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The first thing New York State Chief Judge Judith Kaye did in her mid-1990s campaign to reform the state's jury system was commission a video to introduce jurors to the history and heritage of what she liked to call "our prized American jury." The video was done in high New York style—foundations made a couple of handsome grants, professional producers and cinematographers volunteered their services, distinguished law professors wrote the text, and celebrity tv journalists Ed Bradley and Diane Sawyer narrated the story, which opened in medieval England and closed in a New York City courtroom. The praise all round was lavish.
Not long afterward a world-famous historian stopped by one of the courthouse ombudsman booths run by my Citizens Jury Project. (Judge Kaye's second reform was to eliminate all exemptions, thereby requiring every New Yorker, including the famous ones, to serve.) "I'm not normally one to defend the Church of Rome," thundered the eminent historian to our young law intern, who dutifully took down his complaint verbatim,
but that video's re-enactment of trial by ordeal is a disgrace. The clichÉd stooped monk in cowl luridly signing the cross over a drowning woman! Really! Bigoted tripe! Surely Judith knows it was the church that stopped the whole thing, ended trial by ordeal and compurgation. Not lawyers. It was the twelfth century, for God's sake. There weren't any lawyers, just canonists trained by the church. And it was the canonists who developed rational proofs of guilt and innocence and who set up standards of impartiality that became our standards.
Cowed momentarily though our law intern was, she logged onto her computer for a Lexis search—though she didn't really believe the court's video had it wrong. But the historian was right on: In 1215, the Lateran Council, convened by Pope Innocent III to regularize ecclesiastical law, forbade priests from participating in trials by ordeal. Since the ordeal required an authoritative interpretation of divine judgment, this was the end of it. Even more astonishing, she found that for this as well as his general contribution to establishing the principles of Western law, Pope Innocent became one of the 23 jurists in history honored by a medallion in the House Chamber of the U.S. Capitol. She also learned that her hero Adam Smith admired trials by ordeal for their ability to "put a speedy end to a dispute." The incident gave us all pause for thought.
Not the least of the merits of William Dwyer's book on trial by jury is that he looks at the modern jury in the context of other forms of dispute resolution—such as battle and ordeal or potlatch, used by Indians of the Pacific Northwest—without assuming that these systems were invariably irrational. Nonetheless he writes—surely correctly—that "the rise of trial by jury amid medieval superstition and violence is one of the great stories of human advancement."
It has never been easy for human beings to regularize a system of judging their fellows, yet the survival of civil society depends on it. There is nothing anywhere in the world like our American jury. While many countries have authorized modified juries, no other country—not even England—permits this pervasive intrusion by citizens into both its criminal and civil courts. No other country abides so completely by criminal jury verdicts, nor does any other country permit juries to decide substantial civil awards. Yet every attentive American can readily name several instances of seemingly egregious criminal and civil jury verdicts. Does this make sense?
Judge Dwyer answers that indeed it is does, and that our jury system is superior to any alternative—including the obvious option of judge-only trials. He should know. After practicing law for 30 years in the state of Washington, he was appointed a federal judge in 1987. After his death at age 72 on February 14 of this year, The New York Times headlined his obit, "A Judge of Vast Influence." Dwyer is no cheerleader for the American justice system, which is guilty of what he calls the "Six Deadly Sins of American litigation: over-contentiousness, expense, delay, fecklessness, hypertechnicality." These are sins, he says, of process and access—failures in how we do things, and for whom, and at what cost to budgets and sanity. But they are sins of the adversary system as it is run today, and not of the jury—though the jury, he notes, is often blamed.
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