The Golden Age of Jury Trial Rights?

Earlier this year, the Supreme Court decided two significant cases regarding jury trial rights—Erlinger v. United States and SEC v. Jarkesy. Even though these cases arose under different amendments, Erlinger under the Sixth Amendment, guaranteeing the right to a jury trial “in all criminal proceedings[,]” and Jarkesy under the Seventh Amendment, guaranteeing the right to a jury trial “[i]n Suits at common law,” the Court wrote with great reverence for the rights to trial by jury and the role that those rights play in our system of governance.

In Erlinger, Justice Gorsuch noted how the jury lies at the heart of our criminal justice system. And in Jarkesy, Chief Justice Roberts illustrated how the Seventh Amendment “embedded” the right into civil practice, protecting it from countervailing concerns like administrative convenience. Both recounted how the British Crown’s refusal to try American colonists by jury was one of the justifications for declaring our nation’s independence. Both cases, as well as some others from recent Supreme Court terms like Ramos v. Louisianna, have made me wonder whether we are living through a golden age of jury trial rights. Or considered through a slightly different lens, an era in which we are finally moving towards full recognition of jury trial rights as the Framers intended.

This has also made me wonder, where do we go from here?

NCLA is currently pursuing several cases pressing for full jury right protections. Take for example, the case of David Lesh who was denied a jury trial because the regulations he was charged with violating are punishable by six months or less in prison. His case challenges the so-called petty offense exception to the Sixth Amendment. That pernicious exception reads out the word “all” from the Sixth Amendment for “nonserious” crimes, generally those crimes that are punishable by six months or less in prison. In David’s appeal to the Tenth Circuit Court of Appeals, Judge Tymkovich, joined by Judge Rossman, concurring in the panel’s decision, suggested that “the correct scope of the Constitution’s right to a trial by jury may warrant a closer examination by the Supreme Court.” You can read more about and follow developments in David’s case on his case page.

In another case, NCLA is pressing the argument that the Seventh Amendment requires factual determinations to be made by a jury to move between the Exchange Act’s civil penalty tiers, i.e., moving from a first-tier penalty to a second-tier penalty. The differences between the tiers are substantial. For example, in 2024 the SEC may seek up to $11,524 per violation, adjusted for inflation, as a first-tier penalty against an individual. That cap jumps to $115,231 per violation, adjusted for inflation, for a second-tier penalty. In comparison to first-tier penalties, second-tier penalties require a factual showing that the violation involved “fraud, deceit, manipulation, or deliberate or reckless disregard of a regulatory requirement.” After the briefing was completed and the oral argument was heard last year, NCLA submitted letters to the court notifying it of both the Erlinger and Jarkesy decisions (letters available here and here) and how those decisions impacted the issue before the court. The Spartan Securities case is currently pending before the Eleventh Circuit Court of Appeals, you can read more about the case and follow developments on its case page.

While the Supreme Court’s recent cases have left me hopeful about the future of jury trial rights, NCLA’s work reminds me that we have a ways to go before we achieve the full promises made by the Sixth and Seventh Amendments.

October 31, 2024