The
right to a
trial by jury is deeply embedded in the American democratic ethos. The
Fifth,
Sixth, and Seventh Amendments to the U.S. Constitution guarantee the
right to a
jury for all criminal cases and in all civil suits exceeding twenty
dollars. In
addition the constitution of each state guarantees a trial by jury. In contrast, England,
Scotland, Wales, and Canada
do not have as liberal a
standard concerning trial by jury. In those countries, persons accused
of nonindictable
crimes-less serious crimes for which the prescribed punishment is
less than
two years in prison---do not have the right to trial by jury. Indeed,
Blackstone, the 18th century English scholar of law, was at pains to
point out
that in English law, trial by jury was a privilege, not a right. These
other
countries also make less frequent use of the civil jury; indeed,
outside North America, the civil jury
has all but disappeared.
Estimates are that 80% of all jury trials worldwide take place in
the United States.
In
the United States,
prospective jurors may be questioned not only on whether they have any
personal
interest in a case, but also about their general beliefs and prejudices
as
well. A judge will excuse anyone whose biased attitudes will interfere
with his
or her duties as a juror. This pretrial phase called the voir dire,
which weeds
out biased jurors, is typically absent in England
and Canada.
Except for special circumstances, questioning jurors about their
beliefs is
forbidden. English and Canadian jurors are more or less randomly
selected from
the jury pool. At one time, American juries were instructed that after
hearing
the evidence, they had the right both to decide the facts of the case
and to
interpret the meaning of the law, regardless of what the judge told
them.
Though this practice has changed in all but two states, American juries
still
have more power and discretion than English and Canadian juries.
American
juries play an important role in deciding whether or not the death
penalty
should be given to persons convicted of first-degree murder.
Additionally,
thirteen states give the jury the authority to prescribe the length of
sentence
for defendants convicted of other serious crimes. When English and
Canadian
lawyers and judges are asked about the American judicial system, they
express
disapproval concerning the powers given to American juries. In their
countries,
juries are far more subservient to judges. Judges alone pronounce the
law and
set sentences.
Since the American jury began as
a direct transplant from Mother England, why did it change? How
did it become
so deeply embedded in American democratic ethos? The roots of the
separate
evolution began in the Colonial period. After the American Revolution,
new
theories of law as well as social and political forces and pragmatic
concerns
had a strong impact on the jury's role, sometimes expanding it and
other times
curtailing it. Even today, the jury is not a static institution but one
which
continues the process of gradual evolution.
While
it is true
that many colonists, including the Puritans and, later, people like
William
Penn, were rebels and dissenters, nevertheless they thought like the
English,
felt an allegiance to the King, and brought with them English customs,
political institutions-and the law. It was natural for the colonists to
model
their laws on those of the mother country. Thus, early Colonial law was
based
upon the English common law and British parliamentary statutes.
However,
England
was a
long way off in the days of sailing ships. The King and his legal
institutions
were distant figures as the colonists had to cope with the special
problems of
an expanding society with uncertain frontiers. One of these
problems was a
paucity of judges trained in law. Another was the tendency of the Crown
to send
over governors and administrators who were greedy and unsympathetic to
the
needs of the colonists, and who frequently treated the colonists as
less than
equal. For this reason, American colonists began to develop their own
perspectives on law and justice rather than to trust poorly trained
judges or
authorities whose interests lay elsewhere. Furthermore, the jury of
peers in
itself became a ready-made vehicle for implementing revolutionary ideas
and
principles, particularly when the needs of new colonists and the
dictates of
the Crown were in conflict. Although the historical records of that
period are
incomplete, there is evidence showing that very early on the jury began
to
acquire a new political significance. This difference from the English
jury was
subtle and largely unnoticed until an eloquent Philadelphia lawyer gave voice to
"the
law of the future" in the trial of John Peter Zenger.
Most
American
history books hail the trial of Zenger for seditious libel in 1735 as
the
leading case for freedom of the press and as an example of a victory of
the
people over an aristocracy. In 1732 William Cosby, the King's appointed
governor, arrived in the Colony of New York. Arrogant, quick
tempered, and
greedy, he quickly managed to alienate the people of New York. Among
other actions, Cosby
dismissed a Chief Justice of the Supreme Court who asserted that a
legal suit
brought by Cosby was improper. Cosby also used his official powers to
support
his cronies against another group in a profitable land speculation
dispute. The
opposition to Cosby organized itself and gained control over the Common
Council
of New York City.
In
1734 the
opposition went so far as to send a representative to England
to
plead for the Governor's removal. Simultaneously, they launched a
newspaper,
The New York Weekly Journal, as a propaganda voice against the New York
Gazette, which supported the Governor. Though the Journal was
published in the
small shop of John Peter Zenger, the effective editor and principal
gadfly was
James Alexander, a lawyer. As the conflict heated up, Alexander used
almost
every section of the paper, including the advertising section, to
criticize and
satirize Governor Cosby and his associates. Alexander's role was hard
to prove
but eventually, charges of seditious libel were laid against the
hapless
publisher Zenger. He spent eight difficult months in jail awaiting
trial while
Alexander continued to stir the populace against Cosby.
Alexander
and
another lawyer, William Smith, prepared to defend Zenger vigorously, as
well as
make the trial an indictment of Governor Cosby and his administration.
Again
Governor Cosby and his associates acted with disdain for fairness.
On a
technicality, the governor had Alexander and Smith disbarred. Zenger
was then
required to petition for a new counsel. Since there were few lawyers in
New York
as experienced
and skilled as Alexander and Smith, he was forced to accept the
"services
of one John Chambers. Chambers was a competent lawyer but unfortunately
was on
the side of the governor. In addition to this tactic of depriving
Zenger of the
counsel of his choice, the clerk of the court produced a list of
prospective
jurors, many of whom were either favorable to the Governor or actually
in his
employ. Fulfilling his obligations to his client faithfully, Chambers
pleaded
not guilty and filed a motion to strike the biased people from the jury
list.
The motion was successful and of the twelve jurors finally selected, at
least
six could be identified as favorably disposed toward the political
faction
opposed to Governor Cosby.
Despite
these
actions on the part of Chambers, Alexander and Smith were not convinced
that he
would put forth the best defense. Thus, in a clever maneuver they
persuaded
Andrew Hamilton of Philadelphia
to defend Zenger. Eloquent, experienced, and always prepared, Hamilton
was perhaps the best lawyer in the American colonies, When the trial
began in
August of 1735, Hamilton
was sitting among the spectators. The Attorney General read the charges
against
Zenger, and Chambers made his opening remarks. The legal position of
Zenger
appeared weak. Then, dramatically, Hamilton
rose from his chair and announced that he would assist in Zenger's
defense.
The
laws of
libel in 1735 prescribed a very narrow role for the jury, specifically
to
render only a "special" verdict rather than a "general"
verdict of guilty or not guilty. In Zenger's trial the jury's only task
was to
determine whether Zenger had actually published the newspaper. The
question of
the libelousness of the articles printed in it was to be determined by
the
judge. The evidence was clear that Zenger had published the Journal and
the
prosecution's case took less than a day to present. The stage was
set for
Zenger's conviction-except that Hamilton
chose to present some novel arguments to the jury. As historian John
Fiske
stated, Hamilton
argued the case around the "Law of the future" rather than the law of
the day.
Part
of Hamilton's
presentation
to the jury was addressed to the laws of libel. He accepted the English
law
principle that questions of law were left to the judges while the jury
determined only questions of fact, but he asserted that charges of
libel
involved an intertwining of law and fact: What makes a statement a
libel is the
factual question of whether it is a falsehood. To require the jury to
return a
special rather than a general verdict would, therefore, usurp the
rights of the
jury, since it was supposed to decide factual questions. Second, he
suggested
that although the laws of England
might be good laws for England,
they were not necessarily good laws for America where there was
greater
equality between the people and those who governed them. Finally, Hamilton
propounded to
the jury a theory about the relationship between law and politics. It
was not
pan of their English heritage, but it was one with which many New
Yorkers would
be sympathetic. Calling attention to the fact that Zenger was not
dissimilar to
the jurors themselves, he asserted that citizens had the right to
criticize
their rulers and that Zenger was on trial because he asserted that
right.
Central to Hamilton's
theory was the notion that the state existed to protect the liberties
of its
citizens. When the state fails in this regard and the King's
authorities use
their power to destroy individual citizens, the citizens do not need to
obey
these authorities:
When the representatives of a free people are
by just
representations or remonstrances made sensible of the sufferings of
their
fellow subjects, by the abuse of power in the hands of the governor,
they have
declared ... that they were not obliged by the law to support a
governor who
goes about to destroy a province or colony.
One of the
best safeguards
against the King's authorities abusing their power, Hamilton argued, was through public
criticism
such as that in Zenger's Journal.
Chief
Justice
Delancey, presiding over Zenger's trial, took strong issue with Hamilton's
position and
asserted to the jury that they did not have the right to decide the
law. Nevertheless,
when the jury retired, it took only a few minutes to deliberate and
returned a
verdict of not guilty.
Hamilton's arguments were not against
the
King, but rather against those who administered under the King's
authority.
While the genesis of the case was the warring of two political
factions, Hamilton
moved it to the
level of political principle. The lasting significance of Zenger's
trial
resides in Hamilton's
articulation of developing American ideas about the relationship
between state
and citizen-and the place of the jury in this new scheme of thinking.
In Hamilton's
words:
Jurymen are to see with their own eyes, 10
hear with
their own ears, and to make use of their own consciences and
understandings, in
judging of the lives, liberties or estates of their fellow subjects.
Hamilton's arguments about the
relationship
between the law and the role of the jury predated the Declaration of
Independence by four decades and by over five decades the amendments to
the
U.S. Constitution providing for jury trials. In this sense the Zenger
trial
truly was about the law "of the future."
In
the decades
after the Zenger case, political dissent against the distant,
unsympathetic,
and arbitrary mother country increased. As more and more trials having
political
significance appeared in colonial courts, the Crown sought every means
possible
to secure convictions. One of these was the selection of jurors
favorable to
the Crown. As we noted earlier, English courts had long accepted the
notion
that in criminal trials, particularly ones involving defendants with
divergent
political views, it was quite acceptable, even laudable, for the
sheriff to
choose jurors partial to the Crown. It is true that defendants were
allowed a
number of peremptory challenges. They also could challenge jurors on
the
grounds of specific bias, for example, a familial tie or economic
relation to
one of the parties in the case. However, challenges on the grounds of
general
bias, such as attitudes or political views, were not allowed....
Following
complaints by Tory sympathizers that "the examination of jurors is now
more in the hands of the people than ever before," the English
Parliament
was persuaded that the selection of jurors should be regulated by the
Crown.
Hence, in 1774 a parliamentary act was passed that canceled the
Massachusetts
Jury Selection Law, removing jury list selection from town meetings and
placing
it in the hands of the court. After 1774, therefore, the Crown had a
more or less
free hand to compose the jury list so as to favor the Tory cause. But
the
Declaration of Independence was only two years away.
Not
surprisingly, after the
Revolution, the newly independent Americans were very aware of the
importance
of the jury, particularly after their experience with colonial
political
oppression. They recognized the jury as an instrument for the
protection of
individual liberty. Throughout the remainder of the 18th century and
for the
first half of the 19th century, the jury occupied a position of exalted
status
in American thinking. Thomas Jefferson wrote: Were
I called upon to decide, whether the people had best be omitted in !he
legislative or judiciary department. I would say it is better to leave
them out
of the legislative. The execution of the laws is more important than
the making
of them.'
But if there was
agreement as to
the jury's importance, there was clearly I disagreement over the degree
to
which the functions of the jury and procedural safeguards for it should
be spelled
out. In the first draft of the Constitution, there was no guarantee of
jury
trial for civil actions. In one of the Federalist papers, Alexander
Hamilton
went to considerable effort to indicate that the omission was not
intended as a
diminution of the role of the jury: "The friends and adversaries of the
plan of the [Constitutional] Convention, if they agree on nothing else,
concur
at least in the value they set upon the trial by jury."
Ultimately, of
course, the right to a jury trial for civil actions was guaranteed, by
the
adoption of the Seventh Amendment, just as the right to a jury trial in
criminal matters was ensured by the Sixth Amendment.
A
second issue
hinged on the role of the jury to decide the law as well as the facts.
Although
historical records arc sketchy at best. there is some evidence that
juries in
the various colonies had been deciding issues of law well before John
Peter
Zenger's trial. This practice may have initially developed because few
judges
were trained in the law; moreover, the judges held office "not for the
purpose of deciding cases, for the jury decided all questions of the
law and
fact; but merely to preserve order, and see that the parties had a fair
chance
with the jury." In any event, even before the Revolution, John
Adams in
1771 asserted that the jury should ignore the judge's instructions to
them if
these instructions violated fundamental principles of justice:
It
is not only ... (The juror's right. but his duty, in that case. to find
the
verdict according to his own best understanding. judgment, and
conscience, though
in direct opposition to the direction of the coon.
The final draft of the
Constitution was silent about the specific role of the jury. But the
writings
of Adams, Jefferson, Elbridge Gerry, and other framers of the
Constitution made
it clear that they believed that the jury could, and should, decide law
as well
as fact....
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