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By Gregory Haubrich
Attorney At Law
The jury and the jury system are the most important democratic institution we have. When you vote for President, you are one of perhaps 100 million. When you hear evidence and vote in a jury, you are one of twelve. Since you may be deciding the fate of a person accused of murder, or whether an enormous insurance company is liable for a person’s injuries, you have more power and influence as a juror than you could ever have as a voter.
It wasn’t always like that. In the Age of Kings, rulers decided what was right, what was wrong, who would get punished, and who would pay. In Medieval Europe, including England, accused criminals were judged through “Trial by Ordeal”. There were variants, all of them horrifying. If you could walk nine feet across glowing fire without injury you were innocent because God performed a miracle to protect you: otherwise, execution by axe. In another version, an accused would be thrown into a river with a stone tied around his neck and his hands and feet bound. If he floated, he was innocent; if he (or she) drowned, the suspicion of guilt was vindicated.
When the Vikings invaded and inhabited parts of England they brought along a tradition of councils. Elders schooled in the old ways, traditions, stories, and rules would listen together and reach decisions about legal disputes and crimes. The Normans, who invaded England in 1066, brought with them a tradition of councils to advise the ruler about legal matters. Kings were dependent on the loyalty of their nobles, and gradually they began to form groups of landowners and nobles to advise them on legal matters. However, the king or noble still made the decision, not the advisers. You may have seen the movie “Star Chamber”. It’s based on historical if ancient fact that nobles and judges would get together secretly and decide cases. No matter what a jury of civilians did, the decisions of the Star Chamber overruled them all.
As juries developed, they were charged with investigating matters; they were also required to go out and find the evidence themselves, and then be the judges of the evidence. In other words, they were supposed to be investigators, prosecutors, and judges of the case. If you have heard of the Inquisition, you understand the problem.
Juries were established at common law in England as the arbiters of facts by the 1600s. Judges delivered the law, and juries applied the law to the facts and made decisions.
But, there was still a little bitty problem: if the King didn’t like the jury’s decision, he could take away their land. Jurors were kept inside their room of deliberation without food, water, or sanitation facilities. Until the late 1700s if a juror displeased the King, he could be dispossessed of everything he owned and his family relegated to the poor house. And yet, some jurors still defied the King, and ruled against the Crown.
The jury tradition was imported to America in each of our original colonies which became states of the United States. Even California and Louisiana — whose laws are based on the Napoleonic Code instead of English Common Law — have juries. In fact, they are required to, since the 7th Amendment to the Constitution states that a person accused of a felony or in a dispute in excess of $20.00 has a right to have a jury try the case.
Why did the “Founding Fathers” insist on the right to trial by jury? Because it is the conscience of the community and an absolute bulwark against arbitrary rule by government:
THOMAS JEFFERSON (1789): “I consider trial by jury as the only anchor ever yet imagined by man, by which a government can be held to the principles of its constitution.”
JOHN ADAMS (1771): “It’s 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 court.”
John Adams, who was a GREAT lawyer (remember he defended the British accused of murder in the Boston Massacre), argued for “jury nullification”, a concept that has gotten lost in our system today. Jury nullification is the idea that a jury can disagree with a law, in fact can find the law to be wrong. The judge cannot go inside the jury room and tell them what to do. He or she must essentially abide by their decision even though the judge may have decided the case a different way.
Now do you see why the jury is so powerful and important to our system? Coming up next: efforts of the rich and powerful to take the protection of the jury away from the American people and specifically Oklahomans. Tune in next week…