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April 2017 Policy Study, Number 17-6


A Commentary on the Bill of Rights


Part 13



Amendment VI:


This amendment seems to grant a disproportionate amount of rights to the criminal rather than to society.  But we would do well to remember the philosophy of our Founders on this matter.  While you are reading the essay on this amendment, bear that philosophy in mind at all times.  The accused is always presumed to be innocent until the verdict of a jury of his peers declares him “guilty.”  I fear this doctrine of our original system of justice is becoming less relevant with each passing day.  In the event it becomes nonfunctional, we shall all be worse for it.


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 . . .


This clause guarantees the right to a trial in“criminal prosecutions” only.  It does not guarantee that right in any other type of prosecution, such as civil or military.  This is another instance of when what is not said is almost as important as what is said.  This clause does not constitutionally preclude the right to a trial in any other instance; but does constitutionally require a trial by jury in a criminal prosecution.  It is still sometimes possible to obtain a jury trial in other prosecutions (see Article 3, Section 2.); but you need to be aware that every day there is more movement to abstain from granting a trial by jury.


The reasons expressed for doing so are time and expense.  There is some truth to the matter; but this particular constitutional protection is so precious in the defense of our liberties that we ought to be extremely wary of relinquishing this protection, lest it becomes more and more fashionable to bypass it and in due time we lose it except in the case it is constitutionally mandated . . . and maybe then also.  You also need to be aware that more and more of our statutes fall in categories other than criminal.  Our Legislators are promulgating civil statutes at an ever-quickening rate of increase.  They multiply like the proverbial bunnies.  Each of these statutes increases the likelihood of our falling prey to an infraction of civil statute and also the likelihood of facing the consequences of said infraction without the benefit of trial by jury.  This is an area that demands our immediate and lasting attention.


The guarantee of a speedy and public trial is a further protection that is aimed at preventing the same sort of abuses as that abuse of the writ of habeas corpus.  This writ is designed to thwart any government authority from imprisoning an individual for any illegitimate reason whatsoever, or for no reason.  It demands that either a justifiable charge be brought against the individual, or he must be immediately freed.  Where the writ ends, the guarantee of a speedy and public trial begins.  Once a charge is brought, the “speedy” portion of the clause is to ensure there is no dalliance to the proceedings and that the individual is not imprisoned ad nauseam, relying on the whims of the authorities for his eventual release.


History has shown this type of treatment has often been reserved for individuals who are at odds with the authorities then in power.  It was applied whether or not an individual had broken a lawful statute.  They merely had to be in disagreement with government to be subject to this treatment.  Our Founders did not want this to happen in our nation.  The “public” portion of this clause is to ensure a result based on justice and not merely the predilections of those in power.  In essence, “we the people,” though we do not have direct input in the proceedings, become a jury at large.  We know that if an injustice can be done to an individual, it can in turn be done to us.  If “we the people” will pay close attention to these proceedings, exercise proper judgment, and be willing to exercise our right and power to discharge any and all public officials who infringe on our liberties, we will maintain our liberties and be able to bequeath them to our posterity.  If we do not, we will lose them.  That would, indeed, be a sad legacy.


The concept of a trial by an“impartial jury of the state and district (your peers) wherein the crime shall have been committed” has a long and distinguished history.  It can be traced back at least as far as 1250 A.D. with the signing of the Magna Charta (Magna Carta).  In my opinion, it is by far the strongest protection bequeathed to us by our Founders against an oppressive government — short of the use of arms.  Trial by jury was already provided for in Article III, Section 2.  In fact, it was the only right provided for in both the Constitution and the Bill of Rights.  The fact that they felt it necessary to further protect the trial by jury in the Bill of Rights should lead us to believe it was of extraordinary importance to them also.  Unfortunately for us, today the protection provided by a trial by jury has been greatly diminished.  Yes, we still sometimes (it’s not really “guaranteed” anymore) have access to a jury trial; but we cannot let our thoughts stop at only the word“jury.”  The importance of the word“impartial” cannot be overstated.


Suppose a young man is on trial for the murder of a young woman.  Further, suppose that among those called to the jury selection process are the murdered woman’s mother and the accused man’s brother.  Is it possible that either of these two potential jurors could render an impartial verdict?  Maybe it’s possible; but if you know anything about human nature, you probably consider it highly unlikely.  If either the defense or prosecuting attorney discovers these circumstances, they can request that these persons be stricken from the jury pool.  This is known as a “challenge for cause.”  This type of challenge is always in order; that is, they are, for all practical purposes, unlimited.  If there is a legitimate cause supplied by the attorney, these challenges are almost always, if not always, upheld by the judge.  This is as it should be.  The search for justice would be severely impaired by the inclusion on the jury of either of the aforementioned jurors.


However, in the jury-selection process, there is also a second type of challenge known as the “preemptory challenge.”  In most cases today, under rules adopted by the given court, both the defense and prosecuting attorneys are granted the ability to exercise a specified number (limited, often times six) of preemptory challenges.  An attorney can use this type of challenge to have any given potential juror stricken from the jury pool for any arbitrary reason or no reason.  Nobody really knows because it is not necessary for the attorney to even state a reason.  For whatever reason, he just does not want them on the jury, and that’s good enough.  If we are in search of justice, this probably is not as it should be.  This has encouraged a fast-developing industry in the “science” of jury selection.  Attorneys pay very good money to the folks in this industry.  They pay to have them develop the profile of the juror that would be most helpful in delivering a verdict in the case that is in their favor, and also a profile of the juror who would adversely affect their cause.


Suppose this industry, or the original attorneys themselves for that matter, discover in the above case that women would be less likely to convict the defendant than would men, or vice versa.  Further suppose that, due to this knowledge and an ability to manipulate the selection process, one side of the case is able to load the jury with a preponderance of jurors that is favorably disposed to its cause.  Does this happen?  Undoubtedly.  Is the jury impartial?  Unlikely.  Who benefits from this state of affairs?  Sometimes the defense, sometimes the prosecution.  I don’t know who gains or suffers most; but I am reasonably sure that justice suffers from these goings-on.  And I am further concerned that with the manipulative nature of this beast, our liberties are less protected than they might otherwise be.  Further, it impairs the dispensation of true justice.


Neither is a jury of your peers, consisting of persons from within the state and district where the crime was committed, to be taken likely.  It seems to be nigh unto impossible to impanel a true jury of your peers today.  Too many people do not want to take time out of their own schedule to sit on a jury.  Consequently, we often end up with a jury that does not represent an authentic cross section of the populace.  While this in and of itself is not a fatal flaw, it does tend to diminish the effectiveness of the jury system.  If we would wish for the best possible jury trial for ourselves, we should wish the same for any other defendant.  This means we must all willingly take our turn on the jury.  There is no better substitute.


Because there is no better substitute does not mean there are not substitutes being proposed.  Even now there are those agitating for the use of professional juries.  These juries would be comprised of individuals who have some level of training in the law beyond what most of us would have, and they would receive compensation from government for their service.  It is suggested that this type of jury is necessary because the average individual does not have a proficient understanding of the law and therefore cannot deliver a proper verdict.  At times, there is truth in this allegation; but this change to our system would not be the proper response.  If the law has become so voluminous, convoluted, and complicated that the average individual cannot render a judgment based on the law, pray tell how, in good conscience, can we then hold the average individual accountable to it?


The answer to the problem is not to change the jury system, but to bring the law back to an arrangement that is comprehensible to the average individual.  I have an uncomfortable suspicion that the jumble of statutes we currently operate under serves less to protect us than to confuse, befuddle, stymie, and manipulate “we the people.”  A professional jury sitting at the pleasure of government could easily be improperly used to amplify the illicit actions of a government with a bent for further control of “we the people.”  Please do not hold the mistaken belief that it can’t happen in America.  It can happen in any country where the citizen forgets that it is he who should hold the reins of power; but through the disuse and subsequent atrophy of that power, he unknowingly relinquishes it to those who would wield it with relish to his own disadvantage.  The jury of one’s peers, with the rightful authority to judge both the law and the fact, is the very last peaceful restraint on government.  It will be to the sorrow of our children and grandchildren that we fail to properly exercise this legacy of our Founders.


Thomas Jefferson, the man who was to become the third President of the United States, penned these words in the year of 1879 to Thomas Paine:


I consider trial by jury as the only anchor ever yet imagined by man, by which a government can be held to the principles of its constitution.


The only possible way Mr. Jefferson’s statement could be true is if he considered it to be within the purview of the jury to pass judgment on the “laws” and policies, which were implemented by government, and then all must respect the jury’s judgment.  That includes the government itself.  If these two conditions are not met, Mr. Jefferson’s premise fails.  My task in this essay is to show that Mr. Jefferson, as well as our other Founders, did indeed contemplate that the jury was to perform this function in the maintenance of our liberty.




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