The Exclusionary Rule

posted by Judge_Burke @ 17:49 PM
March 29, 2017

It is not always easy to apply the exclusionary rule.  The facts can be ambiguous.  The law may be ambiguous. We have excuses not to exclude evidence like “good faith” or “inevitable discovery.”  So, thinking about the exclusionary rule outside the context of a pending case is highly useful. 

Robert Belanger (Nineteenth Judicial Circuit Florida) has posted Judicial Decision Making and the Exclusionary Rule (Texas Review of Law & Politics, Vol. 21, No. 1, 2016) on SSRN.

Here is the abstract:

This article examines the factors that may influence how judges apply the exclusionary rule. When a suppression issue exists, we trust a judge to determine whether a search was unlawful, but we do not trust the judge to fashion an appropriate remedy, other than the per se exclusion of evidence. Judges may be reluctant to find Fourth Amendment violations because the only remedy for a Fourth Amendment violation is a rule of per se exclusion, a remedy that is often disproportionate to the underlying wrong. This lack of proportionality constitutes overdeterrence, so that the rule will be underenforced.



Why Courts Fail to Protect Privacy…Is it a Fair Criticism?

posted by Judge_Burke @ 14:55 PM
March 27, 2017

Bernard ChaoCatherine S. DursoIan P. Farrell and Christopher T. Robertson (University of Denver Sturm College of Law, University of Denver, University of Denver Sturm College of Law and University of Arizona – James E. Rogers College of Law) have posted Why Courts Fail to Protect Privacy: Race, Age, Bias, and Technology (California Law Review (Forthcoming)) on SSRN.

Here is the abstract:

The Fourth Amendment protects against unreasonable “searches and seizures,” but in the digital age of stingray devices and IP tracking, what constitutes a search or seizure? The Supreme Court has held that the threshold question is supposed to depend on and reflect the “reasonable expectations” of ordinary members of the public concerning their own privacy. For example, the police now exploit the “third party” doctrine to access data held by email and cell phone providers, without securing a warrant, on the Supreme Court’s intuition that the public has no expectation of privacy in that information. Is that assumption correct? If judges’ intuitions about privacy do not reflect actual public expectations, it may undermine the legitimacy of the criminal justice system and exacerbate social unrest.

Although prior research has shown that the police disproportionately target younger people and minority communities, judges tend to be male, white, educated, affluent, and older than the general population. Their intuitions may thus be systematically different. Even worse, cognitive science suggests that judges may have difficulty putting themselves into the shoes of the searched person or considering the reasonableness of the police tactics from an ex ante perspective, without knowledge about the fruits of the search.

With 1200 respondents, we conducted a large-scale survey experiment to test whether, and if so, why, contemporary Fourth Amendment jurisprudence diverges from the societal norms it purports to protect and reflect. We identify a range of privacy expectations for 18 different police practices. We use oversampling, reweighting, and randomization to investigate particular causes of this disparity between judicial and public expectations. We conclude by suggesting better ways forward, so that social science evidence can replace judicial speculation.


An Interesting Article About Bail Reform

posted by Judge_Burke @ 14:30 PM
March 24, 2017

From The PEW Charitable Trusts:

In the midst of a contentious divorce, Lavette Mayes got into a heated argument with her soon-to-be ex-mother-in-law. A couple of weeks later, Chicago Police arrested her for aggravated battery.

Up until that point, her only interaction with the legal system had been reporting for jury duty. Her new business operating a school van service was thriving. She was renting a nice house, a place she and her two children could call home. Then, in 2015, a judge slapped her with a $250,000 bail — an amount that Mayes could not afford.

After she had spent 14 months in the Cook County Jail, the Chicago Community Bond Fund, a volunteer organization, helped Mayes make bail after a judge reduced the amount. By that point, though, her business had collapsed, she’d lost her home, and her kids were traumatized. “I lost everything,” Mayes, 46, said.

Increasingly, state policymakers are looking at defendants like Mayes and reexamining the purpose of bail. Six in 10 adults in U.S. jails have not been convicted of a crime. They are locked up awaiting trial, mostly because they’re too poor to post bail. They are legally presumed innocent, but many spend months and even years awaiting trial. Often, they feel pressure to take a plea deal rather than spend more time in jail.

And policymakers are proposing changes. In Illinois, lawmakers last month introduced proposals that could eliminate bail for first-time, nonviolent offenders or abolish cash bail. In Maryland, the Supreme Court last month chose to change the state’s cash bail system significantly. In January, New Jersey began a new system of pretrial detention, in which judges can only set bail as a last resort. Lawmakers in California, Connecticut, Maryland and New York also have legislation pending that would remake their states’ cash bail systems.

A federal appeals court heard arguments in a class-action suit that challenges the constitutionality of the bail system. It involves an indigent Georgia man who was arrested for walking on the road while drunk; his bail was set at $160.

Behind many of the proposals is a growing recognition that cash bail is inequitable and isn’t effective in assuring the people who are accused actually go to court to answer the charges, said Eric Sterling, executive director of the Criminal Justice Policy Foundation, a nonprofit that advocates for changes in the criminal justice system.

“A system where you are presumptively jailed unless you can buy your freedom is a form of pretrial punishment,” Sterling said.

Bail is set to serve two purposes: to guarantee that defendants show up in court and to protect public safety by detaining those deemed potentially dangerous.

Critics say the system penalizes the poor and contributes to mass incarceration because it jails presumably innocent people simply because they can’t afford to post bail and reinforces a cycle of poverty. It also increases recidivism rates, critics say, because “low risk” defendants who have served time in jail are more likely to commit crimes upon release. A 2016 Columbia University report found that defendants who’ve been charged bail have a 12 percent higher chance of being convicted and are 6 to 9 percent more likely to be charged with another crime. 

But proponents of cash bail say the money or property involved in posting bail, often put up by family members, serves as a deterrent to skipping out of court appearances or fleeing the state or country. Without money on the line, they argue, there’s little incentive to stay and go to court.

“We’d love to know how you bring all these people back in when they don’t appear in court on these no cash bonds,” said Beth Chapman, president of the Professional Bail Agents of the United States, a trade association. 


Read the full article here.


Thinking About Jury Selection

posted by Judge_Burke @ 14:30 PM
March 23, 2017

Liz McCurry Johnson (Wake Forest University – School of Law) has posted The Practical Obscurity of the Green Screen Terminal: A Case Study on Accessing Jury Selection Data on SSRN.

Here is the abstract:

Who should care more about who jury members are – the criminal defendant facing one or the public who is the watchful eyes over the government prosecutions? The answer is both, and equally. This Article is part of a series of papers that fill a substantial gap in the literature of jury selection by providing a positive, personal account with field data on how litigates pick a jury – the building of a robust and immense data set of jury selections for felony charges disposed of by jury verdict. One reason that litigates and scholars have not previously marshaled a clear understanding of jury selection realities is that the data has been surprisingly amorphous. A series of obstacles – legal, technological, organizational – meet at a crosshair to block researchers and obscure careful analysis. This Article describes the surprising challenges that scholars face from courthouse failings in office policies to the ongoing use of out-of-date technology and litigation that flies in the face of open access. It further explains novel research techniques innovated to meet those challenges and reflects on why it might be that our government generally lets this particular public record information go dormant.

While most hold the decisions made within the courtroom in the highest regard, very little is actually known of the jury selection process. Theories and best practices engulf the academy and practicing bar, but only those entrenched in the courthouse can answer who is actually seated and who is excluded. The robust literature and academic discussions on the normative aspect of jury selection neglect these key empirical issues that government public records should be able to answer. An answer, the data, is key to the public trust of the government bodies, such as the judicial system, to open for inspection the decisions that are easily disposed of. This Article blazes the trail of data collection in jury selection. 


Can We Reform Plea Bargaining?

posted by Judge_Burke @ 16:07 PM
March 22, 2017

Jenia Iontcheva Turner (Southern Methodist University – Dedman School of Law) has posted Plea Bargaining (in Academy For Justice, A Report On Scholarship And Criminal Justice Reform (Erik Luna ed., 2017), Forthcoming) on SSRN.

Here is the abstract:

This report on plea bargaining was written for the “Academy for Justice,” a collaborative research project whose goal is “to inspire and guide reform in the federal and state systems, and to fortify these efforts with the research and analysis of top academic experts.”

Plea bargaining dominates the criminal process in the United States today, yet it remains highly controversial. Supporters defend it on the grounds that it expedites cases, reduces processing costs, and helps authorities obtain cooperation from defendants. But critics contend that it can generate arbitrary sentencing disparities, obscure the true facts, and even lead innocent defendants to plead guilty. Lack of transparency and limited judicial involvement frustrate attempts to correct flaws in the process. As policymakers and legislators prepare to tackle reform of sentencing laws and prosecutorial discretion, they should also consider reforms to plea bargaining that would make the practice fairer, more transparent, and more honest.


Save Legal Assistance for the Poor

posted by Judge_Burke @ 17:54 PM
March 21, 2017

The American Bar Association has begun mobilizing in defense of the Legal Services Corp., which would be eliminated in President Donald Trump’s recently released budget:

In addition to ABA President Linda A. Klein’s statement on Thursday emphasizing the importance of the LSC’s mission, the ABA has launched a new social media campaign in defense of the nonprofit established by Congress in 1974 to provide financial support for civil legal aid to low-income Americans.

And at the ABA Techshow 2017 on Friday, an effort to get legal services vendors to support preserving the LSC won loud applause from an overflow crowd in a Chicago Hilton ballroom.

A Friday Facebook post by the ABA Center for Professional Responsibility calls upon LSC supporters to register as “Legal Aid Defenders” on a new website,

As Klein told the ABA Journal: “Establishing justice is a founding principle of our nation and should not be denied because a person can’t afford basic representation in civil matters such as housing, domestic violence and veterans’ needs. Support for the Legal Services Corp. is bipartisan because guaranteeing representation to all is not a political issue, but an issue of fairness. It benefits every congressional district and returns far more on every dollar spent than it costs.

“The American Bar Association is urging everyone to take a minute to participate in our grassroots campaign at, which makes it easy for all who care about equality in the legal system to ask their members of Congress to provide funding for LSC,” Klein said.


Thinking About Where We Are On Custodial Interrogations

posted by Judge_Burke @ 14:30 PM
March 20, 2017

Susan R. Klein (University of Texas School of Law) has posted Transparency and Truth during Custodial Interrogations and Beyond (Boston University Law Review, Forthcoming) on SSRN.

Here is the abstract:

My goal in this symposium is not to disrespect the Warren Court Revolution. The Court’s constitutionalization of the rules of criminal procedure during the 1960s were quite clearly necessary at the time they were imposed, in large measure to end the miserably unjust treatment of African Americans living in the South, and in part to foster the values of privacy, autonomy, fairness, and protection of the innocent enshrined in the Bill of Rights but ignored by many state criminal justice actors. The three most famous and important decisions by the Warren Court were vital to the health of the criminal justice system when they were rendered. The exclusionary remedy incorporated in Mapp v. Ohio was critical in persuading peace officers to learn about and then protect Fourth Amendment values; the Miranda v. Arizona warnings seemed the only way to limit abusive police behavior at the stationhouse while still encouraging uncompelled confessions, and the right to counsel offered in Gideon v. Wainwright was essential to separating guilty from innocent defendants. Unfortunately, and perhaps somewhat ironically, doctrine concerning the Fourth and Fifth Amendments have been contorted in their definitions and subject to a constant stream of exceptions by the Burger, Rehnquist, and Roberts Courts. They have come to contribute to and in fact embody the now unnecessarily adversarial and deceptive nature of many citizen-peace officer encounters.

The upshot of our last fifty years of constitutional criminal procedure rules combined with certain historical events I describe below is that some citizens and law enforcement may view each other as the enemy. This is not useful to law enforcement’s primary purpose of protecting us from harm and separating the innocent from the guilty. What are we to do with such a messy and quite frankly depressing state of affairs? At this juncture, it might be preferable to shape rules that are less adversarial and more inquisitorial. It certainly would be an improvement to announce transparent rules. Rather than having decision rules for cases and conduct rules for officers, we need one set of clear and well publicized rules that everyone knows and follows. And that set of rules need not be the same in every jurisdiction, so long as what officers tell citizens is the truth.

Confining my remaining comments to the fifth amendment context, in Part II, I argue that the Miranda warnings, regardless of their intent and effect at the time, have become perverse and ought to be retired for five reasons. (1) They are false and deceptive. (2) They assist primarily guilty recividists and the wealthy, all other suspects waive their rights. (3) They fail to achieve either of their stated goals of “adequately and effectively” apprising suspects of their rights and regulating police conduct. Instead, suspects are confused and deceived, and the fact that the Miranda warnings were read essentially guarantees that any subsequent statements are admissible, regardless of whether they are “voluntary” within the meaning of the due process “totality of circumstances” test. (4) They fail to identify and exclude false confessions. The innocence movement has demonstrated that the majority of false confessions are from juveniles and those with mental disabilities, and the Miranda warnings are ineffective on these groups. (5) They are incompatible with historical practice and our current shared moral values. In Part III, I recommend that jurisdictions begin replacing Miranda warnings with more effective and transparent alternatives, a move I believe is permissible under current Supreme Court doctrine. I propose that mid-sized to large police departments add a new “magistrate” position, appointed through the judicial branch, to their police station staff, and supplement or replace custodial interrogation by the police with more civilized recorded questioning of felony suspects by these magistrates. Arrestees would be informed that they have no right to avoid custodial interrogation of some kind, and offered accurate descriptions of their actual options. I further suggest that the practice of producing false evidence to encourage suspects to confess be strictly prohibited, and the use of deceit during custodial interrogation be discussed and limited NY public officials and reduced to writing. Transparency in the interrogation process would be a civilizing influence and would lead to more accurate information. Allowing local legislatures to create the rules regulating interrogations would shift blame for any deceit permitted away from police officers, fostering improved relationship between law enforcement personnel and the citizens they serve.

Finally, in Part IV, I begin to imagine a world in which police official used deception only when absolutely necessary, and only with the advance agreement of local public officials. Not only would any warnings given be accurate ones, but perhaps some of the most egregious deceptive practices during interrogation would be limited. This might bleed over into undercover sting operations, as many courts are already finding ways to expand the entrapment defense. The use of predictive and community policing and other evidence-based law enforcement tools might be possible if the relationship between officers and citizens improves, especially in minority communities. Numerous practices that might be effective in ferreting out the guilty and preventing crime in the first place rely on cooperation with the community. Such cooperation is almost impossible without some transparency and trust as foundations of the relationship. Amending Miranda would be a start.


Fines & Fees Before The United States Supreme Court

posted by Judge_Burke @ 14:30 PM
March 17, 2017

The U.S. Supreme Court recently heard oral arguments in Nelson v. Colorado, a case asking if courts are required to refund the fees paid by those convicted of crimes and then exonerated. From the Associated Press:  “The case involves two people whose convictions for sexual offenses were later thrown out. One had paid about $700 toward the court fees and victim restitution while the other paid more than $4,400 in similar costs.”

The defendants are challenging a Colorado Supreme Court decision that “the defendants could not get a refund unless they proved their innocence by clear and convincing evidence in a separate proceeding.”  The Associated Press story goes on to say,”[m]ost justices hearing arguments in the case on Monday seemed concerned that refusing to refund the money violates due process rights.” Justice Elena Kagan said “it seems ‘the most natural, obvious thing in the world to say that the state’s right to that money evaporates’ when a conviction is overturned.”

Chief Justice John Roberts also said that “while the state can’t give the defendants back the time they spent in jail, ‘you can give them the money back.’”

Adam Liptak wrote for The New York Times:

Chief Justice John G. Roberts Jr. asked if the state could impose a $10,000 fine on everyone convicted of a crime and refuse to return the money if the convictions were later overturned.

Mr. Yarger said yes. Just as there is no need to pay people for the time they spend in prison after their convictions are reversed, he said, there is no need to reimburse them for fines and fees. “The assumption is that the deprivation of both the liberty and the property at the time of conviction is lawful, and that the property passes into public funds,” he said.

Incarceration is different from money, Chief Justice Roberts said. “You can’t give them back whatever time they’ve spent in jail … you just can’t do it, but you can give them the money back.” After the arguments before the Supreme Court, changes may occur regardless of the outcome of the decision.

And, David Migoya had this front page article in The Denver Post: ”Colorado official proposes refunds for exonerated defendants after harsh questions by Supreme Court; U.S. Supreme Court hears appeal on state’s rule requiring lawsuits to get money back.” 


Shots Fired!!! Break Down The Door?

posted by Judge_Burke @ 14:30 PM
March 16, 2017

For police, “shots fired” gets attention. For judges, the reaction of the police to shots fired is usually pretty empathetic.; there is no comparison between weaving within the lane to justify a stop and shots fired. But, the law does require judges to evaluate situations…even shots fired…by the totality of circumstances.

From the Fourth 

D.Conn.: Shots fired call is not per se exigency; totality standard must apply

Posted on February 23, 2017 by Hall

A shots fired call is not carte blanche exigency–the totality of circumstances must still be examined. Here, the court finds no exigency for the warrantless entry or protective sweep and that the exclusionary rule should be applied. The costs aren’t substantial compared to the deterrent effect. United States v. Calhoun, 2017 U.S. Dist. LEXIS 21708 (D.Conn. Feb. 16, 2017):

In the same vein, the reports of shots fired in the general area did not indicate an ongoing threat of violence at 49 Ridgewood Place. Contrary to the government’s suggestion, the Fourth Amendment does not create a per se exception to the warrant requirement any time there is a report of shots fired nearby, even if the police believe they have located the person responsible for firing those shots; in every case, the totality of the circumstances must be examined. Cf. Williams v. Cty. of Alameda, 26 F. Supp. 3d 925, 938-39 (N.D. Cal. 2014) (holding that although reports of domestic violence should be taken seriously, they do not per se constitute exigency); Harris v. O’Hare, 770 F.3d 224, 236 (2d Cir. 2014) (The “mere suspicion or probable cause for belief of the presence of a firearm does not, on its own, create urgency.”) (emphasis in original). In cases holding that a report of shots fired provided sufficient exigency to justify a warrantless entry, the officers had an objectively reasonable belief that victims would be found at that location because that was where the shots had been fired. See United States v. Ashburn, 2014 U.S. Dist. LEXIS 62656, 2014 WL 1800409, at *5 (E.D.N.Y. May 6, 2014) (collecting cases where emergency aid doctrine justified entry to search for shooting victims where there was evidence that shots had been fired, such as the presence of bullet holes and casings at that location); United States v. Gambino-Zavala, 539 F.3d 1221, 1225 (10th Cir. 2008) (collecting cases holding same, where there were bullet holes, casings, or reports of shots fired at that location). In the present case, by contrast, the evidence available to the officers on location at the time of the breach did not provide any indication that shots had been fired at the residence. Instead, all of the available evidence suggested that Calhoun fired shots at a different location and then fled to his residence. The shots fired were reported before Calhoun drove away from the CVS, see (Gov’t Ex. 2); there were no bullet holes visible on the residence or in the car; and after roughly fifteen minutes of searching, the officers had not found any casings in the area around the residence.

. . .

The emergency aid doctrine does not require “ironclad proof of a ‘likely serious, life-threatening’ injury,” Fisher, 558 U.S. at 49 (quoting Brigham City, 547 U.S. at 406), nor is a failure to immediately call for medics fatal to an emergency aid claim, see id.; nevertheless, the officers’ objectively reasonable belief must be based on something more than speculation and the government has not shown that to be the case here. See Simmons, 661 F.3d at 158; see also Williams v. Cty. of Alameda, 26 F. Supp. 3d 925, 938 (N.D. Cal. 2014) (“Defendants must point to ‘specific and articulable’ facts which, taken together with rational inferences, support the warrantless intrusion.”) (quoting United States v. Howard, 828 F.2d 552, 555 (9th Cir. 1987)).

In sum, I find that the officers’ warrantless entry into 49 Ridgewood was not justified by the emergency aid doctrine. The government has not pointed to any other reason why a warrantless entry would be permitted in this case, nor did it provide evidence that it would have been impracticable to wait for Calhoun and arrest him upon his exit from the residence or to obtain a warrant for his arrest. For the sake of completeness, however, I will also discuss the scope of the officers’ search within the residence before considering the implications of this finding for Calhoun’s suppression motion.

. . .

The government’s evidence thus indicates that the officers’ search of the residence lasted considerably “long[er] than [was] necessary to dispel the reasonable suspicion of danger,” Buie, 494 U.S. at 335-36, and in fact amounted to wanton disregard for the limitations of a permissible protective sweep.

. . . 

I can only speculate about the likelihood that any of those scenarios would have occurred, and, as the Second Circuit observed in United States v. Stokes, 733 F.3d 438 (2d Cir. 2013), “that is precisely the problem: a finding of ‘inevitable’ discovery cannot rest on speculation about what [Calhoun] might or might not have done.” Id. at 446. Because there was nothing inevitable about what would have been discovered absent the unlawful entry, the inevitable discovery doctrine does not apply here.

. . .

At the hearing, the government suggested that another cost of imposing the exclusionary rule in this case is that it could have the effect of causing officers to hesitate before providing aid out of concern that the emergency aid doctrine would not apply. But the emergency aid doctrine, unlike other theories of exigency, contemplates a calculation that does not take into account the possible criminal conduct of the person believed to be in need—it is aimed at the provision of medical care and harm prevention, rather than the identification of suspects and evidence. Thus, exclusion of evidence from a criminal trial should have no effect on the willingness of officers to render emergency aid.

In sum, I conclude that the deterrent effect of imposing the exclusionary rule easily outweighs its costs in this case. Accordingly, any verbal and physical evidence obtained during the warrantless search of Calhoun’s residence is suppressed.


In Duncan v. State of Louisiana, the United States discussed at length the Right to a Jury Trial in criminal cases. The Supreme Court said:

The Fourteenth Amendment denies the States the power to ‘deprive any person of life, liberty, or property, without due process of law.’ In resolving conflicting claims concerning the meaning of this spacious language, the Court has looked increasingly to the Bill of Rights for guidance; many of the rights guaranteed by the first eight Amendments to the Constitution have been held to be protected against state action by the Due Process Clause of the Fourteenth Amendment. That clause now protects the right to compensation for property taken by the State the rights of speech, press, and religion covered by the First Amendment; the Fourth Amendment rights to be free from unreasonable searches and seizures and to have excluded from criminal trials any evidence illegally seized; the right guaranteed by the Fifth Amendment to be free of compelled self-incrimination; and the Sixth Amendment rights to counsel, to a speedy and public trial, to confrontation of opposing witnesses, and to compulsory process for obtaining witnesses.

 The test for determining whether a right extended by the Fifth and Sixth Amendments with respect to federal criminal proceedings is also protected against state action by the Fourteenth Amendment has been phrased in a variety of ways in the opinions of this Court. The question has been asked whether a right is among those “fundamental principles of liberty and justice which lie at the base of all our civil and political institutions,”; whether it is ‘basic in our system of jurisprudence,’; and whether it is ‘a fundamental right, essential to a fair trial,’ (internal citations omitted). The claim before us is that the right to trial by jury guaranteed by the Sixth Amendment meets these tests. The position of Louisiana, on the other hand, is that the Constitution imposes upon the States no duty to give a jury trial in any criminal case, regardless of the seriousness of the crime or the size of the punishment which may be imposed. 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. Since we consider the appeal before us to be such a case, we hold that the Constitution was violated when appellant’s demand for jury trial was refused.

The history of trial by jury in criminal cases has been frequently told. It is sufficient for present purposes to say that by the time our Constitution was written, jury trial in criminal cases had been in existence in England for several centuries and carried impressive credentials traced by many to Magna Carta. Its preservation and proper operation as a protection against arbitrary rule were among the major objectives of the revolutionary settlement which was expressed in the Declaration and Bill of Rights of 1689. In the 18th century Blackstone could write:

‘Our law has therefore wisely placed this strong and two-fold barrier, of a presentment and a trial by jury, between the liberties of the people and the prerogative of the crown. It was necessary, for preserving the admirable balance of our constitution, to vest the executive power of the laws in the prince: and yet this power might be dangerous and destructive to that very constitution, if exerted without check or control, by justices of oyer and terminer occasionally named by the crown; who might then, as in France or Turkey, imprison, dispatch, or exile any man that was obnoxious to the government, by an instant declaration that such is their will and pleasure. But the founders of the English law have, with excellent forecast, contrived that * * * the truth of every accusation, whether preferred in the shape of indictment, information, or appeal, should afterwards be confirmed by the unanimous   suffrage of twelve of his equals and neighbours, indifferently chosen and superior to all suspicion.’

Jury trial came to America with English colonists, and received strong support from them. Royal interference with the jury trial was deeply resented. Among the resolutions adopted by the First Congress of the American Colonies (the Stamp Act Congress) on October 19, 1765—resolutions deemed by their authors to state ‘the most essential rights and liberties of the colonists’—was the declaration:

‘That trial by jury is the inherent and invaluable right of every British subject in these colonies.’

The First Continental Congress, in the resolve of October 14, 1774, objected to trials before judges dependent upon the Crown alone for their salaries and to trials in England for alleged crimes committed in the colonies; the Congress therefore declared:

‘That 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.’

The Declaration of Independence stated solemn objections to the King’s making ‘judges dependent on his will alone, for the tenure of their offices, and the amount and payment of their salaries,’ to his ‘depriving us in many cases, of the benefits of Trial by Jury,’ and to his ‘transporting us beyond Seas to be tried for pretended offenses.’ The Constitution itself, in Art. III, s 2, commanded:

‘The Trial of all Crimes, except in Cases of Impeachment, shall be by Jury; and such Trial shall be held in the State where the said Crimes shall have been committed.’ 


In a Canadian case, R. v. Peers, [2015] A.J. No. 1413 (C.A.):

[T]he accused was charged with an offence, contrary to section 194 of the Securities Act, R.S.A. 2000. The maximum penalty for a conviction under this provision was a period of imprisonment of five years less a day, a fine of up to $5 million, or both.

Section 11(f) of the Charter states as follows:

Any person charged with an offence has the right

(f) except in the case of an offence under military law tried before a military tribunal, to the benefit of trial by jury where the maximum punishment for the offence is imprisonment for five years or a more severe penalty. 

The accused argued that the potential punishment of five years less a day imprisonment, plus a $5 million fine, amounted to a “more severe punishment” which generated the right to a jury trial.

The Alberta Court of Appeal held that the phrase “imprisonment for five years or a more severe punishment” found in section 11(f) of the Charter, primarily engaged the deprivation of liberty inherent in the maximum sentence of imprisonment imposed by the statute. A maximum penalty of “five years less a day” did not become a more severe penalty just because some collateral negative consequences were added to it.

On appeal to the Supreme Court of Canada, the Court (2017 SCC 13) in a brief oral judgment stated:

The appeal is dismissed. We conclude that the appellant was not entitled to a trial by jury, substantially for the reasons of the majority of the Court of Appeal, 2015 ABCA 407, 609 A.R. 352.