Twelve Angry Men: Trial by Jury as a Right and as a Political Institution

The English were among the first to adopt the institution of trial by an impartial jury of one's peers, and English colonists in America recognized this right, along with due process of law and representative government, as central to their definition of republican liberty. As David J. Bodenhamer explains:

"A local jury chosen from one's peers, or equals, guarded against vindictive and overbearing judges and distant government. Jurors from the neighborhood came to their task with knowledge about the events on trial and about the reputation of the accused and accuser. Their general verdict—a simple reply of guilty or non guilty to a charge of wrongdoing—was the people's most effective weapon against tyranny. The jury, quite simply, was the best available method of assuring justice and protecting liberty." [David J. Bodenhamer, Our Rights (New York: Oxford University Press, 2007), p. 164.]

During the 18th century, New York colonists demonstrated the importance of this right in the trial of John Peter Zenger, rejecting the judge's instructions to find Zenger guilty of libel on the grounds that what he had published had been true. In the period leading up to the American Revolution, patriots protested against the provision in the Sugar Act (1764) that denied individuals charged with violating the trade laws the right to trial by a local jury. Smugglers were, instead, transported to England for trial by the vice admiralty courts; judges of these courts decided the guilt or innocence of the accused and were paid a portion of the fines imposed on those found guilty. Similarly, the Stamp Act (1765) assigned judges the responsibility of deciding cases without the benefit of jury. Disregard by the British government for the rights of colonists impelled the First Continental Congress to cite violations of the right to a fair trial among the Resolves published in 1774. Two years later, when Thomas Jefferson came to draft the Declaration of Independence, he denounced the King and Parliament "For depriving us in many cases, of the benefits of trial by jury" and "For transporting us beyond the seas to be tried for pretended offenses".

The constitutions drafted by the newly established states included carefully crafted provisions to ensure fair trials. Pennsylvania's Constitution, adopted on August 16, 1776, included the following:

"[I]n the prosecutions for criminal offenses, a man hath a right to be heard by himself and his council, to demand the cause and nature of his accusation, to be confronted with witnesses, to call for evidence in his favour, and a speedy public trial, by an impartial jury of the country, without the unanimous consent of which jury he cannot be found guilty; nor can he be compelled to give evidence against himself; nor can any man be justly deprived of his liberty except by the laws of the land, or the judgment of his peers."

At the federal level, the Framers of the Constitution asserted the right to trial by jury "of all Crimes, except in Cases of Impeachment," adding that "such Trial shall be held in the State where the said Crimes shall have been committed…." [Article III, Section 2, Paragraph 3].

The Bill of Rights, adopted in 1791, provides that "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." [Amendment VI] In 1968, the Supreme Court held in the case of in Duncan v. Louisiana that, under Amendment XIV, rights guaranteed by the Constitution of the United States apply equally to the states, thus ensuring the fundamental right to trial by jury in state as well as federal criminal prosecutions.

As far back as the Revolutionary Era, jurors had been expected not only to determine the facts of a case but also to interpret the meaning of law itself. This was a right and power rooted in classical republicanism and also in the English common law tradition. Both theory and tradition were celebrated by the leading political theorist of the 18th century, Montesquieu, who interpreted the British Constitution as placing the judicial branch in the hands of the people through the supreme power of the popular juries.

In the ratification debates on the proposed charter, the Anti-Federalists foresaw and warned that juries would lose the right to interpret the meaning of the law. Juries would be limited to judging only the facts of the case before them. Regarding the power of interpreting the law, the Anti Federalists warned that this power would be handed over entirely to unelected judges, who would thus become a kind of aristocracy dominating the judicial branch. These Anti Federalist fears came to pass in 1896 when the Supreme Court enhanced the power of judges in Sparf & Hansen v. United States, noting that the authority formerly exercised by juries was based on custom rather than the Constitution. Only two states, Maryland and Indiana, have retained the "custom" of charging jurors with the task of interpreting the law as well as deciding the facts.

Alexis De Tocqueville writing in the mid 1830's celebrated the jury system as one of key political devices which allows citizens to be active participants in their government. It also has the effect of improving the quality of their citizenship. As he explains:

"The jury contributes most powerfully to form the judgement and to increase the natural intelligence of a people, and this is, in my opinion, its greatest advantage. It may be regarded as a free public school ever open, in which every juror learns to exercise his rights, enters into daily communication with the most learned and enlightened members of the upper classes, and becomes practically acquainted with the laws of his country, which are brought within the reach of his capacity by the efforts of the bar, the advice of the judge, and even by the passions of the parties. I think that the practical intelligence and political good sense of the Americans are mainly attributable to the long use which they have made of the jury in civil causes. I do not know whether the jury is useful to those who are in litigation; but I am certain it is highly beneficial to those who decide the litigation; and I look upon it as one of the most efficacious means for the education of the people which society can employ." [Alexis De Tocqueville, Democracy in America, Vol.1, Part II, Chapter XVI]

Yet in in the late 19th century, there was a shift of responsibility to judges which coincided with a growing sense that jurors were not capable of making impartial judgments. Mark Twain voiced the views of many Americans when he wrote that jury duty "put a ban on intelligence and honesty, and a premium on ignorance, stupidity, and perjury." [Quoted in Bodenhamer, p. 166] The fact that state legislators, many of whom were themselves business and professional men, had passed laws excluding members of their class from serving on juries, may help to explain the disdain with which juries were held.

Throughout much of the 20th century, justices addressed the question of what it means to be tried by a jury of one's peers. With a few notable exceptions, African-Americans and women had been systematically excluded from jury duty since the founding of the republic, denying individuals from those groups the constitutional right to be tried and judged by individuals of the same race or gender. In 1935 the Supreme Court, in Norris v. Alabama—one of two Scottsboro cases to reach the high court, held that the systematic exclusion of African-Americans from the jury had denied the defendants equal protection guaranteed by the Fourteenth Amendment. Not until 1994 did the Court finally overrule the use by prosecutors of peremptory challenges based on gender.

Additional rulings relating to the right to be tried by a jury have affirmed the traditional standard of requiring that proof of guilt be established "beyond a reasonable doubt," approved the use of six-person juries in state criminal trials, and allowed juries to convict criminals in non-capital cases without a unanimous vote.

In the 1960s, the Warren Court handed down a series of landmark decisions intended to ensure the rights of individuals accused of criminal actions, including Gideon v. Wainwright (1963). In recent years, the Court has addressed questions raised in Twelve Angry Men dealing with the quality of legal representation when counsel is appointed by the state.

NCSS. D1.1.9-12. Explain how a question reflects an enduring issue in the field.

NCSS. D2.Civ.2.9-12. Analyze the role of citizens in the U.S. political system, with attention to various theories of democracy, changes in Americans’ participation over time, and alternative models from other countries, past and present.

NCSS. D2.Civ.3.9-12. Analyze the impact of constitutions, laws, treaties, and international agreements on the maintenance of national and international order.

NCSS. D2.Civ.4.9-12. Explain how the U.S. Constitution establishes a system of government that has powers, responsibilities, and limits that have changed over time and that are still contested.

NCSS.D2.His.1.9-12. Evaluate how historical events and developments were shaped by unique circumstances of time and place as well as broader historical contexts.

One of the questions raised during the deliberations by the "twelve angry men" was the legal representation that had been provided for the young man accused of murdering his father. The responsibility of providing counsel to those accused of capital crimes who could not afford legal representation had been upheld in Powell v. Alabama, the second of the Scottsboro cases decided by the Supreme Court. However, individuals accused of lesser crimes often found themselves alone in the courtroom—without a lawyer to defend them.

In 1963, the Supreme Court handed down the first in a series of cases dealing with the constitutional right to counsel. The case of Gideon v. Wainwright drew widespread attention, especially with the publication a year later of Gideon's Trumpet by New York Times' legal affairs correspondent Anthony Lewis. The book was made into a film in 1980.

Of particular interest is Abe Fortas' oral argument before the Supreme Court in defense of the right to counsel, in particular the need to provide counsel for those unable to afford a lawyer. This can be accessed on the Oyez.org website.

Questions for discussion of Fortas' argument:

• What is meant by the term federalism as used in this argument? How does the principle of federalism relate to the right to counsel? What are the two views of how this principle should be applied?
• What precedents does Fortas cite in arguing his case for Gideon?
• What evidence does Fortas use to support his position that Betts v. Brady be overturned? What evidence is most persuasive? Why?
• Of what relevance is the 14th Amendment to this case?
• What problems do the justices anticipate in implementing a policy of providing counsel for those unable to pay for legal representation?
• Which description best describes Fortas: idealist or pragmatist?
• Students can access the primary source materials and some of the activity materials via the EDSITEment LaunchPad.

Activity 1. Discussion of the play/film

Begin the lesson by assigning students to either read or view Twelve Angry Men. Distribute the following questions beforehand. These same questions may serve as the basis for either group or class discussion of the play/film.

• Who was chosen to serve on the jury?
• Was the jury in this case representative?
• Was the jury in this case impartial?
• Is there a difference between representative and impartial? If so, is the difference critical?
• What were the primary concerns of the jurors?
• What factors influenced the jurors as they discussed and decided this case?
• Did the jurors believe that they were doing their job responsibly?
• What factors convinced them to change their votes?
• Which of these concerns had a constitutional basis?
• What, ultimately, was the crucial factor in determining the outcome of the trial?
• What did the jurors learn while deliberating the case?
  • About the trial?
  • About themselves?
  • About the Constitution?
• Does this play/film leave you feeling concerned or confident that a "trial by jury" results in a fair trial? What are the reasons for your position?

Activity 2. Analysis of the constitutional provisions

The right to trial by jury is specifically mentioned in the Constitution of the United States in Article III and Amendments V and VI. Relying on Amendment XIV, the Supreme Court has determined that the provisions in the Constitution apply in state criminal courts. In practical terms, this also means that Supreme Court decisions relating to the right to trial by jury also apply in state courts.

The relevant provisions in the Constitution of the United States can be found on the Avalon website at:

• U.S. Constitution : Article III
• Constitution of the United States : Bill of Rights
• XIV - Citizen rights not to be abridged

"Trial by jury The trial of all crimes, except in cases of impeachment, shall be by jury; and such trial shall be held in the state where the said crimes shall have been committed; but when not committed within any state, the trial shall be at such place or places as the Congress may by law have directed."

—Article III, Section 2, Paragraph 3

"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 offense to be twice put in jeopardy of life or limb; nor shall be compelled in any criminal case to be a 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."

—Amendment V, Provisions concerning prosecution

"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, 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."

—Amendment VI, Right to a speedy trial, witnesses, etc.

"All persons born or naturalized in the United States, and subject to the jurisdiction thereof, are citizens of the United States and of the State wherein they reside. No State shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States; nor shall any State deprive any person of life, liberty, or property, without due process of law; nor to deny to any person within its jurisdiction the equal protection of the laws."

—Amendment XIV, Section 1, Citizen rights not to be abridged

Working in groups, students should carefully review the rights guaranteed to individuals accused of criminal acts and, in the process, make two lists: (1) provisions that relate directly to the right to a trial by jury and (2) provisions that the jurors themselves should take into account in their deliberations. [Provide worksheet for students to complete.]

Working from these lists, the class as a whole should discuss which of these constitutional provisions were raised by Twelve Angry Men and whether the play/film enabled them to understand better the importance of these rights. During the discussion, students should be encouraged to make specific references to the play/film.

After researching strategies used to ensure that jurors are impartial when chosen to serve on a jury and remain impartial throughout the duration of a trial, students should construct posters that identify the measures taken to achieve this goal. Posters should illustrate each of the measures; explain why it is necessary, and whether it is effective.

Selected EDSITEment Websites

• The Avalon Project at the Yale Law School
  • U.S. Constitution: Article III
  • Bill of Rights
  • Amendments XI-XXVII
• Oyez.org
  • Gideon v. Wainwright