How much history sleuthing must a lawyer dowhen trying a case? How deeply should youdig to compare the misdemeanor at hand withcenturies-old common law?

If you answered “very little,” your reason-ing may be at odds with that of the ArizonaSupreme Court, which has suggested thatyour history inquiries should be extensive.

Hon. George T. Anagnost is thePresiding Judge of PeoriaMunicipal Court.

BY HON. GEORGE T. ANAGNOST

JURYAND

“COMMON

LAW”

ANTECEDENTS

WHAT

HATH

DERENDAL

WROUGHT?

TRIAL

BY

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In Derendal v. Phoenix City Court,1 theArizona Supreme Court analyzed the consti-tutional right to trial by jury for misde-meanor offenses. Noting that the jury trialright in Arizona’s Declaration of Rights isessentially interpreted by the SixthAmendment of the U.S. Constitution, theCourt examined the three-prong test of aprior case, Rothweiler v. Superior Court,2 andheld that one prong—the “moral quality” or

“moral turpitude” factor—was neither con-stitutionally sourced nor objectively compre-hensible. Overruling Rothweiler’s moralprong, Derendal specifically held that dragracing, a class-one misdemeanor with a max-imum sentence of six months in jail, was nota “serious” offense for Sixth Amendmentpurposes and was not jury eligible.

In reaching this accurate result, theCourt’s dicta also provided a larger per-

spective on when a particular misdemeanoroffense is jury eligible vis-à-vis Englishcommon law. In doing so, Derendal reaf-firmed two important principles:

1. The enactment of the ArizonaConstitution did not create a right totrial by jury; it merely preserved thesame right that existed at common lawprior to statehood.

2. If a statutory offense contained the

same elements of a common lawantecedent that enjoyed the right totrial by jury, then this “newly minted”statutory analog would also be eligiblefor trial by jury.3

This article explores the ArizonaSupreme Court’s excursion into the realmof the common law and respectfully sug-gests that Derendal’s “same element” or“common law antecedent” test may not bean accurate lens when looking back some300 years to what English common lawprovided as to a substantive right to trial byjury.

On the one hand, Derendal got it rightwhen it adopted a “bright-line” fromBaldwin v. New York 4 and Blanton v. Cityof North Las Vegas 5 that offenses with jailterms under six months were “petty”offenses and not jury eligible. On the otherhand, leaving the door open so that we maystill comb the misty past of the Englishcommon law for some sort of long-lostancestor with the “matching DNA” of apresent-day misdemeanor means that wemay have replaced Rothweiler’s “moralquality” indeterminacy with an equallyvague inquiry as to analogs andantecedents.

What “Right” Is To Remain“Inviolate”?Arizona’s Constitution speaks in categori-cal terms: “The right of trial by jury shallremain inviolate.”6

In an ideal world, Aristotelian logic andclassical legal methodology would enablecourts to accurately declare what specificoffenses should enjoy the important rightgranted by these nine words. Like otherconstitutional provisions, however, the pre-cise meaning of this sentence reminds usthat the devil is in the details. Instead of aconstitutional right delineated in clear,sleek terms, we encounter a “Christmastree” situation in which, one case at a timeand one offense at a time, an ad hocapproach has applied particular facts to lawto see what crimes will stick to the mainbranch.

Since statehood, trial lawyers and advo-cates have waged seemingly endless case-by-case battles to determine what types of

offenses are jury eligible and deserving of avictor’s flag that reads “jury eligible misde-meanor.” Perhaps most telling of all, evensince Derendal was decided, there havebeen several reported decisions ruling onthe question of jury-eligible offenses andDerendal’s implications.7

All the while, whenever the fog of warhas lifted, the misdemeanor terrain hasremained rough and rocky. To look back atyears of case holdings is to look back atdesultory and arguably arbitrary outcomes.

• Disorderly conduct in public has beendeclared not jury eligible,8 but lewddancing in a bar is.9

• Even if a perpetrator cheated a home-owner out of thousands of dollars,contracting without a license is notjury eligible,10 whereas shoplifting atwo-dollar pack of cigarettes is.11

• Being drunk in public is not a jury-eli-gible offense,12 but, until it was over-ruled, Rothweiler held that drunk driv-ing was jury eligible.13

• Criminally damaging someone else’sproperty is not jury eligible,14 but leav-ing the hit-and-run scene of a dam-aged property is.15

• If the defendant kills his neighbor’spet, this cruelty might not be jury eli-gible,16 but if instead the defendantsteals his neighbor’s pet, he is entitledto trial by jury.

Ostensibly, Derendal’s pronouncementswill reduce this flow of case-by-caseinquiries, but leaving an exception for“common law” antecedents may mean thata fundamental right will remain vulnerableto contested interpretation.

And just what is this “inviolate right”exactly? What aspects of this one rightbecame fixed like a fly trapped in amberwhile the rest of the common law changedand reshaped itself step-for-step with anever-evolving society?

For example, in mid-1700s in England,the right to trial by jury involved a processin which trials were short (sometimes onlyminutes in length), there were no formalrules of evidence, the same jury might hearseveral trials in one day, the jury did notretire to deliberate but instead rendered its

verdict after a brief interlude in the court-room,17 and the duty of the state to showproof beyond a reasonable doubt was notfirmly established.18

Was this the common law “right” totrial by jury that was preserved “inviolate”?Why not?

Whose Common Law?In Urs v. Maricopa County Attorney’sOffice,19 the court of appeals held that reck-less driving, being in the character of reck-lessly operating a wheeled carriage, was ananalogous jury-eligible “common law”offense. To reach this conclusion, Urs inturn cited District of Columbia v. Colts 20 forthe proposition that reckless driving was“indictable at common law” and thus juryeligible. In Colts, the defendant faced up to30 days in jail for the misdemeanor offenseof recklessly exceeding the District’s 22mile per hour speed limit. On appeal, theU.S. Supreme Court agreed with Colts’claim that the trial court erred in denyinghis request for trial by jury. In JusticeSutherland words:

Whether a given offense is to beclassified as a crime, so as to requirea jury trial, or as a petty offense, tri-able summarily without a jury,depends primarily upon the natureof the offense. The offense herecharged is not merely malum pro-hibitum, but in its very nature ismalum in se. It was an indictableoffense at common law, UnitedStates v. John Hart, 1 Pet. C.C. 390,392, when horses, instead of gaso-line, constituted the motive power.21

Two items are noteworthy in assessingColts’ continued precedential value in lightof the six-month cut-off announced yearslater in Baldwin and Blanton and nowadopted in Derendal.

First, and most obvious, a solid argu-ment can be made that Colts was overruledsub silentio.22 Justice Sutherland’s focus wason the “nature of the offense” and howreckless driving might endanger life andlimb. This was the graveness componentfound wanting in the Baldwin–Blanton–Derendal trilogy.

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However, there is a second point aboutthe reasoning in Colts that is more impor-tant for the purposes of this article. Thereader will note that “United States v. JohnHart” 23 is squarely cited as support forJustice Sutherland’s assertion that recklessdriving (by horse power) was “indictable atcommon law.” Perhaps it would be helpfulto consult Hart itself to confirm it actuallyheld what the learned Justice claimed.

If one disregards the space used to cap-tion the case, identify the parties and list itsthree syllabus points, United States v. JohnHart occupies one printed page. None ofthe syllabi refers to a right to trial by jury.Instead, the opinion’s opening sentencestates the issue on appeal: “This was anindictment for knowingly and wilfullyretarding the passage of the mail.”24 Thefacts were that Hart was a “high constable”of the City of Philadelphia who had arrest-ed, without a warrant, a postal worker forattaining the speed of “eight or nine milesper hour” and failing to operate his horse-drawn mail stage with warning bells. Inother words, Hart was a “turf war”between two branches of government, lawenforcement and the postal service. Themore sinister the postal worker’s conductappeared, the more valid the constable’swarrantless arrest became. Because theoperation of the stage in a populated partof the city amounted to a breach of thepeace, constable Hart was empowered toarrest the driver, and his indictment forimpeding the delivery of the mail could notstand.

Solid Case Law, or JusticeHolmes to the Rescue?The only way one can connect the dotsfrom Hart to Colts to Urs is by blurring thedistinction between a case’s holding and itsdicta and generously extrapolating fromone fact-specific case to a full-blown consti-tutional standard conferring a right to trialby jury.

Moreover, a general observation abouthow the “common law” is invoked in con-temporary reported cases may be men-tioned. Despite references to what the“common law” held, one rarely sees cita-

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tion to actual English common law caseswhose holdings involved a determination ofthe right to trial by jury. The uncertaintysurrounding this interplay of myriad offens-es, statutes and centuries of evolving caselaw jurisprudence cuts in both directions—first by failing to identify a true source ofdecisional law that articulates an ascertaina-ble jury trial right25 and then by re-validat-ing the “bright-line” standard enunciated inBaldwin and approved in Derendal. As boththose cases acknowledged, the most objec-tive basis by which to measure the serious-ness of criminal conduct is to ascertain thepotential maximum penalty of imprison-ment that might be assessed.

Short of that, searching for “commonlaw” antecedents whose elements are analo-gous to modern-day crimes opens aninquiry that risks incomplete historicalrecords, assumptions or speculation as tohow the law was actually interpreted in thepast. It also allows potentially artificial com-parisons separated by centuries of time andexperience. As Justice Felix Frankfurterobserved, “[W]hile the Constitution waswritten in 1787, it was not written for1787.”26

In a different setting, Justice Holmes’skepticism as to a knowable and discretebody of common law is also noteworthy. InBlack and White Taxicab v. Brown andYellow Taxicab,27 Black and White brought adiversity suit in federal court to enjoinBrown and Yellow from interfering with anexclusive railroad passenger cab service con-tract. Brown and Yellow answered that theKentucky appellate courts had ruled suchexclusive contracts were invalid restraints oftrade.

Nevertheless, the U.S. Supreme Courtruled against Brown and Yellow, holdingthat it was not bound by the Kentucky statecourt’s interpretation of the common lawand that it could determine and apply a gen-eral American common law. Justice Holmesdissented with observations that would bevindicated a few years later in Erie RailroadCo. v. Tompkins,28 which held that there wasno general federal common law in diversitycases.

Books written about any branch ofthe common law treat it as a unit,

cite cases from this Court, from theCircuit Courts of Appeal, from theState Courts, from England and theColonies of England indiscriminately,and criticise them as right or wrongaccording to the writer’s notions of asingle theory. It is very hard to resistthe impression that there is oneaugust corpus. … If there were sucha transcendental body of law … theCourts of the United States might beright in using their independentjudgment as to what it was. Butthere is no such body of law. The fal-lacy and illusion that I think existconsist in supposing that there is thisoutside thing to be found.29

ConclusionWith the stroke of a pen, by applying thereasoning used in Colts, the Court inDerendal could have easily reached anopposite result and held that drag racingwas a common law analog worthy of trialby jury. After all, drag racing is inherentlydangerous, its motive power is a horsemade of steel, and as such, it would beindictable as a common law breach of thepeace. The rub here is that, ultimately,whichever way Derendal went, it is notclear that common law sources would havecompelled either holding one way or theother.

Certainty in the law should be one of itsmost important goals. With certainty,rights, duties and other jural correlativesbecome verifiable and predictable. Withcertainty, the law can attain objective stan-dards of fairness and justice. Lastly, on aless important pragmatic level, certaintycan reduce the flow of litigation and thesocial cost of expending judicial resources,time and effort to declare what the law is.

Derendal represents an important stepin understanding the meaning of a consti-tutional right. But in that case the Courtalso announced that some aspects ofEnglish common law still cast a shadowover the Sixth Amendment on the basis ofsimilar elements. Given that imperative, thequestion remains whether we will continueto search for a common law tradition thatis intractably elusive.

1. 104 P.3d 147 (Ariz. 2005).2. 410 P.2d 479 (Ariz. 1966). The three

prongs that conferred a right to trial by jurywere “serious” offenses due to the length ofpotential imprisonment, common lawoffenses, and offenses involving moral turpi-tude.

3. Derendal, 104 P.3d at 150.4. Baldwin v. New York, 399 U.S. 66 (1970)

(New York statute that authorized a maxi-mum penalty of one-year imprisonment for“jostling” was jury eligible).

5. Blanton v. City of North Las Vegas, 498 U.S.538 (1989) (Nevada DUI statute, whichauthorized up to six months in jail, classesand distinctive garb while performing com-munity service was not a “serious” offenserequiring a jury trial).

6. ARIZ. CONST. art. 2, § 23.7. In Stoudamire v. State of Arizona (2006 WL

2129993 Ariz. App. Div. 2), defendant wascharged with “felony turn-down” misde-meanor marijuana and drug paraphernaliapossession offenses. The court of appealsrejected his alternative arguments that hiscrimes were analogous to a common lawpossession of opium offense or that theoverall “seriousness” of the offense over-came the Derendal presumption that six-month or less offenses are “petty” innature. See also Manic v. Dawes (2006 WL667959 Ariz. App. Div. 2); State ex rel.Wangberg v. Smith, 118 P.3d 49 (Ariz. Ct.App. 2005); Phoenix City Prosecutors Officev. Klausner, 118 P.3d 1141 (Ariz. Ct. App.2005); Ottaway v. Smith, 113 P.3d 1247(Ariz. Ct. App. 2005).

8. See O’Neill v. Mangum, 445 P.2d 843 (Ariz.1968).

9. City Court v. Lee, 494 P.2d 54 (Ariz. Ct.App. 1972).

10. State v. Miller, 836 P.2d 1004 (Ariz. Ct.App. 1974).

11. State v. Superior Court, 589 P.2d 48 (Ariz.1978).

12. State v. Cousins, 397 P.2d 217 (Ariz. 1964).13. Rothweiler, 410 P.2d 479. A.R.S. § 28-

1381(F) provides a statutory right to trialby jury for DUI misdemeanors. A.R.S. § 5-397(C) provides a right to trial by jury foroperating a watercraft under the influence.Curiously, there is no statutory right to trialby jury for operating an aircraft while intox-icated. See A.R.S. § 28-8284.

14. See generally A.R.S. § 13-1602.

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endnotes

AZAT

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15. Frederickson v. Superior Court, 928 P.2d697 (Ariz. Ct. App. 1996). See generallyA.R.S. § 13-2910.

16. Campbell v. Superior Court, 924 P.2d 1045(Ariz. Ct. App. 1996).

17. See Daniel D. Blinka, Jefferson and Juries:The Problem of Law, Reason and Politics inthe New Republic, 47 AM. J. LEGAL HIST.44 (2005).

18. See JOHN H. LANGBEIN, THE ORIGINS OF

ADVERSARY CRIMINAL TRIAL 261-266(2003).

19. 31 P.3d 845 (Ariz. Ct. App. 2000).20. 282 U.S. 62 (1930).21. Id. at 73.22. When Colts is shepardized, one entry is

“implied overruling recognized byCampbell v. Superior Court, 924 P.2d1045.”

23. 26 Fed. Cas. 193 (C.C.D. Pa. 1817).24. Id. at 194.25. See e.g., David T. Konig, “Dale’s Laws” and

the Non-Common Law Origins of CriminalJustice in Virginia, 26 AM. J. LEGAL HIST.354, 363 (1982) (“The common law wasnot the only law in England, and on thefrontiers it was conciliar justice that ruled”).Konig provides plausible authority for theproposition that the excesses of summary,non-jury trials during the Tudor andElizabethan period were curtailed bydebates in Parliament and not by way ofcommon law decisions.

26. Felix Frankfurter & Thomas G. Corcoran,Petty Federal Offenses and Trial by Jury, 39HARV. L. REV. 917, 922 (1926).

27. 276 U.S. 518 (1928).28. 304 U.S. 64 (1938).29. Black and White Taxicab, 276 U.S. at 533.

The fallibility of “well-settled” common lawdogma has been addressed in other areas ofconstitutional law. For a persuasive re-exam-ination of the long-accepted fact–lawdichotomy imputed to the SeventhAmendment’s preservation of “suits at com-mon law,” see Donald M. Middlebrooks,Reviving Thomas Jefferson’s Jury: Sparf andHansen v. United States Reconsidered, 46AM. J. LEGAL HIST. 353 (2004) (“We havecome to assume as unquestionable truththat juries are merely finders of fact thatmust accept the law as explained to them injury instructions. This was not, however,always the case. Nor was it the originalintent of the founding fathers.”).

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