| To: |
Senator Donald E. Williams, Jr.
Representative Michael P. Lawlor
Co-Chairs, Judiciary Committee |
| From: |
David L. Hemond - Analysis prepared on behalf of Law Revision
Commission Study Committee on the Right to a Jury Trial for Misdemeanors |
| Date: |
January 20, 1998 |
| Re: |
Report on Connecticut Right to a Jury Trial for Misdemeanors |
Executive Summary:
At its regular meeting on June 16, 1998, the Law Revision Commission voted to
undertake a study of Connecticut Law concerning the right to a jury trial for
misdemeanors. That study was undertaken pursuant to a request of Judiciary Committee
Co-Chairmen Donald E. Williams, Jr. and Michael P. Lawlor which states the following:
"We are writing to request that the Law Revision Commission undertake a
study of the current Connecticut laws concerning the right to a jury trial for
misdemeanors. In Connecticut, virtually every criminal charge gives a defendant the right
to a jury trial. Federal case law seems to indicate that juries are only constitutionally
required when there is an incarceration for six months or more. We would like to have the
Law Revision Commission examine whether we can make statutory changes so that misdemeanors
such as shoplifting wouldn’t result in jury trials. The Commission should examine
what other states do and also whether the Connecticut constitution prohibits these
changes. In addition, [if] there is a constitutional provision barring a statutory change
to the right to a jury trial, the Law Revision Commission should examine what other states
do constitutionally."
The Law Revision Commission committee established to undertake the review
consisted of Representative Robert Farr, Jon P. FitzGerald, and Colin C. Tait.
This report prepared on behalf of the committee analyzes the extent to which the
Federal and State Constitutional provisions guaranteeing the right to a jury trial limit
the ability of the Connecticut legislature to provide for prosecution of misdemeanors
without a jury trial. Misdemeanors in Connecticut are those classes of cases that are
punishable by no more than one year imprisonment or a $2,000 fine.
More specifically, section 53a-28 provides that a person convicted of a
misdemeanor may be subject to both a term of imprisonment and a fine.
Under section 53a-26(a), "An offense for which a person may be sentenced to
a term of imprisonment of not more than one year is a misdemeanor." Subsection (b) of
that section specifies that "Misdemeanors are classified for the purposes of sentence
as follows: (1) Class A, (2) class B, (3) class C, and (4) unclassified." Section
53a-36 sets the following parameters for sentencing imprisonment for misdemeanors:
"A sentence of imprisonment for a misdemeanor shall be a definite sentence
and the term shall be fixed by the court as follows: (1) For a class A misdemeanor, a term
not to exceed one year except that when a person is found guilty under section
53a-61(a)(3) or 53a-61a, the term shall be one year and such sentence shall not be
suspended or reduced; (2) for a class B misdemeanor, a term not to exceed six months; (3)
for a class C misdemeanor, a term not to exceed three months; (4) for an unclassified
misdemeanor, a term in accordance with the sentence specified in the section of the
general statutes that defines the crime."
Section 53a-42 sets out the parameters for imposing fines, which range from a
maximum of $2,000 for class A misdemeanors, to a maximum of $1,000 for a class B
misdemeanor, to a maximum of $500 for a class C misdemeanor. If a misdemeanor is
unclassified, the maximum fine is as set by the provision defining the particular crime.
This report finds the following with respect to the right to jury trial in
those cases:
1. The federal constitutional right to a jury trial applies to Connecticut cases
and requires that in any proceeding in which the penalty could exceed six months, the
defendant is entitled to a jury trial. That right to a jury trial might also extend to
other criminal prosecutions where the penalty is six months or less if other
characteristics were found that made the crime nonpetty. However, the United States
Supreme Court has yet to hear and determine such a case.
2. The Connecticut constitution by a literal reading of its express terms
guarantees a right to a jury trial in all criminal cases including all misdemeanors before
the Superior Court. However, that rule reflects a historical anomaly and, while the matter
has not been ruled on by the Connecticut Supreme Court, lower courts have construed the
state constitution to allow prosecution of some "petty" criminal matters without
a jury trial. What level of alleged crime invokes a state constitutional right to a jury
trial is not clear.
More specifically, the Connecticut constitutional guarantees as passed in 1818
provided for the right to a jury trial for all serious crimes. Serious crimes at the time
of the adoption of the original provisions were those crimes brought in Connecticut by
indictment of a grand jury or by a State’s Attorney and were those crimes covered by
the language of the original constitutional provision.
Unification of Connecticut’s inferior courts, first in the Circuit Court,
then in the Court of Common Pleas, and then in the Superior Court resulted in all
misdemeanors as well as felonies being prosecuted by a State’s Attorney. The literal
wording of the State Constitution provides the right to a jury trial in those cases since
they are brought on the "information" of that State’s Attorney (however
that pleading may be designated).
However, case law of lower Connecticut courts (and the Connecticut legislature)
has viewed the state constitutional guarantee to apply only to that class of cases for
which a right to jury trial existed in 1818. The analysis contained in the case law is
somewhat suspect because it ignores the express language of the constitution and
definitive language of the Connecticut Supreme Court in an early case. Moreover, even if
that lower court analysis is accepted, what cases could be prosecuted without a jury trial
today under the standard of the 1818 constitution as so interpreted is necessarily
unclear. The criminal code of 1818 differed significantly from Connecticut's current code.
It is also unclear to what extent an inferior court could have been constitutionally
empowered in 1818 to incarcerate without a jury trial. While no inferior court actually
had power to incarcerate in 1818, the authority to incarcerate for thirty days was granted
to Justices of the Peace in 1848.
Given the lack of certainty as to current law, if the legislature wishes to
change the status quo, it may wish to consider one of the following approaches:
1. Enactment of a statute to judicially test and clarify the law.
Legislative provisions are entitled to deference and the legislature might, if it wished,
revise the existing statute, section 54-82b, to further limit the right to jury trial.
Such a revision, might, for example limit the right to jury trial to allegations of Class
B misdemeanors and more serious offenses. Such a statute could not, in any event, remove
the right to a jury trial guaranteed under the federal six month rule. That new
Connecticut statute could then be judicially tested, and if upheld, would establish a new
revised state law standard. Given the cumbersome procedural process of constitutional
amendment, such a statutory revision has certain practical attractions as a relatively
straight-forward and inexpensive way to clarify the law. On the other hand, given the
uncertainty of current law, such a test statute might also be overturned. Moveover, if a
test case was not brought promptly, the State could find itself in the awkward position of
having prosecuted and convicted defendants under a law that limited their rights to a jury
trial and that was only overturned substantially after their incarceration.
2. Constitutionally clarify the law. If the right to a jury trial is to
be constitutionally limited, the Connecticut Constitution could be amended to clarify that
limitation. Similarly, if the legislature wishes to ensure that that the constitutional
right to a jury trial applies in all criminal cases, or in all criminal cases where the
penalty includes a possible term of imprisonment, that standard could be clarified through
a constitutional amendment.
3. Creation of a two tier system allowing an initial adjudication before an
inferior court or magistrate. Alternatively, the current constitution would seem to
allow enactment of a two tiered system for lesser crimes in which a defendant was entitled
to a jury trial only on appeal of the initial adjudication. Such a bifurcated adjudication
system was used until recently in Massachusetts. Such a process must accommodate the
constitutional right to a "speedy" trial and the initial adjudication would
therefore have to be provided promptly. Such a system would also incur the additional
administrative costs necessary to creation of a dual system, and would work inefficiently
with respect to any defendant who demeanded both the initial trial and the de novo jury
trial. However, it would also provide a forum for more efficient court trials and a
portion of those trials would result in final verdicts without the need for a jury trial.
In considering what approach to apply, the legislature may wish to consider the
practices of the other forty-nine states. Thirty-six states, either through their
constitutions, statutes, or court rules, guarantee the right to jury trial in all cases in
which the accused is threatened with imprisonment. Twenty-nine of those states provide a
right to jury trial for virtually all misdemeanors even where imprisonment is not
threatened. Thirteen states allow imprisonment for a misdemeanor offense without the right
to jury trial. Seven states allow imprisonment without a jury trial for the full six month
period permissible under the federal constitution. A brief summary of those state laws is
attached.
Analysis:
The federal right to a jury trial
The Sixth Amendment to the United States Constitution provides, in part,
"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 provision that an accused enjoys the right to a trial by
jury applies to state law prosecutions. In Duncan v. Louisiana, 391 U.S. 145
(1968), the United States Supreme Court ruled that "Because we believe that trial by
jury in criminal cases is fundamental to the American scheme of justice, we hold that the
Fourteenth Amendment guarantees a right of jury trial in all criminal cases which –
were they to be tried in a federal court – would come within the Sixth
Amendment’s guarantee." (at p. 149.) See also State v. Shockley, 188
Conn. 697 (1982).
Because of the supremacy of applicable federal constitutional provisions, this
federal right sets absolute limits on the extent to which the State of Connecticut can
limit the right to a jury trial. However, as noted in the Judiciary Co-Chairmen’s
request, the federal right to a jury trial is limited and does not apply in petty cases.
The precise parameters for the rights to a jury trial under the United States Constitution
that are imposed on the states has been the subject of considerable legal wrangling. Among
the rules that have been established by a majority of the court in those cases are the
following:
1. The right to a jury trial applies to serious, rather than "petty"
offenses. Duncan v. Louisiana, 391 U.S. 145 (1968).
2. An offense in which the possible penalty exceeds six months is sufficiently
serious to entitle the defendant to the right to a trial by jury. Baldwin v. New York,
399 U.S. 66, 69 (1970). ("More specifically, we have concluded that no offense can be
deemed ‘petty’ for purposes of the right to trial by jury where imprisonment for
more than six months is authorized.")
3. State law provisions that provide for six person, rather than twelve person,
juries do not violate the federal constitution, Williams v. Florida, 399 U.S. 78
(1990), but a six person jury is the constitutional minimum. Ballew v. Georgia, 435
U.S. 223 (1978).
4. Unanimity is not required of a twelve person jury, Apodaca v. Oregon,
406 U.S. 404 (1972)(10-2) and Johnson v. Louisiana 406 U.S. 356 (1972) (9-3), for
certain non-capital cases but a less than unanimous verdict by a six person jury for a
"nonpetty" offense violates the federal constitution. Burch v. Louisiana, 441
U.S. 130 (1979).
The Supreme Court has expressed dissatisfaction with the nature of the line
drawing required in those cases. The Court notes in Duncan:
"Of course the boundaries of the petty offense category have always
been ill-defined, if not ambulatory. In the absence of an explicit constitutional
provision, the definitional task necessarily falls on the courts, which must either pass
upon the validity of legislative attempts to identify those petty offenses which are
exempt from jury trial or, where the legislature has not addressed itself to the problem,
themselves face the question in the first instance. In either case it is necessary to draw
a line in the spectrum of crime, separating petty from serious infractions. This process,
although essential, cannot be wholly satisfactory, for it requires attaching different
consequences to events which, when they lie near the line, actually differ very
little." (at page 161).
Moreover, caution must be exercised in assessing where the lines have been
drawn. For example, the Court has explicitly stated that the constitutional right to a
jury trial applies to all crimes (including contempts, see Bloom v. Illinois, 391
U.S. 194 (1968)) involving a possible punishment of more than six months. However, every
crime imposing a possible punishment of less than six months is not necessarily exempt
from the federal right to jury trial requirement. Since seriousness is determined both by
the amount of punishment and the nature of the crime (Duncan v. Louisiana, 391 U.S.
145, 159 (1968)), the federal right to a jury trial might yet be extended to apply to
particular cases where incarceration of six months or less is authorized. Such a crime,
might, hypothetically, involve a heavy fine or a social stigma that would raise it to a
protected status. See Blanton v. City of North Las Vegas, 489 U.S. 538, 542-44
(1989). Moreover, the Court has expressly recognized that how the offense is designated is
not controlling. In Kennedy v. Mendoza-Martinez, 372 U.S. 144 (1963), the Court
held the constitutional protection to apply to denationalization proceedings that the
federal government characterized as not criminal.
What can be said then is that if a crime provides for a penalty of more than six
months, the defendant has a federal right to a jury trial. In Connecticut, that rule,
alone, requires that the right to a jury trial be afforded in any prosecution for a Class
A misdemeanor or any unclassified misdemeanor in which the possible maximum imprisonment
is more than six months.
Federal law does not require a jury trial for all Class B and C misdemeanors and
for unclassified misdemeanors where the maximum imprisonment is no more than six months.
However, the federal right to a jury trial might be found to apply to some such cases at a
future date. Any Connecticut provision is limited by these parameters.
The state right to a jury trial
In addition to the federal Constitutional provisions, Connecticut and the 49
other states have enacted state constitutional provisions guaranteeing the right to a jury
trial. Connecticut has two such constitutional provisions.
The first sentence of Article First, section 8 of the Connecticut Constitution
of 1965, as amended, provides:
"In all criminal prosecutions, the accused shall have a right to be heard
by himself and by counsel; to be informed of the nature and cause of the accusation; to be
confronted by the witnesses against him; to have compulsory process to obtain witnesses in
his behalf; to be released on bail upon sufficient surety, except in capital offenses,
where the proof is evident or the presumption great; and in all prosecutions by
information, to a speedy, public trial by an impartial jury." (emphasis added.)
Prior to amendment by Article 17 in 1982, this provision read in part "in
all prosecutions by indictment or information…" That amendment, removing the
term "indictment", reflected the abolishment of indictment by grand jury as a
process for commencing criminal actions. This section was also amended by Article 29 in
1996 to add a subsection for victims of crimes. The section was designated Article First,
section 9 in Constitutions predating 1965.
Article First, section 19 of the 1965 Connecticut Constitution, as amended,
states that "[t]he right of trial by jury shall remain inviolate, the number of such
jurors, which shall not be less than six, to be established by law; but no person shall,
for a capital offense, be tried by a jury of less than twelve jurors without his
consent…." (The original provision was contained in Article First, section 21 in
Constitutions predating 1965.)
The Connecticut legislature has also enacted the following statutory provision
codified in section 54-82b(a):
"The party accused in a criminal action in the Superior Court may demand a
trial by jury of issues which are triable of right by a jury. There is no right to trial
by jury in criminal actions where the maximum penalty is a fine of one hundred ninety-nine
dollars or in any matter involving violations payable through the centralized infractions
bureau where the maximum penalty is a fine of five hundred dollars or less."
Subsection (c) further provides: "In any criminal trial by a jury, except
as otherwise provided by law, such trial shall be by a jury of six."
The defendant’s right to a jury trial in Connecticut is most expressly
addressed by Article First, section 8, which guarantees a right to a jury trial on any
case brought on information. In Goddard v. the State, 12 Conn. 448 (1838), the
Connecticut Supreme Court held that the term "information" refers to prosecution
"on information" of a State’s Attorney. Because the Superior Court is now
the sole court of criminal jurisdiction and criminal actions are prosecuted in that court
by the State’s Attorney, a defendant in any such case, if the provision were read
literally, would seem to be entitled to a jury trial.
However, Superior Court decisions have bypassed the language of Article First,
section 8, and, citing Article First, section 19, have construed the state constitution to
allow prosecution without a jury trial if a defendant could have been prosecuted by some
lesser court or magistrate for the crime without the right to trial by jury under the 1818
Constitution. Those decisions may not be sound.
Under the Connecticut Supreme Court decision in Goddard, any action
brought and prosecuted by a State’s Attorney is, for constitutional purposes,
pursuant to an "information". Historically, "informations" were
brought by the State’s Attorney and "complaints" were brought by lesser
officers or law enforcement personnel. In Goddard, the Supreme Court discussed the
distinction between complaints and informations for purposes of construing the right to a
jury trial. The court writes, speaking with respect to a complaint brought by a
tything-man to a justice of the peace:
"It has been attempted, by the counsel of the plaintiff in error, to show,
that in its form and nature it partakes of the features of an information. And it is
certainly true, that every accusation of one person by another to a magistrate, is
information to that magistrate. But it is not, therefore, the information spoken of in the
constitution, because it does not come from the source which gives it that character.
We have in each county an officer called the state’s attorney, whose duty
it is, to give information to the courts of offences committed within the county; and
accusations thus made have always been denominated informations. We have other public
officers, called grand-jurors and tything-men, elected in each town, whose duty it is to
present offences committed within their town, to single ministers of justice. These
accusations were, in our early statute, called presentments, and in common parlance,
complaints."
The court goes on to hold that the defendant is not entitled to a jury trial in
that case because the matter was brought "by complaint" by a lesser officer (a
tything-man) to a lesser magistrate (a justice of the peace). Had such a matter been
brought by the State’s Attorney to the Superior Court, the defendant would have been
entitled to a jury trial. (At page 455.) Counsel for the State in Goddard directly
asserts:
"In this way, we ascertain what is meant by the word
‘information," as used in the 9th [8th under the current
constitution] section. It refers to the information immemorially preferred, by
state’s attorneys in Connecticut, to the superior and county courts – tribunals
which have always been provided with a jury – and not to a complaint, brought by a
tything-man, to a single magistrate, for a minor offense."
Read literally, it follows that when the Constitution of 1818 provided a right
to a jury trial on a case brought by information, it guaranteed that right in all cases
brought by "information" of the State’s Attorney to the Superior Court (or
County Court). It does not make a difference what the particular prosecuting document is
called because the construction of what constitutes an information is dependant, under Goddard,
on who the officer is that brings it.
Note also that section 36-11 of the Practice Book (formerly P.B. 1978-1997
section 616, see also section 2024 of the Practice Book of 1963, revised to July 1, 1978)
provides that
"All misdemeanors, violations, and infractions shall be prosecuted by
information or complaint. In all jury cases, and in all other cases on written request of
the defendant, the prosecuting authority as of course shall issue an information in place
of the uniform summons and complaint."
Thus, even if one distinguished between prosecutions by complaint and
prosecutions by information, a defendant has the right to request an information and
thereby invoke whatever right one has to a jury trial in prosecutions by information. In
short, prosecutions by a State’s Attorney are "on information" and if read
literally, one might argue, invoke Article First, section 8 protections.
The Connecticut Superior Court decisions
However, the most recent Connecticut Superior Court decisions (there are no
recent controlling decisions of the Connecticut Supreme Court) limit the right to a jury
trial, based on the Article first, section 19 language that "the right of trial by
jury shall remain inviolate", to actions under which a defendant was entitled to a
jury trial in 1818. Those rulings do not satisfactorily address the express language of
section 8 or the fact that section 8 and section 19 must be read together.
In State v. Weisser, 9 Conn. App. 255 (1986), a case brought by
information in the Superior Court, Judge Hull writes for the Connecticut Appellate Court,
"The use of an information to charge an offense not otherwise entitled to a trial by
jury does not thereby entitle a defendant to a trial by jury, despite the provisions of
article first, 8, of the constitution of Connecticut…" Judge Hull does not
explain why Article first, section 8 does not apply, but cites for authority State v.
Gorra Bros. Inc. 4 Conn. Cir. Ct. 488 (1967).
Gorra Bros. is based on a prosecution brought on information to the
Circuit Court. That opinion seems to ignore the express language of Article first, section
8, holding that the right to a jury trial was determined, under Article First, section 19,
by the standard of whether the defendant would have been entitled to a jury trial under
the law in effect in 1818. The case does not accept the constitutional right, implicit in
the Goddard decision to a jury trial in any case presented by a State’s
Attorney. In Gorra, Judge Kosicki writes:
"The defendant contends that it was entitled to a jury trial because the
prosecution was initiated by an information rather than a complaint, and therefore the
distinction between the two, according to the rule in the Goddard case…makes
it mandatory, under our constitution, that when a defendant is presented on an information
he is entitled to a trial by jury. We do not believe that nomenclature alone can be
claimed to be decisive of the issue presented. We cannot disregard the plain, unequivocal
terms of section 51-266, which was originally passed in 1959 and is part of chapter 885 of
the General Statutes, entitled ‘Circuit Court’. Public Acts 1959, No. 28 Section
32. This court was organized to replace all courts of minor jurisdiction, including
municipal, town, borough, and justice courts; and the jurisdiction of such courts, as
enlarged by the General Assembly, passed wholly to the Circuit court. We are of the
opinion that the constitutional right of a defendant in a criminal prosecution has not
been impaired by section 51-266, that the criteria for determining that right are
essentially unchanged from those established by our preexisting law, and that section
51-266 does not violate article first, sections 8 and 19 of the 1965 constitution of
Connecticut (formerly sections 9 and 21 of the constitution of 1818). The case of Myers
v. State, 1 Conn. 502, cited by the defendant is not applicable. There, it appears
that the prosecution was originally begun in the Superior Court by information of the
state’s attorney, and no question as to the right to trial by jury was
presented…." (emphasis added.)
Judge Kosicki’s rationale for not requiring the right to a jury trial is
that the Circuit Court was expressly created to replace inferior courts under which the
right to jury trial did not exist in 1818 and that such a consolidation did not create a
new right. Although Gorra was prosecuted by a State’s Attorney and the express
language of section 8 does, by its terms, seems to apply, Judge Kosicki finds that such a
rationale does not apply to a lower court such as the Circuit Court that was created to
replace the earlier inferior courts.. That rationale, however, is somewhat jarring given
that, under Goddard, a jury trial was not required in the inferior courts only
because the prosecuting agent was not a State’s Attorney. In any case, Judge Kosicki
distinguishes his decision from cases that are brought to the Superior Court. As such, it
provides dubious precedent for Judge Hull's Weisser decision which was brought in
the Superior Court.
Judge Kosicki, in Gorra, also cited as precedent State v. Heller,
4 Conn. Cir. Ct. 174 (1966). That case, dealing with a prosecution brought on information
for intoxication before the Circuit Court, also held that the defendant had no right to a
jury trial, notwithstanding Article first, section 8. In Heller, Judge Kosicki,
again bypassing the express wording of Article first, section 8, writes as follows:
"The rule preserving the constitutional right to a jury trial has been
settled in both the state and federal jurisdictions. Concisely stated, there is no
constitutional right to a jury trial unless the right to such a trial existed at the time
the constitution was adopted."
Judge Kosicki cites primarily McGarty v. Deming, 51 Conn. 422, 423 (1883)
which holds that there was no right to a jury trial in a trial for drunkenness brought to
the City Court of New Haven under the charter of the city of New Haven. That court notes
that this crime, under the law of 1808, was triable to a justice of the peace without a
jury. However, the decision does not address the Article first, section 8 constitutional
right to a trial by jury in a case brought by information of the State’s Attorney and
thus does not buttress Judge Kosicki’s view of the Article first, section 8
provision. The line of other cases cited in Heller have also been reviewed. None of
those cases provides precedential value for the premise that Article first, section 8 can
be ignored. (State v. Gannon, 75 Conn 206 (1902), provides an interesting history
of the right to jury trials in Connecticut but does not support the Heller decision.)
Indeed, the premise of Judge Kosicki, that the rights to jury trial are those incorporated
in 1818, is stated without express recognition that those 1818 rights included a right to
jury trial in any case prosecuted by a State’s Attorney.
It is instructive that Judge Spallone's concurring decision in State v.
Weisser recognized the need to address Article first, section 8 directly. Judge
Spallone writes:
"…I write only to elaborate further my views regarding the
defendant’s claim that any defendant charged by information is entitled to a jury
trial under article first, 8, of our state constitution. I find that this claim reflects
an unwarranted rigidity in the interpretation of our constitution. The label affixed to a
charging document should not be the determining factor as to whether a person is entitled
to a jury trial. State v. Gorra, Inc., 4 Conn. Cir. Ct. 488, 494-95, 236
A.2d 345 (1967). Rather, the focus should be, as both courts and the legislature have
recognized, on the nature of the offense and seriousness of the penalty."
Judge Spallone cites section 54-82b by which the legislature limits (or attempts
to limit) the right to a jury if the maximum fine is $199, and cites the United States
Supreme Court decision in Duncan v. Louisiana, in which the United States Supreme
Court drew the line between petty and serious offenses. He then writes:
"I would interpret the terms "prosecution by information" in
article first, 8, to refer to prosecutions of that class of serious crimes that have
traditionally been prosecuted by an information, rather than to prosecutions of any crime
that happened to be charged by that document. Otherwise, the legislature could eviscerate
the rights secured under article first, 8, merely by abolishing the information or
limiting the circumstances of its use. Here, because of the relatively minor nature of the
offense, the defendant was not entitled to a trial by jury."
Judge Spallone’s opinion is important because it recognizes the need to
address the Article first, section 8 provisions and because it proposes a reasonable,
common sense interpretation similar to that upheld by the federal courts. However, the
federal construction of the right to jury trial did not have to address express language
in the federal constitution that provided a right to jury trial in any case prosecuted by
a State’s Attorney. Judge Spallone’s approach reconstrues the meaning of the
term "information" in a way that conflicts with its literal meaning as adopted.
Moreover, because the right to jury trial exists as a protection against abuse by the
power of the State, a court reconstruction of the express language and original meaning of
the provision, such as that suggested by Judge Spallone, while reasonable, would not
necessarily be upheld on appeal.
Moreover, Judge Spallone’s suggestion that the legislature could abolish
the right to a jury trial by abolishing or renaming the information is suspect precisely
because, as Judge Spallone points out, "the label affixed to a document should not be
the determining factor as to whether a person is entitled to a jury trial." If this
constitutional right to a jury trial in cases brought on information is upheld as read
literally to be a substantive right, then any action brought in the Superior Court by a
State’s Attorney entitles the defendant to a jury trial.
This is not to disagree with Judge Spallone’s underlying point, that the
state constitution should reflect modern conditions. The legislature, by unifying the
court system in the Superior Court, revised the criminal process so that all criminal
proceedings, including the petty proceedings formerly within the jurisdiction of local
courts, are now brought by State’s Attorneys. While that consolidation appears to
literally invoke the Article First, section 8 constitutional right to trial by jury in all
criminal cases, it is certainly arguable that such a reading would not have been intended
at the time that the right was established. Legitimate concerns for efficiency of judicial
administration may now suggest that certain petty crimes be tried to the court rather than
to a jury. It can be argued that a Connecticut Supreme Court case construing Article
First, section 8 as Judge Spallone advocates to only apply to prosecution on information
of serious crimes would adequately address the constitutional problem. Such a ruling might
be legislatively prompted by passage of a statute testing the issue.
However, the outcome of such a test is not clear. The enactment of the right to
a jury trial in matters brought by a State’s Attorney may have reflected not only a
concern that the right apply in significant cases but also a distrust of the state itself
– formerly the Crown – on whose behalf the State’s Attorney acted. Thus the
Connecticut Supeme Court might find that the original intent of Article first, section 8
was, indeed, to guarantee a jury trial of one’s peers in any action brought by
a State’s Attorney, rather than only in nonpetty actions. In short, it is not
possible to predict with certainty how the Connecticut Supreme Court would rule on this
issue.
This report also acknowledges a decision of the Appellate Session of the
Superior Court, State v. Wheeler, 37 Conn. Sup. 693 (1981), which predates Weisser
and similarly found no right to a jury trial where the action was an infractions complaint
in the Superior Court. That decision properly analyzes the federal law with respect to
petty cases. The discussion of the state constitution, however, is limited to Article
first, section 19, and fails to address the Article first, section 8 right to a jury trial
in a case brought on information by a State’s Attorney. The decision is valid if, and
only if, one assumes that Article first section 8 need not be read literally and that a
complaint by a State’s Attorney is not an "information" as provided in Goddard.
See also State v. Sheldon, 5 Conn. App. 434 (1985), which is similarly
conclusory, citing State v. Wheeler.
Finally, as noted above, section 54-82b, by its terms, restricts the right to a
jury trial to actions where the penalty exceeds $199 or violations where the penalty
exceeds $500. It is axiomatic, however, that the legislature cannot enact provisions in
violation of its constitution. To the extent that a matter covered by section 54-82b is
prosecuted by a State’s Attorney on information, section 54-82b may currently be
vulnerable to constitutional attack.
Additional considerations with respect to a right to jury trial based on 1818
law
As this discussion notes, constitutional protections to a jury trial are
provided by Article first, section 19 as well as Article First, section 8.
That provision has been construed by recent case law to guarantee defendants in
criminal cases the right to a jury trial in any case in which "the issue raised in
the action is substantially of the same nature or is such an issue as prior to 1818 would
have been triable to a jury." Swanson v. Boschen, 143 Conn. 159, 165 (1956).
See State v. Wheeler, 37 Conn. Sup. 693 (1981), State v. Weisser, 9 Conn.
App. 255 (1986), cert. denied, 202 Conn. 803 (1987), and State v. Sheldon, 5 Conn.
App. 434 (1985). Under those cases, Article First, section 19, rather than the language of
Article First, section 8, determines the right in criminal cases to a jury trial.
Notwithstanding the possible problems with respect the rationale for those decisions, the
courts and legislature may adhere to that standard. Consideration must be given then to
what that standard means.
Basing the right to a jury trial on what actions were "triable to a jury in
1818" standard poses significant problems for 1998 jurisprudence. The question
becomes whether the current charge involves an issue that was triable to a jury in 1818 or
that is "substantially of the same nature" as an issue that was triable to a
jury. Answering that question requires that each modern crime be analyzed as to whether it
is sufficiently similar to an 1818 crime to invoke state constitutional protection.
As noted in Goddard and the discussion above, it was understood in 1818
that any action brought on information of a State’s Attorney afforded the defendant
the right to a trial by jury. Thus the only cases in which there was no right to a trial
by jury were those in which the original jurisdiction for the offense was set in lesser
courts or magistrates.
Connecticut courts have determine that there was no right to jury trial in 1818
with respect to a few, discrete cases. Thus, in State v. Weiser, the Connecticut
Appellate Court determined that the crime of disorderly conduct is not substantially
similar to any common law crime for which there was a right to a trial by jury in 1818.
Other cases, cited in Wheeler, note that no such right to a jury trial existed for
violation of a licensing requirement, La Croix v. County Commissioners, 50 Conn.
321, 327 (1882), drunkenness, McGarty v. Deming, 51 Conn. 422 (1883), and breach
of Sabbath, Goddard v. State, 12 Conn. 448, 454 (1838).
To determine whether a right to a jury trial existed under the Constitution of
1818 for other particular actions in 1818, however, requires analysis of the criminal law
in effect at that time.
The criminal law in 1818 reflected both English common law and statutory
provisions under which jurisdiction of a particular court was specified. The common law
was expressly adopted. Title 1 of the 1808 Statute Laws provides that:
"the ancient form of civil government, contained in the charter from
Charles the Second, King of England, and adopted by the people of this state, shall be and
remain the civil constitution of this state, under the sole authority of the people
thereof, independent of any king or prince whatever."
The statutory law of the time is set out in the statutory codification of 1808
and in public acts adopted thereafter prior to 1818. These laws reflect a different age
and are difficult to analogize to Connecticut’s current criminal code.
Briefly, criminal jurisdiction at the time was split between the state Superior
Court, County Courts or Courts of Common Pleas, City Courts, and Justices of the Peace or
other authorized magistrates. Title 42, section 24 of the 1808 codification sets the
jurisdiction of the Superior Court as follows:
"…which court shall have cognizance of all pleas of a criminal nature,
that relate to life, limb, or banishment, or other high crimes and misdemeanors, and of
divorce, and of adultery…"
Title 42, section 42, creates courts of common pleas or county courts, which
courts have power to hear "all criminal matters, not extending to life, limb,
banishment, adultery, or divorce, regularly brought before them; but said county courts
shall not have jurisdiction in any criminal matter, where the punishment shall extend to
confinement in new-gate, excepting only in the crime of horse-stealing."
Justices of the Peace and City Courts enforced criminal provisions pursuant to
explicit authority derived either from a statute or local charter and may have exercised
other "common law" authority as they deemed appropriate. Title 46, Chapter 1,
section 2 of the 1808 code specifies that the authority of Justices of the Peace and
Assistants is limited to matters where the penalty does not exceed seven dollars. Matters
beyond that authority are to be bound over to "the court proper to try and determine
the same." Title 160, Chapter 1 allows Justices of the Peace to hear accusations of
theft where the value of the property stolen does not exceed ten dollars. The Writ of
Prohibition was used at that time to challenge the authority of lesser courts and
magistrates exercising powers beyond their authority. See Title 133 of the 1808 Statute
Laws.
No criminal code like the code of today was in effect. Criminal prohibitions
consisted of an amalgam of common law, express statutory provision, and local ordinance as
authorized by statute. Title 66, Felonies, of the 1808 code sets out the primary statutory
provisions, prohibiting, for example, burglary, robbery, counterfeiting, forgery, horse
stealing, arson, murder, manslaughter, and rape. Other crimes, however, were set by common
law. Case law of that era reflects the difficulty the courts had in sorting out what law
applied. See for example State v. Danforth, 3 Conn. 112 (1819), in which the
underlying issue was whether the severity of the alleged offense was such that it could be
prosecuted in the Superior Court and in which an abstruse opinion ruminates on the extent
to which prior common law was, in fact, controlling.
Within that framework, the right to jury trial was generally controlled by
common law, as it was understood and accepted in Connecticut. That common law rule, as
reflected both by the historic practice before Justices of the Peace in Connecticut and as
now stated by the United States Supreme Court decision in Duncan, did not require a
jury trial of minor or petty crimes. See generally 21A Am Jur 2d, section 892. As the
Connecticut case law reported above notes, cases before Justices of the Peace reflecting
drunkenness or a minor breach of the peace (at least if the penalty did not exceed the
statutory seven dollars limit) were heard by single magistrates. See Title 46, Chapter 1,
and Title 125, Chapter 1, of the 1808 Statute Law, concerning breaking the peace, which
specifies that "if such offense be aggravated by some notorious and high-handed
violences, the offender or offenders shall be bound over to the next county court, to
answer for such offence." See also Title 160, Chapter I, noted above.
These provisions reflect a practice of summary trial before a Justice for minor
offenses while aggravated offenses were tried before the higher court where jury trials
were customary. While it is difficult to gauge what value today is analogous to the seven
dollar jurisdiction in 1808 for Justices of the Peace, those magistrates did not have
authority to sentence to prison in 1818.
With respect to the power of Justices of the Peace, the following is noted in A
Judicial and Civil History of Connecticut, Hon. Dwight Loomis and J. Gilbert Calhoun,
eds. (1895):
"In criminal matters the jurisdiction of justices of the peace was, in
1702, fixed at a maximum fine of forty shillings, at which sum it remained until 1795,
when the amount was seven dollars; not until 1848, did a single justice of the peace have
power to sentence a criminal to imprisonment, and the length of punishment has never
exceeded thirty days." (at page 156.)
A review of the city and town courts as of 1818 also found that those
authorities were limited to the power to impose a fine up to a specified amount. Typical
town courts could impose a fine of up to nine dollars. The city courts of Hartford, New
Haven, and several other jurisdictions had broader jurisdiction but were limited to
imposing fines of up to thirty-four dollars, or, in Hartford, for specific cases, up to
one hundred dollars. None of those courts were explicitly empowered to punish by
imprisonment.
However, although these inferior authorities were not empowered to incarcerate
as of 1818, that fact does not conclusively indicate what the Constitutional limitations
were, or were perceived to be, at the time. In particular, the issue is muddied because,
as noted by Loomis and Calhoun, in 1848 the legislature expressly empowered Justices of
the Peace to imprison for up to thirty days. Thus, at least as of 1848, legislators
apparently did not feel that the Constitutional provisions applied to Justices of the
Peace or prohibited incarceration by a lesser court or magistrate. Loomis and Calhoun
note:
"Though the Constitution declares that the right of trial by jury shall
remain inviolate, it has been decided by the court of last resort that no such right
exists in justice suits, and is only exercised by permission of special statutes."
(At page 156.)
Moreover, the decision in Goddard v. State, 12 Conn. 448 (1838),
discussed above, expressly held that the right to jury trial applied only to criminal
actions brought "on information" of the State's Attorney.
Furthermore, while as of 1818, Justices of the Peace were not empowered by
statute to imprison, one source, A Digest of the Laws of the State of Connecticut in
Two Volumes, by Zephanian Swift, at page 768, "Forms and Precedents For Justices
of the Peace", contains a suggested form for use by a Justice for purposes of
incarceration. That form notes: "When the crime is attended with aggravated
circumstances, then a Justice of the Peace may sentence the offender to imprisonment in a
common gaol for a term not exceeding one month." The forms also refer to other
practices, such as whipping, placing in the stocks, and other corporal punishment, that
reflect early colonial practices that had been abandoned by 1818. However the form also
reflects a practice predating 1818 in which Justices of the Peace, in fact, punished by
incarceration for up to a month.
In summary, while a right to jury trial constitutionally existed for all
criminal cases brought in a major court, that right to jury trial did not apply before
Justices of the Peace or lesser municipal courts. Finally, while those lesser courts did
not have explicit power to incarcerate as of 1818, the date at which constitutional
protections were ratified, that fact is not conclusive as to whether those lesser courts,
constitutionally, could have been empowered to incarcerate. Both the subsequent enactment
in 1848 of a provision authorizing Justices to imprison for up to thirty days, and the
evidence in Swift that such a practice, in fact, predated the enactment of the
constitutional provisions suggest that incarceration by lesser courts for up to thirty
days might have been constitutionally tolerated. This history creates a practical problem
in determining when the right to jury trial applies with respect to a current crime
because even the constitutional requirements of the law as it existed in 1818 is
uncertain.
Moreover, the criminal codes of the respective times are not comparable. One
might assert, for example, that a person accused of any crime reflecting modern technology
– driving while intoxicated, theft of services, fraudulent use of an automated teller
machine, computer crime, etc. – is not constitutionally entitled to a jury trial
because no such crime existed in 1818. Which crimes a modern court would consider
analogous is highly uncertain. Even the mores of the time are different. Some acts
considered to be significant crimes in that day, for example, violation of the Sabbath,
reflect noncriminal or even constitutionally protected behavior today.
It is instructive that while many other states have based their constitutional
right to jury trial on language similar to that provided in Connecticut – using the
rights that existed when their constitution was adopted as the underlying standard –
those states have reached conflicting conclusions as to whether the right to jury trial
applied in all criminal cases, in cases threatening incarceration, or only in felonies and
serious misdemeanors. See the attached Brief Review
of Right in 49 States to Jury Trial for Minor Crimes.
Conclusion of Analysis
This report reflects considerable discomfort with the current Connecticut
constitutional protections of the right to a jury trial and how those rights have been
construed. Those provisions raise two fundamental concerns.
First, the literal language in Article first, section 8 applying the right to a
jury trial to crimes prosecuted by information is obsolete because its application to
today's merged court system is uncertain. Lower courts have eviscerated its provisions.
Second, reference to Constitutional guarantees enacted in 1818 does not provide a clear
modern ascertainable standard as to which crimes are serious and which are petty. Indeed,
matters that were then criminal are legal today and many modern crimes had yet to be
contemplated in that era.
The fact that current Constitutional provisions are unclear, however, is not
necessarily a prescription for action. As noted by the Judiciary Committee request,
current statutory provisions and practice allow defendants in almost all criminal actions
to assert the right to a jury trial. This status quo is only a problem if the legislature
wishes to limit that right to more serious crimes in accordance with the federal standard.
In that case, the lack of certainty means that any statutory limitation on the right to
jury trial (up to the federal limits) may be judicially challenged and that the outcome of
that challenge is uncertain. As suggested in the executive summary above, the alternatives
for action run the spectrum from enactment of a statute intended to test the existing
Constitutional provisions, to a Constitutional amendment, to passage of a two tiered
system intended to meet Constitutional concerns.
The ultimate policy determination requires a judgment balancing the right to
jury trial - a fundamental protection afforded the citizen against the danger of state
abuse of power - with the practical necessities of administering a court system. There is
no simple formula for making such a determination.
