---
title: Ga. Const. Art. I, Sec. I, Para. XI. Right to trial by jury; number of jurors; selection and compensation of jurors.
collection: code
id: ga-const:art-i-sec-i-para-xi
cite_as: Ga. Const. Art. I, Sec. I, Para. XI
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date: 2016
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---

# Ga. Const. Art. I, Sec. I, Para. XI. Right to trial by jury; number of jurors; selection and compensation of jurors.

A constitution provision shown as in force is in force as printed in the volume. A court decision can make a printed provision unenforceable without changing the volume, and the volume does not record that.

(a) The right to trial by jury shall remain inviolate, except that the court shall render judgment without the verdict of a jury in all civil cases where no issuable defense is filed and where a jury is not demanded in writing by either party. In criminal cases, the defendant shall have a public and speedy trial by an impartial jury; and the jury shall be the judges of the law and the facts.

(b) A trial jury shall consist of 12 persons; but the General Assembly may prescribe any number, not less than six, to constitute a trial jury in courts of limited jurisdiction and in superior courts in misdemeanor cases.

(c) The General Assembly shall provide by law for the selection and compensation of persons to serve as grand jurors and trial jurors.

## Cross References

Rights of the accused, U.S. Const., amend. 6 and § 9-11-38. Jury of less than 12 members, § 9-11-47. Juries in criminal cases, §§ 15-12-160 and 17-9-2. Jury as judges of law and fact in criminal cases, § 17-9-2. Discrimination against employee for attending a judicial proceeding in response to a court order or process, § 34-1-3.

## Editor's Notes

Some of the cases noted under this paragraph were decided under language appearing in the 1976 Constitution (Art. I, Sec. I, Paras. VIII, XI; Art. VI, Sec. IV, Para. VII; Art. VI, Sec. XV, Paras. I, II) and antecedent provisions, all of which dealt with aspects of the right to jury trial now contained in this paragraph.

Altering order in which persons were selected from jury venire was not shown to have failed to produce an array of impartial, properly drawn prospective jurors from which to pick a jury. Franks v. State, 278 Ga. 246, 599 S.E.2d 134 (2004), cert. denied, 543 U.S. 1058, 125 S. Ct. 870, 160 L. Ed. 2d 784 (2005).

Some of the cases noted under this heading were decided under the 1976 Constitution (Art. VI, Sec. XV, Paras. I, II) and antecedent provi-Jurors (Cont’d) 2. Qualifications (Cont’d) sions, which provided that grand jurors were to be ‘‘experienced, intelligent and upright’’ and that traverse jurors were to be ‘‘intelligent and upright.’’ ness, and experience established for jurors in this paragraph do not violate the Constitution. White v. State, 230 Ga. 327, 196 S.E.2d 849, appeal dismissed, 414 U.S. 886, 94 S. Ct. 222, 38 L. Ed. 2d 134 (1973).

## Law Reviews

For article advocating reforms to improve the jury mentally and morally, see 5 Ga. B.J. 38 (1942). For article, ‘‘The Divorce Act of 1946’’ (Ch. 5, T. 19), see 9 Ga. B.J. 287 (1947). For article surveying development of equity and the right to trial by jury in equity suits in Georgia, and advocating use of jury to try issues of fact in equitable actions, see 8 Mercer L. Rev. 225 (1957). For article, ‘‘Personal Rights, Property Rights and Due Process: A Comparison of Constitutional Protection in the Georgia Supreme Court and the United States Supreme Court,’’ see 9 Mercer L. Rev. 253 (1958). For article surveying cases dealing with criminal law and criminal procedure from June 1, 1977 through May, 1978, see 30 Mercer L. Rev. 27 (1978). For annual survey of constitutional law, see 35 Mercer L. Rev. 73 (1983). For article, ‘‘The Georgia Bill of Rights: Dead or Alive?,’’ see 34 Emory L.J. 341 (1985). For article, ‘‘Justice and Juror,’’ see 20 Ga. L. Rev. 257 (1986). For article, ‘‘The Endangered Right of Jury Trials in Dispossessories,’’ see 24 Ga. St. B.J. 126 (1988). For survey of 1995 Eleventh Circuit cases on constitutional criminal procedure, see 47 Mercer L. Rev. 765 (1996). For article, ‘‘Misdemeanor Sentencing in Georgia,’’ see 7 Ga. St. B.J. 8 (2001). For annual survey of death penalty decisions, see 57 Mercer L. Rev. 139 (2005). For annual survey of death penalty law, see 57 Mercer L. Rev. 479 (2006). For annual survey of law on criminal law, see 62 Mercer L. Rev. 87 (2010). For article, ‘‘The Case Against Closure: Open Courtrooms After Presley v. Georgia,’’ see 16 (No. 2) Ga. St. B.J. 10 (2010).

For note, ‘‘Another Milepost in Jury Selection Under the Constitution,’’ see 2 J. of Pub. L. 456 (1953). For note, ‘‘Toward an Integrated Rule Prohibiting All Race-Based Peremptory Challenges: Some Considerations on Georgia v. McCollum,’’ see 26 Ga. L. Rev. 503 (1992).

For comment on Henderson v. State, 207 Ga. 206, 60 S.E.2d 345 (1950), see 13 Ga. B.J. 230 (1950). For comment on Blevins v. State, 220 Ga. 720, 141 S.E.2d 426 (1965), see 2 Ga. St. B.J. 242 (1965). For comment on Deal v. Seaboard C.L.R.R., 236 Ga. 629, 224 S.E.2d 922 (1976), see 25 Emory L.J. 983 (1976). For comment, ‘‘Where Do We Go From Here? The Future of Caps on Noneconomic Medical Malpractice Damages in Georgia,’’ see 28 Ga. St. U.L. Rev. 1341 (2012). For comment, ‘‘The Guiding Hand of Counsel: Effective Representation for Indigent Defendants in the Cordele Judicial Circuit,’’ see 66 Mercer L. Rev. 781 (2015).

## 1976 Constitution.

Art. I, Sec. I, Paras. VIII, XI; Art. VI, Sec. IV, Para. VII; Art. VI, Sec. XV, Paras. I, II, III.

## Constitutionality.

See Sanders v. State, 234 Ga. 586, 216 S.E.2d 838 (1975), cert. denied, 424 U.S. 931, 96 S. Ct. 1145, 47 L. Ed. 2d 340 (1976).

Right to jury trial not violated in

## Plea Bargain.

Defendant’s right to a jury trial was not violated by illegal plea bargaining through a threatened longer sentence if the defendant proceeded to trial. Logan v. State, 309 Ga. App. 95, 709 S.E.2d 302, cert. denied, No. S11C1101, 2011 Ga. LEXIS 579; cert. denied, 132 S. Ct. 823, 181 L. Ed. 2d 533 (2011).

Prelitigation contractual waiver of the right to trial by jury is not enforceable in cases tried under the laws of Georgia. Bank S. v. Howard, 264 Ga. 339, 444 S.E.2d 799 (1994).

## Jury’s Importance.

The jury is as important a branch of the judicial department as the judge. Johnson v. State, 169 Ga. 814, 152 S.E. 76 (1930).

Juror not incompetent on account

## Of Having Been Impaneled in Case.

A juror is not incompetent to testify as a witness solely on account of having been impaneled and sworn in the case, if the juror is otherwise competent. Tumlin v. State, 88 Ga. App. 713, 77 S.E.2d 555 (1953).

Cited in McElroy v. McElroy, 252 Ga. 553, 314 S.E.2d 893 (1984); Andrews v. State, 175 Ga. App. 22, 332 S.E.2d 299 (1985); Tutton v. State, 179 Ga. App. 462, 346 S.E.2d 898 (1986); Hughes v. State, 257 Ga. 200, 357 S.E.2d 80 (1987); Freeman v. State, 194 Ga. App. 905, 392 S.E.2d 330 (1990); Quiller v. Bowman, 262 Ga. 769, 425 S.E.2d 641 (1993); Howard v. Bank S., 209 Ga. App. 407, 433 S.E.2d 625 (1993); Burg v. State, 297 Ga. App. 118, 676 S.E.2d 465 (2009).

Right to Trial by Jury

1. In General

## Origin of Phrase ‘‘shall Remain Inviolate’’.

The statement in this paragraph that the right of trial by jury shall remain inviolate refers to the right as it existed at common law at the time of the incorporation of this paragraph into the state Constitution, and consequently the expression means that the right of trial, as it existed in England, should be inviolate or unaltered. Wright v. Davis, 184 Ga. 846, 193 S.E. 757 (1937).

A jury trial in Georgia must be governed by the same rules as prevailed in England at the time the Constitution was adopted if there is an absence of any provision in organic law affecting the right of jury trial. Wright v. Davis, 184 Ga. 846, 193 S.E. 757 (1937).

First part of this paragraph is derived from the declarations in the Magna Carta and is subject to the limitations of the common law. Tift v. Griffin, 5 Ga. 185 (1848); Stewart Dunholter & Co. v. Sholl, 99 Ga. 534, 26 S.E. 757 (1896); De Lamar v. Dollar, 128 Ga. 57, 57 S.E. 85 (1907); Pollard v. State, 148 Ga. 447, 96 S.E. 997 (1918).

Right to jury trial cannot be im-

## Paired by Legislature.

The right to a jury trial as guaranteed by the state Constitution, i.e., the right shall remain inviolate, are those rights heretofore enjoyed at common law in civil and criminal cases, which cannot be impaired by the legislature. Porter v. Watkins, 217 Ga. 73, 121 S.E.2d 120 (1961).

In a case at common law, a party has a constitutional right to have all questions of fact passed upon by a jury, and a legislative denial of that right is unconstitutional. Williams v. Overstreet, 230 Ga. 112, 195 S.E.2d 906 (1973).

Preservation of rights to jury trial

## Which Existed When Constitution Adopted.

Constitutional right to trial by jury shall not be taken away in cases where it existed when Constitution was adopted in 1798. Cawthon v. Douglas County, 248 Ga. 760, 286 S.E.2d 30 (1982).

This provision has been uniformly construed as not conferring a right to trial by jury in all classes of cases, but merely as guaranteeing the continuance of the right unchanged as it existed either at common law or by statute at the time of the adoption of the Constitution. Beasley v. Burt, 201 Ga. 144, 39 S.E.2d 51 (1946).

The provision in the Constitution that ‘‘trial by jury, as heretofore used, shall remain inviolate’’ means that it shall not be taken away in cases where it existed when that instrument was adopted in 1798; and not that there must be a jury in all cases. Williams v. Overstreet, 230 Ga. 112, 195 S.E.2d 906 (1973).

All cases triable without a jury prior to the Constitution may still be

## So Tried.

It will be conceded that it is competent for the legislature to provide for a trial without a jury in cases similar to those in which such a trial was in use prior to the adoption of the Constitution. Beasley v. Burt, 201 Ga. 144, 39 S.E.2d 51 (1946).

## Demand.

Parties may be required to enter a demand for a jury trial. Sutton v. Gunn, 86 Ga. 652, 12 S.E. 979 (1891) See also Sanders v. Alexander, 23 Ga. App. 563, 99 S.E. 53 (1919).

This paragraph is complied with if a right to jury trial is had before final liability. Hobbs v. Dougherty County, 98 Ga. 574, 25 S.E. 579 (1896); De Lamar v. Dollar, 128 Ga. 57, 57 S.E. 85 (1907).

This paragraph is complied with if a right to jury trial is obtainable on appeal. Davis v. Harper, 54 Ga. 180 (1875); De Lamar v. Dollar, 128 Ga. 57, 57 S.E. 85 (1907).

Retroactive extinguishment of

## Right to Trial by Jury Unconstitutional.

Retroactive application of the 1977 amendment to O.C.G.A. § 19-7-40, which extinguished the right to a jury trial in a paternity suit, was unconstitutional. Hargis v. Department of Human Resources, 272 Ga. 617, 533 S.E.2d 712 (2000).

This paragraph is not violated by a law requiring payment of costs and giving of bond as a condition precedent to an appeal. Flint River Steamboat Co. v. Foster, 5 Ga. 194, 48 Am. Dec. 248 (1848).

## Determination of Damages.

Paragraph (e)(2) of O.C.G.A. § 51-12-5.1, requiring that 75 percent of punitive damages awarded in a product liability action be paid into the state treasury, does not violate Ga. Const. 1983, Art. I, Sec. I, Para. XI. State v. Moseley, 263 Ga. 680, 436 S.E.2d 632 (1993), cert. denied, 511 U.S. 1107, 114 S. Ct. 2101, 128 L. Ed. 2d 663 (1994).

## Private Voir Dire on Sensitive Issues.

Defendant’s right to a public trial was not violated by the trial court’s conduct of certain portions of voir dire in a private jury room rather than in open court because the defendant’s counsel agreed that jurors should have a private opportunity to answer questions of a sensitive nature, including jurors’ attitudes toward homosexuality and jurors’ prior arrests, and the right to a public trial gave way to the right for a fair trial. State v. Abernathy, 289 Ga. 603, 715 S.E.2d 48 (2011).

2. Civil Cases


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