In suites between man and man, the ancient trial by jury is one of the greatest securities to the rights of the people. Virginia Bill of Rights, 1788
To many, trial by jury is viewed as a recent, but enduring symbol of democracy. Others likely believe this right was first enshrined in our constitution. Few suspect it is a right dating to antiquity. From whence does the jury trial originate? Its roots trace back all the way to Anglo-Saxon practices imported to England following the Norman Conquest in 1066.[1] During the reign of Anglo-Saxon kings rudimentary rules and procedures of “trial” by jury took root. Innovations in this trial system included questioning residents under oath to collect information about local affairs – such as the number of livestock in an area or who owned certain pieces of land.[2] Jurors were later used to settle disputes or decide the outcomes of both civil and criminal trials.[3]
This system served as a source of stability for the country, both politically and socially. Juries consisted of members of local governments charged with investigating allegations to determine whether or not a crime had been committed amongst the community.[4] The Articles of Visitation in England (1194) separated the investigatory/ accusatory roles of jurors from the decision-making roles of jurors sitting on trials – the Grand and Petit juries of modern dual jury system. Today, prosecutors call Grand Juries to investigate allegations of criminal wrongdoing and to determine whether to issue formal charges, known as indictments, against the accused. Petit juries, in contrast, determine whether or not the government has proved, beyond a reasonable doubt, that the allegations (the indictments) are true or not. Not only are petit juries prohibited from investigating the truthfulness of allegations, they are permitted to consider only evidence introduced at trial in reaching their verdicts. In time, the petit Jury began to decide civil cases as well.
Unlike jury selection today (where the “purity” of the jury trial is preserved by eliminating prospective jurors who know either parties/witnesses or have read about the allegations in the media), originally people who had the most knowledge about the dispute, allegations or individuals involved were chosen as jurors. They relied on their own knowledge of the dispute, together with the evidence introduced at the trial, to determine the facts.[5] Indeed, in the fifteenth century, jurors were instructed to make their decisions based on both their personal knowledge of the dispute or allegations, and the evidence presented to them in court.
During the rule of King Henry II, juries were expanded to twelve jurors in an effort to lessen the likelihood of corruption, such as bribery, and intimidation. The concept of twelve self-informing men, basing their decisions solely on the information they knew, slowly progressed. The Puritans brought this elementary framework for jury trials to colonial New England.
Though the jury system in colonial America resembled the jury system used in England, colonial juries eventually fell into disfavor with the British crown for returning verdicts that appeared antagonistic to enforcement of British laws. In response, the British crown began denying colonists the right to trial by jury. Not only did outraged colonists use the usurpation of this basic right to incite the revolution, they even referenced it in the Declaration of Independence among the reasons for severing ties with England (“for depriving us in many cases, of the benefits of a trial by jury”).
The founders of our nation considered the right of trial by jury in civil cases an important bulwark against tyranny and corruption, a ‘safeguard too precious to be left to the whim of the sovereign. Chief Justice William Rehnquist, 1979
In 1787, the Constitution of the United States included a provision for a right to trial by jury in any criminal proceeding brought in any federal court pursuant to Article III. It was not until the ratification of the Constitution, together with the addition of the Sixth and Seventh Amendments, that citizens were guaranteed the right for a trial by jury in civil cases.
While the right to a trial by jury has been well established in the United States for more than two centuries, it is rare in other parts of the world. It was not until the mid-1800s when European nations such as Germany and France started to put the trial by jury system into effect, that other countries warmed to the idea. Even then, jury trials were often reserved for the most serious criminal offenses.
Trial by jury is the best appendage of freedom. Patrick Henry
Today, countries all over the world are implementing the jury trial system, including countries in Asia, Central America, South America, and East Asia. Even Russia and China have made a version of this right available. Some nations have adopted the jury trial system to quiet protests of government policies. Law Professor at UC Santa Cruz, Hiroshi Fukurai, explains, “The jury represents a check on the power of the government to restrict [protesting] voices, and it also is a check on the external influence on their own government.” (McNulty). “Increasingly, the United States is becoming so powerful it can impose its will around the world. People in these nations are arming themselves with the legal apparatus to resist oppression from their own governments, which are vulnerable to outside influence.” (McNulty).
While some countries, like Mexico, make this right available in principle, few citizens are actually afforded this right in practice. Indeed, in Mexico, nearly every criminal case is decided by a judge rather than a jury. (McNulty).
Because the jury system is relatively new it continues to evolve. However, the one constant is the principle that representatives of the community perform the necessary function of checking, even containing, government power.
The jury system has come to stand for all we mean by English justice. The scrutiny of 12 honest jurors provides defendants and plaintiffs alike a safeguard from arbitrary perversion of the law. Winston Churchill
Kevin J. Mahoney is a Cambridge Criminal Defense Lawyer
Bibliography:
American Bar Association Division For Public Education. Dialogue on the American Jury, Part I: The History of Trial by Jury (n.d.): n. pag. ABA.org. American Bar Association. Web.
Carrington, Paul D., The Civil Jury and American Democracy, 13 Duke Journal of Comparative & International Law 79-94 (2003)
Cohen, Jerome A. “A “People’s Jury” Trial For China’s Criminal Defendants?” US-Asia Law Institute. New York University School of Law, 14 Nov. 2007. Web. 24 June 2014.
Gorphe, Francois, Reforms of the Jury-System in Europe: France and Other Continental Countries, 27 J. Crim. L. & Criminology 155 (1936).
“History of Trial by Jury.” English Legal History. N.p., 10 June 2013. Web. 24 June 2014.
Lloyd-Bostock, Sally & Thomas, Cheryl, Decline of the “Little Parliament”: Juries and Jury Reform in England and Wales, 62 Law and Contemporary Problems 7-40 (1999)
McNulty, Jennifer. “Nations Embracing Jury System as Part of ‘wave of Judicial Reform,’ Says UC Santa Cruz Expert.” UC Santa Cruz News. N.p., 14 Nov. 2007. Web. 24 June 2014.
Tokmakov, Sergei. “Jury Trials in Modern Russia.” ISCIP. Boston University, 28 Jan. 2010. Web. 25 June 2014
[1] Carrington, Paul D., The Civil Jury and American Democracy, 13 Duke Journal of Comparative & International Law 79-94 (2003)
[2] American Bar Association Division For Public Education. Dialogue on the American Jury, Part I: The History of Trial by Jury (n.d.): n. pag. ABA.org. American Bar Association.
[3] Lloyd-Bostock, Sally & Thomas, Cheryl, Decline of the “Little Parliament”: Juries and Jury Reform in England and Wales, 62 Law and Contemporary Problems 7-40 (1999)
[4] Carrington, Paul D., The Civil Jury and American Democracy, 13 Duke Journal of Comparative & International Law 79-94 (2003)
[5] Ibid.
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