April 3, 2012 – Essay # 32 – Amendment VII: Trier of Fact Versus Law – Guest Essayist: J. Eric Wise, a partner at Gibson, Dunn & Crutcher LLP law firm


 

Amendment VII:

In Suits at common law, where the value in controversy shall exceed twenty dollars, the right of trial by jury shall be preserved, and no fact tried by a jury, shall be otherwise re-examined in any Court of the United States, than according to the rules of the common law.

If you have good facts, pound the facts; if you have good law, pound the law; if you have nothing, pound the table.  Aside from the good rule of focusing attention on the areas where one’s case has strength, advocacy, as a form of rhetoric, also requires knowing your audience.  In American criminal and civil procedure, where there is a jury, the jury is a trier of fact and the judge makes determinations of law.

The jury is a legal invention that can be traced back to at least 11th Century England, when the Domesday Book was assembled from information gathered by juries empaneled to catalogue property holdings throughout the realm.  Juries of local people were assumed to be familiar with the local facts that would be the basis of the catalogue.

As the use of juries expanded, juries came to be considered a bulwark against tyranny, because while magistrates might align with a king, a jury of peers would check the king’s power at trial.  The Bill of Rights protects jury trials in civil and criminal matters.

The Sixth Amendment provides “In all criminal prosecutions, the accused shall enjoy the right to . . . 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.”  The Seventh Amendment provides “In suits at common law, where the value in controversy shall exceed twenty dollars, the right of trial by jury shall be preserved, and no fact tried by a jury, shall be otherwise re-examined in any Court of the United States, than according to the rules of common law.”

While most state constitutions have jury clauses, the Supreme Court has determined that the Sixth Amendment right to an impartial jury in criminal cases extends to the states through the operation of the Due Process Clause of the Fourteenth Amendment under the doctrine known as “substantive due process.”  However, the right to a trial in the state and district where the crime is committed, known as the Vicinage Clause, is not incorporated into the Fourteenth Amendment against the states.  The right to a jury trial in a civil case is also not protected in state proceedings, unless protected under state law.

In jury trials, judges do not try questions of fact.  Rather judges determine questions of law, including questions regarding the procedures by which the facts are developed in court.  Judges further instruct the jury as to what is the law to which the facts are to be applied.  In certain cases, juries may refuse to determine the facts at all and engage in what is known as jury nullification to satisfy its own views of what the law should be in the particular case.  Arguments run here and there as to whether this is a check and balance of the justice system or whether it is a dereliction of the duties of jurors.

In certain cases and courts the judge is both the trier of fact and the trier of law.  Commercial parties frequently waive the right to a jury trial.  Administrative courts, as administrators, and bankruptcy courts, as courts of equity, largely do not employ juries.  This is in part based on the opinion that the subject matter of administrative law and commercial issues may be too sophisticated for a jury.  Left and Right take varying and perhaps contradictory positions on this.  Some on the Right advocate for removal of juries in medical malpractice cases.  The plaintiffs bar howls.  The Left admires administrative law and great bureaucracies.  They call it job creation.  Almost all commercial interests are satisfied that juries are generally absent from involvement in bankruptcy cases, which require rapid determinations and understanding of complex financial issues.

As usual, Ronald Reagan may have put it best.  In his First Inaugural Address he said first:  “[W]e have been tempted to believe that society has become too complex to be managed by self-rule, that government by an elite group is superior to government for, by, and of the people.  But if no one among us is capable of governing himself, then who among us has the capacity to govern someone else?” and then he said “Now, so there will be no misunderstanding, it is not my intention to do away with government. It is, rather, to make it work—work with us, not over us; to stand by our side, not ride on our back.”

J. Eric Wise is a partner in the law firm of Gibson, Dunn & Crutcher LLP, where he practices restructuring and finance.

Share Your Thoughts With Us On Our Blog! Click “Comments” Below to Add Your Comments!

Tags: , , , , ,

4 Responses to “April 3, 2012 – Essay # 32 – Amendment VII: Trier of Fact Versus Law – Guest Essayist: J. Eric Wise, a partner at Gibson, Dunn & Crutcher LLP law firm”

  1. Marc W. Stauffer says:

    Mr. Wise; Regarding President Reagan’s comment…..even more true today. It would seem that based on current actions, government believes its people incapable of self rule and in need of increased direction.

  2. barb Zakszewski says:

    Excellent essay today.. Thank you, Mr. Wise. And Marc is right to a certain extent. It seems though, this all is more about power and less about government protecting us from ourselves. We seem to forget that government derives its power from the people, not the other way around. We must be sure to understand the Constitution and this website is a fantastic tool in gaining that understanding. If we don’t understand what is at stake, then we will lose many of these rights, including the right to trial by a jury of our peers. This Nation is at a precipce right now, and can go either way.. I tell people everyday about this site, because I am not willing for this nation to teeter over the edge.

  3. Ralph T. Howarth, Jr. says:

    It is a principal of republicanism that laws must be something that commoners can understand; otherwise injustice and trickery can take hold. When the government becomes so absorbent with manifold regulations and rules 1000s of pages long then justice and fairness is in jeopardy to nefarious devices.

    “It will be of little avail to the people that the laws are made by men of their own choice if the laws be so voluminous that they cannot be read, or so incoherent that they cannot be understood.” –James Madison, Federalist 62
    See also http://www.constitutingamerica.org/blog/category/federalist-paper-forum-2010-essay-project/federalistpaper62/

    “The more corrupt the republic, the more numerous the laws.” ~Tacitus, Annals

  4. Ralph T. Howarth, Jr. says:

    Sorry for the double post. This would have been posted better on this blog thread.

    The 1670 Buschel’s case, where William Penn was prosecuted for preaching and disturbing the peace, the jury refused to give a guilty verdict the court wanted and acquitted on account that the law was unjust. Four members of that jury was imprisoned for three days and fined by the court. Another judge then ordered the release of the jury on account that juries cannot be punished for their verdict no matter what their decision. This was the milestone case of jury nullification in England and become part of the Common Law. James Madison even cited his case when deliberating the wording of the Bill of Rights.
    John Jay, the first Chief Justice of the U. S. Supreme Court stated in 1789: “The jury has the right to judge both the law as well as the fact in controversy.” Samuel Chase, U. S. Supreme Court Justice and signer of the Declaration of Independence, said in 1796: “The jury has the right to determine both the law and the facts. ” U. S. Supreme Court Justice Oliver Wendell Holmes said in 1902: “The jury has the power to bring a verdict in the teeth of both law and fact.” Harlan F. Stone, the 12th Chief Justice of the U. S. Supreme Court, stated in 1941: “The law itself is on trial quite as much as the cause which is to be decided.”
    Chief Justice John Jay in the Georgia v. Brailsford 1794 case stated:
    “It is presumed, that juries are the best judges of facts; it is, on the other hand, presumed that courts are the best judges of law. But still both objects are within your power of decision… you [juries] have a right to take it upon yourselves to judge both, and to determine the law as well as the fact in controversy.”
    In his 1805 impeachment trial, one of the charges against Justice Samuel Chase was that he wrongly prevented a lawyer from arguing to a jury that the law should not be followed.
    In 1895 in Sparf v. United States, the Court said that courts need not inform jurors of their de facto right of juror nullification although jurors’ inherent right to judge the law remained unchallenged. This change in practice, forbidding the court or even the defense attorney of informing the right of jury nullification to the jury, as well as another new practice of excluding evidentiary hearings from the jury, has led to an in absentia denial of the right of a jury to question the law.

Leave a Reply

 characters available