“In all criminal prosecutions, the accused shall enjoy the right to a speedy and public trial, by an impartial jury…”

So begins the Sixth Amendment to the United States Constitution. You might assume that this language means what it says: that a jury trial is guaranteed in all criminal prosecutions. Unfortunately, you would be wrong. In reality, for over a century, the Supreme Court has held that certain “petty” offenses do not trigger the Sixth Amendment jury-trial right.[1] The principle is this: “petty” crimes can be distinguished from “serious” ones by looking at the penalties they carry, such as prison terms, probationary periods, and fines. If the penalties for an offense are sufficiently grave, then—and only then—the Sixth Amendment jury-trial right applies. (Though keep in mind that the Constitution isn’t the only place to locate such a right. Constitutional rights are a “floor,” and federal and state legislatures are free to codify more lenient jury-trial rules.)

Because this “petty-versus-serious” standard is, in the words of the Court, “somewhat imprecise,” various jurisdictions have established some bright-line rules.[2] In D.C., for example, an accused is entitled to a jury trial if 1) the Sixth Amendment applies; or 2) she faces a fine of over $1,000 or a prison term of over 180 days if convicted.[3] To determine whether the Sixth Amendment applies, D.C. courts compare the penalties associated with a given offense to a prison term of over six months; if they are equally severe, then the accused is entitled to a jury trial.[4]

For certain people, this changes the landscape significantly. In a 2018 case called Bado v. United States, the D.C. Court of Appeals held that an accused is entitled to a jury trial if conviction could lead to her removal or deportation from the country.[5] Deportation, the court reasoned, is a penalty involving losses “so great as to be unquantifiable.”[6] Therefore, an offense that could lead to deportation triggers the constitutional jury-trial right even if its other potential penalties, such as 180 days in prison, do not.[7] Five years later, in Fallen v. United States, the D.C. Court of Appeals built on Bado to hold that misdemeanor sexual abuse—another “petty offense”—triggers the Sixth Amendment if conviction would require the accused to register as a sex offender.[8] Just as the Bado court considered the effects of deportation, the Fallen court reasoned that sex offender registration “has serious negative consequences for registrants” and results in harm “distinct from that resulting from the underlying conviction.”[9] Accordingly, required registration, when viewed together with the other penalties for misdemeanor sexual abuse, “overcomes the presumption” that the offense is petty “and triggers the Sixth Amendment right to a trial by jury.”[10]

Bado and Fallen remind the accused—and their attorneys—to exhaust the possibilities hiding behind a so-called “petty offense” when asserting their rights to a jury trial. In sexual abuse cases, one such possibility is the penalty of sex offender registration. While Fallen establishes that sexual offenses that require registration in D.C. trigger a jury-trial right in D.C., the courts have not yet considered what happens when a D.C. conviction could require sex offender registration elsewhere. For example, misdemeanor sexual abuse by sexual contact, D.C. Code § 22-3006, is not an offense that requires an individual to register as a sex offender in D.C. It is, however, substantively identical to the charge of Sexual Offense in the Fourth Degree in the neighboring jurisdiction of Maryland. There, a Fourth Degree Sex Offense conviction triggers a fifteen-year term of registration, even if the offense was charged and prosecuted elsewhere. Thus, a person charged in D.C. with misdemeanor sexual abuse who lives in Maryland could still face sex offender registration. That person could thus make the same substantive argument accepted by the court in Fallen—and potentially obtain a jury trial on what could be overlooked an otherwise “petty” offense.

What might seem like a “petty” charge can carry consequences that last well beyond the case itself, and the availability of a jury trial can meaningfully affect how that case is decided. In D.C., the line between a “petty” offense and one that triggers a constitutional right to a jury trial is not always obvious, but it can be outcome-determinative. For attorneys, spotting that issue early is part of competent, strategic advocacy; for clients, it can shape everything from leverage in negotiations to the forum that ultimately decides their case. Taking a close look at jury trial eligibility is not a technicality—it is a critical safeguard that should never be overlooked.

If you have been charged with a crime, reach out to Brown, Goldstein & Levy today. Our criminal defense team has the resources and experience to put you in the strongest position possible to defend your rights and freedom. We have obtained acquittals, dismissals, trial wins, and appellate victories across D.C. and Maryland, and we are committed to leveling the playing field and protecting our clients against an increasingly powerful government.

Jacqueline Cadman is widely regarded as one of the best criminal trial lawyers in the Washington D.C. and Baltimore metro areas. Throughout her career, Jacqui has tried hundreds of cases. She has mastered complex issues of forensics, psychology, and conducted intricate constitutional litigation. Jacqui is nationally recognized for her expertise in conducting deep investigations and for trying and winning the most time-intensive and difficult cases. She is a regular trainer nationwide on countless topics involving criminal law and trial advocacy.

Catalina Odio has represented clients facing misdemeanor and felony charges at trial and on appeal, as well as pre-trial. She is fluent in Spanish and barred in D.C. and Maryland.

Contact us today to discuss your case and learn how BGL can help.

*This blog post is for informational purposes only. No portion of it should be taken as legal advice.

[1] District of Columbia v. Clawans, 300 U.S. 617, 624 (1937) (“It is settled by the decisions of this Court . . . that the right of trial by jury . . . does not extend to every criminal proceeding. At the time of the adoption of the Constitution there were numerous offenses, commonly described as ‘petty,’ which were tried summarily without a jury”); Blanton v. City of N. Las Vegas, Nev., 489 U.S. 538, 541 (1989) (“It has long been settled that ‘there is a category of petty crimes or offenses which is not subject to the Sixth Amendment jury trial provision.’” (quoting Duncan v. Louisiana, 391 U.S. 145, 159 (1968))).

[2] Blanton, 489 U.S. at 5

[3] D.C. Code § 16-705.

[4] Bado v. United States, 186 A.3d 1243, 1252 (D.C. 2018) (en banc).

[5] Id. at 1246–47.

[6] Id. at 1251.

[7] Id. at 1252.

[8] Fallen v. United States, 290 A.3d 486, 499 (D.C. 2023).

[9] Id. at 497–98.

[10] Id. at 499.