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Frank Ochoa: Jury Duty and American Constitutional Identity

A regular Noozhawk contributor offered his take on jury service in the United States in “Forced Jury Duty Is Not Good Justice.” The author likens jury duty to conscription into the military, impressment, involuntary servitude and even slavery. The reader may find his observations astute, or ridiculous.

Frank Ochoa
Frank Ochoa

Why do we have a system that requires citizens to be available for jury duty on a periodic basis? There is no constitutional requirement that a person go to court for jury duty. But jury service is required by all state and federal statutory legal frameworks. The purpose of these laws is to give effect to the constitutional rights regarding jury trials that do exist in our Constitution.

Historically, the jury trial process is thought to have begun in France, before the time of the Norman conquest. It was imported to England at that time, around 1066. It was firmly entrenched in the English legal system by the 12th century, having supplanted the medieval forms of trials: those by battle, ordeal and wager. By the 1400s, the model for the jury as a passive, impartial decider of the facts was well established.

The jury trial became a tool of the American Revolution. When a colonist was accused of a violation of a hated British law, the defendant’s peers on a jury could make a finding of not guilty and, in effect, nullify that unjust law. The jury trial thus became an instrument by which to foment rebellion and, eventually, a war of independence. The jury trial then became melded into the fabric of a newborn nation in the creation of our Constitution.

Criminal cases

Article III, Section 2 of the U.S. Constitution, provides, in part, “The Trial of all Crimes, except in Cases of Impeachment, shall be by Jury ... .”

Amendment VI of the U.S. Constitution gave detail to the criminal jury trial right: “In all criminal prosecutions, the accused shall enjoy the right to a speedy 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.”

Civil cases

The Constitution, in its original form, did not address the right to a jury trial in civil cases. Jury trials in many types of civil cases had existed for centuries. Many colonies’ federal constitutional ratification conventions were prolonged by strong objection to a national constitution lacking a right to jury trials in civil cases.

Alexander Hamilton’s position was that the absence of a mention of juries in such cases does not bar the later enactment of laws requiring jury trials. He also wrote: “The friends and adversaries of the plan of the (Constitutional) convention, if they agree in nothing else, concur at least in the value they set upon the trial by jury; Or if there is any difference between them, it consists of this; the former regard it as a valuable safeguard to liberty, the latter represent it as the very palladium of free government” (The Federalist, No. 83).

Thomas Jefferson said, “I consider trial by jury as the only anchor ever yet imagined by man, by which a government can be held to the principles of its constitution.” Some founders felt that in the political sphere, jury service was more important than voting to the new democracy.

Shortly thereafter, the Seventh Amendment to the Constitution resolved the civil jury trial right issue as to certain cases: “In Suits at common law, where the value in controversy shall exceed twenty dollars, the right of trial by jury shall be preserved ... .”

Without citizens willing to perform jury duty, these constitutional rights are rendered meaningless. Our founders’ basic principles are tossed aside because we “just don’t have the time.”

Jury trials and our constitutional identity

Law professor Andrew Ferguson writes about the decline of the jury trial within the context of the structure of our legal system and proposes a reinvigoration of the jury system. Professor Ferguson writes, “Turning the dread of jury duty into a form of enjoyment begins with understanding why jury duty matters. Simply put, it may well be the closest you ever come to the Constitution — not just exercising a right it gives you, but participating in the process through which constitutional rights and values come alive in practice. In a country formed from a single founding document, it is amazing how disconnected most of us are from its meaning and purpose. Jury duty changes that reality — it is a day of constitutional connection.”

Ferguson views the jury trial as a vehicle for the furtherance of a constitutional identity by our founders. Its other function, as a fact-finder in an individual dispute, has supplanted this ideation over time. That process has resulted in the diminution of the value and importance of the jury trial in our governmental framework. He presents a roadmap for the reinvigoration of the constitutional identity role for jury trials in the United States.

In the meantime, jury service remains the backbone of the dispute resolution process in our jury trial framework. And people can, and do, lawfully avoid such service. Any legitimate hardship will earn you at least a deferral. Among the lawful grounds for excuse is economic hardship.

When it comes to jury duty, your peers include local judges, legislators, lawyers, police officers, deputy district attorneys and public defenders, doctors, teachers, butchers, bakers and candlestick makers. Former Presidents Barack Obama, George W. Bush and Bill Clinton each have been called in for jury service in their home jurisdictions after leaving office.

And, according to a statewide Rule of Court effective since 2002, each citizen can be called in only one time for jury service on one case every 12 months. In earlier years, I had the same people called in on multiple occasions in short periods of time with some people serving on back-to-back juries.

National statistics demonstrate that more than 97 percent of civil cases and more than 90 percent of criminal cases are resolved without any form of trial, either by a jury or the court (judge). I would estimate that local numbers are higher than that. Any judge will tell you that jurors performing jury duty is critical to these statistics.

The juror, simply by showing up for duty, bestows a beneficial impact on the justice system. When the parties know that the jurors are across the street, in the jury assembly room, ready to be escorted to the courtroom to commence the jury selection process, the most difficult case can suddenly resolve.

When that happened, I would always walk across the street and address the jurors, explaining what had happened, thanking them for their service and excusing them from further duty. They invariably appreciated being informed that the mere act of responding to the call had a beneficial impact on the system. They also were appreciative of the fact that their service was complete, for at least another year.

Serving jurors invariably came away from the experience with a greater understanding of, and an immensely enhanced appreciation for, our constitutional system of justice. Many establish friendships with other jurors, people they otherwise would never have known. They had participated in our constitutional democracy, they had placed their hands firmly on its control levers and they were grateful for having had that opportunity.

Federal court Judge George Boldt said, “Jury service honorably performed is as important in the defense of our country, its Constitution and laws, and the ideals and standards for which they stand, as the service that is rendered by the soldier on the field of battle in time of war.” Jurors are not conscripted or enslaved. They act to honor the social and political compact we inherit and benefit from on a daily basis as citizens of this great land.

I know I speak for my many former colleagues from my years on the bench when I express gratitude for your service as jurors. You breathe life into words on a piece of paper and give form to a democratic constitutional system of governance. Our collective adherence to that singular form of government defines us as Americans. It constitutes the glue that binds us together.

We have the freedom to be active participants, or to remain passive observers in this hallowed endeavor. Yes, we each must respond to the jury summons. If our mindset prevents us from being a meaningful participant, that truth soon will be known and we will be on our way. If we choose to meaningfully serve, we breathe life into our founders’ ongoing construction project and contribute to our constitutional identity.

Click here for an expanded version of this article.

 — Frank Ochoa is an attorney who is “of counsel” with the Santa Barbara firm of Sanger Swysen & Dunkle. He represents clients in civil and criminal cases, but focuses on alternative dispute resolution, namely arbitration and mediation of disputes. He was a judge of the Santa Barbara Superior Court from 1983 to 2015. He has degrees in English and history from UC Santa Barbara. He is an adjunct faculty member at UCSB, teaching “Latina/os and American Law” in the Chicana/o Studies Department and the Political Science Department. The opinions expressed are his own.

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