not identical to that guaranteed by the Sixth Amendment.”). ↩
  5. Id. at 626. ↩
  6. Id. at 626–27, 628–29. The Court also rejected the argument that the “possibility of a harsher sentence at the second tier” unduly burdened exercise of the jury trial right, relying on due process cases for the proposition that the Constitution prohibits only “the vindictive imposition of an increased sentence.” Id. at 627. ↩
  7. Ludwig, 427 U.S. at 630 (“The modes of exercising federal constitutional rights have traditionally been left, within limits, to state specification. In this case, Massachusetts absolutely guarantees trial by jury to persons accused of serious crimes, and the manner it has specified for exercising this right is fair and not unduly burdensome.”). ↩

Amdt6.4.5 Right to Impartial Jury

Amdt6.4.5.1 A Jury Selected from a Representative Cross-Section of the Community

The Sixth Amendment guarantee of the right to a trial “by an impartial jury” applies in both state and federal court.1 Other constitutional provisions, including the Due Process and Equal Protection Clauses of the Fourteenth Amendment, also bear upon impartiality. Before the Court extended the right to a jury trial to state courts in the 1968 case Duncan v. Louisiana,2 the Court had established that, if a state chose to provide juries, due process required them to be impartial.3 In the post-Duncan era, the Supreme Court has continued to ground the right to an impartial jury in both the Sixth Amendment and due process.4 In addition, equal protection prohibits certain forms of discrimination in jury selection.5

Impartiality is a two-part requirement: the jury must be selected from a pool that represents a fair cross-section of the community6 and the jurors must be unbiased.7 First, “the selection of a petit jury from a representative cross section of the community is an essential component of the Sixth Amendment right to a jury trial.”8 This “fair cross-section” requirement applies only to jury panels or venires from which petit juries are chosen, and not to the composition of the petit juries themselves.9 Describing the test for whether a prima facie violation of the fair-cross-section requirement had occurred, the Supreme Court stated:

In order to establish a prima facie violation of the fair-cross-section requirement, the

defendant must show (1) that the group alleged to be excluded is a ‘distinctive’ group in

the community; (2) that the representation of this group in venires from which juries

are selected is not fair and reasonable in relation to the number of such persons in the

community; and (3) that this underrepresentation is due to systematic exclusion of the

group in the jury-selection process.10

The defendant may bring a challenge under this test even if he or she does not belong to the excluded group.11 Once the defendant demonstrates a prima facie violation, the government faces a formidable burden: the jury selection process may be sustained under the Sixth Amendment only if those aspects of the process that result in the disproportionate exclusion of a distinctive group, such as exemption criteria, “manifestly and primarily” advance a “significant state interest.”12 Applying these standards, the Court invalidated a state selection system granting women an automatic exemption from jury service upon request.13 In an earlier case, it voided a selection system under which no woman would be called for jury duty unless she had previously filed a written declaration of her desire to be subject to service.14

Notes
  1. Taylor v. Louisiana, 419 U.S. 522, 526–528 (1975); see Ramos v. Louisiana, No. 18-5924, slip op. at 7 (U.S. Apr. 20, 2020) (reviewing incorporation precedents concerning the Sixth Amendment right to jury trial). ↩
  2. 391 U.S. 145, 149–50 (1968). ↩
  3. Peters v. Kiff, 407 U.S. 493, 501–02 (1972) (“Long before this Court held that the Constitution imposes the requirement of jury trial on the States, it was well established that the Due Process Clause protects a defendant from jurors who are actually incapable of rendering an impartial verdict, based on the evidence and the law.”); Turner v. Louisiana, 379 U.S. 466, 471 (1965); Irvin v. Dowd, 366 U.S. 717, 722–23 (1961) (overturning conviction on due process principles for lack of impartial jury); see also Gonzales v. Beto, 405 U.S. 1052, 1506 n.4 (1972) (Stewart, J., concurring in judgment) (describing “established case law holding that due process of law requires an impartial jury.”). ↩
  4. See Skilling v. United States, 561 U.S. 358, 377–78 (2010) (noting that the “Sixth Amendment secures to criminal defendants the right to trial by an impartial jury” before declaring that due process requires the trier of fact to judge a case “impartially, unswayed by outside influence”); Turner v. Murray, 476 U.S. 28, 36 n.9 (1986) (“The right to an impartial jury is guaranteed by both the Sixth Amendment, made applicable to the States through the Fourteenth Amendment, and by principles of due process.”); Ristaino v. Ross, 424 U.S. 589, 595 n.6 (1976) (“A criminal defendant in a state court is guaranteed an ‘impartial jury’ by the Sixth Amendment as applicable to the States through the Fourteenth Amendment. Principles of due process also guarantee a defendant an impartial jury.”); see also Dietz v. Bouldin, 579 U.S. 40, 48 (2016) (“[T]he guarantee of an impartial jury . . . is vital to the fair administration of justice.”). ↩
  5. See, e.g., Batson v. Kentucky, 476 U.S. 79, 85 (1986) (“The Equal Protection Clause guarantees the defendant that the State will not exclude members of his race from the jury venire on account of race, or on the false assumption that members of his race as a group are not qualified to serve as jurors.”) (citations omitted); Castaneda v. Partida, 430 U.S. 482, 494 (1977) (“[I]n order to show that an equal protection violation has occurred in the context of grand jury selection, the defendant must show that the procedure employed resulted in substantial underrepresentation of his race or of the identifiable group to which he belongs.”); see Amdt14.S1.8.1.8 Peremptory Challenges. ↩
  6. See Taylor, 419 U.S. at 530 (“Trial by jury presupposes a jury drawn from a pool broadly representative of the community as well as impartial in a specific case. . . .”) (quoting Thiel v. Southern Pacific Co., 328 U.S. 217, 227 (1946) (Frankfurter, J., dissenting)). ↩
  7. See id. The requirement that jurors be unbiased is discussed at Amdt6.4.2 Right to a Jury Free From Bias ↩
  8. Taylor v. Louisiana, 419 U.S. 522, 528 (1975); see Glasser v. United States, 315 U.S. 60, 86 (1942) (reasoning that officials charged with choosing federal jurors “must not allow the desire for competent jurors to lead them into selections which do not comport with the concept of the jury as a cross-section of the community”); see also Brown v. Allen, 344 U.S. 443, 474 (1953) (discussing fair cross-section concept in analyzing due process challenge to jury lists used in state trial, fifteen years before Duncan made the jury trial right applicable against the states). ↩
  9. Holland v. Illinois, 493 U.S. 474, 480–81 (1990); Lockhart v. McCree, 476 U.S. 162, 173–74 (1986) (“The limited scope of the fair-cross-section requirement is a direct and inevitable consequence of the practical impossibility of providing each criminal defendant with a truly ‘representative’ petit jury . . . .”). ↩
  10. Duren v. Missouri, 439 U.S. 357, 364 (1979); see also Berghuis v. Smith, 559 U.S. 314, 330–32 (2010) (affirming, on habeas review, state court decision that rejected a fair cross-section claim for failure to prove systematic exclusion with particularity). ↩
  11. Taylor, 419 U.S. at 526 (holding that male defendant had standing to challenge exclusion of female jurors); Peters v. Kiff, 407 U.S. 493, 500–05 (1972) (holding that White defendant had standing to bring due process challenge against exclusion of African American jurors and reasoning that “if the Sixth Amendment were applicable here, and petitioner were challenging a post-Duncan petit jury, he would clearly have standing to challenge the systematic exclusion of any identifiable group from jury service”). ↩
  12. Duren, 439 U.S. at 367–68. ↩
  13. Id. at 359–60. ↩
  14. Taylor v. Louisiana, 419 U.S. 522, 526–31 (1975); see also Ballard v. United States, 329 U.S. 187, 193 (1946) (“We conclude that the purposeful and systematic exclusion of women from the [federal jury] panel in this case was a departure from the scheme of jury selection which Congress adopted . . . .”); Thiel v. S. Pac. Co., 328 U.S. 217, 224–25 (1946) (exercising supervisory power over administration of justice in federal courts to grant a new trial in a civil case where day laborers were excluded from the jury lists). Before the Supreme Court held in 1968 that the Sixth Amendment right to jury trial applied against the states, the Court had rejected, in 5-to-4 decisions, Fourteenth Amendment challenges to state use of “blue ribbon” jury lists that tended to exclude women and laborers. See Fay v. New York, 332 U.S. 261, 290–93 (1947) (reasoning that not even systematic or purposeful underrepresentation of women or occupational groups violated the Fourteenth Amendment); Moore v. New York, 333 U.S. 565, 566–68 (1948) (reaffirming Fay but reasoning that the evidence did not show the systematic exclusion of African Americans from the jury lists). ↩

Amdt6.4.5.2 Jury Free from Bias

In addition to requiring that a petit jury be selected from a representative cross section of the community,1 the Supreme Court has interpreted the Sixth Amendment to require assurance that the jurors chosen are unbiased—that is, the jurors must be willing to decide the case on the basis of the evidence presented.2 The Court has held that absent a showing of actual bias, a juror’s employment by the government that is prosecuting the case does not require disqualification for implicit bias.3 By extension, absent a showing of actual bias, a federal petit jury may consist entirely of federal government employees without offending the right to an impartial jury.4 A violation of a defendant’s right to an impartial jury does occur, however, when the jury or any of its members is subjected to pressure or influence which could impair freedom of action; the trial judge should conduct a hearing in which the defense participates to determine whether impartiality has been undermined.5 Exposure of the jury to possibly prejudicial material and disorderly courtroom activities may deny impartiality and require judicial inquiry.6 Similarly, a trial court should not condone private communications, contact, or tampering with a jury, or the creation of circumstances raising the dangers thereof.7 When the locality of the trial has been saturated with publicity about a defendant, so that it is unlikely that he can obtain a disinterested jury, he is constitutionally entitled to a change of venue.8 Subjecting a defendant to trial in an atmosphere of actual or threatened mob domination also violates the right to an impartial jury.9

There are limits on the extent to which an inquiry can be made into whether a criminal defendant’s right to a jury trial has been denied by a biased jury. The federal rules of evidence10 and the vast majority of the states11 forbid the “impeachment” or questioning of a verdict by inquiring into the internal deliberations of the jury—a rule of evidence that originated in English common law.12 This “no impeachment” rule, which aims to promote “full and vigorous discussion” by jurors and to preserve the “stability” of jury verdicts, has limited the ability of criminal defendants to argue in post-conviction proceedings that a jury’s internal deliberations demonstrated bias amounting to a deprivation of the right to a jury trial.13 Indeed, the Court has held that the Sixth Amendment justifies an exception to the no impeachment rule in only the “gravest and most important cases.”14 As a result, the Court has rejected a Sixth Amendment exception to the rule when evidence existed that jurors were under the influence of alcohol and drugs during the trial.15 In the Court’s view, three safeguards—(1) the voir dire (jury selection) process, (2) the ability for the court and counsel to observe the jury during trial, and (3) the potential for jurors to report untoward behavior to the court before rendering a verdict—adequately protect Sixth Amendment interests while preserving the values underlying the no impeachment rule.16

In Pena-Rodriguez v. Colorado, the Court for the first time recognized a Sixth Amendment exception to the no impeachment rule.17 In that case, a criminal defendant contended that his conviction by a Colorado jury for harassment and unlawful sexual contact should be overturned on constitutional grounds because evidence from two jurors revealed that a fellow juror had expressed anti-Hispanic bias toward the petitioner and his alibi witness during deliberations.18 The Court agreed, concluding that where a juror makes a “clear statement” indicating that he relied on “racial stereotypes or animus to convict a criminal defendant, the Sixth Amendment requires that the no-impeachment rule give way . . . . ”19 In so holding, the Court emphasized the “imperative to purge racial prejudice from the administration of justice” that underlies the Fourteenth Amendment, which, in turn, makes the Sixth Amendment applicable to the states.20 Contrasting the instant case from earlier rulings that involved “anomalous behavior from a single jury—or juror—gone off course,”21 the Court noted that racial bias in the judicial system was a “familiar and recurring evil”22 that required the judiciary to prevent “systemic injury to the administration of justice.”23 Moreover, the Court emphasized “pragmatic” rationales for its holding, noting that other checks on jury bias would be unlikely to reveal racial bias.24

Notes
  1. See Amdt6.4.2 A Jury Selected from a Representative Cross Section of the Community ↩
  2. Skilling v. United States, 561 U.S. 358, 378 (2010). ↩
  3. Dennis v. United States, 339 U.S. 162, 171–72 (1950); see generally United States v. Wood, 299 U.S. 123, 133 (1936) (“The bias of a prospective juror may be actual or implied; that is, it may be bias in fact or bias conclusively presumed as matter of law.”). ↩
  4. Frazier v. United States, 335 U.S. 497, 509–11 (1948) (“Government employees [are] subject, as are all other persons and in the same manner, to challenge for ‘actual bias’ and under all ordinary circumstances only to such challenge. In that view, absent any basis for such challenge, we do not see how a right to challenge the panel as a whole can arise from the mere fact that the jury chosen by proper procedures from a properly selected panel turns out to be composed wholly of Government employees or, a fortiori, of persons in private employment.”). On common-law grounds, the Court in Crawford v. United States, 212 U.S. 183 (1909), disqualified federal employees, but the Court sustained a statute removing the disqualification because of the increasing difficulty in finding jurors in the District of Columbia in United States v. Wood, 299 U.S. 123 (1936). ↩
  5. Smith v. Phillips, 455 U.S. 209, 215 (1982) (“This Court has long held that the remedy for allegations of juror partiality is a hearing in which the defendant has the opportunity to prove actual bias.”); Remmer v. United States, 350 U.S. 377, 381–82 (1956) (granting new trial where hearing established that a juror was “disturbed and troubled” after having been offered a bribe and interviewed by the FBI about the incident). ↩
  6. E.g., Sheppard v. Maxwell, 384 U.S. 333, 350–51, 357 (1966); Irvin v. Dowd, 366 U.S. 717, 723–24 (1961). Exposure of the jurors to knowledge about the defendant’s prior criminal record and activities is not alone sufficient to establish a presumption of reversible prejudice, but on voir dire jurors should be questioned about their ability to judge impartially. Murphy v. Florida, 421 U.S. 794, 799–800 (1975). The Court indicated that under the same circumstances in a federal trial it may have overturned the conviction pursuant to its supervisory power. Id. at 797–98 (citing Marshall v. United States, 360 U.S. 310 (1959)) . Essentially, the defendant must make a showing of prejudice into which the court may then inquire. Chandler v. Florida, 449 U.S. 560 (1981); Smith, 455 U.S. at 215–18; Patton v. Yount, 467 U.S. 1025, 1031–33 (1984). ↩
  7. Remmer v. United States, 347 U.S. 227, 229 (1954); see Turner v. Louisiana, 379 U.S. 466, 473–74 (1965) (placing jury in charge of two deputy sheriffs who were principal prosecution witnesses at defendant’s trial denied him his right to an impartial jury); Parker v. Gladden, 385 U.S. 363, 363–65 (1966) (influence on jury by prejudiced bailiff). ↩
  8. Irvin v. Dowd, 366 U.S. 717, 727–28 (1961) (felony); Rideau v. Louisiana, 373 U.S. 723, 725–26 (1963) (felony); Groppi v. Wisconsin, 400 U.S. 505, 507–09 (1971) (misdemeanor). Important factors to be considered, however, include the size and characteristics of the community in which the crime occurred; whether the publicity was blatantly prejudicial; the time elapsed between the publicity and the trial; and whether the jurors’ verdict supported the theory of prejudice. Skilling v. United States, 561 U.S. 358, 381–84 (2010). ↩
  9. Frank v. Mangum, 237 U.S. 309, 335 (1915) (“We, of course, agree that if a trial is in fact dominated by a mob, so that the jury is intimidated and the trial judge yields, and so that there is an actual interference with the course of justice, there is, in that court, a departure from due process of law in the proper sense of that term.”); see also Sheppard, 384 U.S. at 362 (recognizing, in case where media activity inside the courtroom created a “carnival atmosphere at trial,” that “[d]ue process requires that the accused receive a trial by an impartial jury free from outside influences”); Irvin, 366 U.S. at 728 (“With his life at stake, it is not requiring too much that petitioner be tried in an atmosphere undisturbed by so huge a wave of public passion and by a jury other than one in which two-thirds of the members admit, before hearing any testimony, to possessing a belief in his guilt.”). ↩
  10. See FED. R. Evid. 606(b)(1) (“During an inquiry into the validity of a verdict or indictment, a juror may not testify about any statement made or incident that occurred during the jury’s deliberations; the effect of anything on that juror’s or another juror’s vote; or any juror’s mental processes concerning the verdict or indictment.”). ↩
  11. See Peña-Rodriguez v. Colorado, No. 15–606, slip op. at 9 (U.S. May 6, 2017) (noting that 42 jurisdictions follow the federal rule). ↩
  12. Id. at 2. The no-impeachment rule does have three central exceptions, allowing a juror to testify about (1) extraneous prejudicial information improperly brought to the jury’s attention; (2) outside influences brought to bear on any juror; and (3) a mistake made in entering the verdict on the verdict form. See FED. R. Evid. 606(b)(2); Peña-Rodriguez, slip op. at 7–9. ↩
  13. See Peña-Rodriguez, slip op. at 9. ↩
  14. Id. at 8 (quoting McDonald v. Pless, 238 U.S. 264, 269 (1915)). ↩
  15. See Tanner v. United States, 483 U.S. 107, 127 (1987); see also Warger v. Shauers, 574 U.S. 40, 44–45 (2014) (holding, in a civil case, that the no-impeachment rule barred the introduction of evidence that a juror lied during jury selection about bias against one party). ↩
  16. See Tanner, 483 U.S. at 127. In addition, while the no-impeachment rule, by its very nature, prohibits testimony by jurors, evidence of misconduct other than juror testimony can be used to impeach the verdict. Id. ↩
  17. See Peña-Rodriguez v. Colorado, No. 15–606, slip op. (U.S. May 6, 2017). ↩
  18. Id at 3. ↩
  19. Id. at 17. ↩
  20. Id. at 13. ↩
  21. Id. at 15. ↩
  22. Id. ↩
  23. Id. at 16. ↩
  24. Id. (“[T]his Court has noted the dilemma faced by trial court judges and counsel in deciding whether to explore potential racial bias at voir dire . . . The stigma that attends racial bias may make it difficult for a juror to report inappropriate statements during the court of juror deliberations.”). ↩

Amdt6.4.5.3 Death Penalty and Requirement of Impartial Jury

Inquiries into jury bias have arisen in the context of the imposition of the death penalty. In Witherspoon v. Illinois,1 the Court held that the exclusion in capital cases of jurors conscientiously opposed to capital punishment, without inquiring whether they could consider the imposition of the death penalty in the appropriate case, violated a defendant’s constitutional right to an impartial jury. The Supreme Court stated: “A man who opposes the death penalty, no less than one who favors it, can make the discretionary judgment entrusted to him by the State and can thus obey the oath he takes as a juror.”2 A jury, the Court further wrote, must “express the conscience of the community on the ultimate question of life or death,” and the automatic exclusion of all with generalized objections to the death penalty “stacked the deck” and made of the jury a tribunal “organized to return a verdict of death.”3 The Court has also held that a court may not refuse a defendant’s request to examine potential jurors to determine whether they would vote automatically to impose the death penalty; general questions about fairness and willingness to follow the law are inadequate.4

In Wainwright v. Witt, the Court held that the proper standard for exclusion is “whether the juror’s views would ‘prevent or substantially impair the performance of his duties as a juror in accordance with his instructions and his oath.’”5 Thus, to be excluded, a juror need not indicate that he would “automatic[ally]” vote against the death penalty, nor need his “bias be proved with ‘unmistakable clarity.’”6 Instead, a juror may be excused for cause “where the trial judge is left with the definite impression that a prospective juror would be unable to faithfully and impartially apply the law.”7 Persons properly excludable under Witherspoon may also be excluded from the guilt/innocence phase of a bifurcated capital trial.8 It had been argued that to exclude such persons from the guilt/innocence phase would result in a jury somewhat more predisposed to convict, and that this would deny the defendant a jury chosen from a fair cross-section. The Court rejected this argument, concluding that “it is simply not possible to define jury impartiality . . . by reference to some hypothetical mix of individual viewpoints.”9 Moreover, the Court noted, the state has an “entirely proper interest in obtaining a single jury that could impartially decide all of the issues in [a] case,” and need not select separate panels and duplicate evidence for the two distinct but interrelated functions.10 For the same reasons, the Court has held that there is no violation of the right to an impartial jury if a defendant for whom capital charges have been dropped is tried, along with a codefendant still facing capital charges, before a “death qualified” jury.11

In Uttecht v. Brown,12 the Court summed up four principles that it derived from Witherspoon and Witt:

First a criminal defendant has the right to an impartial jury drawn from a venire that

has not been tilted in favor of capital punishment by selective prosecutorial challenges

for cause. Second, the State has a strong interest in having jurors who are able to apply

capital punishment within the framework state law prescribes. Third, to balance these

interests, a juror who is substantially impaired in his or her ability to impose the death

penalty under the state-law framework can be excused for cause; but if the juror is not

substantially impaired, removal for cause is impermissible. Fourth, in determining

whether the removal of a potential juror would vindicate the State’s interest without

violating the defendant’s right, the trial court makes a judgment based in part on the

demeanor of the juror, a judgment owed deference by reviewing courts.13

Exclusion of one juror qualified under Witherspoon constitutes reversible error, and the exclusion is not subject to harmless error analysis.14 However, a court’s error in refusing to dismiss for cause a prospective juror prejudiced in favor of the death penalty does not deprive a defendant of his right to trial by an impartial jury if he is able to exclude the juror through exercise of a peremptory challenge.15 The relevant inquiry “must focus . . . on the jurors who ultimately sat,” the Court declared, declining to extend the rule from cases concerning the erroneous exclusion of jurors opposed to the death penalty that the focus instead should be on “‘whether the composition of the jury panel as a whole could have been affected by the trial court’s error.’”16

Notes
  1. 391 U.S. 510 (1968). ↩
  2. Id. at 519. ↩
  3. Id. at 519, 521, 523. The Court thought the problem went only to the issue of the sentence imposed and saw no evidence that a jury from which death-scrupled persons had been excluded was more prone to convict than were juries on which such person sat. Id. at 517–18; cf. Bumper v. North Carolina, 391 U.S. 543, 545 (1968). Witherspoon was given added significance when, in Woodson v. North Carolina, 428 U.S. 280 (1976), and Roberts v. Louisiana, 428 U.S. 325 (1976), the Court held mandatory death sentences unconstitutional and ruled that the jury as a representative of community mores must make the determination as guided by legislative standards. See also Adams v. Texas, 448 U.S. 38 (1980) (holding Witherspoon applicable to bifurcated capital sentencing procedures and voiding a statute permitting exclusion of any juror unable to swear that the existence of the death penalty would not affect his deliberations on any issue of fact). ↩
  4. Morgan v. Illinois, 504 U.S. 719, 734–36 (1992). ↩
  5. 469 U.S. 412, 424 (1985) (quoting Adams v. Texas, 448 U.S. 38, 45 (1980)). ↩
  6. 469 U.S. at 424; see also Darden v. Wainwright, 477 U.S. 168 (1986) (appropriateness of exclusion should be determined by context, such as excluded juror’s understanding based on previous questioning of other jurors). ↩
  7. Witt, 469 U.S. at 425–26. ↩
  8. Lockhart v. McCree, 476 U.S. 162, 165 (1986). ↩
  9. Id. at 183. ↩
  10. Id. at 180. ↩
  11. Buchanan v. Kentucky, 483 U.S. 402, 420 (1987). ↩
  12. 551 U.S. 1 (2007). ↩
  13. Id. at 9 (citations omitted). In Uttecht, the Court reasoned that deference was owed to trial courts because the lower court is in a “superior position to determine the demeanor and qualifications of a potential juror.” See id. at 22. In White v. Wheeler, the Court recognized that a trial judge’s decision to excuse a prospective juror in a death penalty case was entitled to deference even when the judge does not make the decision to excuse the juror contemporaneously with jury selection (voir dire). See 577 U.S. 73, 78–80 (2015) (per curiam). The Court explained that the deference due under Uttecht to a trial judge’s decision was not limited to the judge’s evaluation of a juror’s demeanor, but extended to a trial judge’s consideration of “the substance of a juror’s response.” See id. at 80. When a trial judge “chooses to reflect and deliberate” over the record regarding whether to excuse a juror for a day following the questioning of the prospective juror, that judge’s decision should be “commended” and is entitled to substantial deference. See id. ↩
  14. Gray v. Mississippi, 481 U.S. 648, 668 (1987) (“Because the Witherspoon-Witt standard is rooted in the constitutional right to an impartial jury, and because the impartiality of the adjudicator goes to the very integrity of the legal system, the Chapman harmless-error analysis cannot apply.”) (citation omitted). ↩
  15. Ross v. Oklahoma, 487 U.S. 81, 88 (1987) (“[W]e reject the notion that the loss of a peremptory challenge constitutes a violation of the constitutional right to an impartial jury. . . . So long as the jury that sits is impartial, the fact that the defendant had to use a peremptory challenge to achieve that result does not mean the Sixth Amendment was violated.”); see also United States v. Martinez-Salazar, 528 U.S. 304, 308 (2000) (applying the same principle in a federal criminal case). ↩
  16. 487 U.S. at 86, 87 (quoting and distinguishing Gray, 481 U.S. at 665 (emphasis in original)). ↩

Amdt6.4.5.4 Voir Dire and Peremptory Challenges

It is the function of voir dire to give the defense and the prosecution the opportunity to inquire into, or have the trial judge inquire into, possible grounds of bias or prejudice that potential jurors may have, and to acquaint the parties with the potential jurors.1 Not every opinion which a juror may entertain about a case necessarily disqualifies him.2 The judge must determine “whether the nature and strength of the opinion . . . raise the presumption of partiality.”3 It suffices for the judge to question potential jurors about their ability to put aside what they had heard or read about the case, listen to the evidence with an open mind, and render an impartial verdict; the judge’s refusal to go further and question jurors about the contents of news reports to which they had been exposed does not violate the right to an impartial jury.4

Under some circumstances, the Constitution may require the trial court to ask jurors whether they harbor racial bias, although the Supreme Court has sometimes grounded this requirement in “the essential fairness required by the Due Process Clause of the Fourteenth Amendment” rather than in the right to an impartial jury specifically.5 Thus, in a situation in which a Black defendant alleged that he was being prosecuted on false charges because of his civil rights activities, the Court held that due process required the trial court to ask prospective jurors about racial prejudice. A similar rule applies in some capital trials, where the risk of racial prejudice “is especially serious in light of the complete finality of the death sentence.”6 The right to an impartial jury entitles a defendant accused of an interracial capital offense to have prospective jurors informed of the victim’s race and questioned as to racial bias.7 But in circumstances not suggesting a significant likelihood of racial prejudice infecting a trial, as when the facts are merely that the defendant is Black and the victim White in a non-capital case, the Constitution is satisfied by a more generalized but thorough inquiry into impartiality.8

Although the government is not constitutionally obligated to allow peremptory challenges,9 criminal trials typically provide for a system of peremptory challenges in which both prosecution and defense may, without stating any reason, excuse a certain number of prospective jurors.10 Although racially discriminatory use of peremptory challenges violates the Equal Protection Clause under the standard of proof set forth in Batson v. Kentucky,11 it does not violate the Sixth Amendment, the Court ruled in Holland v. Illinois.12 The Sixth Amendment “no more forbids the prosecutor to strike jurors on the basis of race than it forbids him to strike them on the basis of innumerable other generalized characteristics.”13 To rule otherwise, the Court reasoned, “would cripple the device of peremptory challenge” and thereby undermine the Amendment’s goal of “impartiality with respect to both contestants.”14

Notes
  1. See Rosales-Lopez v. United States, 451 U.S. 182, 188 (1981); Pointer v. United States, 151 U.S. 396, 408–09 (1894); Lewis v. United States, 146 U.S. 370, 377 (1892). ↩
  2. Witherspoon v. Illinois, 391 U.S. 510, 520–21, 522 n.21 (1968). ↩
  3. Reynolds v. United States, 98 U.S. 145, 155 (1879); see Witherspoon, 391 U.S. at 520–21, 522 n.21. ↩
  4. Mu’Min v. Virginia, 500 U.S. 415, 431–32 (1991). ↩
  5. Ham v. South Carolina, 409 U.S. 524, 527 (1973). ↩
  6. Turner v. Murray, 476 U.S. 28, 35 (1986). ↩
  7. Id. at 36–37. ↩
  8. Ristaino v. Ross, 424 U.S. 589, 597 (1976); see Turner, 476 U.S. at 33 (“[U]nder Ristaino, the mere fact that petitioner is black and his victim white does not constitute a ‘special circumstance’ of constitutional proportions. What sets this case apart from Ristaino, however, is that in addition to petitioner’s being accused of a crime against a white victim, the crime charged was a capital offense.”). In Ristaino, the Court noted that under its supervisory power it would require a federal court faced with the same circumstances to propound appropriate questions to identify racial prejudice if requested by the defendant. Ristaino, 424 U.S. at 597 n.9; see Aldridge v. United States, 283 U.S. 308, 311 (1931). But see Rosales-Lopez v. United States, 451 U.S. 182 (1981), in which the trial judge refused a defense request to inquire about possible bias against Mexicans. A plurality apparently adopted a rule that, all else being equal, the judge should necessarily inquire about racial or ethnic prejudice only in cases of violent crimes in which the defendant and victim are members of different racial or ethnic groups, id. at 192, a rule rejected by two concurring Justices. Id. at 194. Three dissenting Justices thought the judge must always ask when defendant so requested. Id. at 195. ↩
  9. The Supreme Court stated: “This Court has long recognized that peremptory challenges are not of federal constitutional dimension.” Rivera v. Illinois, 556 U.S. 148, 151–52 (2009) (internal quotation marks omitted) (state trial court’s erroneous denial of a defendant’s peremptory challenge does not warrant reversal of conviction if all seated jurors were qualified and unbiased). ↩
  10. United States v. Martinez-Salazar, 528 U.S. 304, 311–12 (2000); cf. Stilson v. United States, 250 U.S. 583, 586 (1919) (holding that it is no violation of the guarantee of jury impartiality to limit the number of peremptory challenges to each defendant in a multi-party trial). ↩
  11. 76 U.S. 79 (1986); see Amdt14.S1.8.1.8 Peremptory Challenges. ↩
  12. 493 U.S. 474 (1990). ↩
  13. Id. at 487. ↩
  14. Id. at 484. ↩

Amdt6.4.6 Right to Local Jury

Amdt6.4.6.1 Historical Background on Local Jury Requirement

Article III, § 2 requires that federal criminal cases be tried by jury in the state in which the offense was committed,1 but much criticism arose over the absence of any guarantee in the original Constitution that the jury be drawn from the “vicinage” or neighborhood of the crime.2 James Madison’s efforts to write into the Bill of Rights an express vicinage provision were rebuffed by the Senate, and the present language was adopted as a compromise.3

Notes
  1. U.S. CONST. art. III, § 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 Crime 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.”) ↩
  2. FRANCIS H. HELLER, THE SIXTH AMENDMENT 25–26 (1951); see Williams v. Florida, 399 U.S. 78, 93 n.35 (1970) (“‘[V]icinage’ means neighborhood, and ‘vicinage of the jury’ meant jury of the neighborhood or, in medieval England, jury of the county.”). ↩
  3. Williams, 399 U.S. at 96 (explaining that, in the final version of the Sixth Amendment, “the ‘vicinage’ requirement itself had been replaced by wording that reflected a compromise between broad and narrow definitions of that term, and that left Congress the power to determine the actual size of the ‘vicinage’ by its creation of judicial districts.”) ↩

Amdt6.4.6.2 Local Juries and Vicinage Requirement

To date, the Supreme Court has applied the Sixth Amendment right to a trial before a jury of “the State and district wherein the crime shall have been committed, which district shall have been previously ascertained by law”—known as the vicinage requirement1—in federal prosecutions only.2 The Court has not considered whether the requirement applies to state-level prosecutions via the Due Process Clause of the Fourteenth Amendment.3

Under the vicinage requirement, the “location of the commission of the criminal acts” determines the propriety of the trial venue.4 The defendant cannot be tried in a federal district if the charged offense was not committed there.5 Thus, a defendant could not be tried in Missouri for money-laundering when the financial transactions that constituted the charged offenses occurred entirely in Florida.6 Although the drug trafficking activity that generated the illicit funds occurred in Missouri, the defendant was charged only in connection with the money laundering, and venue was therefore proper only in Florida.7

If the charged criminal acts occur in multiple districts, the trial may occur in any one of those districts.8 In a prosecution for conspiracy, the accused may be tried in the district where the conspiracy was formed9 or, more broadly, in any district where the accused or a co-conspirator carried out an overt act.10 The offense of obtaining transportation of property in interstate commerce at less than the carrier’s published rates may be tried in any district through which the forbidden transportation is conducted.11 Similarly, where an offense consists of sending illicit material through the mail, the Sixth Amendment permits the trial to take place in any district through which the material passes, although for policy reasons Congress may limit this range of permissible venues by statute.12

The Sixth Amendment does not entitle the accused to a preliminary hearing before being removed for trial to the federal district in which the charged offenses are alleged to have occurred.13 The assignment of a district judge from one district to another, pursuant to statute, does not violate the vicinage requirement—that is, such assignment does not create a new judicial district whose boundaries are undefined or subject the accused to trial in a district not established when the offense with which he is charged was committed.14

For offenses against federal laws not committed within any state, Congress has the sole power to prescribe the place of trial; such an offense is not local and may be tried at such place as Congress may designate.15 The place of trial may be designated by statute after the offense has been committed.16

Notes
  1. See Williams v. Florida, 399 U.S. 78, 93 n.35 (1970) (“‘[V]icinage’ means neighborhood, and ‘vicinage of the jury’ meant jury of the neighborhood or, in medieval England, jury of the county.”). ↩
  2. See, e.g. United States v. Cabrales, 524 U.S. 1, 6 (1998); Johnston v. United States, 351 U.S. 215, 220–21 (1956); see generally 1 WAYNE R. LAFAVE ET AL., CRIMINAL PROCEDURE § 2.6(B) (4th ed. 2015) (explaining that Supreme Court precedent has not “addressed the incorporation of the Sixth Amendment’s vicinage requirements” and reviewing various strains of lower court caselaw on the issue). ↩
  3. See Stevenson v. Lewis, 384 F.3d 1069, 1071 (9th Cir. 2004); LAFAVE, supra note 2, at § 2.6(b); cf. Nashville, Chicago & St. Louis Ry. v. Alabama, 128 U.S. 96, 101 (1888) (holding that the Article III, § 2 provision requiring that a criminal jury trial “shall be held in the State where the said Crimes shall have been committed” applies only in federal courts). ↩
  4. United States v. Rodriguez-Moreno, 526 U.S. 275, 279 (1999); Cabrales, 524 U.S. at 6–7; United States v. Cores, 356 U.S. 405, 407 (1958); Johnston v. United States, 351 U.S. 215 (1956). ↩
  5. Salinger v. Loisel, 265 U.S. 224, 232 (1924). ↩
  6. Cabrales, 524 U.S. at 3–4. ↩
  7. Id. at 7. ↩
  8. Rodriguez-Moreno, 526 U.S. at 281–82; United States v. Lombardo, 241 U.S. 73, 77 (1916) (“Undoubtedly where a crime consists of distinct parts which have different localities the whole may be tried where any part can be proved to have been done . . . .”); Palliser v. United States, 136 U.S. 257, 266 (1890) (“Where a crime is committed partly in one district and partly in another it must, in order to prevent an absolute failure of justice, be tried in either district, or in that one which the legislature may designate . . . .”); see also Hagner v. United States, 285 U.S. 427, 429 (1932) (reasoning that offense of scheming to defraud a corporation by mail is committed both in the place where the letter is mailed and, by virtue of a delivery presumption, also in the place to which the letter is addressed). ↩
  9. Burton v. United States, 202 U.S. 344, 388–89 (1906). ↩
  10. United States v. Socony-Vacuum Oil Co., 310 U.S. 150, 252–53 (1940); Brown v. Elliott, 225 U.S. 392, 401–02 (1912); Hyde v. United States, 225 U.S. 347, 367 (1912); Haas v. Henkel, 216 U.S. 462, 474 (1910). ↩
  11. Armour Packing Co. v. United States, 209 U.S. 56, 76–77 (1908). ↩
  12. United States v. Johnson, 323 U.S. 273, 274 (1944) (“Congress may constitutionally make the practices which led to the Federal Denture Act triable in any federal district through which an offending denture is transported.”). ↩
  13. United States ex rel. Hughes v. Gault, 271 U.S. 142, 149 (1926); see also Beavers v. Henkel, 194 U.S. 73, 84–85 (1904) (reasoning that the sufficiency of an indictment may be challenged in the trial venue but generally not prior to removal to that venue); cf. Tinsley v. Treat, 205 U.S. 20 (1907) (distinguishing Beavers and holding that the federal removal statute entitled the accused to at least offer evidence as to lack of probable cause). ↩
  14. Lamar v. United States, 241 U.S. 103, 117–118 (1916). ↩
  15. Jones v. United States, 137 U.S. 202, 211 (1890); United States v. Dawson, 56 U.S. (15 How.) 467, 488 (1853). ↩
  16. Cook v. United States, 138 U.S. 157, 181–83 (1891) (holding that retroactive designation of the trial venue for a crime committed in federal territory did not violate the Sixth Amendment vicinage requirement, the Article III jury trial provision, or the ex post facto clause). ↩

Amdt6.4.7 Notice of Accusation

The Sixth Amendment right to be “informed of the nature and cause of the accusation” guarantees criminal defendants “adequate notice of the charges against [them].”1 To satisfy the Sixth Amendment requirement, the notice that the government provides must be specific enough to enable the defendant to prepare a defense and to protect himself or herself after judgment against a subsequent prosecution on the same charge.2 Thus, in the prosecution of a witness for the crime of refusing to answer the questions of a congressional subcommittee about a topic that the subcommittee was investigating, the government violated the Sixth Amendment right by failing to identify the topic of the investigation.3 Because criminal liability could attach only if the questions that the witness refused to answer related to the topic of the congressional investigation, the Court reasoned that the prosecution’s failure to identify the topic left the “chief issue undefined” and therefore violated the defendant’s right to know “the nature of the accusation against him.”4

The Court has cautioned, however, that its limited precedents interpreting this constitutional provision “stand for nothing more than the general proposition” that the government must notify the defendant of the nature of the charges.5 The Court has not established “specific rule[s]” about how this notice requirement applies in practice.6 For example, it has not resolved whether a prosecutorial decision to switch theories of liability towards the end of trial vitiates otherwise adequate notice provided in the pleadings.7 Federal and state rules of criminal procedure contain more detailed notice requirements.8 The Sixth Amendment right to notice of accusation applies to the states via the Due Process Clause of the Fourteenth Amendment.9

Notes
  1. Lopez v. Smith, 574 U.S. 1, 5–6 (2014). Principles of procedural due process also guarantee the accused’s right to notice of the charges. Id. at 4 (referring to the accused’s “Sixth Amendment and due process right to notice”); see Cole v. Arkansas, 333 U.S. 196, 201 (1948) (“No principle of procedural due process is more clearly established than that notice of the specific charge, and a chance to be heard in a trial of the issues raised by that charge, if desired, are among the constitutional rights of every accused in a criminal proceeding in all courts, state or federal.”). ↩
  2. Bartell v. United States, 227 U.S. 427, 431 (1913) (“It is elementary that an indictment, in order to be good under the Federal Constitution and laws, shall advise the accused of the nature and cause of the accusation against him, in order that he may meet the accusation and prepare for his trial, and that, after judgment, he may be able to plead the record and judgment in bar of further prosecution for the same offense.”); Burton v. United States, 202 U.S. 344, 372 (1906); United States v. Simmons, 96 U.S. 360, 362 (1878); United States v. Cruikshank, 92 U.S. 542, 544, 558 (1876); cf. United States v. Van Duzee, 140 U.S. 169, 173 (reasoning that the Sixth Amendment does not require the government to proactively give a copy of the indictment to the accused, because the accused may always request a copy from the court at government expense and often “the defendant does not desire a copy, or pleads guilty to the indictment upon its being read to him; and in such cases there in no propriety in forcing a copy upon him and charging the government with the expense”). ↩
  3. Russell v. United State, 369 U.S. 749, 766 (1962). ↩
  4. Id. at 767–68. ↩
  5. Lopez, 574 U.S. at 5–6. ↩
  6. Id. at 6. ↩
  7. Id. ↩
  8. See FED. R. CRIM. P. 7(c) (governing the “nature and contents” of charging documents in federal criminal cases); 5 WAYNE R. LAFAVE ET AL., CRIMINAL PROCEDURE § 19.2(C) (4th ed. 2020) (discussing notice requirements imposed by Rule 7 and counterpart state provisions that are more robust than Sixth Amendment requirements). ↩
  9. See Gannett Company, Inc. v. DePasquale, 443 U.S. 368, 379 (1979) (“The Sixth Amendment, applicable to the States through the Fourteenth, surrounds a criminal trial with guarantees such as the rights to notice, confrontation, and compulsory process that have as their overriding purpose the protection of the accused from prosecutorial and judicial abuses.”); Lopez, 574 U.S. at 5–6 (analyzing Sixth Amendment notice claim on collateral review of state court conviction). ↩