The Evolution of the American Jury
by Hans & Vidmar (excerpt from Judging the Jury)

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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