Sunday, January 25, 2009

Why Trial By Jury?

This post has been moved to the Toxins Of Power blog.


  1. If the bushies are ever prosecuted for crimes they can demand a jury trial, lawyers, and full court access.

    Something they denied thousands of folks during their reign of abuse.

  2. This is a subject matter that causes mysterious and/or unexpected aliances between the left and the right.

    In one example case, Apprendi v New Jersey, 530 U.S. 466 (2000), we find Justice Scalia voting with most of the 'liberals'.

    To wit: "Stevens, J., delivered the opinion of the Court, in which Scalia, Souter, Thomas, and Ginsburg, JJ., joined. Scalia, J., filed a concurring opinion. Thomas, J., filed a concurring opinion, in which Scalia, J., joined as to Parts I and II. O'Connor, J., filed a dissenting opinion, in which Rehnquist, C. J., and Kennedy and Breyer, JJ., joined. Breyer, J., filed a dissenting opinion, in which Rehnquist, C. J., joined"

    The, what seems to me obvious, decision held: "the Sixth Amendment's notice and jury trial guarantees require that any fact other than prior conviction that increases the maximum penalty for a crime must be charged in an indictment, submitted to a jury, and proved beyond a reasonable doubt. The Fourteenth Amendment commands the same answer when a state statute is involved."

  3. For those interested in how juries historically worked, please see

  4. Despite the overall strong arguments given for jury panels, I think it's good to have the choice of judge and jury. If you can get a good judge, then you don't have to worry as much about those everyday people getting that "expert" testimony wrong.

    It also seems that lawyers only get a limited amount of panel nominees to toss out. If by chance, the defendant gets mostly a slanted jury pool, and that is quite possible depending on location, the chances of a fair shake diminish.

  5. socrates,

    Yep, there is "gerrymandering" of juries too ... in any human system there will be an attempt to subvert the system.

    Fortunately we can limit that to a case by case basis if we can keep the system running reasonably.

    And yes, the accused can waive the jury trial and choose to have a judge only trial. And yes, sometimes that is best.