Dean's Address

Let us now examine not ourselves, but the present status of the adversary system of justice itself, and particularly the status of the civil jury. No one can deny that the system is under attack. But it has always been under attack. The difference that troubles me now is the not so subtle attempt to take away individual rights under the guise of improving the system of justice. Thus, we are told, greedy lawyers and gullible jurors are the cause of the overloaded, malfunctioning civil justice system. I am not concerned about the criticism of lawyers. Perhaps it is in part justified. And if so, we have only ourselves to blame. In any event lawyers should be able to take criticism. What is shameful though, is how easily we have a owed this propaganda to neutralize our traditional role as champions of public rights and defenders against all those who would revoke those rights. As I have suggested, we have become defensive and in large part ineffective as a result.

The critics of the law today are not merely criticizing lawyers. They are denouncing and mocking the very fiber of our society, under the rubric of efficiency and improvement. They decry our jury system and, like the sellers of detergent, call for a "new and improved" system. The great danger to the public in all this is the doubt and distrust of our basic jury system and of our trial and appellate judges that it instills, for, as we all know, it is not lawyers but citizen juries and trial and appellate judges who render and approve the verdicts in our courts.

We have the finest system of justice in the world. The naysayers condemn the inefficiencies and concomitant expense of the system. And unfortunately, the public has begun to believe that those inefficiencies are bad, and that a more efficient system will necessarily be more just. In fact, we all know that it is the inefficiency of the jury process itself that allows it to be just. The jury system intimately involves the citizens of our democracy and has built within it checks, balances and the capacity for change. The Founding Fathers understood that juries were our protection against an unjust, and arbitrary, but efficient system. Nothing has changed in the two hundred years since the Constitution and Bill of Rights were ratified to change this most basic concept.

At the time the Bill of Rights was being considered, Thomas Jefferson stated: "I consider trial by jury as the only action ever yet conceived by man by which a government can be held accountable to the to the principles of the constitution."

Patrick Henry declared: "Trial by jury is the best appendage of freedom" And Alexander Hamilton wrote: "We are told that the founding fathers at the Constitutional Convention concurred in the value they set upon the jury as a valuable safeguard of liberty, and the very essence of free government. All were satisfied of the utility of the institution."

Yet today it is fashionable to denounce trial juries as archaic, expensive and unnecessary. Have these critics forgotten history? Indeed have we lawyers forgotten our roots? Perhaps we should briefly review the origin of trial juries that led Jefferson, Henry and Hamilton to their well founded conclusions.

The antecedents of our jury trial in Anglo‑Saxon history are interesting. The early methods of trial were compurgation or trial by ordeal or wager of law. The plaintiff usually took an oath, often without corroboration, that his claim was valid. The burden was on the defendant, and the number of compurgators that might be required of him would depend on his rank, and the gravity of the case. The compurgators did not have to know or swear to the matters in litigation. Their testimony was confined to the credibility of the oath taken by the party they supported. The penalty for perjury varied from the loss of a hand, to other, occasionally more dire consequences. Compurgation was not abolished by statute in England until 1833, but prior to that it had been supplanted by other forms of trial.

Trial by ordeal is one of the oldest forms of trial. It rested upon the belief in the intervention of the supernatural on the side of right and justice. God would protect the innocent. Every case was either right or entirely wrong. There was no middle ground. The tests by ordeal were presided over by the church, and water or flames were used at the trial. The burned member was immediately bound and examined three days later to determine if it was clean or infected.

Trial by ordeal of the Cross required that parties stand before a crucifix with outstretched arms. The one able to maintain this position the longest won. Sometimes, people say, lawyers still try their cases this way. In 1219 Henry III, directed that this method of trial be abandoned in England after Pope Benedict III had condemned trial by ordeal in 1214.

Wager of battle sprung from the belief that the Diety would assure victory to the right side. It, in effect, reduced self‑help to an orderly procedure. Wager of battle was available in most criminal and civil suits. Generally the battle lasted until one combatant was dead or admitted defeat. The struggle might last for an entire day, but if the accuser was not the victor by nightfall he lost his case. Eventually champions were allowed, and when this happened the procedure gained disrepute.

By the beginning of the 13th century juries were being used in criminal cases where the accused asked for it. The jury was representative of the community. Its membership represented the honor and wisdom of the men in the community. At first, the jurors decided cases based on their personal knowledge of the facts, and could be punished for an erroneous verdict. Only later were jurors chosen for their lack of personal knowledge.

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