Vail Daily column: Your right to a trial by a jury
February 27, 2013
Chances are you may be mistaken. You may think – come Abbadon or high water – you are entitled to trial by a jury should you ever dip your toe into the deep end of a court room.
Well, not exactly.
In fact, jury trials are more the exception than the rule.
In civil matters – that is private disputes between private parties – you have to ask for a jury trial to get one. And you, literally, have to pay a premium (by way of an increased filing fee) should you wish to seat a jury. If you don’t, sorry Charlie, you’ll try the matter to a judge.
As we’ve laid out in this column before, there is a schism in the law between “civil” actions on the one hand and “criminal” on the other. “Civil” matters comprise disputes between private parties. Criminal cases involve the state prosecuting a defendant for an alleged wrong against society.
In some kinds of civil cases, trial to a jury is not permitted even should you want one. Divorce is one example. You may wish to point out to a jury of your peers that your soon-to-ex is in league with the devil and therefore hopefully avail yourself of the largesse of your fellow citizens in punishing the so-and-so. Which is exactly why such cases are not open for debate before jury. The thinking is, presumably, that a seasoned judge will likely be less susceptible to becoming tainted by your indignity.
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You must also disabuse yourself of the notion that a jury consists of 12 persons. I know, I know, you’ve see the movie Twelve Angry Men and that’s ah – 12, right? – not a score, a pair, a trio, or a baker’s dozen. Well, right you are. But more times than not, in more jurisdictions than not, a jury may consist of half-a-dozen or some other number. As a salve to your indignity, however, the federal courts would make Henry Fonda proud; there at least, there are most times 12 members of the jury.
And, by the way, while we’re refuting fairy tales, the verdict of a jury often need not be unanimous. Yes, to lock someone up and throw away the key, a jury must come to a complete consensus but in many jurisdictions in civil matters only a majority, or perhaps a “supermajority” of the jurors must agree.
So, from whence does your inalienable right to a jury trial (in criminal matters at least) arise? The Sixth Amendment to the United States Constitution provides the answer. Specifically, the 6th Amendment holds:
“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 … , and to be informed of the nature and cause of the accusation; to be confronted with the witnesses against him; to have compulsory process for obtaining witnesses in his favor, and to have the Assistance of Counsel for his defence.”
Yeah, “defence”; they spelled funny in those days.
Anyway, in addition to the right to jury trial in criminal matters, the 6th also assures;
• The right to a speedy trial.
• For one to be informed of the charges against him.
• To confront and challenge those who portend to bear witness against him.
• The right to legal counsel.
A nice, tidy package of rights. In the context of the times this was – if not quite groundbreaking – at the least a punch to the historical solar plexus. Heretofore, it was more the rule than the exception that the state could detain one indefinitely without bothering to inform the detainee what wrong he allegedly committed.
All of this brings us in a strange way to the Blade Runner. No, not Harrison Ford in the 1982 dystopian science fiction action film but, rather, the 2013 real-life action hero, Oscar Pistorius who is, himself, at least part science fiction.
By now you know the story: On Valentine’s Day morning of this year, Pistorius, the first disabled athlete to compete the in the able-bodied Olympics, shot and killed his girlfriend, Reeva Steenkamp. Prosecutors in Pretoria have charged Pistorius with premeditated murder. Pistorius claims he thought there was an intruder in his home and shot Steenkamp by mistake.
You’re scratching your head. As tragic as this is, what in the name of a South African Krugerrand does it have to do with the 6th Amendment? Well, it’s this; in South Africa, things are different. When the Blade Runner comes to trial, he will not have the right that you or I would in the good ol’ USA to a trial by his peers.
South Africa abolished jury trials in 1969, while the country was under apartheid, due to fears of racial prejudice by white jurors. And the rule remains today. If and when Pistorius has his day in court, the case will be heard – and his future determined – by a single judge. Were he tried, instead, in the U.S., a jury would be charged to unanimously decide his fate. Since the standard to convict in the U.S. is guilt “beyond a reasonable doubt,” were he able, Pistorius might prefer to take his chances here.
Rohn K. Robbins is an attorney licensed before the bars of Colorado and California who practices in the Vail Valley with the law firm of Stevens, Littman, Biddision, Tharp and Weinberg LLC. His practice areas include business and commercial transactions, real estate and development, family law, custody, divorce and civil litigation. He may be heard on Wednesdays at 7 p.m. on KZYR radio (97.7 FM) and seen on ECOTV 18 as host of “Community Focus.” Robbins may be reached at 970-926-4461 or at either of his e-mail addresses, firstname.lastname@example.org or email@example.com.