Importance of Juries, pt 1

May 5, 2016

On the Importance of Juries, Part I.

The right of trial by jury is one of the jewels of the American system of government. For hundreds of years the right of trial by jury has been seen as a check, not only on the power of government; but also on the influence of the wealthy and powerful, or in today’s parlance, the 1%.

Historically, the Crown’s efforts to restrict and limit the right of trial by jury in the Colonies were an important part of the events which lead to the American Revolution.

The right of trial by jury is so important that it is guaranteed in the Bill of Rights.

And yet today, fewer and fewer lawsuits are resolved by trial before a jury. Steve Susman, the noted trial lawyer, is so concerned about the vanishing jury trial that he has created the Civil Jury Project, in partnership with New York University School of Law to study this phenomenon.

But why? Is the jury trial worth saving?

The Founder Fathers certainly thought so. And so does United States Senator Sheldon Whitehouse. Senator Whitehouse wrote a remarkable law review article, “Restoring the Civil Jury’s Role in the Structure of Our Government,” published in the William & Mary Law Review, in 2014.

Roots in English Law

Trial by jury is old. It fact it is one of the earliest forms of government that still exists. And not only that, it is one the most direct forms of government that exists.

The civil jury trial is indeed a form of government. It has its roots in the old English common law, and was created as a way to resolve disputes, rather than by duels, or blood feuds.

Instead,jury trials meant that disputes would be resolved by the community – by a group of citizens from the community who would, together, decide where the truth lay. And more – that jury’s verdict would have the force of law: The verdict would be an end to it – no more recourse to broadswords, or pistols. The jury had spoken, and as one legal scholar said, “ the law must of course redress it.” So a jury verdict was given the force of law, and the sheriffs and bailiffs would see that the verdict was honored and enforced.

The famous legal scholar Sir William Blackstone (1723-1780) gave several reasons why the jury was, as he put it, “the glory of the English Law:”

First, all citizens stand equal before the jury.

Second, “the power exercised by the jury properly belongs to the the people as a whole, not to a wealthy few, and the the jury is thus a fundamentally democratic institution.”

Third, juries are insulated from corruption. As Whitehouse puts it, paraphrasing Blackstone, “the power of the jury depends on the inability of powerful individuals to tamper with it.”

And finally, unlike many other provisions of law designed to protect people from the abuse of power by government, the civil jury defends the individual against the “more powerful and wealthy citizens.”

Aren’t those reason still valid today?

From its early roots in England, the jury was transplanted to the Colonies, very early on, long before the Colonies declared their independence. By 1624 juries were available for all cases in Virginia. Massachusetts introduced jury trials in 1628; Pennsylvania by 1682. Eventually, all of the Colonies recognized the right of trial by jury.

The Colonists Fought to Preserve Jury Trials

In the years before the Revolutionary War, as matters between the Colonists and England deteriorated, the Colonists fought to preserve the right to trial by jury. The British authorities tried to divert judicial business away from juries, and the Colonies complained. In 1765, the Stamp Act Congress, which had gathered to protest the Stamp Act, declared that “trial by jury is the inherent and invaluable right of every British subject in these colonies.”

In fact, the British attack on the right of trial by jury was one of the important factors leading to the Revolution. In 1775, the Second Continental Congress, declared that the colonists had been deprived of the “accustomed and inestimable privilege of trial by jury, in cases affecting both life and property.”

Throughout the period leading up to the Revolutionary War, “the focus on the jury was intense. In 1776, the Virginia Declaration of Rights, for example, declared: “That in controversies respecting property, and in suits between man and man, the ancient trial by jury is preferable to any other and ought to be held sacred.”

Even the Declaration of Independence listed deprivation of the benefits of trial by jury as one of the ways by which King George III had treated the Colonists unfairly.

After Independence

After independence, the States affirmatively protected the right of trial by jury. The New Jersey Constitution of 1776, for example, provided that “the inestimable right of trial by jury shall remain confirmed as a part of the law of this Colony, without repeal, forever.” The constitutions of Pennsylvania, Georgia, New York, Vermont, Maryland, Massachusetts, Delaware, North Carolina and South Carolina all protected the right of trial by jury in civil cases.

And although the Articles of Confederation did not mention the civil jury, the issue “figured prominently” in the creation and adoption of the Constitution and the Bill of Rights. The Constitution came into force in 1789. It provided for jury trials in criminal cases, but did not mention civil juries – lawsuits between people. Immediately, this omission triggered what one commentator has called “a “firestorm of protest.”

Echoing what Blackstone had written, one writer highlighted the importance of the civil jury as a way of ensuring a level playing field:

The trial by jury is very important in another point of view. It is essential in every free country, that common people should have a part and share of influence, in the judicial as well as in the legislative department…. The few, the well born, etc., . . . in judicial decisions as well as in legislation, are generally disposed, and very naturally too, to favour those of their own description.

Trial by jury, then was seen as a way to limit the bias that the wealthy and powerful would naturally have in favor of their own kind; and would ensure that every person to a lawsuit was treated equally and impartially.

Another writer asked how, without a jury, could justice be found “from a lordly court of justice, always ready to protect officers of government against the weak and helpless citizen?” He went on urge his fellow citizens to “never consent to part with the glorious privilege of trial by jury, but with your lives.”

In 1789, James Madison proposed a number of amendments to the Constitution, including one to explicitly preserve the right of trial by jury in civil actions. By December 1791, the States had ratified the ten amendments to the Constitution, now known as the Bill of Rights.

And so, the right of trial of jury was guaranteed and protected in the Bill of Rights. The seventh Amendment provides that “In suits at common law, where the value in controversy shall exceed twenty dollars, the right of trial by jury shall be preserved, and no fact tried by a jury, shall be otherwise re-examined in any court of the United States, than according to the rules of the common law.”

Trial by jury has been a recognized and protected right in the United States since that time.

The Attack on the Jury Trial

Maybe because it holds wrongdoers accountable; maybe because the jury ensures that everyone – rich and poor alike – is treated equally; whatever the reason, recent decades have seen as concerted attack on the jury trial.

Here Whitehouse puts it very well:

The civil jury’s role as a political institution that enables direct citizen engagement in government has made it a natural target of the most powerful elements of our society. . . Curbing ‘invasion of another’s right’ by the powerful is its very function. Perhaps unsurprisingly then, in the last forty years as corporations have more and more become the “most powerful individuals in the state,” the civil justice system as a whole and the civil jury particularly have been the targets of a sustained attack by corporations.

Whitehouse offers several reasons why this has happened. “The immediate corporate wish is to reduce liability exposure. More broadly, big corporations do not want to be answerable to institutions of government they can only influence through argument and on terms of equality.”

This last point is critically important. With the ability to use money to influence elections, and to lobby, the corporate interests can influence the actions of the legislative bodies, and the executive branch. A jury, however, can’t be bought. It can only be persuaded, by law, reason, argument and evidence.

And yet, for the past forty or so years, large corporate and business interests have waged an on-going campaign to attack and weaken the entire civil justice system, and the right of jury trial in particular. This campaign has been waged in state legislatures, Congress, judicial elections, and litigation. It has been waged in media and advertising too.

Sadly, as Senator Whitehouse notes, “Too frequently, this campaign has succeeded, leaving Americans without redress and eroding the civil jury as a core component of our system of government.”

In the next part of this article we will look at this campaign against the jury, and consider how and why the jury trial may – and indeed, must- be preserved.

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