Vermont Bar Journal, Vol. 40, No. 2 Vermont Bar Journal, Fall 2016, Vol. 42, No. 3 | Page 14

Ruminations

over time beyond equitable matters, probate, book account, and trustee process,
in new areas of the law, including administrative and municipal appeals and lessor
offenses.
As citizens we have three essential
rights—to vote, run for office, and be tried
by a jury, in appropriate cases. The Vermont Constitution treats the right to a trial
by jury in three places. Article 10 of the Vermont Constitution provides:
That in all prosecutions for criminal
offenses, a person hath a right to be
heard by oneself and by counsel; to
demand the cause and nature of the
accusation; to be confronted with the
witnesses; to call for evidence in the
person’s favor, and a speedy public
trial by an impartial jury of the country; without the unanimous consent of
which jury, the person cannot be found
guilty; nor can a person be compelled
to give evidence against oneself; nor
can any person be justly deprived of
liberty, except by the laws of the land,
or the judgment of the person’s peers;
....
Article 12 states, “That when any issue in
fact, proper for the cognizance of a jury is
joined in a court of law, the parties have a
right to trial by jury, which ought to be held

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sacred.” Section 38 explains, “Trials of issues, proper for the cognizance of a Jury
as established by law or by judicial rules
adopted by the Supreme Court not inconsistent with law, in the Supreme Court,
the Superior Court and other subordinate
courts, shall be by Jury, except where parties otherwise agree; and great care ought
to be taken to prevent corruption or partiality in the choice and return, or appointment of Juries.”
The jury is so important a constitutional principle that Vermont was obliged to
amend its constitution twice just to allow
defendants to waive a jury trial in criminal prosecutions. In 1924, Article 10 was
amended to allow the accused, in prosecutions for any crime except those punishable
by death or imprisonment in the state prison, to waive a jury trial in favor of trial by a
judge. In 1974, the constitutional amendments of that year authorized defendants
to waive a jury trial in any cause, but only
with the consent of the judge and the prosecuting officer.4 To waive a jury trial, a defendant must answer colloquies from the
judge to ensure the concession is fully understood by the defendant.5
The U.S. Constitution also guarantees
a trial by jury, but it applies solely to proceedings involving federal crimes, and not
civil matters, which are ruled by the states.
The Vermont constitutional guarantee is

THE VERMONT BAR JOURNAL • FALL 2016

consequently broader than the Seventh
Amendment.6
Alexis de Tocqueville described the jury
as both an individual right and a community right, a judicial and a political institution.
It “vests the people . . . with the direction
of society,” instead of leaving the decision
to the government. He marveled at a system where a “random number of citizens
[is] chosen indiscriminately, and invested in
the temporary right of judging.”7 Justice
Scalia called the jury the “spinal column
of American democracy.”8 Joel Baker, in
his 1891 address to the VBA, repeated the
old maxim that the jury system is “a great
school into which admission is free and always open.”9
There was an unsuccessful movement
at the end of the 19th century to abolish
jury trials entirely (amending them out of
the constitutions of the various states). This
idea was inspired in part by distrust of the
system and the experience of jury nullification, where juries would make decisions on
what they believed was just, in spite of the
law.10 A judge is trained to avoid compassion, sympathy, sorrow, pity, anger, passion
or prejudice, in making decisions. A jury is
not, and the worst criticism of the jury system is the fear that decisions are influenced
by feelings.
Joel Baker listed the criticisms of the jury
system among those who argued for its ab-

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