Advisory Opinion to Senate

Decision Date25 June 1971
Docket NumberNo. 1487-M,1487-M
Parties, 47 A.L.R.3d 878 ADVISORY OPINION TO the SENATE of the State of Rhode Island and Providence Plantations. P.
CourtRhode Island Supreme Court
To the Honorable, the Senate of the State of Rhode Island and Providence Plantations

In accordance with the provisions of section 2 of article XII of amendments to the constitution of this state the undersigned Justices of the Supreme Court respectfully submit their answer to the question embodied in a resolution adopted by the Senate on February 10, 1971, and thereafter transmitted to us. While the resolution states that our reply should be transmitted to Your Honors on the first day of the General Assembly's 1972 session, we regard that date as being the final day on which we can file our reply. We have completed our analysis and study of the issue presented to us. It involves a matter of substantial public interest. Since you are still in session, we have taken the liberty of forwarding you our response at this time so that you will have the opportunity, before terminating your current legislative efforts, to take such action as you think necessary after your consideration of the opinions expressed herein.

The resolution recites the pendency before the Senate of an act enumerated as Senate #187, a copy of which accompanied the resolution. An examination of the pending legislation shows it proposes a reduction in the size of the petit jury from its present membership of twelve to six. The question of law asked of us is:

'Are the provisions of Senate #187, introduced in the 1971 general assembly session being an act in amendment of Section 9-10-12 in chapter 9-10 of the General Laws entitled 'An act reducing the size of juries to '6' a violation of any provisions of the constitution of the United States or the Constitution of the State of Rhode Island?"

Initially, we would point out that our reply to your inquiry is not to be construed as any departure from the well-established rule that, in posing a question such as the one presently before us, the body seeking our opinion should direct our attention to the specific provision of the constitution or statute which might be violated by the enactment of pending legislation. See, Opinion to the House of Representatives, 99 R. I. 377, 208 A.2d 126. It is obvious to us that Senate #187 was prompted by the recent case of Williams v. Florida, 399 U.S. 78, 90 S.Ct. 1893, 26 L.Ed.2d 446, where the United States Supreme Court ruled that a Florida statute which allowed the use of a six-man jury in a criminal case did not violate the Federal Constitution's sixth-amendment guarantee of right to a jury trial. It is quite apparent to us that the constitutional provisions referred to in your inquiry are the sixth and seventh amendments to the United States Constitution and sections 10 and 15 of article I of the Rhode Island constitution. While we see no federal constitutional objection to the use of a six-man jury in trials held before the courts of this state, we do believe that the pending legislation conflicts with the Rhode Island constitution.

There is no need to dwell at any length on the federal constitutional aspects of your inquiry. The sixth amendment states that 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 was committed. In 1968, the United States Supreme Court ruled that the fourteenth amendment incorporates the sixth-amendment right to a jury trial and makes it applicable to the states. Duncan v. Louisiana, 391 U.S. 145, 88 S.Ct. 1444, 20 L.Ed. 2d 491. Later in Williams, the Supreme Court ruled that not every common-law jury feature was made a part of the constitution. It alluded to the fact that the original version of the sixth amendment, 1 as introduced in the House of Representatives by James Madison, called for a jury having many of the features of a common-law jury. The proposed amendment was referred to a conference committee composed of members of the House and Senate. When it was reported out of committee, several of the aforementioned common-law features had been deleted. The Court remarked that if the First Congress really wished to incorporate the twelve- man feature of a common-law jury into the sixth amendment, it would have used the precise language it employed in the Judiciary Bill when it expressly spoke of the 'vicinage.' The Judiciary Bill was signed by the President on the same day that Congress agreed to the final form of the sixth amendment. It also emphasized that when the seventh amendment was drawn up, explicit reference was made to 'the rules of the common law.' 399 U.S. at 97, 90 S.Ct. at 1904, 26 L.Ed.2d at 458.

The Court in Williams acknowledged that in Thompson v. Utah, 170 U.S. 343, 18 S.Ct. 620, 42 L.Ed. 1061 (1898), it was decided that the jury referred to in the sixth amendment was a jury 'constituted, as it was at common law, of twelve persons, neither more nor less.' However, Mr. Justice White, in speaking for the majority in Williams, observed that the Thompson pronouncement was based in part on its reliance on the Magna Carta. He then went on to point out that there had been a faulty translation of the Latin used in that document which, in the opinion of many legal scholars, does not justify any reference to the Great Charter as authority for fixing the number of a jury at twelve. The Court also faulted the reasoning in Thompson for its lack of discussion as to why every feature of a common-law jury was included in the Federal Constitution wherever it spoke of a 'jury.'

The seventh amendment provides for a jury trial in any civil actions that were triable before a jury at the time the amendment was adopted. United States v. Lousiana, 339 U.S. 699, 70 S.Ct. 914, 94 L.Ed. 1216; National Labor Relations Board v. Jones & Laughlin Steel Corp., 301 U.S. 1, 57 S.Ct. 615, 81 L.Ed. 893. This amendment has not been made applicable to trials in state courts. Pearson v. Yewdall, 95 U.S. 294, 24 L.Ed. 436; Harada v. Burns, 50 Hawaii 528, 445 P.2d 376; State v. Beer, 252 La. 756, 214 So.2d 133; see, also, In Re the Condemnation of Certain Land for New State House, 19 R. I. 326, 33 A. 448. Accordingly, the seventh amendment 2 does not bar the use of a jury of six in the Rhode Island judicial system.

Although we are bound by the Court's interpretation of the meaning and extent of the jury-trial provision of the sixth amendment, we are free to interpret the jury-trial provisions found in the Rhode Island constitution. We are of the opinion that the petit jury referred to in our state's constitution means a panel of twelve, not because of the Magna Carta or what transpired when Congress deliberated in 1789, but because our constitution was made by Rhode Islanders for a Rhode Island government and the word 'jury' must be accorded the significance that it had in 1842, particularly in the light of the provisions of the Rhode Island constitution relating to a trial by jury.

The pertinent provisions of our state's constitution are contained in article I, sections 10 and 15. They provide:

'Sec. 10. In all criminal prosecutions, the accused shall enjoy the right to a speedy and public trial, by an impartial jury * * *.'

'Sec. 15. The right of trial by jury shall remain inviolate.'

In speaking of the jury trial described in our constitution our court has said that trial by jury is a 'well known kind of trial.' Mathews v. Tripp, 12 R.I. 256 (1879). The inviolability provision of section 15 has been held to be a guarantee that a petit jury will continue to be constituted substantially as a jury was constituted when the constitution was adopted and that cases then triable by jury will continue to be so triable without any restrictions or conditions which could materially hamper or burden the right. It demands that the right to a trial by jury be conserved. Briggs Drive, Inc. v. Moorehead, 103 R.I. 555, 239 A.2d 186; Gunn v. Union R. R., 23 R.I. 289, 49 A. 999; Crandall v. James, 6 R.I. 144 (1859).

While the General Assembly may impose reasonable conditions on the exercise of the right to a trial by jury, the inviolate clause of our constitution prohibits any legislative attempt to abolish or alter this right. Dyer v. Keefe, 97 R.I. 418, 198 A. 2d 159. The Legislature may not deprive a litigant of any of the essential features of a jury trial that were available to a litigant at the time the Rhode Island constitution was adopted in 1842. Although our constitution does not expressly set forth the number of individuals that will constitute a petit jury, we can find the answer to this issue by tracing the history of jury trials in this state. We begin with the departure of Roger Williams from Massachusetts.

The first settlers coming to the area now known as Rhode Island arrived with Roger Williams in 1636 and established the community known as Providence. Later, three other towns were founded, Portsmouth in 1638, Newport in 1639 and Warwick in 1642. Durfee, Judicial History of Rhode Island at 1 (1883). Portsmouth set up a form of municipal government in 1639. Its basis was the law of England. There was a quarterly court of trials consisting of one judge and eight assistants. The Portsmouth ordinance provided for trials by a jury of twelve. 'Small cases' were tried and decided by an assistant without a jury. 1 Field, History of Rhode Island, at 48 (1902).

In the fall of 1643, Roger Williams traveled to England seeking a charter. He arrived after the flight of Charles I. He was successful in obtaining a patent from the parliamentary government then in control. He returned to America in 1644 with a document known as the Parliamentary Patent or the Warwick Charter for Providence Plantations. This instrument authorized the union of the four settlements into one government. 1 Carroll, Rhode Island, Three Centuries of Democracy, at...

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