Robbins: Juries are like a box of chocolates
As that great philosopher and jurist, Forrest Gump, astutely once observed, “Juries are like a box of chocolates. You never know what you’re gonna get.”
But besides the somewhat random nature of who gets called for jury duty, and who eventually gets seated as a juror, it is interesting to ponder how we got here in the first place. While juries are so common to us that we give them little thought — except when one is being empaneled in a high-profile case — like the O.J. Simpson murder trial or the coming tempest of the George Floyd trial — the concept of trial by jury wasn’t always so and is nowhere ordained by the laws of nature.
Sometimes, we like to think, the universe began with us or, in this case, the United States. If you paid attention in high school civics, you likely know that the right to a jury trial in these United States has its origin in the Constitution.
Like a nestling ensconced in the cozy womb of the Constitution, the right is guaranteed by two separate provisions of the U.S. Constitution: Article III, section 2 and the Sixth Amendment. Article III, section 2 provides that “The trial for all crimes shall be by jury and such trial shall be held in the state where the said crimes have been committed.” And the Sixth Amendment holds that “In all criminal prosecutions, the accused shall enjoy the right to a speedy and public trial by an impartial jury of the state and district wherein the crime shall have been committed.”
Although the United States Constitution was a “big bang” in its way, it was in fact, not the Big Bang of either the universe itself or the universe of the law. Long before the colonists were eking out a toehold on the new continent, law had flourished in other corners of the legalsphere, from the Mesopotamian Code of Ur-Nammu chipped out on clay tablets around 2100 BCE, to ancient Rome, to the Magna Carta which flowered on the fields of Runnymede in 1215, and emanating from a thousand other points of legal light.
But what about trial to a jury of one’s peers? If that was not always written in the DNA of law, from what then, did it derive?
Some of our legal predecessors were less than handsome.
Among them were trial by fire, the medieval practice of determining a person’s guilt by having them undergo an ordeal, such as walking barefoot through a field of flames. Between the 15th and 19th centuries, there was the Portuguese and Spanish auto da fe (“act of faith”) whereby civil authorities — generally arbitrarily — determined heresy, guilt, and punishment, including death by burning.
And, in the Mother Country, from the late 15th century to the mid-17th, there lived the Star Chamber which was an English court which sat at the royal Palace of Westminster and was composed of privy counsellors and common-law judges, and became synonymous with social and political oppression through the arbitrary use and abuse of power.
In our own not-too-distant past, think of the Witch Trials in Salem, Massachusetts which, while a trial at least in some respects, failed by a wide margin to be one of one’s dispassionate peers.
Getting from there to here was slow and was certainly not a given.
Our own line sprouted from the loins of the Magna Carta signed under some duress by King John I. The “Great Charter” for the first time encoded the civil liberties of English subjects and guaranteed the two great pillars of democratic society — representative government and trial by jury.
Chapter 39 of the Charter reads, “No mal shall be taken, outlawed, banished, or in any way destroyed, nor will we proceed against or prosecute him, except by the lawful judgment of his peers and by the law of the land.”
There had, however, been earlier forms of trial by jury for centuries — beginning around 2000 BCE, ancient Egyptians adjudicated matters through the Kenbet, which was comprised of eight jurors — four from each side of the Nile. In the 6th century BCE, the Dikastes, in which designated citizens tried and passed judgment on questions of law, became the norm in Greece. The Greek system evolved into Rome’s Judices by the 4th century BCE and it was this system that most gave rise to the first form of juries in England, arriving on British shores with the Roman Conquest. By the late 800s, under the leadership of Alfred the Great, trial by a jury of one’s peers became the norm throughout England.
William Blackstone, the great historian of the English common law, considered the Frankish Inquest, developed in 829 CE as the start of the modern jury system. Created by Louis the Pious, the son of Charlemagne, it was a “jury of administrative inquiry.” Through it, royal rights were determined by a jury of 12 of the “best and most credible men” in the locality. The Frankish Inquest arrived in Britain with William the Conqueror in 1066. Less than two centuries later, the Magna Carta affirmed that trial by jury would be the standard for all subjects of the English — and later British — crown.
So it was a long and winding road to our own right to a trial by one’s peers and a might better than trial by dunking or by fire.
As usual, Gump was right; juries are like a box of chocolates. And we should be thankful that we ended up with the yummy, cream-filled center that we’ve got.