Rights of the Criminal Defendant in Utah

Trial by Jury and Jury Independence

In Utah we enjoy the sacred right of trial by jury. Sometimes this is taken for granted, but it should not be. Without juries, the government would be free to do just about whatever it wants to its citizens.

Consider these quotes:

"Trial by jury is essentially a child of freedom. . . . It is the greatest safeguard of liberty, and the greatest protector of its privileges."
– Sam M. Wolfe, A Defense of the Jury (1911)

"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."
– Thomas Jefferson (1801)

"Trial by jury must and shall be preserved! Amidst the throng of crude sacrilegisms . . . that assail us nowadays in the legal sanctuary, none is more shortsighted, none more dangerous, than the proposal to abolish trial by jury."
– John Henry Wigmore (1925)

"All attempts to tinker or tamper with trial by jury in civil causes should be discouraged as disastrous to the public welfare."
– ABA President Joseph Coate (1898)

In London in 1670, William Penn and William Mead – two Quakers – faced indictments for preaching to an illegal assembly on a city street. The Lord Mayor of London, Sir Samuel Starling charged the two with Disturbing the King’s Peace. Even though hundreds of years have passed since then, such ridiculous accusations are still prosecuted by governments in the United States.

During the trial, to silence Penn from his questions and objections, the judge locked him in the corner of the room so that he could not confront his accusers and cross-examine them. After hearing the evidence, the judge instructed the jury, and they returned a verdict of not guilty, finding that Penn and Mead had spoken on a city street, but not in violation of the law.

Outraged, the judge ordered the jury to exit and return with a "proper verdict" claiming: "You had as good said nothing." When that failed, the judge commanded the jury be confined to "the hole" in Newgate Prison. The judge had the jury foreman, Edward Bushel, held without food or water until they changed their minds.

When the jury was brought back to the court, the jury again returned a not guilty verdict. Overcome with anger, the judge declared: "You shall be locked up without meat, drink, fire, and tobacco. You shall not think thus to abuse the court; we will have a verdict, by the help of God, or you shall starve for it." When, for the third time, the jurors returned with the not guilty verdict, the judge threatened to cut the foreman’s throat if he would not return "a positive verdict," and sent the jury back into "the hole" – this time without the decency of providing them a chamber pot.

The jury returned a fourth time, and then a fifth time, never relenting. Finally, Judge Starling imposed a fine of 40 shillings on each juror and imprisoned them until the fines were paid. As for Penn and Mead, the judge ordered them to place their hats on their heads. When they complied, the judge likewise sent them to prison for wearing their hats in court and sent them to Newgate until they paid fines of 40 shillings each.

They all appealed their commitments to Lord John Vaughn of the Court of Common Pleas. After two months of imprisonment, Lord Vaughn, the Chief Justice of London, issued a Writ of Habeas Corpus, a first of its kind, releasing the prisoners and establishing that henceforth the independence and security of English jurors. The writ expressed that jurors could not be coerced or punished for their verdicts.

Shortly afterward, William Penn migrated to America to settle on the grant of land given him by the King of England. Interestingly, a century later, our Founding Fathers would declare our independence from England, condemning George III, among other things, for "depriving us, in many cases, of the benefits of trial by jury" in the Declaration of Independence.

During the modern times of the United States, the Courts have continued to remind us the importance of the trial by jury. Sadly, juries have been abolished in juvenile law cases in Utah, and nearly everywhere else, and for traffic tickets and all "administrative matters", even though the decisions of the judges can be worse than a criminal conviction. Judges can hold people in "contempt of court" for just about anything that offends him or her, too. As you can see, without juries, there is great opportunity for judges to do whatever they want. Fortunately, most judges are not lunatics, and don’t abuse this power, but some do.

The ratified Bill of Rights of the Constitution guarantees the right of a trial by jury in criminal cases in the Sixth Amendment. In Duncan v. Louisiana, 391 U.S. 145, 88 S.Ct. 1444, 20 L.Ed.2d 491 (1968), that guarantee was expanded to apply to the state through the Fourteenth Amendment. It is fundamental in order for the jury system to work properly it must comprise of a fair cross section of the community on venires, panels, of lists from which petit juries are drawn is essential to the fulfillment of the Sixth Amendment’s guarantee of an impartial jury trial in criminal cases.

It was not until 1940 that the door to jury service was opened to expand across racial lines in Smith v. Texas, 311 U.S. 128, 130, 61 S.Ct. 164, 165, 85 L.Ed.2d 84 (1940), that "(i)t is part of the established tradition in the use of juries as instruments of public justice that the jury be a body truly representative of the community." The exclusion of racial groups from jury service was said to be "at war with our basic concepts of a democratic society and a representative government." A state jury system that resulted in systematic exclusion of blacks as jurors was therefore held to violate the Equal Protection Clause of the Fourteenth Amendment. Glasser v. United States, 315 U.S. 60, 85 86, 62 S.Ct. 457, 472, 86 L.Ed. 680 (1942), in the context of a federal criminal case and the Sixth Amendment’s jury trial requirement, stated that "(o)ur notions of what a proper jury is have developed in harmony with our basic concepts of a democratic system and representative government," and repeated the Court’s understanding that the jury "‘be a body truly representative of the community’ . . . and not the organ of any special group or class."

I can tell you from personal experience that the poor and downtrodden are far more likely to believe a common man or woman over a cop. We need minorities and the poor on our juries!

Some years later in Carter v. Jury Comm’n, 396 U.S. 320, 330, 90 S.Ct. 518, 524, 24 L.Ed.2d 549 (1970), the Court observed that the exclusion of blacks from jury service because of their race "contravenes the very idea of a jury – a body truly representative of the community" (quoting from Smith v. Texas). At about the same time it was contended that the use of six-man juries in noncapital criminal cases violated the Sixth Amendment for failure to provide juries drawn from a cross section of the community, Williams v. Florida, 399 U.S. 78, 90 S.Ct. 1893, 26 L.Ed.2d 446 (1970). In the course of rejecting that challenge, the Supreme Court said that the number of persons on the jury should "be large enough to promote group deliberation, free from outside attempts at intimidation, and to provide a fair possibility for obtaining a representative cross-section of the community." Id., at 100, 90 S.Ct. at 1906. In like vein, in Apodaca v. Oregon, 406 U.S. 404, 410—411, 92 S.Ct. 1628, 1633, 32 L.Ed.2d 184 (1972) (plurality opinion), it was said that "a jury will come to such a (commonsense) judgment as long as it consists of a group of laymen representative of a cross section of the community who have the duty and the opportunity to deliberate . . . on the question of a defendant’s guilt." Similarly, three Justices in Peters v. Kiff, 407 U.S., at 500, 92 S.Ct., at 2167, observed that the Sixth Amendment comprehended a fair possibility for obtaining a jury constituting a representative cross section of the community.

The Supreme Court then expanded their position in Taylor v. Louisiana, 419 U.S. 522, 530 (1975), to include the selection of women to sit on juries. In rendering this decision, Justice Byron White wrote, "The purpose of a jury is to guard against the exercise of arbitrary power – to make available the common sense judgment of the community as a hedge against the overzealous or mistaken prosecutor and in preference to the professional or perhaps over-conditioned or bias response of a judge."

Amazing, isn’t it? We need woman on juries for obvious reasons: the more diverse the jury, the better the thinking will be.

Justice Story, in an exposition of the Constitution of the United States, observed that juries stand not only between the power of government and the citizen accused, but also between the accused and the tides of popular sentiment. "The great object of a trial by jury, in criminal cases, is to guard against a spirit of oppression and tyranny on the part of rulers, and against a spirit of violence and vindictiveness on the part of the people," Story wrote. "Indeed, it is often more difficult to guard against the latter, than the former."

It’s interesting to note that Utah was the first state to allow women to sit on juries – since 1898. It’s also an interesting fact that the number of jurors in criminal cases is 0, 4, 6, 8 or 12. In Juvenile Court and it traffic offenses you cannot receive a trial by jury at all. See Utah Code Ann. § 78B-1-104 (1953, as amended). In misdemeanor cases you are entitled to a jury of four if the offense is a Class B or less or six jurors if the offense is punishable by a year in jail. A trial by jury will only be allowed in the case of a misdemeanor offence if you make a proper "written demand" for a jury. See Rule 17, Utah Rules of Criminal Procedure. Article I, Section 10 of the Utah Constitution requires that in felony cases, you are entitled to at least eight jurors, unless the charge is a capital offense. In the case of a capital offense, you are entitled to a twelve-man jury.

God save the juries!