Dean's Address

Jury Trial and The Independent Bar

By Leonard Decof

Consider the absurdity of the following concept. Twelve persons, probably without any prior contact with courts or the judicial system, are randomly chosen to sit together and listen to evidence, often of a highly complex nature. Afterward they will deliberate in secret and return a verdict that affects the liberty or property or even life of persons who have appeared before them. The jurors receive no training for this task, nor are they required to give reasons for their decisions. Each person is responsible to his or her own conscience but to no higher authority. At the conclusion of the trial, each member disappears from the judicial scene and may never ever serve on a jury panel again.

Opinions regarding the role of the jury system in the United States are notable both for their lack of unanimity and lack of moderation. Hyperbole is commonplace. The jury system has been a continuous source of controversy. Famous political philosophers and lawyers who have expressed their views on the necessity and viability of the jury system include Alexander Hamilton, de Tocqueville, Blackstone, Pound, Wigmore, and Holmes.

On one hand, the jury has been vilified:

"We commonly strive to assemble 12 persons colossally ignorant of all practical matters, fill their vacuous heads with law which they cannot comprehend, obfuscate their seldom intellects with testimony which they are incompetent to analyze or unable to remember, permit partisan lawyers to bewilder them with their meaningless sophistry, then lock them up until the most obstinate of their numbers coerce the others into submission or drive them into open revolt."
(Oppenheimer, "Trial by jury," U. Cin. L. Rev. 141, 142 (1937).)

On the other hand, the jury has been extolled with eloquence and vigor. For example, over a century ago, the distinguished Alexis de Tocqueville wrote:

"The jury, and more especially the jury in civil cases, serves to communicate the spirit of the judge to the minds of all the citizens; and this spirit, with the habits which attend it, is the soundest preparation for free institutions. It imbues all classes with a respect for the thing judged, and with the notion of right. It teaches men to practice equity, every man learns to judge his neighbor as he would himself be judged. It invests each citizen with a kind of magistracy, it makes them all feel the duties which they are bound to discharge toward society and the part which they take in its government. By obliging men to turn their attention to other affairs than their own, it rubs off that private selfishness which is the rust of society. ‑I think that the practical intelligence and political good sense of the Americans are mainly attributable to the long use they have made of the jury in civil cases."
(Democracy in America 285‑287 (Bradley ed. 1945).)

Even earlier, in 1765, the British jurist, Sir William Blackstone, in his Commentaries on the common Law, a book that enjoyed phenomenal sales both in England and in the American colonies (J.Bryce, The American Commonwealth (1869); S. McCart, Dial by jury 9 (1964)) wrote:

"But in settling and adjusting a question of fact, when entrusted to any single magistrate, partiality and injustice have an ample field to range in. ... Here, therefore, a competent number of sensible and upright jurymen, chosen by lot from among those of the middle rank, will be the best investigators of truth, and the surest guardians of public justice."

Finally, in a less serious vein but still a succinct appraisal of the virtues of the jury system, British novelist and essayist G. K. Chesterton, after serving as a juror, wrote:

"Now, it is a terrible business to mark a man out for the vengeance of men. But it is a thing to which a man can grow accustomed, as he can to other terrible things; he can even grow accustomed to the sun. And the horrible thing about all legal officials, even the best, about all judges, magistrates, barristers, detectives, and policemen, is not that they are wicked (some of them are good), not that they are stupid (several of them are quite intelligent), it is simply that they have got used to it.

... Our civilization has decided, and very justly decided, that determining the guilt or innocence of men is a thing too important to be trusted to trained men. When it wants a library catalogued, or the solar system discovered, or any trifle of that kind, it uses up its specialists. But when it wishes anything done which is really serious, it collects twelve of the ordinary men [and women] standing around."
(G. K. Chesteron, "Twelve Men," in Premendous Difles).

What is the condition of this institution that has been alternatively damned and deified? How did the concept of dispute resolution become entrusted to twelve” ordinary" men and women?

The American jury system began with the arrival of the first colonists. (R. Simon, editor, Introduction, The Jury System in America 15 (1975).) The Charter granted to the Virginia Company that established Jamestown in 1606 guaranteed the colonists all the rights enjoyed by Englishmen, including trial by jury. King James I thereby established the precedent in the Seventeenth Century which was followed subsequently in British colonizations and conquests in North America as well as in Asia and Africa.

A trial by jury on one's peers is enshrined in the Magna Carta of 1215 and as an ideal often stirs democratic reverence because it is an ancient institution.

However, the mist of centuries has befogged the true origin and purpose of the Magna Carta, leaving most of us with a romantic misconception.

The Magna Carta was not a constitution or a declaration of human rights. It was nothing more than a treaty between two warring factions‑the barons and King John. It represented the triumph of one faction of the aristocracy over the other, and was designed to benefit the victorious nobles who had rebelled against John by forcing him to negotiate.

The Magna Carta didn't provide for a trial by jury. At the time of the battle of Runnymede, there was no jury trial for crimes. It wasn't until that same year that trial by ordeal was abolished. This created a vacuum which several years later was filled with the jury trial.

The Magna Carta thus guaranteed only a trial by one's peers, in these words "Nisi per legate indicium parium suorum ad per legem terrae" meaning "Only thru legal judgment of their peers through the laws of the land."

Trial by ones peers, as guaranteed by the Magna Carta, had an entirely different meaning than we ordinarily attribute to it. "Peer" has two meanings‑even today.

As we normally understand it, it means equals. But in England in 1215 it meant nobility. In England today, in Burke's Peerage and the House of Lords, it still describes the aristocracy. (C. Rembar, The Law of the Land 167, 168.)

Thus, in the Magna Carta, the barons, far from insuring a jury trial for the masses, by the masses, were merely guaranteeing that they would be tried by one not lower on the social scale than themselves.

That what started out as an instrument to protect the privileged became the temple of democracy is a marvel of political and social evolution.

Why the number twelve was selected as the optimum number of jurors remains a mystery. To theorize, one would suppose that twelve was a workable size, large enough to demonstrate an impressive consensus but not so numerous as to become unwieldy. Twelve is also an important number in our folklore‑twelve months in a year, the twelve hour segments in our day and, prior to the introduction of the metric system, we dealt in dozens and grosses. Or perhaps we find odd numbers frightening, even supernatural. After all, there were twelve apostles, twelve tribes of Israel; twelve patriarchs; twelve officers of Solomon. (Rembar, 159‑161.) In any case, twelve had traditionally been the fixed size for juries both in England and the colonies since the middle of the Fourteenth Century.

Independence of the jury from interference by the crown was an important aspect of the colonists' drive to sever their dependence upon Great Britain and provided an impetus to the development of the jury system in America. Colonial judges were instruments of the crown inasmuch as they were appointed by the king who also determined their salaries. Understandably, during our colonial history trial judges often dominated juries. But a preview of radical changes yet to come took place in 1734 when John Peter Zenger, a New York City newspaper publisher, was arrested for printing allegedly libelous stories about the royal governor, William Crosby. At the trial, the government‑appointed judge, James De Lancy, ordered the jury to decide the sole question of whether Zenger had published the offending statements.

As judge, he thought that he would then decide whether the statements were libelous. Zenger's attorney, Andrew Hamilton advised the jurors that they had the right to decide both the law and the facts. In defiance of the judge's orders, the jury returned a not guilty verdict and established not only freedom of the press but asserted the independence of the jury from judicial and royal control. (M. Bloomstein, Verdict 23 (1968); McCart, Trial by Jury 8‑9 (1964); Van Dyke, July Selection Procedures 228 (1977).)

The jury question received prominent attention in the colonists' catalogue of grievances justifying their revolt, the Declaration of Independence. (H. Hyman and C. Tarrant, "Aspects of American Trial Jury History," in The Jury System in America 30 (K. Simon, ed., IV Sage Criminal Justice System Annuals 1975).) Yet, interestingly, the 1787 draft of the Constitution contained only one reference to jury trials. Article III Section 2, Clause 3 provided:

"The trial of all crimes, except in cases of impeachment, shall be by jury; and such trials shall be held in the State where the said crimes shall have been committed."

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