Right to Trial?
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By Lawyer
Nathan Wente

“Where the people fear the government you have tyranny.
Where the government fears the people you have liberty.”
--John Basil Barnhill (1914)

This quote is so simple and yet so profound in its truth. How then do we, the people, cause our government to "fear" us so that we may maintain liberty and live free? I believe the answer is in becoming educated about our rights as they are memorialized under the law, especially under the United States Constitution. Without knowledge and exercising of our rights there is no incentive for the government to honor them.

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6th Amendment: Right to Trial?

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…

The right to a jury trial should be, and was designed by our founders, as one of the most fundamental rights bestowed upon the citizenry to keep the government under our control.

When a defendant exercises their right to a jury trial it is the jury that ultimately decides whether the defendant is guilty or not. In these circumstances a great deal of control is relinquished by the government and put into the hands of the citizenry.

A jury decides what evidence is credible. For instance, if a witness provides testimony the jury decides whether that testimony is trustworthy. If the evidence is deemed credible then it will be considered. If not it should be disregarded.

Once the evidence has passed the “credibility test” the jury must then decide, using only the evidence they’ve deemed credible, whether this evidence is sufficient to prove the allegation.

The executive branch, for several reasons, does not favor relinquishing this control to a jury. Though I believe this to be a common sense assertion, I offer December’s letter regarding plea-bargaining as some evidence to support this claim.

Separately, the jury could engage in what is commonly referred to as jury nullification. Jury nullification is, generally speaking, when a jury returns a not-guilty verdict even though they believe a defendant has violated the law.

The result of jury nullification is to nullify the laws passed by the legislature, which of course is not favorable to the legislature or the special interest groups lobbying for criminal sanctions. I speak of jury nullification only so that you know what it is. You should know there have been cases where jurors are prosecuted for contempt of court if there is evidence they’ve engaged in jury nullification. I believe this just further corroborates my message.

The point I am making here is that the right to trial by jury takes the control of the outcome of a criminal case away from the government and gives it to the citizenry. This right, though it has its limitations, is a keystone in maintaining liberty and imposing restraint on government operations.

The government recognizes this and, just like many of our other rights, this right is being attacked. I offer the following examples of how this right is slowly being dismantled:

1) Most states, if not all, have labeled low level criminal offenses as infractions or violations. These offenses, the government tells us, are not crimes and thus, a person is not afforded the right to trial by jury.

2) In Arizona the right to a jury trial for 1st time DUI offenses was recently abolished. The primary rationale given was that if it was not punishable by jail then there should be no jury trial right.

3) The Delaware Constitution actually contemplates the elimination of jury trials for misdemeanors.

These are just a few examples. Why would we relinquish this fundamental right? Do you trust our government so deeply as to entitle them to be judge, jury, and executioner? If so, what practical difference is there between our Constitutional government and a monarchy?

Except for perhaps the right to vote, I contend the right to jury trial is, arguably, the most fundamental right memorialized under our Constitution to restrain our government. Of course there are limitations and, to a large degree, the practical affect of the right is currently suffering some dysfunction. However, a more educated society is the answer; not abolition of the right.

Know your rights.
Stand for freedom.

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