The Volokh Conspiracy

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The uncivil jury, part 3: The perils of jury trial, efforts to control juries, and the deceptive allure of nullification


The previous post described the origins of the jury, the limitations of the common law system, and the consequent necessity of an alternative. As I discussed, the main alternative was Chancery, whose procedures were drawn from church courts developed on the continent of Europe. The procedures of Chancery, together with the substantive law it applied, were known in England as equity.

In this post, we turn to the advent of jury trial. Jury trial brought with it a fascinating new set of problems: jury control and jury nullification.

The previous post stated that the jury was originally self-informing. Jurors came to court knowing their verdict, without any instructional proceeding. This was possible because almost all jurors came from small, tight-knit villages in which everyone knew everyone else's business.

That state of affairs did not survive the greatest catastrophe of the age: the Black Death. In little over a year, from 1348 to 1349, the bubonic plague is estimated to have killed between 30 and 40 percent of the population of England. [See John H. Langbein, Renée Lettow Lerner, and Bruce P. Smith, History of the Common Law: The Development of Anglo-American Legal Institutions 225 (2009).] In the aftermath of this almost unimaginable death, to put it gently, society changed. The mobility of labor greatly increased; persons were no longer tied to the land and didn't necessarily know their neighbors or local events well. Jurors could no longer be counted on to come to court knowing what to say.

So a method had to be found to instruct the jurors about what had happened. That method was oral trial, presided over by a royal judge. The method could hardly have been written evidence, as in Chancery or on the continent, because few jurors could read.

But if the judge and the jury heard the same evidence in the case, a new set of problems opened up. The judge might disagree with the jury. Bribery or intimidation of jurors, ignorance, confusion, or willful disregard of fact and law might be revealed. Judges began to take steps to control juries.

Judges developed many means to do so. The most powerful and enduring tool English judges had was summing up and commenting on evidence. Judges could and did give their opinion of how a case should be decided, and sometimes used strong language in doing so. In most cases, jurors were grateful for the judge's guidance.

English judges retain strong powers to comment on evidence today. As long as the judge makes clear that the facts are for the jury to decide, the judge may and sometimes does give an opinion on the case.

In civil cases, judges also began to grant motions for a new trial, on the ground of verdict against law and evidence (that is, the court believed a jury had decided the case wrongly). This was done first in cases concerning amounts of damages, because it was easier to see that a jury had gone wrong. But by the late 18th century, ordering a new trial had spread to all kinds of cases and issues. This could be done either by the trial judge or by the full court sitting, in effect, as a court of appeal.

Lord Mansfield, Chief Justice of King's Bench, explained in 1757 that the ability to order a new trial was essential to civil jury trial. He should have known, because he presided over thousands of jury trials. He gave a list of reasons why juries might reach the wrong verdict without corruption or bad intention. These included jurors having heard about the case before trial and being biased without knowing it, misunderstanding complicated facts and law, and getting distracted during lengthy testimony or forgetting it. [See Bright v. Enyon, 1 Burr. 390, 393, 97 Eng. Rep. 365, 366 (K.B. 1757).]

New trial as a method of jury control had the benefit of seeming to preserve jury power, as the judge was simply handing the case to another jury. But it was an expensive method, as the whole case had to be tried over again. This remedy became a significant contributor to the inefficiency of jury trial.

Jurors did not always welcome the guidance of judges on matters of fact and law. Particularly in cases involving controversial political matters, jurors sometimes disobeyed judges and nullified the law. In England, this happened mainly in criminal prosecutions for seditious libel (criticism of the government, whether true or not) and religious dissent. The jury in effect acted as a procedure that protected substantive rights—to freedom of expression and free exercise of religion—that were formally weak or nonexistent. These substantive rights, of course, were later specified in the First Amendment to the U.S. Constitution.

Civil juries also were instrumental in curtailing government power, as when they awarded large damages against government officials for trespass in conducting searches for and seizures of seditious writings. In those cases, juries were protecting substantive rights that later were embodied in the U.S. Constitution's Fourth Amendment, prohibiting unreasonable searches and seizures.

Before we start cheering wildly for the jury, we have to be careful to keep in mind a crucial distinction.

These cases were either criminal cases, or suits against government officials. They were not civil cases involving a dispute between two private parties. The problem is that the adulation of the jury caused by its role in protecting substantive rights in certain types of cases spread to other kinds of cases as well. Although the jury might play a role in limiting government power in a case involving the government, it does not play the same role in deciding a private dispute.

Nevertheless, 18th century writers tended to glide over this vital distinction. Blackstone, writing in the middle of the 18th century, could hardly control his enthusiasm for the civil jury. He even apologized to readers for going on too much about it. I defy anyone today to read his chapter on the civil jury [3 William Blackstone, Commentaries *349-*385 (Chapter 23)] without wincing or laughing. "The principal bulwark of our liberties," "a privilege of the highest and most beneficial nature," "the glory of English law," these titles and more he heaped on the civil jury. He never acknowledged the huge power English judges had over verdicts in private disputes, though of course he knew about it. Disingenuous rhetoric about the jury started early.

Nowhere was this adoration of the jury more exalted than in the American colonies. Americans were aggrieved that they lacked self-governance, and the jury was a way to get some measure of colonial representation in government. (For exactly the same reason, under the British Raj in India, Indian elites praised the jury. See Mitra Sharafi, Law and Identity in Colonial South Asia 202-05 (2014). Soon after independence, however, India abolished jury trial.)

In America, both criminal and civil juries proved useful in nullifying hated British laws. On the criminal side, colonial juries, even more than their English counterparts, nullified laws against seditious libel. The acquittal in 1735 of the printer John Peter Zenger, charged with seditious libel against the governor of New York, shone in American memories. As tensions with Britain built, the civil jury played a prominent role by nullifying the despised customs taxes. Colonial merchants sued royal customs inspectors for trespass and won large verdicts from juries. In exasperation, one colonial governor of Massachusetts wrote that "a trial by jury here is only trying one illicit trader by his fellows, or at least by his well-wishers."

These civil jury verdicts clashed with decisions upholding customs taxes by the courts of admiralty. Courts of admiralty sat without juries, and their procedures resembled those of Chancery. Colonists viewed the expanding jurisdiction of the juryless courts of admiralty as a major grievance. Colonial representatives complained about this expansion in the Stamp Act Congress of 1765 and again in the Declaration of Independence.

Once more, we must pay attention to the nature of these cases: They were either criminal, or a suits against government officials. They were not private disputes.

Given these circumstances, it's not surprising that as soon as Americans declared independence and drafted new state constitutions, they put in rights to jury trial. In the heat of revolutionary fervor, the jury, both civil and criminal, became enshrined as a constitutional right.

But revolutionary fervor does not last forever. At some point, successful revolutionaries have to govern. Prominent Americans soon came to regret civil juries and nullification. These doubts about civil juries, and efforts to circumvent them, are the topic of the next post.