This article examines Supreme Court jurisprudence regarding three circumstances in which the communitarian function of trial by jury is apparently inconsistent with the rights of the accused: 1) where the accused wishes to waive her right to trial by jury and be tried by the court; 2) where the accused wishes to exercise peremptory challenges to eliminate a cognizable group of jurors that she believes will tend to be unsympathetic to her defense; and 3) where the accused opposes television coverage of her trial contrary to the rules or ruling of the court. In each of these circumstances the accused may be confronted with the prospect of majoritarian bias that, while extremely difficult if not impossible to demonstrate, poses a genuine threat to her fair trial rights. The Supreme Court, when confronted with these circumstances, has implicitly balanced the communitarian function of the jury trial against the rights of the accused, without explicitly acknowledging the conflict. The Court has instead engaged in fictions to obscure the fact that the interests of the accused and those of the community diverge. This article argues, first of all, that the communitarian function of public trial by jury in criminal cases is an important aspect of the administration of justice in our democratic society. As such, it should be explicitly acknowledged as a matter of constitutional doctrine as well as public policy. Secondly, this article argues that, despite the jury trial's important communitarian function, there should be a presumption in favor of the interests of the accused whenever there is a conflict in an area of Sixth Amendment protection. That presumption should be overcome only where the government can demonstrate that there is no genuine threat of bias against the accused. This conclusion has three foundations: 1) the Sixth Amendment's specific establishment of public trial by jury as a protection for the accused; 2) the problem of majoritarian bias and the role of the judiciary in protecting the accused against such bias; and 3) the compromising of the communitarian function itself that results whenever it is asserted to burden the rights of the accused.
George C. Harris,
The Communitarian Function of the Criminal Jury Trial and the Rights of the Accused,
74 Neb. L. Rev.
Available at: http://digitalcommons.unl.edu/nlr/vol74/iss4/5