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The Supreme Court's View of Jury Trial Roles in Criminal Cases Impacts the Role of Jurors in Civil Cases


There is strong precedent for the argument the Supreme Court's recent decisions in criminal cases signal an expansive role of civil jurors. For over thirty years, the United States Supreme Court has recognized the link between the Sixth and Seventh Amendments. In Williams v. Florida, 399 US 78, 90 SCt 1893, 26 LEd2d 446 (1970), the United States Supreme Court held the Sixth Amendment guarantee of jury trial in criminal cases did not freeze for all time the number of jurors at twelve, and there was no reason, in history or policy, for holding such number is frozen into the civil jury requirement of the Seventh Amendment.

Accord, Colgrove v. Battin, 456 F2d 1379 (9th Cir 1972), cert. granted, 409 US 841, 93 SCt 44, 34 LEd2d 80 (1972). In Wilson v. Nooter Corp., 475 F2d 497 (5th Cir 1973), the Fifth Circuit held the use of "at common law" in the Seventh Amendment merely distinguishes common law from equity and admiralty cases for purposes of the jury trial requirement, and there is virtually no other distinction between the two Amendments. Wilson , 459 F2d at 781-782.

Recent Criminal Law Developments

A brief history of the recent developments of a juror''s role in criminal cases is important. This recent history reinforces the foundation for the right to trial by jury in adversary proceedings occurring under the bankruptcy courts'' jurisdiction.

Apprendi v. New Jersey, 530 US 466, 120 SCt 2348 (2000), marked a watershed change in the law. The United States Supreme Court held any fact, other than prior convictions, that increases penalty for crime beyond prescribed statutory maximum must be submitted to jury and proved beyond reasonable doubt. The Court concluded it unconstitutional for the legislature to remove from jury the assessment of facts, other than the fact of prior conviction, that increase prescribed range of penalties to which criminal defendant is exposed, and such facts must be established by proof beyond reasonable doubt. Apprendi , 530 US at 490, 120 SCt at 2362-63.

In Ring v. Arizona, 536 US 584, 122 SCt 2428 (2002), the United States Supreme Court reaffirmed and broadened its holding in the Apprendi case, and held capital defendants, no less than non-capital defendants, are entitled under the Sixth Amendment to a jury determination of any fact on which the legislature conditions an increase in their maximum punishment. Specifically, in overruling Walton v. Arizona, 497 US 639, 110 SCt 3047, 111 LEd2d 511, the Court held an Arizona statute pursuant to which, following a jury adjudication of a defendant''s guilt of first-degree murder, the trial judge, sitting alone, determined the presence or absence of the aggravating factors required by Arizona law for imposition of the death penalty, violated the Sixth Amendment right to a jury trial in capital prosecutions. The Court held to provide the jury with this opportunity would reduce the Apprendi holding to a "meaningless and formalistic" rule of statutory drafting. Ring , 536 US at 586, 122 SCt at 2431.

Penry v. Johnson, 532 US 782, 121 SCt 1910 (2001), extends the United States Supreme Court''s position holding the Sixth Amendment right to have a jury determine all facets of a criminal conviction and possible sentence of death is a broad, constitutionally secured right. In Penry, the Court reaffirmed its prior holdings in Apprendi and Ring regarding the high role juries play. The Court overturned criminal defendant''s death sentence because the jury was not properly instructed about mental retardation; the instruction given to the sentencing jury in the capital murder trial, which stated that jury could answer "no" to one of the special issues if they believed a life sentence was appropriate in light of mitigating circumstances, but also stated the jury should answer "no" to special issue only if it found reasonable doubt to give "yes" answer, failed to provide the jury with a vehicle to give effect to mitigating circumstances of mental retardation and childhood abuse. Penry , 532 US at 798, 121 SCt at 1921.

Correcting an Old View

The Supreme Court''s focus on the right to trial by jury at all phases of criminal proceedings corrects a historic-slide of thinking in the wrong direction and toward an impermissible narrowing of the jury''s proper and entire role. This misdirected view of the jury''s role is also present in many civil contexts, including ill-conceived perceptions of the Seventh Amendment''s jury trial right''s breadth. The Court''s decision in Beacon Theatres, Inc. v. Westover, 359 US 500, 79 SCt 948, 3 LED 2d 988 (1959), exemplifies that policy.

Accord, Simler v. Conner, 372 US 221, 222 (1963); Byrd v. Blue Ridge Rural Elec. Coop., Inc ., 356 US 525 (1958) (strong federal policy in favor of juries requires jury trials in diversity cases, regardless of state practice).

Trial by Jury''s Importance

This strong pro-jury policy for civil cases is deeply rooted in American history. How important it is to be aware the right of trial by jury was held in such esteem by the colonists that its deprivation at the hands of the English was one of the important grievances leading to the break with England. See, Sources and Documents Illustrating the American Revolution 1764-1788; Formation of the Federal Constitution 94 (S. Morison 2d ed. 1929); R. Pound, The Development of Constitutional Guarantees of Liberty 69-72 (1957); C. Ubbelohde, The Vice-Admiralty Courts and the American Revolution 208-211 (1960).

The extensive use of vice-admiralty courts by colonial administrators to eliminate the colonists'' right of jury trial was listed among the specific offensive English acts denounced in the Declaration of Independence. It states this fundamental ground for revolution against the King: "For depriving us in many cases, of the benefits of Trial by Jury." Earlier, in the Declaration of Rights adopted October 14, 1774, the first Continental Congress unanimously resolved "the respective colonies are entitled to the common law of England, and more especially to the great and inestimable privilege of being tried by their peers of the vicinage, according to the course of that law." 1 Journals of the Continental Congress 69 (1904).

After revolutionary war broke out, all of the 13 newly formed States restored the institution of civil jury trial to its prior prominence; 10 expressly guaranteed the right in their state constitutions and the 3 others recognized it by statute or by common practice. "The right to trial by jury was probably the only one universally secured by the first American state constitutions . . . ." L. Levy, Legacy of Suppression: Freedom of Speech and Press in Early American History 281 (1960).

The Jury and Bankruptcy

So how do new revisions to the Bankruptcy Act match up against new views of the jury''s role? Has anything changed? Voluntary submission to the bankruptcy court''s jurisdiction ordinarily waives the Seventh Amendment''s jury trial right as to pre-petition claims. But attorneys must remember this is not always so, and it is not clear where the issues raised involve breaches of fiduciary duties like fraudulent or false banking practices.

In Granfinanciera, S.A. v. Nordberg, 492 US 33, 109 SCt 2782, 106 LEd2d 26 (1989), the Court explained by filing a claim against a bankruptcy estate, a creditor triggers the process of "allowance and disallowance of claims," thereby subjecting himself to the bankruptcy court''s equitable power. Granfinancera, 492 US at 58. (citing Katchen v. Landy , 382 US 323, 326 (1966)). If the trustee responds by filing a fraudulent conveyance action against the creditor, that action is also a part of the claims-allowance process which is triable only in equity. Id.

Generally, even though the Seventh Amendment would otherwise have entitled the creditor to a jury trial on the trustee''s claim, when the same claim arises as part of the process by which the bankruptcy res is divided, it is triable in equity. As the court stated in Katchen, "the Bankruptcy Act ... converts the creditor''s claim into an equitable claim to a pro rata share of the res, ... a share which can neither be determined nor allowed until the creditor disgorges the alleged voidable preference he has already received." Katchen, 382 US at 336 (citations omitted). If the creditor does not submit a claim against the bankruptcy estate, however, he retains his right to trial by jury on the trustee''s claim because he has not subjected himself to the bankruptcy court''s equitable power. Granfinancera , 492 US at 58.

One argument to preserve the debtor/plaintiff''s right to trial by jury is to reiterate the petition for bankruptcy itself has nothing to do with whether the bankruptcy court can exercise equitable jurisdiction over a debtor''s pre-petition claims; its only effect is to pass ownership and control of the claims to the estate and its representative, either a trustee or a debtor in possession. Louisiana World Exposition v. Federal Ins. Co., 858 F2d 233, 246 (5th Cir 1988).

Claims belong to the estate after the petition for bankruptcy is filed, but that does not mean the claims are then within the court''s equitable jurisdiction or that they somehow become equitable in nature. See, Granfinanceria, 492 US at 33; Schoenthal v. Irving Trust Co., 287 US 92 (1932) (holding that a suit by a trustee in bankruptcy to recover preferential payments on behalf of the estate should be tried before a jury); E. Gibson, Jury Trials in Bankruptcy: Obeying the Commands of Article III and the Seventh Amendment , 72 Minn L Rev 967, 1017 (1988) ("Neither the nature of the claim nor the relief sought is in any way altered by the bankruptcy filing.").

The Supreme Court indicated the right to a jury trial does not depend on the precise definition of the bankruptcy estate. Granfinancera, 492 US at 58. Although a voluntary petition does ordinarily submit a debtor-in-possession to the equitable jurisdiction of the bankruptcy court, the general rule is the bankruptcy filing will extinguish whatever jury right a debtor-in-possession might have had in a cause of action which arose before bankruptcy.

See, e.g., NIS Corp v. Hallahan (In Re Hallahan) , 936 F2d 1496, 1505 (7th Cir 1991). But this is not always the case. If, for example, the conduct complained of, coupled with the a creditor''s collection pressure forces the debtor/plaintiff into bankruptcy, there is a valid argument the debtor-in-possession is not subject to the bankruptcy court''s equitable jurisdiction.

This is fundamentally and undeniably clear. Generally, one cannot be forced to sacrifice a fundamental constitutional right. There also remains the salient question of whether there is a jury right on a cause of action for breach of fiduciary duty. The one case on this issue is In re White, 72 BR 841 (SD Miss 1994), which involved a complaint sounding in negligence, breach of contract, breach of fiduciary duty, aiding and abetting breach of fiduciary duty, conspiracy to defraud, and RICO.

The right to a jury was affirmed, though the breach of fiduciary duty claim was not isolated as a discrete cause of action with its own jury right. In re Crowe Rope Industries, LLC, 307 BR 1 (Bankr D Me 2004). Resolution of equitable claims cannot trump decisions on legal issues where the right to trial by jury applies. Lytle v Household Mfg, Inc., 494 US 545 (1990); Feltner v Columbia Pictures Television, Inc ., 523 US 340 (1998).

A waiver of the right to trial by jury will not be lightly implied. See, Aetna Ins Co. v. Kennedy, 301 US 389, 393 (1937) (holding "the right of jury trial is fundamental, courts must indulge every reasonable presumption against waiver"); Heyman v. Kline, 456 F2d 123, 129 (1972) (holding "the right to jury trial is too important, and the usual procedure for waiver too clearly set out by the Civil Rules for the courts to find a knowing and voluntary relinquishment of the right in a doubtful situation").

Indeed, a waiver requires "some express action by the party or his attorney which evidences his decision not to exercise the right [to trial by jury]." Bowles v. Bennett, 629 F2d 1092, 1095 (5th Cir 1980); Jennings v. McCormick, 154 F2d 542 (5th Cir 1998). Thus, "[m]aintenance of the jury as a fact-finding body is of such importance and occupies so firm a place in our history and jurisprudence that any seeming curtailment of the right to a jury trial should be scrutinized with the utmost care." Dimick v Schiedt , 293 US 474, 486, 55 S Ct 296, 301 (1935).


Lawyers seeking to protect their rights of their clients to have a jury decide important issues in bankruptcy may frame issues in new and significant ways. The act of bankruptcy, or the requirement a claim be filed there, should not be taken as an automatic waiver of the right to trial by jury. More fundamentally, civil lawyers should recognize that recent dramatic changes in the US Supreme Court''s view of the jury''s role in criminal cases should be taken as a signal we must advance the jury''s role in civil proceedings with thoughtful, aggressive, new arguments.

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