TRIAL BY JURY
To have a trial by jury is, as a general rule, the right of every
man who sues or is sued in court on a cause of action not of a
kind to be disposed of in a court of equity or admiralty. The
American colonies did not all adopt this mode of procedure at
first, and few of them ever practiced it precisely on the English
plan. In the colony of New Haven there were no juries. In all
the New England colonies, later, there were juries, but verdicts
in civil causes had not the conclusive force given them by the
common law. The defeated party had what was styled the privilege
of a review. This was a new trial before another jury, either in
the same court or a higher one. If he lost his case again, it
was the end of the litigation. If he gained it on the second
trial, the other party could demand a third, and the event of
that decided the cause forever.[Footnote: Bissell _v._
Dickerson, 64 Conn. Reports, 61, 65; 29 Atlantic Reporter, 226.]
In criminal prosecutions a similar right was sometimes conceded
to the defendant in case of conviction.[Footnote: Statutes of
Connecticut, ed. 1715, p. 131.] South of New England there was
no such radical departure from the common law, but there were
before the Revolution variations of considerable
importance.[Footnote: The _Federalist_, No. LXXXIII.]
Instead of sending a case before an ordinary jury, the court has
power, at the request of the parties, to direct a special jury to
be summoned to hear it. This is seldom asked or granted unless
the matter in controversy is of peculiar importance and
difficulty. Such a jury is more carefully selected, with the
assistance of the parties, so as to make it sure that it will be
composed of men exceptionally competent to decide a cause and
such a cause. They are generally paid a larger compensation than
ordinary jurors receive, the parties furnishing the additional
sum required. Prepayment of these sums may be and often is made
a condition of granting a trial before such a jury.[Footnote:
Eckrich _v._ St. Louis Transit Co., 176 Missouri Reports,
621; 75 Southwestern Reporter, 755; 62 Lawyers' Reports
Annotated, 911.]
The requirement of unanimity on the part of the jury in civil
causes, which we have inherited from England, is indefensible in
principle. In practice, it has saved the institution from
destruction. No one would feel himself safe if a majority of
twelve men, of no special training in the study of legal rights,
could strip him of his property. But among that number of
persons there can hardly fail to be one or two of superior
character and intelligence. These, with the aid of the judge, if
he be one who fulfills properly his part of the proceeding, can
generally lead the rest to a just conclusion. If the verdict is
for the plaintiff, they may have to yield to some compromise as
to the amount of damages. Not infrequently this has been arrived
at by calling for the separate estimates of each juror, adding
them together and dividing them by twelve. It is a rough way,
and not the fairest, but the wiser heads may consent to it to
secure the concurrence of the weaker.
In criminal cases, the importance of a verdict to the defendant
is so great that unanimity may well be required. While there is
a legal presumption that he is innocent until found guilty, this
in practice is of little avail to him with the jury. They know
from their every-day observation of affairs that there are few
prosecutions which reach the final stage of a trial on the
merits, under which there ought not to be a conviction.
In several States verdicts in civil causes by a three-fourths
vote are permitted. This radical change is not likely to become
general.
Its best defense is that temptations to corruption are thus
removed. So long as one juror, by refusing to concur with the
rest, whether with or without reason, can prevent a verdict,
there will be defendants seeking to prevent the recovery of what
they know to be a just demand, who will be ready to buy a vote.
In 1899, seven of the bailiffs in attendance on the Chicago
courts were accused of lending themselves to such negotiations,
and twenty men who had been jurors confessed that they had either
taken or been offered bribes.[Footnote: Report of the New York
State Bar Association for 1904, 51.]
The Anglo-American jury is unique because it is nothing unless
unanimous, and because it may render a general verdict, stating
no reasons for the decision, on which a general judgment, save in
exceptional cases, is entered as of course.
In the early judicial history of the American colonies juries
were less under the control of the judge than they are
now.[Footnote: See Chap. XIV.] In some colonies they received no
instructions as to the law, the chance of an unjust decision
being guarded against in civil cases, as previously stated, by an
absolute right in the losing party to claim a new trial before
another jury.
The general tendency of judicial practice in later years has been
to emphasize the influence of the judge upon verdicts. This
often extends to directing a verdict, peremptorily, for one party
or the other, when the law is clear upon the facts claimed or
admitted. Still more often it takes the shape of a caution as to
the weight that can properly be given to certain testimony, or an
opinion as to what really are the controlling sources of
evidence. Without the guidance of an intelligent judge, a jury
would frequently come to unfortunate and even unjust conclusions.
That there should be such guidance is an essential part of the
jury system, and it is generally given most effectually where the
judges are the ablest and the most independent.
The judge has at common law and by practice in most American
States a right in his charge to comment on the evidence and
intimate his opinion as to the weight which should or should not
be given to any particular testimony. It is a right to be
cautiously exercised, for juries are greatly influenced in their
conclusions by remarks of that character. They feel that he is
the head of the court, and there is a certain sentiment of
loyalty to him as well as of respect for any one occupying the
position in which they find him placed by the authority of the
State. Sometimes this power is abused. The judge desires to
indicate a decided opinion. He fears that if he put it in plain
words it might seem so strong as to indicate partiality, and
furnish ground of appeal. He therefore uses language, perhaps in
reference to the credibility of a witness, which looks fair and
even colorless on paper, but by the tone or emphasis in which
some vital word is uttered, or with the aid of a shrug or glance,
carries to those whom he is addressing an unmistakable conviction
that he means it to be taken in a certain sense. Any such
judicial action, however, is rare, and would be looked upon with
disapprobation by the bar.[Footnote: See Metropolitan Life
Insurance Co. _v._ Howle, 68 Ohio State Reports, 614; 68
Northeastern Reporter, 4.]
If the case is one which has been pressed by counsel especially
upon the sympathies of the jury, such as a suit arising out of a
labor strike, or by a widow to recover for an injury resulting in
her husband's death, it is customary for the court to caution
them in their charge that justice and not sympathy is their rule
of duty.[Footnote: Bachert _v._ Lehigh Coal and Navigation
Co., 208 Pennsylvania State Reports 362; 57 Atlantic Reporter,
765.]
The American colonies were settled at a time when the English
criminal code was extremely harsh, and the English judges were
disposed to administer it in such a way as to favor the crown.
If the government promoted a prosecution, there was little hope
for the defendant, except from the jury. The courts held that on
criminal proceedings for publishing a libel it was for them to
say whether the paper was libellous, and for the jury to decide
only as to its publication by the accused. This was the occasion
of the Charles James Fox Libel Act of 1792, and of many
constitutional provisions to the same effect in this country,
under which juries, even in libel cases, can render a general
verdict of Not Guilty.
It was under the influence of these ideas, and in view of the
fact that the colonial judge often knew no more law than the
jury, that it became common in this country either to give a jury
in a criminal cause no instruction as to the law at all or to
charge them that they were judges both of the law and
fact.[Footnote: 2 Swift's "System of the Laws of Connecticut,"
258, 401.] In some of the States, a charge to the effect last
stated is now sometimes required by statute.
A jury trial is a poor mode of doing justice, if there is a rule
of law which, as applied to certain facts, should control the
verdict, unless that rule of law be both stated by the judge, and
so stated as to impress upon the jury that it is their sworn duty
to apply it, if the facts which they may find to exist are such
as to come under its operation. That they should be so
instructed, even if declared by express statute to be the judges
both of the law and the facts, is the prevailing opinion of
American courts and jurists.[Footnote: Commonwealth _v._
Anthes, 5 Gray's Reports, 185; Sparf _v._ United States, 156
U. S. Reports, 51, 71.]
It is of especial importance that the duty of juries to take the
law from the court should be clearly stated to them in a country
of written Constitutions. Most crimes are defined by statute.
It is easy for the defendant's counsel to claim that the statute
on which the prosecution is based is unconstitutional. If it be,
the accused is entitled to an acquittal; but if the jury acquit
him on that ground, and the ground is false, injustice is done.
Any such claim must be disposed of by the court, in order to give
the Constitution its due supremacy.[Footnote: State _v._
Main, 69 Conn. Reports, 123, 132; 37 Atlantic Reporter, 80; 61
American State Reports, 30.]
Mr. Justice Baldwin of the Supreme Court of the United States
came to the bench, in 1829, strongly inclined to minimize the
power of the federal judiciary. In one of his first cases on the
circuit, he charged the jury in a capital case that they were
judges of both law and fact, and if they were prepared to say
that the law was different from what he had stated it to be, were
not bound by the opinion of the court.[Footnote: United States
_v._ Wilson, 1 Baldwin's Reports, 109.] It was not long
before he found himself compelled to retreat from his position.
A man was being tried before him for forging notes of the United
States Bank, and his counsel claimed an acquittal because the law
incorporating the bank was unconstitutional, reading to prove it
the veto message of President Jackson, with the accompanying
documents. To the Jackson Democrats on the panel this was quite
an imposing argument, and Mr. Justice Baldwin was obliged in his
charge to sound the warning that for a jury to exercise the power
of treating an Act of Congress as invalid was virtually to give
us a country without a Constitution and without laws.[Footnote:
United States _v._ Sheve, 1 Baldwin's Reports, 510, 513;
Pennsylvania Law Journal for November, 1846, p. 9.]
In one of the Southern States where it is a statutory right to
demand instructions that the jury are the judges of the law, it
was the custom of a certain trial judge of commanding presence,
when called upon to give them, to say to the jury after he had
done so, rising to his full height, "But, gentlemen, you must
recollect that I have told you what the law that governs this
case is, and to this I am the only witness who has appeared or
could appear."
It was one of the acute observations of Alexander Hamilton that
under our American Constitutions judges are less to be relied on
by one who is attacked by the government, because those who
direct the government are the choice of the people, and whatever
they do is presumably popular. The judiciary, he said, was less
independent here than in England, and therefore we had the more
reason to cling to the trial by Jury and their power to render
general verdicts as our greatest safety.[Footnote: People
_v._ Croswell, 3 Johnson's Cases, 337, 353.]
The States which guard these most closely are those in which
there is the most jealousy of anything like a standing order, and
the widest scope of popular election. Georgia was the State,
among the old thirteen, in which these characteristics were most
marked. Her first Constitution of 1777 expressly threw the power
of determining the law into the hands of the jury in every case,
though they were allowed to ask the judges holding the court for
their opinion, in which case each judge gave his in rotation.
The party who lost his case could demand a new trial before a
special jury. The ordinary jury were to be sworn to bring in a
verdict according to law and the evidence, provided it be not
repugnant to the Constitution. The special jury were to be sworn
to bring one in according to law and the evidence, "provided it
be not repugnant to justice, equity, and conscience, and the
rules and regulations contained in this Constitution, of which
they shall judge." Apparently the meaning of this was that while
the decision of the first jury as to the law could be revised by
a second, that of the second, however contrary to the highest
law, could not be.
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Resort is occasionally had to the assistance of a jury by a court
of chancery for the better disposition of some disputed question
of fact on which the equities of the parties depend. This cannot
(except by force of some express statute) be claimed as a matter
of right. The judge sends the issue to a jury for trial only if
he thinks it would be helpful to him, but their verdict has no
conclusive effect. He can adopt it or ignore it, at his
pleasure.
* * * * *
The selection of jurors is a long process. The general plan is
to commit to some local authorities in each city, town, or county
the choice of a considerable number out of the inhabitants whom
they may think suitable to serve in that capacity; then to have
that list revised by some higher officials or persons specially
appointed by the courts for the purpose, who must strike out a
large part of the names; and finally to have those who are to be
summoned to attend any particular term of court for jury duty
chosen by drawing from the remaining names by lot. In many
States special qualifications as to age, education, and
intelligence are required. Out of the jurors thus summoned to
attend the court, there is a further choice by lot of those to
try each particular case, subject to objections made by either
party to any thus drawn, for proper cause.
The statutes of the United States provide that jurors in the
Circuit and District Courts shall be selected in each State from
those qualified to serve in its highest trial courts, and in
substantially the same manner.
* * * * *
The right to a jury trial is in civil actions often waived by
both parties, in which case the facts as well as the law are
determined by the judge. If not expressly claimed, it is by the
rules of practice in some States treated as waived. The number
of civil causes tried to the jury, taking the country as a whole,
is declining. The decline is generally found to be quite
accurately proportioned to the confidence felt by the bar in the
ability and independence of the judge,[Footnote: See Paper by
Justice Henry B. Brown, in the American Bar Association Report
for 1889, p. 265, on "Judicial Independence."] or perhaps to that
confidence in the case of a former generation. Tradition and
custom have a large influence on whatever pertains to the
practice of law. In several of the States a majority of the
civil causes which might be tried to the jury are not: in
Louisiana very few are.[Footnote: See Chap. XXIV.] The tendency
in England is also toward dispensing with the jury in ordinary
civil trials. Over a million cases are brought every year in the
English county courts, and in not one in a thousand of them is
there a jury trial, although if the matter in demand is over L5
in value either party may claim it.[Footnote: Maitland, "Justice
and Police," 28, 29, 54. For small cases the jury is one of
five, but their verdict must be unanimous.]
Criminal trials, except in case of trivial offenses, it is
generally necessary to hold before a jury, by express provisions
of the Constitution.[Footnote: See Cooley, "Constitutional
Limitations," 389.] During the colonial era the defendant was
allowed in Massachusetts to waive a jury, even in capital
cases.[Footnote: Proceedings of the Colonial Society of
Massachusetts, VI, 95.] Statutory permission to the same effect
has since been given in some States where there is no
constitutional provision to the contrary.[Footnote: State
_v._ Worden, 46 Connecticut Reports, 349.] In civil causes,
the right to demand a jury in petty cases has been restricted in
a number of States.[Footnote: In New Hampshire, for instance, a
constitutional amendment was passed in 1877 denying it in cases
involving less than $100, unless title to land is involved.]
At common law the judges were accustomed and allowed to put great
pressure upon juries, if necessary, to force them to unite in
rendering a verdict. They could be kept together without food or
beds all night, and even carted about from one court town to
another until they were ready to report an agreement. Very
little of this practice remains in the United States. In some
States they are allowed to separate and go to their homes at
night during the trial even of a capital case, and while
deliberating over their verdict they are generally supplied with
food and other comforts.
The right of trial by jury was limited at common law to trials of
what are called "issues of fact;" that is, of the truth of a
statement of material facts made by one party and denied by the
other. If, therefore, in a civil cause a judgment has been
ordered for the plaintiff without a verdict, as where the
defendant has failed to appear and answer, it is for the court to
say for the recovery of what amount of damages the judgment shall
be rendered. It may inquire into this by the aid of a jury, but
such a jury need not consist of twelve. The inquiry may also be
conducted by the judge alone.[Footnote: Dyson _v._ Rhode
Island Company, 25 Rhode Island Reports; 57 Atlantic Reporter,
771.]
In most of our States this common law practice has been
abandoned, and damages, in cases of the kind above described,
would be assessed by a jury of twelve. This is because otherwise
a defendant who did not dispute his liability for the act
complained of and only wished to reduce the amount of damages
claimed in the writ might, after declining to appear and plead,
come forward with a motion to be heard by the court on the
question of damages. A motion of that kind would naturally be
granted, and the effect would be to transfer the decision of the
only actual controversy between the parties from a jury to a
judge. In Connecticut the old practice was maintained until
1907, and the courts held that on the hearing as to the damages,
in actions where there had been no contract between the parties
to fix the rule of assessment, the defendant might show, if he
could, that only nominal damages should be given, because really
the plaintiff had no cause of action at all.[Footnote: Lennon
_v._ Rawitzer, 57 Conn. Reports, 583; 19 Atlantic Reporter,
334.] The result was that many suits arising out of railway
accidents in that State were brought against the company in fault
in other States in which process could be served to compel its
appearance, and where a full jury trial could be secured. The
legislature finally interposed and gave the plaintiff a right to
claim a trial by jury, notwithstanding a default.[Footnote:
Public Acts of 1907, 665.]
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