LEARNING
LEARNING FROM
FROM THE PAST?
PAST? OR DESTINED
DESTINED TO REPEAT
PAST
PAST MISTAKES?:
MISTAKES?: LESSONS
LESSONS FROM
FROM THE ENGLISH
ENGLISH LEGAL
LEGAL
SYSTEM
SYSTEM AND
AND ITS IMPACT ON
ON HOW
HOW WE
WE VIEW
VIEW THE ROLE OF
OF
JUDGES
JUDGES AND
AND JURIES TODAY
TODAY
ANGELA M. LAUGHLIN*
LAUGHLIN'
ANGELA
"History informs
informs us of past mistakes from which we
we can
can learn without
without
repeating
It also inspires us
us and
and gives confidence
confidence and
and hope
hope bred
bred of
of
repeating them. It
-William
victories
victories already won."
won."
-William Hastie
Hastie
"The
''The best administration
administration of
of justice
justice may
may be
be most
most safely
safely secured
secured by allowing
allowing
the representation
representation of all classes
classes of the people
people in
in courts
courts of justice."
justice."
-Lelia Josephine
Josephine Robinson
Robinson
INTRODUCTION .....................................................
PART I.
I. INTRODUCTION
...................................................................................... 358
358
PART II. EVOLUTION
EVOLUTION OF
OF THEJUDGE
THE JUDGE AND
AND JURY
JURY IN
IN THE BRITISH
BRITISH
A
DVERSARIAL SySTEM
SYSTEM .......................................................
360
ADVERSARIAL
........................................................................................... 360
A
EDIEVAL O
RIGINS ....................................................
A.. M
MEDIEVAL
ORIGINS
.................................................................................... 360
360
B. ASSIZE
ASSIZE COURTS
COURTS THROUGH
THROUGH THE 18Th
18m CENTURY
CENTURy ...............................
..................................... 363
363
ROLE OF OTHER
OTHER PUBLIC OFFICIALS
OFFICIALS.......................................
........................................................ 368
368
C. ROLE
m CENTURY
17Th
D. CHANGES
D.
CHANGES AT THE TURN
TURN OF THE 17
CENTURy ..............................
................................... 368
368
Rew ards .....................................................
1)
1) Statutory
Statutory Rewards
...................................................................................... 369
369
369
P ardon s ........................................................................................................
.............................................................
2) Pardons
369
D efense Counsel
C ounsel .....................................................
3) Defense
........................................................................................ 370
370
374
PART III. M
ODERN TRIALS
...................................................
MODERN
TRIALs ..................................................................................
O LE OF
O FJUD
G ES ..........................................................................................
......................................................
A. R
A.
ROLE
JUDGES
375
JURY .....................................................................
.............................................
B. ROLE OF THE MODERN
MODERN JURy
376
LEARNED ............................................................
.........................................
379
IV. CONCLUSION:
CONCLUSION: LESSONS LEARNED
is
,* Associate Professor of Law, Texas Tech University School of Law. This article is
Judge Robert E.
E. Keeton of the United States District Court for the District
the late Judge
dedicated to the
of Massachusetts:
Massachusetts: a great jurist, scholar, and mentor. I would also like to thank my colleagues
Professor Jennifer Bard, Professor Kim Phillips, and Dr. Natalie Turenko, as well as my
research assistant Zac Cornish, for all of their help on this article.
357
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PART I. INTRODUCTION
INTRODUCTION
PART!.
Under our Anglo-American adversary trial system, a party's counsel has the
primary responsibility for finding, selecting, and presenting evidence. The
may
Federal Rules of Evidence are silent on the issue of whether the jury may
questioning of witnesses, and this practice is typically left up
participate in the questioning
court.' The Federal Rules of Evidence do, however,
to the discretion of the court.!
grant
judges
the
power
to call and question witnesses.22 Under the Federal
grant judges
Rules and federal case law, a trial judge has the discretion to examine any
witness to clarify testimony
testimony and to bring out needed
needed facts that have not been
been
elicited by the parties. 33 Judges must continue to avoid extreme exercises of the
power to question and avoid the appearance of favoring one side over
prosecutor. 55
advocate or aa prosecutor.
another.4 A judge must never assume the role of an advocate
another.4
demeanor and are
Research shows that jurors may be sensitive to a trial judge's
judge'S demeanor
more likely to be influenced if the judge's demeanor
more
demeanor suggests her view of a
witness's credibility or of a litigant's position. 66 Serious problems
problems arise when a
1. See United
Cit. 1992) (allowing the
United States
States v. Sutton, 970 F.2d 1001,
1001, 1003 (1st Cir.
practice of
of reading
juror submitted
practice
reading juror
submitted question and commenting that "[a]lthough
"[a]lthough we think that this
practice may
may frequently
frequently coutt
court unnecessary
unnecessary trouble,
we find
find no
no error
error in the circumstances
practice
trouble, we
circumstances of this
Cir. 2000) (holding that it was not
case."); United States v. Collins, 226 F.3d 457, 464 (6th Cit.
automatic reversible
automatic
reversible error for the court
coutt to solicit
solicit questions from the jury before each witness
left
stand); United
United States
v. Hernandez,
Hemandez, 176 F.3d 719, 724-25 (3d Cir.
Cit. 1999)
left the
the stand);
States v.
1999) ("Allowing
jurors to
to pose
during aa criminal
criminal trial is a procedure
jurors
pose questions
questions during
procedure fraught with perils. In most cases,
the game
not be worth
worth the
the candle. Nevertheless,
Nevertheless, we
we are
are fully
fully committed
committed to the principle
the
game will
will not
that trial
should be
trials.'); but if
trial judges
judges should
be given
given wide latitude to manage trials.");
if. United States
States v.
that
Thompson,
court's inviting
Thompson, 76
76 F.3d
F.3d 442, 449 (2d Cit.
Cir. 1996) (disapproving of the lower
lower coutt's
inviting jurors
jurors to
question
question each witness).
2.
EVID. 614. See also FE'D. R.
2. FED.
FED. R. EVID.
R. EVID.
EVID. 706:
The
court may on
The coutt
on its
its own motion or on the motion of any party
party enter
enter an
order to show cause
order
cause why
why expert witnesses should not be appointed, and
and
may request
request the
may
the parties
parties to
to submit
submit nominations.
nominations. The court
coutt may appoint any
expert witnesses
witnesses agreed
and mqy
may appoint
appoint expert
expert witnesses of
of
expert
agreed upon
upon by
by the
the parties,
parties, and
its own
own sekction.
selection.
Id (emphasis added).
3.
EVID. 614(b);
614(b); see
3. FED.
FED. R.
R. EVID.
see United
United States
States v.
v. Green,
Green, 293 F.3d 886,
886, 892-93
892-93 (5th
(5th Cit.
Cir.
2002);
2002); United
United States v. Reyes,
Reyes, 227
227 F.3d
F.3d 263, 265
265 (5th Cit.
Cir. 2000).
4.
Donald M.
Thomas Jfferson's
4. Donald
M. Middlebrooks,
Middlebrooks, Retviving
Reviving Thomas
Jefferson's Juy:
Jury: Sparf
Sparf and
and Hansen
Hansen v.
v.
United
States Reconsidered,
HIsT. 353, 386
Reconsidered, 46 AM. J.J. LEGAL
LEGAL HIST.
386 (2004) ("Federal
("Federal judges
judges have always
United States
had
on the
the evidence
evidence and
and even to
to express an opinion
opinion about the facts as
had the
the right
right to
to comment
comment on
long
long as
as itit isis clear the jury has
has the
the final word.').
word.").
5.
Green, 293
investigatory power
5. Green,
293 F.3d
F.3d at
at 893
893 ('The
('The judicial
judicial investigatory
power is
is to
to be
be used
used to
to help
help the
jury
or to confuse
confuse the
jury understand
understand the evidence;
evidence; the court
coutt must be careful
careful not
not to express
express aa bias
bias or
roles
roles of
of the judge
judge and prosecutor.").
prosecutor.").
6.
Pinard, Umitations
Limitafions on Judial
6. Michael
Michael Pinard,
Judicial Activism in Criminal
Criminal Trials,
Trials, 33 CoNN.
CONN. L.
L. REV.
REv.
243,
257 (2000).
243,257
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]Lmningfmm the Past?
Pait?Or
OrDestined
Detnedto Repeat
R~eatPartMistak&?
Leaminl!..from
Past Mistakes?
359
questions, 7 shows bias against one party by her comments,S
comments,8
judge uses leading questions,7
9
or appears to sit outside her proper neutral role. 9
614(b) gives little guidance as
as far as the proper
Federal Rule of Evidence 614(b)
role for judges in the adversarial trial. Both the Advisory Committee Notes to
the Federal Rules of Evidence and the noted evidence
evidence scholar John Henry
Henry
0
Wigmore credit this rule with common law originS.IO
origins. However, looking into
the history of our Anglo-American
Anglo-American system
system reveals that our modern criminal
trial looks as different from the perspective
perspective of our own legal history as it does
from a comparative law perspective.
perspective."II This is to say that, at the least, the
lawyer-centered trials we find so common today were not the norm in early
lawyer-centered
12
Prior to the advent of our
sixteenth and seventeenth century England. 12
roles. 13
adversarial
adversarial system, the judge and jury played central and powerful roles.13
My thesis proposes that we review our understanding of the historical
underpinnings of the limited roles of judges and juries in active crossunderpinnings
understand our modem adversarial
examination to understand
adversarial system, its flaws, and its
triumphs. Perhaps, in understanding
understanding how and why the roles of judges and
juries have become so limited in our Anglo-American
Anglo-American justice system, we can
can
strike a better balance
in
determining
the future role of judge and jury
balance
participation in modem trials. The ultimate question we must ask is as
participation
follows: will extracting
extracting more information
greater
information from the witnesses lead to aa greater
7.
See, e.g.,
Pollard,the
7. See,
e.g., Pollard v. Fennell, 400 F.2d
F.2d 421,
421, 424-25
424-25 (4th Cir. 1968). In Pollard,
district judge
repeatedly and
and consistendy
consistently demonstrated
content to permit
permit
district
judge repeatedly
demonstrated that he was not content
counsel to interrogate
interrogate the witnesses. The Fourth Circuit
Circuit noted:
It must
remembered that this was a trial before a jury, and
It
must be
be remembered
and the impact of
of
a question
question by the court on both the witness and the jury, together with the
natural
reluctance of
of counsel
counsel to
to object to the court's questions, which is
natural reluctance
even
presence of a jury, should
should not
not
even greater
greater when
when the
the questioning
questioning is in the presence
be underestimated.
underestimated.
Id
Id. at
at 424.
8. See, e.g,
& Rubber Co., 756 F.2d 1322,
1322, 1329-31
e.g.-, Hale v. Firestone
Firestone Tire
Tire &
1329-31 (8th Cir.
1985). In
1985).
In Hak,
Hale, the
the district
district judge's
judge's comment
comment that "I
"I have
have put air in a lot of tires, but I never had
one
one blow up on me" was deemed
deemed improper. Id.
Id. at 1330. The appellate court reasoned that
that
"[w]hile remarks
"[w]hile
remarks made
made by
by a district judge
judge within the hearing of the jury are often necessary,
necessary, the
judge
should take
judge should
take care not to give the impression
impression that he or she prefers one
one litigant
litigant over
over
another."
Id.(quoting
Newman v. A.E. Staley Mfg. Co., 648
another." !d.
(quoting Newman
648 F.2d
F.2d 330, 334 (5th
(5th Cir. 1981)).
1981)).
9.
It is
within the
9. It
is well
well within
the authority of judges
judges to question
question witnesses. FED. R. EVID.
EVID. 614
614
advisory
"abused when the
advisory committee's note. However, that
that authority
authority is "abused
the judge abandons his
proper
proper role
role and
and assumes
assumes that
that of advocate."
advocate." Id.
Id.
10.
10. FED.
FED. R.
R. EVID.
EVID. 614(a)
614(a) advisory
advisory committee's
committee's note ("While
('While exercised
exercised more
more
frequently
in criminal
civil
frequendy in
criminal than
than in
in civil
cases, the authority
authority of
of the
the judge
judge to call
call witnesses is
is well
well
established.")
JOHN HENRY
HENRY WIGMORE,
WIGMORE, EVIDENCE
EVIDENCE AT
AT TRIALS
TRIALs IN
IN COMMON
COMMON
established.',) (citations
(citations omitted);
omitted); 99 JOHN
LAw
LAw §
§ 2484 (1981).
(1981).
11.
11. JOHN
JOHN H.
H. LANGBEIN,
LANGBEIN, THE
THE ORIGINS
ORIGINS OF
OF ADVERSARY
ADVERSARY CRIMINAL
CRIMINAL TIAL
TRIAL 1-9
1-9 (2003).
(2003).
12.
RADZINOWICZ, A
ENGLISH CRIMINAL
12. Id.
Id. at
at 2,
2, 7-9;
7-9; see
seegeneral4
general!J 22 LEON
LEON RAoZINOWICZ,
A HISTORY
HISTORY OF
OF ENGllSH
CRIMINAL
LAW
FROM 1750,
LAw AND
AND In
ITS ADMINISTRATION
ADMINISTRATION FROM
1750, at
at 1-29
1-29 (1956).
(1956).
13.
of the Law of
of Evidence: A
13. John
John Langbein,
Langbein, Historical
Historical Foundations
Foundations of
A View
View fim
from the Rjder
Ryder
Sources,
Sources, 96
96 COLUM.
COLUM. L.
L. REV.
REv. 1168,
1168, 1198-99
1198-99 (1996);
(1996); seeJ.
see J. S.
S. COCKBURN,
COCKBURN, A HISTORY
HISTORY OF
OF ENGLISH
ENGllSH
AssIZEs,
AssIZES, 1558-1714,
1558-1714, at 112
112 (1972).
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truth-finding? Or, conversely, could it bring greater bias to the system and
truth-ftnding?
prevent attorneys from shaping and executing their narratives?
EVOLUTION OF THE JUDGE
JUDGE AND JURY IN THE
THE BRITISH
BRITISH
PART II. EVOLUTION
ADVERSARIAL SYSTEM
ADVERSARIAL
A. Medieval
Medieval Origins
Orgins
A.
14
battle.14
In medieval
medieval times, conflict
conflict was resolved through trial by
by battle.
confrontations; a private
Individuals would resolve conflict through individual confrontations;
individual would state the facts and offer "to prove the accusation 'by his
body."' 5 The accused would deny the allegation and seek to prove his
body."'15
innocence in the same manner.16
manner. 16 If
If a judge declared the dispute valid, a duel
17
scheduled to resolve the conflict.
was scheduled
conflict.17
Typically, the altercation
altercation would
8
of the
the parties.'
one
of
or
concession
parties. 18
proceed until the death concession of one of
integrated into the trial by ordeal-both
ordeal-both were
The trial by battle was integrated
premised on the idea that God would decide the ultimate victor and justice
19
would be served: 19
14.
See ROLLS
(Doris M. Stenton,
14. See
ROILS OF THE
THE JUSTICES IN EYRE (Doris
Stenton, ed., 1937);
1937); Edward L.
Rubin, Trial
by Battk.
y Argument.,
Trialby
REV. 261,
Rubin,
Trial by
Battle. Trial
Argument., 56 ARK. L. REv.
261, 262-71 (2003); JAMES
JAMES B. THAYER,
A PRELIMINARY
PRELIMINARY TREATISE
TREATISE ON EVIDENCE
EVIDENCE AT THE COMMON LAw 56-57 (1898).
supra note 14, at 263 (citing GEORGE NEILSON,
15. Rubin,
Rubin, supra
NEILSON, TRIAL BY COMBAT 36-39
(1891); 4 WILLIAM
BLACKSTONE, COMMENTARIES
COMMENTARIES ON THE LAws
LAWS OF ENGLAND
WIUlAM BLACKSTONE,
ENGLAND 337-41 (Univ. of
LAW AND CUSTOMS
Chi. Press 1979) (1769); HENRY
HENRY DE BRACTON,
BRACTON, ON THE LAw
CUSTOMS OF ENGLAND
ENGLAND 385385E. Thorne trans., 1968».
1968)).
403 (Samuel E.
16. Rubin, supra
supranote
15, at 341.
341.
supra note 14, at 263;
263; see BLACKSTONE,
BLACKSTONE, supra
note 15,
17.
17. Rubin, supra
supra note 14,
14, at 263.
18. Id.
Id.
at 263-64.
19.
Of Enchantment:
Enchantment:The Passing
Passingof
19. Id.
Id. at
at 265;
265; see
see Trisha
Trisha Olson,
Olson, Of
of the Ordeals
Ordeals and the Rise of
of
Juy Trial,
Trial, 50
REV. 109,
the Jury
50 SYRACUSE L. REv.
109, 119-21 (2000). Olson provides
provides that "All
"All forms
fonns of
of the
medieval proofs
proofs involved a spiritual
spiritual act
act and/or
and/or took place within
within a holy place, the
the proof by hot
iron
reserved for the cathedral."
cathedral." Id.
iron often
often reserved
Id. at 119. Olson continues:
The
The proofs
proofs cited
cited most
most routinely are the ordeal of the iron, which
which consisted
consisted
of [the accused]
accused] carrying
carrying a red-hot
red-hot iron for a specified
specified distance, and the
ordeal of the cauldron, which required him
him to pluck
pluck an object from boiling
boiling
water. An affinnative
affirmative judgment
judgment required
required that the wound
wound heal
heal cleanly
cleanly
within
within three
three days
days time.
time. The ordeal of cold water, in
in which aa bound person
person
was
was immersed into
into aa pool of blessed water
water and sank
sank if
if innocent,
innocent, was also
also
widespread.
widespread. In England,
England, this
this ordeal
ordeal was used in cases
cases presented
presented before
before the
the
king's
king's traveling
traveling justices
justices from 1166
1166 onward. The ordeal
ordeal of walking
walking on hot
hot
ploughshares
ploughshares was
was employed
employed less
less frequently
frequendy but was
was still
still prevalent
prevalent in
in
eleventh century
century Italy
Italy and
and England. The
The list should also include
include the
the ordeal
ordeal
of the
the cursed
of
cursed morsel
morsel whereby
whereby an accused
accused received
received a piece
piece of bread
bread or
or
cheese and
cheese
and judgment
judgment depended
depended upon his
his ability
ability to
to swallow
swallow nearly
nearly an ounce
of food.
Id.
!d. at
at 117
117 (footnotes
(footnotes omitted).
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to R
epeaPast
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PastM.istolees?
361
Since the result of battle was God's revelation
revelation that the victor had sworn
truthfully, it necessarily meant that the loser had sworn falsely, and since
swearing falsely was a great sin, not only in religious
religious terms, but in the secular
secular
executed. 22o0
punished, even
terms of an honor-based
honor-based society, the loser could be punished,
even executed.
21 The Domesday Book (also
Trial by jury has its roots in Norman culture. 21
(also
known as the Book of Winchester),
Winchester), the great
great survey of England prepared
prepared for
William I of England, was compiled
compiled by convening
convening twelve knights or lawful
22
men from every Hundred
A group of
Hundred to provide the desired information. 22
of
royal officers would visit each county
and
hold
a
public
inquiry
in the great
county
great
assembly known as the county court, with representatives of every
every township
township
and of the local lords in attendance.23
attendance. 23 The unit of inquiry was the Hundred
Hundred (a
subdivision of the county, which then was an administrative
administrative entity),
entity), and the
return for each Hundred was sworn
sworn to by twelve local jurors, half
half of them
24
English and half of them Norman. 24
Juries were typically self-informing, serving as witnesses rather than finders
of fact.2255 In England, "there
"there was a tradition
tradition of community-based
community-based judicial
system."2 6
systems: a county or shire court system."26
As their name might suggest, these courts
courts would involve the entire community
in the dispute. While there was at times a "judge"
"judge" presiding over the
proceedings,
proceedings, he was not a member of the court....
court. . . . Since the community was
thought to be in the best position to make crucial
(a task
crucial determinations of fact (a
that still belongs to the jury), the actual27decision---guilt or innocence, liable or
community itself.
not-was made by the community
itself. 27
A well-established
well-established practice
practice of trial by witness emerged in reaction to the
twelfth-century civil war when Henry II passed a series
"assizes"
twelfth-century
series of statutes or "assizes"
adjudication with royal law
law
that displaced
displaced traditional
traditional local law and informal
informal adjudication
20. Rubin, supra
supra note 14, at 256-66 (citing BARON
MONTESQUIEU (CHARLES
BARON MONTESQUIEU
(CHARLES LOUIS DE
DE
SECONDAT),
LAWS 548-53 (Anne Cohler
NEILSON,
SECONDAT), THE SPIRIT OF LAws
Cohler et al. trans., 1989) (1748);
(1748); NEILSON,
supra
15, at 38)).
supra note 15,
38)).
21.
21. Rubin, supra
supra note
note 14, at 272; THAYER, supra
supra note 14, at 50.
22. Rubin, supra
supra note
note 14, at 272.
23. See generallY
general# GEORGE BURTON
BURTON ADAMS,
CONSTITUTIONAL HISTORY
ENGLAND
ADAMS, CONSTITUTIONAL
HISTORY OF ENGLAND
88-89 (1921).
(1921).
24. See Kathleen S. Bean, Changing
Dependengy Court,
Court, 79 DENV.
Changing the Rus:
fulks: Pubkc
Public Access
Access to Dependenry
DENV.
U. L. REV.
REv. 1, 9 (2001); Richmond
Richmond Newspapers,
Newspapers, Inc. v. Virginia,
Virginia, 448 U.S. 555,
555, 565
565 (1980)
(recounting the history of open
Englsh Law
the
open courts) (citing Sir Frederick
Frederick Bart Pollock, English
lAw Before the
Norman Conquest,
Conquest, in SELECT ESSAYS
N017l1an
EssAYS IN ANGLO-AMERICAN
ANGW-AMERJCAN LEGAL HISTORY 88, 89-90 (1907));
(1907)); see
also THEODORE
THEODORE F.T. PLUCKNETr,
PLUCKNETT, A CONCISE HISTORY
HISTORY OF COMMON
COMMON LAw 110-111 (5th ed.
1956).
1956).
25. Robert
Robert H.
H. White,
White, Origin
Origin and Develupment
Development of Trial
Jugy, 29
29 TENN.
17
Trial by
i?Y Jury,
TENN. L. REv. 8, 17
25.
(1961).
(1961).
Barnes, Comment, Lessons From
From England's
England's "Great
"GreatGuardian
Guardian Of Liberty":
Justin C. Bames,
Uber!J'~· A
26. Justin
ComparativeStutfy
Study of English
English and
andAmerican CivilJuries,
Comparative
Juries, 3 U. ST. THOMAS L.J. 345, 348
348 (2005) (citing
(citing
MAURIZO
LuPoI, THE ORIGINS OF THE EUROPEAN
MAURIZO LUPOI,
EUROPEAN LEGAL
LEGAL ORDER
ORDER 206 (Adrian Belton
Belton trans.,
2000) (1994)).
2000)
(1994)).
27. Id. (footnotes
(footnotes omitted).
27.Id.
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28 The
and more
more formal
formal judicial
judicial procedures.
procedures.28
The Assize
Assize of
of Clarendon,
Clarendon, convened
convened in
in
and
1166 by
by Henry
Henry II,
II, consisted
consisted of
of men
men from
from each
each township
township who
who would
would testify
1166
of their
their township
township suspected
suspected of
of committing
committing a
under oath
oath to
to implicate
implicate members
members of
under
29 A
crime.29
A system
system of
of writs developed
developed in
in which
which defendants
defendants were
were required
required to
to
crime.
0 The
The prosecutor
prosecutor in
in these cases
cases was
was the Crown,
Crown, and typically
typically the
court.330
attend court.
31
assize trial
trial was
was by
by ordeal.
ordeal.31
assize
Henry
Ill's
government
abolished trial
trial by
by ordeal
ordeal in
in 1215,
1215, which
which left the
the
Henry III's government abolished
the
of
innocence
or
guilt
of determining
determining the
or innocence of
"without aa means
means of
courts "without
' 32
accused."32
expedient and practical
practical solution
solution was to ask the assembled
assembled
An expedient
accused.
crime to judge
had declared
declared that the accused
accused was
was suspected
suspected of aa crime
group that had
33 This
the crime.
crime.33
This was
was suitable
suitable
whether the
the accused
accused was in
in fact
fact guilty
guilty of the
whether
of aa
because the
the gathered
group was
was already
already assessing
assessing the
the guilt
guilt or
or innocence
innocence of
gathered group
because
34 Those who
who had been
been convicted
convicted under this
person simply
simply by accusing
accusing him.34
person
method
method could
could appeal
appeal to aa presenting
presenting judge
judge in
in an action
action that resembled
resembled aa trial
35
merits. 35
on the merits.
During this time, jury proceedings
proceedings were characterized
characterized by the "reliance
"reliance on
participate
to
of
jurors
compulsion
exercise of royal authority, [the] compulsion
jurors
participate in
in the
the exercise
neighborhood...
adjudicatory process,
process, and [the] utilization
utilization of the men of the neighborhood ...
adjudicatory
36
This contrasts
to provide
provide the information
information upon which
which to base decisions."
decisions."36
Do About It, 60
Langdell's Method,
28. Edward Rubin, Whats
Method, and What to Do
What's Wrong with Langdell's
VAND. L. REv. 609, 627 (2007).
29. Rubin, supra
supra note 14, at 272.
30.Id
30. Id at 627.
or
hot iron
("This typically involved unpleasant
31.
Id at 272 ('This
unpleasant tasks such as carrying
carrying hot
iron or
31. Id.
indicate by
being thrown into a body of cold water; if the person was innocent, God would so indicate
by
allow him to sink.");
allowing the wound to heal cleanly, or the water to receive the person and allow
Pain: 1100-1450,22
1100-1450, 22 J.L.
Ben§6cence ofPain:
Divine Beneficence
and the Divine
Sanclion and
see also Trisha Olson, The Medieval Blood Sanction
(1999));
TRUTH 81-83 (1999»;
65-66 (2006) (citing RICHARD FIRTH GREEN,
&
GREEN, A CRISIS OF TRUTIl
& REuGION
RELIGION 63, 65-66
Ear# Common
Proofin the Ear!J
Ky to Proof
Ordeal The Kry
Trial By
R Hyams, Triol
117; Paul R.
Olson, supra
supra note 19,
By OrdeaL·
19, at 117;
1981).
90 (Morris
Law,
ENGLAND 90,
90,90
(Morris S. Arnold
Arnold et al. eds.,
eds., 1981).
LAWS AND CUSTOMS OF ENGLAND
Law, in On THE LAws
adjudication and dispute settlement used in Europe during the
For discussion of other forms
foons of adjudication
AND
Middle Ages, in DISPUTES AND
the Middle
and Love in the
rise of the assize
assize system, see Michael Clanchy, Law and
1983);
ed., 1983);
(John Bossy ed.,
RELATIONS IN THE WEST 47, 53-57 Oohn
HuMAN RELATIONS
SETTLEMENTS:
LAW AND HUMAN
SETtLEMENTs: LAw
REFORMATION
& REFORMATION
RENAISSANCE &
Florence, 23 RENAISSANCE
Renaissance Florence,
Law in &naissance
and Law
Thomas Kuehn, Arbitration
Arbitration and
289-92 (1987).
TO LEGAL
(citing J.H. BAKER, AN INTRODUCTION TO
note 14, at 273 (citing
supra note
32.
Rubin, supra
32. Rubin,
GREEN, VERDICT ACCORDING TO CONSCIENCE:
A. GREEN,
THOMAS A.
1990); THOMAS
ed. 1990);
(3d ed.
HISTORY 87 (3d
(1985)).
1200-1800, at 33 (1985».
TRALJURY,
CRIMINAL TRIAL
ENGLISH CRIMINAL
PERSPECTIVE ON THE ENGLISH
PERsPECTIVE
JURY, 1200-1800,
TRIAL BY
ORIGINS OF TRIAL
OF JUSTICE:
JUSTICE: ORIGINS
PALLADIUM OF
LEVY, THE PALLADIUM
LEONARD LEVY,
33. Id
Id. (citing LEONARD
(1999)).
6-8 (1999».
JURY 6-8
JURY
34.
273.
14, at 273.
supra note 14,
34. Rubin,
Rubin, supra
the
of the
in "recruiting"
"recruiting" men of
involved in
35. Id
of the methods involved
discussion of
For aa discussion
Id For
of
Characterof
True? The Character
and Tme?
Good Men
Men and
Twelve Good
Anthony Musson, Tweloe
see Anthony
on juries, see
serve on
to serve
community to
community
126-135 (1997).
REv. 115,
115, 126-135
HIST. REv.
LAW &
& RIST.
15 LAw
Juries, 15
Fourteenth-CenturyJuries,
EarlY
Ear#Fourteenth-Century
44
History, 44
UnappreciatedHistory,
an Unappreciated
from an
Scenesfrom
36.
America: Scenes
Jury In
In America:
CivilJury
Landsman, The Civil
Stephan Landsman,
36. Stephan
in
Imprisonment in
Versus Imprisonment
TransportationVersus
J. Willis, Transportation
James J.
see general!Y
generally james
(1993); see
583 (1993);
HAsTINGS
L.J. 579,
579, 583
HASTINGS L.J.
& Soc'y
SOC'Y REv.
39 LAw
LAW &
State, 39
and the
the State,
LI'berty, and
Power,UbertY,
PenalPower,
Britain:Penal
andNineteenth-Century
Nineteenth-Century Britain:
EighteenthEighteenth- and
interference).
from government interference).
independence from
the jury's independence
(discussing the
(2005) (discussing
171, 197 (2005)
171,
HeinOnline -- 14 Widener L. Rev. 362 2008-2009
2009]
2009]
Lrngfrm the
& Past?
Past?Or
OrDetwidto
RepeatPtAfirtku?
~from
Destined to Repeat
Part Midakes?
363
with a more
more traditional
traditional approach
approach that
that relied
relied on
on the actions
actions of
of the litigants
litigants to
to
with
combat.377
or combat.3
ordeal or
by ordeal
disputes either by
settle disputes
settle
The petit
petit jury began
began to
to emerge in
in its
its modem form in 1351-52,
1351-52, when "the
"the
The
formal division
division between
between the
the indictment and
and the
the trial assizes was
first formal
enacted." 38 The idea
idea of resolving
resolving criminal issues
issues locally
locally was
was replaced by more
enacted."38
39
efficient public prosecutions and
and presentation
presentation of evidence to juries.39
This
This
efficient
marked the birth of
of the
the modem jury, which continued
continued to
to develop
develop over many
many
marked
40
centuries.40
contend that the jury flourished because of
of the
centuries.
Historians contend
increased commercialization
commercialization of England, due
due to a jury's efficiency and
popularity. 41 The need
need for efficient
efficient dispute resolution arose in the wake of the
popularity.41
breakdown of the small
small townships, which had been stable communities with
with
42
stable populations.42
There was a shift from the
self-informing jury (based on
the self-informing
stable
the ideas of local justice) to more public prosecution (based less on individual
the
suspect).43 Societal
Societal norms were changing;
changing, more people were
knowledge of a suspect).43
moving away from small villages and towns to cities, and the population of the
44
transient."4
changed, the
As social mores changed,
cities was becoming more transient.
structure also had to adapt to meet different
prosecution model and the court structure
needs.
B. Assize
Assize Courts
CourtsThrough the Eighteenth
Eighteenth Century
B.
45
Assize courts were the periodic
courts. 45
Assizes presided over
over
periodic criminal COurtS.
property
crimes,
felonious
killings,
and
statutory
and
common
law
offenses
statutory
property crimes, felonious killings,
such as murder and manslaughter.46
manslaughter. 46 The procedures in these courts varied
depending on locality.47
locality.47
Most criminal
criminal prosecutions
prosecutions began with
with an
depending
examination of the suspect by a local
information from
examination
local magistrate, who took information
37.
Olson, supra
supra note 19,
119-21.
37. See
See Olson,
19, at 119-21.
38.
Rubin, supra
38. Rubin,
supra note 14, at
at 273-74.
39.
See John
John Marshall
Proofs: The Transformation
Tranformation
39. See
Marshall Mitnick,
Mitnick, From
From Neighbor-W~itness
Neighbor-Witness to Judge of
ofProoft:
of
ofthe
the English
English Civil
CivilJuror,
Juror, 32
32 AM.J.
AM.J. LEGAL
LEGAL HIsT.
HIST. 201,
201, 203-06
203-06 (1988);
(1988); Rubin, supra
supra note
note 14, at
at 274.
40. Rubin,
supra note 14,
14, at
at 274.
Rubin, supra
41.
supra note 36,
36, at
at 583.
41. Landsman,
Landsman, supra
42.
42. Rubin,
Rubin, supra
supra note 14,
14, at
at 275.
43.
GREEN, supra
supra note
note 32,
32, at 6-12;
6-12; Rubin, supra
supra note
note 14, at 276.
43. GREEN,
44.
11, at
44. LANGBEIN,
LANGBEIN, supra
supra note
note 11,
at 108; 2 RADZINOWICZ,
RADZINOWlCZ, supra
supra note
note 12,
12, at 1-3,
1-3, 18-25.
45.
of the
the article
article begins
begins with
with an
an analysis
analysis of
of the
the assize
assize courts
courts in the
45. While
While this
this section
section of
sixteenth
great deal
deal of
of history
history concerning
concerning earlier
earlier assize
assize courts and
and the role
role of
of
sixteenth century,
century, there
there isis a great
judges
judges in
in those
those courts.
courts. See
See ROLLS
ROILS OFTHEJUsTICES
OF THE JUSTICES IN EYRE,
EYRE, supra
supra note
note 14.
46.
46. See
See general#
general!J Bruce
Bruce P.
P. Smith,
Smith, The
The Presumption
Presumption of
of Guilt
Guilt and
and the English Law of
of Thaft,
Thif/,
1750-1850,
133, 137-40
1750-1850, 23
23 LAw
LAw &
& HIST.
HIST. REV.
REv. 133,
137-40 (2005)
(2005) (describing prosecutions
prosecutions in the
the assize
assize
courts
courts in
in the
the context
context of larceny
larceny cases).
47.
47. II do
do not
not mention
mention specifically
specifically the
the "Old
"Old Bailey,"
Bailey," which
which was
was the
the popular
popular name
name for
for
London's
early in
in the
the twelfth
twelfth century.
century. Its
Its
London's criminal
criminal court
court established
established by
by charter
charter from
from Henry
Henry II early
jurisdiction
was roughly
roughly equivalent
equivalent to
to that
that of
of courts
courts of
of assizes
assizes elsewhere
elsewhere in
in England.
England. See
See
jurisdiction was
Malcolm
ttle, The
Malcolm M.
M. Feeley
Feeley &
& Deborah
Deborah L. ILittle,
The VanishingFemale:
Female: The
The Decline
Decline of
of Women in
in the Criminal
Process,
25 LAw
722 n.6 (1991).
Process, 1687-1912,
1687-1912,25
LAw &
& Soc'Y
Soc'y REv.
REv. 719,
719,722
(1991).
HeinOnline -- 14 Widener L. Rev. 363 2008-2009
364
Widener
Widener Law
Law Remew
Review
[Vol
[Vol 14:357
14:357
suspect.4488 Local
Local magistrates
magistrates would
would bind
bind the suspects
suspects over
over to
to quarter
quarter
the suspect.
49 The
or assizes
assizes or
or commit
commit the
the accused
accused to jail
jail to
to await
await trial.
trial.49
sessions or
sessions
magistrate would
would also
also interview
interview the
the victim
victim prosecutor,
prosecutor, demand
demand appearances
appearances at
at
magistrate
trial, and
and attend
attend the
the trial
trial to
to certify
certify particular
particular evidence.50so
Justices
Justices of
of the
the Peace
Peace also
also began
began to play
play aa more
more prominent
prominent role
role in
in
prosecutions.551' Statutes
Statutes in the
the sixteenth
sixteenth century
century required
required Justices
Justices of
of the Peace
Peace
prosecutions.
felony cases
cases to
to compile
compile statements
statements from
from the
the accused,
accused, the complainant,
complainant, and
and
in felony
material witnesses,
witnesses, and
and to bind over
over these
these individuals
individuals to appear
appear at
at trial
trial in
in
material
52
52
arrest
and
to
issue
search
power
the
also
had
Justices of Peace
higher
COurts. Justices
Peace also
search
arrest
higher courts.
53 A Justice
Justice of the Peace
Peace was
was not required
required to seek out witnesses
witnesses who
warrants.53
were
among the
the original
original petitioners;
petitioners; however,
however, some
some Justices
Justices would go
were not among
54
beyond the statute
statute and
and investigate
investigate more thoroughly.
thoroughly. 54
beyond
Suspects often did
did not even survive incarceration
incarceration to make it to the
the assize
Suspects
55 The
The prisons were
were "notoriously
"notoriously decrepit
decrepit [and]
[and] unfit to 'keep
'keep the
trial.55
5 6 Trials were conducted
prisoners free from wind
wind and weather.
weather."56
conducted in public, and
and
prisoners
57
were "nasty,
"nasty, brutish, and
and essentially
essentially short."
short."57
were
Those
Pretrial
Pretrial procedure
procedure was
was developing slowly.
Those bound
bound over
over for
8
would return
prosecution
who would
return aa biU.S
bill. 58
prosecution were presented
presented to the grand jury, who
5
9
Victim
Victim prosecutors
prosecutors were typically
typically sworn
sworn in by the Marshal. 59 A time and a
place were set for the assize by summons
summons directed
directed to each sheriff in the
60
60
issue warrants
warrants to the bailiffs for jury
jury service,
circuit. Sheriffs
Sheriffs would, in turn, issue
as well as draw up grand jury panels
panels and lists of all the justices,
justices, mayors,
coroners, stewards,
stewards, chief constables
constables and bailiffs in the county. The sheriffs
61 Judges were accompanied
cataloged the suspect's alleged
accompanied by the
also cataloged
alleged actions. 61
62
62
clerk of assize.
of Public
Pubic
P. Smith, The Emergence oj
13, at
at 102; see also Bruce P.
supra note 13,
CocKBuRN, supra
48. COCKBURN,
& HUMAN. 29, 33-39 (describing prosecutions
YALE J.L. &
Prosecution
prosecutions at
1790-1830, 18 YALEJ.L.
London, 1790-1830,18
Prosecution in undon,
the Old Bailey).
and the Antecedents
Vicinage and
also Mike Macnair, Vicinage
13, at 102; see also
supra note 13,
49. CocKBuRN,
COCKBURN, supra
LAW &
& HIST. REV.
oftheJuy,
oj the Jury, 17 LAw
REv. 537 (1999).
supranote 13, at 102-03.
CoCKBuRN, supra
50. COCKBURN,
SO.
Poweroj
of
DiscretionayPower
11, at
at 40-41; see Carolyn B. Ramsey, The Discretionary
51.
supra note
note 11,
51. LANGBEIN, supra
1309, 1325 (2002).
L. REv. 1309,1325
AM. CRIM. L.
HistoricalPerspective,
Perspective, 39 AM.
Prosecutorsin Historical
"Public"
'Tub'c"Prosecutors
LEGAL
Law, 17 AM.J.
AM. J. LEGAL
at Common
Common Law,
Prosecutionat
OinsojPublic
of PublcProsecution
52. John
John H. Langbein, The Origins
52.
and Committal Statutes of 1554-55
HrST.
317-24 (1973) (contending that Marian Bail and
HIST. 313, 317-24
and serve as
investigative functions and
some investigative
empowered English Justices of the Peace to perform some
empowered
48, at 61.
61.
supra note 48,
also Smith, supra
at trial); see also
failed to appear at
complainant failed
back-up prosecutors if complaIDant
11, at 40.
supra note 11,
LANGBEIN, supra
53. LANGBEIN,
53.
IN THE
THE RENAISSANCE:
JoHN H.
H. LANGBEIN, PROSECUTING CRIME IN
at 41 (citing JOHN
54. Id.
Id. at
54.
(1974)).
GERMANY, FRANCE 38-45 (1974)).
ENGLAND, GERMANY,
ENGLAND,
13, at
at 107.
supranote
note 13,
55. COCKBURN,
COCKBURN, supra
55.
(citation omitted).
56. Id (citation
56.Id.
57. Id.at 109.
57.Id.
58. Id.
Id at 111.
111.
58.
59. Id
59.Id.
61.
60. Id.
Id at 61.
60.
13, at
at 61.
61.
supranote
note 13,
CoCKBURN, supra
61. COCKBURN,
61.
62. Id.
Id at
at 62.
62.
HeinOnline -- 14 Widener L. Rev. 364 2008-2009
2009]
Lamingfvm the
thePast?
Past?Or
OrDestined
Desinedtoto Repeat
Repe& Past
PatMitakes?
LeaminJ!.frum
Mistakes?
365
Most historians describe the early criminal trials from the sixteenth to the
63
These
early eighteenth century in England as primarily private prosecutions.63
from the perspective of a more
trials were typified by many practices that, from
trial, or what Professor
Professor
adversarial system, seem unusual. The English Assize trial,
"accused speaks"
speaks" trial, was characterized
characterized by lawyer-free
Langbein calls the "accused
64
exchanges between the victim prosecutor and the accused defendant.
defendant.64
Defendants were required to answer the charges but were not put under
65
66 There was no
oath. 65
Cases were decided rapidly, typically within minutes. 66
plea bargaining, and defendants were often cautioned not to plead guilty so
67
they could beg mercy in sentencing from the court.67
In addition, the relations
68
informal.68
between judge and jury were very informal.
In the absence of counsel to direct witnesses or present evidence, the task
69 Cockburn describes the arrival of the
fell to judges to direct felony trialS.
trials.69
"met by trumpeters ...
...attended by pike- and
judges into town as an occasion "met
occasion," and "welcomed
"welcomed...
liverymen, specially clothed for the occasion,"
... with bells,
oration." 70 One common
music, and occasionally a Latin oration.''70
common feature of the assize
interference." 71
trial was "the constant and pervasive
pervasive influence of judicial interference."71
"Judges commonly
'altercation'
commonly interjected comments at every stage of the 'altercation'
72
witnesses."
and
between prisoner
prisoner
witnesses.''72
Pre-trial procedure
Marian
procedure saw swift changes after the passage
passage of the Marian
1555.73 This introduced
introduced the role of the Justice of Peace
Committal Statutes in 1555.73
74 The
to the pre-trial
pre-trial process and worked to reinforce citizen prosecution. 74
Justices of the Peace
Peace could issue search-and-arrest
search-and-arrest warrants, and they had
power. 755 However, the statute did not require the Justices of the
committal power.7
witnesses. 766
gather witnesses.7
original victim's
to go
outside the
the original
Peace to
or to
to gather
Peace
go outside
victim's testimony
testimony or
The Justices of the Peace were also allowed to bind over witnesses and the
victim
These
victim (that is, to issue an order compelling persons to appear
appear at trial),77
trial).77 These
63. Smith, supra note
note 48, at 29
29 (explaining that an official
official system of public prosecution
prosecution
emerge until the mid-nineteenth
mid-nineteenth century); LANGBEIN,
LANGBEIN, supra note 11,
11, at 2, 11.
It.
did not emerge
64. LANGBEIN,
LANGBEIN, supra note 11, at 48.
65. Id.
Id. at 14.
66. Id.
Id. at 16.
67. Id
Genodde: The Plea
Id. at 18-20;
18-20; see also Nancy Amoury
Amoury Combs, Copping A Pka
Plea To Genocide:
Bargaining
InternationalCrimes,
Crimes, 151
1, 46-48 (2002).
Bargaining of
qflntemational
151 U. PA. L. REv.
REv. 1,46-48
68. LANGBEIN,
LANGBEIN, spra
supra note 11,
11, at 22.
69. Id
Id. at 15.
15.
70. COCKBURN,
supranote
COCKBURN, supra
note 13, at 65.
71.
7t. Id.
Id. at 122.
122.
72. Id.
72.Id.
73. These
These statutes
statutes were
were named
named after
after Queen Mary.
Mary. For a discussion
discussion of the specific
specific
ramifications
Marian statutes,
statutes, see J.M. Beattie,
Beattie, Sir
Sir John
John Fielding
Fielding And
And Pubk'
Public Justice:
Justice: The Bow
BolP
ramifications of the Marian
Street
25 LAW
89-90 (2007); see
Street Magistrates'
Magistrates' Couri
Court, 1754-1780,
1754-1780,25
LAw &
& HIST. REv.
REv. 61,
61,89-90
see also United
United States
States
v.
v. Crawford,
Crawford, 541
541 U.S.
U.S. 36, 52-53
52-53 (2004) (citing Sir
Sir JAMEs
JAMES F. STEPHEN,
STEPHEN, A HISTORY
HISTORY OF
OF THE
THE
CRIMINAL
CRIMINAL LAW
LAw OF ENGLAND
ENGLAND 326
326 (1883)).
(1883)).
74.
LANGBEIN, supra
supra note
note 11,
11, at
at 40-41.
4O-4t.
74. LANGBEIN,
75. Id at
75.Id.
at 40
40
76. Idat
76.Id.
at 41.
4t.
77. Id at
77.Id.
at 43-44.
43-44.
HeinOnline -- 14 Widener L. Rev. 365 2008-2009
366
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[Vol 14:357
14:357
[VOL
measures
measures were put
put in
in place
place as
as a reaction
reaction to the
the perceived
perceived under-prosecution
under-prosecution of
of
78 Under-prosecution
crimes.
crimes.78
Under-prosecution was
was linked
linked to
to various
various circumstances:
circumstances: laziness
laziness in
bringing
of the death penalty;
penalty; lack
lack of
of
bringing charges;
charges; adverse
adverse feelings
feelings towards the use
use of
79 The
money
money for the victim;
victim; and
and intimidation.
intimidation.79
The character
character of the
the Justice
Justice of
of the
Peace
Peace infused
infused the Marian
Marian system
system with
with a new pro-prosecution
pro-prosecution energy;
energy; instead
instead
of the
the victim having
having the discretion
discretion to
to decide
decide whether
whether to
to prosecute
prosecute and also
also
it
was
now
limited
resources,
over
witnesses
with
find
and
bind
having to
to ftnd
witnesses with limited
it was now the
of the
the Justice
Justice of
of the Peace
Peace to help the
the victim
victim prepare
prepare his
his case.8
case. so°
job of
Many criticized
criticized the position of the Justice
Justice of the Peace
Peace as injecting a strong
prosecutorial
prosecutorial bias.88'! There
There was no power
power to dismiss for lack
lack of evidence,
evidence, and
thus an accusation
accusation could result in severe
severe hardships
hardships and imprisonment
imprisonment for the
accused.8822 The prosecution
prosecution had
had aa clear
clear advantage
advantage in that the Justice
Justice of the
Peace helped
the victims
helped hold over
over the witnesses and the accused.8833 Further, the
and witnesses for the prosecution
prosecution were placed under
under oath
oath at trial, whereas
whereas the
defendant
not under
under oath.8844
defendant was
was not
The
The life of an assize judge
judge was not always
always easy. Some
Some judges
judges found
found
found
deplorable
and
others
for
expenses,
paying
out
of
pocket
themselves
pocket
deplorable
themselves paying
85 But not all assize judges
conditions
judges found their jobs
conditions in housing and facilities.85
so burdensome;
burdensome; indeed, some assize judges enjoyed
enjoyed lavish "gifts
"gifts of money,
...received
drink, game,
received from sheriffs,
sheriffs, gentry, and
and
game, fish
ftsh and other
other provisions
provisions ...
86
The assize system provided
corporations
circuit."86
provided for uniformity
corporations on their circuit."
87
Upon
and local expertise without decentralization
system.87
decentralization of the justice system.
consideration of "the importance
importance of assizes to local
local justice
justice and administration,
administration,
consideration
the durability of the system, and the extent to which it has been
been exported to
countries
overseas," it becomes
countries overseas,"
becomes apparent how vital this process was to the
development
development of our modem system.8888
empanel and enforce.8899 Respected free-holders were
Juries were difficult
difftcult to empanel
9
0
typical
proceedings to have jury bills returned
typical jurors. 90 Judges used contempt proceedings
91
9
92 In
Service on ten or more panels
panels was not uncommon. 92
as directed. ! Service
addition, judicial bullying was commonplace;
commonplace; judges threatened to extend
at41,
150.
78. Seeid
See id. at
41,150.
79. Id at 150-51.
150-51.
79.Id.
11, at 43.
80. LANGBEIN,
LANGBEIN, supra
supra note 11,
id
81. See id.
Davies,
Statutes:A
82. See Robert Kry, Confrontation
Confrontation Under
Under the Marian
Marian StafHtes:
A Response to Professor
Professor Davies,
72 BROOK. L. REv. 493,
493, 517-22 (2007).
supra note 11,
11, at 41.
LANGBEIN, supra
41.
83. LANGBEIN,
84.Id.
84. Id.
at 51-52.
supra note 13, at 57.
85. See COCKBURN, supra
Id at 56.
86. Id.
87. Id.
at ix-xi.
87.Id.
Id at ix.
88. Id.
197.
supra note 36, at 197.
89. Id.
Id at 111; Willis, supra
Origins of the Special
SpedalJugy,
supra note 13,
13, at 111;
111; James C. Oldham, The Origins
CocKBuRN, supra
90. COCKBURN,
Jury,
CHi. L. REv. 137, 140-45 (1983).
50 U. CHI.L.
114.
supra note 13,
13, at 114.
91. COCKBURN,
CocKBuRN, supra
91.
92. Id at 119.
92.Id.
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93
assizes indefinitely and to imprison
imprison jurors or deprive
deprive them of food and rest. 93
Judges
Judges sometimes
sometimes even enacted punishments
punishments for verdicts contrary
contrary to the
94
instruction.
instruction.94
A typical assize
assize session proceeded
proceeded with the first batch of bills dispatched by
95
Proceedings on the indictments
day.95
Proceedings
indictments began with jailers
lunch on the first day.
96
court.96
the court.
into the
together, into
chained
and
manacled
leading groups of prisoners,
prisoners, manacled
chained together,
"[P]risoners were called to the bar one by one, in the order in which their
"[p]risoners
97
"The indictments
indictment appeared on the file."
file."97
''The
indictments were then read in
98
guilty or not guilty."
guilty."98
This process
English to the accused and each [pled] guilty
continued until the number of prisoners indicted reached an amount
amount
99
"convenient" for
trial by
by one
jury.99
"convenient"
for trial
one petit jury.
At trial, Crown witnesses were heard first.1oo
first1 0 The examination
examination of the
accused, taken by the Justice
Justice of the Peace, was read to the jury only if the
1 1
defendant
examination constituted evidence
evidence for the Crown.
Crown.101
Until 1702,
1702, the defendant
remained un-sworn;
and any defense
defense witnesses remained
un-sworn; judges either asked the
much
defendant
defendant to stand in fear of God or told the jury not to attach too much
testimony.1 02 Defense witnesses were not barred from court
weight to the testimony.102
proceedings, but the judge
judge had almost unfettered discretion
discretion to allow or
or
03
103
exclude
Those charged
exclude witnesses.
charged with treason or felonies were allowed no
°4
legal representation. 104
A defendant faced great pressure
pressure to speak in his own defense;
defense; the jury
expected
of
without the luxury of
expected a defendant to give a clear
clear accounting
accounting of events without
10 5
"hiding behind
evidentiary objections
"hiding
behind counsel"
counsel" to make evidentiary
objections or arguments.
arguments,105
The
93. Id.
Id. at 114-15.
94. Id.; see, e.g., Mitnick,
Mitnick, supra
supranote 39, at 206:
The much-celebrated
much-celebrated decision
Case concerned
concerned a writ of habeas
habeas
decision in Bushell's Case
corpus sued out by Edward
juror in the
Edward Bushell, who had served as a jutor
infamous trial of the Quaker leaders William
William Penn
Penn and William Mead for
unlawful
unlawful assembly and conspiracy. On
On rendering
rendering their verdict,
verdict, the jurors
jutors
were fined for acquitting
acquitting the defendants against
against the weight
weight of the manifest
evidence
evidence and the direction of the court, and Bushell
Bushell was subsequently jailed
jailed
for refusing to pay his fine.
Id.
Id.
95. CocKBuRN,
13, at 116.
COCKBURN, supra
supra note 13,
96. Id. at 117.
97.
Id.
97.Id.
98.
Id
98.Id.
99.
Id
99.Id.
11, at 48-56.
100. Id
Id. at 120; LANGBEIN,
LANGBEIN, supra
supra note 11,
101. CocKBuRN,
supranote 13, at 120; see LANGBEIN, supra note 11,
11, at 48,
258.
101.
COCKBURN, supra
48,258.
121.
102. CocBuRN,
COCKBURN, supra
supra note 13, at 121.
11, at 53-56.
103. LANGBEIN,
LANGBEIN, supra
supra note 11,
104. CocKBtuN,
supra note 13, at 121.
121.
COCKBURN, supra
11, at 48; COCKBURN,
CocKBuRN, supra
105. LANGBEIN,
LANGBEIN, supra
supra note 11,
supra note 13, at 122
122 ("Since the
accused
accused commonly
commonly had
had no counsel, no notice of the evidence against him, and no opportunity
to frame his defen[s]e,
defen[s]e, assize trials at this point normally degenerated
degenerated into what Sir Thomas
Smith
'altercation' between prisoner and prosecutor
Smith called
called an 'altercation'
prosecutor and witnesses.").
witnesses.").
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need for a defendant
defendant to address the court and provide evidence on his own
truth-finding, kept
behalf, and the view that defense
defense attorneys impeded truth-flnding,
10 6
COurt. 106
defense counsel out of the court.
C.
OtherPublic
Offcials
C. Role of Other
Public Officials
Other public officials
offlcials performed certain aspects of the investigation
investigation and
presentation of evidence
fact-finder.10 7 "At trial a variety of public
presentation
evidence to the fact-fmder.IO?
officials
offlcials might assume forensic roles in presenting
presenting evidence. For example, the
law officers
officers of the crown traditionally
traditionally tried cases . . . deemed to affect the
108
critical
"Several
governmental and quasicritical interests of the state."
state."I08
"Several governmental
governmental entities-including
entities-including the Mint, the Bank of England, the Post
Post
governmental
Office,
Treasury---employed offlcials
officials 'whose
Offlce, and the Treasury--employed
'whose responsibility included
included
'10 9
investigating and prosecuting
investigating
prosecuting criminal
criminal cases on behalf of the department."
department."'109
D.
D. Changes at the Turn
Tum of the Seventeenth Century
At the turn of the seventeenth
seventeenth century, there was an increase
increase in the severity
of punishment, and the death penalty was extended to cover hundreds of
of
IIO The death penalty was strictly enforcedoffenses, both petty
enforcedpetty and severe.110
111
from 1688 to 1718,
1718, half of the offenders
offenders sentenced to death were executed.
executed.'11
There
There was also a growth of public prosecution
prosecution coinciding with the
12
movement
fiber of the nation. liZ
In 1691,
1691, the the
movement to strengthen
strengthen the moral flber
1
3
Society
created
Society for the Reformation of Manners was created. 113 While initially created
to uphold
uphold moral values, these moral reform
reform societies also became
became tools of law
law
14
enforcement.
Often a society
"a number of paid
enforcement. 1I4
society would
would establish "a
paid and well-
106. LANGBEIN,
LANGBEIN, subra
supra note 11,
11, at 61-63.
LANGBEIN, supra
11, at 113.
supra note 48, at 37; LANGBEIN,
supra note 11,
113.
107. Smith, supra
108. Id. at 37.
108.Id.
109. Id. (quoting LANGBEIN,
LANGBEIN, supra
spranote 11,
11, at 113).
109.Id.
110. 2 RADZINOWlCZ,
"[in the latter
RADZINoWICZ, supra note 12,
12, at 1 (noting that "~ln
latter part
part of the
eighteenth
eighteenth century more than three quarters of all executions
executions were for offences
offences against
against
property.");
general# Stephan
Stephan Landsman,
Contentious Spirit:
Landsman, The Rise of the Contentious
Spirit: Adversary Procedure
Procedure in
property."); see generallY
Eighteentb
CORNELL L. REv. 497 (1990).
Eighteenth Century England,
England, 75 CORNELL
111. 22 RADZINoWICZ,
RADZINOWICZ, supra
supra note 12, at 1.
111.
112. Id.
Id. at 2-4.
society and others like it were composed
composed of "persons
113. Id.
Id. at 4. This society
"persons of Eminency
in
the Law,
Law, Members
of Parliament,
of the
Peace, and
and considerable
considerable Citizens
Citizens of
of London
London
in the
Members of
Parliament, Justices
Justices of
the Peace,
of known Abilities and great Integrity."
Integrity." Id
Id. For a modem perspective
perspective on efforts to legislate
moral
see Mario
Mario Rizzo,
Probkm of
MoralDirigisme:
Digisme:A
moral reform,
reform, see
Rizzo, The Problem
of Moral
A New
New Aqument
Argument Against Morafistic
Moralistic
Legislation,
& LIBERTY
Legislation, 1 N.Y.U .J.L
.J.L. &
LIBERTI 790 (2005).
114. 2 RADZINOWICZ,
RADZINOWICZ, supra
supra note 12, at 4, 8; see also
also ALAN
GOVERNING
ALAN HUNT, GoVERNING
MORALS:
SOCIAL HISTORY OF MORAL REGULATION
MORALS: A SOCIAL
REGULATION 39 (1999) (noting that, in general, the
Societies
Societies for Reform of Manners
Manners "were decidedly-less
decidedly-less interested in individual or personal
immorality; their
their target was public vice, their goal community
orderliness."); Norma
immorality;
community virtue and orderliness.");
Landau,
Fun and
and Profit:
Profit: A Prosecutors
Rtward at
at Eighteenth-Centuy.Quarter
Landau, Indictment
Indictment for
for Fun
Prosecutor's Reward
Eighteenth-Century Quarter Sessions,
Sessions, 17
LAW
LAw &
& HIST. REV.
REv. 507 (1999).
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115
trained agents"
agents" in the different districts of the town.
town.115
Each agent was
provided
provided with
with blank warrant
warrant forms covering the various offenses that were to
be prosecuted, focusing mainly on vice and immorality.116
immorality. 116 These warrants
warrants
ll7 After
certified.117
After certification,
certification, the warrants
were taken before a magistrate and certified.
would be delivered
delivered to constables by society members. I11IS8 A member of the
society was always in attendance
session. 119
attendance at each Quarter
Quarter session.1l9
In addition to grass-roots type organizations,
organizations, the government
government also took
120 Increases
steps to curb the rate of crime.
crime.120
Increases in thefts, robberies,
robberies, and murders
"attributed to the lack of 'due and sufficient Encouragement
Encouragement given, and
were "attributed
Offenders." ' 121
Means used, for the Discovery
Discovery and Apprehension of such Offenders."'121
1) Statutory Rewards
1)
A number of "parliamentary
"parliamentary awards"
awards" were offered under statute
statute for the
122
prosecution
"The
prosecution of property offenses and other crimes. l22
''The government, local
authorities, private companies and even private individuals all offered
inducements to robbers,
[financial] inducements
robbers, thieves, embezzlers
embezzlers and murderers to
123
betray their accomplices
and
to
spy
upon
their
companions."'
Initially, there
accomplices
companions."123
124
was an ad
ad hoc system of rewards, and amounts varied significantly.
significantly.124
Later,
these rewards
became
through
institutionalized
Royal
Proclamation,
orders,
rewards
institutionalized through
orders, or
25
letters. 125
2) Pardons
crime could receive
A system also evolved
evolved in which a person accused
accused of crime
crimes "of the same nature"
nature" if he procured
procured the conviction
conviction of
of
pardons for all crimes
115.
2 RADZINOWICZ,
115.2
RADZINOWICZ, supra
supra note 12,
12, at 14-16.
116. Id.at 14.
116.1d.
117.
Id.
117.1d.
118. Id.
118.1d.
Id.; see also Charles
and Marxist
Marxist Histonograpl(y:
Histoograpy: The
The
119. ld.;
Charles J. Reid, Jr., Tyburn,
Tjburn, Tbanatos,
Thanatos, and
Case ofthe London
Hanged,79 CORNEll..
CORNELL L. REv. 1158,1190
1158, 1190 (1994).
undon Hanged,
120. See sources cited
cited supra
supra notes 114 & 119.
121. 2 RADZINOWICZ,
RADZINOWICZ, supra
supra note 12,
12, at 29.
121.
122. Id.
122.1d.
at 57; Landau, supra
supra note 114,
114, at 507.
123. 2 RADZINOWICZ,
RADZINOWICZ, supra
supra note 12, at 33; Landau,
Landau, supra
supra note 114, at 507-08
507-08
LANGBEIN, supra
supra note 11,
11, at 148.
LANGBEIN,
124. 2 RADzrNowicz,
supra note 12, at 35. For example, in 1681
RADZINOWICZ, supra
1681 there was a reward
reward
of 500 pounds
pounds offered for the discovery of the person who had defaced
defaced the Duke of York's
portrait in Guildhall. Id.
ld.
125. See id.
id. at 57.
57. "One of the earliest, if not the earliest, statute which made
'parliamentary award'
provision for a 'parliamentary
award' was
was passed in 1692
1692 with a view to encouraging
encouraging the
discovery and capture
highwaymen." Id.
ld. It
It offered forty pounds for the capture
capture and
and
capture of highwaymen."
successful prosecution
prosecution of the offender, with the reward to be paid a month
month after the conviction
conviction
Id.
certificate signed by the judge
judge who had tried the offender. ld.
upon production
production of a certificate
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126 These "positive engagements
two of his associates. 126
engagements of immunity"
immunity" turned
thief, relying
takes a criminal to catch a
thief against thief,
relying on the theory that it takes
127 In addition to these
criminal. This system also encouraged
encouraged false accusations.
accusations.127
ad hoc system developed to secure accomplice
accomplice
statutory pardons,
pardons, a more ad
testimony. 128 In exchange
testimony.128
exchange for a full confession, an accused
accused could petition the
129
magistrate for a more lenient punishment. 129
The recommendation
recommendation of a lighter
lighter
130
accomplices. 130
the accomplices.
of the
conviction
on
a
conditioned
was
pardon
or
sentence
pardon
conviction of
sentence
The idea was that the accuser
accuser became a witness for the Crown and the
131
This system arguably provided the
evidence would be used to convict.
convict.131
material incentive to induce perjury and often resulted in false accusations
132
"desperate villains."'
villains."t32
made by "desperate
3) Defense
Defense Counsel
In England, the practice of prohibiting defense counsel
counsel in felony trials
Defense
continued until 1836.133
1836.133
Defense counsel was allowed
allowed into normal
subcategories,
however-the
inroad
had
occurred
earlier
felony trials, first by
occurred
subcategories,
134
an
of judges
judges on
subsequently by the discretion of
statute and subsequendy
on an ad
ad hoc
hoc basis.
basis. l34
Practices first began to change after the Treason
Treason Act of 1696.135 As a
reaction to the instability in the 1670s and 1680s and to a series of major
trials-including the Popish Plot in 1678, the Rye House Plot of 1683,
1683,
treason trials-including
and the Monmouth's
Monmouth's Rebellion-this
Rebellion-this act extended the right to counsel for
136
trialS.136
The Treason Act's purpose was to provide
defendants in treason trials.
126. Id at 40-41; LANGBEIN, slljJra
supra note 11,
11, at 158; see also
also United States v. Ford
(The
126.Id.
Ford (The
Wbisky Cases), 99 U.S. 594, 604-05 (1878) (noting practice of "approvement"
"approvement" under English
Whiskq
English
common law, where accused
accused could implicate accomplice
accomplice for pardon).
LANGBEIN, supra
11, at 158-60. For example, the Bum Boat Act protected
127. LANGBEIN,
slljJra note
note 11,
protected
customs and revenue by providing
providing an incentive
incentive system
system for crimes against vessels on the Thames
RADZINOWICZ, slljJra
supranote 12, at 40-42.
River. See 2 RADZINOWICZ,
11, at 158.
128. See LANGBEIN,
LANGBEIN, supra
slljJra note 11,
THE COURTS
129. 2 RADZINOWICZ,
RADZINOWICZ, supra
slljJra note 12, at 43;
43; see J.M. BEATIE,
BEATI1E, CRIME
CRIME AND
AND THE
1660-1800, at 366-67 (1986) ("Both
IN ENGLAND,
ENGLAND, 1660-1800,
(''Both the authorities and private prosecutors
prosecutors
apprehending and
actively sought the cooperation
cooperation of accomplices
accomplices as the most likely means of apprehending
convicting offenders. What was
was offered
offered was usually described as a pardon. But in fact ..... .
accomplices were most often
often in practice
practice granted immunity
immunity from prosecution.").
accomplices
12, at 48-49;
129, at 367;
130. 2 RADZINowicz,
RADZINOWICZ, supra
slljJra note 12,
48-49; see BEATTIE,
BEATI1E, supra
slljJra note 129,
LANGBEIN, SlljJra
supra note 11,
11, at 160.
LANGBEIN,
131. 2 RADZIN'OWICZ,
RADzINoWIcz, slljJra
supra note 12, at 43.
131.
132. LANGBEIN,
supra note 11,
11, at 160-63;
160-63; 2 RADzINowIcz,
LANGBEIN, slljJra
RADZINoWICZ, supra
slljJra note 12, at 43-44.
CocKBuRN, slljJra
supra note 13, at 122; John H. Langbein, The Historical
Origins oj
of the
the
133. COCKBURN,
HiJtoricalOrigins
PrivilegeAgainst
Against Se!flncriminiation
SeffIntriminiationat
at Common Law,
Law, 92 MICH. L REv. 1047, 1054.
Privilege
supra note 133,
133, at 1068.
134. Langbein, slljJra
11, at 78-85.
135. LANGBEIN,
LANGBEIN, supra
SlljJra note 11,
1685--the ''Bloody
"Bloody Assizes"-that
Assizes"-that followed an abortive
136. The treason
treason trials of 1685--the
rebellion by the Duke of Monmouth
Monmouth marked the culmination
culrnination of the parade
parade of horrors, and most
of
historians believe that it was this event that finally spurred
spurred the adoption of the English Bill of
See
Rights containing
containing the progenitor
progenitor of our prohibition against cruel and unusual
unusual punishments. See
LANGBEIN, slljJra
supra note 11,
11, at 68, 76; see also Randolph N. Jonakait, The Too-Eary
Too-Easy Historical
Historical
LANGBEIN,
Assumptions oJCrawford
ofCrawford v.
v. Washington,
219, 220-22 (2005).
Washington, 71 BROOK. L REv. 219,220-22
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additional safeguards
safeguards against
against perceived
perceived abuses
abuses by
by the
the Crown
Crown and
and the
the bias
bias of
of
additional
37
the bench.
bench.137
However, the
the Act
Act only
only extended
extended the
the right
right to
to counsel
counsel in
in pre-trial
However,
the
8
matters; lawyers
lawyers were
were not
not allowed
allowed to
to address
address the
the jury.13
jury.138
matters;
the 1730s,
1730s, judges
judges began
began allowing
allowing defense
defense counsel
counsel for ordinary
ordinary felony
In the
139
trialS.139
While itit is
is not
not clear
clear how
how the
the practice
practice began,
began, itit seems
seems to have
have been
been
trials.
While
premised
on the discretion
discretion of
of the judge
judge and
and used,
used, at
at least
least initially,
initially, on
on an
an ad
ad hoc
hoc
premised on
140
40
limited
it
was
for
the
trials,
into
felony
basis.1
When
counsel
was
allowed
felony
trials,
was
limited
allowed
counsel
basis.
purpose
of examining
examining and
and cross-examining
cross-examining witnesses-lawyers
witnesses-lawyers were
were not
not
purpose of
141
allowed to address
address the
the jury
jury to argue
argue on
on the defendant's
defendant's behalf.
behalf.141 Defendants
Defendants
allowed
continued to
to play
play aa vital
vital role
role in
in the
the trial, and
and were required
required to
to testify
testify and
continued
provide vital evidence
evidence in
in the trial.142
trial. 142 A
A defendant
defendant was not
not allowed
allowed the
the "right
"right
provide
nor was the defendant
defendant allowed
allowed to "hide
"hide behind"
behind" counsel's
counsel's
silent," nor
to remain silent,"
143
arguments. 143
137. LANGBEIN,
LANGBEIN, supra note 11,
11, at
at 79-82.
137.
138.
138. Id.
!d. at
at 84-85.
84-85. Even
Even when
when defense
defense counsel were allowed aa role in the English
English
counsel preformed
preformed their duties "under
judicial sufferance":
sufferance":
"under judicial
felony cases, counsel
[W]hat they might do for their clients was limited
limited by the bench....
bench.... [Jun
[I]n
particular,
particular, [judges]
5udges] constrained
constrained defense
defense lawyers'
lawyers' activities
activities in such
such a way
way that
the
the accused
accused were
were forced to continue
continue to speak
speak for themselves in
in court. The
right to full
full defense
defense by counsel
counsel was not granted until
until the passage of
of the
Prisoner's
enacted, lawyers
Prisoner's Counsel Act of 1836. Until that legislation was enacted,
allowed...
acting
... to do what
what the judges
judges had always
acting for accused
accused felons were allowed
done for the defendant: to examine
examine and cross-examine witnesses and to
Counsel were not allowed, however, to act in those
speak to rules of law. Counsel
speak
areas
areas in which defendants had always been on their own. In particular,
client's behalf
behalf or to
counsel were
were not allowed to speak
speak to the jury
jury on their client's
counsel
prisoners who
offer a defense against the facts put in evidence. Until 1836,
1836, prisoners
said that they wished
wished to leave their defense to counsel were told that that
was not possible and that they must speak
speak for themselves.
Trials in
in the Eighteenth and
and the English
English Criminal
Counsel and
Scales 0/
of Justice:
J. M. Beattie, Scales
Justice: Defense Counsel
Criminal Trials
221, 230-31 (1991).
LAw & HIST. REv. 221,
Nineteenth Centuries,
Centuries, 9 LAW&HIST.
Nineteenth
of
Randolph N. Jonakait, The Origins
supra note 11, at 84-85, 177; see Randolph
LANGBEIN, supra
139. LANGBEIN,
Origins 0/
L.J. 77,
77, 93 (1995).
(1995).
RUTGERS LJ.
History, 27 RUTGERS
Clause: An Alternative
Alternative History,
ConfrontationClause:
the Confrontation
the
11, at
at 78-85.
140. LANGBEIN,
supra note 11,
LANGBEIN, supra
for
at 1054.
1054. The English common law did not provide for
supranote 133, at
141. Langbein, supra
141.
the right to call
behalf; rather, the
the defendant's right to subpoena witnesses to testify on his behalf;
legislation was
was passed in the late seventeenth and
witnesses in
established until legislation
in England was not established
the right
right of
of compulsory process.
interpreted to provide for the
which was interpreted
early
early eighteenth centuries, which
Id. at 1055-56.
Id.
11, at 85.
supranote 11,
LANGBEIN, supra
142. LANGBEIN,
of
The ValNe
Value 0/
also Robert J. Martineau, The
138, at 230-31;
230-31; see also
supra note
note 138,
Beattie, supra
143. Beattie,
REV. 11 (1986):
Wisdom, 72 IOWA L. REv.
to the
the Conventional
ConventionalWisMm,
Appellate
Argument: A Challenge
Challengeto
OralArgument:
Appellate Oral
act in
legally authorized to act
is one
one who
who is legally
an attorney, that is
The notion of
of an
The
come
other, did
did not
not come
actions are
are binding on the other,
and whose
whose actions
place of another
another and
place
an
not employ
employ an
person could
could not
long time,
time, a person
easily to
to English
English practice. For a long
easily
grant of
place without aa specific grant
in the person's place
attorney to make
make a plea in
attorney
should
everyone should
idea was that
that everyone
The underlying
underlying idea
the King.
King. The
authority
authority from the
stage of
of
in the
the pleading
pleading stage
themselves in
appear in
in court
court to represent themselves
physically appear
HeinOnline -- 14 Widener L. Rev. 371 2008-2009
372
WidenerLaw Review
Review
Widener
[Vol. 14:357
14:357
[Vol.
In admitting
admitting counsel,
counsel, judges
judges were responding
responding to
to aa complex
complex set
set of
of
In
developments in
in the
the pattern of
of prosecution:
prosecution: the urbanization of
of the
the cities;
cities;
developments
144
increases in
in crime
crime and
and criminality; and more transient criminal
criminal populations. l44
increases
Experimentation with
with organizing
organizing and
and paying for police also gained
Experimentation
145 Towards
prevalence. 14S
the end
end of the eighteenth century,
century, solicitors
solicitors played
played aa
Towards the
prevalence.
146
growing role in
in the
the work of investigating cases.
cases.l46
Investigation and
147
prosecution became synonymous. 147
In addition to
to the Treason Act and the
the
prosecution
ever-increasing
role
of
prosecutors,
also passed more
more reward
the government also
ever-increasing role of
48
systems.'l48
systems.
Because judges were
were so powerful, they
they had the discretion to allow
allow defense
Because
49
counsel for
for the
the limited
limited purpose of cross-examining
cross-examining witnesses.t
witnesses. 149
time,
With time,
counsel
this discretionary
discretionary practice turned into
into a substantive right.
right.ISO50 The interjection
interjection
this
ISI' It silenced the
of counsel
counsel into
into the trial effectively ended the altercation trial.15
of
accused, marginalized
marginalized the
the judge,
judge, and broke up the working relationship of the
accused,
judge and
and jury.IS2
jury. 152 What
What began as ad
ad hoc
boc safeguards for defendants-the
judge
allowance
of
attorneys
and
exclusionary
rules
of evidence--eventually
evidence-eventually became
allowance of
doctrinal law. Ironically, it was trial judges'
judges' great discretion in allowing these
changes that
eventually led to their marginalization
marginalization from their traditional roles
changes
that eventually
in the trial.
In addition
addition to
allowing defense
defense counsel
counsel into the trial, judges also began to
In
to allowing
create rules
rules of
of character, corroboration, and confession to protect the
create
an
the trial
trial stage,
stage, the trier of fact rather than the litigant
an action.
action. At
At the
litigant
examined witnesses and developed
developed facts.
examined
Id.
Id. at 6.
144. See LANGBEIN,
LANGBEIN, supra
stpra note 11,
11, at
at 108.
108.
145.
similar eras
of experimentation
145. Id
Id. For
For aa discussion
discussion of
of similar
eras of
experimentation with new
new approaches
approaches to
policing in
in the
the midst
of demographic
AND
policing
midst of
demographic shifts,
shifts, see LAWRENCE
LAWRENCE M. FRIEDMAN,
FRIEDMAN, CRIME
CRIME AND
PUNISHMENT IN
AMERIcAN HISTORY
PuNISHMENT
IN AMERICAN
HISTORY 358-65
358-65 (1993).
146.
LANGBEIN, stpra
supra note 11,
11, at 120-23;
also Martineau,
146. LANGBEIN,
120-23; see also
Martineau, supra
stpra note 143, at
at 5-6:
The
The significance
significance of
of orality
orality in English court
court proceedings
proceedings can
can best
best be
understood
of the two
two branches
branches of England's
England's
understood by
by examining
examining the
the history of
legal
legal profession,
profession, solicitors
solicitors and
and barristers.
barristers. Essentially,
Essentially, solicitors
solicitors handle the
the
client's
courtroom while
while barristers
barristers act
act as
as courtroom
courtroom
client's affairs
affairs outside
outside of the courtroom
advocates. With
to litigation,
litigation, solicitors
solicitors prepare the documents
documents filed
filed
With regard
regard to
with
open court.
court. These
These
with the
the court
court while
while barristers
barristers speak
speak for
for the clients
clients in open
differences
of the English
English system
system when
when both
both the
differences stem
stem from
ftom the
the beginning
beginning of
plea
plea and
and the
the trial
trial stages
stages of
of litigation
litigation were oral. The
The plea
plea stage
stage was
was done
done by
by
the litigant
litigant alone.
alone.
Id
Id. at
at 5-6
5-6 (citations
(citations omitted).
147.
147. See
See LANGBEIN,
LANGBEIN, supra
stpra note
note 11,
11, at
at 109.
109.
148.
148. See
See id
id. at 148.
148.
149.
Id. at
149.Id.
at 177.
177.
150.
Id
150.Id.
151.
151. Id
Id.
152.
Id.
152.Id.
HeinOnline -- 14 Widener L. Rev. 372 2008-2009
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UaminJ!.from the Past?
Past? Or
OrDestined
Destined to Repea
Repeat Part
PastMiake?
Mistakes?
Lea'ngfmm
373
defendant. 5ls33 Counsel
Counsel played
played no
no role
role in the
the initial
initial development
development of evidence
evidence
defendant.
law, but
but the
the interjection
interjection of counsel
counsel put
put pressure
pressure on the
the bench
bench to turn
law,
lawyers turned
turned out
out to be
be crucial
discretionary practice
practice into rule.'rule. l544 In addition, lawyers
discretionary
155
like
evidence,
the
law
of
Creation
of
to
consistent
application
of
the
rules.
ISS
Creation
of
the
evidence,
to consistent application of
56
1S6
What
judges.
What
allow defense
defense counsel, limited
limited the work
work of judges.
the decision to allow
would seem
seem to have
have been
been an improvement
improvement in safeguarding
safeguarding criminal
criminal defendants
defendants
would
eighteenth century
of the eighteenth
century had
had
response to
to the prosecutorial
prosecutorial initiatives
initiatives of
and a response
5 7
"unbalanced the
"unbalanced
the trial"
trial" and
and risked
risked prosecution-sponsored
prosecution-sponsored perjury.
perjury.1S7
adversarial criminal trial, and lawyers
1730s, altercation
In the
the 1730s,
altercation gave
gave way to adversarial
lawyers
Observers of the English
English trial
more commanding
commanding role at trial.15
trial. 1SS8 Observers
assumed aa more
system
stranger in
in his own
own
system during this time
time viewed the judge as a stranger
59
The slow pace
pace of the development
development of
of the law of evidence
evidence and
and
courtroom. 1S9
counsel into
into the trial
trial allowed
allowed the
the institution of
of defense
defense
interjection of counsel
the interjection
160
In
counsels to take aa stronghold
stronghold in the case. 160
In the second
second half
half of the
counsels
could just
the
accused
silenced
and
was
the
defendant
eighteenth
eighteenth century,
defendant
silenced and the
just
The
process.
the
pre-trial
its
way
into
defer
defer to counsel-a
counsel-a concept
concept that made
pre-trial
initial idea was that defense
defense counsel
counsel would supplement the questions by the
court. 161 As lawyers
lawyers grew increasingly
gathering and presentation
presentation
increasingly adept at the gathering
court.'61
disadvantage."' 162 Now the
evidence, the bench was
was placed
placed "at an awkward
awkward disadvantage."162
of evidence,
judge, instead of being the powerful
powerful director
director of evidence,
evidence, came to court
lacking pretrial
pretrial preparation,
preparation, which undercut the idea
idea that the court could be
63
This signaled a structural
structural shift
shift in trial
trial procedure
counsel for the accused. 163
counsel
case
and made way for the division of the burdens
burdens and articulations of the case
l64 A trial was
between
between prosecution
prosecution and defendant. 164
was no longer aa free-form
165 Unfortunately,
inquiry.16S
trial judge
judge became
became "largely
"largely ignorant of the case
Unfortunately, the trial
inquiry.
the
interjection
In
essence,
to
try."166
he was about
try."I66
essence,
interjection of defense
defense counsel
counsel
about
longer
joined
Jurors no
criminal trials.
joined the
changed the theory of criminal
changed
last
volunteered information.167
conversation, asked for witnesses,
witnesses, or volunteered
information. 167 In the last
conversation,
quarter of the eighteenth
eighteenth century, it was rare for jurors
jurors to comment on the
168
Judges
case. 168
Judges retreated
retreated from the old pattern of involvement in the merits of
of
153. See LANGBEIN,
LANGBEIN, supra
supra note 11,
11, at 177.
154. Id.at 242.
154.Id.
155. Id
155.Id.
156. Id
Id. at 179.
251.
157. Id at 25t.
157.Id.
158. By the end
end of the eighteenth century, one-quarter
one-quarter to one-third of defendants
defendants in
Id.at 170.
the Old Bailey had benefit of counsel. !d.
11, at 253.
supra note 11,
159. LANGBEIN,
LANGBEIN, supra
id.
177, 251.
251.
160. See id.
at 177,
161. Id.
291.
161.
Id. at 29t.
Id at 312.
162. Id.
163. Id
163.Id.
Id at 313.
164. Id.
11, at 313.
LANGBEIN, supra note 11,
165. LANGBEIN,
166. Id.
166.Id.
id.
167. See id.
at 321.
321.
Id at 320.
168. Id.
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[VoL
the jury's verdict, eventually losing their ability to identify and correct juror
169
circumspect about commenting on
error. 169 In addition, judges became more circumspect
evidence.170 It may be argued that the "justice
"justice system"
system" reached a point
the evidence.17o
abandoned the truth-seeking
truth-seeking role of judge and jury and turned to a
where it abandoned
more adversarial system. While a two-sided adversarial system was better for a
defendant than a one-sided partisan system, something was lost:
lost: now, neither
defendant
side was seeking the truth.171
truth.'17 The reaction to perceived deficits in the pretrial
procedure prior to the allowance of counsel for the accused
accused lead to
procedure
deficiencies
deficiencies when the judge processed
processed the case for the jury. All of these
factors led to allowing counsel to participate in criminal trials on behalf of the
accused.
TRIALS
PART III. MODERN TRIALs
In the United States, when one wants to resolve a dispute, there is a trial.
Each side selects its own advocate, and the judge and jury make their decisions
based on the evidence
"We have relied on trials for our
evidence presented
presented in court. "We
our
172
entire history as a nation."
nation."I72
The modem
modern trial "can
characterized as trial by argument."173
argument.' 73 Typically
"can be characterized
Typically
each of the opposing sides argues its case "according
"according to a set of fixed and
and
formal rules."174
rules."' 174 Similar to trial by combat, the modern
modem adversarial trial
conflict. 175 One of the major tools used in
purports to "find
"find truth"
truth" through conflict.175
this combat is cross-examination.
cross-examination.
Cross-examination has been heralded as the result of common law tradition
Cross-examination
and the definitive forensic device for uncovering
uncovering the truth.
truth.177 66 However,
serious concerns arise with reliance on cross-examination
cross-examination as the exclusive
exclusive
77
engine for truth-finding. 177
Many practitioners
misuse
the
device
or
practitioners
or abuse
78
178
witnesses
in
the
process.
Trial
becomes
sport,
or
a
battle
to
be
won,
instead
witnesses
process.
becomes
instead
169. Id. at 321.
169.Id.
321.
170. Id.
Id. at 321-22.
171. LANGBEIN,
LANGBEIN, supra note 11,
11, at 332.
171.
172. Rubin, supra note 14, at 261.
261.
at 277.
173. Id.
Id. at
174. Id.
174.Id.
175. But
Proof and
and the
the
175.
But see
see Charles
Charles Nesson,
Nesson, The Evidence or the Event? On Judicial
Judicial Proof
Acceptabi'y
Vericts, 98
L. REV.
1357, 1367-68
(1985) (arguing
Acceptabili!J of
ofVerditts,
98 HARV.
HARV. L.
REv. 1357,
1367-68 (1985)
(arguing that the purpose
purpose of trials
is
is to
to produce
produce verdicts
verdicts that
that the
the parties will accept, not
not to
to reveal
reveal the truth).
176. 5 JOHN
176.5
JOHN HENRY
HENRY WIGMORE,
WIGMORE, EVIDENCE
EVIDENCE IN TRIALS
1'RIAI..s AT
AT COMMON
COMMON LAw
LAw S1362
§1362 & n.1;
n.l;
Richard
Underwood, The Limits
Richard H.
H. Underwood,
limits of Cross-Examination,
Cross-Examination, 21 AM. J. TRIAL
TRIAL ADVOC.
ADVOC. 113,
113, 117 (1997)
('The
(''The older
older handbooks
handbooks on
on advocacy
advocacy frequently
frequently allude to the almost supernatural
supernarural power
power of the
the
experienced
lawyer-the power
power to confront
confront and
and break
break the false
false witness.").
witness.").
experienced trial
trial lawyer-the
177.
177. Underwood,
Underwood, supra
supra note
note 176, at 119-20.
178.
178. See
See FED.
FED. R.
R. EVID.
EVID. 412
412 advisory
advisory committee's
committee's note ('The
(''The rule aims
aims to safeguard
safeguard
the
the alleged
alleged victim
victim against
against the
the invasion
invasion of
of privacy,
privacy, potential
potential embarrassment
embarrassment and sexual
sexual
stereotyping
stereotyping that
that is
is associated
associated with
with public
public disclosure
disclosure of intimate sexual
sexual details
details and
and the
the infusion
infusion
of
Cross-Examining Legal
of sexual
sexual innuendo
innuendo into
into the
the factfmding
factfmding process.');
process."); R. George
George Wright, Cross-Examining
Legal
Ethics:
803-07 (1995).
Ethics: The
The Roles
Roles of
ofIntentions,
Intentions, Outcomes, and
and Character,
Character, 83
83 Ky. L.J.
L.J. 801,
801, 803-07
(1995).
HeinOnline -- 14 Widener L. Rev. 374 2008-2009
Learningfmm the
the Past?
Past? Or
OrDestined
Desinedto Repeat
Repea PastMistakes?
Past Mistakes?
Uamin/!.ftum
20091
2009]
375
179
of aa process
process designed
designed to
to uncover the truth.
truth.179
may lose
lose sight
sight of
of
Prosecutors may
of
the goal
goal of seeking
seeking justice
justice and rely
rely on
on the
the adversarial
adversarial process
process to
to produce
the
results.'8
Could allowing
allowing more
more participation
participation by
by the judge and
and jury
jury
suitable results.
ISO Could
during trial
trial ftx
fix the
the defects
defects inherent
inherent in
in an
an adversarial system?
system?
during
A. Role oJJudges
ofJudges
A.
ISI Her job is
The modern judge is
is the "chief operating offtcer"
officer" of
of the trial.
trial.181
is
The
82
to
make
sure
that
the
trial
progresses
quickly,
efficiently,
and
predictably.
to make sure that the trial
efftciently,
predictably.ls2
The Federal
Federal Rules
Rules of Evidence
Evidence allow
allow a judge some discretion to call witnesses
The
83
and to
to cross-examine
cross-examine these witnesses. IS3
Further, a judge may, when
and
appropriate,
comment
on
the
evidence.
allowed,
appropriate, comment
evidence. While these measures are allowed,
most courts
courts stress extreme caution,l84
caution, 8 4 and the case law shows that such
most
85
practices are not always condoned. lss
Judges must practice restraint, avoid
practices
179. Daniel
Daniel D.
D. Blinka,
Blinka, Ethics,
Ethics, Evidence,
Evidence, and
and the Modern
Modern Adversary Tria/,
Trial, 19 GEO.).
GEO.J. LEGAL
179.
ETHIcs 1, 13-14 (2006).
ETHICS
180. See
See Fred
C. Zacharias,
Zacharias, The
The Role
Roe of
in Serving
Seving Justice
Convictions, 58
180.
Fred C.
oj Prosecutors
Prosecutors in
Justice After Convictions,
VAND.
REV. 171,220-22
171, 220-22 (2005).
V
AND. L. REv.
181. STEVEN
STEVEN FRIEDLAND
FRIEDLAND ET
ET AL.,
PRACTICE.30 (3d ed. 2007).
181.
AL., EVIDENCE LAW
LAw AND
AND PRACTICE.
182.
Id.
182.Id
183. Federal
Federal Rule
Rule of
of Evidence
Evidence 614
614 provides
183.
provides for the judge's right to question
witnesses:
witnesses:
(a)
Calling by
by Court.
may, on
its own
(a) Calling
Court. The
The court
court may,
on its
own motion
motion or at the
suggestion of
call witnesses,
suggestion
of aa party,
party, call
witnesses, and all parties are entitled
entitled to crossexamine witnesses thus called.
(b) Interrogation
Interrogation by
by Court.
The court
may interrogate
whether
(b)
Court. The
court may
interrogate witnesses,
witnesses, whether
called
called by itself or by a party.
(c)
(c) Objections.
Objections. Objections
Objections to the
the calling
calling of witnesses
witnesses by
by the
the court
court or
or to
interrogation
by it
it may
interrogation by
may be
be made
made at the time or
or at the next
next available
opportunity
the jury
present.
opportunity when
when the
jury isis not
not present.
FED.
FED. R.
R. EVID. 614.
184. United
States v.
184.
United States
v. Washington,
Washington, 417
417 F.3d 780,
780, 784 (7th Cir. 2005) ("[T]he
("[I]he judge
judge
must
from 'assum[mg]
must refrain
refrain from
'assum[tng] the
the role
role of
of an
an advocate
advocate for
for either
either side."'
side.'" (quoting
(quoting United
United States
States v.
Martin,
189 F.3d
1999))). While the
Martin, 189
F.3d 547,
547, 553
553 (7th
(7th Cir.
Cir. 1999))).
the trial
trial judge may, when
when the
the situation
situation
warrants,
warrants, discuss
discuss the
the evidence
evidence he
he must
must do
do so
so impartially
impartially and abstain from
from advocacy
advocacy for either
either
party.
party. Boatright
Boatright v.
v. United
United States,
States, 105 F.2d 737,
737, 739
739 (8th Cir. 1939);
1939); Cline
Cline v. United States,
States, 20
F.2d
Cook v.
States, 18
18 F.2d
1927); Hurwitz
F.2d 494,
494, 496
496 (8th
(8th Cir.
Cir. 1927);
1927); Cook
v. United
United States,
F.2d 50, 52 (8th
(8th Cir. 1927);
Hurwitz v.
United
States,
299
F.
449,
451
United States, 299 F. 449, 451 (8th
(8th Cir.
Cir. 1924);
1924); Weare
Weare v. United
United States,
States, 1
1 F.2d 617, 618
618 (8th Cir.
1924);
25-26 (8th
1924); Stokes
Stokes v.
v. United
United States,
States, 264
264 F.
F. 18,
18,25-26
(8th Cir.
Cir. 1920).
1920).
185.
185. See,
See, e.g.,
e.g., Quercia
Quercia v.
v. United
United States,
States, 289
289 U.S.
U.S. 466,
466, 470
470 (1933);
(1933); United
United States
States v.
v.
Godwin,
Godwin, 272
272 F.3d
F.3d 659,
659, 679-81
679-81 (4th
(4th Cir.
Cir. 2001);
2001); United
United States
States v. Fernandez,
Fernandez, 480 F.2d
F.2d 726,
726, 737-38
737-38
(2d
(2d Cir.
Cir. 1973);
1973); United
United States
States v.
v. Cassiagnol,
Cassiagno~ 420
420 F.2d
F.2d 868,
868, 879
879 (4th
(4th Cit.
Cir. 1970);
1970); Pollard
Pollard v. Fennel,
Fennell,
400
400 F.2d
F.2d 421,
421, 424
424 (4th
(4th Cit.
Cir. 1968);
1968); Bursten
Bursten v.
v. United
United States,
States, 395
395 F.2d
F.2d 976, 983
983 (5th Cit.
Cir. 1968);
Blumberg
1955); United
v. United
United States,
States, 222
222 F.2d
F.2d 496,
496, 501
501 (5th
(5th Cit.
Cir. 1955);
United States
States v.
v. Green, 429
429 F.2d
F.2d
Blumberg v.
754,
754, 760
760 (D.C.
(D.c. Cit.
Cir. 1970);
1970); Blunt
Blunt v.
v. United
United States,
States, 244
244 F.2d
F.2d 355,
355, 365-66
365-66 (D.C.
(D.c. Cit.
Cir. 1957).
1957). Cf.
Cj
FED.
FED. FR. EVID.
EVID. 614
614 advisory
advisory committee's
committee's note
note ("While
("While exercised
exercised more
more frequently
frequently in
in criminal
criminal than
than
in
in civil
civil cases,
cases, the
the authority
authority of
of the
the judge
judge to
to call
call witnesses
witnesses isis well
well established
established....
....[T]he
[I]he judge
judge is
is not
not
imprisoned
imprisoned within
within the
the case
case as
as made
made by
by the
the parties.');
parties.''); Griffin
Griffin v.
v. United
United States,
States, 164
164 F.2d 903
903
(D.C.
(D.c. Cit.
Cir. 1947);
1947); MCCORIUCK
MCCORMICK ON
ON EVIDENCE
EVIDENCE §§ 8,8, 16
16 (Kenneth
(Kenneth S.
S. Broun
Broun ed.,
ed., 6th
6th ed. 2007)
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[VOL
acting in
in such
such aa way
way as
as to
to "tilt"
"tilt" or
or direct
direct the
the jury's
jury's verdict,
verdict, and
and refrain
refrain from
from
acting
attempting to control
control jury
jury deliberations.
deliberations.
attempting
To avoid
avoid reversal
reversal or
or censure,
censure, judges
judges today
today must sit as
as referees,
referees, processing
processing
To
86
of asking
asking the questions
questions that
that need
need to
to be
be asked.1
asked. 186
the case
case to the
the jury, instead
instead of
the
Criticism abounds
abounds for judges
judges cross-examining
cross-examining witnesses-the
witnesses-the result
result is
Criticism
is biased
judge
the
that
perception
the
considered
to
taint
the
process,
creating
the
perception
that
judge
biased
creating
process,
the
taint
considered to
87
or commenting
commenting on
on the
the evidence.
evidence. 18
? It
It has
has been
been argued
argued that courts
courts should
should
of evidence
evidence because
because doing
doing so
so
involving themselves
themselves in the
the presentation
presentation of
avoid involving
88
188
argument
This
on the traditional
traditional adversarial
adversarial system
system of justice.
justice.
This argument
encroaches on
encroaches
pure adversarial
adversarial system,
system, free of
of defects,
defects, could be
be
persuasive if aa pure
might be persuasive
major flaw in the current
current system, however,
however, is that an
an advantage
advantage in
in
achieved. A major
resources can
can lead
lead to an advantage
advantage in
in litigation.
litigation.
resources
claim that allowing
judge to
to have
have more
more control over the process
process
Critics claim
allowing aa judge
Critics
189
More control
her case. 189
control by
restrict an attorney's
attorney's ability
ability to direct her
would restrict
judges would mean less control
control by attorneys.
attorneys. Arguably,
Arguably, the
the attorney
attorney is in the
judges
better position to present evidence
evidence on
on behalf
behalf of
of the party. Others
Others argue that
that
better
evidence
of
gathering
in
the
to
participate
position
participate the gathering evidence
judge is not in the best position
the judge
well,
because there
there is the possibility the investigation will not be done well,
because
particularly given that the judge is not subject to the same incentives
incentives and
and
particularly
19°
motivations
motivations to pursue
pursue complete
complete fact-finding. 190
B. Role of the Modern Jug
Jury
The basic role of the modern jury is to solve factual disputes presented
during the course of the trial within
within the confines
conftnes and rules given to it by the
WEINSTEIN, ET AL., CASES AND MATERIALS
(1954); JOHN M. MAGUIRE, JACK
JACK B. WEINSTEIN,
MATERIAL'> ON EVIDENCE
1965); WIGMORE, supra
303-304 (5th ed. 1965);
supra note 10, at §§ 2484.
186.
ate many judges
judges who would disagree with this assessment. See, e.g.,
e.g., United
186. There are
(D.C. Cir. 1974) ("The precepts of fair trial and judicial
States v. Liddy, 509 F.2d 428, 438 (D.c.
by the interest
objectivity do not require a judge to be inert. The trial judge is properly governed by
interest
at aa sporting
sporting
merely presiding at
of justice and truth,
and is
is not compelled to act as if he were merely
truth, and
are not
not
it, "Federal
"Federal judges ate
moderator."') As Justice Frankfurter put it,
not a 'mere moderator."')
match. He is not
54
States, 333 U.S. 46, 54
referees at
justice." Johnson v. United States,
at prize-fights but functionaries of justice."
in part).
part).
(1948) (Frankfurter, J., dissenting in
(1948)
Cir. 1989);
(D.C. Cir.
1525-26 (D.c.
F.2d 1519, 1525-26
873 F.2d
v. Norris, 873
See, e.g., United States v.
187. See,
Terminal R.R.
Pac. Terminal
1969); Texas Pac.-Mo. Pac.
(8th Cir.
Cir. 1969);
States, 408 F.2d 837, 841 (8th
v. United States,
Kramer v.
Cir.
431, 433
433 (2d Cir.
146 F.2d 431,
York, 146
New York,
Pariser v. New
Cir. 1950); Pariserv.
v.
179 F.2d 880, 881-82 (5th Cir.1950);
v. Welsh, 179
Mark C.
to "ascertain
"ascertain the truth." See, e.g., Matk
that the
the jury's purpose is to
argue that
1945). Some would atgue
1945).
Criminal
in Criminal
Witnesses in
Questions To Witnesses
Written Questions
Not Pose
Pose Written
May Not
Roberts, II,
II, Evidence--Witnesses-jurors
Evidence-Witnesses--JurorsM'!)'
(1993).
1421, 1422
1422 (1993).
L.J. 1421,
ST. MARy'S
MARY'S L.J.
Cases,24 ST.
Cases,
in
and Expenses in
Fees and
Ldgants: Witness Fees
PauperisLitigants:
In Forma
Fotma Pauperis
188.
Note, In
R. Levine, Note,
188. Kenneth R.
1481 (1985).
REV. 1461,
1461, 1481
L. REv.
CivilActions,53 FORDHAM L.
CivilActions,
to convince
lawyer has
has to
that aa lawyer
tool that
is the
the strongest tool
narrative is
the narrative
189.
189. It
It has been urged the
L. REv.
REV. 255, 255
Secrets, 88 UDC/DCSL L.
KeepingSemts,
StoriesAnd lVeping
Telng Stories
Abbe Smith, Telling
See generallY
general#Abbe
jury. See
aa jury.
(2004).
(2004).
26
Do justice,
Justice,26
like# to Do
More likelY
Jury Systems:
Systems: More
andjury
Adversarialand
America'sAdversarial
190. Gerald
Gerald Walpin, America's
190.
(2003).
175, 177
177 (2003).
POL'Y 175,
J.L. && PuB.
PUB. POL'y
HARv.J.L.
HARv.
HeinOnline -- 14 Widener L. Rev. 376 2008-2009
2009]
Lem 'ngfromthe Past?
Desiinedto Repeat
RepeatPatMistakea?
LeaminJ!.frrJm
Past? Or Destined
PastMistakes?
377
91
court.'191
COurt.
The jury system is premised on the idea that jurors remain passive
192
ask questions.
questions. 192
do not
not ask
typically do
and typically
and hear information from the advocates, and
The core of the adversarial process is the promise that, through the sharp
The
presented by adversaries in a highly structured forensic
forensic setting,
clash of proofs presented
"truth" will emerge. The information upon which
emerge. The information upon which the jury may base its
"truth" will
193
process. 193
trial process.
decision must be sanitized by the trial
common
Tracing the roots of the adversary system back to early English common
law, we see that juries were originally required to be neither neutral nor
passive, but rather were expected to actively investigate disputes and report
their conclusions
the
conclusions to a judge or court officer acting on behalf of the
94
sovereign.
Over
several
centuries,
English
(and
later
American)
trial
sovereign.194
procedure evolved so that opposing litigants,
litigants, represented by professional
advocates both
both· before
before and during trial, presented evidence to a jury in open
open
court. Eventually, the jury came to be viewed as a completely "neutral and
decision-maker."' 195 Juries are expected to refrain from making any
passive decision-maker."195
judgments until the conclusion of the contest and are strictly prohibited
prohibited from
196
"Adversary theory
"Adversary
becoming actively involved in the gathering of evidence. 196
decision-maker strays from the passive role, he runs a
suggests that if the decision-maker
prematurely committing
committing himself to one or another version of
serious risk of prematurely
evidence."' 97 Rules
the facts and of failing to appreciate the value of all of the evidence."197
198
end.198
this end.
of evidence evolved
evolved and were honed to achieve
achieve this
99
There have been many calls for reform of the jury system. 199
The Federal
Rules of Evidence neither directly permit nor directly
restrict
jurors from
directly
191. Jeffrey
Jeffrey S.
S. Berkowitz,
Berkowitz, Note,
the Silence:
Be Allowed
Allowed to Question
Question
191.
Note, Breaking
Breaking the
Silence: Should
Should Jurors
Jurors Be
During Trial?,
Trial?,44 VAND. L. REv. 117, 119 (1991).
(1991).
Witnesses During
192. Lisa M.
Questioning of
of Witnesses by
Jurors, 27 AM.
M. Harms,
Harms, Comment, The Questioning
f?y Jurors,
AM. U.L.
u.L. REV.
REv.
ProperFuntion
365, 366127, 129 n.10
n.l0 (1977) (citing Jack
Jack Pope, The Proper
Function ofJurors,
ofJurors, 14 BAYOR
BAYOR L. REv.
REv. 365,36667 (1962)).
(1962».
193. See STEPHAN LANDSMAN,
LANDSMAN, THE ADVERSARY
ADVERSARY SYSTEM: A DESCRIPTION
DESCRIPTION AND
AND
DEFENSE
DEFENSE 2 (1984).
supranote
194. See White, sgpra
note 25, at 15.
195. Stephan
Landsman, The
CiilJug
195.
Stephan Landsman,
The Civil
Jury in
in America,
America, 62 LAw
LAw & CONTEMP.
CONTEMP. PROB.
PROB. 285,
285,
288 (1999);
(1999); see also LANGBEIN,
LANGBEIN, supra
sgpra note 11,
11, at 64-65.
64-65.
196. However,
in many jurisdictions, jurors
jurors are
are allowed to ask questions and
and add an
196.
However, in
aspect
the entire
aspect of
of truth-seeking
truth-seeking to
to the
entire process.
process. See
See Jonathan
Jonathan M. Purver, Annotation,
Annotation, Propriety
Proprie!J of
of
JurorAskingQuestions
CourtDuring
Juror AskingQuestions in Open Court
During the Course
Course ofTrial,
Trial, 31 A.L.R.
A.L.R. 3d 872, 878-80 (1970).
197. LANDSMAN,
179, at
13-14
197.
LANDSMAN, supra
sgpra note 193, at 2-3;
2-3; see general#
general!J Blinka, supra
sgpra note 179,
at 13-14
(outlining
(outlining adversary
adversary theory).
198. LANGBEIN,
15-21.
LANGBEIN, supra
sgpra note 11,
11, at 243-46;
243-46; seegeneral#
see general!J Blinka,
Blinka, supra
sgpra note
note 179,
179, at 15-21.
199.
"twenty-eight judges
199. For example,
example, in the Second Circuit, "twenty-eight
judges throughout
throughout the circuit
circuit
began
began the
the experimental
experimental use of
of one or more of the following
following procedures,"
procedures," including
including in relevant
relevant
part:
part:
4. Advising
Advising jurors
jurors that
that they
they may
may seek
seek to have
have questions
questions asked of any
witness
of that witness's
witness at
at the
the conclusion
conclusion of
witness's examination;
examination;
5.
they may take
take notes;
notes;
5. Affirmatively
Affirmatively advising
advising jurors
jurors that they
6.
6. Furnishing
Furnishing the jury with aa post-delivery
post-delivery written
written copy of the
the charge,
charge,
which the
the jury room
room for use
use during deliberations;
deliberations; and
the jury
jury may take into the
HeinOnline -- 14 Widener L. Rev. 377 2008-2009
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Low Retiew
Review
[Vol
1V0L 14:357
14:357
00 Potential problems perceived to exist in
asking witnesses
witnesses direct
direct questions.
questions.22oo
problems perceived
in
asking
of witnesses
witnesses by
by jurors
jurors in
in open
open court
court include
include prejudice
prejudice to a
oral questioning
questioning of
the oral
of control
control of the trial by
by the court. Several
Several courts
courts have
party and
and loss
loss of
party
questioning by
by jury
jury members in
in open
open court
court
discouraged the
the process
process of questioning
discouraged
because
thought to be unqualified
unqualified to conduct
conduct such
such an
an
because the jury
jury is thought
0 2 Furthermore,
examination,201 while
while other
other courts
courts have allowed the practice. 2202
Furthermore,
examination,201
counsel may
will put
put the
the party
party in a
may fear that its objections
objections to juror questions
questions will
difficult position.220033 Commentators
Commentators disagree about
about the pros
pros and cons of jury
2°4
participation
participation in
in questioning
questioning witnesses. 204
Tape-recording the court's charge
7. Tape-recording
charge and furnishing the jury
jury with
with the tape
and a player
player for use during deliberations.
deliberations.
Leonard
Leonard B. Sand
Sand &
& Steven
Steven Alan Reiss, A
A Report on
on Seven Experiments
Experiments Conducted
Conducted By District Court
Court
Judges in the Second Circuit,
Cirotit, 60
60 N.Y.U.
N.Y.U. L. REv. 423, 424
424 (1985) (citations omitted).
200. The only
only guidance
guidance the
the Federal
Federal Rules of
of Evidence
Evidence give is Rule 611,
611, which states:
The court
court shall
shall exercise reasonable
reasonable control
control over the mode and
and order
order of
of
(1) make the
interrogating
interrogating witnesses and presenting
presenting evidence
evidence so
so as to (1)
interrogation
interrogation and presentation
presentation effective for the ascertainment
ascettainment of the truth,
(2) avoid needless
needless consumption of time, and (3) protect witnesses
witnesses from
harassment or undue
undue embarrassment.
embarrassment.
harassment
of
"The court may, in the exercise of
FED. R. EVID. 611(a). The rule goes further to state that ''TIle
discretion, permit inquiry into additional
additional matters as if on
on direct examination."
examination." FED. R. EvID.
EVID.
discretion,
611(b).
611 (b).
201. United States v. Bush, 47 F.3d 511,
511, 515
515 (2d Cir. 1995).
1995).
202. For example, the Arizona Supreme
Supreme Court amended
amended its Criminal Procedure in
1995 to state:
Jurors shall be instructed
instructed that they are permitted to submit to the court
witnesses or to the court; and that opportunity
written questions directed
directed to witnesses
the presence
of
will be given to counsel
counsel to object to such questions out of the
presence of
Notwithstanding the foregoing, for good cause the court
the jury. Notwithstanding
court may
prohibit or limit the submission of questions to witnesses.
of
18.6(e). The Supreme Court of California
CRIM. P. 18.6(e).
California has approved
approved of the practice of
17 ARIz.
Aiuz. R. CRiM.
People v.v.
permitting jurors to submit questions,
questions, through the trial
trial court, for witnesses. In People
1993), the court rejected
1, 47, 48 (Cal. 1993),
Cummings,
rejected the argument
argument that such a procedure
Cummings, 850 P.2d 1,47,48
finders and
violated due process by permitting jurors "to depart from their role as neutral fact ftnders
1995). The
observers." See also People
detached observers."
People v. Davis, 896 P.2d 119, 167-168
167-168 (Cal. 1995).
The Florida
authorized the practice,
Supreme Court has authorized
practice, but it is important to point out that the court did
discretionary authority to allow jurors to
not endorse it. The court stated that the existence of discretionary
that they should be
ask questions does not imply that juror questions must be allowed, or even that
v. State,
821, 828-29 (Fla. 2006); Watson v.
State, 651 So. 2d
allowed. See Morris v. State, 931 So. 2d 821,
1994).
1159, 1163 (Fla. 1994).
1159,1163
1991), the court writes:
State, 807 S.W.2d 639, 641-42 (Tex. App. 1991),
203. In Allen v.v. State,
Permitting a juror to spontaneously ask a direct, oral question of a witness
could create substantial problems
problems as follows:
[urors] by
1. It places counsel "in the intolerable condition of offending Ourors]
1.
improper or impossible prejudicial testimony to
objecting
objecting or permitting improper
objection;"
come
come in without objection;"
HeinOnline -- 14 Widener L. Rev. 378 2008-2009
2009]
2009]
Lea~gfri/ the
tmm
Pas??Or
OrDetned
Repea Past
PartAiak"?
LaminJ!.frvm
Past?
Destined 10to Repeat
Mistakes?
379
IV. CONCLUSION:
CONCLUSION: LEsSONS
LESSONS LEARNED
LEARNED
N.
Can all
all of
of the
the shortcomings of
of the
the modem
modem adversary system be
be solved
solved by
by
Can
increasing
the
roles
judge
and
jury?
Because
no
one
person or entity in
in our
person
increasing the roles
adversarial trial
trial isis seeking the
the truth,
truth, sometimes
sometimes the truth
truth gets lost
lost in
in the
the
adversarial
There is
is good
good reason to
to believe
believe that an active
active judge and
and jury
jury
gamesmanship. There
have always
always been
been aa part
part of
of the direct history of
of the modem adversarial
adversarial trial.
have
Some of
of the
the earliest
earliest records
records of the
the sixteenth
sixteenth and
and seventeenth century trials
trials
Some
show that lawyers rarely
rarely participated in criminal trials, as
as they were thought to
show
truth-finding. Therefore, it was the province of
of the
the judge to order
order the
impede truth-finding.
of proof,
proof, call witnesses, and
and aid the defendant in cross-examining
cross-examining
presentation of
witnesses. The roles of judges as
as active truth-finders in common
common law
law trials
witnesses.
(neutral
decision-makers
on
legal
issues,
representatives
of
the
Crown,
(neutral decision-makers
legal
commentators
on
the
persuasiveness
of
evidence,
and
persuasiveness
oftentimes confronters
commentators
of the
the witnesses)
witnesses) contrasts with our perception of judges'
judges' roles in today's
of
adversary trial system.
These roles were crucial to the sustained validity of
of a state-run system of
of
These
justice.
We are
are too
too fast to discount this history when we make arguments that
justice. We
judges should
should have
have limited
limited discretion
discretion or that jurors should sit passively
judges
without taking
taking notes
notes or
or actively engaging in the questioning of witnesses.
without
There
"informed jury,"
jury," including local
There were many problems with the historical "informed
bias and specific knowledge of the alleged crime or the defendant. These
issues
solved in
in our
our current
current adversarial
adversarial system through effective use
issues have
have been
been solved
of
voir
dire.
The
problems
of
the
past,
in this regard, will not be repeated in
of
problems
our current
system.
current
2. It
causes [jurors]
2.
It causes
Ourors] involved
involved to lesson [their] objectivity and causes
causes a
premature
premature judgment
judgment on some issue of the case;
3.
[jurors] and witnesses
3. It
It produces
produces tension
tension or
or actual
actual antagonism
antagonism between
between Ourors]
witnesses
as
result of
as aa result
of the
the interaction.
interaction.
Id
(quoting People
Cal. Rptr.
1985)).
Id. (quoting
People v.
v. McAlister,
McAlister, 213
213 Cal.
Rptr. 271,277
271, 277 (Cal. Ct. App. 1985)).
204.
204. See
See Roberts,
Roberts, supra
Jtpra note
note 187,
187, at
at 1424:
1424:
Courts
Courts and
and scholars
scholars debate
debate the
the merits of
of allowing
allowing jury
jury questions.
Advocates
Advocates generally
generally cite
cite five
five reasons
reasons for allowing
allowing jury
jury questioning. First,
such
such aa system
system allows
allows jurors
jurors to
to better
better understand
understand evidence
evidence presented
presented to
them
them by
by permitting
permitting them
them to
to follow
follow up
up or clarify
clarify evidence
evidence presented.
presented.
Second,
Second, jury
jury questioning
questioning allows
allows juries
juries to
to obtain
obtain evidence
evidence that may
may have
been
been left
left out
out accidentally
accidentally by
by counsel.
counsel. Third,
Third, jury questioning
questioning more
more deeply
deeply
involves
trial. Fourth,
Fourth, jury
jury questioning
questioning alerts
alerts the parties
parties as
as to
involves the
the jury
jury in
in the
the trial.
what
what jurors
jurors are
are thinking,
thinking, and
and provides
provides insight
insight into
into which
which issues
issues need
need
clarification
clarification or
or further
further development.
development. Last,
Last, allowing
allowing jury
jury questioning
questioning
enhances
enhances the
the jury's
jury's confidence
confidence in
in arriving
arriving at
at aa verdict.
verdict.
Id
Id. at
at 1424
1424 (citations
(citations omitted);
omitted); see,
Jee, e.g.,
e.g., United
United States
States v.
v. Callahan,
Callahan, 588
588 F.2d
F.2d 1078,
1078, 1086
1086 (5th
(5th Cir.
Cir.
1979)
1979) (discussing
(discussing the
the propriety
propriety of
of occasionally
occasionally allowing
allowing jurors
jurors to
to question
question witnesses).
witnesses).
HeinOnline -- 14 Widener L. Rev. 379 2008-2009
380
WidenerLaw
Law Remew
Review
[Vol. 14:357
14:357
addition to the
the clear
clear historical
historical precedent,
precedent, research
research shows
shows that allowing
allowing
In addition
220S
05
We
can
process.
not disrupt
disrupt the trial
trial process.
can easily
easily
jurors to ask
ask questions
questions does not
jurors
integrate aa more
more active jury
jury into
into our
our adversary
adversary system
system with
with few negative
negative
integrate
06
Research shows
shows that
that there
there are
are benefits
benefits to providing
providing jurors
jurors
consequences.2206
Research
consequences.
with a more
more active
active role, including
including enabling
enabling jury
jury members
members to pose questions to
to
with
207
witnesses. 207
witnesses.
allowing jurors
jurors to ask
ask questions
questions gives
gives great
great benefits
benefits to
to the
the jury
jury
First, allowing
2°8
members themselves.
themselves.208
Allowing jurors to ask questions
questions promotes
promotes juror
juror
Allowing
members
understanding and,
and, much
much as
as with
with classroom
classroom experiences,
experiences, allows
allows the jurors
jurors to
understanding
interact with
with and work
work through
through the evidence. Further, juror questioning
questioning can
can
interact
20 9
In
comprehension of
of expert witnesses
witnesses and scientific
scientific testimony.
testimony.209
In
aid in the comprehension
they
feel
when
their
service
jurors tend to feel more
more satisfaction
satisfaction with
with
when they feel
addition, jurors
210
important and
and connected
connected to this unique experience.
experience. 210
Not only do jurors
jurors benefit,
benefit, but
but counsel
counsel may benefit
benefit as well. Juror
Juror questions
counsel about
about issues that have not been
been fully developed
developed and need to
can signal counsel
211
addressed further.
further.21t
Questions
by the
the jury
jury may
may allow the court
court to
Questions posed by
be addressed
212
Judges
correct juror misperceptions
misperceptions in aa timely
timely manner.
manner.212
Judges can
can issue
correct
alleviate any jury
collaborative instructions
instructions on these points to alleviate
collaborative
allowing jurors to pose questions improves
misunderstanding. Further, allowing
communication between the juror and the advocate,
advocate, allowing
allowing a two-sided
two-sided
communication
exchange
exchange of information.
consequences of juror
With
With all the positive consequences
juror interaction,
interaction, there
there are also
also some
213
213
Attorneys
Attorneys worry that jurors will ask
ask
perceived negative
negative consequences.
consequences.
perceived
inadmissible
inadmissible questions
questions and will become upset when the questions are not
214 Further, counsel might
allowed. 214
might be at a disadvantage
disadvantage if he or she objects
objects to
to
a question a juror has posed. Studies,
Studies, however,
however, show that jurors
jurors ask
ask relatively
relatively
solved
few inadmissible
inadmissible questions, and the fear of hurt feelings is easily solved
Reform-Executive
Past,Present
ArizonaJury,
205. See Michael A. Yarnell, The Arizona
Jury, Past,
Present andFuture
Future Reform-Executive
http://michaelyamell.com/TheArizonaury-ExecutiveSummary.pdf.
Summay, Nov. 7, 2005, http://michaelyarnell.com/TheArizonaJury-ExecutiveSummary.pdf.
Summary,
UnansweredQuestions,41 CT. REV.
al., Jurors' UnansweredQuestions,
206. See, e.g.,
e.g., Shari Seidman
Seidman Diamond
Diamond et al.,Jurors'
REv. 20,
http://aja.ncsc.dni.us/courtrv/cr-41-1/CR41-lDiamond.pdf (Research
(2004), available at http://aja.ncsc.dni.us/counrv/cr-41-1/CR41-1Diamond.pdf
(Research
performed on jury participation
participation supported by research
research grants from the State Justice Institute,
resource
American Bar Foundation). For a good resource
the National Science Foundation and the American
Trial
guide to jury trial innovations in the United
United States, see Nat'l Ctr. for State Courts,
Courts, Jug
Jury Trial
http://www.ncsconline.org/WC/Education/JurInnGuide.htm.
Resource Guide,
Innovations, ReSOUf'fe
Innovations,
Guide, http://www.ncsconline.org/WC/Education/JurInnGuide.htrn.
see also State v. Fisher, 789 N.E.2d 222, 226-28
supra note 206, at 21; see
207. Diamond, supra
(Ohio 2003) (reviewing federal and state cases on questioning
questioning of the witnesses by the jury).
supra note 206, at 21.
208. Diamond, supra
of
Understandingof
Improve Juror
JurorUnderstanding
Trial Innovations
Can Juy
209. See B. Michael Dann et al., Can
Jury Trial
Innovations Improve
at
availabk at
Nov.
Evidence?,
DNA
Evidence?, NAT'L INST. JUST. J.,
2006,
at 2,
available
http://www.ojp.usdoj.gov/nij/joumals/255/tial-innovations.html.
http://www.ojp.usdoj.gov
/ nij/journals/ 255 / trial_innovations.html.
supra note 206, at 21.
210. Diamond, supra
211.
Id
211. Id.
212.
Id
212.Id.
213. Dann, supra
supra note 209, at 6.
supranote 205, at 12-14.
214. Yarnell, supra
214.
HeinOnline -- 14 Widener L. Rev. 380 2008-2009
20091
2009]
lm]ingfn the Past?
Past?Or
OrDestined
DeinedRJ
to Repeat
Reeat Past
PartMistakes?
mtes?
LeamiTIJ..frr;m
381
215
explain
through pre-instruction by the judge. 215
It also helps that the judge can explain
216
to the
the question.
question. 216
answer to
an answer
not permit
permit an
law does
does not
why the
the law
to the jury why
"sustained" that jurors
Certainly, this is better than the typical "granted" or "sustained"
in response to an objection. Research does not show
show a lengthy delay
hear in
does arise,
because of juror questioning-and, to the extent that some delay does
swift procedure does always lead to justice.
'The jury,
It is a fundamental aspect of citizenship to share in government. ''The
which
which is the most energetic means of making the people rule, is also the most
effective means of teaching it to rule,"
rule," said Alexis de Tocqueville. Full and
active participation of jurors and judges needs to
to be recognized as an integral
part of the development
of
the
modem
adversarial
development
adversarial trial. Only after many
centuries
did
attorneys
assume
an
active
role
centuries
in a trial, and not until the mid
1800s
were
attorneys
behalf
1800s
permitted to address the jury directly to argue on behalf
of the accused. Let it be a lesson learned that keeping the tradition of active
juror participation alive is a part of our direct history, and this history teaches
the importance
importance of helping the judge and jury find truth.
215.
Recommended Arizona Jury
215. For
For example,
example, Recommended
jury Instructions (Civil) 4th, Preliminary
Instruction No. 11, tided "Questions
Instruction
"Questions By Jurors,"
jurors," provides:
If
witness or for me, write
If you
you have
have aa question
question about
about the
the case
case for a witness
write it down,
but do not
not sign it. Hand
Hand the question to the bailiff. If
If your question
question is for a
witness
leave the witness
witness stand, please signal the bailiff
bailiff or
or
witness who is about to leave
me before the witness leaves the stand.
The
evidence or other
The rules of
of evidence
other
The lawyers
lawyers and I will discuss the question. The
rules of
may prevent
of law
law may
prevent some
some questions
questions from being asked. If the rules
rules
rules
permit the
the question
question and
answer is
is available,
available, an
an answer
answer will be given at
at
permit
and the
the answer
the
opportunity. When
the earliest
earliest opportunity.
When we do not ask
ask aa question, it is
is no reflection
reflection
on
on the
the person
person submitting it. You
You should attach
attach no significance
significance to the failure
to
to ask
ask aa question.
question. I will apply the same
same legal
legal standards
standards to your
your questions
questions as
I do to the questions
questions asked by
by the lawyers.
lawyers.
If
If aa particular
particular question
question is
is not
not asked,
asked, please
please do
do not
not guess
guess why
why or
or what
what the
answer
answer might have been.
REVISED
JURY INSTRUCTIONS
Questions by
y Jurrs
REVISED ARIZONA
ARIZONA JURY
INSTRUCTIONS (CmL)
(CIVIL) 4th, Questions
Jurors 14 (2005),
(2005), availabk
available at
http://www.myazbar.org/SecComm/Committees/CIJI/CIJI-PDF/Preliminary.pdf.
http://www.myazbar.org/SecComm/Comrninees/Cljl/Cljl-PDF/Prelirninary.pdf.
216.
Diamond, supra
216. See Diamond,
supra note 206, at
at 24.
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