Trial by Jury; B. Sparks

We find trial by ordeal. Shortly before that, and to some extent contemporaneous with it, we find trial by battle. Eventually a group of men were called in to determine or decide the facts. This might have been the forerunner of our present-day jury but it was far from anything we would call a jury at the present time. At first these people who were called in to determine the facts were people familiar with all or some part of the incident involved. They had seen the incident take place or they had heard about it-yes, having heard about it was sufficient qualification in many cases-and they were to get together and decide the case. From this step we moved along to a jury of men who knew nothing about the existing facts but who were gathered together for the purpose of listening to the evidence and then deciding what was truth. Both sides were permitted to introduce evidence. The jury decided what they would believe. That set tled the matter so far as the facts were con cerned. Roughly, that is our present day jury.

Common Criticism Numerous attacks have been made upon the jury-so many in fact that it would be impossible for us to even list them. All we can do is to merely recall some of the most frequently mentioned criticisms. It is said that the jury causes a great waste of time. It has been pointed out that a trial by jury usually requires from two to three times the amount of time required when the jury trial is waived and the case is tried to a judge. It is said that this causes considerable delay and that the courts get so far behind trying ordinary cases that it becomes im possible to obtain justice in a given case within a reasonable time. It is also said that the jury is incompetent to determine many of the issues that come before it. They are men and women taken from everyday life, unfamiliar with court room procedure and courtroom language. They are misled by the judge's instruction, misunderstand the law, and give unfair or prejudiced decisions.

612 TRIAL BY JURY VS. TRIAL BY JUDGE 613 About the Author Buoyed by the O. J. Simpson trial, the jUry system has surfaced in the national conscience again. As Professor Sparks points out, discussion about juries is not new, but it remains relevant, for with new attention has come new attack. In this article, written almost four decades ago but unpublished until now, Professor Sparks defends one of our precious heritages from the law and customs of England, trial before a jury of our peers. The career of Bertel M. Sparks (1918-1994) as a professor of law was almost equally divided between the schools of law of New York University and Duke University. His expertise was in the areas of real property, wills, trusts, and future interests. He was the author of two books and of numerous journal articles, some of them published in The Freeman. Named to the Board of Trustees of The Foundation for Economic Education in 1972, he was a frequent speaker at FEE summer seminars. He became Trustee Emeritus of FEE several years before his death.

In preparing his papers for a university archive, I found this previously unpublished manuscript and edited it for publication. It was originally delivered as a speech before the Christian Association of New York University, November 6, 1957, and is excerpted for The Freeman. -Martha Evans Sparks (Mrs. Bertel M. Sparks) It is also said that the jury is likely to become intrigued by the two contesting lawyers, jurors are likely to decide the case according to what they think of the lawyers rather than what they think of the rights of the parties involved. Another charge made against the jury is that they can't understand the complicated transactions involved in many cases they are asked to decide. They don't understand what a bill of lading is. They don't know what is meant by goods being sold on consignment. They can't understand some of the embezzlement cases. 1 In the personal injury cases, they are in no position to fix damages. They can't estimate the value of a broken leg, a destroyed brain, a mangled body, or even a damaged automobile.

While all these things have some weight, those who would oppose any attack upon the jury system would insist that they are not as serious as might at first appear and that even if they are serious there is no satisfac tory substitute. As for the jury trial taking more time than trial by a judge, there is even some doubt about that. The time that is consumed is usually consumed through the operation of various rules of admissibility of evidence, motions for delay, and others. These might be defects in our procedural law but it is a mistake to say that they all can be blamed upon the jury system. As for the jury's alleged inability to cope with the facts before it and that it is an incompetent instrument for determining truth, this too may be doubted. Who is to say that a judge, or a group of judges, are in a better position to decide the amount of damage a truck driver should have for losing an arm than twelve men and women chosen at random and including mechanics, labor ers, grocery clerks, accountants, and pos sibly truck drivers.

The Heart of the Matter This brings us to the real heart of the matter and to the point where, in my judg ment, it becomes clear that the jury system must be preserved at all costs. If it is to be preserved it must be preserved, not simply because it is old, venerated, loved, or any of those things. If it is to be preserved it should be because it is essential to human liberty, individual dignity, and a free society.

614 THE FREEMAN • OCTOBER 1995 If political freedom and a stable society are to be preserved it is essential that there be a system ofjustice in which the public has confidence and willingness to trust. In your study of history you have been thrilled and spellbound by some of the stories of the steps toward human freedom, some of the great revolutionary movements in history. If you will examine those I believe you will find that most of them had their origin in some phase of the administration ofjustice. Every person who has even given thought about freedom of the press knows there is such a man as Peter Zenger. No one has read about the American Revolution without hearing of the Boston Massacre. The story of our own Civil War cannot be completed without Dred Scott and John Brown. When these rights are achieved, by what ever means, they get enforced, not through the legislature, not through the executive, but through the courts. They are trials. It is there that the individual findsjustice or fails to find justice. What can give him more confidence in that justice than the fact that twelve of his peers participate in meting it out. These twelve men are part of the process. The man concerned may feel that he is not getting justice. The community might not want to accept it. If it was decided by a representative group from the commu nity, it is likely to be accepted. It is here that the administration ofjustice is brought close to the people. The people are not ready to accept a doubtful decision made by a pro fessional, by a panel of experts, or by a dictator. They are ready to accept that decision which came from their own group.

And thejury is a means of bringingthe whole power of the citizenry to bear upon the daily administration of justice. The jury is also a means of bringing flexibility into the courtroom. The judge must be impartial. He must be impersonal. He must administer the law as he finds it. All this is said to the jury. The jury has been criticized by the allegation that it does not apply the law but is swayed by the emotional appeal of the particular case. The very fact that it is so swayed is one of its crowning features. When the jury-twelve of your peers-retires to the jury room it becomes king. It becomes king but a very responsible king. The door to that jury room must remain forever inviolate. What goes on in there is their business and theirs alone. But they are twelve men. They are strangers to each other. They must answer to each other and to their own consciences. They must also live in the community where they made that decision. They are necessarily limited in their actions by all these things.

Dean Wigmore2 has told us of a young woman who was earning her own living but who succumbed to the influence of an at tractive but unworthy young man and mar ried him. He turned out to be a sot. He lived off her income until she got a divorce two years later. Somehow he had managed to purchase a $2,000 insurance policy payable to his estate. He died with this insurance policy his only asset and a distant uncle his nearest relative. Friends of the young woman persuaded her to file a claim against the estate for the money she had advanced to this good-for-nothing. At the trial a writ ten promissory note for exactly $2,000pay able to the wife and signed by the husband was introduced. A handwriting expert tes tified that the writing was a forgery. Later the expert asked the foreman of the jury if they honestly doubted the expert's testi mony. The foreman answered, "Of course we believed it, but we were not going to let that poor woman lose all the money that she had given to that worthless husband of hers!" Some will cite this as a reason for abolishing the jury. I cite it as a reason for its indispensability.

The jury also serves as a school in de mocracy. The right to the tribunals ofjustice is the right through which all other rights can be protected or through which they can all be destroyed. The humblest juror becomes a part of that tribunal. He sees it in opera tion. He operates it. He is elevated to a position of importance. The events of the courtroom-the events of his judicial sys tem are brought home to him. This is im possible if the case is tried to a judge, a referee, an expert, or what-not. Another essential reason for having the TRIAL BY JURY VS. TRIAL BY JUDGE 615 jury is that its job is not the job of an expert and not the job of an individual. It is a job which requires group judgment. In the field of physical sciences (regardless of what Einstein said), it is possible to deal in absolute realities. On the human level this is impossible in the conduct of human life. There we must deal in averages, generali ties, reasonableness, and other equally vague quantities. That average, that gener ality, that reasonable denominator, can best be arrived at through a group judgment. No human being can, or even has a right, to judge with any degree of absoluteness the right or the wrong of any individual. In fact that is the foundation of sin itself. What was the original sin but man's attempt to be God-man's partaking of the tree of knowl edge of right and wrong.

The best that any system of earthly justice can hope for is to enforce some minimum standard. That minimum standard must be a standard accepted by the group. That makes the group decision necessary. The indict ment-the accusation-might picture the accused raven black. But he is entitled to hear the verdict of his own comrades. When that verdict is "Not Guilty" he becomes white as the driven snow. Why? Not because a judge said so. Not because a panel of judges said so. Not because some expert in the science of the mind said so. But because twelve men of his peers said so. There has been no time in the history of the world when anyone has admittedly at tacked human freedom. That just isn't done. It isn't being done now. Other schemes are used. They often have their origin in noble motives. The effort to take the courts of justice-the deciding of particular cases out of the hands of the popular will is in effect an attack upon that freedom. If you would preserve freedom, preserve the insti tution which administers freedom. If it is the people's liberty with which you are concerned, keep that liberty in the hands of the people.

Remember one thing more. No citizen worthy of being a citizen will ever decline jury service. D 1. Almost 40 years after Professor Sparks wrote, the ignoranceof-the-masses argument against trial by jury is still alive and well: "Commercial cases require a sophistication and expertise that layjurors generally don't have." James D. Zirin, "Courting Disaster," Barron's, March 13, 1995, p. 45. [Edi tor's note] 2. John Henry Wigmore (1863-1943), professor and dean at the Northwestern University School of Law, Chicago, and an authority on the law of evidence.