Whose Jury: Mediating Between the Competing Individual and Collective Jury Rights

Abstract

This article begins from the realization that there are at least two jury rights: the individual right of the criminal defendant, and the collective right of the community to adjudicate allegedly criminal behavior. Those two rights come into conflict when, for example, the criminal defendant waives his or her jury right or moves for a change of venue, thus robbing the local community of its adjudicatory authority. Thus far, there has been little attention to the conflicts between these two jury rights. My primary aim in this article is to shed light on this important subject. First, I explore the history of the jury through the lens of the two rights. The history of the jury reflects (1) the strong collective jury right backdrop against which the Constitution was drafted, (2) a growing ambivalence towards that collective right between the Constitutional Convention and the Civil War, and then (3) a century-long individual jury right regime. The ascendance of the jury right is associated with the increased empowerment of criminal defendants to waive their jury right or move to transfer to a new venue. In recent decades, legal practitioners—scholars, activists, judges, and Justices—have attempted to resuscitate the collective jury right. In addition to curbing the rights of criminal defendants (and judges) to exclude juries from particular aspects of the adjudicatory process, there has been an increasing effort to empower juries to exercise their collective right through nullification. After exploring the history of the two jury rights, and describing some of the corollaries of each right, I consider some of the possible implications of this analysis for different constitutional theories: Dworkinian moral reading of the law, constitutional pluralism, and originalism. By shedding light on these underexplored jury rights, this article is designed to enable more rigorous analysis by many different breeds of constitutional theorists. Additionally, given the occasional tension between these rights, the analysis in this article will enable legal practitioners to meaningfully debate issues and proposals that implicate one or both of the jury rights.