The Jury in America

Triumph and Decline

Dennis Hale

• Publisher: University Press of Kansas
• Year: 2016
• Print ISBN: 9780700622009, 9780700622009
• eBook ISBN: 9780700622016
• Topic: Law
• Subtopic: North American History
• Index: Law

The jury trial is one of the formative elements of American government, vitally important even when Americans were still colonial subjects of Great Britain. When the founding generation enshrined the jury in the Constitution and Bill of Rights, they were not inventing something new, but protecting something old: one of the traditional and essential rights of all free men. Judgment by an “impartial jury” would henceforth put citizen panels at the very heart of the American legal order. And yet at the dawn of the 21st century, juries resolve just two percent of the nation’s legal cases and critics warn that the jury is “vanishing” from both the criminal and civil courts. The jury’s critics point to sensational jury trials like those in the O. J. Simpson and Menendez cases, and conclude that the disappearance of the jury is no great loss. The jury’s defenders, from journeyman trial lawyers to members of the Supreme Court, take a different view, warning that the disappearance of the jury trial would be a profound loss.

In The Jury in America, a work that deftly combines legal history, political analysis, and storytelling, Dennis Hale takes us to the very heart of this debate to show us what the American jury system was, what it has become, and what the changes in the jury system tell us about our common political and civic life. Because the jury is so old, continuously present in the life of the American republic, it can act as a mirror, reflecting the changes going on around it. And yet because the jury is embedded in the Constitution, it has held on to its original shape more stubbornly than almost any other element in the American regime. Looking back to juries at the time of America’s founding, and forward to the fraught and diminished juries of our day, Hale traces a transformation in our understanding of ideas about sedition, race relations, negligence, expertise, the responsibilities of citizenship, and what it means to be a citizen who is “good and true” and therefore suited to the difficult tasks of judgment.

Criminal and civil trials and the jury decisions that result from them involve the most fundamental questions of right, and so go to the core of what makes the nation what it is. In this light, in conclusion, Hale considers four controversial modern trials for what they can tell us about what a jury is, and about the fate of republican government in America today.

1

The Common-Law Jury in England and the Colonies

Our ancestors were careful, that all men of the like condition and quality, presumed to be sensible of each other’s infirmity, should mutually be judges of each other’s lives, and alternately taste of subjection and rule, every man being equally liable to be accused or indicted, and perhaps to be suddenly judged by the party, of whom he is at present judge, if he be found innocent.

—Lord Somers, The Security of Englishmen’s Lives, or the Trust, Power and Duty of the Grand Juries of England

And hence it is that when a malefactor is asked at his arraignment, How will you be tried? He answers always f a man assaults you in order to according to law and custom, By God and my country; not by God and the King, or the King’s deputy.

—John Milton, Works

THE PREMODERN JURY

The origin of the medieval English jury is the source of many disputes and not a few legends.¹ Was the jury brought to England by the Frankish kings, or did the conquerors find it present already? If it was operating in 1066, was the jury an Anglo-Saxon invention, or was it imported by the Danes? Can we trace the jury’s beginnings to those same German forests where historians once believed all free institutions were born? And how important were the thegns of the wapentake, or the Wantage Code of Ethelred? What did the barons mean when they demanded of King John that no freeman be imprisoned “except by the lawful judgment of his peers or by the law of the land”?² Were early juries mostly “self-informing” witnesses who testified to what they knew or had heard around the village? Who were these early jurors, and how far down into the social pile did authorities reach when choosing them?

For a long time, research on early English legal institutions was guided as much by contemporary political preoccupations as by a genuine curiosity about the past. The contest between the proponents of the Anglo-Saxon and the Norman origins of the jury is an obvious example, as is most eighteenth- and nineteenth-century commentary on the jury, which tended to see its history almost exclusively through the lens of the long struggle against the “wretched Stuarts.” Blackstone’s Commentaries falls into this category.

Contemporary historians are not without their own political obsessions, of course, especially concerning the “social” and “class” context of medieval legal institutions, which undoubtedly showed a more kindly face to the sober and industrious than to the rough and rowdy. But twentieth-century historiography has profited from the careful study of a surprisingly large collection of legal records stretching back to the twelfth century and earlier. A good example is the collection known as the Pipe Rolls, which recorded financial matters for the Exchequer. Since the administration of the courts involved the collection of fines for the Crown, the Pipe Rolls contain a wealth of information about trials and prosecutions. As English legal historian Naomi Hurnard put it, “there was money to be made by the Crown out of the punishment of crime,” and royal revenues required good record keeping.³ In addition, the various assizes (royal courts convened in the counties at more or less regular intervals) left their own records of cases and dispositions. From these records it is possible to learn much about the way legal institutions operated at the local level, generating accounts of the jury’s origins that are in agreement on a number of elements. What emerges from these accounts is a picture of the jury that, like the portrait of an ancient ancestor, bears an uncanny resemblance to its contemporary descendant. Several features of this portrait stand out.

The sworn inquest, which used local witnesses to present information about local crimes, can be found as early as the late-tenth-century reign of Ethelred II. These were the so-called presentment juries utilized in criminal cases, along with similar institutions summoned to give evidence about such matters as boundaries, feudal obligations, and debts.⁴ Such panels were used, for example, to construct the Domesday Book under William I—which recorded for each shire in the kingdom both physical and legal details about the possession of land—and to settle disputes about the control of particular properties (the so-called possessory assizes, the medieval ancestor of the civil jury).⁵ The underlying principle of these jury inquests was the same: local subjects had knowledge that, whatever its limitations, was treated as probative with respect to the matters under review, enabling the settlement of questions that might otherwise lead to festering conflicts and family feuds. It is not insignificant that such assizes also provided useful information to the Crown about who owned what, and under what terms. In criminal matters, however, the presentment juries were more like grand juries than petit juries, since their function was simply to bring cases to the attention of local justices. Guilt or innocence was determined either by compurgation (bringing witnesses to attest to the character of the accused) or by ordeal (the judicium Dei), which required the defendant to undergo a particularly nasty physical test, the passing of which indicated God’s favor and, thus, acquittal.⁶

The Normans gradually introduced changes to the practices they encountered in England, but without altering the most important aspects of English legal traditions. The role of compurgators, for example, was eliminated from the trial phase, which was conducted entirely through ordeal or through the common Norman practice of wager of battle. But defendants, provided they were not “notorious,” could still call on compurgators in the indictment phase, avoiding presentment altogether if “twelve good men and true” testified to the soundness of their character. This was the beginning of the separation of indictment from trial and, ultimately, of the grand jury from the petit jury, but it was not entirely intentional. To address local matters effectively, the king had no alternative but to deal with local people, and presentment juries were an efficient way to bring to the court’s attention local crimes about which neither the king nor his agents could have independent information. In fact, local subjects were obligated, under penalty of fines, to report all crimes to the justices in a timely fashion. That they did not always do so is suggested by the need to fine them.

Although gentlemen and knights played an important role in these early presentment juries, subjects of the “middling sort”—yeoman farmers, tradesmen, and artisans—also served as jurors, often making up the majority of the panels. Based on their varied stations in life, jurors were expected to know something about the circumstances of the cases they were presenting, and this required subjects who were close to the common folk, or even of them, provided they were “good men and true.”

The monarchy sought to centralize this system, especially after the Conquest, but the Crown could not (or at any rate did not) dispense entirely with the decentralized nature of English public life, law enforcement included. As Hurnard put it, “The Angevins found the system of communal presentment in existence” in England and “appear also to have found in it an effective barrier” against the full centralization of the legal system in the hands of the Crown. “To this practice was opposed, not an institution which Henry himself had introduced, but the custom of the land.”⁷ That is, the institutions and practices that would eventually become the petit jury began in the counties, hundreds, and vills that had been part of the English government for centuries. It was partly this decentralization that guaranteed the participation of subjects of the middling sort on presentment juries. Decentralization also fixed the jury in the public’s imagination as the “popular” element of the judiciary, enforcing the local understanding of such matters as criminal liability, even in the face of competing conceptions held by the royal justices, the Crown, and, in later generations, the Parliament. Locals had so much control over criminal prosecutions, in fact, that leniency toward criminals became something of a scandal at times, denounced from the pulpit, court, and throne alike. Especially with respect to homicide cases, trial jurors were often reluctant to convict defendants they believed “did not deserve to be hanged, even though they may actually have committed the crime for which they were being tried.”⁸

All accounts recognize the importance of the events of the late twelfth and early thirteenth centuries to the subsequent development of the jury system. Three events were of special significance. In 1166 Henry II promulgated the Assize of Clarendon, which codified the traditional role of the presentment jury, even augmenting it in some respects. The assize also stipulated that all those accused of crimes would have to “seek their proof” through the “ordeal of water,” unless the jury chose to offer the accused compurgation—apparently under the assumption that this would not be a common choice. From the perspective of the presented defendant, a successful compurgation would be tantamount to a not-guilty verdict, although it was much closer to what a modern grand jury does when it refuses to return an indictment.

The year 1215 saw two events of importance to the jury: the signing of the Magna Carta, in which the barons exacted a promise from King John to respect “judgment by peers” (among many other demands, including the forgiveness of certain debts owed to Jews), and the decision by the Fourth Lateran Council, at the urging of Pope Innocent II, to ban clerical participation in the ordeals, which effectively meant their abolition.⁹ The Magna Carta established that “the lawful judgment of his peers” would be, in effect, a constitutional privilege of English subjects—initially, of course, the “peers of the realm.” But over time, the idea of judgment by one’s peers came to represent a much broader claim that criminal defendants should be judged by their fellow subjects and not by magistrates acting alone in the name of the king. The effective abolition of trials by ordeal, meanwhile, created a hole that needed filling—a new way to reach credible judgments about criminal cases that would satisfy both the king and the local community. The presentment jury, already a customary institution of long standing, was ready to acquire a slightly different purpose.

With due allowance for local variations, then, the English legal system codified by the Assize of Clarendon, and subsequent decisions by Henry II and his successors, operated approximately as follows, until the abolition of the ordeal: A presenting jury—twelve subjects chosen from the vills, along with four knights chosen from the hundreds (subdivisions of the counties)—would bring to the attention of the justices accusations against members of the local community thought to have committed some offense. These accusations were often based on rumor, in which case the accused, if a person of good repute, would be offered compurgation. If successful, the defendant would be “quit” of the charges against him, amounting to acquittal via character reference. If, however, the accused were a “notorious” fellow known to be a habitual troublemaker, or if the presentment jury could produce facts in evidence against him (for example, that he had been captured in flight, that he had in his possession property belonging to the victim, or that there were witnesses to the crime), then the judge would either convict on the spot, if the evidence was conclusive, or require the accused to “seek his proof” through the ordeal.

The Assize of Clarendon formalized these arrangements, requiring that “anyone, who shall be found, on the oath of the aforesaid [the presentment jury], to be accused or notoriously suspect of having been a robber or murderer or thief, or a receiver of them be taken and put to the ordeal of water.”¹⁰ The assize thus confirmed the legitimacy of one particular form of the ordeal and clarified when it would be used; it also stipulated that the decision to put the accused to the risk of ordeal or conviction would be, in the first instance, the jury’s to make, as a matter of fact if not of law. As a result, by the end of the twelfth century, ordeal by water had become “the normal method of trial in crown pleas”—but only for those defendants to whom the presenting jury had failed ...

Table of contents

• Front Cover
• Title Page
• Contents
• Preface and Acknowledgments
• Introduction: The Paradoxical Jury
• 1. The Common-Law Jury in England and the Colonies
• 2. The Republican Jury
• 3. The Modern Jury
• 4. The Postmodern Jury
• 5. The Vanishing Jury
• Bibliography
• Index
• Back Cover