Petit juries have decided questions of criminal guilt and civil liability in most federal trials since the creation of the judiciary in 1789. Over a similar timeframe, federal grand juries have investigated a broad range of criminal and governmental matters and determined whether there is sufficient evidence to justify serious criminal charges. Because each of these bodies requires the execution of essential civic functions by ordinary citizens, they have often been described as crucial components of the American system of popular rule, as well as means of investigation and adjudication.

Federal grand and petit jury proceedings differ in several ways that have remained relatively constant over the judiciary’s history. As the names suggest, grand juries are usually larger bodies than petit juries. Rather than deciding questions of guilt based on adversarial presentations of evidence by the prosecution and defense, grand juries hear evidence proffered by prosecutors in the absence of potential defendants and may seek evidence on their own initiative. Whereas criminal charges must be proved to a petit jury beyond a reasonable doubt at trial, grand juries need only determine that there is probable cause to believe the defendant committed the alleged crimes to return a “true bill” authorizing an indictment. In contrast to the petit jury context, where the Sixth Amendment guarantees a public trial, grand juries have long acted in a non-public manner both to preserve the reputations of the subjects of their investigations and to protect a wide range of government interests. Although judges preside over petit jury trials, they typically have avoided doing so in grand jury proceedings since the judiciary’s earliest days and are not present at grand jury hearings.

This essay offers a brief survey of some of the major developments in the histories of federal petit and grand juries. It focuses primarily on structural matters that have helped to define juries as institutions. This focus perforce omits or deemphasizes other important issues (such as discrimination in jury selection or the incorporation of federal jury rights against the states) that primarily involve state procedures or substantive constitutional doctrine.

The essay begins with an examination of the role jury rights played in the drafting, ratification, and amendment of the Constitution. It then surveys several important themes that arose in the subsequent development of both grand and petit juries: the respective powers and roles of judges and juries, the applicability of jury rights to criminal cases involving minor offenses, and jury size. It then reviews issues relevant only to one or another of the two types of federal jury, namely, the scope of grand jury presentment and investigative powers, and special rules governing trials for capital offenses. The essay concludes with a brief overview of juries’ place in the modern federal judiciary.  

Juries and the Constitutional Settlement

The use of petit juries in early America drew heavily on English legal convention, which, by the seventeenth century, had vested significant investigatory and charging power in grand juries and established petit juries as the primary decision makers in most common-law and criminal cases. In the years preceding the American Revolution (ca. 1775–1783), many colonists objected that British authorities had deprived them of their right to a jury or empowered judges to supersede jurors’ prerogatives. Perhaps unsurprisingly, then, most of the first state constitutions guaranteed charge by grand jury and trial by petit jury.

Nevertheless, the Articles of Confederation (promulgated in 1777 and effective in 1781) made no mention of juries on a federal level. The only national court created during the confederation period (the short-lived Court of Appeals in Cases of Capture) heard a narrow set of admiralty and maritime matters. By established custom, appeals and cases sounding in maritime law were typically tried by a judge rather than a jury.

Juries figured more prominently in debates over the viability and desirability of the new federal judiciary contemplated by the Constitution of 1787. Article III, section 1 of the proposed Constitution created a judicial branch to consist of the Supreme Court of the United States and “such inferior Courts as the Congress may from time to time ordain and establish.” Section 2 of the Article commanded that “the Trial of all Crimes, except in Cases of Impeachment, shall be by Jury.” But the Constitution made no provision either for indictment by grand jury prior to such trials or for trial by jury in civil cases.

Some of those opposing the Constitution’s ratification argued that the lack of a grand jury requirement could lead to unfair prosecutions on trumped-up charges. One critic objected that the Constitution would do nothing to prevent the “dark and gloomy” prospect of “the attorney-general ... filing information [viz., a charging document produced solely by the prosecution] against any person, whether he is indicted by grand jury or not.” Though civil suits typically placed individuals’ wealth, rather than their liberty, at risk, the Constitution’s silence on the right to have juries decide civil issues similarly worried many of the Constitution’s detractors and even some of its proponents. Anti-Federalists often emphasized in ratification debates that the absence of a right to a civil jury left Americans open to potential abuses of the litigation system. Moreover, many of the more populist opponents of the Constitution claimed that the new charter was a countermajoritarian response to state-court jury verdicts in favor of debtors. This issue was significant in the post-revolutionary context, where debates over wartime debt animated simmering class tensions. Some claimed that, without the egalitarian influence of civil juries, the new federal judiciary could become a tool of wealthy elites.

The ratification of the Bill of Rights in 1791 allayed many of these concerns. The Fifth Amendment dictated 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, 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.” (The presentment power, seldom used today, enables grand jurors to bring charges on their own initiative, rather than at the government’s behest.) The Sixth Amendment elucidated and enhanced the right to a petit jury in criminal trials contained in Article III, guaranteeing, “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.” The Seventh Amendment further dictated that “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.” This last provision was designed to calm concerns that Article III, section 2’s description of the Supreme Court’s appellate jurisdiction as extending to both “law and fact” would empower the Court to intrude into juries’ factfinding prerogatives. The Seventh Amendment also extended the right to a petit jury trial to civil cases “at common law, where the value in controversy shall exceed twenty dollars.”

The Bill of Rights’ emphasis on the common law was significant for two reasons. First, it followed existing practice by excluding actions sounding in equity, such as suits to quiet title or requests for injunctive relief, from jury requirements. Second, by fixing the civil jury right to “suits at common law,” the Seventh Amendment effectively limited the right to a jury trial to those actions that had been deemed jury matters at the time of the Amendment’s ratification. (The federal courts have generally compared more modern remedies, such as declaratory relief, to their closest 1791 analogs to determine whether juries are required in suits seeking such relief.)

Notwithstanding the privileged position the nation’s founding documents accorded to juries, jury proceedings sometimes proved contentious in the judiciary’s first decades. Both the charges made by federal judges at the outset of grand jury sessions and the reports and presentments issued by grand juries led to political controversy in the Early Republic. In addition to laying out the scope of jurors’ duties, judges often addressed matters of pressing public concern in their grand jury charges. These charges were often reprinted in newspapers and could give rise to accusations that judges were attempting to impose their own predilections on jurors investigating delicate matters. Thomas Jefferson, for example, lamented several of the speeches that judges with perceived Federalist leanings made to grand juries during the Alien and Sedition Acts controversy of the late 1790s. And indeed, Justice Samuel Chase’s 1804 impeachment was predicated on a grand jury charge that his accusers argued was both intemperate and overtly political. (See Debates on the Federal Judiciary, vol. I).

Beyond the potentially sensitive nature of judicial charges, many early federal grand juries occupied political roles that might seem unusual or unfamiliar to modern Americans accustomed to a robust administrative state. In the first decades of the nineteenth century, for example, grand juries in several states and territories issued reports or petitions to Congress demanding various changes to federal legislation. Others complained about the state of federal law enforcement in their jurisdictions.

Federal petit juries dealt with several of the most controversial prosecutions brought in the 1790s and 1800s. These included the treason prosecutions of the Whiskey Rebellion conspirators in 1795, tax protestor John Fries in 1799, and former vice president Aaron Burr in 1807; the high-profile neutrality prosecutions of Gideon Henfield in 1793 and William Stephens Smith in 1806; and the Sedition Act trials of 1798–1801. (See Notable Trials; The Sedition Act Trials; United States v. Smith). In some instances, the instructions given to jurors in these cases, particularly by Supreme Court justices riding circuit on federal trial courts, established important legal concepts at a time when the Supreme Court was often unable to address criminal matters due to its limited appellate jurisdiction.

Defining the Roles of Judge and Jury

The relative authority of judge and jury proved a difficult question throughout much of the nineteenth century, particularly in the petit jury context where complex rules about jurors’ ability to judge law and judges’ power to direct juries to enter verdicts developed over the course of several decades. To some extent, the division between the two sets of decision makers was simplified in the grand jury context by the federal bench’s adoption of English practice disfavoring judges presiding over grand jury proceedings. However, challenges to the legal or ethical regularity of those proceedings sometimes forced judges to determine the degree to which grand juries were truly immune to judicial oversight.

In one of the first cases involving a challenge to the validity of a federal indictment, United States v. Smith (1806), the defendant alleged that the jury had heard evidence improperly gathered through a deposition conducted by one of the judges presiding over the petit jury trial. The prosecution argued a plea to abate the indictment was improper since grand juries were fundamentally “irresponsible” to outside review, based both on their independence and the secrecy of their proceedings. Though it ultimately ruled against the merits of the plea, the U.S. Circuit Court for the District of New York nonetheless held that such a challenge was theoretically permissible. (See also United States v. Smith and United States v. Ogden). Even so, courts generally presumed that grand jury conduct was procedurally regular absent an affirmative showing to the contrary. Early federal judges also proved reluctant to pierce the veil of secrecy surrounding grand jury proceedings without evidence that would give rise to questions of the competence or integrity of jurors.

Defendants were, however, able to dismiss or quash indictments whose legal insufficiency was clear on the face of the indictment itself. For instance, where the acts alleged in an indictment did not meet the elements of a federal offense, courts would dismiss the charges without holding further proceedings. In United States v. Gooding (1826), the Supreme Court held that trial courts could entertain motions to quash a grand jury’s indictment as legally defective even after trial had commenced, though the Court cautioned that this should “be rarely done, and only under circumstances of an extraordinary nature.” In United States v. Rosenburgh (1869), the Supreme Court determined that circuit court decisions on such motions were inherently discretionary and not subject to appellate review on a certificate of division (a mechanism by which the Supreme Court could review cases in which circuit court judges differed on a matter of law). The Rosenburgh Court emphasized that motions to quash “made in behalf of defendants [were] usually refused, unless in the clearest cases,” as defendants would have later opportunities to challenge the legal sufficiency of the government’s case.

In the petit jury context, the allocation of responsibilities between judge and jury took longer to refine. Although the Seventh Amendment barred judges from reexamining factual determinations made by a jury, whether judges could dictate or override jury decisions on questions of law was less clear. Early Republic lawyers often pressed the position that jurors were judges of both law and fact. Nonetheless, at least some of the earliest federal judges adopted a limited interpretation of jurors’ ability to judge legal questions, even in criminal cases, which then as now often posed mixed legal and factual questions, such as whether the defendant committed a particular offense. In United States v. Henfield (1793), for example, Justice James Wilson instructed the jury that the blended nature of a criminal verdict “did not authorize them to decide [the question] as they pleased,” but rather that they should apply the law as directed by the judges to the facts as the jury found them. However, in Georgia v. Brailsford (1794), the first (and to date only) jury trial held in the U.S. Supreme Court, Chief Justice John Jay appeared to adopt a more robust view of the jury’s powers. While noting that prudence typically led to judges deciding questions of law and jurors deciding questions of fact, Jay is reported to have instructed that the jury “have nevertheless a right to take upon [themselves] to judge of both, and to determine the law as well as the fact in controversy.”

The reasons for the apparent lack of consensus on jurors’ prerogatives are complex. As some later argued with respect to Brailsford, it is possible that judges’ words, usually delivered orally and sometimes extemporaneously, may have suggested a broader range of opinion than actually existed. Federal trial procedure in the early nineteenth century was also less uniform than it later became. Under the Process Act of 1792, for example, federal courts applied the procedures employed by state courts in their jurisdiction, with such exceptions as the federal judges deemed expedient. (See Federal Rules of Civil Procedure).

Most scholars agree that as the nineteenth century progressed, federal courts gradually adopted a more limited view of jurors’ roles as judges of law. For example, as more jurisdictions heard large numbers of complex commercial and tort suits in the middle of the century, several courts began to revise or reject standards that disfavored judges directing the jury to find for one or another party in civil suits. Most courts slowly transitioned to a rule that permitted directed verdicts in civil suits where the court would have set aside a contrary jury verdict as against the evidence in the case.

This trend was ratified by the Supreme Court in a series of cases in the 1870s. In Pleasants v. Fant (1874), for example, the Court justified this new rule in terms of ensuring efficiency in court proceedings, reasoning that it was “idle ceremony” to submit to the jury “the testimony on which plaintiff relies, when it is clear to the judicial mind that if the jury should find a verdict in favor of plaintiff that verdict would be set aside.”

The increased use of the directed verdict was heralded by many members of the increasingly professionalized bar, but it was sometimes controversial. Some populists alleged that federal judges overused the mechanism in favor of railroads and other industrial actors. Others argued that the use of directed verdicts imperiled the important civic role played by juries. In the late nineteenth and early twentieth centuries, the legislatures of several states and territories passed legislation attempting to curtail the use of directed verdicts. These laws potentially bore on federal jury trials as, under the Conformity Act of 1872, federal trial procedures had to “conform, as near as may be,” to those employed in state courts within their jurisdiction. However, federal judges generally continued their directed verdict practices on the ground that they touched on the roles of judge and jury, which were typically the province of the court to define. In 1931, the Supreme Court ultimately confirmed that local laws governing directed verdicts did not bind federal courts. In 1963, the Federal Rules of Civil Procedure (FRCP) dispensed with the need for judges to formally submit a civil suit to a jury before entering a directed verdict, effectively permitting judges to dismiss cases on their own. Further revisions to the FRCP in 1991 dispensed with the nomenclature of “directed verdict” as anachronistic and confusing, replacing it with “judgment as a matter of law.” 

Such judgments have generally been disfavored in the criminal context throughout most of the judiciary’s history. In 1873, Justice Ward Hunt infamously directed a jury to return a guilty verdict in the trial of women’s rights advocate Susan B. Anthony for illegally voting in a national election. (See United States v. Anthony). While Anthony was unable to appeal her conviction, it appears that other federal courts did not follow this example. In United States v. Taylor (1882), for instance, a U.S. circuit court in Kansas distinguished between civil cases, where a judge might set aside a verdict for the defendant as against the evidence, and a criminal trial, in which judges could not set aside an acquittal. The Supreme Court effectively adopted this approach in Sparf and Hansen v. United States (1894). In Sparf and its progeny, the Supreme Court increasingly implemented a firm line between the roles of judges and petit jurors regarding decisions over the legal principles governing cases. Judges had the definitive word on matters of law, and jurors were to apply the judges’ law of the case to the facts as they found them.

Minor Offenses and the Fifth and Sixth Amendments

The Fifth Amendment’s grand jury requirement applies to “capital ... or otherwise infamous crime[s].” There appears to have been little or no reported litigation questioning the degree of infamy necessary to trigger the grand jury requirement in the judiciary’s first several decades, perhaps due to the relatively limited body of federal criminal statutes. The years immediately following the U.S. Civil War (1861–1865), however, saw an increased use of charge-by-information (a process that involves prosecutors filing charging documents with the court absent any grand jury action), particularly in U.S. district courts, which typically tried less serious criminal matters than the circuit courts. District judges generally permitted charges without indictment unless the crime charged would have prohibited a convict from later serving as a witness at common law (a component of the “civil death” attached to felony convictions).

In Ex parte Wilson (1885), however, the Supreme Court overturned a conviction for the possession of, and passing with intent to defraud, fraudulent coupon bonds on the ground that these offenses constituted infamous crimes. The Wilson Court declined to endorse a definitive standard for determining whether an offense was infamous and thus required grand jury indictment, noting that the definition of infamy might shift over time. At a minimum, however, the Court held that all federal crimes carrying any potential sentence of hard labor required indictment by grand jury. In Green v. United States (1958), the Court extended the “infamous crime” standard to offenses punishable by one year or more of mandatory confinement in a penitentiary, though this rule exempted criminal contempt-of-court charges carrying such punishments.

The right to a petit jury could be read to apply to a broader set of prosecutions than the Fifth Amendment’s grand jury requirement. Article III, section 2 states, “Trial of all crimes, except in Cases of Impeachment, shall be by jury,” and the Sixth Amendment applies to “all criminal prosecutions.” Notwithstanding this, some early commentators, relying on common-law sources such as William Blackstone’s Commentaries on the Laws of England, suggested that the protections of these provisions extended only to trials for serious offenses.

The first major case in which the Supreme Court appears to have accepted this premise was Callan v. Wilson (1888). Callan involved a prosecution in a Washington, D.C., police court, which was a local criminal court whose proceedings generally were tried by a judge. The Supreme Court of the District of Columbia (the predecessor to the U.S. District Court for the District of Columbia) could hear appeals from the judges’ rulings. This appellate structure provided for trial by jury in some cases. The defendant argued that he was entitled to a trial by jury at the police court stage. The government argued that he was not entitled to a jury because the crime with which he was charged (conspiracy) was a petty offense, the right to a jury trial did not apply to the District of Columbia, or, in the alternative, that the availability of a subsequent jury trial on appeal “cured” the lack of one at the police court stage. The court held that Callan’s conspiracy charge had to be tried before a jury (rejecting, in doing so, the government’s claim that the right to a criminal jury trial excluded the nation’s capital). Nonetheless, dicta in the Callan opinion conceded for the sake of argument that “there is a class of petty or minor offences, not usually embraced in public criminal statutes, and not of the class or grade triable at common law by a jury, and which ... [may] be tried by the court and without a jury.”

This dictum was adopted and expanded in Schick v. United States (1904), in which the Supreme Court held that the Constitution implicitly distinguished between crimes and misdemeanors. The first term, the Court reasoned, denoted a more serious class of offenses to which jury rights attached. Not all misdemeanor charges, however, warranted a jury trial. Justice John Marshall Harlan, who had written the Court’s opinion in Callan, dissented. (Callan itself had involved a misdemeanor charge.) Harlan reasoned that the Constitution’s language was unambiguous: it applied to all crimes against the United States, and that was what the defendant had been charged with.

Although Justice Harlan’s reasoning was championed by several other dissenting justices throughout the first two-thirds of the twentieth century, the Court generally adhered to the minor offenses exception. Initially, judges looked primarily to the nature of the offense charged to determine whether the offense was sufficiently serious to warrant a jury trial.  Thus, for example, in District of Columbia v. Colts (1930), the Supreme Court looked to such factors as whether a crime was malum prohibitum (an act only made wrong by regulation) or malum in se (an act wrong by its nature) in finding a defendant was entitled to a jury although the offense with which he was charged carried a relatively light maximum sentence. Subsequent cases, however, focused on the severity of the potential punishment. In Cheff v. Schnackenberg (1966), the Court adopted a rule that treated crimes carrying a maximum sentence of up to six months imprisonment as petty offenses not warranting a jury trial under the Sixth Amendment. This rule, which remains the standard, tracked modern federal statutory definitions of felony and misdemeanor offenses.  

Jury Size and Unanimity

From the inception of the federal system, courts generally followed English legal tradition regarding jury size by employing petit juries of twelve members and larger grand juries (usually comprising twenty-three or twenty-four jurors). However, no early statute codified this practice. The degree to which individual courts may have varied from this norm is not entirely clear, although it seems plausible that some early-nineteenth-century grand juries were composed of a smaller number of jurors. In 1865, however, Congress enacted a statute setting the size of grand juries between sixteen and twenty-three. The law also required a majority of at least twelve of these jurors to support an indictment. As noted at greater length below, the degree to which such a majority rule could apply in the context of petit juries was the subject of debate in the decades that followed.

The appropriate size of petit juries shifted somewhat over time, particularly in the civil context. In Thompson v. Utah (1898) the Supreme Court ruled that, for purposes of the Sixth Amendment, the requirement of an impartial criminal jury also meant a trial before a body “composed of not less than twelve persons.” The Federal Rules of Criminal Procedure have essentially preserved the twelve-juror norm for federal criminal trials since their inception in 1948, though the rules permit defendants to stipulate to a smaller jury. In a series of opinions beginning with Williams v. Florida (1970), however, the Court declined to require states to employ twelve-person juries in criminal trials (though the Court also invalidated the use of juries of fewer than six jurors). The Court reasoned that the twelve-juror norm was essentially a historical artifact and that there was little evidence that smaller bodies were necessarily less reliable finders of fact or more susceptible to improper influence or bias.

Federal courts typically applied the twelve-juror norm in the civil context until the 1970s, when many courts began to prefer smaller juries. Beginning in 1971, the Judicial Conference of the United States adopted a resolution approving “in principle” the reduction of civil jury size and sought legislation that would adopt six jurors as the norm in federal civil trials. The Judicial Conference’s resolution tracked the existing practice of at least five districts that had already reduced the default size of petit juries in civil cases through their local rules. In Colgrove v. Battin (1973), the Supreme Court upheld a District of Montana local rule that permitted civil juries of as few as six people. In the years that followed Colgrove and the Judicial Conference’s recommendation, most federal district courts revised their local rules to set juries of six as the norm in civil suits. In 1991, FRCP 48 was revised to reflect this pattern, providing, “A jury must begin with at least 6 and no more than 12 members.”  

The requirement that petit juries be unanimous has remained more constant in the federal courts than the rule governing their size, though the application of that requirement to state jury proceedings proved apt to change over time. Throughout the nineteenth century, federal courts generally followed English legal custom, which required unanimity in both civil and criminal jury verdicts. The Supreme Court disfavored deviations from that norm. In American Publishing Co. v. Fisher (1897), the Court invalidated a Utah territorial statute that permitted a majority verdict in civil cases provided that at least nine of the jurors agreed to the outcome. In his opinion for the court, Justice David Brewer emphasized that the right preserved by the Seventh Amendment was to a jury trial as recognized by the common law and that “unanimity was one of the peculiar and essential features of trial by jury at the common law.”   

In Apodoca v. Oregon (1972), the Supreme Court divided as to whether this standard need apply to state criminal trials, with four justices averring that the Sixth Amendment jury trial right included a right to unanimity and four justices maintaining that it did not. For several decades, Justice Lewis Powell’s concurring opinion was effectively the controlling stance on the issue. Justice Powell’s opinion posited that while the Sixth Amendment contains a unanimity requirement for federal courts, that requirement is not incorporated against the states by the Fourteenth Amendment.

In 1979, however, the Court invalidated a Louisiana statute permitting majority verdicts from its six-person juries. The Court’s reasoning drew heavily on a precedent delivered the year before that invalidated five-juror panels, suggesting that at least six jurors would be needed for both deliberation and verdict. The Court did not invalidate the use of majority verdicts in states requiring a larger number of jurors—that practice continued in a small number of states for several decades. In 2020, however, the Court reversed Apodoca in Ramos v. Louisiana. Ramos held that both federal and state criminal juries must be unanimous. While federal civil jury trials continue to require unanimous verdicts in the absence of a stipulation by the parties, the Supreme Court has not incorporated that requirement against the states.

Grand Jury Presentment and Investigatory Powers

Though the presentment power is preserved by the Fifth Amendment, it is seldom used today. The presentment power’s slide into desuetude, which began in the mid-nineteenth century, has many and complex roots. As legal scholar Renée Lettow observed,

As the number of federal prosecutors multiplied, these officials relied less on grand juries to bring charges of their own accord. As populations grew larger and more mobile, fewer jurors had intimate knowledge of a community's affairs. As the law grew more complex and investigative techniques improved, their lack of staff put grand juries at a greater disadvantage compared to prosecutors.[1]

The distaste for charge-by-presentment coincided with a growing sentiment against the use of grand juries more generally in the second half of the nineteenth century. As state governments began to focus more on efficiency in their criminal justice systems, some reformers came to view the use of grand juries as arcane or needlessly duplicative of many of the functions served by the judge and jury during the petit jury trial. Some critics felt that grand juries no longer served as effective checks on prosecutorial overreach, that such safeguards were less needed with the rise of career government attorneys, or that expert magistrates could better perform this task.

Absent a constitutional amendment, the federal system could not follow the example of the states that responded to these concerns by severely limiting or even abolishing charge-by-grand-jury. However, the increased reliance on prosecutors to bring charges via indictment arguably went some way to answering these concerns, while still employing one of the two charging methods countenanced by the Constitution. By 1872, Justice Stephen Field asserted that the presentment practice was dead, telling a California grand jury that presentment had “fallen in disuse since the practice has prevailed—and the practice now obtains generally—for the prosecuting officer to attend the grand jury and advise them in their investigations.”

Federal grand juries’ investigatory powers proved more resilient. Throughout the judiciary’s history, federal courts have generally emphasized the breadth and coercive force of those powers. These broad investigatory powers are predicated on the public interest in ensuring that the grand jury can make the most informed determinations possible. Even in a case where compulsory testimony proved “onerous” the Supreme Court emphasized that witnesses’ “personal sacrifice [was] a part of the necessary contribution of the individual to the welfare of the public.” (Blair v. United States (1919)).

Nonetheless, federal courts never held that these powers were without constitutional limits. Particularly after the turn of the twentieth century, the Supreme Court imposed important restrictions on a grand jury’s ability to investigate crimes using the subpoena power. In Hale v. Henkel (1909), for instance, the Court invalidated a grand jury subpoena for “all understandings, contracts or correspondence between” several companies as “far too sweeping in its terms to be regarded as reasonable.”

Constitutional limitations on grand jury investigations came under greater scrutiny as ambient constitutional doctrine increasingly emphasized the rights of criminal defendants in the 1960s and ’70s. In the main, however, the Court continued to emphasize the need for grand jury investigations to remain unfettered by unnecessary judicial supervision. In United States v. Dionisio (1973), the Supreme Court held that a grand jury subpoena requiring twenty criminal suspects to provide voice exemplars for the purposes of comparing the voice samples with recorded conversations did not violate either the Fourth Amendment’s prohibition on unreasonable seizures or the Fifth Amendment’s protection against self-incrimination. The Court held that grand jury subpoenas were not seizures within the meaning of the Fourth Amendment, thus arguably preserving a potentially sweeping scope for grand jury investigations. Even so, the Court emphasized that grand jury subpoenas did not operate as a “talisman that dissolves all constitutional protections. The grand jury cannot require a witness to testify against himself. It cannot require the production by a person of private books and records that would incriminate him.” The year after Dionisio, however, the Court held that the Fourth Amendment’s exclusionary rule (which prohibits the admission of illegally discovered or seized evidence at trial) did not apply in the grand jury context.

Petit Juries in Capital Trials

While most rules involving the right to a petit jury trial apply to trials for all serious federal offenses, trials for capital offenses began to differ somewhat from most other jury trials in the 1970s. In Furman v. Georgia (1972), the Supreme Court essentially invalidated the capital punishment systems employed by both the states and the federal government. Furman was a per curium decision with the five majority justices each issuing separate concurring opinions. Most of these emphasized the lack of consistent standards guiding juries in determining whether the death penalty should be applied.

In 1976, the Court ended this de facto moratorium on the death penalty in Gregg v. Georgia. Gregg consolidated challenges to several states’ post-Furman capital sentencing policies. The Gregg Court approved the use of a bifurcated trial structure for capital offenses. In the first phase of the trial, fact finders determined the defendant’s guilt or innocence. In the second, fact finders decided whether a guilty defendant met various eligibility factors for the death penalty and judged whether that penalty should be imposed based on an evaluation of mitigating and aggravating aspects of the case, as well as the defendant’s character and past conduct. While Gregg and some later cases suggested that this determination could also be made by a judge, the Court held in 2002 that it must be made by a jury. While Furman had effectively ended the use of the death penalty in federal district courts, Congress reinstated the federal death penalty in 1988 using a sentencing scheme similar to those approved in Gregg.

Juries in the Modern Federal Judiciary

Federal petit jury trials gradually became less common over the course of the twentieth century. Scholars have advanced several potential causes for this transformation. The increasing cost and length of litigation have made settlement more attractive in most civil suits. The streamlining and clarifying functions of modern discovery—by which parties gain a stronger sense of the strengths and weaknesses of each other’s cases and the way evidence is likely to appear before a jury—also encourage settlement. In many instances, judges help to facilitate mediation of cases prior to trial. The broad powers of summary judgement authorized by the FRCP mean that judges can issue pretrial judgments in a wider range of cases than they did at common law. Prosecutorial tactics may also encourage plea bargaining prior to trial in many modern criminal cases.

Since the Progressive Era (circa 1893-1920), the desirability of jury trials has increasingly come into question. Critics argue that juries are a historical curiosity and that most ordinary citizens lack the sophistication and expertise to render reliable judgments in complex cases. Some claim that jurors may be more inclined to act on prejudice or other irrational motives than judges, though these claims have proven the source of considerable debate and academic study. Other critics have urged for limits on the scale of damages awarded by so-called “runaway” juries in high-profile civil cases. Advocates reason that juries continue to perform an important role in bringing a democratizing influence to a branch sometimes described as countermajoritarian.

Despite the trend away from its use, the petit jury remains a significant actor in the judicial branch and retains a robust place in American civic life. In a recent year, for instance, more than 180,000 Americans participated in the federal petit jury system, either as jurors or by appearing as part of the venire from which the jury was drawn.

Grand juries also remain important actors in the federal criminal process. Though the presentment power and many of the governmental oversight functions once undertaken by grand juries are no longer in widespread use, these juries continue to play an instrumental role in investigating suspected criminal conduct and in charging criminal defendants. This system involves significant civic involvement from the public. In a recent year, for example, more than 134,000 Americans served on federal grand juries or appeared as members of the venires from which those juries were drawn.

Further Reading

Amar, Akhil Reed. The Bill of Rights: Creation and Reconstruction (New Haven, Conn.: Yale University Press, 1998).

Baldwin, John, and Michael McConville. “Criminal Juries,” Crime and Justice, vol. 2 (1980): 269–319.

Berger, Benjamin L. “Judges, Juries, and the History of Criminal Appeal,” Law and History Review, vol. 29, no. 1 (Feb. 2011): 297–302.

Boudin, Leonard B. “The Federal Grand Jury,” Georgetown Law Journal, vol. 61, no. 1 (Oct. 1972): 1–36.

Dession, George H., and Isadore H. Cohen. “The Inquisitorial Functions of Grand Juries,” Yale Law Journal, vol. 41 (1931–1932): 687–712.

Fairfax, Roger A., Jr. “The Jurisdictional Heritage of the Grand Jury Clause,” Minnesota Law Review, vol. 91 (Dec. 2006): 398–454.

Gensler, Stephen S., et. al. “Better by the Dozen: Bringing Back the Twelve Person Jury,” Judicature, vol. 104, no. 2 (Summer 2020): 46–57.

Hall, Jerome. “Analysis of Criticism of the Grand Jury,” Journal of the American Institute of Criminal Law and Criminology, vol. 22, no. 5 (January 1932): 692–704.

Howe, Mark DeWolfe. “Juries as Judges of Criminal Law,” Harvard Law Review, vol. 52, no. 4 (Feb. 1939): 582–616.

Ketcham, Ralph, ed. The Anti-Federalist Papers and the Constitutional Debates (New York: Mentor, 1986).

Landsman, Stephan. “The Civil Jury in America,” Law and Contemporary Problems, vol. 62, no. 2 (Spring, 1999): 285–304.

_______________ and James F. Holderman. “The Evolution of the Jury Trial in America,” Litigation, vol. 37, no. 1 (Fall, 2010): 32–37.

Langbein, John H. The Origins of Adversary Criminal Trial (New York: Oxford University Press, 2003).

Lerner, Renée Lettow. “The Rise of Directed Verdict: Jury Power in Civil Cases Before the Federal Rules of 1938,” George Washington Law Review, vol. 81 (Feb. 2013): 448–525.

Lettow, Renée B. “Note: Reviving Federal Grand Jury Presentments,” Yale Law Journal, vol. 45 (Mar. 1994): 1333–62.

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