THE RIGHT TO TRIAL BY JURY
Although relatively few criminal cases are decided through trials,—and even fewer through jury trials, since many trials are “bench trials” presided over by a judge without a jury—trials remain important in the criminal justice process. Prosecutors and defense attorneys look at trials to inform themselves about what kinds of offers and agreements to make in the plea bargaining process. During plea negotiations, both sides are thinking, “but if we go to trial, what might a jury think about the evidence?” If, by observing jury trials that have occurred in a particular court, a prosecutor believes, “a jury will definitely find the defendant guilty based on the evidence that we have,” it enbles the prosecutor to take a tougher position in the plea negotiations. If, by observing jury trials that have occurred in a particular court, a defense attorney believes, “it is really uncertain whether a jury will convict based on the available evidence,” the defense attorney may use that information as an argument in plea negotiations to seek a more favorable outcome for the client. Thus, jury trials do not merely determine the fates of a small percentage of criminal defendants; they provide information that influences plea bargaining in the larger majority of cases that result in guilty pleas.
The words of the 6th Amendment say, “In all criminal prosecutions, the accused shall enjoy…” and then lists various rights, including the right to trial by jury. Yet, the Supreme Court has not followed the literal words of the Constitution. In certain kinds of criminal cases, defendants may be required to accept a bench trial rather than a jury trial (see Lewis v. United States, 1996, that follows).
Other issues concerning constitutional rights for criminal jury trials involve the selection and composition of the jury. Americans often think the Constitution gives them a right to a jury “of their peers.” In fact, there is no right for defendants to have people like themselves demographically (i.e., race, age, gender, religion, etc.) on a jury. The phrase “jury of peers” goes back to the Magna Carta, a document about rights from 1215 in England. It actually means a jury of equal citizens rather than a jury of people who share the defendant’s characteristics. Instead, under the 6th Amendment, the Supreme Court says that defendants have a right to a jury drawn from a “fair cross section” of the community.
Discrimination should not occur in jury selection. However, there is a long history of discrimination in jury selection in the United States, especially with respect to race as prosecutors in many places have sought to benefit from having all white juries judge African American defendants. In addition, women were long excluded from jury duty. Cases still arise alleging that people are unfairly excluded from participation in jury service for racial reasons (see Georgia v. McCollum, 1992, and Purkett v. Elem, 1995, that follow).
In Flowers v. Mississippi (2019), for example, the Supreme Court found that a prosecutor intentionally engaged in racial discrimination to remove African Americans from the jury pool by asking an African American potential many more questions in the jury selection process than those asked of potential white jurors.