Trial for Crimes

                The topic of discussion for this Constitution Monday comes from Article III, Section 2, and Clause 3:  “The Trial of All Crimes, except in Cases of Impeachment, shall be by Jury….”  This provision informs us that individuals indicted for crimes have the right to a trial by jury; it also tells us that impeachment proceedings, which take place in the U.S. Senate, do not qualify for jury trials.

                Our Founding Fathers considered trials by jury to be important enough to include this clause in the Constitution.  W. Cleon Skousen gave the following explanation:  “Up until 1895 Americans enjoyed all of the powers of the original common law jury.  This was a far more powerful instrument of justice than the jury system today.  In fact, the Founders considered it the foremost defense in the American legal structure to protect the people against oppressive laws passed by the legislature or abusive judges deliberately misinterpreting the law.

                “The common law jury not only had power to `determine the facts,’ but it also had authority to `determine the law.’  It could determine what the law meant and whether or not the jury considered it constitutional.  The jury could even ignore the law if it felt it would cause an injustice if applied to the case at hand.

                “Under these circumstances the jury was allowed to hear the arguments of attorneys on both sides as to the meaning of the law and how it should be applied in that particular case.

                “Furthermore, although the judge interpreted the law for the jury, they were not bound to accept his interpretation.  In other words, the interpretation of the judge was merely `advisory.’  The jury was free to reach its own conclusions as to just what the law required.

                “Such were the powers of the original American common law jury” (The Making of America – The Substance and Meaning of the Constitution, pp. 614-615).

                Rachel E. Barkow at The Heritage Foundation gave further explanation:  “The American right to a trial by a jury of one’s peers traces its lineage back to 1297 and the Magna Carta.  By the mid-sixteenth century, the jury had already taken on the form it retains to this day in federal courts and some state courts – twelve citizens were summoned to sit in sworn judgment of the criminal allegations against one of their peers….

                “Because judges themselves were part of the government, many framers feared they would not be an adequate check on government abuse of the criminal process.  The jury, therefore, was made part of the original structure of government in order to provide a mechanism for ensuring that individuals would not lose their liberty under a criminal law until the people themselves concurred.

                “In many criminal cases in the nation’s early history, the jury not only applied the law to the fats it found, but decided questions of law themselves….

                “Over time, however, this power eroded.  In 1895, the Supreme Court concluded in Sparf and Hansen v. United States that the jury did not have the `right’ to decide legal questions.  As a result, today judges can – and do – instruct juries that they must accept the judge’s view of the law, and lawyers are no longer allowed to argue the merits of the law to the jury.  Because the jury possesses authority to issue an unreviewable general verdict of acquittal, the jury nevertheless retains the raw power to check general laws with which it disagrees in individual cases.  But because the trial judge does not instruct the jury that it has this authority, the jurors may not know that they have it.  In addition, even if the jurors are aware of this power, they must exercise it knowing it is contrary to the judge’s instructions, even when the jury itself disagrees with the law in question, with the judge’s interpretation of the law, or with the law’s application in the case before it.”

                Barkow stated that the power of the jury to check the government has eroded in other ways as well.  1) A defendant can now waive a jury trial in favor of a bench trial but could not do so prior to 1930.  2) The majority of cases never reach the jury because they are resolved by plea bargain.  3) Congress and state legislatures “identify blameworthy behavior and specify the criminal punishment for that behavior” and insist “that judges, not juries, apply these laws” (The Heritage Guide to the Constitution, pp. 262-263).

                These two explanations helped me to understand more clearly why some criminals are not forced to pay the price for their behavior and are set free to prey on the people once again.  It also makes clear how judges with their own agendas can do more damage to our society than would be done by a group of people who are the defendant’s peers.  The framers were very wise when they wrote the Constitution, but their founding document and instructions have been changed to suit the designs of evil men and women.