By the time the United States Constitution and the Bill of Rights were drafted and ratified, the institution of trial by jury was almost universally revered, so revered that its history had been traced back to Magna Carta.42 The jury began in the form of a grand or presentment jury with the role of inquest and was started by Frankish conquerors to discover the King's rights. Henry II regularized this type of proceeding to establish royal control over the machinery of justice, first in civil trials and then in criminal trials. Trial by petit jury was not employed at least until the reign of Henry III, in which the jury was first essentially a body of witnesses, called for their knowledge of the case; not until the reign of Henry VI did it become the trier of evidence. It was during the Seventeenth Century that the jury emerged as a safeguard for the criminally accused.43 Thus, in the Eighteenth Century, Blackstone could commemorate the institution as part of a "strong and twofold barrier . . . between the liberties of the people and the prerogative of the crown" because "the truth of every accusation .... [must] be confirmed by the unanimous suffrage of twelve of his equals and neighbors indifferently chosen and superior to all suspicion."44 The right was guaranteed in the constitutions of the original 13 States, was guaranteed in the body of the Constitution45 and in the Sixth Amendment, and the constitution of every State entering the Union thereafter in one form or another protected the right to jury trial in criminal cases.46 "Those who emigrated to this country from England brought with them this great privilege 'as their birthright and inheritance, as a part of that admirable common law which had fenced around and interposed barriers on every side against the approaches of arbitrary power."'47
39 Gannett Co. v. DePasquale, 443 U.S. 368 (1979).
40 Richmond Newspapers v. Virginia, 448 U.S. 555 (1980); Globe Newspaper Co. v. Superior Court, 457 U.S. 596 (1982). See also Gannett Co. v. DePasquale, 443 U.S. 368, 397 (1979) (Justice Powell concurring).
41 Press-Enterprise Co. v. Superior Court, 478 U.S. 1 (1986). See also First Amendment discussion, "Government and the Conduct of Trials."
42 Historians no longer accept this attribution. Thayer, The Jury and Its Development, 5 HARV. L. REV. 249, 265 (1892), and the Court has noted this. Duncan v. Louisiana, 391 U.S. 145, 151 n.16 (1968).
43 W. FORSYTH, HISTORY OF TRIAL BY JURY (1852).
44 W. BLACKSTONE, COMMENTARIES ON THE LAWS OF ENGLAND 349-350 (T. Cooley, 4th ed. 1896). The other of the "two-fold barrier" was, of course, indictment by grand jury.
45 In Art III, § 2.
46 Duncan v. Louisiana, 391 U.S. 145, 153 (1968).
47 Thompson v. Utah, 170 U.S. 343, 349-50 (1898), quoting 3 J. STORY, COMMENTARIES ON THE CONSTITUTION OF THE UNITED STATES 1773 (1833).
"The guarantees of jury trial in the Federal and State Constitutions reflect a profound judgment about the way in which law should be enforced and justice administered. A right to jury trial is granted to criminal defendants in order to prevent oppression by the Government. Those who wrote our constitutions knew from history and experience that it was necessary to protect against unfounded criminal charges brought to eliminate enemies and against judges too responsive to the voice of higher authority. The framers of the constitutions strove to create an independent judiciary but insisted upon further protection against arbitrary action. Providing an accused with the right to be tried by a jury of his peers gave him an inestimable safeguard against the corrupt overzealous prosecutor and against the compliant, biased, or eccentric judge.... [T]he jury trial provisions . . . reflect a fundamental decision about the exercise of official power—a reluctance to entrust plenary powers over the life and liberty of the citizen to one judge or to a group of judges. Fear of unchecked power . . . found expression in the criminal law in this insistence upon community participation in the determination of guilt or innocence."48
Because "a general grant of jury trial for serious offenses is a fundamental right, essential for preventing miscarriages of justice and for assuring that fair trials are provided for all defendants," the Sixth Amendment provision is binding on the States through the due process clause of the Fourteenth Amendment.49 But inasmuch as it cannot be said that every criminal trial or any particular trial which is held without a jury is unfair,50 it is possible for a defendant to waive the right and go to trial before a judge alone.51
48 Duncan v. Louisiana, 391 U.S. 145, 155-56 (1968). At other times the function of accurate factfinding has been emphasized. E.g., McKeiver v. Pennsylvania, 403 U.S. 528, 543 (1971). While federal judges may comment upon the evidence, the right to a jury trial means that the judge must make clear to the jurors that such remarks are advisory only and that the jury is the final determiner of all factual questions. Quercia v. United States, 289 U.S. 466 (1933).
49 Duncan v. Louisiana, 391 U.S. 145, 158-59 (1968).
Last modified: June 9, 2014