Vernon A. Russell, Esq. -

The Sixth Amendment Right to a Jury Trial: What’s the big deal?

June 10, 2025 No Comments

Updated: Oct 31, 2019 “Juries are composed of people who are not smart enough to get out of jury duty.” We’ve all heard that. But why do we think that way? What were our forefathers trying to protect with the right to a trial by jury? The Sixth Amendment to the United States Constitution “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, which district shall have been previously ascertained by law; and to be informed of the nature and cause of the accusation; to be confronted with the witnesses against him; to have compulsory process for obtaining witnesses in his favor; and to have the assistance of counsel for his defense.” History of the Jury Trial Jury trials were guaranteed by the Magna Carta in 1215. After years of various monarchs disregarding this right, the British Bill of Rights guaranteed it in 1689. However, King George consistently denied this right to American colonists, who he would order shipped back to England to stand trial before judges who applied the law as he told them to apply it. In fact, this is one of the main reasons for the American Revolution. In the Declaration of Independence, Thomas Jefferson called out King George, listing several human rights violations he was committing against the American colonists, including “depriving us in many cases of the benefits of trial by jury” and “transporting us beyond seas to be tried for pretended offenses…” Although they disagreed on many things, all of our forefathers agreed on the importance of the right to trial by jury in criminal cases: Alexander Hamilton: “The friends and adversaries of the plan of the Convention, if they agree in nothing else, concur at least in the value they set upon trial by jury; or if there is any difference between them it consists in this: the former regard it as a valuable safeguard to liberty; the latter represent it as the very palladium of free government.” James Madison: “Trial by jury is essential to secure the liberty of the people as any one of the pre-existent rights of nature.” Patrick Henry: “Trial by jury is the best appendage of freedom. I hope that we shall never be induced to part with that excellent mode of trial.” Richard Henry Lee: “The right to trial by jury is a fundamental right of free and enlightened people and an essential part of a free government.” Thomas Jefferson: “I consider trial by jury as the only anchor ever yet imagined by man, by which a government can be held to the principles of its constitution.” My Thoughts Fast forward to today. Why are criminal defense lawyers afraid of trying their cases to jurors? Why do American citizens consider jury service unworthy of their time and attention? Actually, the answer is quite simple. Like most humans do from time to time, we have forgotten where we came from and we have lost an understanding of where we could be if we keep forgetting. The ability of the people – not the government, but the people – to hold the government to its burden in criminal cases and to have the ability to acquit an accused person freely, with no retribution at all, is special and sacred and worthy of respect and protection. In some countries, the government is accuser, judge, and executioner all in one. Yes, trials may be more efficient in those countries. But they are also less just. And the citizens in those countries are much less free. I am a lawyer. I know I will probably never have the privilege of sitting on a jury. But I hope I can persuade someone, anyone, that jury service is just that – a privilege. It is, in my opinion, one of the highest honors as an American – to hold the government accountable to its burden of proof beyond a reasonable doubt, to be fair and impartial in listening to the evidence and deciding a verdict, and to follow the law, applying it not just to the accused, but also, no, especially, to the government. In a free society, the law must apply to everyone the same, and the Constitution is the most supreme of all those laws – the rights of the people to have freedom of speech, freedom of thought, freedom from self-incrimination, freedom from unreasonable searches and seizures, freedom from excessive bail, freedom from cruel and unusual punishments, and freedom to have their cases decided by their peers – must be recognized and preserved if we are to remain free. This is our republic, as Benjamin Franklin said, if we can keep it. Not if the government can keep it. But if we – we, the people – can keep it. In my humblest opinion, trial by jury is the best way to do that.

Possession is 9/10 of the Law” a Common Jailhouse Misconception

May 26, 2024 No Comments

I have often sat across the glass from a client and had a discussion with him or her about a case, only to hear that dreaded phrase, “They didn’t find nothing on me … and possession is nine-tenths of the law.” This is wrong on so many levels, but it is still believed by so many people accused of possessory crimes. So what is possession? And what isn’t it? And where does this saying come from anyway? First, most agree that this saying has its origins in an old Scottish proverb, “possession is eleven points in the law, and they say they are but twelve.” In the United States, courts have referred to the “nine-tenths standard” in property disputes to essentially hold that, if a person possesses property, there is a presumption that the person owns it. In a criminal law context, however, “possession” is a little more complex. What is possession? In North Carolina, there are two types of possession: actual and constructive. “Actual” possession is what most people think of when they hear the word “possess.” If a person has cocaine in his or her hand, knows it is cocaine, and intends to use it, he or she is in actual possession of cocaine. Simple enough. But that is just one type of actual possession. A person is also in actual possession of cocaine if he or she is a passenger in a car, and the driver hands him or her a bag of cocaine to throw out the window during a traffic stop. Even though the cocaine may belong to the driver in the most basic sense of ownership, the passenger still possesses the cocaine if he or she knows what it is, takes it from the driver, and throws it out the window. The possessor need not intend to ingest the cocaine, just to control its disposition or use. Also, the passenger may have just possessed the cocaine for one second, but he or she still possessed it under the law. The other type of possession under North Carolina law is constructive possession. A person constructively possesses something if it is in a place to which he or she has access (alone or with others), he or she knows it is there, and he or she intends to use or dispose of it. One example is, if a person is driving a car, heroin is in the console, the person knows it is there, and intends to do something with it, then that driver possesses the heroin even though it is not actually in his or her pocket or hand. He or she still “constructively possesses” it all the same. This is also true of all passengers in the car if they can access the heroin, know it is there, and intend to do something with it. Under constructive possession, more than one person can possess the same contraband. The same analogy can be made of co-occupants in a house or apartment. Lastly, the authorities do not have to “find something on” someone to charge, or convict, that person under either theory of possession. Circumstantial evidence can be used to show possession. For example, if a person is seen running through a field, police locate a gun in that field, and the gun has that person’s DNA or fingerprints on it, those facts are pretty strong circumstantial evidence that the person possessed the gun. What is not possession? Now that we have discussed what the meaning of possession under North Carolina criminal law is, let’s discuss what it is not. A person is not in possession of something just because he or she is near it. A person is also not in possession of something just because he or she is aware of its identity and location. Law enforcement officers often charge people under those facts, especially when several people are in a location with contraband and no one admits to possessing it. However, those facts alone, in North Carolina, are not enough to prove possession. The person must still have the intent and ability to control the contraband’s disposition or use to possess it under the law. What is the point? While “possession is nine-tenths of the law” may have some validity as a Scottish proverb, it has little validity as it has been used over the years in criminal law contexts. The legal meaning of possession covers a lot more that’s what’s literally in a person’s hand, and it can be proven with many types of evidence. Still, all the aspects of either actual or constructive possession must be proven for a person to be convicted of possessing contraband. The main takeaway I hope all people who fall back on the language of this Scottish proverb learn is: choose your friends, hangouts, and habits wisely. If you do that, hopefully you’ll never have to parse the meaning of possession under any criminal law.