Trial By Jury Not Just a Guarantee, Also a Requirement

Here is an issue you don't see every day. The 9th U.S. Circuit Court of Appeals earlier this ruled that prosecutors had the right to veto a request by a group of sex assault defendants to waive their right to a jury and allow their case to be tried by a judge. In doing so, the federal appeals court said the trial judge, who had agreed to try the case himself because he did not believe the defendants could receive a fair trial in front of jury, had made a clear error of law.

The bottom line? If prosecutors feel that a jury is likely to be harsher to a defendant the judge would be they have the right to make it happen. Or, from the other perspective, a defendant's guarantee of a trial by jury isn't just a guaranteee-- in most cases, it's a requirement.

By Andrew Cohen |  October 5, 2006; 3:00 PM ET
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Andrew, are you a lawyer? Have you read this opinion? If so, I have difficulty even beginning to understand the infamatory nature of this blog entry.

This case is very clear. The courts, going back to a case called Singer v. United States have held that a jury trial is a critical element in our judicial system. That there may be cases where passion is so great that no jury could be impartial, but that such a case has never been identified.

What the Court means, in summary, is that the right to a jury trial is not just a right of the defendents, but a right of society. Strangely, this is not based on judicial activism or some desire to get harsher treatment from an inflamed public. It is part of the Federal Rules of Criminal Procedure. Right there in Rule 23 it states that the defendent is ENTITLED to a trial by jury AND it MUST be by jury UNLESS: 1) the defense consents, 2) the prosecution consents and 3) the judge consents. So this is not a Constitutional requirement, it is a rule of law enforced by our courts. (That is, someday someone -- here please read Congress -- might change it.)

Now as to this case, the defense, not the prosecution, is fishing. Basically they argue that no jury would listen to their argument: that the people involved in transporting children for sexual trade did not intend the children to be used for sexual trade, is very hard to believe in the face of the other evidence. And secondly, that the judge is so uncomfortable with the complexity of evidence he is afraid that he might rule incorrectly and thus prejudice the trial. (The judge later wrote a note essentially withdrawing thhe position that he was not competent to preside at this trial.)

Very often, even innocent people must be faced with implausible arguments such as yes I was there and yes that is my gun and yes mine are the only fingerprints at the crime scene and yes I hated the deceased, but really I was busy doing my homework and not only did not have time to kill this person, but I also didn't see who did it. Oh, and by the way, I don't have that particular homework because the dog ate it. Besides, technically, the deceased died of a heart attack, not a gunshot wound.

In the end the Apellate Court told the judge to do his job, and gave him a little guidance on how, using the Federal Rules of Evidence to mitigate inflamatory evidence, these defendents can get a fair trial.

Consider the reverse, where the defense turns on sympathy and passion to overturn the clear evidence of the prosecution's case. Sometimes the facts and the fates deal you a bad hand, and you have a choice there too, plead guilty or plea bargain, and throw youself on the mercy of the courts.

In summary: trial by jury is at the core of our system of justice and accepting a belief that juries cannot do their job even in difficult cases would so undermine our system of justice as to destory it. We must have faith in the trial by jury or we cannot do justice at all in the United States.

Posted by: Constitutionalist | October 6, 2006 09:05 AM

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