The Supreme Court against the Criminal Jury by Murley John A.;Sutton Sean D.;

Author:Murley, John A.;Sutton, Sean D.;
Language: eng
Format: epub
Tags: undefined
Publisher: Lexington Books
Published: 2012-08-15T00:00:00+00:00

It is clear from Madison’s letter that he is attempting to restore the older political and geographical boundaries that had been customary in England. It is just as clear that the vicinage rule had fallen into widespread disuse in the states, with little agreement on what the new boundaries were to be. Justice White in Williams claimed that the vicinage requirement was an equally essential element of trial by jury as the twelve-member jury and equally expendable. In Apodaca, Justice White uses his decision in Williams as a precedent for reaching the same conclusion regarding the unanimity requirement.[31]

Blackstone’s view was also contrary to Justice White’s view and in substantial agreement with the Senate and the practice of the states. Blackstone did not regard the vicinage requirement as essential to trial by jury. Indeed, it is from Blackstone that we learn that when the vicinage requirement came into conflict with essential elements of trial by jury, the vicinage requirement gave way. “But this convenience was overbalanced by another very natural and almost unavoidable inconvenience; that jurors, coming out of the immediate neighborhood, would be apt to intermix their prejudices and partialities in the trial of right.”[32] Further, Blackstone had continued that the vicinage rule had been giving way for a number of years. “And this our law was so sensible of, that it for a long time has been gradually relinquishing this practice. . . . The jury being now only to come . . . from the body of the county at large, and not de vicineto from the particular neighborhood.”[33]

There is no evidence from Blackstone, from state practice, or from the records of the Senate to suggest that either the size of the jury or the unanimity requirement were similarly expendable. The historical foundation of Justice White’s opinions in both Williams and Apodaca rests on a misleading historical analogy. It is far more likely that what was not said during the discussion of the Sixth Amendment simply reflects the universal agreement that trial by jury included as an essential element the unanimous jury verdict. Justice White grudgingly recognizes the probability of this view but does not give it any weight in his decision. Justice White simply chooses, without any historical evidence, to repeat: “As we observed in Williams the relevant constitutional history cast considerable doubt on the easy assumption.” White was certainly correct in viewing them as related issues. As Zeisel was quick to point out majority verdicts were reductions with a vengeance. For a majority verdict requirement is far more effective in nullifying the potency of minority viewpoints than is the outright reduction of a jury to a size equivalent to the majority that is allowed to agree on a verdict. Minority viewpoints fare better on a jury of ten that must be unanimous than on a jury of twelve where only ten members must agree on a verdict. Again using simple probability frequencies, Zeisel demonstrates how severe the reduction in representation of minority views will be, and thus how mistaken is White’s functional standard.

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