1. After the commencement of a trial in a federal court before a
jury of twelve men upon an indictment charging a crime, punishment
for which may involve a penitentiary sentence, if one juror becomes
incapacitated and unable to proceed further with his work as a
juror, the defendant and the Government, through its official
representative in charge of the case, may consent to the trial's
proceeding to a finality with eleven jurors, and defendant thus may
waive the right to a trial and verdict by a constitutional jury of
twelve men. P.
281 U. S. 287
et seq.
2. The phrase "trial by jury," as used in the Federal
Constitution (Art. III, § 2, and the Sixth Amendment) means 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; viz: (1) that the jury
should consist of twelve men, neither more nor less; (2) that the
trial should be in the presence and under the superintendence of a
judge having power to instruct them as to the law and advise them
in respect of the facts, and (3) that the verdict should be
unanimous. P.
281 U. S.
288.
3. These common law elements of a jury trial are embedded in the
provisions of the Federal Constitution relating thereto, and are
beyond the authority of the legislative department to destroy or
abridge. P.
281 U. S.
290.
4. There is no difference in substance between a complete waiver
of a jury and consent to be tried by a less number than twelve.
Id.
5. A question involving a claim of constitutional right cannot
be settled by the simple process of ascertaining that the
infraction assailed is unimportant when compared with similar but
more serious infractions which might be conceived; to uphold the
voluntary reduction of a jury from twelve to eleven upon the ground
that the reduction is only a slight reduction is not to interpret
the Constitution, but to disregard it. P.
281 U. S.
292.
6. The effect of the constitutional provisions in respect of
trial by jury is not to establish a tribunal as a part of the frame
of government,
Page 281 U. S. 277
but only to guarantee to the accused the right to such a trial.
P.
281 U. S.
293.
7. The first ten amendments and the original Constitution were
substantially contemporaneous, and should be construed
in pari
materia. P. 298.
8. The provision of Art. III, § 2, of the Constitution, relating
to trial by jury, is not jurisdictional, but was meant to confer a
right upon the accused which he may forego at his election.
Id.
9. A federal district court has authority, in the exercise of a
sound discretion, to accept a waiver of jury trial in a criminal
case, and to proceed to the trial and determination of the case
with a reduced number or without a jury, the grant of jurisdiction
by § 24 of the Judicial Code, U.S.C. Title 28, § 41(2), being
sufficient to that end. P.
281 U. S. 299.
10. The view that power to waive a trial by jury in criminal
cases should be denied on grounds of public policy is rejected as
unsound. P.
281 U. S.
308.
11. The power of waiver of jury trial by the defendant in a
criminal case is applicable to cases of felonies, as well as to
misdemeanors. P.
281 U. S.
309.
12. Before a waiver of jury trial in a criminal case can become
effective, the consent of government counsel and the sanction of
the court must be had, in addition to the express and intelligent
consent of the defendant, and the duty of the trial court in this
regard is to be discharged with a sound and advised discretion. P.
281 U. S.
312.
ANSWER to a question certified by the Circuit Court of Appeals
upon review of a judgment of the District Court imposing sentence
in a criminal prosecution for conspiring to bribe a federal
prohibition agent.
Page 281 U. S. 286
MR. JUSTICE SUTHERLAND delivered the opinion of the Court.
The defendants (plaintiffs in error) were indicted in a federal
district court, charged with conspiring to bribe a federal
prohibition agent, a crime punishable by imprisonment in a federal
penitentiary for a term of years. A jury of twelve men was duly
impaneled. The trial began on October 19, 1927, and continued
before the jury of twelve until October 26 following, at which time
one of the jurors, because of severe illness, became unable to
serve further as a juror. Thereupon it was stipulated in open court
by the government and counsel for defendants, defendants personally
assenting thereto, that the trial should proceed with the remaining
eleven jurors. To this stipulation the court consented after
stating that the defendants and the government both were entitled
to a constitutional jury of twelve, and that the absence of one
juror would result in a mistrial unless both sides should waive all
objections and agree to a trial before the remaining eleven jurors.
Following this statement, the stipulation was renewed in open court
by all parties. During the colloquy, counsel for defendants stated
that he had personally conferred with all counsel and with each of
the defendants individually, and it was the desire of all to finish
the trial of the case with the eleven jurors
Page 281 U. S. 287
if the defendants could waive the presence of the twelfth
juror.
The trial was concluded on the following day, and a verdict of
guilty was rendered by the eleven jurors. Each of the defendants
was sentenced to terms of imprisonment in the penitentiary on the
several counts of the indictment. An appeal was taken to the
circuit court of appeals upon the ground that the defendants had no
power to waive their constitutional right to a trial by a jury of
twelve persons.
The court below, being in doubt as to the law applicable to the
situation thus presented, and desiring the instruction of this
court, has certified the following question:
"After the commencement of a trial in a Federal Court before a
jury of twelve men upon an indictment charging a crime, punishment
for which may involve a penitentiary sentence, if one juror becomes
incapacitated and unable to further proceed with his work as a
juror, can defendant or defendants and the Government, through its
official representative in charge of the case, consent to the
trial's proceeding to a finality with eleven jurors, and can
defendant or defendants thus waive the right to a trial and verdict
by a constitutional jury of twelve men?"
The question thus submitted is one of great importance, in
respect of which there are differences of opinion among the various
lower federal and state courts, but which this court thus far has
not been required definitely to answer. There are, however,
statements in some of our former opinions, which, if followed,
would require a negative answer. These are referred to and relied
upon by the defendants.
The federal Constitution contains two provisions relating to the
subject. Article III, Section 2, Clause 3 provides:
Page 281 U. S. 288
"The trial of all crimes, except in cases of impeachment, shall
be by jury, and such trial shall be held in the State where the
said crimes shall have been committed; but when not committed
within any State, the trial shall be at such place or places as the
Congress may by law have directed."
The Sixth Amendment provides:
"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."
Passing for later consideration the question whether these
provisions, although varying in language, should receive the same
interpretation, and whether, taken together or separately, the
effect is to guaranty a right or establish a tribunal as an
indispensable part of the government structure, we first inquire
what is embraced by the phrase "trial by jury." That it means 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, is not open to
question. Those elements were -- (1) that the jury should consist
of twelve men, neither more nor less; (2) that the trial should be
in the presence and under the superintendence of a judge having
power to instruct them as to the law and advise them in respect of
the facts, and (3) that the verdict should be unanimous.
As to the first of these requisites, it is enough to cite
Thompson v. Utah, 170 U. S. 343,
170 U. S. 350,
where this court
Page 281 U. S. 289
reversed the conviction of a defendant charged with grand
larceny by a jury of eight men, saying:
"It must consequently be taken that the word 'jury' and the
words 'trial by jury' were placed in the Constitution of the United
States with reference to the meaning affixed to them in the law as
it was in this country and in England at the time of the adoption
of that instrument, and that, when Thompson committed the offence
of grand larceny in the Territory of Utah -- which was under the
complete jurisdiction of the United States for all purposes of
government and legislation -- the supreme law of the land required
that he should be tried by a jury composed of not less than twelve
persons."
The second requisite was expressly dealt with in
Capital
Traction Company v. Hof, 174 U. S. 1,
174 U. S. 13-16,
where it is said:
"'Trial by jury,' in the primary and usual sense of the term at
the common law and in the American constitutions, is not merely a
trial by a jury of twelve men before an officer vested with
authority to cause them to be summoned and empaneled, to administer
oaths to them and to the constable in charge, and to enter judgment
and issue execution on their verdict, but it is a trial by a jury
of twelve men, in the presence and under the superintendence of a
judge empowered to instruct them on the law and to advise them on
the facts, and (except on acquittal of a criminal charge) to set
aside their verdict if, in his opinion, it is against the law or
the evidence. This proposition has been so generally admitted, and
so seldom contested, that there has been little occasion for its
distinct assertion."
The third requisite was held essential in
American
Publishing Company v. Fisher, 166 U.
S. 464,
166 U. S. 468;
Springville v. Thomas, 166 U. S. 707;
Maxwell v. Dow, 176 U. S. 581,
176 U. S.
586.
Page 281 U. S. 290
These common law elements are embedded in the constitutional
provisions above quoted, and are beyond the authority of the
legislative department to destroy or abridge. What was said by Mr.
Justice Brewer in
American Publishing Company v. Fisher,
supra, with respect to the requirement of unanimity is
applicable to the other elements as well:
"Whatever may be true as to legislation which changes any mere
details of a jury trial, it is clear that a statute which destroys
this substantial and essential feature thereof is one abridging the
right."
Any such attempt is vain and ineffectual, whatever form it may
take.
See In re Debs, 158 U. S. 564,
158 U. S.
594.
The foregoing principles, while not furnishing a precise basis
for an answer to the question here presented, have the useful
effect of disclosing the nature and scope of the problem, since
they demonstrate the unassailable integrity of the establishment of
trial by jury in all its parts, and make clear that a destruction
of one of the essential elements has the effect of abridging the
right in contravention of the Constitution. It follows that we must
reject
in limine the distinction sought to be made between
the effect of a complete waiver of a jury and consent to be tried
by a less number than twelve, and must treat both forms of waiver
as, in substance, amounting to the same thing. In other words, an
affirmative answer to the question certified logically requires the
conclusion that a person charged with a crime punishable by
imprisonment for a term of years may, consistently with the
constitutional provisions already quoted, waive trial by a jury of
twelve and consent to a trial by any lesser number, or by the court
without a jury.
We are not unmindful of the decisions of some of the state
courts holding that it is competent for the defendant to waive the
continued presence of a single juror who has become unable to
serve, while at the same time denying
Page 281 U. S. 291
or doubting the validity of a waiver of a considerable number of
jurors, or of a jury altogether.
See, for example, State v.
Kaufman, 51 Iowa 578, 580,
with which compare State v.
Williams, 195 Iowa 374;
Commonwealth ex rel. Ross v.
Egan, 281 Pa. 251, 256,
with which compare Commonwealth v.
Hall, 291 Pa. 341. But in none of these cases are we able to
find any persuasive ground for the distinction.
Other state courts, with, we think, better reason, have adopted
a contrary view. In
State v. Baer, 103 Ohio St. 585, a
person charged with manslaughter had been convicted by eleven
jurors. The trial began with a jury of twelve, but, one of the
jurors becoming incapable of service, the trial was concluded with
the remaining eleven. In disposing of the case, the state supreme
court thought it necessary to consider the broad question (p. 589):
". . . whether the right of trial by jury, as guaranteed by
Sections 5 and 10 of the Bill of Rights, can be waived." After an
extensive review of the authorities and a discussion of the
question on principle, the court concluded that, since it was
permissible for an accused person to plead guilty, and thus waive
any trial, he must necessarily be able to waive a jury trial.
In
Jennings v. State, 134 Wis. 307, 309, where, again,
a juror during the trial was excused from service because of
illness, and the case was continued and concluded before the
remaining eleven, the Supreme Court of Wisconsin also disposed of
the case as involving the power of the defendant to waive a jury
altogether, saying:
"It seems necessarily to follow that, if a person on trial in a
criminal case has no power to waive a jury, he has no right to be
tried by a less number than a common law jury of twelve, and, when
he puts himself on the country, it requires a jury of twelve to
comply with the demands of the constitution. The fact that the jury
in
Page 281 U. S. 292
the instant case had the required number of twelve up to the
stage in the trial when the cause was to be submitted to them under
the instructions of the court cannot operate to satisfy the
constitutional demand. At this point, the trial was incomplete, for
the very essential duty of having the jury deliberate upon the
evidence and agree upon a verdict respecting defendant's guilt or
innocence remained unperformed. Without the verdict of a jury of
twelve, it cannot be said to be a verdict of the jury required by
the constitution. Such a verdict is illegal, and insufficient to
support a judgment."
We deem it unnecessary to cite other cases which deal with the
problem from the same point of view.
A constitutional jury means twelve men as though that number had
been specifically named, and it follows that, when reduced to
eleven, it ceases to be such a jury quite as effectively as though
the number had been reduced to a single person. This conclusion
seems self-evident, and no attempt has been made to overthrow it
save by what amounts to little more than a suggestion that, by
reducing the number of the jury to eleven or ten, the infraction of
the Constitution is slight, and the courts may be trusted to see
that the process of reduction shall not be unduly extended. But the
constitutional question cannot thus be settled by the simple
process of ascertaining that the infraction assailed is unimportant
when compared with similar but more serious infractions which might
be conceived. To uphold the voluntary reduction of a jury from
twelve to eleven upon the ground that the reduction -- though it
destroys the jury of the Constitution -- is only a slight
reduction, is not to interpret that instrument, but to disregard
it. It is not our province to measure the extent to which the
Constitution has been contravened and ignore the violation if, in
our opinion, it is not, relatively, as bad as it might have
been.
Page 281 U. S. 293
We come, then, to the crucial inquiry: is the effect of the
constitutional provisions in respect of trial by jury to establish
a tribunal as a part of the frame of government, or only to
guaranty to the accused the right to such a trial? If the former,
the question certified by the lower court must, without more, be
answered in the negative.
Defendants strongly rely upon the language of this court in
Thompson v. Utah, supra, at page
170 U. S.
353:
"It is said that the accused did not object, until after
verdict, to a trial jury composed of eight persons, and therefore
he should not be heard to say that his trial by such a jury was in
violation of his constitutional rights. It is sufficient to say
that it was not in the power of one accused of felony, by consent
expressly given or by his silence, to authorize a jury of only
eight persons to pass upon the question of his guilt. The law in
force when this crime was committed did not permit any tribunal to
deprive him of his liberty except one constituted of a court and a
jury of twelve persons."
But this statement, though positive in form, is not
authoritative. The case involved the validity of a statute
dispensing with the common law jury of twelve and providing for
trial by a jury of eight. There was no contention that the
defendant, Thompson, had consented to the trial, but only that he
had not objected until after verdict. The effect of an express
consent on his part to a trial by a jury of eight was not involved
-- indeed he had been silent only under constraint of the statute
-- and what the court said in respect of that matter is obviously
an
obiter dictum.
Defendants also cite as supporting their contention two
decisions of federal circuit courts of appeal, namely,
Low v.
United States, 169 Fed. 86, and
Dickinson v. United
States, 159 Fed. 801.
Page 281 U. S. 294
In the first of these cases, the opinion, rendered by Judge
Lurton, afterwards a justice of this court, definitely holds that
the waiver of trial of a crime by jury involves setting aside the
tribunal constituted by law for that purpose and the substitution
by consent of one unknown to the law, and that this cannot be done
by consent of the accused and the district attorney. "Undoubtedly,"
the opinion concludes,
"the accused has a right to waive everything which pertains to
form and much which is of the structure of a trial. But he may not
waive that which concerns both himself and the public, nor any
matter which involves fundamentally the jurisdiction of the court.
The jurisdiction of the court to pronounce a judgment or conviction
for crime when there has been a plea of not guilty rests upon the
foundation of a verdict by a jury. Without that basis, the judgment
is void."
This is strong language from a judge whose opinion is entitled
to great respect.
In the second case, involving the completion of a trial by
consent with a jury of eleven persons, substantially the same was
held; but in a scholarly and thoughtful dissenting opinion, Judge
Aldrich reviews the common law practice upon the subject antedating
the Constitution, and, in the course of his opinion, after
referring to Article III, Section 2, and the Sixth Amendment, says
(pp. 813-814, 820-821):
"The aim of the constitutional safeguards in question is a full,
fair, and public trial, and one which shall reasonably and in all
substantial ways safeguard the interests of the state and the life
and liberty of accused parties. Whether the idea is expressed in
words or not, as is done in some of the bills of rights and
constitutions, a free and fair trial only means a trial as free and
fair as the lot of humanity will admit."
"All will doubtless agree, at least the unquestioned authority
is that way, that these protective provisions of
Page 281 U. S. 295
the Constitution are not so imperative that an accused shall be
tried by jury when he desires to plead guilty; or that his trial,
in the event of trial, shall be held invalid for want of due
process of law based upon the ground that he was not confronted
with his witnesses when he had waived that constitutional right and
consented to the use of depositions; or because he had not had
compulsory process for obtaining witnesses in his favor when he had
waived that; or because he had not had the assistance of counsel
when he had intelligently refused such constitutional privilege and
insisted upon the right to go to trial without counsel; or upon the
ground that he had not had a speedy trial when he had petitioned
the court for delay; or that his trial was not public when he had
consented to, or silently acquiesced in, a trial in a courthouse
with a capacity for holding only 12 members of the public, rather
than 1200."
"Beyond question, the right of an accused in a case like this to
have 12 jurors throughout is so far absolute as a constitutional
right that he may have it by claiming it, or even by withholding
consent to proceed without that number, and doubtless, under a
constitutional government like ours, the interests of the community
so far enter into any incidental departure from that number, in the
course of the trial, as to require the discretionary approval of
the court, and that the proper representative of the government
should join the accused in consent."
"
* * * *"
"It is probable that the history and debates of the
constitutional convention will not be found to sustain the idea
that the constitutional safeguards in question were in any sense
established as something necessary to protect the state or the
community from the supposed danger that accused parties would waive
away the interest which the government has in their liberties, and
go to jail. "
Page 281 U. S. 296
"There is not now, and never was, any practical danger of that.
Such a theory, at least in its application to modern American
conditions, is based more upon useless fiction than upon reason.
And when the idea of giving countenance to the right of waiver, as
something necessary to a reasonable protection of the rights and
liberties of accused, and as something intended to be practical and
useful in the administration of the rights of the parties, has been
characterized as involving innovation 'highly dangerous,' it would,
as said by Judge Seevers in
State v. Kaufman, 51 Iowa,
578, 581, 2 N.W. 275, 277, 33 Am.Rep. 148, 'have been much more
convincing and satisfactory if we had been informed why it would be
highly dangerous.'"
"
* * * *"
"Traced to its English origin, it would probably be found, so
far as the right of waiver was there withheld from accused parties,
that, in a very large sense. the reason for it was that conviction
of crime, under the old English system, operated to outlaw and to
attaint the blood, and to work a forfeiture of official titles of
inheritance, thus affecting the rights of third parties."
"In every substantial sense, our constitutional provisions in
respect to jury trials in criminal cases are for the protection of
the interests of the accused, and, as such, they may, in a limited
and guarded measure, be waived by the party sought to be
benefited."
The record of English and colonial jurisprudence antedating the
Constitution will be searched in vain for evidence that trial by
jury in criminal cases was regarded as a part of the structure of
government, as distinguished from a right or privilege of the
accused. On the contrary, it uniformly was regarded as a valuable
privilege bestowed upon the person accused of crime for the purpose
of safeguarding him against the oppressive power of the King and
the arbitrary or partial judgment of the
Page 281 U. S. 297
court. Thus, Blackstone, who held trial by jury both in civil
and criminal cases in such esteem that he called it "the glory of
the English law," nevertheless looked upon it as a "privilege,"
albeit "the most transcendent privilege which any subject can
enjoy." Book III, p. 379. And Judge Story, writing at a time when
the adoption of the Constitution was still in the memory of men
then living, speaking of trial by jury in criminal cases, said:
"When our more immediate ancestors removed to America, they
brought this great
privilege with them, as their
birthright and inheritance, as a part of that admirable common law
which had fenced round and interposed barriers on every side
against the approaches of arbitrary power. It is now incorporated
into all our State constitutions as a fundamental
right,
and the Constitution of the United States would have been justly
obnoxious to the most conclusive objection if it had not recognized
and confirmed it in the most solemn terms."
2 Story on the Constitution, § 1779.
In the light of the foregoing, it is reasonable to conclude that
the framers of the Constitution simply were intent upon preserving
the right of trial by jury primarily for the protection of the
accused. If not, and their intention went beyond this and included
the purpose of establishing the jury for the trial of crimes as an
integral and inseparable part of the court, instead of one of its
instrumentalities, it is strange that nothing to that effect
appears in contemporaneous literature or in any of the debates or
innumerable discussions of the time. This is all the more
remarkable when we recall the minute scrutiny to which every
provision of the proposed Constitution was subjected. The
reasonable inference is that the concern of the framers of the
Constitution was to make clear that the right of trial by jury
should remain inviolable, to which end no language was deemed too
imperative. That this was the purpose of the Third Article is
rendered
Page 281 U. S. 298
highly probable by a consideration of the form of expression
used in the Sixth Amendment.
"In all criminal prosecutions, the accused shall enjoy the right
to a speedy and public trial, by an impartial jury. . . ."
This provision, which deals with trial by jury clearly in terms
of privilege, although occurring later than that in respect of jury
trials contained in the original Constitution, is not to be
regarded as modifying or altering the earlier provision, and there
is no reason for thinking such was within its purpose. The first
ten amendments and the original Constitution were substantially
contemporaneous, and should be construed
in pari materia.
So construed, the latter provision fairly may be regarded as
reflecting the meaning of the former. In other words, the two
provisions mean substantially the same thing, and this is the
effect of the holding of this court in
Callan v. Wilson,
127 U. S. 540,
127 U. S. 549,
where it is said:
"And we do not think that the amendment was intended to supplant
that part of the third article which relates to trial by jury.
There is no necessary conflict between them."
Upon this view of the constitutional provisions, we conclude
that Article III, Section 2, is not jurisdictional, but was meant
to confer a right upon the accused which he may forego at his
election. To deny his power to do so is to convert a privilege into
an imperative requirement.
But the question remains whether the court is empowered to try
the case without a jury -- that is to say, whether Congress has
vested jurisdiction to that end. We think it has, although some of
the state, as well as some of the federal, decisions suggest a
different conclusion.
By the Constitution, Article III, Section; 1, the judicial power
of the United States is vested in the Supreme Court and such
inferior courts as Congress may from time to
Page 281 U. S. 299
time ordain and establish. In pursuance of that authority,
Congress, at an early day, established the district and circuit
courts, and, by § 24 of the Judicial Code (U.S.Code, Title 28, §
41(2)), the circuit courts having been abolished, expressly
conferred upon the district courts jurisdiction "of all crimes and
offenses cognizable under the authority of the United States." This
is a broad and comprehensive grant, and gives the courts named
power to try every criminal case cognizable under the authority of
the United States, subject to the controlling provisions of the
Constitution. In the absence of a valid consent, the district court
cannot proceed except with a jury, not because a jury is necessary
to its jurisdiction, but because the accused is entitled by the
terms of the Constitution to that mode of trial. Since, however,
the right to a jury trial may be waived, it would be unreasonable
to leave the court powerless to give effect to the waiver and
itself dispose of the case. We are of opinion that the court has
authority, in the exercise of a sound discretion, to accept the
waiver and, as a necessary corollary, to proceed to the trial and
determination of the case with a reduced number or without a jury,
and that jurisdiction to that end is vested by the foregoing
statutory provisions. The power of waiver being established, this
is the clear import of the decision of this court in
Schick v.
United States, 195 U. S. 65,
195 U. S.
70-71.
"By section 563, Rev.Stat. [superseded by § 24, Judicial Code],
the District Courts are given jurisdiction 'of all crimes and
offenses cognizable under the authority of the United States,
committed within their respective districts, or upon the high seas,
the punishment of which is not capital.' There is no act of
Congress requiring that the trial of all offenses shall be by jury,
and a court is fully organized and competent for the
transaction of business without the presence of a jury. "
Page 281 U. S. 300
See also In re Belt, 159 U. S. 95, and
Riddle v. Dyche, 262 U. S. 333,
both of which are out of harmony with the notion that the presence
of a jury is a constitutional prerequisite to the jurisdiction of
the court in a criminal case. The first of these cases involved the
validity of an act of Congress authorizing waiver of a jury in
criminal cases in the District of Columbia. The Court of Appeals of
that District upheld the statute in
Belt v. United States,
4 D.C.App.Cas. 25. Leave was asked of this court to file a petition
for writ of habeas corpus. Upon this application, the question to
be answered was (p.
159 U. S.
97):
"Does the ground of this application go to the jurisdiction or
authority of the Supreme Court of the District, or rather is it not
an allegation of mere error? If the latter, it cannot be reviewed
in this proceeding.
In re Schneider, 148 U. S.
162, and cases cited."
After reviewing authorities, it was held that the Supreme Court
of the District had jurisdiction to determine the validity of the
act which authorized the waiver, and that its action could not be
reviewed on habeas corpus.
In the second case, Riddle, on habeas corpus, assailed a
conviction in a federal district court upon the ground that the
jury was composed of only eleven men. This court held that the
trial court had jurisdiction, and a record showing upon its face
that a lawful jury had been impaneled, sworn and charged could not
be collaterally impeached. The remedy was by writ of error.
This conclusion in respect of the jurisdiction of the courts,
notwithstanding the peremptory words of the Third Article of the
Constitution, is fortified by a consideration of certain provisions
of the Judiciary Act of 1789. That act was passed shortly after the
organization of the government under the Constitution, and on the
day preceding the proposal of the first ten amendments by the first
Congress. Among the members of that Congress were many who had
participated in the
Page 281 U. S. 301
convention which framed the Constitution, and the act has always
been considered, in relation to that instrument, as a
contemporaneous exposition of the highest authority.
Capital
Traction Company v. Hof, supra, pp.
174 U. S. 9-10,
and cases cited. Section 9 of that act provides that
"the trial of issues in [of] fact, in the district courts, in
all causes except civil causes of admiralty and maritime
jurisdiction,
shall be by jury."
Section 12 provides that
"the trial of issues in [of] fact in the circuit courts shall,
in all suits, except those of equity, and of admiralty, and
maritime jurisdiction,
be by jury."
It will be observed that this language is mandatory in form, and
is precisely the same as that of Article III, Section 2, of the
Constitution. It is fair to assume that the framers of the statute,
in using the words of the Constitution, intended they should have
the same meaning, and if the purpose of the latter was
jurisdictional, it is not easy to avoid the conclusion that the
purpose of the former was the same. But this court has always held,
beginning at an early day, that, notwithstanding the imperative
language of the statute, it was competent for the parties to waive
a trial by jury. The early cases are collected in a footnote to
Kearney v.
Case, 12 Wall. 275,
79 U. S. 281,
following the statement:
"Undoubtedly both the Judiciary Act and the amendment to the
Constitution secured the right to either party in a suit at common
law to a trial by jury, and we are also of opinion that the statute
of 1789 intended to point out this as the mode of trial in issues
of fact in such cases. Numerous decisions, however, had settled
that this right to a jury trial might be waived by the parties, and
that the judgment of the court in such cases should be valid."
The Seventh Amendment, which is here referred to, provides, in
respect of suits at common law involving a value exceeding twenty
dollars, that "the right of trial
Page 281 U. S. 302
by jury shall be preserved", and it is significant that this
language and the positive provision of the statute that "the trial
of issues of fact . . . shall be by jury" were regarded as
synonymous.
Another ground frequently relied upon for denying the power of a
person accused of a serious crime to waive trial by jury is that
such a proceeding is against public policy. The decisions are
conflicting. The leading case in support of the proposition, and
one which has influenced other decisions advancing similar views,
is
Cancemi v. The People, 18 N.Y. 128, 137-138. In that
case, Cancemi was indicted for the crime of murder. After a jury
had been impaneled and sworn and the trial begun, under a
stipulation made by the prisoner and his counsel and counsel for
the people, and with the express consent and request of the
prisoner, a juror was withdrawn and a verdict subsequently rendered
by the remaining eleven jurors. On appeal, a judgment based upon
this verdict was reversed. The case was decided in 1858, and the
question was regarded by the court as one of first impression. The
following excerpt from the opinion indicates the basis of the
decision:
"The state, the public, have an interest in the preservation of
the liberties and the lives of the citizens, and will not allow
them to be taken away 'without due process of law ' (Const., art.
1, § 6), when forfeited, as they may be, as a punishment for
crimes. Criminal prosecutions proceed on the assumption of such a
forfeiture, which, to sustain them, must be ascertained and
declared as the law has prescribed. Blackstone (vol. 4, 189) says:
'The king has an interest in the preservation of all his subjects.'
. . . Objections to jurors may be waived; the court. may be
substituted for triers to dispose of challenges to jurors;
secondary in place of primary evidence may be received; admissions
of facts
Page 281 U. S. 303
are allowed, and, in similar particulars, as well as in relation
to mere formal proceedings generally, consent will render valid
what without it would be erroneous. A plea of guilty to any
indictment, whatever may be the grade of the crime, will be
received and acted upon if it is made clearly to appear that the
nature and effect of it are understood by the accused. In such a
case, the preliminary investigation of a grand jury, with the
admission of the accusation in the indictment, is supposed to be a
sufficient safeguard to the public interests. But when issue is
joined upon an indictment, the trial must be by the tribunal and in
the mode which the constitution and laws provide, without any
essential change. The public officer prosecuting for the people has
no authority to consent to such a change, nor has the
defendant."
"Applying the above reasoning to the present case, the
conclusion necessarily follows that the consent of the plaintiff in
error to the withdrawal of one juror, and that the remaining eleven
might render a verdict, could not lawfully be recognized by the
court at the circuit, and was a nullity. If a deficiency of one
juror might be waived, there appears to be no good reason why a
deficiency of eleven might not be, and it is difficult to say why,
upon the same principle, the entire panel might not be dispensed
with and the trial committed to the court alone. It would be a
highly dangerous innovation, in reference to criminal cases, upon
the ancient and invaluable institution of trial by jury, and the
constitution and laws establishing and securing that mode of trial,
for the court to allow of any number short of a full panel of
twelve jurors, and we think it ought not to be tolerated."
A decision flatly to the contrary, and one fairly representative
of others to the same effect, is
State v. Kaufman, 51 Iowa
578. The defendant there was indicted
Page 281 U. S. 304
for forgery. Upon the trial, one of the jurors, being ill, was
discharged with the consent of the defendant, and the trial
concluded with the remaining eleven. There was a verdict of guilty.
Upon appeal, the verdict was upheld. The authorities upon the
question are reviewed, and, in the course of the opinion, the court
says (pp. 579-580):
"A plea of guilty ordinarily dispenses with a jury trial, and it
is thereby waived. This, it seems to us, effectually destroys the
force of the thought that"
"the State, the public, have an interest in the preservation of
the lives and the liberties of the citizens, and will not allow
them to be taken away without due process of law."
"The same thought is otherwise expressed by Blackstone, vol. 4,
p. 189, that 'the king has an interest in the preservation of all
his subjects.'"
"It matters not whether the defendant is in fact guilty; the
plea of guilty is just as effectual as if such was the case.
Reasons other than the fact that he is guilty may induce a
defendant to so plead, and thereby the State may be deprived of the
services of the citizen, and yet the State never actually
interferes in such case, and the right of the defendant to so plead
has never been doubted. He must be permitted to judge for himself
in this respect. So in the case at bar. The defendant may have
consented to be tried by eleven jurors, because his witnesses were
then present, and he might not be able to get them again, or that
it was best he should be tried by the jury as thus constituted. Why
should he not be permitted to do so? Why hamper him in this
respect? Why restrain his liberty or right to do as he believed to
be for his interest? Whatever rule is adopted affects not only the
defendant, but all others similarly situated, no matter how much
they may desire to avail themselves of the right to do what the
defendant desires to repudiate. We are unwilling to establish such
a rule. "
Page 281 U. S. 305
Referring to the statement in the
Cancemi case that it
would be a highly dangerous innovation to allow any number short of
a full panel of twelve jurors, and one not to be tolerated, it is
said (p. 581):
"This would have been much more convincing and satisfactory if
we had been informed why it would be 'highly dangerous,' and should
'not be tolerated,' or at least something which had a tendency in
that direction. For if it be true, as stated, it certainly would
not be difficult to give a satisfactory reason in support of the
strong language used."
See also State v. Sackett, 39 Minn. 69, where the court
concludes its discussion of the subject by saying (p. 72):
"The wise and beneficent provisions found in the constitution
and statutes, designed for the welfare and protection of the
accused, may be waived, in matters of form and substance, when
jurisdiction has been acquired, and within such limits as the trial
court, exercising a sound discretion in behalf of those before it,
may permit. The defendants, having formally waived a juror, and
stipulated to try their case with 11, cannot now claim that there
was a fatal irregularity in their trial."
It is difficult to see why the fact, frequently suggested, that
the accused may plead guilty and thus dispense with a trial
altogether, does not effectively disclose the fallacy of the public
policy contention; for if the state may interpose the claim of
public interest between the accused and his desire to waive a jury
trial,
a fortiori it should be able to interpose a like
claim between him and his determination to avoid any form of trial
by admitting his guilt. If he be free to decide the question for
himself in the latter case, notwithstanding the interest of society
in the preservation of his life and liberty, why should he be
denied the power to do so in the former? It is no answer to say
that, by pleading guilty, there is nothing left for a jury to try,
for that simply ignores the question, which is not
Page 281 U. S. 306
what is the effect of the plea?, the answer to which is fairly
obvious, but, in view of the interest of the public in the life and
liberty of the accused, can the plea be accepted and acted upon, or
must the question of guilt be submitted to a jury at all events?
Moreover, the suggestion is wholly beside the point, which is that
public policy is not so inconsistent as to permit the accused to
dispense with every form of trial by a plea of guilty and yet
forbid him to dispense with a particular form of trial by
consent.
The truth is that the theory of public policy embodies a
doctrine of vague and variable quality, and, unless deducible in
the given circumstances from constitutional or statutory
provisions, should be accepted as the basis of a judicial
determination, if at all, only with the utmost circumspection. The
public policy of one generation may not, under changed conditions,
be the public policy of another.
It may be conceded, at least generally, that, under the rule of
the common law, the accused was not permitted to waive trial by
jury, as generally he was not permitted to waive any right which
was intended for his protection. Nevertheless, in the Colonies,
such a waiver and trial by the court without a jury was by no means
unknown, as the many references contained in the brief of the
Solicitor General conclusively show. But this phase of the matter
we do not stop to consider, for the rule of the common law, whether
exclusive or subject to exceptions, was justified by conditions
which no longer exist, and, as the Supreme Court of Nevada well
said in
Reno Smelting Works v. Stevenson, 20 Nev. 269,
279:
"It is contrary to the spirit of the common law itself to apply
a rule founded on a particular reason to a law when that reason
utterly fails --
cessante ratione legis, cessat ipsa lex.
"
Page 281 U. S. 307
The maxim seems strikingly apposite to the question here under
review. Among other restraints at common law, the accused could not
testify in his own behalf; in felonies, he was not allowed counsel
(IV Sharswood's Blackstone, 355, Note 14), the judge in such cases
occupying the place of counsel for the prisoner, charged with the
responsibility of seeing that the prisoner did not suffer from lack
of other counsel (
id.), and conviction of crime worked an
attaint and forfeiture of official titles of inheritance, which, as
Judge Aldrich points out (quotation
supra), constituted in
a large sense the reason for withholding from accused parties the
right of waiver.
These conditions have ceased to exist, and, with their
disappearance, justification for the old rule no longer rests upon
a substantial basis. In this respect, we fully agree with what was
said by the Supreme Court of Wisconsin in
Hack v. State,
141 Wis. 346, 351-352:
"The ancient doctrine that the accused could waive nothing was
unquestionably founded upon the anxiety of the courts to see that
no innocent man should be convicted. It arose in those days when
the accused could not testify in his own behalf, was not furnished
counsel, and was punished, if convicted, by the death penalty or
some other grievous punishment out of all proportion to the gravity
of his crime. Under such circumstances, it was well, perhaps, that
such a rule should exist, and well that every technical requirement
should be insisted on when the state demanded its meed of blood.
Such a course raised up a sort of a barrier which the court could
utilize when a prosecution was successful which ought not to have
been successful, or when a man without money, without counsel,
without ability to summon witnesses, and not permitted to tell his
own story, had been unjustly convicted, but yet, under the ordinary
principles of waiver,
Page 281 U. S. 308
as applied to civil matters, had waived every defect in the
proceedings."
"Thanks to the humane policy of the modern criminal law, we have
changed all these conditions. The man now charged with crime is
furnished the most complete opportunity for making his defense. He
may testify in his own behalf; if he be poor, he may have counsel
furnished him by the state, and may have his witnesses summoned and
paid for by the state; not infrequently, he is thus furnished
counsel more able than the attorney for the state. In short, the
modern law has taken as great pains to surround the accused person
with the means to effectively make his defense as the ancient law
took pains to prevent that consummation. The reasons which in some
sense justified the former attitude of the courts have therefore
disappeared, save perhaps in capital cases, and the question is,
shall we adhere to the principle based upon conditions no longer
existing? No sound reason occurs to us why a person accused of a
lesser crime or misdemeanor, who comes into court with his
attorney, fully advised of all his rights and furnished with every
means of making his defense, should not be held to waive a right or
privilege for which he does not ask, just as a party to a civil
action waives such a right by not asking for it."
The view that power to waive a trial by jury in criminal cases
should be denied on grounds of public policy must be rejected as
unsound.
It is not denied that a jury trial may be waived in the case of
petty offenses, but the contention is that the rule is otherwise in
the case of crimes of the magnitude of the one here under
consideration. There are decisions to that effect, and also
decisions to the contrary. The conflict is marked and direct.
Schick v. United States, supra, is thought to favor the
contention. There, the prosecution
Page 281 U. S. 309
was for a violation of the Oleomargarine Act (24 Stat. 209),
punishable by fine only. By agreement in writing, a jury was waived
and the issue submitted to the court. Judgment was for the United
States. This court held that the offense was a petty one, and
sustained the waiver. It was said that the word " crimes " in
Article III, Section 2, of the Constitution should be read in the
light of the common law, and, so read, it does not include petty
offenses, and that neither the constitutional provisions nor any
rule of public policy prevented the defendant from waiving a jury
trial. The question whether the power of waiver extended to serious
offenses was not directly involved, and is not concluded by that
decision. Mr. Justice Harlan, in a dissenting opinion, after
reviewing the authorities, concluded (p.
195 U. S. 83)
that
"The grounds upon which the decisions rest are, upon principle,
applicable alike in cases of felonies and misdemeanors, although
the consequences to the accused may be more evident as well as more
serious in the former than in the latter cases."
Although we reject the general view of the dissenting opinion
that a waiver of jury trial is not valid in any criminal case, we
accept the foregoing statement as entirely sound. We are unable to
find in the decisions any convincing ground for holding that a
waiver is effective in misdemeanor cases, but not effective in the
case of felonies. In most of the decisions, no real attempt is made
to establish a distinction beyond the assertion that public policy
favors the power of waiver in the former, but denies it in the
latter because of the more serious consequences in the form of
punishment which may ensue. But that suggested differentiation, in
the light of what has now been said, seems to us more fanciful than
real. The
Schick case, it is true, dealt with a petty
offense, but, in view of the conclusions we have already
Page 281 U. S. 310
reached and stated, the observations of the court (pp.
195 U. S. 71-72)
have become equally pertinent where a felony is involved:
"Article six of the amendments, as we have seen, gives the
accused a right to a trial by jury. But the same article gives him
the further right 'to be confronted with the witnesses against him
. . . and to have the assistance of counsel.' Is it possible that
an accused cannot admit and be bound by the admission that a
witness not present would testify to certain facts? Can it be that,
if he does not wish the assistance of counsel and waives it, the
trial is invalid? It seems only necessary to ask these questions to
answer them. When there is no constitutional or statutory mandate,
and no public policy prohibiting, an accused may waive any
privilege which he is given the right to enjoy."
In
Commonwealth v. Beard, 48 Pa.Super.Ct. 319, the
prosecution was for conspiracy, and there, as here, one of the
jurors was discharged and the trial concluded with the remaining
eleven. Judgment on a verdict of conviction was sustained. The
court, after reviewing the conflicting decisions, was unable to
find any good reason for differentiating in the matter of waiver
between the two classes of crimes. We fully endorse its concluding
words upon that subject (pp. 323-324):
"It surely cannot be true that the public is interested in the
protection of an accused in proportion to the magnitude of his
offending -- that its solicitude goes out to the great offender but
not to the small -- that there is a difference in point of
sacredness between constitutional rights when asserted by one
charged with a grave crime and when asserted by one charged with a
lesser one. Hence, when it is held in
Schick v. United
States, 195 U. S. 65 (24 Sup.Ct.Repr.
826), that, in trials for the lowest grades of offenses, the
accused may waive not only the continued presence of the full
number of jurors required
Page 281 U. S. 311
to make up a jury, but the right to trial by jury, the only
possible conclusion is that the purely theoretical element of
public concern, as potential to override the accused's own free
choice and render him effectually unfree even before conviction and
sentence, cannot be regarded as in reality much of a factor in any
case."
This view of the matter subsequently had the approval of the
supreme court of the state in
Commonwealth ex rel. Ross v.
Egan, 281 Pa. 251. After noting the conflict of authority, and
that a waiver has been held to be effective in a number of states
which are named, it is there said (pp. 255, 256, 257):
"A defendant is supposed to understand his rights, and may be
aided, if he so desires, by counsel to advise him. There are many
legal provisions for his security and benefit which he may dispense
with absolutely, as, for instance, his right to plead guilty and
submit to sentence without any trial whatsoever."
"
* * * *"
"The theory upon which the opposing cases are decided seems to
rest on the proposition that society at large is as much interested
in an impartial trial of a defendant, who may be sentenced to
imprisonment, as he himself is, and therefore no permission to
waive any right, when charged with a felony, should be accorded to
him. There may be reason for applying this rule to capital cases,
as has been done in Pennsylvania, but such a principle ought not to
be invoked to relieve those charged with lesser offenses, such as
larceny (though technically denominated a felony), from the
consequences of their own voluntary act, and where it appears by
the record that consent to the course pursued was freely given, the
defendant should not be heard thereafter to complain."
"
* * * *
Page 281 U. S.
312
"
"The solution of the question depends upon the determination
whether a trial by less than twelve is an irregularity or a
nullity. If the latter be held, no sentence imposed may be
sustained, but the contrary is true if the former and correct
conclusion be reached. In the case of misdemeanors, the Superior
Court has sustained the sentences where a voluntary waiver
appeared:
Com. v. Beard, supra. No real justification for
a different decision in the case of felonies, not capital, can be
supported."
See also Commonwealth v. Rowe, 257 Mass. 172, 174-176;
State v. Ross, 47 S.D. 188, 192-193, involving a
misdemeanor, but followed in
State v. Tiedeman, 49 S.D.
356, 360, involving a felony.
In affirming the power of the defendant in any criminal case to
waive a trial by a constitutional jury and submit to trial by a
jury of less than twelve persons, or by the court, we do not mean
to hold that the waiver must be put into effect at all events. That
perhaps sufficiently appears already. Trial by jury is the normal
and, with occasional exceptions, the preferable mode of disposing
of issues of fact in criminal cases above the grade of petty
offenses. In such cases, the value and appropriateness of jury
trial have been established by long experience, and are not now to
be denied. Not only must the right of the accused to a trial by a
constitutional jury be jealously preserved, but the maintenance of
the jury as a factfinding body in criminal cases is of such
importance and has such a place in our traditions that, before any
waiver can become effective, the consent of government counsel and
the sanction of the court must be had, in addition to the express
and intelligent consent of the defendant. And the duty of the trial
court in that regard is not to be discharged as a mere matter of
rote, but with sound and advised discretion, with an eye to avoid
unreasonable or undue departures from that mode of
Page 281 U. S. 313
trial or from any of the essential elements thereof, and with a
caution increasing in degree as the offenses dealt with increase in
gravity.
The question submitted must be answered in the affirmative.
It is so ordered.
THE CHIEF JUSTICE took no part in the consideration or decision
of this case.
MR. JUSTICE SANFORD participated in the consideration and agreed
to a disposition of the case in accordance with this opinion.
MR. JUSTICE HOLMES, MR. JUSTICE BRANDEIS, and MR. JUSTICE STONE
concur in the result.