Michael Jackson's Jury

"The Trial of all Crimes, except in Cases of Impeachment, shall be by Jury."

The Constitution didn't say much about individual rights until the Bill of Rights was added in 1791. Yet it did guarantee the right to trial by jury, an idea inherited from British common law dating back to the Middle Ages. From at least 1215 on, the Magna Carta protected English nobleman from being punished "except by lawful judgment of [their] peers."

By colonial times, all "freeborn Englishmen"--including those in America--assumed the right to be tried by their peers, rather than simply by the king's judges. In 1774, the First Continental Congress declared that British subjects in America were entitled to "the great and inestimable privilege of being tried by peers of the vicinage." Two years later, the Declaration of Independence condemned King George III for "depriving us . . . of the benefits of Trial by Jury."

The 6th Amendment

"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."

Above and beyond Article III's guarantees, the 6th Amendment guarantees juries that are both impartial and local. The logic behind the impartiality requirement is clear--a biased jury can't give a fair hearing. Courts generally conform to the requirement in two ways. First, they draw juries from pools of citizens that must, by law, accurately represent the community. Second, they select jurors from the pool carefully, through the process known as "voir dire" (French for "to speak the truth").

During voir dire, attorneys from both sides question prospective jurors to discover if they are biased. Those found to be biased are generally excluded "for cause." In many cases, each side can also exclude a certain number of prospective jurors for no cause at all, through what are called "peremptory challenges" (though they can't legally discriminate on the basis of race or gender).

The local jury requirement was partly a response to pre-Revolutionary War cases in which the British had shipped colonists to England to stand trial before unsympathetic juries. It was also part of common law precedent. In a draft of the 6th Amendment, James Madison wrote that juries should be made up of "freeholders of the vicinage" (common law parlance for "neighborhood property owners").

The 7th Amendment

"In Suits at common law, where the value in controversy shall exceed twenty dollars, the right of trial by jury shall be preserved, and no fact tried by a jury, shall be otherwise re-examined in any Court of the United States, than according to the rules of the common law."

Though we now associate juries more with criminal cases, they were used to try civil cases first. The 7th Amendment guarantees that their use in such cases will continue--at least as long as people continue to sue each other for sums exceeding $20 (which, when the Bill of Rights was written, was worth about $400 in today's money).

The 7th Amendment also explicitly preserves a common law tradition in which juries, not judges, decide the facts of cases. Judges answer questions of law, not questions of fact. For example, a judge determines which evidence is legally admissible in a case (a question of law), but a jury decides what that evidence actually proves (a question of fact). Obviously, the judge is the legal expert. But the power to determine guilt or innocence--not to mention punitive damages--belongs to the community itself.

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