Document Type


Publication Date

Spring 2005

First Page






Source Publication Abbreviation

Ga. L. Rev.


(the) Supreme Court's Sixth and Seventh Amendment jurisprudence has not created a more expansive jury right for criminal defendants. Instead, it has produced a system in which a civil litigant may demand a jury decision on questions that, if presented in a criminal case, would fall within the exclusive province of the judge. This Article explores this anomaly and argues that the Supreme Court in Booker missed a critical opportunity to redress the constriction of the criminal defendant's right to have a jury decide those facts that lead to the deprivation of the defendant's liberty.

My argument (on these points) will proceed in three steps. In Part II, I will trace the evolution of the criminal jury right to show how the jury's role was constricted prior to the partial recovery of jury power in the Apprendi line of cases. In Part III, I will trace the parallel evolution of the civil jury right to show how it has remained fairly consistent in requiring jury decisions on important fact questions. In Part IV, I will demonstrate the consequences of this disparity by comparing the scope of the civil jury right as it is applied to punitive damages to the scope of the criminal jury right as it is applied to sentencing. In Part V, I will explain why, as a normative matter, it makes sense to give questions of fact to the jury, and then I will address the practical implications of interpreting the Sixth Amendment to confer a right to a jury decision on questions of fact at sentencing.