On April 25, the California Assembly passed AB 1401 which would allow lawfully present immigrants to serve on state juries. As of this writing, the bill is making its way through the state Senate. While the bill’s ultimate fate is unknown, its mere introduction earlier in April caused a ruckus in the news media and its passage in the Assembly has sparked a firestorm of public opinion. Despite clear language to the contrary, some sources are going so far as to announce that the bill will allow “illegal immigrants to serve on juries”. Just to be clear, it won’t; but scroll through the comments on any of the articles covering AB 1401 and it quickly becomes clear that the bill has ignited a raging controversy over civil rights, immigration issues, and the nature of citizenship itself.
Instead of discussing or arguing about immigration policies, I have decided to provide defendants and their families with relevant information about what the bill’s passage might mean in practice. After some research into the history of the Jury Right, here is what I found.
The right to a trial…
The Sixth Amendment to the United States Constitution opens with the line “In all criminal prosecutions, the accused shall enjoy the right to a speedy and public trial, by an impartial jury”. Contrary to popular belief, the Constitution says nothing explicit about a “jury of peers”. This latter construction comes not from the document itself, but from later interpretation and public colloquy. However, despite the lack of an express constitutional mandate that defendants be judged by their peers, the sanctity and power of an impartial jury remains one of only a handful of subjects about which the Supreme Court has ever ruled in unanimity. Which begs the question, how is an impartial jury composed and where does everyone get the idea that criminal guilt will be determined by a group of the defendant’s peers?
by a jury…
The notion of using juries to judge criminal guilt was well established in legal practice long before the Constitution was drafted. In fact, the practice traces its roots all the way back to the signing of the Magna Carta in the 13th Century. Early iterations of the practice were designed more for the benefit of the British royalty than common criminals. However, by the 18th century Thomas Blackstone was able to pen his famous exposition on the twofold virtue of the jury right as a protection against overreaching by the monarchy. Enshrined in every one of the original 13 State Constitutions, and in all States since added to the Union, this right has always been the core feature of American criminal jurisprudence.
The right to a jury trial reflects a fundamental decision not to entrust the life or liberty of any person wholly to the government. Even an impartial judiciary, it is thought, might at times be swayed by outside considerations making the jury trial a bulwark against many possible miscarriages of justice. In fact, so critical is this right to our criminal system, that without it, we could have no enduring faith in even a single criminal conviction.
Juries work so well because of the high degree of inviolability afforded them under our legal structure. So sacred are the judgments made by juries, that the Supreme Court has unanimously agreed that juries even have the power to find a defendant not guilty against the great weight of the evidence. The entire body of facts in a criminal case is determined by the jury, and no fact decided in a defendant’s favor by a jury is subject to later review.
But who makes up the jury pool remains an open question. In years past women, minorities, atheists, and non-landholders were deemed unqualified to sit on juries. Each of these restrictions has since been struck down. However, despite these many gradual improvements, disparities between jury venires and defendants are still rampant. Jury lists, often drawn from voter registration and DMV rolls, represent a largely middle-class group with frequent racial and ideological tilt. Are such juries truly “impartial” as required by the Constitution?
The California Assembly does not think so and AB 1401 represents their attempt to remedy one aspect of the issue. Whether the bill, if passed, will help rather than hurt our justice system remains to be determined.
I remain optimistic that our jury right will ultimately grow stronger as a result of this broadened juror pool. Bear in mind, judges and attorneys do not have to be citizens, perhaps jurors should not either. However, time will be the ultimate judge.