An earlier blog post talked about ‘straw men’ and compurgation; and to continue in that vein I wanted to say a few words about the origins of the modern jury. The timing for me is quite fortuitous, as I just hosted a small group of law students from Korea. Korea is in the early years of experimenting with the introduction of a jury system for a small number of criminal offenses, and while taking them on a tour of the U.S. district court (where they had occasion to observe a pre-trial hearing for a civil case, as well as testimony in a criminal case) I had ample opportunity to reflect on our use of juries.
Many people cringe at the sight of the ‘jury summons’ they receive in the mail every few years. I have to admit that I have no direct experience with serving as a juror– I’ve been bounced every time, which frequently happens to those with legal training–but nonetheless find the institution fascinating and I hope to have first-hand experience with this someday. The closest I’ve gotten so far is seeing “Twelve Angry Men” several times.
We say that the two most important duties of a citizen are voting and jury duty; yet too many Americans don’t bother with the former and bend over backwards to avoid the latter. I thought it might be instructive to write a few words about medieval juries so as to put the role of juries in historical context. For its origins, we need to go back at least as far as the Norman conquest of 1066. As originally conceived, a jury was a body of men sworn to give a true answer to a question– they essentially provided information of interest to the Crown related to property and questions of law, the best example being the “Domesday” survey of Great Britain completed in the 1080s. Sometimes incorrectly referred to as ”Doomsday Book”, the etymology probably is from the old English word “dom” meaning ”judgment”– and judgment it was, as the tax and property judgments made in it were unalterable and not subject to any appeal!
Juries were therefore tasked with the function of providing the Crown’s representatives with information on a wide variety of matters, such as land ownership, agriculture, the number of sheep or pigs in a county, and to identify suspected criminals for trial by ordeal. With the decline of ordeals after 1215, juries took on an increasingly formalized and important role. Jurors were to be independent neighbors, culled from the area but not having a direct interest in the questions before the jury. Like witnesses and compurgators, jurors were originally expected to know something of the truth of the matter before them– hence the reason for requiring them to come from the same area as the parties. The questions juries were asked could be a question of fact or of law, or of mixed fact and law. They could be asked, for example, to render a verdict under oath as to the names of all landowners in the district and how much land each of them owned; or the names of people suspected of murder or other crimes. This was one of the largest differences between contemporary and medieval juries: namely, that juries long ago were expected to know in advance the circumstances of the particular case in front of them. Other contemporary elements were the same: juries generally consisted of 12 people (although the introduction of women to juries is of recent vintage), were sworn under oath, and were expected to render unanimous verdicts.
By the 14th century it was generally accepted that juries were to work together as one body, with the aim of not only answering questions but in hearing sworn evidence and determining the truth or falsity thereof. Medieval juries typically had a wider range of decision-making then they do today, but the right of juries to vote their consciences, rather than delivering the verdict that was expected, took some centuries to become the norm. For those of you who blanche at the sight of a jury summons, you should know that as courts became increasingly concerned with parties exerting outside pressures and influence on jurors a process of strict sequestration became common. In the modern era, we equate sequestration with sensational trials (like the O.J. Simpson trial), where the media blitz is so extreme that it is considered imperative to keep jurors isolated from it, although sequestration may also be used for other reasons such as to ensure juror safety. During the middle ages, however, jurors were essentially kept as prisoners by the court. In order to ensure they took their role seriously, and to expedite a timely and unanimous verdict, they were typically kept under lock and key during their deliberations and, worse of all, given no ”meat, drink, fire or candle”–meaning they were kept in the cold and dark, unfed, until they reached a verdict! Should the jury not be unanimous, one old practice was to place them together in a cart and ride them through town until such a time as they could all reach a consensus. Juries that issued verdict that did not comport with the court’s interpretation of the facts, or raised the royal ire, could face significant consequences: fines and imprisonment were not uncommon, nor was the early practice of razing the houses of jurors who delivered a ‘wrong’ verdict.
So, next time you receive a jury summons, remember: it’s not that bad!
Incidentally, the Commonwealth (in conjunction with Suffolk University) recently created an 18 minute long Jury Duty Orientation video; my friend Kathleen P. appears as one of the jurors in the front row. You may wish to check it out here: Massachusetts Jury Duty Orientation video.
And Happy New Year!