Chapter XII
Procedures Which Must Be Followed By Government In The Exercise Of Its Power

12.1 The Bill Of Rights

      The United States Constitution, as well as those of the States, sets forth a number of procedures which the officers of government must follow in the exercise of their powers. Legislatures, courts and the executive branch have adopted a great many additional rules specifying procedures which pertain to the functioning of government.

      We will concern ourselves here only with the provisions in the Federal Constitution and will further limit our discussion to the procedural requirements contained in the Bill of Rights which serve to protect one accused of a crime.

      While the Bill of Rights contains provisions not related to procedure, its brevity permits us to quote it here in full:

Article the First

Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof; or abridging the freedom of speech, or of the press; or the right of the people peaceably to assemble, and to petition the government for a redress of grievances.

Article the Second

A well regulated militia being necessary to the security of a free State, the right of the people to keep and bear arms shall not be infringed.

Article the Third

No soldier shall, in time of peace, be quartered in any house without the consent of the owner, nor in time of war, but in the manner prescribed by law. [p. 150]

Article the Fourth

The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated, and no warrants shall issue, but upon probable cause, supported by oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized.

Article the Fifth

No person shall be held to answer for a capital or otherwise infamous crime, unless on a presentment or indictment of a grand jury, except in cases arising in the land or naval forces, or in the militia when in actual service in time of war or public danger; nor shall any person be subject for the same offence to be twice put in jeopardy of life or limb; nor shall be compelled in any criminal case to be witness against himself; nor be deprived of life, liberty, or property, without due process of law; nor shall private property be taken for public use without just compensation.

Article the Sixth

In all criminal prosecutions the accused shall enjoy the right of a speedy and public 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 defence.

Article the Seventh

In suits at common law, where the value in controversy shall exceed twenty dollars, the right of trial by jury shall be preserved; and no fact tried by a jury, shall be otherwise reexamined in any court of the United States than according to the rules of the common law.

Article the Eighth

Excessive bail shall not be required, nor excessive fines imposed, nor cruel and unusual punishments inflicted.

Article the Ninth

The enumeration in the Constitution of certain rights, shall not be construed to deny or disparage others retained by the people. [p. 151]

Article the Tenth

The powers not delegated to the United States by the constitution or prohibited by it to the States, are reserved to the States respectively, or to the people.

12.2 Governments are Bound By the Procedural Requirements of the Constitution

      The express purpose of the Bill of Rights is to place restrictions on the power of the Federal government. These restraints were imposed by the people acting through their representatives, and according to the provisions of the Constitution they can be removed only with the consent of the people. Until such time, the officers of the Federal government are duty bound to obey them. It will be recognized that many of the prohibitions and denials of power contained in the Bill of Rights apply equally to State governments either because of similar provisions in their own Constitutions or because the Supreme Court of the United States has decreed them to be so applicable.

12.3 4TH Amendment — Unreasonable Searches and Seizures

      The first step in a criminal prosecution is to search for and seize evidence of the alleged crime and make an arrest of the suspect.

      The Fourth Amendment places restrictions upon these procedures by requiring first that searches and seizures shall not be unreasonable and secondly that warrants for making a search, seizure or an arrest shall not be issued unless someone has stated under oath a probable cause for such, which statement shall describe the place to be searched and the persons or things to be seized.

      These requirements protect the citizens against being harassed or bothered by the police unless someone has stated a good cause for doing so and has done so under oath for which he may be prosecuted for perjury if the statement is false. [p. 152]

12.4 5Th Amendment — The Grand Jury Clause

      The Fifth Amendment contains a number of procedural requirements. One of them guarantees the accused a right to be indicted by a grand jury in certain cases. It provides that “No person shall be held to answer for a capital, or otherwise infamous crime, unless on a presentment or indictment of a Grand Jury, ...” By this clause, even the authority to formally accuse a person of having committed a serious crime is taken out of the hands of government and placed in those of the citizens. It is presumed that a jury will have no special interest in prosecuting a person such as those in government might have. A person’s reputation can be ruined or seriously injured by being formally accused of having committed a serious crime and so the power to do this was withheld from the government.

      There are exceptions to this rule. As the Fifth Amendment provides, the right to be indicted by a grand jury does not apply “in cases arising in the land or naval forces, or in the militia, when in actual service in time of war or public danger.”

      Generally speaking, “a capital, or otherwise infamous crime” is one punishable either by death or imprisonment in a state prison or penitentiary.

12.5 The Double Jeopardy Clause

      The Fifth Amendment provides that no person shall “be subject for the same offence to be twice put in jeopardy of life or limb.”

      This clause protects a person accused of a crime in two ways: (1) He cannot be punished twice for the same offense, and (2) He cannot be tried twice for the same crime whether or not he was acquitted or convicted in the first trial. Once the accused has been acquitted by a jury, he is completely free from danger of conviction of the offense for which he was tried. His case cannot even be appealed by government to a higher court. The acquittal is the end of the matter.

      If the jury is unable to reach a unanimous verdict in a case and is discharged by the court, the double jeopardy clause does not preclude a new trial of the same matter. [p. 153]

12.6 The Privilege Against Self-Incrmination

      Another procedural restraint contained in the Fifth Amendment provides that no person “shall be compelled in any criminal case to be a witness against himself.”

      The privilege granted a person to refuse to testify or answer questions regarding a matter for which he might be criminally prosecuted is granted primarily for the purpose of preventing the officers of government from torturing a confession from the accused. This diabolical practice has been, and still is extremely common to governments who are not so restrained.

12.7 The Requirement Of Due Process Of Law

      The last procedural requirement of the Fifth Amendment reads:

No person shall ... be deprived of life, liberty, or property, without due process of law.

      The term “due process of law” had its origin in the English Common Law, and at the time of the formation of the Constitution had a well-defined meaning. The term can be traced back to the Statutes of Edward III of England for the year 1355. The sentence in which it is contained reads as follows:

No man of what state or condition he be, shall be put out of his lands or tenements nor taken, nor disinherited, nor put to death, without he be brought to answer by due process of law. (Chapter 3 of 28 Edw. III, 1355)

      This statute had its origin in the famous Chapter 29 of the Magna Carta of 1225 in which the king bound himself as follows:

No free man shall be taken or imprisoned or deprived of his freehold or his liberties or free customs, or outlawed or exiled, or in any manner destroyed, nor shall we come upon him or send against him, except by a legal judgment of his peers or by the law of the land. [p. 154]

      Insofar as procedures are concerned then, this “due process of law” clause requires that no person shall be deprived of life, liberty, or property, without a jury trial. To state the matter otherwise, no person shall be punished for a crime without first having been convicted by a jury. There can be no question but that the term, “deprived of life, liberty or property” is referring to punishment under a criminal law. No other meaning can be given to it. For what other reason would government be depriving a person of these possessions? It could take his property for taxes but certainly not his life or liberty. It might also condemn his property for public use but this matter is specifically provided for by the clause which immediately follows which reads: “nor shall private property be taken for public use, without just compensation.” The “due process of law” clause then demands that government shall never inflict a punishment without the consent of a jury. We shall treat this matter further in connection with our discussion of the Sixth Amendment.

12.8 6Th Amendment — The Right To A Jury Trial

      The only provision contained in the Sixth Amendment which we shall discuss is the one pertaining to a jury trial. The essential meaning of the other procedural requirements are so clearly stated and easily understood that for our purposes here they need no elaboration. The provision for a jury trial also seems to be so clear that it could not be misunderstood. However, some extremely serious questions have been raised regarding this right which need to be considered.

      The first question we will examine is whether or not the protection afforded extends to “all criminal prosecutions” as the amendment clearly states, or only to some of them. The express wording of the provision would seem to place the matter beyond dispute. Further evidence that the Founding Fathers meant to require a jury trial in “all” criminal prosecutions is found in the Fifth Amendment discussed above. We noted that the government is there forbidden to punish any person by depriving him of either life, liberty or property without due process of law and that the term “due process of law” was meant to include a trial by jury.

      But this is not the end of the evidence of the meaning intended [p. 155] by this clause. Among the original provisions of the Constitution we find this:

The trial of all crimes, except in cases of impeachment, shall be by jury. (Art. III, Sec. 2)

      Once more we find the word “all” used to describe the criminal prosecutions meant to be covered. The only exception mentioned is that of impeachment and it seems obvious that all other cases were meant to be included. An impeachment trial is in reality not a criminal trial because even though the accused be found guilty, neither his life, liberty nor property can be taken as a punishment. The Constitution provides that: “Judgment in cases of impeachment shall not extend further than to removal from office, and disqualification to hold and enjoy any office of honor, trust, or profit under the United States; but the party convicted shall, nevertheless, be liable and subject to indictment, trial, judgment, and punishment, according to law.”

      The Supreme Court of the United States has, however, severely abridged the right of citizens to a jury trial. By judicial decision it has eliminated this protection in those very cases where protection against tyranny by government is the most necessary — in cases involving licensing and regulatory laws. In the case of District of Columbia v. Clawans, 300 U.S. 617, (1937), Ethel Clawans was convicted in the District of Columbia police court of engaging, without a license, in the business of a dealer in secondhand property. On arraignment, she demanded a jury trial which was denied. She was convicted by a judge sitting without a jury and fined $300 or, in the alternative, to spend 60 days in jail.

      She appealed her conviction to the Court of Appeals which overturned it on the grounds that she had been denied her Constitutional right to a jury trial. The District of Columbia then appealed the case to the Supreme Court which, in a split decision, reversed the Court of Appeals and held that she was not entitled to a jury trial.

      The majority contended that since the crime of engaging in a business without a license was, morally speaking, “relatively inoffensive,” and since the penalty for violating the licensing statute ($300 fine or 90 days in jail) was not sufficiently “severe,” there was no right to a jury trial.

      The dissenting justices pointed out that the Constitution provides that even in a civil case where the amount in controversy exceeds [p. 156] $20, the right to a jury trial is guaranteed. And now here in a criminal case where there is a much greater danger of abuse of government power, the right is refused when the fine is 15 times that amount. This logic is irrefutable, and there was no attempt on the part of the majority to answer it. They simply closed their judicial eyes to the plain meaning of the Constitution.

      If additional evidence is needed that the majority denied the people a right which the Founding Fathers meant they should have, it is found by comparing the provisions for a jury trial in the Sixth Amendment with those for a grand jury indictment in the Fifth. The Fifth Amendment states: “No person shall be held to answer for a capital, or otherwise infamous crime unless on a presentment or indictment of a Grand Jury ...”

      Here the Founding Fathers deliberately limited the right to a grand jury indictment to those cases where the crime charged is “capital” or “infamous.” They did not require it where the offense is, relatively speaking, “morally inoffensive,” and where the penalty fixed is not “severe.” Now had they intended to exempt similar cases from the requirement of a jury trial in the Sixth Amendment, who will deny that they would have done so explicitly? It is contrary to all reason to assume that those wise and careful men who drafted those two provisions meant they were to cover the same crimes. And still, that is essentially what the majority of the Court in the Clowans case has done.

12.9 Trial By Jury — The Bulwark Of Civil And Political Liberty

      The importance of the trial by jury as the guardian of liberty was expressed by the famous Supreme Court Justice, Joseph Story, in these words:

(Trial by Jury) was from the very early times insisted on by our ancestors in the parent country, as the great bulwark of their civil and political liberties, and watched with an unceasing jealousy and solicitude ... The great object of a trial by jury in criminal cases is, to guard against a spirit of oppression and tyranny on the part of rulers, and against a spirit of violence and vindictiveness on the part of the people ... So long, indeed, as this palladium [p. 157] remains sacred and inviolable, the liberties of a free government cannot wholly fall. (Story, Commentaries on the Constitution of the United States, Sec. 1779)

      To appreciate how the right to trial by jury can serve as the bulwark of our liberties, it is necessary to understand the precise role of a jury in a criminal case. If the provisions of the United States Constitution are adhered to, the government can convict and punish no one without the unanimous consent of twelve jurors. This body of men can stand as an impregnable safeguard against injustice. They can prevent oppression of any kind. Of course, they can thwart the conviction of an innocent man who is being prosecuted under a just law, but they can also prevent the punishment of one of their fellow citizens who is guilty of having violated a law which is unjust.

      It is often stated that it is the function of a jury to determine the facts while it is the exclusive province of the judge to determine matters of law. In other words, it is said that the jury cannot consider the nature of the law they are upholding. But suppose a defendant is being prosecuted under a law which provides for punishing innocent behavior. Suppose that the law denies those unalienable rights guaranteed under the Constitution. Is the jury obligated to blindly follow the law and return a verdict of guilty when they know that the accused has neither intended evil nor committed harm? Are they to act as accomplices with the other branches of government in upholding a law which destroys the defendant’s rights as well as their own? It is in this very type of a case that the jury can truly serve as the bulwark of our liberties. They have the unquestionable right to find the accused innocent of a crime and no one can challenge their authority to do so. It is their function to prevent injustice and more especially when it comes before them in the form of an unjust law. Let us quote several recognized Constitutional authorities on this matter.

      One of the clearest expositions is by the celebrated authority on the Constitution and State Supreme Justice, Thomas Cooley, who wrote:

(I)t is ... an important question whether it is the duty of the jury to receive and act upon the law as given to them by the judge, or whether, on the other hand, his opinion is advisory only, so that they are at liberty either to follow it if it accords with their own convictions, or to disregard it if it does not. [p. 158]

In one class of cases, that is to say, in criminal prosecutions for libels, it is now very generally provided by the State constitutions, or by statute, that the jury shall determine the law and the facts ... In all other cases the jury have the clear legal right to return a simple verdict of guilty or not guilty, and in so doing they necessarily decide such questions of law as well as of fact as are involved in the general question of guilt. If their view conduce to an acquittal, their verdict to that effect can neither be reviewed nor set aside.

In such a case, therefore, it appears that they pass upon the law as well as the facts, and that their finding is conclusive. (Cooley, Constitutional Limitations, pp. 394-5)

      James Wilson, who signed the Declaration of Independence as well as the Constitution, and who served as one of the original justices on the United States Supreme Court, made this observation about the right of juries to decide questions of law:

Upon all general issues, the jury find not the fact of every case by itself, leaving the law to the court; but find for the plaintiff or defendant upon the issue tried, wherein they resolve both law and fact complicatedly, and not the fact by itself ... . Suppose that, after all the precautions taken to avoid it, a difference of sentiment takes place between the judges and the jury, with regard to a point of law: suppose the law and the fact to be so closely interwoven, that a determination of one must, at the same time, embrace the determination of the other: suppose a matter of this description to come in trial before a jury — what must the jury do? — The jury must do their duty, and their whole duty; they must decide the law as well as the fact.

This doctrine is peculiarly applicable to criminal cases; and from them, indeed, derives its peculiar importance. When a person is tried for a crime, the accusation charges against him, not only the particular fact which he has committed, but also the motive, to which it owed its origin, and from which it receives its complexion. The first is neither the only, nor the principal object of examination and discussion. On the second, depends the innocence or criminality of the action. The verdict must decide not only upon the first, but also, and principally, upon the second: for the verdict must be coextensive and commensurate with the charge. (Works, pp. 540, 541 )

      The final authority we quote on this issue is Thomas Jefferson:

... (M)agistrates have jurisdiction both criminal and civil. If the question before them be a question of law only, they decide on it themselves; but if it be a fact, or of fact and law combined, it [p. 159] must be referred to a jury. In the latter case, of a combination of law and fact, it is usual for the jurors to decide the fact, and to refer the law arising on it to the decision of the judges. But this division of the subject lies with their discretion only. And if the question relate to any point of public liberty, or if it be one of those in which the judges may be suspected of bias, the jury undertake to decide both law and fact. (Works, Vol IV, p. 37)

      But even though it were assumed that juries are restricted to determining issues of fact only, the most important fact they must determine in every criminal case is that of a criminal intent. Without this there can be no crime. This is so even though the accused has caused harm. Even though he has caused a death, the jury must still decide whether it was accidental, committed in the act of self-defense or perhaps even in an attempt to help the victim. Unless they determine that the accused had a criminal intent, it is their duty to see that he is not punished.

      And this should be their function in every case they are called upon to decide. Unless the prosecution proves to them beyond a reasonable doubt that the defendant had an evil intent in committing the act with which he is charged, it is not only their right but their duty to refuse to convict. Therefore, if a law provides for inflicting punishment without proof of an evil intent, it is their obligation as just men and as guardians of the liberties which such laws would destroy, to refuse to enforce such laws.

      On questions of good and evil or right and wrong, juries are the sole arbiters. No judge and no legislator should be allowed to usurp this function nor prevent them from performing it. They are the body whose exclusive right it is in cases which come before them, to determine whether a moral law has been violated. This is the question of fact which they pass upon when they decide the existence or non-existence of a criminal intent. The enforcement of every freedom-destroying, licensing or regulatory law could be prevented by juries if they were made aware of their proper function and were allowed to perform it. [p. 160]

Other Quotes Regarding Jury Trial

I consider trial by jury to be the only anchor ever yet imagined by man, by which a government can be held to the principles of the constitution. (Thomas Jefferson, Works 3:71)

But there is another check, ... superior to all the parchment checks that can be invented ... the people themselves have it in their power effectually to resist usurpation, without being driven to an appeal to arms. An act of usurpation is not obligatory; it is not law; and any man may be justified in his resistance. Let him be considered as a criminal by the general government, yet only his own fellow-citizens can convict him; they are his jury, and if they pronounce him innocent, not all the powers of Congress can hurt him; and innocent they certainly will pronounce him, if the supposed law he resisted was an act of usurpation — Mr. Parsons, delegate to the Massachusetts convention as he argued for the adoption of the Federal Constitution. (Elliot’s Debates, v. 2, p. 94)

Trial by jury, as applied to the repression of crime, appears to me an eminently republican element in the government ... (for) it always preserves its republican character in that it places the real direction of society in the hands of the governed ... and not in that of the government ...

The true sanction of political laws is to be found in penal legislation; ... He who punishes the criminal is therefore the real master of society. Now, the institution of the jury raises the people itself. ... to the bench of judges. The institution of the jury consequently invests the people... with the direction of society ...

It teaches men to practice equity; every man learns to judge his neighbor as he would himself be judged ... The jury teaches every man not to recoil before the responsibility of his own actions and impresses him with that manly confidence without which no political virtue can exist ...

The jury contributes powerfully to form the judgment and to increase the natural intelligence of a people; and this, in my opinion, is its greatest advantage. It may be regarded as a gratuitous public school, ever open, in which every juror learns his rights, enters into daily communication with the most learned and enlightened members of the upper classes, and becomes practically acquainted with the laws... I think that the practical intelligence and political good sense of the Americans are mainly attributable to the long use that they have made of the jury ...

Thus the jury, which is the most energetic means of making the people rule, is also the most efficacious means of teaching it how to rule well. (Alexis de Tocqueville, Democracy in America) [p. 161]

(T)he trial by jury ever has been, and I trust ever will be, looked upon as the glory of the English law. And if it has so great an advantage over others in regulating civil property, how much must that advantage be heightened, when it is applied to criminal cases ... it is the most transcendent privilege which any subject can enjoy, or wish for, that he cannot be affected either in his property, his liberty, or his person, but by the unanimous consent of twelve of his neighbors and equals ... It is therefore, upon the whole, a duty which every man owes to his country, his friends, his posterity, and himself, to maintain to the utmost of his power this valuable constitution (jury trial) in all its rights; to restore it to its ancient dignity, if at all impaired... or otherwise deviated from...; to amend it wherever it is defective; and, above all, to guard with the most jealous circumspection against the introduction of new and arbitrary methods of trial, which, under a variety of plausible pretenses, may in time imperceptibly undermine this best preservative of English liberty. (Blackstone, Commentaries On The Laws Of England, v. 3, pp 379, 381) [p. 162]

The Founding Fathers well understood human nature and its tendency to exercise unrighteous dominion when given authority (D&C 121:39-40). A Constitution was therefore designed to limit government to certain enumerated functions, beyond which was tyranny.
President Ezra Taft Benson,
(The Constitution: A Heavenly Banner, p.21)

[p. 163]

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