Trial by Jury

Trial by Jury in the United States

Introduction to Trial by Jury

In civil cases the right to a trial by jury may, in most jurisdictions, be waived. In some states the defendant may waive the right to be tried by a jury even in criminal cases, although in many jurisdictions the rule obtains that in all cases involving the commission of felonies the defendant must be tried by a jury.” (1)

Trial by Jury in the United States Constitution

The 6th Amendment also says that a person accused of a federal crime must be tried “by an impartial jury.” This guarantee reinforces an earlier one set out in Article III, Section 2. The right to trial by jury is also binding on the States through the 14th Amendment’s Due Process Clause, but only in cases involving “serious” crimes, Duncan v. Louisiana, 1968. In Baldwin v. New York, 1970, the Court defined serious crimes as those for which imprisonment for more than six months is possible. The trial jury is often called the petit jury. Petit is the French word for “small.”

The 6th Amendment adds that the members of the federal court jury must be drawn from “the State and district wherein the crime shall have been committed, which district shall have been previously ascertained by law.” This clause gives the defendant any benefit there might be in having a court and jury familiar with the people and problems of the area.

A defendant may ask to be tried in another place–seek a “change of venue”–on grounds that the people of the locality are so prejudiced in the case that an impartial jury cannot be drawn. The judge must decide whether a change of venue is justified.

A defendant may also waive (put aside or relinquish) the right to a jury trial. However, he or she can do so only if the judge is satisfied that the defendant is fully aware of his or her rights and understands what that action means. In fact, a judge can order a jury trial even when a defendant does not want one, One Lot Emerald Cut Stones and One Ring v. United States, 1972. If a defendant waives the right, a bench trial is held. That is, a judge alone hears the case. (Of course, a defendant can plead guilty and so avoid a trial of any kind.)

In federal practice, the jury that hears a criminal case must have 12 members. Some federal civil cases are tried before juries of as few as six members, however. Several States now provide for smaller juries, often of six members, in both criminal and civil cases.

In the federal courts, the jury that hears a criminal case can convict the accused only by a unanimous vote. Most States follow the same rule. The 14th Amendment does not say that there cannot be juries of fewer than 12 persons, Williams v. Florida, 1970, but it does not allow juries of fewer than six members, Ballewv. Georgia, 1978. Nor does it prevent a State from providing for a conviction on a less than unanimous jury vote, Apodaca v. Oregon, 1972. But if a jury has only six members, it may convict only by a unanimous vote, Burch v. Louisiana, 1979.

In a long series of cases, dating from Strauder v. West Virginia, 1880, the Supreme Court has held that a jury must be “drawn from a fair cross section of the community.” A person is denied the right to an impartial jury if he or she is tried by a jury from which members of any groups “playing major roles in the community” have been excluded, Taylor v. Louisiana, 1975.

In short, no person can be kept off a jury on such grounds as race, color, religion, national origin, or sex. As the Court has put it in several recent decisions on the point: Both the 5th and the 14th amendments mean that jury service cannot be determined by “the pigmentation of skin, the accident of birth, or the choice of religion,” Miller-El v. Dretke, 2005.

According to the Encyclopedia of the American Constitution, the right to jury trial is provided in three clauses of the Constitution of the United States. Jury trial in federal criminal cases is required by Article III, which is otherwise given to defining the role of the federal judiciary.

The Right to Trial by Jury Explained


See Also

  • Criminal Law
  • Criminal Procedure


Notes and References

See Also

Speed Trial
Public Trial
Right to an Adequate Defense

Guide to Trial by Jury

Trial by Jury: Open and Free Legal Research of US Law

Federal Primary Materials

The U.S. federal government system consists of executive, legislative, and judicial branches, each of which creates information that can be the subject of legal research about Trial by Jury. This part provides references, in relation to Trial by Jury, to the legislative process, the federal judiciary, and the primary sources of federal law (cases, statutes, and regulations).

Federal primary materials about Trial by Jury by content types:

Laws and Regulations

US Constitution
Federal Statutory Codes and Legislation

Federal Case Law and Court Materials

U.S. Courts of Appeals
United States courts of appeals, inclouding bankruptcy courts and bankcruptcy appellate panels:

Federal Administrative Materials and Resources

Presidential Materials

Materials that emanate from the President’s lawmaking function include executive orders for officers in departments and agencies and proclamations for announcing ceremonial or commemorative policies. Presidential materials available include:

Executive Materials

Federal Legislative History Materials

Legislative history traces the legislative process of a particular bill (about Trial by Jury and other subjects) for the main purpose of determining the legislators’ intent behind the enactment of a law to explain or clarify ambiguities in the language or the perceived meaning of that law (about Trial by Jury or other topics), or locating the current status of a bill and monitoring its progress.

State Administrative Materials and Resources

State regulations are rules and procedures promulgated by state agencies (which may apply to Trial by Jury and other topics); they are a binding source of law. In addition to promulgating regulations, state administrative boards and agencies often have judicial or quasi-judicial authority and may issue administrative decisions affecting Trial by Jury. Finding these decisions can be challenging. In many cases, researchers about Trial by Jury should check state agency web sites for their regulations, decisions, forms, and other information of interest.

State rules and regulations are found in codes of regulations and administrative codes (official compilation of all rules and regulations, organized by subject matter). Search here:

State opinions of the Attorney General (official written advisory opinions on issues of state law related to Trial by Jury when formerly requested by a designated government officer):

Tools and Forms

Law in Other Regions

*This resource guide is updated frequently. However, if you notice something is wrong or not working, or any resources that should be added, please notify us in any of the "Leave a Comment" area.

Leave a Comment