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 In this article, written almost four decades ago but unpublished until now, Professor Sparks defends one of our precious heritages from the law and customs of England, trial before a jury of our peers.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.