The right of an accused person to be judged by a jury of their peers is a cornerstone of our legal system. But where did “trial by jury” come from? Who decided it was better to have a wide range of ordinary people make decisions that can have multi-million dollar verdicts and sometimes even be literally life-and-death, than having that same decision made by a single legal expert?
To understand that, we have to take a brief, but wide-ranging run through legal systems throughout world history.
Institutions in ancient Greece were vital in shaping a wide range of Western institutions, and the law is certainly one of them. A system in Athens had upwards of a thousand people hearing cases, with a majority vote determining the verdict.
The Roman Empire also sought to involve the citizenry in important legal decisions. Rome relied on what they called “tribunals” drawn from the general populace. Depending on the severity of the case, the “praetor” (judge), who served 1 year in their role, might rule alone. But since the praetor would soon be a citizen themselves, they were incentivized to be fair. The most serious crimes were, like in ancient Greece, judged by juries of roughly a thousand people.
It was the Islamic nations, over about 3 centuries leading up to the 1200s, that settled on 12 as being a good number to take an oath and settle a verdict.
That brings us to the England of 1215.
The Magna Carta was a great legal document that protected the civil rights of subjects of the English king. It was the forerunner of the Declaration of Independence in the United States more than 5 hundred years later. One of those civil rights was the right of every accused person to a trial by jury.
There were, unfortunately, attempts to encroach on this right. Henry VIII declared himself Supreme Ruler of England in the 1600s and used a variety of intimidation tactics within the legal system to get his way and erode the value of a jury trial. But the fundamental framework of trial by jury remained and ultimately survived the royal onslaught.
The American colonies, as citizens of the British Empire, had the right to trial by jury. That allowed a journalist named John Peter Zenger to be acquitted of libel charges against the Royal Governor in 1735. The colonial jury acquitted Zenger on the grounds that what he published was the truth.
Zenger’s case had important long-term implications in shaping the development of law surrounding libel and defamation. In the short-term, it had regrettable implications on the right to trial by jury.
King George III, unhappy with Zenger’s acquittal, began cracking down on the rights of the colonies. The long march to the American Revolution had begun, and the suppression of the right to trial by jury was cited as a grievance in the 1776 Declaration of Independence.
By 1787, it was time to draft the U.S. Constitution. The initial draft allowed for jury trials in criminal cases, but not civil ones. While the omission was noted, it didn’t prevent the Constitution from being sent to the states for ratification. State constitutions allowed for jury trials in civil matters.
But the failure to include broad-reaching civil liberty guarantees was a holdup in several states and the issue of trial by jury was one factor. The result is that the first 10 amendments to the Constitution, what we refer to today as the Bill of Rights, were passed.
The 6th Amendment specifically preserves the right to a jury trial in criminal cases. The 7th Amendment does the same for civil disputes.
Juries have been repeatedly protected by subsequent Supreme Court rulings regarding the implementation of these 2 amendments. The most recent noteworthy SCOTUS ruling in this area was the 1968 case of Duncan v. Louisiana, which said that in any case where the accused faces more than 6 months of prison time, the right to jury trial must be respected.
Whether or not juries work well—and how to make them work better—will always be a subject of debate within the legal community. One criticism that has always existed is whether lay jurors possess the competence to rule on cases where complex scientific evidence is introduced and holds the key to the verdict.
The concern over jurors allowing personal biases to influence their thinking is a very serious matter. Race is a common concern in many high-profile cases, as are issues of class, gender and frankly any other way by which a person’s worldview is formed. The result is that jury consulting —helping a lawyer construct the most sympathetic jury possible—has become a huge industry.
But for whatever the flaws of the jury system, it seems to work better than any other idea. Perhaps that’s why civilizations throughout world history have consistently sought to allow accused people to be judged by their own peers.