History of Juries

Laura I. Appleman, “The Lost Meaning of the Jury Trial Right,” 84 Indiana Law Journal 397 (2009), available at https://www.repository.law.indiana.edu/ilj/vol84/iss2/1

The author argues that the right to a jury trial was not originally thought of in terms of the individual criminal defendant, but instead was imagined to be a right belonging to the community. By looking at historical documents from early England, the Colonial period, and the Revolutionary War, the author concludes that the right to a jury trial was an important right that belonged to the community, and that the jury represented the community's ability to pass judgment on one of its own members. The article then suggests that this is an important discovery as a result of the Supreme Court's decisions in the Apprendi-Blakely line of cases. Because Apprendi and its progeny were based on the historical understanding of the Sixth Amendment and the jury trial right, the author believes it is important to have a proper understanding of how the jury trial right was actually understood in early America. She ultimately concludes that, when the jury trial right is understood in terms of importance to the community, such an understanding supports the Court's sentencing policy articulated in Apprendi and Blakely.

Bethel G.A. Erastus-Obilo, “Juries - Ancient & Modern: The Audacity of Transparency in Criminal Trials,” available at https://ssrn.com/abstract=1369022 (unpublished paper)

This article examines the evolution of the modern juror in England and Wales. In her piece, the author explains how the ancient juror, as opposed to being a neutral third-party, was often a witness to the incident at issue and was interrogated as a routine part of his verdict. In the modern system, by contrast, the juror is supposed to be neutral and unbiased. The author concludes by advocating that current jurors should be forced to explain their verdict in a written verdict, so as to eliminate the potential for bias and create more transparency in the judicial system.

Thomas Regnier, “Restoring the Founders’ Ideal of the Independent Jury in Criminal Cases,” 51 Santa Clara Law Review 775 (2011), available at https://digitalcommons.law.scu.edu/lawreview/vol51/iss3/2

In this article, the author suggests that juries should have the opportunity to decide both facts and law. He argues that, under a historical understanding of the criminal jury, juries had the power to judge the law. He then suggests that the term jury "nullification" is improper because the term connotes an image of the jury illegitimately flouting the law. Instead, he proposes that the term jury "discretion" should be used, indicating that, in rare circumstances, juries may use their discretion to acquit a defendant in the interest of justice. The author further argues that juries should be advised of their discretionary power if a defendant asks for the jury to be so instructed because a defendant who asks for such an instruction is implicitly admitting his guilt, and thus few defendants would actually ask for an instruction on jury discretion.

Joshua D. Stadtler, Note, “Ortiz Got it Wrong: Why the Seventh Amendment Does Not Protect the Right to Jury Trial in Class Action Suits Under FRCP 23,” 61 Hastings Law Journal 1561 (2010), available at https://repository.uchastings.edu/hastings_law_journal/vol61/iss6/9

The author argues that Ortiz v. Fibreboard, a 1999 U.S. Supreme Court case that expanded the jury trial right to class action lawsuits, was wrongly decided. He argues that the Seventh Amendment provides a jury trial only for suits in law, and historically the class-action suit was considered a suit in equity. Thus, he claims that there is no constitutional right to a jury trial in class-action suits. Instead, he suggests that after the Federal Rules of Civil Procedure merged the concepts of law and equity, the Supreme Court incorrectly expanded the Seventh Amendment jury trial right to suits in equity, despite the Rules Enabling Act's decree that the federal rules should not "abridge, enlarge, nor modify the substantive rights of any litigant." Finally, he argues that Ortiz should be overruled because juries are not as well-equipped to deal with complex class-action suits as judges.