Vail Daily column: Judge or jury? |

Vail Daily column: Judge or jury?

I’m guessing that you scratch your head from time to time when you hear a news report about some legal matter or another and learn that one matter will be heard by a jury and another seemingly similar matter will be heard, instead, by a judge.

Why are some matters tried by a jury and others are not?

There are some “bright lines” determining who the trier of fact will be. And then, there are some not-so-bright lines.


First, note that I said above who the “trier of fact” will be. This was deliberate and part of an important distinction. Speaking simply, a trial is about two things: Facts and law (and how the law is applied to the facts). The trier of fact — whether it is a judge or a jury — determines only the facts. Is this true and not that? Did something happen the way one party claims and not the way the other claims? Only when the facts are sorted out is the law applied to the facts. Stated simply, a jury does not create the law; it simply applies the established law to the facts it has sorted out by the process of a trial.

Neither does a jury sort out what is admissible as evidence and what is not; that function is reserved exclusively for the judge.


Above, I noted that there are certain bright-line distinctions as to when a jury will hear a matter and when, instead, the matter will be heard by a judge. First, it is important to understand that law may be generally divided into two broad categories: criminal law and civil law. Criminal law, as you might suspect, deals with crimes and the allegation of criminal conduct. Criminal law deals with punishment by the state for offenses committed against The People. Criminal law regulates social conduct.

Civil law, on the other hand, deals generally with disputes between individuals (or between entities or between individuals and entities) regarding private disputes. Rather than in criminal matters where the result may be “punishment” by the state, what is generally sought in civil disputes is a “remedy,” most often money damages. You sue someone else, for example, for breaching a contact with you.


The Sixth Amendment to the United States Constitution sets forth rights related to criminal prosecutions, including the right to a jury trial. The Supreme Court has applied the protections of this amendment to the states through the Due Process Clause of the Fourteenth Amendment. The Sixth Amendment provides, in full that:

“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, which district shall have been previously ascertained by law, 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 defense.”

The “nugget” we are looking for is the “impartial jury” part — the right to be tried for an alleged crime by an “impartial jury” rather than by a judge. This is, however, not absolute.

The right to a jury has always depended on the nature of the offense with which the defendant is charged. Petty offenses — those punishable by imprisonment for no more than six months — are not covered by the jury requirement. Even where multiple petty offenses are concerned, where the total time of imprisonment could possibly exceed six months, the right to a jury trial does not exist. What’s more, except for serious offenses (such as murder), minors are usually tried in a juvenile court, which reduces the potential punishment allowed but also forfeits the right to a jury.


Originally, and as articulated in Patton v. States (1930), the Supreme Court held that the Sixth Amendment right to a jury trial indicated a right to “a trial by jury as understood and applied at common law and includes all the essential elements as they were recognized in this country and England when the Constitution was adopted.” Therefore, it was held that juries had to be composed of 12 persons and that verdicts had to be unanimous, as was customary in England.

However, when, under the Fourteenth Amendment, the Supreme Court extended the right to a trial by jury to defendants in state courts, it re-examined some of the standards. In Williams v. Florida (1970) and Ballew v. Georgia (1978), it was held that 12 came to be the number of jurors by “historical accident,” and that a jury of six would be sufficient, but anything less would deprive the defendant of a right to trial by jury.

On the basis of history and precedent, however, the Sixth Amendment continues to mandate unanimity in a federal jury trial, the Supreme Court has ruled that the Due Process Clause of the Fourteenth Amendment, while requiring states to provide jury trials for serious crimes, does not incorporate all the elements of a jury trial within the meaning of the Sixth Amendment and does not require jury unanimity.

Stated succinctly, if one is tried for a crime where the punishment is potentially for greater than six months, you are entitled to a trial before a jury of your peers.


What then about civil trials? Sometimes they are tried to a jury and sometimes not. Sometimes — for public policy reasons or otherwise — they may not be tried to a jury. Divorce cases, for example are never tried to a jury and cannot be. As to those civil cases which may be tried to a jury, often, it is a matter of legal tactics; the attorneys must decide if the outcome potentially be better for the client to have the matter heard before a judge or before a jury? Few, if any civil matters must be tried to a jury and so a strategic (and often economic) choice must be made.

As a general guiding principal, jury trials are usually longer and more expensive than a trial heard by a judge. There are other similar factors to consider. (For example, will a jury likely be sympathetic to the client?)

If a matter is civil in nature, it is generally a judgment call whether it will be tried by a judge or jury. If criminal in nature, it is a matter of one’s fundamental Constitutional rights.

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. Robbins may be reached at 970-926-4461 or at either of his email addresses, or

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