Early Jurisprudence on Right to Trial by Jury

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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 defence.

The Sixth Amendment, by its plain language, extends its guarantees to “all criminal prosecutions.” Yet the Supreme Court has long excluded a category of minor offenses—called “petty offenses” in the doctrine, as distinct from “serious offenses” —from the reach of the right to trial by jury.1 Considerations both historical and practical have served as justifications for this textual departure: as the Supreme Court recognized, “[s]o-called petty offenses were tried without juries both in England and in the Colonies . . . and the possible consequences to defendants from convictions for petty offenses have been thought insufficient to outweigh the benefits to efficient law enforcement and simplified judicial administration resulting from . . . inexpensive nonjury adjudications.” 2

The early doctrine did not trace a neat divide between petty and serious offenses but instead based the distinction on a broad analysis of the nature of each offense.3 This analysis considered the following factors: (1) whether the offense was triable by jury at common law; (2) whether the proscribed conduct was malum in se (i.e., inherently wrong)4 or merely malum prohibitum (i.e., prohibited by law but not inherently wrong)5 ; and (3) the maximum statutory penalty.6 Under this analysis, the Court held that the crime of reckless driving at excessive speed was not petty (and accordingly triggered the jury trial right), even though it carried a maximum penalty of only 30 days in jail, because the crime was indictable at common law and covered conduct that the Court considered malum in se.7 In contrast, the crime of conducting a secondhand sales business without a license, which had a maximum statutory penalty of ninety days’ imprisonment, was petty, the Court held, because it was not a crime at common law and amounted only to a breach of regulations (i.e., was malum prohibitum).8 Even these early cases, however, presaged in dicta the clearer rule that constitutes the Court’s current doctrine: crimes punishable by more than six months’ imprisonment cannot be deemed petty and are therefore subject to the jury trial right.9

The Court’s early doctrine on the right to jury trial also made special provision for summary trials for criminal contempt of court. In a long line of cases, the Court held consistently that the right simply did not apply to prosecutions for criminal contempt.10 These cases reasoned that contempt in England had not been triable by jury since at least the early eighteenth century,11 and that courts would lose power to enforce their orders effectively and maintain courtroom decorum if required to submit cases of contempt to juries for adjudication.12 Perhaps the most historically significant of these cases was also one of the most recent. In United States v. Barnett, the Court held that the governor and lieutenant governor of Mississippi did not have a right to a jury trial in a contempt prosecution for obstructing state officials’ compliance with federal court orders directing the University of Mississippi to admit an African-American student.13 But while the Barnett Court reiterated the rule against applying the jury trial right to contempt,14 the Court also expressed discomfort with the rule’s absoluteness.15 In Cheff v. Schnackenberg, decided two years later, the Court divided over the issue, with a plurality of four justices concluding that contempt did not require a jury trial so long as the actual sentence imposed did not exceed six months,16 while two concurring justices held to the absolute rule that the Sixth Amendment does not require a jury trial for any contempt offense.17 Criminal contempt continues to receive unique treatment under the Court’s current doctrine on the jury trial right.

1: See Callan v. Wilson, 127 U.S. 540, 552 (1888) ( “According to many adjudged cases, arising under constitutions which declare, generally, that the right of trial by jury shall remain inviolate, there are certain minor or petty offenses that may be proceeded against summarily, and without a jury . . . .” ).
2: Duncan v. Louisiana, 391 U.S. 145, 160 (1968). For a criticism of the petty offense doctrine, see Baldwin v. New York, 399 U.S. 66, 75 (1970) (Black, J., concurring in judgment) ( “The Constitution guarantees a right of trial by jury in two separate places but in neither does it hint of any difference between ‘petty’ offenses and ‘serious’ offenses. . . . Many years ago this Court, without the necessity of an amendment pursuant to Article V, decided that ‘all crimes’ [for purposes of Article III and the Sixth Amendment] did not mean ‘all crimes,’ but meant only ‘all serious crimes.’” ).
3: See Callan, 127 U.S. at 555.
4: Malum in se, Black’s Law Dictionary (11th ed. 2019).
5: Malum prohibitum, Black’s Law Dictionary (11th ed. 2019).
6: District of Columbia v. Clawans, 300 U.S. 617, 624–25 (1937); District of Columbia v. Colts, 282 U.S. 63, 73 (1930); Schick v. United States, 195 U.S. 65, 67 (1904).
7: Colts, 282 U.S. at 73 ( “The offense here charged is not merely malum prohibitum, but in its very nature is malum in se. . . . An automobile is, potentially, a dangerous instrumentality, as the appalling number of fatalities brought about every day by its operation bear distressing witness. To drive such an instrumentality through the public streets of a city so recklessly ‘as to endanger property and individuals’ is an act of such obvious depravity that to characterize it as a petty offense would be to shock the general moral sense.” ).
8: Clawans, 300 U.S. at 630.
9: Id. at 627–28 ( “[W]e may doubt whether summary trial with punishment of more than six months’ imprisonment, prescribed by some pre-Revolutionary statutes, is admissible, without concluding that a penalty of ninety days is too much.” ).
10: Green v. United States, 356 U.S. 165, 183 (1958) ( “The statements of this Court in a long and unbroken line of decisions involving contempts ranging from misbehavior in court to disobedience of court orders establish beyond peradventure that criminal contempts are not subject to jury trial as a matter of constitutional right.” ).
11: Id. at 185–86.
12: United States v. Barnett, 376 U.S. 681, 697, 700 (1964); see also Bloom v. Illinois, 391 U.S. 194, 196 (1968) (explaining that the Court’s early cases construed “the Sixth Amendment as permitting summary trials in contempt cases because at common law contempt was tried without a jury and because the power of courts to punish for contempt without the intervention of any other agency was considered essential to the proper and effective functioning of the courts and to the administration of justice” ).
13: Id. at 685–86, 692.
14: Id. at 692 ( “[I]t is urged that those charged with criminal contempt have a constitutional right to a jury trial. This claim has been made and rejected here again and again.” ).
15: Id. at 695 n.12 ( “Some members of the Court are of the view that, without regard to the seriousness of the offense, punishment by summary trial without a jury would be constitutionally limited to that penalty provided for petty offenses.” ).
16: 384 U.S. 373, 380 ( “[W]e rule . . . that sentences exceeding six months for criminal contempt may not be imposed by federal courts absent a jury trial or waiver thereof.” ).
17: Id. at 381–82 (Harlan, J., concurring in the result).