Trial By Jury

Trial By Jury The seeds of the jury system were sowed in common‐law England. From England, the jury migrated to America. While the jury has taken root and prospered in American soil, it has withered in its original home.

In the United States, the right to jury trial is guaranteed by Article III and the Sixth, Seventh, and Fourteenth amendments to the Constitution. As a result, the jury is largely immune from legislative abolition. In England, no such constitutional protection is available; Parliament is free to abolish jury trials at any time, and it has. In English civil trials a jury is now available only in actions for fraud, libel, slander, malicious prosecution, and false imprisonment—trials that, though high in notoriety, tend to be low in frequency. The picture in criminal law is not much brighter. In Magistrate's Court, where the overwhelming bulk of cases are disposed of, there is no right to a jury trial.

By comparison, in the United States a jury trial is constitutionally available in any nonjuvenile criminal prosecution where the potential penalty is in excess of six months (Baldwin v. New York, 1970) and in a federal civil case where more than twenty dollars are in controversy (Seventh Amendment). State constitutional provisions provide comparable protection. In fact, most criminal and civil cases are disposed of by guilty pleas and settlements (see Plea Bargaining).

Why has the right to trial by jury taken such disparate paths in England and the United States? The answer may lie in common ground, for aspects of the jury that are seen as strengths in the United States are viewed as weaknesses in England. The abolition of the jury in civil trials in England was attributable to several factors. There was concern, for example, that juries were time‐consuming and costly. There was also dissatisfaction with the vagaries of damage awards. A mathematical formula was substituted for the jury's deliberations on damages—a formula with multipliers, multiplicands, and resulting awards far less than would be expected from a jury.

In the United States, on the other hand, the ability of a jury to individualize damages, to take pain and suffering into account, to adjust for local living conditions, and to award punitive damages in some instances are seen as virtues. One Oklahoma court, in holding that a prospective juror who had for years been suffering from the results of an accident had been improperly excused from a jury, opined that a juror who had “experienced a good deal of pain” would help the jury reach a just result and, indeed, conceivably could be “the only one to fully understand and properly evaluate the pain element of plaintiff's damages” (Brown v. Oklahoma Transportation Co., 1978, p. 598). Similarly, a jury, because it is drawn from the community, can take into account the costs of living in a particular area, something that the English mathematical formula cannot adequately capture.

In criminal cases a concern for certainty has also led to calls for the jury's abolition in England. A criticism made of English juries is that they too often reach “perverse” verdicts. The term “perverse” is apparently used to signify a verdict with which the speaker, usually a government official, does not agree. The assumption of the critics seems to be that the sole function of the jury is to determine factual guilt. But this cannot be so. Otherwise, cases in which there were no disputed facts would not reach the jury. A judge may direct a verdict of acquittal, but in neither England nor America can a judge direct a jury to return a verdict of guilty, no matter how strong the evidence of factual guilt.

A jury in a criminal case does far more than decide issues of fact. It has the power to extend mercy where mercy is called for, and to mete out individualized justice. It has the power, although not necessarily the right, to nullify—that is, to return a verdict of not guilty even though a strict application of controlling legal principles to the facts would seem to require a verdict of guilty. It may decide, as in the case of a mercy killing, that the law was not intended to apply to such a state of facts and that to return a verdict of guilty would be unjust. Or it may decide that the law itself is unjust. Thus it might acquit where a defendant is charged with violating a law requiring enforced segregation of the races. It may also decide to acquit where the prosecution or the police have behaved in a reprehensible manner, as where the defendant has been beaten by the police or where the police have unfairly, in the jury's eyes, entrapped a defendant into committing a crime.

The strength of the jury lies in the fact that it is not totally circumscribed by legal rules; and that it has the practical power to do what is right, and not just what is technically required by law. While this power may on occasion have been abused, its proper exercise presents the jury in its finest light. The potential for abuse can and should be corrected by greater care in the selection and instruction of juries, but such potential may be an acceptable price for providing the jury the freedom to do justice in the individual case.

See also Grand Juries; Petit Juries.

Bibliography

James J. Gobert , The Jury on Trial: A Political, Philosophical, and Psychological Examination of the Jury (1993).
Harry Kalven and and Hans Zeisel , The American Jury (1966).

James J. Gobert