Bring Back the Jury

...It was these concerns, among others , that came before the First Congres s when it convened in Philadelphia...

...Madison had been converted to th e need for a Bill of Rights during the ratification campaign and made it th e first order of business...

...They are carefully following the instructions of a judiciary tha t has come to see the courts as a fo-rum for undoing life's misfortunes and redistributing the nation's wealth...

...WT word at criminal trials...

...Wheneve r differences arose, the legislature and that other popular institution—the jury—had stood the Colonists in good stead...

...The emphasis here is on the informa-tion that is to be brought before th e jury...

...He accused King George of "quartering large bodies of troops among us [and ] protecting them, by a mock trial, fro m Punishment for any Murders which they should commit on the Inhabitant s of these States...

...On the other hand, the Colonist s found that when American jurie s reached verdicts on local crimes, the crown-appointed judiciary would over-ride the proceedings and impose it s own will...

...I have talked to attorneys who have spent decades in the criminal justic e system without ever hearing of th e Seventh Amendment...

...The last clause adds that "privat e property [shall not] be taken for public use without just compensation ." (The progression may seem somewhat dis-jointed, but the First Congress was , after all, a committee . ) The Sixth Amendment expanded on Article III of the Constitution : "In all criminal prosecutions, the accused shall enjoy the right to a speedy and public trial, by an impartial jury of the Stat e and district wherein the crime shall have been committed . . . and to be in -formed of the nature and cause of the accusations ; to be confronted with th e witnesses against him ; to have com-pulsory process for obtaining witnesses in his favor, and to have the assistance of counsel for his defense...

...Only under the mos t bizarre misinterpretations could thes e clauses be read to mean that a criminal has a right to escape detection and that the public has no right to seek out the truth in a criminal matter...

...When the Colonists started defying the British Stamp Act of 1765, they once again learned the value of loca l juries...

...There, before unsympathetic juries, they were almost always convicted...

...The judge specifically instructed the jury to bring back a verdict of guilty, but the ran-domly selected jury of citizens onc e again stood its ground and voted acquittal—to the immense displeasure of the British authority...

...Still, many people were unsatisfied . In particular, they worried that federa l judges might be tempted to intervene in state criminal proceedings...

...This became such a common grievance that Jefferson wrote it into the Declaration of Independence...

...No person shall be held to answe r for a capital, or otherwise infamou s crime, unless on a presentment or in-dictment of a grand jury...

...The result is a further decline o f the jury's prestige and powers...

...It is obviously meant to cover all jury proceedings . The continuously expressed concern of the Founding Fathers throughout the adoption of the Bill of Rights was that judges should be restrained from retrying the facts in both criminal and civil cases . What ever happened to this jurycentered vision of a criminal justice system...

...As Broadus and Louise Mitchell wrote i n ment then prohibits double jeopardy, and holds that no person "shall b e compelled in any criminal case to be a witness against himself" (the basis o f Miranda), nor "deprived of life, liber-ty, or property without due process o f law...

...Thus, the criminal portions of the Bill of Rights were all built around the framework of the rights of jury...

...In the famous freedom-of-theThe Founding Fathers had a very simpl e formula for avoiding abuses in the criminal justice system : Juries should have the last of impeachment, shall be by jury...

...Other particular concerns also mirrored historical experiences . The Fourth Amendment's strictures on searches and seizures, for example, arose in reac -tion to infamous "writs of assis-tance"—general search warrants speci-fying no particular crime which th e British had used to conduct house-to-house searches...

...Judges," they both responded without hesitation . The situation has become a vi-cious cycle...

...The amendment does no t suggest—as the courts currently claim—that criminal defendants must be given every conceivable benefit o f the doubt, and that a guilty person should benefit from inconsequential errors in criminal proceedings . The locus of attention is not the crimina l but the jury and its right to hear as much information as possible in deciding the case...

...As judges have ex-panded the legal concepts of liabili-ty, juries have been invited to give away ever-larger damage awards fo r less and less reason . But juries are not pulling these concepts out of thin air...

...press trial of John Peter Zenger, for ex-ample, two grand juries originally refused to bring indictments . The cas e went forward anyway under a rare "prosecutor's information...

...As a result, the federal courts were given original jurisdiction only in cases involving am bassadors, maritime issues, and in terstate disputes...

...I will simply quote it in full: "In suits at common law, where the value in controversy shall exceed twenty dollars, the right of trial by jury shall be preserved, and nofact tried by a jury shall be otherwise reexamined in any court of the United States, than accord ing to the rules of common law" (my emphasis...

...Thus, the delegates who came to Philadelphia for the Constitutiona l Convention in 1787 arrived with a firm conviction that the best way to avoi d abuses in the criminal justice syste m was to protect the prerogatives of loca l juries...

...All this endeared both the jury and the grand jury in the hearts of the people...

...Essentially, it was abolished during the Warren era...

...The wording of the amendment reflects a concern agains t random searches"the people shall be secure from unreasonable searches, an d no warrant shall be issued withou t specifying the places to be searched and the things to be seized" (my emphasis) . The Fifth Amendment began by lay-ing out the privileges of grand juries, which bring indictments under Englis h law...

...and such trial shall be held in the State where the said crimes have been com-mitted...

...On a recent tour of the Justice Department, I asked both Attorney General Edwi n Meese and Richard Willard, head of the Justice Department's civil divi-sion, whether they thought judges or juries were to blame for the insur-ance crisis...

...After reading the proposed Constitu-tion, Jefferson wrote Madison that h e would like to see "appeal in fact as well as law" specifically prohibited in the Bill of Rights...

...Article III states : "The trial of all crimes, except in cases A Biography of the Constitution (1964) , "The judicial power as it stood in th e Constitution gave special dissatisfac-tion in the states, where many believe d the federal courts would intrude, or, i n appealed cases, would override deter-minations of local juries...

...Faced with increasingly unreason -able verdicts, the appeals courts hav e become much more active in reduc-ing damages and overturning jur y verdicts—usually in complete disre-gard for the Seventh Amendment' s prohibition against retrying cases o n "the facts . " Indeed, many juries now award even larger damages wit h the certainty that the appeals court s are going to reduce them anyway...

...Only nine mentioned freedom o f speech...

...When Congress asked the state legislatures to propos e possible amendments to the Constitu-tion, all thirteen listed "trial by jury...

...Seeking convictions against pro-testors, the British parliament un-earthed an old statute from the era of Henry VIII which said that rebellin g colonists could be brought to England for trial...

...The amendTHE AMERICAN SPECTATOR AUGUST 1986...

...They never said a thing about it in law school...

...Juries are viewed as irresponsible, while ap -peals judges are the guardians o f common sense...

...The Court ac complished this through a doctrine called the "selective incorporation o f the Bill of Rights...

...Many noted the habit of appeals courts to retry cases on their facts, rather than limiting themselves to interpretations of the law...

...Another told me that the Seventh Amendmen t was adopted "so that English common law rather than French or Spanish la w would be established in the Louisian a Territory...

...Many judges and le-gal professionals now talk openly about restructuring the jury system or abolishing it altogether...

...It's a dead let ter," one told me...

...During the Constitutiona l debates, faith in the jury system wa s almost a byword . "I stand by this as I stand by trial by jury," proclaimed Madison at one point...

...It may have been used i n that way at some point, but that was certainly not the original intent . ) Other attorneys argue that because the clause comes after a description of trials it should apply only to civil trials . But the clause occurs at the climax of three long amendments dealing wit h criminal procedure...

...Then comes the Seventh Amend ment...

...As you may recall from the recen t controversy between Attorney Genera l Jury Liability One objection frequently raised against returning power to juries is that juries themselves are alread y responsible for the nation's in-surance crisis through huge damage -award giveaways . The truth is that juries are far less the cause of the problems than i s popularly perceived...